Broadcasting (Update 2)

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The contours of modern U.S. broadcast regulation were set in red lion broadcasting co. v. fcc (1969), in which the Supreme Court upheld the fairness doctrine, which required licensees to cover controversial issues of public importance and provide a reasonable opportunity for the presentation of opposing points of view. The Court explained that in order to avoid interference on the airwaves, a government agency had to limit the number of broadcast speakers. Because only a lucky few could be licensed to broadcast, the government could require those few to act as trustees or fiduciaries on behalf of the larger excluded community, and obligate them to present views, representative of the community, that otherwise would have no broadcasting outlet. Where it received mutually exclusive applications for a single initial broadcast license, the Federal Communications Commission (FCC) held comparative hearings to ensure that it selected the applicant that would best serve the "public interest."

Congress, the courts, and the FCC have moved away from the Red Lion model in important respects. The FCC repealed the fairness doctrine in 1987. It held its last comparative hearing in 1994; since 1998, it has resolved those conflicts by auctions.

Yet it remains plain that broadcasting today is not governed by the same first amendment rules as print. Congress reemphasized in the Telecommunications Act of 1996 that broadcasters retain an obligation—not shared by speakers in other media—to serve the public interest, convenience, and necessity. The FCC has given that obligation life in its children's programming rules. President william j. clinton appointed a blue-chip advisory body to explore the public-interest obligations that might be imposed on digital broadcasters—which is to say, all television broadcasters after the year 2006. Congress has required direct satellite broadcasters providing video programming to reserve a portion of their channel capacity for noncommercial educational or information programming. None of this is remotely consistent with the print model for regulation of speech. The Court, however, has shown little interest in reexamining broadcasting's special regulatory status.

Regulatory arrangements for cable television, by contrast, have come under sharp constitutional attack. Lower courts have split over whether franchising authorities may, consistently with the First Amendment, require cable operators to provide public, educational, and governmental access channels, or to satisfy technical requirements such as channel capacity or quality of service. The Court has been bedeviled by its cable television docket. Denver Area Educational Tele-Communications Consortium v. FCC (1996), examining provisions relating to the broadcast of indecent programming on cable public-access channels, yielded six opinions and no majority. In turner broad-casting system v. fcc (1994) and Turner Broadcasting System v. FCC (1997), which upheld statutory provisions requiring cable television systems to transmit the signals of local broadcast stations—so-called " must carry " laws—the Justices found themselves sharply divided over basic principles.

It may be, though, that both Title III of the Communications Act (applying one regulatory scheme to over-theair broadcast) and Title VI (applying another to cable television) rely on outmoded categories. The explosive growth of the internet—together with the more general trend toward packet-switched transmission of digitized content—is breaking down old regulatory boundaries. Audio and video programming can be transmitted over the Internet in defiance of traditional regulatory models. In Reno v. ACLU (1997), the Court—stating that the Internet gives every person "a voice that resounds farther than it could from any soapbox"—indicated that governmental restrictions on Internet speech should be subject to stringent review. As video, voice, and text increasingly shift to the Internet, new forms of electronic content delivery will develop outside of the broadcast and cable regulatory regimes. Current distinctions among different transport modes may come to seem increasingly artificial. In such a circumstance, current justifications for different constitutional treatment of those transport modes will seem increasingly artificial as well.

Jonathan Weinberg


Chen, Jim 1996 The Last Picture Show. Minnesota Law Review 80:1415–1510.

Krattenmaker, Thomas and Powe, Lucas A. 1994 Regulating Broadcast Programming. Cambridge, Mass.: MIT Press.

Levi, Lili 1996 Not With A Bang But A Whimper: Broadcast License Renewal and the Telecommunications Act of 1996. Connecticut Law Review 29:243–287.

Robinson, Glen O. 1998 The Electronic First Amendment: An Essay for the New Age. Duke Law Journal 47:899–970.

Weinberg, Jonathan 1993 Broadcasting and Speech. California Law Review 81:1101–1206.