Chapter 13: Broadcasting, Cable, and Access Theory
Broadcasting Outline by Jaime Corteyou
April 14, 2003
I.
II.
History of Broadcasting
A. Guglielmo Marconi invented wireless telegraphy in 1894.
B. Because frequencies are scarce, they need to be allocated.
i. International Telecommunications Union (ITU) - worldwide
regulations
ii. United States – Wireless Ship Act of 1910 - All American
passenger vessels must carry transmitters.
iii. First International Radio Treaty 1912
iv. Radio Act
1. U.S. Act to meet the international treaty in Aug. 1912
2. Required broadcasters to obtain a license from the
Secretary of Commerce
3. 1926 – IL Federal District Court ruled that the Sec. of
Commerce had no authority to restrict
v. Federal Radio Act of 1927
1. Response to the chaos from lack of restrictions
2. The Federal Radio Commission was formed.
vi. Communication Act of 1934
1. Airwaves belong to the people.
2. FRC to the FCC (Federal Communications Commission)
vii. Telecommunications Act of 1996 - addresses deregulation, cable
transmission of programming, and Internet communication.
The Federal Communications Commission (FCC)
A. The FCC is an independent government regulatory agency.
i. Five commissioners, appointed by the president and confirmed by
the Senate, are in office for five years.
ii. The commissioners cannot be made up of more than three
representatives of one party or have a financial interest in the
broadcasting industry.
B. Challenging an FCC decision
i. The complaint is first heard by an administrative law judge.
ii. The decision of the judge is appealed to the FCC review board.
iii. The Commissioners choose whether or not to hear the complaint.
iv. If the issue is still not resolved, the Federal Circuit Court of
Appeals will hear the grievance, then to the USSC if necessary.
C. Six Bureaus of the FCC
i. The Cable Services Bureau
1. Develops and administers policies and programs the
regulation of cable t.v. systems
2. Investigates complaints from public
3. Conducts studies for policy and rule changes
ii.
iii.
iv.
v.
vi.
III.
4. Complies data concerning the cable industry
The Common Carrier Bureau
1. Regulates the interstate common carrier communications
(telephone)
2. This regulation also includes wire, electrical, or optical
cable.
The Compliance and Information Bureau
1. Assures compliance with communications law
2. Provides information to commission for decisions affecting
telecommunications policy)
The International Bureau
1. Manages international policies
2. Represents FCC at international meetings
The Mass Media Bureau
1. Licenses and supervises radio and television stations
(To play Eminem, or to not play Eminem)
2. Administers federal law and FCC regulations concerning
low-power and instructional television
The Wireless Telecommunications Bureau
1. Administers domestic commercial and private wireless
programs and policies
2. Supervises cellular, paging, mobile radio, amateur, and
marine broadcasting
3. Administers FCC’s spectrum auctions
Licensing
A. How-To-Start Broadcasting (in four not-so-easy steps)
i. Purchase an existing station or find unused frequency for a new
radio or television station
ii. If new, apply to the Mass Media Bureau (FCC) for a construction
permit.
1. Specify community and frequency
2. Show evidence of citizenship, good character, and adequate
finances
3. Once construction is finished, license to operate generally
follows routinely.
iii. Meet challenges from your opposition
1. Rival applicant who wants the same opportunity
2. Established broadcaster who is concerned with interference
iv. The FCC checks to see if demands are met and then grants a
license.
B. License Expiration
i. Stations are licensed a maximum of eight years.
ii. Once the license has expired, the station can apply for renewal.
iii. Telecommunications Act of 1996 allows existing stations to
automatically renew, regardless of competing applications, if the
station has served the public and not violated any rules or laws.
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IV.
iv. If the station has violated a rule or law, the FCC may renew the
license with limitations.
C. Violations
i. Letter of warning or reprimand
ii. Forfeiture (fine)
iii. Short-term license renewal
1. Renewed for less than eight years
2. The station is expected to ‘fix’ the problem.
iv. Revocation or non-renewal of a license
Broadcasting and the First Amendment
A. Licensing and Ownership
i. Originally intended to prevent chaos and prevent monopolies
ii. 1943 National Broadcasting Co. v. U.S.
1. Began in 1941
2. FCC issued regulations concerning the power of networks
over local stations
3. Justice Felix Frankfurter ruled that the regulations were
legal and requiring a license was constitutional.
iii. Anti-monopoly Rules
1. An individual or group cannot own more than one station in
the same community.
2. “7-7-7 rule” - An individual or group cannot own more
than seven AM radio, seven FM radio, and seven television
stations.
3. The rule was expanded to 12 of each between 1984 and
1994.
