Communications Act of 1934

Robert W. Van Sickel

Excerpt from the Communications Act of 1934

For the purpose of regulating interstate and foreign commerce in communication by wire and radio so as to make available ... without discrimination on the basis of race, color, religion, national origin, or sex, a rapid, efficient ... wire and radio communication service with adequate facilities at reasonable charges, for the purpose of the national defense, for the purpose of promoting safety of life and property ... and for the purpose of securing a more effective execution of this policy by centralizing authority heretofore granted ... to several agencies and by granting additional authority with respect to interstate and foreign commerce in wire and radio communication, there is created a commission to be known as the Federal Communications Commission.

Passed in the midst of the Great Depression, the Communications Act of 1934 (48 stat. 1064), which created the Federal Communications Commission (FCC), reflected a continuing effort by Congress to both encourage and regulate electronic communication in the United States. The act's major intent was to consolidate all federal regulation of such communication within a single independent agency. Although substantially amended several times since its adoption, the Communications Act continues to provide the basic institutional structure for the federal government's regulation of all forms of electronic mass communication, including radio, television, the telephone system, and perhaps eventually, aspects of the Internet. Although the public may have little knowledge of the FCC, the Commission has played a major role in determining what Americans see and hear on the airwaves. That this act has survived for seven decades during a period of intense technological and social change is itself something of an achievement.

THE STRUCTURE AND AUTHORITY OF THE FCC

The FCC is an independent regulatory agency. In general terms, the FCC is charged with regulating interstate and international communications by radio, television, wire, satellite, and cable. The FCC's jurisdiction covers the fifty states, the District of Columbia, and all U.S. possessions. It is headed by five commissioners appointed by the president, with the advice and consent of the Senate, to staggered five-year terms. No more than two commissioners (excluding the chairperson) may represent a single political party. In practice, this has meant that the Commission consists of two Democrats, two Republicans, and a chairperson representing the current president's party. Designated by the president, the FCC chairperson exercises significant control over the Commission's policy agenda, internal operations, and relations with Congress.

Although the FCC is most visible through its licensing and oversight of commercial television and radio, it is also charged with regulating interstate common carrier systems, industrial and trucking radio systems, taxi cab communication networks, doctor-hospital and marine-ship systems, aviation communication, police and fire networks, as well as more recently developed technologies such as cable television and satellite communications, including cellular telephone systems. Although the FCC is an independent agency, it should be noted that no federal agency is truly independent of politics. Accordingly, the FCC must contend with presidential and congressional review both in the budget process and in regard to amendments to its enabling legislation. Additionally, nearly all of the FCC's activities are subject to judicial review. And finally, the Commission, although exercising formidable regulatory powers under the commerce clause, must navigate the waters of state and local governments throughout the country.

The Commission supervises a staff of approximately 2,500 people, and has an annual budget of roughly $250 million. FCC personnel are organized into various bureaus and offices, although the majority of them work in Washington, D.C. Perhaps the most important of these bodies is the Mass Media Bureau, which handles such highly recognizable FCC functions as the granting and renewal of broadcast licenses, and the adoption and enforcement of technical and operational standards for broadcasters. The FCC has long been organized in terms of the various forms of communication media, such as commercial radio, commercial and public television, cable systems, common carriers, private radio systems, and so on. However, recent years have witnessed the phenomenon known as convergence, in which the former distinctions made among various media, and the utility of organizing government regulation along such lines, have been called into question.

In terms of constitutional provisions, the Communications Act, which is designed to be consistent with the First Amendment's freedom of speech and press provisions, rests on the commerce clause of Article I, section 8. The act is a direct descendent of the Radio Acts of 1912 and 1927. The Communications Act consolidates responsibility for several problems that Congress had dealt with in the two decades prior to 1934.

REGULATING ELECTRONIC MEDIA

But while all mass communications share certain similarities, the electronic media exist in a legal environment far different from that enjoyed by the traditional print media. Some of the legal principles governing print and electronic media are identical, such as the legal meaning of libel, invasion of privacy, copyright, and various access restrictions. However, the legal differences outweigh the similarities. To begin with, the electronic media require government licensing, whereas anyone who has the resources and desire may start a newspaper or magazine. There have been a number of justifications for treating electronic communications differently, many based on such concepts as public rights of way, pervasiveness, intrusiveness, and scarcity. Although these justifications are widely accepted, their validity is not self-evident.

