Communications Law. COMM 407, CSU Fullerton
REGULATION OF ELECTRONIC
MEDIA. CHAPTER 11
Broadcasting
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The transmission of radio / television signal for
intended reception by the general public (over
the air / not through terrestrial cable)
The radio spectrum
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The electromagnetic spectrum of frequencies lower than
around 300 GHz called radio waves and used mostly for
radio communication.
Examples:
Medium Frequency 300–3000 kHz
(AM radio in the U.S. from 530-1710 kHz)
Very High Frequency (VHF) 30–300 MHz
(TV, FM radio between 88-108 MHz)
Ultra High Frequency (UHF) 300-3000 MHz
(TV, mobile phones, bluetooth, microwave ovens).
The primary justification for
broadcast regulation:
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The scarcity rationale: Radio spectrum is
limited
Thus: The government decides the rules for
access and the rules for operations
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BUT: Is the radio spectrum really limited?
First radio as we know it today
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The Netherlands: 1919
Canada 1919:
American radio: Fall of 1920
 KDKA Pittsburgh (Westinghouse)
1921: 5 stations and 50,000 radio sets
1923: 556 stations and millions of sets
KDKA Pittsburgh
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Westinghouse’s engineer Frank Conrad began
broadcasting from his garage.
Horne’s department stores saw opportunity and began
selling radio sets for Conrad’s broadcast
Westinghouse proposed to build a station that would
broadcast regular programming
KDKA was born (11/2/1920)
The development of improved
receivers
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Between 1925 and 1930, 17 million radio sets
were sold
At first battery operated
By 1926 on ordinary house current
By late 1920s, radios became a part of house
furnishing
Commercial Radio
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Early radio stations were owned by organizations and
businesses. For example WLS in Chicago by Sears, WSM
in Nashville by insurance company, WGN by Chicago
Tribune
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In 1922 AT&T began charging for
‘commercials’
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The first: the Queensboro Realty paid $300 for five radio
“talks” that praised the benefits of living in the country
Broadcast Regulation
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1912 Radio Act: required radio operators to be licensed
1927 Radio Act: a comprehensive set of rules aimed at
creating order in broadcasting
1934 Federal Communications Act: remains the base for
all telecommunications regulations; created the Federal
Radio Commission, later Federal Communication
Commission (FCC)
1996 Telecommunications Act: revised
licensing/ownership rules; added rules for new
technologies (wireless, internet)
Federal Communication Commission
MISSION STATEMENT:
"make available so far as possible,
to all the people of the United States,
without discrimination on the basis of race, color, religion,
national origin, or sex,
rapid, efficient, Nation-wide, and world-wide wire and radio
communication services with adequate facilities at
reasonable charges."
Federal Communication Commission
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has jurisdiction over all forms of electronic
communication (radio, TV, telephone).
should carry its powers for public convenience
and interest
shall not interfere with the right of free speech
Challenges to FCC powers:
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NBC v United States (1943): The Court ruled that
the FCC supervises the traffic and also can
determine the composition of the traffic
Regulations
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Technical standards
Licensing
Content
The FCC has a wide range of sanctions
against those who violate regulations:
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Letter of reprimand
Cease and desist order
Forfeiture or fine
Short-term renewal
Non-renewal or revocation of license
Licensing: a prospective licensee must meet
these qualifications:
The applicant must be a citizen of the United States or
have less than 25% foreign ownership
The applicant must have sufficient funds to build and
operate the station for at least three months without
earning any advertising revenue
The applicant must either possess or hire people who
possess the technical qualifications to operate a
broadcast station
The applicant must be honest and open in dealing with
the commission and must have good character
Licensing for new stations
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When two or more persons seek the same license, the FCC
uses an auction process to select who will receive the
license
The FCC favors applicants who do not own other
broadcast stations & and who promise ‘integration of
ownership and management’
The U.S. Supreme Court decisions on
Licensing / Minority Preferences
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Metro Broadcasting v. FCC (1990): the court
reaffirmed the minority preference rules
but
Adarand Constructors Inc. v Peña (1995): the
court ruled that all race preference programs must
be ruled by strict judicial scrutiny.
License Renewal
Congress has instructed the FCC to renew a
broadcaster’s license every eight years as long as:
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The station has served the public interest, convenience
and necessity
The licensee has not committed any serious violation of
the Communication Act or FCC rules
The licensee has not committed any other violations
that, taken together, would constitute a pattern of abuse
Multiple Ownership Rules
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A single company or individual may own
television stations whose signals reach no more
than 45 percent of the total national viewing
audience
There is no limit on the number of radio
stations any single licensee can own
Ownership of both radio and television stations
in a single market is limited, based on the
number of stations in the market
Multiple Ownership Rules
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Cross-ownership rules – the ownership of TV
and radio stations and newspapers in the same
market
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Guided by the number of media properties in a
market
Top Network TV companies
by viewership
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Comcast*
Disney
CBS
PBS
14,190,800
12,606,700
8,840,100
1,100,000
*Comcast includes NBC Network
Top Cable News TV companies
by viewership
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News Corporation
Time Warner
Comcast*
1,910,000
1,040,000
1,001,000
*Comcast includes NBC Network
Top Local TV companies
(by combined station reach)
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News Corporation
CBS
Univision
Tribune Company*
Disney
*owns the L.A. Times and KTLA TV
25%
25%
23%
22%
21%
Top Radio Companies
(by radio audiences)
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Clear Channel
160,099,000
CBS
82,178,500
Cumulus Media Inc.