4. In 1994 it was expanded to 20.
5. The Telecommunications Act of 1996 removed many antimonopoly restrictions. The remaining are:
a. Radio – an individual or group may own an
unlimited number of stations but has limits in
individual markets.
b. Television – an individual or group can have
unlimited stations but cannot reach more than 35%
of all households.
c. Multiple Media Outlets and Networks
i. Large companies (NBC, ABC) cannot own
more than one network but smaller
companies are allowed.
ii. Broadcast networks can own cable systems.
iii. Cable companies can own television
stations.
B. Balance and Access
i. FCC’s Fairness Rules
1. 1941 Mayflower Doctrine
a. Radio stations were not allowed to editorialize.
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b. Stations must address all sides of public issues.
c. June 1949 – Mayflower Doctrine was thrown out
2. Fairness Doctrine 1949
a. Editorials were permitted if other views were also
portrayed.
b. Candidates or others who were likely to be attacked
on air reserved a “right of reply.”
3. Red Lion Broadcasting Co. v. FCC 1969
a. USSC upheld the Fairness Doctrine.
b. Justice White said the doctrine promotes the
freedom of speech.
ii. Programming must have a balance of views.
1. Stations are not required to accept editorial advertising.
2. If accepted, they must be fair.
3. Candidates have a right of reply.
a. Station must notify person or group of personal
attacks.
b. Station must also allow for response, including
endorsements.
4. Broadcast industry against the Fairness Doctrine - it
inhibits views because stations avoid topics.
iii. 1985 Reagan’s commissioners reviewed doctrine
1. Doctrine was found to have a negative impact on
broadcasting (less discussion of issues).
2. Modern technology made scarcity and access to broadcast
less important.
3. Doctrine allowed government supervision of content.
iv. FCC no longer required stations to balance public issues but kept
the personal attack rules (1987).
1. Equal Opportunity Law
a. 1959 – short radio or television news clips required
reply time
b. Four types are not considered political campaigning
(Bona fine newscasts, news interviews, news
events, and incidental appearances).
2. “Great Debates Law” 1960
a. FCC allowed coverage of presidential and vice
presidential debates – John Kennedy vs. Richard
Nixon
b. Experimented with this for one year
3. 1975 Debates could be broadcast by a nonpartisan group.
a. League of Women Voters sponsored Gerald Ford
and Jimmy Carter 1976
b. LWV - Jimmy Carter and Ronald Reagan 1980
4. 1984 Stations could sponsor debates.
a. Debates must be presented as news events.
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b. The hope for this amendment was to encourage
more debates.
5. 1992 Arkansas Educational Television Commission
(AETC) v. Forbes
a. USSC and Justice Kennedy said a television station
could exclude candidates.
b. The forum was nonpublic and the exclusion was not
based on political views.
6. Federal Election Campaign Act of 1971
a. Amended Sec. 312 of the Communications Act
b. Previously the FCC could revoke a license for
failure to allow candidates equal response time.
c. This amendment was limited to federal elections
and does not mandate free time.
7. Oct. 1979 - Three networks refused the Carter-Mondale
Presidential Committee
a. Networks declared October ‘79 too early to begin
1980 campaign.
b. FCC agreed with complaint.
c. USSC affirmed ruling (July 1981).
d. Chief Justice Burger said that courts approved
limited right of access to broadcast media.
C. Censorship
i. Constraints on Program Content
1. Broadcast can freely publish with the exception of the
improper, mischievous, or illegal.
2. Communication Act of 1934, Sec. 326 - This act claimed to
not censor but banned “obscene, indecent, or profane”
language and information on lotteries.
a. Lottery Information
i. Moved from Communications Act of 1934
to the U.S. Criminal Code in 1948
ii. Violators can be fined up to $1000 or serve
imprisonment up to one year.
iii. 1988 – State lotteries and gambling
activities on Indian reservations were
allowed.
iv. 1999 – New Orleans broadcasters wanted to
run advertisements for private casinos.
1. USSC sided with the casinos.
2. Recommended that legislation be
rewritten.
b. Objectionable Programming
i. Moved from Communications Act of 1934
to the U.S. Criminal Code in 1948
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ii. Violators can be fined up to $10,000 or
serve imprisonment up to two years.
iii. Telecommunications Act of 1996 –
increased fine to $500,000
iv. 1978 FCC v. Pacifica Foundation
1. George Carlin’s “Filthy Words”
played (uncensored) on the radio
during daytime programming.
2. Justice John Paul Stevens upheld
legislation.
3. The station received a warning but
no fine.
v. Indecent is defined as material that depicts
or describes in terms patently offensive as
measured by the contemporary community.
vi. “Guilt” for Indecency depended on:
1. Time of day
2. Content of Program (who is the
audience)
3. Medium (radio, television, etc.)
vii. Public Broadcast Funding Bill of 1992
1. U.S. Circuit Court of Appeals for the
District of Columbia says FCC’s
prohibition on indecency violated the
First Amendment (1991).
