Federal Communications Commission
Federal Communications Commission
Excerpt of "The Fairness Doctrine"
Officially known as the Report on Editorializing by Broadcast Licensees (13 FCC 1246)
Released by the Federal Communications Commission in April 1949
Excerpted from the FCC Web site, http://www.fcc.gov/ftp/Bureaus/Mass_Media/Databases/documents_collection/490608.pdf
The U.S. government's first effort to regulate electronic communications came with the Radio Act of 1912. This act allowed the secretary of commerce to issue licenses to people who wished to broadcast signals over the airwaves. Telegraph operators were the only ones using the airwaves at this time, though, so the number of usable frequencies was large enough to accommodate everyone who applied for a broadcasting license.
By the 1920s, however, the new mass communication medium of radio was quickly gaining popularity. Recognizing the trend, thousands of people began applying for broadcast licenses in hopes of operating radio stations. The airwaves quickly became overcrowded, causing interference between stations broadcasting in the same geographic area. The U.S. Congress responded to this situation by passing the Radio Act of 1927. This act created the Federal Radio Commission (FRC) to regulate the issuance of broadcast licenses.
"We have recognized … the paramount right of the public in a free society to be informed and to have presented to it for acceptance or rejection the different attitudes and viewpoints concerning these vital and often controversial issues."
The act said that the FRC should consider the "public interest, convenience, and necessity" when allocating frequencies to broadcasters. In those days, large, powerful corporations had established monopoly control over a number of industries. The U.S. government wanted to prevent anyone from gaining similar control over the airwaves. In effect, the act granted ownership of the airwaves to the American people and gave broadcasters the right to use this public property through a system of licenses.
With the invention of television, Congress passed the Communications Act of 1934. The main purpose of this act was to update the Radio Act of 1927 to cover television and other new technologies. It created the Federal Communications Commission (FCC) and gave it responsibility for overseeing all forms of electronic communication—including telephone, telegraph, radio, and television.
Under the Communications Act of 1934, the FCC continued to regulate radio and television in order to ensure that broadcasters served the public interest. For instance, the FCC required radio stations to give all qualified candidates for political office equal access to the airwaves. Since this rule did not apply to news programs, interviews, or documentaries, however, it did not affect broadcasters' programming decisions. Instead, it merely ensured that radio stations sold advertising time equally to all political candidates.
In its early years of existence, the FCC prohibited broadcasters from editorializing (expressing their own opinions on the air about various issues). The agency gradually softened this position during the 1940s, until the rules had changed so much that a new policy was needed. In 1948, the FCC held a series of hearings in Washington, D.C. It heard testimony from seventy witnesses representing the broadcasting industry, other interested organizations, and the public. The hearings had two purposes: to determine whether broadcasters should be allowed to express editorial opinions; and to determine how editorializing would affect efforts to provide the public with fair and balanced information about controversial issues.
In April 1949, the FCC issued a report that outlined the commissioners' findings from the hearings. This report, officially known as "Report on Editorializing by Broadcast Licensees (13 FCC 1246)" and more commonly known as the Fairness Doctrine, is excerpted below. It explains the FCC's policies about editorializing and the presentation of controversial issues by broadcasters. It was intended to clear up any confusion regarding previous FCC statements and policies.
The Fairness Doctrine was based on the idea that broadcast licensees used the public airwaves, so they had a duty to operate in ways that served the public interest. In the case of news and informational programs, the FCC defined "serving the public interest" to mean presenting both sides of controversial issues fairly and accurately. The commissioners wanted to make sure that one point of view did not dominate the airwaves simply because its supporters held more financial or political power than the other side. They saw an important role for the FCC in making sure that less powerful groups, and less popular opinions, were able to gain access to the public airwaves. The Fairness Doctrine required broadcasters to devote a reasonable amount of time to covering controversial issues of public importance, and it also required licensees to make an effort to present different, opposing views on those issues. The FCC had the power to revoke the broadcasting license of any radio or television station that did not follow these rules.
The FCC report also considers the question of whether and how broadcast licensees should express their own opinions about controversial issues. The commissioners acknowledge that station owners make decisions about how much attention to give various issues and what types of information to present. They note, however, that this should not give broadcasters unlimited freedom to use the airwaves in their own interest, rather than in the public interest. Instead, they declare that the public's right to be informed is vital to the American systems of government and broadcasting. Therefore, the FCC says that broadcasters have a responsibility to allow for the presentation of opposing viewpoints on controversial issues. The FCC report stops short of telling broadcasters exactly how to ensure fairness and balance. It gives broadcasters room to use their own judgment in dealing with specific issues and programming decisions.
The Fairness Doctrine also addresses the question of editorializing by broadcast licensees. The FCC acknowledges that broadcasters have a unique opportunity to weight news and commentary to serve their own interests and promote their own views. But the agency also says that editorials that are clearly identified as the licensee's own opinion do not necessarily go against the public interest. The new policy allows broadcasters to present their own views on controversial issues, as long as they also provide access to others who wish to present different views. The FCC also warns licensees not to broadcast false or misleading information.
