Free Speech v. Regulation
Spectrum Scarcity - Public Trustees
• Not everyone can own a station.
• A limited spectrum
• NBC v US (1943)
• Red Lion Broadcasting Co v. FCC (1969)
• Miami Herald Publishing Co. V Tornillo (1974)
o Print did not have to abide by a fairness doctrine, they did not have to let someone respond to a challenge (if one political party made an allegation about another, print did not have to let that party address the allegation or make a rebuttal.)
• Fairness Doctrine introduced in 1949
• Challenged by Red Lion
• Fairness Doctrine abolished in 1987
Personal Attack and Political Editorial
• Dropped in 2000
Political Broadcasting Rules
• Section 315 of radio act of 1927
• If a broadcaster allows airtime for one candidate, he must offer opposing political candidates reasonable opportunity to respond using the broadcaster’s facilities
• To be legally qualified:
o Has publicly announced his or her intention to run for office
o Is qualified under applicable law to hold the office and
o Has qualified for a place on the ballot or is eligible as a write-in candidate
• Candidate Use:
o A “use” is a candidate appearance by an identifiable voice or picture
o Any “positive” appearance by a candidate is a “use”
o The appearance does not have to be controlled or approved by the candidate
o Can require the candidate to identify himself in the spot
o Effective April 28, 1994
o Broadcasters can make choices of who and which local candidates they are going to let air ads on their station.
o Federal candidates are Entitled to “reasonable access”
Applies during entire campaign
Stations cannot set “up-front” limits on amount or type of time that candidates can buy
Stations may reject unreasonable requests and negotiate with candidates
• Equal Opportunity
o Applies to all candidates for one race
o Prevents candidate from being frozen out
o Presumes all candidates are treated equally
o Includes concept of equal facilities
• Stations do not need to notify other candidates
• Can return unacceptable spots (Technical problems, not within time range, not properly identified)
• Exceptions to the rule: (Created exemptions in section 315 due to Lar Daly decision)
o Bona fide newscast
o Bona fide news interview
o Bona fide news documentary (if the appearance of the candidate is incidental to the presentation of the subject or subjects covered by the news documentary)
o On-the-spot coverage of bona fide news event (including but not limited to political conventions an activities incidental thereto)
• Dropped in 2000
Indecency Standards – Before and After Janet Jackson’s Right Breast Exposure
• FCC v. Pacifica Foundation (1978)
o WBAI-FM, New York
o George Carlin
o “Seven Filthy Words You Can’t Say on Television” monologue
o Not Obscene, Indecent
o “Channeled” listening behavior to 10PM to 6AM
o Start of “Safe Harbor” concept
• In RE Pacifica Foundation (1987)
• ACT v. FCC [ACT III] (1996)
• FCC v. Fox Television Stations, Inc. (2009)
• The FCC defines indecency as “language that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs” (Infinity Broadcasting Corporation of Pennsylvania, 1987) In the Infinity decision, the FCC fined the group owner $1.5 million for multiple instances of indecent material broadcast on the Howard Stern Show. After appealing, Infinity paid the fines, but programming on Howard Stern hasn’t changed in terms of vulgarity.
• Sonderling Broadcasting (1973)
o “Topless Radio.”
o Femme Forum - 10:00 to 3:00 weekdays.
o FCC fined WGLD-FM $2000.
o On appeal, Court sided with FCC, children in audience.
o The programming might have been acceptable if it occurred at times when children were not in the audience, but not from 10 AM to 3 PM.
• Violation of 18 U.S.C. § 1464
o Obscene Broadcasts Prohibited
o Indecent Broadcasts Restricted
o Safe Harbor: 10:00PM until 6:00AM
o FCC Definition: The Commission 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. The material, taken as a whole, must lack serious literary, artistic, political, or scientific value.
o FCC criticized for lax enforcement
o FCC criticized for too harsh enforcement, and unpredictable actions
• Legislation passed by congress and signed by Bush:
o Up the fine amount (per incident) from $32,500 to $325,000 (ten-fold increase), with maximum fine of three million dollars.
• Filing Complaints
o FCC does not monitor for indecent material.
o FCC reacts to documented complaints of obscenity/indecency from public.
o Tape or transcript of the program or significant excerpts
o Date & time of broadcast
o Call sign of station
• Communications Decency Act regarding Communication by Computer
o Title V of Telecommunications Act of 1996.
o American Civil Liberties v. United States.
“The CDA is patently a government-imposed restriction on speech, and the speech at issue, whether denominated “indecent” or “patently offensive” is entitled to constitutional protection.”
o The Internet is more like telephone than broadcasting.
o Government made no showing of “compelling interest” of harm.
