TEL 310
p. 1
TEL 310
02/15
Content Regulation
Topics covered:
Fairness Doctrine (incl. personal
attack and political editorializing)
Political broadcasting (incl.
reasonable access, equal time and
lowest unit cost rules)
Programming performance in license
renewal and transfer (incl. format
regulation)
Children's Television (incl. indecent
Broadcasts, children's programming
and advertising, violence and v-chip)
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Introduction
The First Amendment of the U.S.
Constitution:
Congress shall make no law…abridging the freedom
of speech, or of the press…
47 U.S.C. 326:
Nothing in this chapter shall be understood or
construed to give the Commission the power of
censorship over the radio communications or signals
transmitted by any radio station, and no regulation or
condition shall be promulgated or fixed by the
Commission which shall interfere with the right of
free speech by means of radio communication.
Broadcasters as "public trustees"
What is public trustee? -- Duty to
subordinate one's own interest to those of
a wider public good.
Why should broadcasters be regarded as
public trustees?
--- Free use of the spectrum, a public
resource
FCC not just supervising the traffic, but also
determining the composition of that traffic
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Fairness Doctrine
1. Rules
Two parts of fairness doctrine: (p. 150)
--- Need to provide coverage of important
controversial issues
--- Need to provide presentation of contrasting
viewpoints on such issues
Personal attack: (p. 151)
--- Notification of the attack
--- Offer of opportunity to respond to the
attack
Political editorializing: (p. 151)
Same.
2. Legality of Fairness Doctrine: The
print model v. the broadcast model
Tornillo (U.S., 1974)
Red Lion (U.S., 1969)
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Miami Herald Publishing Co. v. Tornillo (1974)
1. Facts:
--- The Herald ran two unflattering on Tornillo, a
candidate for public office
--- Tornillo demanded space in the paper to
respond
--- The paper refused and Tornillo sued under the
Florida "right of reply" statute (p. 149)
2. Issue:
Does the Florida statute violate the First
Amendment?
3. Decision: Yes, the statute is
unconstitutional.
4. Reasoning:
--- Intrusion into the function of
editors/Regulating content
--- Chilling effect on political/electoral coverage
"A responsible press is undoubtedly desirable
goal, but press responsibility is not mandated by
the Constitution and like many other virtues it
cannot be legislated." (p. 149)
* Not a fairness doctrine case
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Red Lion Broadcasting Co. v. FCC (U.S.,
1969)
1. Facts
--- Rev. Billy James Hargis attacked Fred Cook
and his book on WGCB
--- Cook asked the radio station for time to rebut
the attack
--- The station refused and Cook complained to
FCC
--- FCC ruled against the station citing Fairness
Doctrine
--- Red Lion, owner of the station, sued FCC
2. Issue
--- Does Fairness Doctrine violated the First
Amendment?
3. Decision: No.
4. Reasoning:
--- Differences in new media characteristics
justify different First Amendment standards
So, what is unique about broadcasting?
"It does not violate the First Amendment to
treat licensees given the privilege of using scare
radio frequencies as proxies for the entire
community, obligated to give suitable time and
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attention to matters of great public concern."
(p. 154)
--- Right of viewers and listeners paramount
3. Elimination of Fairness Doctrine
1) 1985 FCC Fairness Doctrine Report (p.
156): It no longer served the public
interest. How so?
--- Fairness Doctrine, in operation, had
opposite effect: Inhibited presentation of
controversial issues
--- It impairs the journalistic freedom of
broadcasters
--- No need for the doctrine in light of the
increase of information sources
* Note that the 1985 report did not eliminate
the doctrine
2) FCC repealed Fairness Doctrine in 1987,
but kept the "personal attack" and
"political editorializing" components.
3) In Oct. 2000, the FCC, ordered by court
order, repealed the above two
components.
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Equal Time Rules (p. 172)
Simply put, if a station gives air time or sell
political ad to a candidate for an elective office,
it should do so to all legally qualified
candidates running against the initial
candidate.
--- Exemptions for bona fide news events
coverage (including presidential debate)
Lowest Unit Cost Rules
If a station sells political ads to candidates at
all, it must sell them at the lowest unit charge
for that class of air time.
Reasonable Access Rules
A station must sell political ads to candidates of
federal offices, and do so at the lowest unit
charge.
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Programming Performance
Historically, the FCC had imposed detailed
regulations and guidelines on broadcasters'
programming performance and evaluated
their compliance with those regulations in
license renewal and transfer proceedings.
During the 1980s, the FCC removed many
of the regulations.
Example: In the 1984 "Television
Deregulation" report (pp. 257-265), the
FCC eliminated:
 Guidelines for local, news, and public affairs
programming
 Instead, broadcasters obligated to provide
issue-responsive programming
 Ascertainment requirements
 Guidelines for amount of Commercial time per
hour
 Program log requirement
 Instead, a quarterly issues/programs list
requirement
Rationale for elimination: The marketplace
does a better job in achieving the goals than
the government rules
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Another example: Format Regulation
What is format regulation? (p. 231)
--- Ordered by D.C. Cir. Court.
--- Rationale: Program diversity
The FCC decided not to regulate
entertainment format (1976). Why?
--- Marketplace is the best available means of
producing program diversity
--- Practical difficulty in regulating format
--- Constitutional difficulty
The Court disagreed with the FCC in
WNCN Listeners Guild v. FCC (D.C.Cir.,
1981).
--- FCC is required to consider the public
interest implications of format
abandonment.
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The SC reversed the lower court's
decision in FCC v. WNCN Listeners' Guild
(U.S., 1981).
--- Diversity is not the only policy the
Commission must consider
--- The other: preserving journalistic
discretion
--- The FCC's judgment on how the
public interest is better served should be
entitled to substantial judicial deference.
--- Red Lion does not imply that "the First
Amendment grants individual listeners
the right to have the Commission review
the abandonment of their favorite
entertainment programs" (p. 240).
Homework #2 (Due Feb. 22):
Conduct research on the Internet, and write, in
one page or two, a brief historical account of
the "fate" of the personal attack and political
editorializing rules between 1987 when the
FCC eliminated the Fairness Doctrine and
2000 when the above two rules were finally
repealed.