46,266,900
National Public Radio* 27,200,000
Entercom
23,330,200
*NPR produces / distributes radio programming, but is not a
radio station itself nor does it own any radio stations.
Top Online News Companies
Monthly Unique Visitors for All News Sites
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Yahoo
Time Warner
Comcast
Gannett
AOL
Walt Disney
News Corp
New York Times
Tribune
39,042,000
34,617,000
29,438,000
26,400,000
22,578,000
18,199,000
17,846,000
16,647,000
16,500,000
Broadcast Content Regulation
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Federal Communication Commission
regulates:
Political Broadcasting
Limits on commercials
Children programming
‘Indecent’ material
Political broadcasting:
Equal Time Rule
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If a broadcasting station permits one legally
qualified candidate for any elective public office
to use its facilities, it must afford an equal
opportunity for all other legally qualified
candidates for the same office (Section 315)
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Once a political campaign begins, the broadcasters must
give reasonable good faith attention to access requests
from ‘legally qualified’ candidates (section 312)
A legally qualified candidate
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Any person:
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Who publicly announces he or she is a candidate for
nomination or election, and
Who meets the qualifications prescribed by law for that
office (e.g., age, residency), and
Who qualifies for a place on the ballot, and
Who was duly nominated by a political party
The use of a broadcast facility
Any presentation or appearance that features a
candidate’s voice or image
For example:
 Appearances in televised feature films,
 TV entertainment programs,
 non-news interviews
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Appearances Not Covered By the Rule
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Appearance in a bona fide newscast
Appearance in a bona fide news interview show
Appearance in the sport news coverage of a bona
fide news event
Incidental appearance in a news documentary
Bona Fide News Interview
(in good faith)
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A program must be regularly scheduled
The content, format, and participants must be
determined by the licensee
The determination that programming is a bona
fide news interview must have been made by
the station “in exercise of its bona fide news
judgment”
An equal opportunity
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Equal time
Equal facilities
Comparable costs
A note: the rules apply to supporters of
candidates
Candidate Access Rule
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Broadcasters must allow candidates for federal
office access to or the purchase of airtime
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Once a political campaign begins, the broadcasters must
give reasonable good faith attention to access requests
from ‘legally qualified’ candidates
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Advertising Rates: 45/60 days before elections
candidates cannot be charged more than the lowest
commercial rate
Political Debates
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The problem: How many candidates should be
included in the debate?
Initially treated under ‘Equal Time Rule.’
Since 1975 interpreted as bona fide news event.
Ethical questions of who should be included in the
debates remains
The FCC and the First Amendment
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In FCC v. League of Women Voters (1984), the
U.S. Supreme Court struck down a statute that
forbade public broadcasting stations from
telecasting editorial opinions
Political Debates
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A look from the First Amendment perspective
Does a TV station licensed by FCC have a First
Amendment obligation to include all candidates in
a debate?
NO.
(The U.S. Supreme Court in Arkansas Educational
Television v. Forbes, 1998)
The Fairness Doctrine
(abandoned in 1987, 2000)
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The Doctrine required that all broadcasters
1. Devote a reasonable amount of their
programming to controversial issues of public
importance
2. Provide contrasting viewpoints on those issues
3. Offer a reasonable opportunity to respond to
personal attacks
4. Offer an opportunity to candidates who were
not endorsed by a station to respond
Regulation of Indecent Material:
Seven Dirty words
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George Carlin Seven Dirty Words….
On1973's Occupation: Foole album Carlin performed a
routine titled "Filthy Words." Pacifica station WBAI-FM
broadcast the routine uncensored.
Morality in Media organization complained to the FCC
that the material was inappropriate for the time of day.
FCC v. Pacifica Foundation, (1978)
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The FCC upheld the complaint.
Pacifica appealed this decision.
The U.S. Court of Appeals overturned FCC’s
decision.
The FCC appealed to the Supreme Court.
The Supreme Court ruled in favor of FCC, but
did not define the scope of “indecency”
FCC v. Pacifica Foundation, (1978)
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The Court upheld the FCC action by a vote of 5 to 4
The government has interest in:
1) shielding children from potentially offensive material
2) ensuring that unwanted speech does not enter one's
home.
The FCC had the authority to prohibit such broadcasts
during hours when children were likely to be among the
audience
It gave the FCC broad leeway to determine what
constituted indecency in different contexts.