• Ashcroft V Free Speech Coalition
o Does obscenity occur on the internet with the appearance of cartoon characters of children?
o “Virtual” child pornography
o Hearing in October 2001
o April, 2002 U.S. Supreme Court ruled cartoons not obscene.
• Children’s Programming
o 96 FCC 2d 634 (1983)
o Children’s Television Act of 1990
o 6 FCC Rcd. 2111 (1991)
o 11 FCC Rcd 10660 (1996)
Heavy FCC Fines for Non-Compliance
Children’s TV Commercial Time Limits
New Rules for Digital TV – Three hours per week per channel
First Amendment Court Challenges
“Core Programming” Specifically designed educational and informational programming.
• Regularly scheduled
• At least 30 minutes in length
• Aired between 7 a.m. and 10 p.m.
• Significant purpose test
Stations select age groups to direct programming.
10 ½ minutes on weekends
12 minutes during week
Heavy FCC enforcement
• Creation of new standard (rejection of Japanese standard
• Adjustments to Allocation Plan to Ensure Adequate Signal Coverage by DTV Transmissions
• Deciding the Full Carriage of DTV stations on Cable. “Primary Video” vs. “All 19.4 MBs.” Retransmission Consent to the Rescue.
• Televised Networks
o Big Four (ABC, CBS, NBC, Fox)
o Approximately 200 affiliates each
o Declining audience share
o Affiliate Agreements
• Prometheus Radio Project v. FCC: Stops the FCC in its Tracks. First a “stay.” Then a full substantive ruling.
• Network and Affiliate Relationship:
o Provide programming
o Arrange and pay for interconnection
o Sell affiliates’ time in national market
o Sometimes compensate affiliates (ancient and now abandoned concept; “reverse” comp now common.
Cross Ownership and Ownership Restriction History:
• Local Radio Ownership (1941)
• National TV Ownership (1941)
• Dual Television Network Rule (1946)
• Local TV Multiple Ownership (1964)
• Radio/TV Cross-Ownership Rule (1970)
• Newspaper/Broadcast Cross-Ownership Prohibition (1975)
• Television ownership restrictions
o 1941 (3 stations)
o 1953 (5 stations)
o 1954 (7 station rule; 7 AM, 7 FM, 5 VHF, 2 UHF)
o 1984 (12 stations)
o 1996 (no limit; 35% reach cap)
o 2003/June (no limit; 45% reach cap) Court Rejects This Plan
o 2003/November (no limit; 39% reach cap) Congressional Fix
o New FCC Ownership Actions
• Radio ownership restrictions
o 1970 (7-7-7 rule)
o 1988 (Duopoly rule relaxed to allow AM/FM combo in same market)
o 1992 (18 each)
o 1994 (20 each)
o 1996 (current rules)
o 2003 and Now
• 20% fewer owners locally
• 30% fewer owners nationally
• Clear Channel owned a peak of 1,200 stations nationally. Now its ownership is down to about 900 stations.
• Clear Channel and a small number of group owners (such as CBS Radio) dominate radio advertising revenues throughout the country.
• Changes to ownership in July of 2003
o Local TV Multiple Ownership Limits
o National TV Ownership “Reach”
o 35% to 45%
o Keep existing limits
o Newspaper/Broadcast Combos
o Allowed for all but smallest markets
• 2004 Congressional action to impose a “39%” reach standard for national ownership of TV stations. Passed by Senate on January 22, 2004. Signed into law by the President.
HDTV Case Study
• Circa 1980
• No demand for HDTV in USA
• Japan Develops MUSE System (satellite)
• Over 200 engineers working on HDTV
• HDTV cameras, recorders, TV sets in production USA and Europe way behind in HDTV
• Broadcasters content with status quo
• Cable initially viewed as irritating
• Cable erosion of audiences now alarming
• 1976 – 15% US homes wired
• 1979 – 19% US homes wired
• 1984 – 43% US homes wired
• 2004 – 70% US homes wired
• LM forces lobby FCC for unused TV spectrum (police, fire, ambulance)
• FCC sympathetic to LM argument
• FCC sets NPRM to reassign spectrum
• NAB launches campaign to save unused TV spectrum
• Unused UHF spectrum was wanted for use with public emergency services such as police, fire and ambulance.
• HDTV was devised to use the UHF spectrum so they did not lose it
• Grand Alliance formed to come up with an “all digital” solution
• Analog broadcasting over the air ended on June 12th, 2009