Broadcasting, Government Regulation of
BROADCASTING, GOVERNMENT REGULATION OF
The system of broadcast regulation by the U.S. government evolved from the early twentieth century into an intricate web of influences that include government agencies, courts, citizen groups, and the industry itself. These entities work in concert to shape the regulation of broadcast content, networking, technology, advertising, ownership, public-interest obligations, community relations, and other aspects of the broadcast business.
Entities Involved in Broadcast Regulation
Operating under the Communications Act of 1934 as amended by the Telecommunications Act of 1996, the Federal Communications Commission (FCC) is the major independent regulatory agency that sits in the heart of the regulatory web. The FCC is primarily responsible for issuing operating licenses, managing the use of the airwaves, and creating rules and regulations that all non-government broadcasters must follow, both commercial and noncommercial. The FCC holds rule-making proceedings and inquiries to gather information needed to create, change, or abolish regulations. It also enforces existing rules and regulations using such measures as consent orders, forfeitures (fines), conditional license renewal, denial or revocation of license, or letters and other "raised eyebrow" actions. However, despite its position as the main regulatory agency for the broadcast medium, it must listen to the demands of the U.S. Congress, the president of the United States, the courts, the broadcasting industry, the general public, and other regulatory agencies.
Because Congress was responsible for creating the FCC as part of the Communications Act of 1934, Congress holds substantial power over the agency, including appropriation of the budget, approval of the five FCC commissioners, and reauthorization every two years of the agency's very existence. Congress can also appoint special committees to investigate FCC decisions or operations if it so chooses. However, the greatest power that Congress has over the FCC is that Congress may amend the Communications Act of 1934 at any time, thereby changing the rules, regulations, or organization of the agency.
Like Congress, the president of the United States also has some control over the FCC. The president nominates each of the five FCC commissioners, although they must be approved by Congress. Furthermore, the president may select which commissioner will become the FCC chairman. Other powers of the president include control of the airwaves during wartime and assignment of frequencies for government use.
In order to keep abreast with telecommunication matters, the president must have telecommunication advisors. The National Telecommunications and Information Administration (NTIA) fills this capacity. The NTIA advises the president on domestic and international communication policy and competitiveness, conducts telecommunication research, and encourages the development of various educational and public services. In addition, the NTIA promotes presidential policy to the FCC, Congress, and the general public.
The Federal Trade Commission (FTC), another independent regulatory agency, enters the web of broadcast regulation as a watchdog for false advertising and antitrust violations. The FTC, for example, may declare an advertisement to be misrepresentative or deceptive, and then charge the respective broadcaster and advertising agency to either cease, alter, or correct the faulty ad.
The Equal Employment Opportunity Commission (EEOC) enforces federal discrimination laws as well as affirmative action for all businesses in the United States. The broadcasting industry is not exempt from scrutiny by the EEOC. Therefore, all broadcast stations, networks, and affiliated offices must follow the equal employment opportunity guidelines and record their compliance in public inspection files.
Whenever an FCC decision is appealed, that appeal is taken to the federal courts. The U.S. Court of Appeals for the District of Columbia usually hears FCC-related appeals, reviews the various FCC decisions in question, and declares its findings. In certain situations, the U.S. Supreme Court may review a lower court's decision. Depending on the outcomes of the court decisions, the FCC must take the appropriate action, whether it is to abandon an initiative or try again.
The general public gained some influence over broadcast regulation during the twentieth century. For example, citizen groups and public-interest organizations took broadcasters to court, pressured local broadcast stations with petitions to deny license renewal, and negotiated settlements. Citizen groups also influenced the FCC directly by petitioning the agency to enforce its existing policies or to create new policies that would further broaden the scope of broadcast regulation.
Broadcast Industry Self-Regulation
In order to keep outside regulation at a minimum, the broadcasting industry undertakes measures of self-regulation, including voluntary programming ratings; voluntary screening of violent, indecent, and otherwise inappropriate program content; and refusal to accept advertising selling such items as cigarettes and hard liquor. These actions, like those taken under the Codes of Practice of the National Association of Broadcasters in the mid-1900s, have served to restrain the government from regulating what the industry has already been self-regulating.
Historical Development of Broadcast Regulation
The first official attempt by the United States to regulate broadcasting occurred in 1910, when Congress enacted the Wireless Ship Act to ensure maritime safety. The Wireless Ship Act required a radio and an accompanying skilled operator to be on board every passenger vessel. However, the legislation did not require the operator to be on duty twenty-four hours a day, an oversight that became tragically evident when an operator on a nearby ship was not on duty to receive distress calls from the Titanic on April 14, 1912. Consequently, Congress tried again.
