Rules and Regulations
Adam Lundquist
Quote
• “Best test of truth is in the
power of thought to get
accepted into the free market”
• Justice Holmes
Heroes of Free Speech
Born in Boston in 1841
Served in Civil War
Appointed by Teddy Roosevelt
Clear and present danger test
Sterlization program
Common law vs. statutory law
Chief Justice Oliver Wendall Holmes
First amendment
• Congress shall make no law
restricting an establishment of
religion, or prohibiting the free
exercise thereof; or abridging
the freedom of speech, or of
the press; or the right of the
people peaceably to assemble,
and to petition the
Government for a redress of
Marketplace of ideas
• Theory that we should be able
to speak our minds because
free speech is similar to a real
market. The best ideas will rise
and the worst will falter
History of Libel
1637 English writer William
Prynne wrote
a book that critisized the
queen.
•Found guilty of Libel
•Thrown in Jail and had his
ears cut off
Libel
Working Defintion:
To publish in print, writing or broadcast an untruth
about another which will cause harm to that
person
Heros of free Speech
John Peter Zenger
• Born in Germany in 1697
• Came to America
• Published paper
• Jailed for Libel
• Trial in 1735
• Freed due to great attourney
Gold standard for Libel
Truth is an absolute defense against libel!
Radio
• Who owns the airwaves?
• Limited
• Frequency allocation
• Auction
• Overall picture National
Telecommunications and
information admin
• Office of Spectrum
Management
Problems
• How do you regulate radio
without violating free speech?
• Where does radio fall in the
free speech spectrum?
• Protect without too much
restriction
• Changing tastes
Why Government has
the right
• Airwaves are considered public
property that government
“rents out”
• Public interest, convience and
nessicty
Public info files
Requirement to Maintain a Public Inspection
File. Our rules require that all licensees and
permittees of TV and radio stations and
applicants for new broadcast stations maintain a
file available for public inspection.
Check out my public file
Viewing the Public Inspection File. Each
broadcast licensee, permittee, and applicant must
make its station public inspection file available
to members of the public at any time during
regular business hours. Although you do not
need to make an appointment to view the file,
making one may be helpful both to the station
and to you
What is in a public file
• The License
• Applications and Related Materials.
• Citizen Agreements
• Contour Maps.
• Material Relating to an FCC Investigation or
Complaint.
• Political File.
• Letters and E-Mails from the Public.
• Local Public Notice Announcements.
Radio act of 1912
“Act to regulate radio communication”
Mainly concerned with seafaring
vessels.
Required radio operators to obtain
licenses
Prevented them from transmitting on
certain frequencies
W and K
Beginning in 1912 every country recieved designated call
letters
US at first didn't matter K or W wherever
Original K and W boundary ran on the texas/new mexico
border
January of 1923 set where they are now
East of Missippi W and West K
Some Exceptions
Map of W and K
Where are these?
QuickTi me™ and a
TIFF ( Uncompressed) decompressor
are needed to see thi s pi ctur e.
Qui ckTime™ and a
TIFF (U ncompr essed) decompressor
are needed to see thi s pi cture.
QuickTi me™ and a
TIFF ( Uncompressed) decompressor
are needed to see thi s pi ctur e.
Qui ckTime™ and a
TIFF (Uncompr essed) decompressor
are needed to see thi s pi cture.
Radio Act of 1927
• Established the Federal Radio
Commission
• Regulate radio commerce inside the
US “as public convience, interest or
necessity requires”
• “No person within the US shall utter
any obscene, indecent, or profane
language by means of radio
communication.”
First FRC Violation!
• March 9, 1931 Robert Gordon
Duncan
• Says damned and “by god”
Communications act of
1934
• Formed the FCC
• Equal time rule
• Included the provisions of the
1927 act such as keeping out
indecent and obscene phrases
from the airwaves.
Case Study
• John R. Brinkley
QuickTi me™ and a
TIFF ( Uncompressed) decompressor
are needed to see thi s pi ctur e.
1940 Report on Chain
Broadcasting
• Was one of the FCC’s earliest
attempts to preserve localism
by telling the networks that
they could only have so much
say over their affiliates. Upheld
in NBC vs. US 1942
March 10, 1943
• NBC v. US
• Scarcity theory
• Rules radio spectrum is limited
and thus requires government
regulation
• One of the reasons why the
regulate radio and not print, or
internet radio
Payola
• Defined as “The illegal practice
of payment or other
inducement by record
companies to broadcast the
song as if it is normally part of
the days programming”
• A radio station CAN play a
cong for money, but THAT
MUST BE DISCLOSED.”
Effects
• Rico and mambo
• Part of the reason that DJ’s are
often left out of the song
choosing process. Usually falls
to program directors, Music
directors, etc.
Payola (FCC)
• When a broadcast licensee has received
or been promised payment for the airing
of program material, then, at the time
of the airing, the station must disclose
that fact and identify who paid for or
promised to pay for the material. All
sponsored material must be explicitly
identified at the time of broadcast as
paid for and by whom, except when it is
clear that the mention of a product or
service constitutes sponsorship
identification.
