Communications Regulatory Agencies
COMMUNICATIONS REGULATORY AGENCIES
Human beings are animals that communicate intensively, and all communication systems, beginning with spoken and written languages, are regulated in at least informal ways. Most people feel that there are certain things that should not be said or written and that certain forms of speech and writing are appropriate for different contexts. However, with the development of physical communication systems such as the postal system and even more with that of the telegraph, telephone, radio, and television, regulation guided by ethical principles has become an increasingly prominent feature of those technologies. Ethical principles concerning content and access have created the foundation for regulation of communication systems. Concerns about content include privacy and anonymity, copyright, defamation, censorship, and profanity. Ethical issues relating to access include concerns about the availability of communication systems and control of content production.
Speech and Postal Systems
Law has been used to regulate the content of speech and writing since at least Roman jurisprudence, in which speakers were held liable for defamatory communication that caused injury to another party. The United Kingdom began regulation of defamation during the sixteenth and seventeenth centuries; this area of law was established in the United States after independence and is mirrored in other countries. Defamation law protects individuals from falsehoods that may cause economic or emotional harm and covers utterances in both speech (slander) and writing (libel). This principle of constrained communication extends to all media and their respective systems and has a lengthy judicial history in the United States and the United Kingdom (Jones 2003).
A number of ancient civilizations created courier services to deliver official documents and messages, with the earliest evidence of an organized infrastructure appearing in Egypt in 2000 b.c.e. From initially serving the government, a number of those systems were expanded to include public and private correspondence; that led to the almost complete control of postal services by nations by 1875. Regulation of those entities focused primarily on efficient administration.
However, by the middle of the twentieth century an expectation of privacy had made its way into many legal systems, including the Mexican constitution, U.S. and British law, and the European Convention on Human Rights. This principle restricts readership of mail to the addressee but generally is qualified to give states the ability to censor materials in the name of security; this explains the still widespread censorship of mail within military forces (Scheele 1970).
Toward the end of the twentieth century government-run monopolies on postal services began to compete again with private courier services. In response a number of government services, including the U.S. Postal Service, began to operate with more independence from the government. Ensuring complete access to the global postal network remains a key factor supporting government-run services as many small or hard to reach communities fear complete isolation in an entirely privately run system.
Telegraph and Telephone
The wire telegraph was invented by Samuel F. B. Morse (1791–1872) in 1835 and saw widespread deployment within ten years of its invention. Alexander Graham Bell (1847–1922) was granted a patent on the telephone in 1876, but that technology grew somewhat more slowly than did the telegraph, with the first transcontinental line in North America not being finished until 1915. In 1865 the International Telegraph Union was founded to support international interoperability of the telegraph system. That union was the first international body to regulate communications and attempted to allow easier communication across national boundaries. The union has expanded to include all telecommunications activities but does not address ethical issues involving content or access directly.
The telegraph initially was regulated in the United States through the Post Roads Act of 1866, which gave authority to the postmaster general to fix rates for telegrams sent by the government. Greater government involvement in the industry did not come until twenty-one years later, when the U.S. Congress passed the Interstate Commerce Act of 1887 to regulate railroads and laid the foundation for the regulation of common carriers within the United States. A common carrier is any transporter that offers services to the general public to transport goods. Court interpretation of common carriers to include communication services provided the legal authority for government to become more actively involved in the communications industry. The 1887 act was amended explicitly to include that extension of government jurisdiction to regulate telephone and telegraph companies by the Mann-Elkins Act of 1910. Regulation of telephone and telegraph was taken over by the Federal Communications Commission (FCC) at its inception in 1934.
Although some nations tried to regulate privately owned telephone and telegraph companies as the United States did, a number of others followed a model closer to that of the postal service and created nationalized phone utilities. In many countries, including the United States, regulators oversaw private companies with full or partial monopolies. Regardless of the details of the regulatory structure or the preference for government involvement or free market competition, each nation faced similar ethical questions.
Early regulation of the telegraph and telephone industries focused on improving interoperability between competing networks, allowing consumers to send messages to any recipient regardless of the network to which they subscribed. Regulators also attempted to ensure that telephone and telegraph companies charged consumers equally for the same service, thus supporting equal access to the system. Each regulatory regime also grappled with questions concerning the privacy and content of those transmissions. When can the state or an individual record or intercept those messages? In the United States third-party taping of conversations requires a court order, whereas rules for recording by parties to a conversation vary from state to state. As with the postal service, most nations have formulated some expectation for the privacy of telephone and telegraph messages.