Public rights of way are geographic spaces such as roads, telephone and power lines, tree rows, and alleys, which are considered to be public property designated for the provision of public services. Similarly, the airwaves are seen as belonging to the public, and thus should be regulated in the public interest. Pervasiveness and intrusiveness are related ideas under which it is thought that the electronic media are both ubiquitous and unavoidable, and thus different from the print press, which one presumably could ignore if one wished. The notion of scarcity, however, may be the most common justification for government control of the electromagnetic spectrum, and it served as a major impetus for passage of the Communications Act.

Scarcity refers to the ostensibly limited number of frequencies on the spectrum, a fact that, in a democracy, requires fair access and a diverse range of viewpoints. This concept was problematic from the beginning, and has arguably become even more outmoded since 1934. First, although the FCC grants licenses to utilize particular frequencies, the federal government maintains ownership and control of about fifty percent of the available frequencies, based on national security and public safety concerns. Perhaps more damaging to the idea of scarcity has been the continuous growth of electronic access through the development of cable television, satellite technology, and the Internet. While the original concern of Congress was to distribute what it saw as a very limited number of frequencies in the face of unlimited opportunities for private parties to develop newspapers, today the number of newspapers in the United States has dwindled to a fraction of the number of television and radio stations.

COMMUNICATIONS ISSUES IN THE EARLY TWENTIETH CENTURY

It cannot be overemphasized that the Communications Act was the culmination of a long series of attempts by Congress to respond, often belatedly and ineffectively, to rapid changes in communications technology. As early as the mid-nineteenth century, it became clear that traditional notions of a free press might prove inadequate as legal frameworks for emerging technologies. Indeed, as early as the 1850s Congress debated a proposal to commit public funds to the creation of a transcontinental subterranean telegraph system. The Communications Act grew out of a time when Congress was concerned with radio technology primarily as a means of achieving public safety through increased military and maritime coordination, rather than as a format for commercial news and entertainment. Indeed, the Radio Act of 1912 was a direct congressional response to the sinking of the Titanic that year, a disaster that was widely believed to be related to the lack of a coherent distribution of radio frequencies along the eastern seaboard, preventing the ship's distress signals from being effectively relayed to maritime safety officials. Thus, through the first Radio Act, Congress seized control of the electromagnetic spectrum for the first time.

At the same time, American business had begun to see the commercial potential of radio. By the mid-1920s there were hundreds of essentially unregulated (although federally licensed) stations broadcasting throughout the country. The federal government's first substantive effort to regulate broadcasting, however, came with the 1927 Radio Act, which created a Federal Radio Commission designed to regulate that medium in "the public interest, convenience, and necessity." Still, the Department of Commerce, the Interstate Commerce Commission, and the Department of Defense controlled federal regulation of communication. Within a few years, pressure to consolidate all telecommunications regulation for both wired and wireless services prompted new legislation with a wider mandate.

THE ERA OF THE COMMUNICATIONS ACT

In early 1934, President Franklin Delano Roosevelt's congressional allies introduced the bill that would become the Communications Act. Perhaps surprisingly, given the scope of the regulation involved, there was little legislative debate on the bill. Indeed, hearings in the Senate lasted barely a week, while the House of Representatives heard testimony for only a single day. Some observers did voice concerns that the legislation would allow the new FCC to undermine educational and public safety broadcasting, but the final version of the bill, which FDR signed in June 1934, left the balance of commercial and educational broadcasting to be struck by the new Commission.