2. Congress implements a “safe harbor”
of midnight – 6am.
3. Moved back to 10pm
4. Expanded to include violent and
sexually explicit television programs
viii. Telecommunications Act of 1996
1. Required televisions 13 inches and
larger to have V-chips by January 1,
2000
2. Allows viewers to program
television to block shows with an
objectionable rating
3. All broadcast television programs
must be rated. Networks assign
letter labels or age restrictions.
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CABLE
MOLLY LARCOMBE
I.
Cable
a.
First commercial cable television systems began operation in the late
1940s and early 1950s.
b.
The FCC left the industry untouched for 12 years but then in 1962
entered the market to establish governing rules. The reason for
entering the cable market was not to censor programming but to
restrict the industry in order to protect existing television stations
c.
However in 1970 the FCC saw that the cable industry was doing little
if any damage to establish broadcasters. The tight regulations that were
once upon the cable industry had begun to become removed.
d.
Between 1984 and 1996, congress passed three major bills governing
cable-the Cable Communications Policy Act of 1984, the Cable
Television Consumer Protection and Competition Act of 1992, and the
Telecommunications Act of 1996.
e.
The Cable Communication Policy of 1984 included a legal framework
for local government and FCC supervision with an orderly process for
cable ownership and rate setting.
II.
Controls on Cable Content
a.
The Cable Act of 1984 set out many provisions against cable content
that were originally derived from the Communications Act of 1934.
Rules were placed on cable operators to not permit having lotteries and
carrying cigarette advertising. Also the cable system was to ban
programs that were “obscene” or “indecent”.
b.
The first case in which federal courts ruled on the indecency law
applied to cable began in 1983 in Miami, Florida. The city has an
ordinance prohibiting both “obscene” and indecent” programming
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over cable. The ordinance defined obscenity according to the Miller
decision. Then defined indecency as “material, which is a
representation or description of a human sexual or excretory organ or
function which the average person, applying contemporary community
standards, would find to be patently offensive.”
c.
The cable subscriber Ruben Cruz, challenge the “indecency” provision
of the ordinance. He won his case when the court declared the
“indecency provision unconstitutional. On appeal, the U.S. circuit
court affirmed the decision and in doing so, set out a rationale for
distinguishing between broadcasting and cable that has been influential
in resolving similar disputes.
d.
In a second case regarding cable programming. In Utah a U.S. district
court ruled that the Utah Cable Television Programming Decency Act
violated the first amendment, for its prohibition on “indecency” did
not meet the standards required by the Supreme Court in Miller. The
district court emphasized that cable, unlike broadcasting, was not an
“uninvited intrusion” into the home, for cable subscribers voluntarily
requested and paid for cable service. Therefore government may not
regulate “indecency” over cable in the way that it does for
broadcasting.
e.
The Cable Television Consumer Protection and Competition Act of
1992 brought freedom of expression into the light again. The previous
1984 act did only allowed cable operator to censor program content
(except for obscenity). The 1992 act included three procensorship
provisions
i. First-cable operators were authorized to either allow or prohibit
“indecent” programs on leased access channels
ii. Second-operators were given the same authority to allow or
prohibit indecent programs on public access channels
iii. Third- “segregate and block” required operators who decided to
allow indecent programming to segregate it on a single channel
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and to block access to that channel unless a viewer requested
access
iv. 2 out of 3 of these laws were declared unconstitutional. After much
consideration the courts decided to uphold only the one rule that
gives cable operators the right to decide whether to transmit
“indecent” programming on leased (commercial) channels.
f.
Telecommunications Act of 1996-More and more provisions have
been added onto the cable laws in 1996, “language” was inserted into
the telecommunications act which required cable operators to devote
“sexually-oriented programming” between 10pm and 6am.
III.
The “Must-Carry” Rules
a.
In 1966 when the cable systems began to be effective competitors for
local television stations, the FCC announced that cable operators
“must-carry” signals fro all local television channels that were
“significantly viewed” in the community. However the D.C. circuit
court emphasized that the FCC had not proved that the rules were
necessary and that the rule was unconstitutional.
b.
In 1992 with the passage of the Cable act congress entered debate yet
again mandating cable systems to devote a portion of their channels to
transmitting local television stations. After the district court reviews
the U.S. Supreme Court granted review for the “must carry” laws
c.
After much deliberation the final decision of the court was that the
must-carry rule served the three related governmental interest
i. Preserving free television broadcasting
ii. Promoting widespread dissemination of information from a variety
of sources
iii. Promoting fair competition in the television marketplace.
Therefore because the rule burdened no more speech than necessary to further these
interests it did not violate the first amendment and the must-carry rules were established.
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