Radio and Television
Concurrent with the initial development of the telephone and telegraph, research into wireless communications systems led to the creation of the first wireless telegraph by Guglielmo Marconi (1874–1937) in 1895. Maritime adoption of that technology for ship-to-ship and ship-to-shore communication spread rapidly and led to the Berlin International Radiotelegraphic Convention, a series of international conferences in Berlin in 1903 and 1906 and in London in 1912 to discuss radio telegraphy. Beyond determining SOS as the standard distress signal, the 1912 conference led directly to the U.S. Radio Act of 1912, which, along with the Mann-Elkins Act, became the foundation for the regulation of communication systems by the U.S. government.
Radio transmission of voice developed slowly during that period and remained closely tied to telephony. However, by 1920 radio broadcasting had begun in earnest with the November 2 broadcast of election returns by the Pittsburgh station KDKA. The early years of broadcast radio were marked by turmoil. Stations went on and off air, using a frequency and power of their choosing, resulting in widespread interference and confusion. The Radio Act of 1912 required stations to obtain a license from the U.S. Department of Commerce, although the department had no enforcement authority and issued licenses with little oversight. As a result Congress passed the Dill-White Radio Act of 1927, which established the Federal Radio Commission and granted it authority to assign and revoke broadcast licenses at particular powers and frequencies. The act also included provisions for the regulation of programs that exploited or misled the public; that allowed the commission to end broadcasts of fraudulent drug claims or religious scams.
Faced with a growing number of regulatory bodies responsible for communication, Congress created the Federal Communications Commission in the Communications Act of 1934 to take over all communication regulatory activities of the U.S. government. The U.S. regulatory structure stayed largely unchanged until the passage of the Telecommunications Act of 1996.
By the time of the creation of the FCC the television pioneers Vladimir Zworykin (1889–1982) and Philo Taylor Farnsworth (1906–1971) had succeeded in designing and producing all-electronic televisions and television broadcasting was beginning. By the mid-1930s over a dozen stations were broadcasting within the United States. As with radio, the FCC regulated the licensing, power, and frequency of new broadcasters to limit or eliminate interference and ensure that airways were used in the public interest. Television began to grow rapidly in the 1950s and 1960s, quickly reaching a large majority of the public. In the United States satellite and cable television entered the market in the late1970s, but its development was largely unregulated after the Cable Communications Act of 1984 removed much of FCC jurisdiction over those industries.
Although the telegraph and the telephone were accessible by a wide range of the public, broadcast radio and television were limited to a few stations that could broadcast without interference. As a result of the limited nature of broadcasting, governments created various methods to ensure programming in the public interest. In the United Kingdom owners of television sets are required to pay a license fee for partial funding of the government-sponsored British Broadcasting Corporation. In the United States the FCC requires broadcast stations to meet public interest requirements as terms for receiving a broadcasting license. In 1967 the Public Broadcasting Act created public television and radio stations in the United States and partially excluded them from FCC regulation. However, the FCC did act to revoke the license of the Alabama Educational Television network in 1975 because of its racist programming and hiring practices.
From the creation of the Federal Radio Commission to 1987 the FCC enforced a regulatory principal known as the Fairness Doctrine, which holds that stations are obligated to seek out issues of public importance and present contrasting points of view. During the presidency of Ronald Reagan (1980–1988) the FCC began to deregulate all the industries in its jurisdiction. Court cases in 1987 held that the Fairness Doctrine was not required by an act of Congress, allowing the FCC to rescind the policy. Two related rules requiring equal time for targets of personal attacks or political editorials to respond were removed in 2000. Advocates of the change argued that the growth in media outlets negated the need for the doctrine; opponents argued that broadcasters would attempt to further specific political and/or economic agendas to the detriment of the public at large. The Fairness Doctrine was a prime example of regulation of communication that was intended to benefit the public by influencing the content of broadcasts.
Regulators also grappled with control of the limited means of production in the broadcast industry. In light of the limited number of voices that can be brought to air, the distribution of those voices is an important ethical question. A poignant example of the perceived power of broadcasting was the capitulation of broadcasting companies in 1950s to the blacklisting of performers, writers, and directors for alleged leftist political leanings by the organization aware. In that case regulators at the FCC took no action, as they would later do in cases of race or gender discrimination.