The Radio Act of 1912 followed the Wireless Ship Act and introduced the idea of assigning frequencies and issuing operating licenses to potential radio operators. Now, anyone wishing to transmit could apply for a broadcast license, and many people did. The result was an overcrowding of the airwaves and problems with signal interference. Unfortunately, the 1912 act gave the government no authority to reject license applications or fix the interference problems. Therefore, in an attempt to control the burgeoning field of broadcasting, Congress created a new act.
This new act was the Radio Act of 1927. This act solved the interference and licensing problems and provided the foundation on which the Communications Act of 1934 would be built. First, the 1927 act created a five-member Federal Radio Commission (FRC) to govern licensing, frequency assignments, and station operations, as well as to oversee network broadcasting and prohibit monopolization. Second, licensing standards became more stringent. An applicant had to meet certain criteria to be granted a license. Furthermore, licensing periods, which were indefinite under previous legislation, were now limited. Third, and perhaps most important, broadcasting was redefined and reconceptualized. For example, broadcasting was considered interstate commerce, which Congress had the authority to control under the U.S. Constitution (Article I, Section 8), and broadcast messages were granted First Amendment protection. Fourth, broadcasting was recognized as a unique form of communication that would require a different regulatory framework than that of common carriers such as telephony and telegraphy. All of this was then packaged with the philosophy that the broadcast media should serve "the public interest, convenience, and necessity."
Many of the changes, both operational and conceptual, that resulted from the Radio Act of 1927 were soon challenged in court by various broadcasters. At the heart of many challenges was the commission's authority to deny or revoke a license. These challenges eventually led to the birth of the Communications Act of 1934.
The Communications Act of 1934 became the first comprehensive legislation to regulate both wire and wireless communication. It enhanced the concepts introduced in the 1927 act, including the principles that the public owns the airwaves and that broadcasting is a legally unique form of communication. The 1934 act also created the FCC, which was charged with ensuring that broadcasters acted "in the public interest, convenience, and necessity."
In 1941, the FCC initiated the chain broadcasting rules, which limited the programming power and economic influence that radio networks could have over affiliated local stations. Later, the FCC responded to the introduction of television by applying similar limitations to television networks.
It was not long after its action limiting network influence over local affiliates that the FCC sought to clarify its public-interest standard for broadcasters. In 1946, the FCC issued its Blue Book, which suggested that stations should air certain types of programs in order to serve the public interest. Specifically, the 1946 Blue Book, officially titled Public Service Responsibility of Broadcast Licenses, urged stations to serve the public interest by airing nonsponsored programs, local live programs, and programs that discussed public issues. The Blue Book also called for the elimination of advertising excesses.
Three years later, in 1949, the broadcast industry was confronted with a document titled In the Matter of Editorializing by Broadcast Licensees. This document created a ban on station editorializing and produced the Fairness Doctrine, which required stations to devote a reasonable amount of time to the discussion of controversial issues of public importance and to present contrasting views on such issues. The 1960 Programming Policy Statement (officially Report and Statement of Policy re: Commission en banc Programming Inquiry) further defined the public-interest programming obligations of broadcasters by requiring stations to ascertain the needs and interests of their communities and then demonstrate how those needs were being met. However, broadcasters did get relief in 1959 and 1960 when two amendments to the Communications Act of 1934 were passed.
The 1959 and 1960 amendments applied to section 315 of the Communications Act of 1934. This section required that if broadcasters allowed a political candidate to express views on the air, then the stations had to provide an equal opportunity for opposing candidates to present their views. The 1959 amendment exempted bona fide newscasts, news interviews, news documentaries, and on-the-spot news coverage from this requirement. The 1960 amendment, a reaction to the Nixon-Kennedy debates, included coverage of debates as another type of exempted program.
The 1960s also saw the influence of new technologies on legislation. The Communications Satellite Act of 1962 was created to control the long-term commercial use of satellites. The 1962 All Channel Receiver Law added section 303 to the 1934 act, requiring all television receivers sold in the United States to be capable of receiving both VHF and the new UHF signals. In public broadcasting, the Educational Television Facilities Act of 1962 provided a monetary jumpstart for the construction of educational television stations, and in 1967, the Public Broadcasting Act was passed, which created the Corporation for Public Broadcasting and provided direct appropriations for noncommercial programming. Also, citizens gained the means to influence station licensing and renewal directly when the U.S. Court of Appeals for the District of Columbia Circuit established—in Office of Communication of the United Church of Christ v. Federal Communications Commission (1966)—the right of the public to participate legally in broadcast licensing proceedings.
