Chapter Overview

The Changing Philosophy of Broadcast Regulation:

Radio, the original electronic medium, was regulated almost from its inception. But until 1927 the regulation was minimal and failed to control the growing number of competitive broadcasters in a way that served the needs of the listeners. Congress passed comprehensive broadcasting rules in 1927, rules based on the assumption that because broadcasters used a valuable public resource, the radio spectrum or airwaves, they should be required to serve the public interest. This philosophy engendered the growth of broadcast regulation until the 1980s, when a competing philosophy constructed on free market economic theory began to dominate the Congress and government regulatory agencies. Under the new scheme, traditional market forces are seen as the best regulator of any industry. In the past 20 years, broadcasting and the telecommunications industry have seen a period of substantial deregulation.

Basic Broadcast Regulation:

The five-member Federal Communications Commission has been established by law to regulate the broadcasting industry. The agency has the responsibility to supervise all over-the-air broadcasting as well as any other electronic communication that has an impact on over-the-air communications. Although the FCC is forbidden by law from censoring the content of broadcast programming, the agency nevertheless has considerable control over what is broadcast by radio and television. By licensing and relicensing broadcasting stations, the FCC can ensure that broadcasters meet certain standards, including programming standards.

Broadcast stations are licensed for eight years. To gain a license to broadcast, an applicant must meet several important criteria that have been established by the Congress and by the FCC. When two or more persons seek the same license, the FCC uses an auction process to select who will get the license. The auction process replaces a comparative hearing process that was based on applicant merit. This latter process was costly and time consuming, and courts ruled that at least one criterion used in the process was unenforceable. Listeners and viewers can challenge a renewal. Public participation in this process is relatively rare, and recent rule changes have made it even harder for citizens to mount an effective license challenge.

Regulation of Program Content:

The FCC has broad control over the content of broadcast programming. To enforce this control, the agency has a wide variety of sanctions, which include letters of reprimand, fine or forfeiture, and nonrenewal or revocation of broadcast licenses. Content regulations involve a wide range of broadcast programming. In the broadest sense, the broadcaster must program to meet the needs of the community. But programming rules also involve simple regulations, such as the requirement to present station identification at various times of the broadcast day.

The FCC has chosen not to attempt to control the selection of format by a broadcaster. Citizens' groups have urged the FCC to hold hearings when a radio station drops one program format and adopts a new one. In the early 1970s federal courts supported these citizen protests, but in 1981 the U.S. Supreme Court ruled that the government need not get involved when a broadcaster decides to switch from one format to another. In the mid-1980s the FCC attempted to remove rules dictating programming standards for children's broadcasting. The Congress resisted these changes and forced the agency to reinstate rules regarding both the number of commercial minutes permitted per hour in children's programming and minimum service standards for the younger viewers.

Federal law prohibits the broadcast of any obscene or indecent material. In 1978 the Supreme Court ruled that a radio or television station could be punished for broadcasting material that is not obscene but merely indecent. The court based its ruling on the premise that children might be present during the broadcast. In 2001 the FCC issued a comprehensive statement outlining its policies regarding indecent broadcasts. In 1996 Congress mandated that microchip circuitry be added to all new television sets that would allow parents to block the reception of programs rated as violent.

Regulation of Political Programming:

Several rules govern political broadcasts carried by radio and television broadcasters. Section 312 of the Federal Communications Act states that broadcasters cannot have an across-the-board policy rejecting all paid and nonpaid appearances by candidates for federal office. A candidate's request must be evaluated and can be rejected only if it could cause serious disruption of program schedules or might prompt an excessive number of equal-time requests. Although this rule applies only to requests from candidates for federal office, the government's mandate that broadcasters operate their stations in the public interest may very well include similar standards for the treatment by broadcasters of requests for access to air time from state and local candidates.

Section 315 states that if a broadcaster provides one candidate for office with the opportunity to use a station's broadcast facilities, all other legally qualified candidates for the same office must be given the same opportunity. The use of the station's facilities includes all appearances on the station with the exception of the following:

1. Bona fide newscasts
2. Bona fide news interview programs
3. Spot news coverage
4. Incidental appearance in a news documentary

Candidate press conferences and debates between candidates are considered spot news events. During primary elections, Section 315 applies only to candidates from the same political party running against each other to win the party's nomination to run in the general election.

News and Public Affairs:

The government exercises limited control over the content of public affairs broadcasts. The FCC has thus far rejected all complaints that television news coverage was slanted or staged and has made it difficult for those who seek to pursue this cause with the agency. The Supreme Court has given broadcasters the right to determine whether to air specific editorial advertising and has struck down a statute that forbade public broadcasting stations from telecasting editorial opinions.

Regulation of New Technology:

The power of the FCC to regulate cable television was a clouded issue for many years. Slowly but surely, the commission, with the permission of the courts, moved to regulate this new technology. In 1984 both the Supreme Court and the Congress gave the FCC what seemed to be clear jurisdiction to set broad rules for governing cable television. But a subsequent Court of Appeals ruling has cast some doubt on all government regulation of cable.

The Cable Communications Policy Act of 1984 is a comprehensive measure setting policies and standards for the regulation of cable television. The 1992 Cable Television Consumer Protection and Competition Act made some modifications in the earlier law. Local governments are given the primary responsibility under this measure to regulate the cable systems in their communities. They may issue franchises, collect franchise fees, and renew franchises. The Cable Act also provides for the inclusion of public, government and commercial access channels. It also makes provisions to protect subscribers' right to privacy.