Payola cont
• Any broadcast station
employee who has accepted or
agreed to accept payment for
the airing of program material,
and the person making or
promising to make the
payment, must disclose this
information to the station prior
to the airing of the program.
1969
• Red lion broadcasting v FCC
• Carried a program that
attacked a specific individual.
Did not allow him to reply
• Equal time rule
Results of Red Lion
Case
• 1. It is in the public interest
that both sides be represented
• 2. Does not violate the first
amendment since it is held
that viewing and listening
public have right to see and
hear what they want, but
broadcaster operating in the
public interest doesn’t
Continued
• 3. Radio is a scarce resource
• 4. “The danger that licenses
will eliminate coverage as a
result of the personal attacks
and political editorial rules is at
best speculative and in any
event FCC has authority to
guard against it”
First fine!
• FCC issues 100 dollar fine against
WHYY in Philadelphia
• Ran a pretaped interview with
Gratefull Dead front man Jerry
Garcia where he used many swears
• 2 FCC dissented because of possible
chilling effect
• Cycle II (The show it was on) taken
off air
Obscenity and
Indecency
• Title 18 prohibits the
broadcasting of any “indecent
or profane language by means
of radio communication”
• Leads to the question of “What
is obscenity”
Miller v California
(1973)
• Miller was a West Coast
distributor of porn
• Sent out unsolicited mail to
advertise for his product
• Man and mother in Newport
Beach, Ca. open package
• Complained to police
Court
• Was the sale and distribution
of obscene materials protected
by the first amendment?
Court
• No, obscene material is not
protected under the first
amendment
• Government can outlaw works
based on “whether the work,
taken as a whole lacks serious
literary, artistic, political or
scientific value
Indecency
• Indecent material is not illegal
but it is highly regulated
• Can not be broadcast between
6am and 10 pm. This is
because of FCC v Pacifica
What is Indecent?
• Does it depict sexual or
excretory organs or activities
in terms patently offensive
judging by contemporary
community standards
• What is patently offensive?
Supreme courts test
• 3 tests
• Is the description explicit or graphic?
• Does the material dwell on or repeat at
length descriptions or descriptions of
sexual or excretory organs
• Does the material appear to pander to
titillate or shock. No single factor in
determining. FCC balances many
factors.
• Pretty much can never say the F word
FCC vs. Pacifica
• Before this case, broadcasters
regulated themselves
• Landmark case
• George Carlin releases album
“Occupation Foole”
• Gets played on WBAI
• Dad and son hear it
• Seven words
Indecency
The FCC has defined broadcast indecency as
“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.
Obscenity
Obscenity is illegal, indecency is
regulated.
From FCC site
Obscene Broadcasts Are Prohibited at All Times
Obscene material is not protected by the First Amendment
to the Constitution and cannot be broadcast at any time.
The Supreme Court has established that, to be obscene,
material must meet a three-pronged test:
• An average person, applying contemporary community
standards, must find that the material, as a whole, appeals
to the prurient interest;
• The material must depict or describe, in a patently
offensive way, sexual conduct specifically defined by
applicable law; and
• The material, taken as a whole, must lack serious literary,
artistic, political, or scientific value.
Decided
• Material was indecent
• Right to broadcast indecent
material (not obscene)
between 10 pm and 6am when
kids are sleeping and likely not
listening to the radio
• 5-4 Decision FCC could rule on
what is indecent
1987
• In response to increasing
complaints, FCC expands their
definition of what is indecent is.
• New definition - “Material that in
context depicts or describes sexual
or excretory organs in terms
patently offensive as measured by
contemporary community standards
• 10 pm no longer safe harbor
1988
• FCC bans all indecent material
• 1991 Court rules that complete
ban on indecency is
unconstitutional
Jan 19, 1993
• Congress passes the Public
Telecommunications Act of
1992. Bans indecent material
from 6am-10pm
2001
• Broadcasts TV first fine
• January 26, 2004 FCC levies
largest single fine for
indecency in history against
Bubba the Love Sponge
Watchdogs
• FCC does not actually monitor
the airwaves, rather works by
acting on complaints
• For this reason watchdog
agencies have sprung up
Case study
• Morality in America
• Donald E. Wildman
• Howard Stern
• 1.7 Million Dollar settlement
Broadcast limited
protection
• 1. Unique pervasiveness - can
come into homes uninvited.
Since audience constantly
tuning in and out doesn’t make
sense to warn.
• 2. Broadcasting uniquely
accessible to children. Even
those who can’t read
Case study
•
•
•
•
•
•
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Donald E Wildman
Head of Morality in America
Took on Howard Stern
Stern gets fined
Stern gets ratings
Infinity fined and paid 1.7 Million
FCC can’t stop free speech, but can
regulate it
Pervasiveness theory
• Because broadcast waves are
available to anyone they are
uniquely pervasive. Choose to
or not to read a newspaper
lying there but theoretically if
you were walking through a
city block you would be forced
to hear it.