The 1970s began with stricter rules on networks. The first of three tries at Prime-Time Access rules was introduced in 1970 and limited network programming to three hours per day between 7:00 P.M. and 10:00 P.M. Central Time. The Financial Interest and Syndication Rules, also known as the Fin-Syn Rules, were also passed in 1970. These rules prohibited networks from holding any financial interest in syndication or from syndicating their own programs. By the end of the decade, regulation began to relax, with such repeals as the 1977 elimination of the chain broadcasting rules for radio.
The 1980s carried the wave of deregulation to new heights. This can be attributed to the FCC's adoption of a marketplace philosophy, which advocated that a station's service to the public could best be determined by that station's performance in the marketplace. Under President Ronald Reagan and the new marketplace philosophy, the FCC repealed a number of rules, including the community ascertainment requirements of the 1960 Programming Policy Statement (eliminated in 1984) and the Fairness Doctrine (repealed in 1987). License terms and renewal periods were extended from three years to eight years. Ownership rules were also relaxed, a trend that carried into the 1990s. Another deregulatory measure was the repeal of the Fin-Syn rules in 1993.
In 1990, the U.S. Congress passed the Children's Television Act. This act limits advertising time and usage during children's programming, and it places requirements on the amount and type of children's programming that a station must broadcast.
The Telecommunications Act of 1996 was enacted to amend the Communications Act of 1934. It included regulations for new technologies and public-service requirements for communications. Most important, however, the Telecommunications Act of 1996 provided new initiatives for the United States as it began to enter a digital era where future technologies and possibilities would once again reshape the history of broadcast regulation.
Rationales for Broadcast Regulation
Broadcast regulation, despite basic First Amendment protection for the press, grew and evolved as each succeeding act of legislation attempted to shape and control the burgeoning industry. Five rationales for regulating broadcasting introduced in the Radio Act of 1927 and carried forward in the Communications Act of 1934 have endured.
The first rationale for broadcast regulation is the notion that the public owns the airwaves. Therefore, the public, represented by its government, is entitled to demand that the airwaves be used in the public interest. The second rationale, consequently, is that a licensed broadcaster is merely a trustee of the publicly owned airwaves and therefore must act as the public's proxy while using the public resource.
The third rationale, scarcity of the airwaves, suggests that the government must regulate the assignment and use of the airwaves because there are a limited number of useable frequencies in the electromagnetic spectrum. From this, it follows that government has the right to deny or revoke a broadcaster's license to use a frequency, so long as that action is in the public interest.
Media uniqueness, the fourth rationale, claims that the broadcast media have a more "captive" audience than do print media. Behind this rationale is the assumption that users of broadcast media will be less likely to actively select and scrutinize the messages that are received via broadcasting. Therefore, it is important that the government ensure that these unique media are programming in the public interest.
The fifth rationale for broadcast regulation addresses the very nature of the airwaves. It states that the airwaves do not have the traditional physical boundaries that other, more tangible means of communication share. Consequently, because broadcast messages are more pervasive, their potential for social influence is great. It is this potential that allows the government to regulate broadcasting and limit, to some extent, its First Amendment protection.
See also:Broadcasting, Self-Regulation of;Cable Television, Regulation of; Communications Act of 1934; Federal Communications Commission; First Amendment and the Media; Public Broadcasting; Radio Broadcasting; Telecommunications Act of 1996; Television Broadcasting.
Barnouw, Erik. (1970). The Image Empire: A History of Broadcasting in the United States from 1953. New York: Oxford University Press.
Kahn, Frank J., ed. (1978). Documents of American Broadcasting, 3rd edition. Englewood Cliffs, NJ: Prentice-Hall.
Quello, James H. (1997). "Commissioner Quello's Statement, June 12, 1997, Re: Proposed Notice of Inquiry on Broadcast Advertisement of Distilled Spirits." <http://www.fcc.gov/Speeches/Quello/liquor.html>.
Smith, F. Leslie; Meeske, Milan; and Wright, John W., II.(1995). Electronic Media and Government: The Regulation of Wireless and Wired Mass Communication in the United States. White Plains, NY: Longman.
Francesca Dillman Carpentier