Obscene, Indecent and Profane
Broadcasts
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It is a violation of federal law to air obscene programming
at any time.
Obscene material is not protected by the First
Amendment to the Constitution and cannot be
broadcast at any time.
It is also a violation of federal law to air indecent
programming or profane language during certain hours.
Indecent material
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The courts have held that indecent material is
protected by the First Amendment and cannot be
banned entirely.
It may, however, be restricted in order to avoid its
broadcast during times of the day when there is a
reasonable risk that children may be in the audience.
The FCC adopted a rule that broadcasts that fit within the
indecency definition and that are aired between 6:00 a.m.
and 10:00 p.m. are prohibited and subject to indecency
enforcement action.
Indecent: Definitional problems
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Indecent: offending against decency;
unsuitable
Decent: correct, honorable, or modest behavior
Special legal meaning: a class of speech that is
restricted on the broadcast airwaves, even though
is not necessarily obscene and would be legally
allowable in other avenues of expression.
The FCC has defined broadcast
indecency as:
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“Language or material that, in context, depicts or
describes, in terms patently offensive as measured
by contemporary community standards for the
broadcast medium, sexual or excretory organs or
activities.”
Indecent programming contains patently offensive
sexual or excretory material that does not rise to
the level of obscenity.
$550,000 Moment (FCC Fine)
The FCC determined that
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the incident was of an “overall sexually
provocative nature” and an indecency violation.
The FCC had fined CBS a total of $550,000, or
$27,500 for each CBS owned-and-operated
station.
BUT: A unanimous 3rd Circuit Court of
Appeals in Philadelphia ruled that
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Janet Jackson’s wardrobe malfunction on the 2004
Super Bowl halftime show didn’t violate TV
indecency standards
FCC v. Fox Television Stations (2012)
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The Supreme Court ruled against the FCC's policy
regulating curse words and nudity on broadcast
television.
In an 8-0 decision, the high court threw out fines
and sanctions imposed by the Federal
Communications Commission. The case involved
some uncensored curse words and brief nudity on
various networks.
FCC v. Fox Television Stations (2012)
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The court said the FCC is "free to modify its
current indecency policy" in light of the ruling.
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The justices, though, declined to issue a broad
ruling on the constitutionality of the FCC
indecency policy.
Indecency on Cable
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Generally, cable television is permitted to offer
any sexually explicit programming
Violence on Television
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In 1996, Congress mandated that all
manufacturers of television sets include a V-Chip
to block out violent programming
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Along with the chip, Congress imposed a
program rating system
Violence on Television
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Television Ratings System:
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TV – Y
TV – Y7
TV – G
TV – PG
TV – 14
TV – MA
approved for all children
approved for children 7 and over
suitable for all ages
parental guidance
parent strongly cautioned
mature audiences only
Violence on Television
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Television Ratings System:
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A second tier of ratings summarizes content:
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V – violence
S – sexual situations
L – coarse language
D – suggestive dialogue
FV – fantasy violence
Regulating Children’s Programming
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All commercial television stations are required to offer at
least three hours a week programming to meet the
educational and informational needs of children
In blocks of at least 30 minutes (3 hours total) between 7
a.m. and 10 p.m.
Challenges: What is the programming that the
government thinks children should be watching?
Regulating Children’s Programming
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Restrictions on Advertisement:
 For shows for children 12 years old and younger:
 Only 10.5 advertising minutes are permitted each hour
on weekends, 12 minutes each hour or weekdays
Regulating Children’s Programming
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Restrictions on Advertisement:
 There must be a buffer between commercials and
program content (“We’ll be right back…)
 A program may not mention an item advertised in a
commercial for the same show
Cable Television Regulation
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FCC assumed jurisdiction over cable television
based on the effect of cable on on-the-air
broadcasters.
The U.S. Supreme Court affirmed the FCC’s
authority in U.S. v Southwestern Cable Co (1968)
Cable Television Regulation
Cable television systems must
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pay royalties for copyrighted programs from non-local
broadcasters
must carry local television programming channels
provide local public and government access channels
Originate a minimum amount of local programming
Refrain from importing distant signals over the nearest
network affiliate
Respect syndication agreements (exclusive rights of local
broadcast)
Litigating “must carry”
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In Turner Broadcasting System, Inc. v. FCC (1994, 1997),
the U.S. Supreme Court ruled must carry rules were
constitutional
Based on the argument that cable companies in some
communities are the only available providers of quality
signal
Cable Television Regulation
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Under the 1992 Cable Television Consumer
Protection and Competition Act:
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Local governments are given the primary responsibility
to regulate cable systems in their communities
Local governments may issue franchises, collect
franchise fees, and renew franchises
Includes provisions to protect subscribers’ right to
privacy
Cable Television Regulation
The question of exclusive franchise.
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When technical capabilities permit, local
government must allow more than one cable
company to operate
The City of Los Angeles v. Preferred
Communications (U.S. Supreme Court 1986 and
District Court in 1990).