Although the Communications Act has been the subject of regular litigation and judicial review, the United States Supreme Court has exercised its power to review FCC activities in a surprisingly limited number of cases. The Court has rarely struck down FCC rules. Congress, however, has amended the Communications Act many times, largely in response to changes in technology, and in rare instances by making attempts to strengthen the public interest aspects of the act. Important technological developments have included television, satellite and microwave communications, cable television, cellular telephones, digital broadcasting, and personal communications systems. These new technologies gave rise to amendments and related legislation such as the Communications Satellite Act of 1962, the Cable Act of 1992, and the Telecommunications Act of 1996. Public interest concerns led to the establishment of FM radio in 1941, to the creation of the Corporation for Public Broadcasting (PBS) in 1967 and National Public Radio (NPR) in 1972, and to the passage of the Children's Television Act in 1990.

Occasionally, calls for major alterations to the act, or even for the abolition of the FCC, have arisen. Two very different political perspectives drive these suggestions. The first of these perspectives holds that the federal government has already over-regulated the electronic media, and has thus under-mined both the normal workings of the marketplace and the FCC's ability to respond quickly and effectively to complex technological and business developments. Because of the problems (or opportunities) of convergence, it is believed that rivalries among the broadcast, cable, telephone, Internet, and newspaper industries can only be worked out through free market competition. On the other hand, there are those who believe that the FCC has failed to protect the public interest and the democratic values of fair access and diversity of viewpoints among the media. Advocates of this perspective point to recent FCC rules that have allowed a small group of large corporations to gain control of mass media content both in particular markets and throughout the nation. To some degree, advocates of both perspectives view the 1934 act, despite its many changes, as an anachronism developed in an age before the development of modern communications systems.

IMPACT AND DEVELOPMENT OF THE FCC

It is difficult to summarize the societal impact of the Communications Act, just as it is hard to discuss briefly the broader social changes in American life since 1934. Whether the FCC has effectively pursued its responsibility to protect the public's "interest, convenience, and necessity" is a debated question. Perhaps inevitably, the FCC has adopted an essentially corporate model of regulation. The Commission, albeit with notable exceptions, has moved steadily toward a market-based interpretation of its mission. In recent years, the FCC has abandoned its fairness doctrine, which required broadcasters to present opposing viewpoints on public issues. It has weakened ownership limitations, allowing corporate media conglomerates essentially to monopolize particular markets through the acquisition of television, radio, newspaper, and cable providers. Finally, the Commission no longer seriously reviews renewal applications for broadcasting licenses, thus making such privileges virtually permanent, while following a highly amorphous requirement that broadcasters present at least some (self-defined) public interest programming.

On the other hand, one could conclude that, given the rapid technological change of the past seventy years, the FCC has benefited both consumers and producers by enthusiastically adapting its rules to emerging industries. One thing is certain: The electronic media now truly pervade the lives of all Americans, providing virtually all entertainment and public information for a majority of citizens. Thus, the FCC and the Communications Act will continue to be of central importance in the lives of Americans.

See also: Public Broadcasting Act of 1967.

BIBLIOGRAPHY

Benjamin, Louise. Freedom of the Air and the Public Interest: First Amendment in Broadcasting to 1935. Carbondale: Southern Illinois University Press, 2001.

Carter, T. Barton, et al. Mass Communications Law in a Nutshell, 5th ed. St. Paul, MN: West Group, 2000.

"Communications Act of 1934 (47 U.S.C. 151 [1934])." Federal Communications Commission Homepage. <http://www.fcc.gov/Reports/1934new.pdf>.

Gillmor, Donald M., et al. Fundamentals of Mass Communication Law. St. Paul, MN: West Publishing, 1996.

Goldberg, Godles, Wiener, and Wright. "Communications Law and Regulation." Find-law Professionals. <http://profs.lp.findlaw.com/communicate/index.html>.

McChesney, Robert W. Telecommunications, Mass Media & Democracy: The Battle for Control of U.S. Broadcasting, 1928–1935. New York: Oxford University Press, 1993.

Messere, Fritz. "Analysis of the Federal Communications Commission."Encyclopedia of Television. <http://www.oswego.edu/~messere/FCC1.html>.

Paglin, Max D. A Legislative History of the Communications Act of 1934. New York: Oxford University Press, 1989.

Ray, William B. FCC: The Ups and Downs of Radio–TV Regulation. Ames: Iowa State University Press, 1990.

Zelezny, John D. Communication Law: Liberties, Restraints, and the Modern Media. Belmont, CA: Wadsworth, 1993.