Regulators often have attempted to limit ownership of multiple media outlets by single companies to maintain diversity, seeking a balance between preserving independent ownership and allowing free competition. Advances in technology also have changed the availability of the broadcast spectrum by decreasing the amount of interference between nearby stations. At the beginning of the twenty-first century the FCC examined the viability of low-power television and radio stations that would serve small areas and determined that those neighborhood broadcasters did not pose a significant risk of interference with established stations. However, legislation to grant the FCC authority to license those stations has not gotten support from the U.S. Congress.
Internet, Convergence, and the Information Society
The last two decades of the twentieth century saw tremendous growth in a number of new telecommunications fields, especially the worldwide network of computers now known as the Internet. The potential movement of traditional telephone, radio, and television communication to the Internet is known as convergence. The technological underpinning of the Internet makes no distinction between data as the data travel. E-mail, pirated video, and Internet telephony all move equally and without distinction. Data can be identified only by destination or origin. The transformation of all types of data (writing, speech and audio, pictures and video) to computer-based digital data has profound implications for all previous systems: Anyone with access to the Internet can transfer text, audio, or video around the globe and can compete with or avoid traditional communication systems.
Regulation in the new media has been minimal for the most part, with China being a striking exception. The easy accessibility of information on the Internet has led to concerns about the content being provided. The Chinese government regularly blocks content from outside the country and exerts strong control of the information posted within the country. In the United States some have found the availability of pornography to be repugnant and have pushed for greater control over content. In 1996 that desire led to the Communications Decency Act, which created stiff penalties for the distribution of pornographic works to minors; however, the act was struck down by courts as a violation of First Amendment freedom of speech rights.
In light of the growing importance of the Internet, access has become a vitally important question. Disparities between rich and poor individuals and nations in computer access have created a digital divide that has implications for the future growth and equality of those groups.
Communication regulation helps define the limits of freedom of speech. Regulators set limits on the content of communication for a variety of reasons, including the protection of personal or secret information, a desire to limit false and misleading claims, and the encouragement of debate. Communication may have negative consequences for individuals, groups, or entire societies. Lessening these harms, however, can require sacrifices in terms of the privacy, anonymity, and freedom of individuals. Modern regulatory agencies must balance the rights of the individual broadcaster with the interests of society as a whole.
Coupled with the regulation of communication content, regulatory agencies also try to control access to communication technologies. Some technologies have a limited capacity for public use, such as radio and over-the-air television. Thus, access to those means of communication is a unique benefit that government has seen fit to control. Other technologies may have limited access because of economic inequities or limits to the physical interconnection of communication networks. Here too regulatory agencies have interfered with the market to promote access to the widest possible set of consumers.
The great power of communications systems as a persuasive force makes these determinations of appropriate content and access disputed issues. Changes in these systems affect millions of consumers and billions of dollars of economic activity. Regulatory agencies sit at the center of political and ethical debate over the appropriate use of these rapidly evolving technologies.
TIND SHEPPER RYEN
Brennen, Linda L., and Victoria E. Johnson, eds. (2004). Social, Ethical and Policy Implications of Information Technology. Hershey, PA: Idea Group. A social science text on the ethical dimensions of IT communication
Hilliard, Robert L. (1991). The Federal Communications Commission: A Primer. Boston: Focal Press. A general guide to the commission's organization, decisions, and history
Jones, William K. (2003). Insult to Injury: Libel, Slander, and Invasions of Privacy. Boulder: University Press of Colorado. Provides a detailed history of libel cases within the United States
Jordana, Jacint, ed. (2002). Governing Telecommunications and the New Information Society in Europe. Cheltenham, UK: Edward Elgar. Detailed work on the structure of IT governance within the European Union
Levy, Brian, and Pablo T. Spiller, eds. (1996). Regulations, Institutions, and Commitment: Comparative Studies of Telecommunications. New York: Cambridge University Press. Describes telecommunication industries in a number of industrialized and developing countries, particularly in South America
Scheele, Carl H. (1970). A Short History of the Mail Service. Washington, DC: Smithsonian Institute Press. A detailed history of mail service, especially with in the United States
Federal Communications Commission History Project. (2004). Available from http://www.fcc.gov/omd/history.