COMMUNICATIONS ACT OF 1934

The Radio Act of 1927

The regulation of the burgeoning broadcasting industry began with the Radio Act of 1927, which for a few years brought order to chaos. But the 1927 act treated radio broadcasting differently from telephone and telegraph communications and set up a confusing range of federal agencies with control over different aspects of the industry. During the first few years of the Radio Act of 1927 it became clear that, while the legislation had done a good job with the radio portion of the industry—especially with the formation of the Federal Radio Commission—it had failed by not including the telephone and telegraph industries within its scope,

Government Regulation

By 1929 many of the ideas later incorporated into the 1934 act had been discussed and agreed upon by members of Congress but not passed into law. During the first several years of the Great Depression, Congress was more concerned with the economic collapse than with regulatory tinkering. With the election of Franklin D. Roosevelt in 1932 and a new activist attitude toward government regulation, the Communications Act of 1934 took its place among the other regulatory milestones of the New Deal—the Securities Act of 1933, the Securities Exchange Act of 1934, the National Labor Relations Act of 1935, and the Civil Aeronautics Act of 1938. Like many of these acts, the Communications Act of 1934 was the product of ideas, laws, and negotiations that existed before the Depression.

Utilities and Regulation

In a message asking Congress to pass the bill regulating communications, President Roosevelt defined communications vendors as specific utilities and pointed out the singular lack of regulation concerning communications: "I have long felt that for the sake of clarity and effectiveness, the relationship of the Federal government to certain services known as utilities should be divided into three fields: Transportation, power, and communications. The problems of transportation are vested in the Interstate Commerce Commisssion, and the problems of power … in the Federal Power Commission. In the field of communications, however, there is today no single Government agency charged with broad authority." As the bill was already written, it was quickly passed as the Communications Act of 1934.

Federal Communications Commission

The center-piece of the legislation was the reformulation of the old Federal Radio Commission as the Federal Communications Commission (FCC), with little new structure but with new responsibilities to oversee the telecommunications industry as well as broadcasting. According to the act, the role of the FCC was "to make available, as far as possible, to all the people of the United States a rapid, efficient. Nation-wide, and worldwide wire and radio communications service with adequate facilities at reasonable charges." The act was not intended to make the industry competitive, nor to make the prices charged a function of market mechanisms. The subjects of the six major chapters of the act show the scope and intentions of the legislation:

1. Setting up of the FCC.
2. Common carriers, being the telephone and telegraph companies.
3. Broadcast licensing, general powers of the FCC, requirement that candidates for public office be treated equally and that sponsors be identified.
4. The right to appeal FCC decisions.
5. Enforcement procedures.
6. War emergency powers of the president.

Public Interest

The clause that defined the powers of the FCC in relation to the content and structure of the broadcasting industry included the idea of the "public interest" as the measure of whether something should be allowed to be broadcast or someone should be given a broadcasting license. Such a vague and ultimately undefinable term as "public interest" gave almost unlimited power to the FCC. But the FCC exercised those powers in a limited way, controlling advertiser fraud over the airwaves and insuring community standards of decency. The full scope of that power was not made explicit until 1975, when a federal appeals court stated that "since the public cannot through a million stifled yawns convey that their … fare is not in their interest, the Congress has made the FCC the guardian of that public interest." Despite that power, and the fear of critics that the FCC would seek to impose a partisan political agenda on local radio broadcasts, the FCC left local stations free to express virtually any opinion.

Lasting Influence

The Communications Act of 1934 set up a structure that lasted through the rise of television and the telecommunications giants of the late twentieth century. Its broadcast standards, licensing procedures, and tariff policies withstood almost fifty years without radical change. As with so many of the New Deal-era legislative juggernauts, the Communications Act of 1934 is only in the 1990s facing a fundamental rewrite.

Sources:

Sydney W. Head and Christopher H. Sterling, Broadcasting in America: A Survey of Television, Radio, and New Technologies, fourth edition (Boston: Houghton Mifflin, 1982);

Max D. Paglin, ed., A Legislative History of the Communications Act of 1934 (New York: Oxford University Press, 1989).