Finally, the report considers the question of whether requiring broadcasters to present opposing views on controversial issues amounts to government control of program content and thus violates licensees' right to free speech. The commissioners say that this is not the case. They cite a U.S. Supreme Court ruling that said the government must protect the right to free speech for all citizens, not only those who are lucky enough to own radio or television stations.
Things to remember while reading the excerpt of "The Fairness Doctrine":
- Since commercial television was just getting started in 1949, the FCC report talks mostly about radio broadcasting. As television grew to become the dominant form of electronic communication, however, all of the commissioners' statements were applied to TV as well.
- The report mentions the fact that, under the Communications Act of 1934, radio and television broadcasters were not considered "common carriers." This term refers to businesses such as airlines, railroads, power companies, and telephone companies that use a combination of their own and publicly owned facilities to provide services. Most businesses that are classified as common carriers operate in industries where the necessary facilities are very expensive to build, and therefore must be shared among competitors, such as airports, railroad tracks, and power lines. Common carriers are usually subject to different laws and regulations than private businesses. In general, the government maintains stricter control over their operations in order to protect the public's interests. Even though television and radio broadcasters use the public airwaves, Congress did not classify them as common carriers because the lawmakers wanted to give licensees greater choice in program selection.
- The Fairness Doctrine was always somewhat controversial. The radio and television networks argued that the government should not intrude into programming decisions. Broadcasters also claimed that they should be allowed to say what they wanted on their stations without the government forcing them to give equal time to opposing viewpoints. On the other hand, supporters of the Fairness Doctrine said that the law actually promoted freedom of speech for members of the larger community who held opinions different from those of station owners.
Excerpt of "The Fairness Doctrine"
Because of the importance of the issues considered in the hearing, and because of the possible confusion which may have existed in the past concerning the policies applicable to the matters which were the subject of the hearing, we have deemed it advisable to set forth in detail and at some length our conclusions as to the basic considerations relevant to the expression of editorial opinion by broadcast licensees and the relationship of any such expression to the general obligations of broadcast licensees with respect to the presentation of programs involving controversial issues.
3. In approaching the issues upon which this proceeding has been held, we believe that the paramount and controlling consideration is the relationship between the American system of broadcasting carried on through a large number of private licensees upon whom devolves the responsibility for the selection and presentation of program material, and the congressional mandate that this licensee responsibility is to be exercised in the interests of, and as a trustee for the public at large which retains ultimate control over the channels of radio and television communications. One important aspect of this relationship, we believe, results from the fact that the needs and interests of the general public with respect to programs devoted to news commentary and opinion can only be satisfied by making available to them for their consideration and acceptance or rejection, of varying and conflicting views held by responsible elements of the community. And it is in the light of these basic concepts that the problems of insuring fairness in the presentation of news and opinion and the place in such a picture of any expression of the views of the station licensee as such must be considered.
4. It is apparent that our system of broadcasting, under which private persons and organizations are licensed to provide broadcasting service to the various communities and regions, imposes responsibility in the selection and presentation of radio program material upon such licensees. Congress has recognized that the requests for radio time may exceed the amount of time reasonably available for distribution by broadcasters. It provided, therefore, in Section 3 (h) of the Communications Act [of 1934] that a person engaged in radio broadcasting shall not be deemed a common carrier. It is the licensee, therefore, who must determine what percentage of the limited broadcast day should appropriately be devoted to news and discussion or consideration of public issues, rather than to the other legitimate services of radio broadcasting, and who must select or be responsible for the selection of the particular news items to be reported or the particular local, state, national, or international issues or questions of public interest to be considered, as well as the person or persons to comment or analyze the news or to discuss or debate the issues chosen as topics for radio consideration, "The life of each community involves a multitude of interests, some dominant and all-pervasive, such as interest in public affairs, education, and similar matters, and some highly specialized and limited to few. The practical day-to-day problem with which every licensee is faced is one of striking a balance between these various interests to reflect them in a program service which is useful to the community, and which will in some way fulfill the needs and interests of the many."…
5. But the inevitability that there must be some choosing between various claimants for access to a licensee's microphone, does not mean that the licensee is free to utilize his facilities as he sees fit or in his own particular interests as contrasted with the interests of the general public. The Communications Act of 1934, as amended, makes clear that licenses are to be issued only where the public interest, convenience, or necessity would be served thereby. And we think it is equally clear that one of the basic elements of any such operation is the maintenance of radio and television as a medium of freedom of speech and freedom of expression for the people of the Nation as a whole. Section 301 of the Communications Act provides that it is the purpose of the act to maintain the control of the United States over all channels of interstate or foreign commerce. Section 326 of the act provides that this control of the United States shall not result in any impairment of the right of free speech by means of such radio communications. It would be inconsistent with these express provisions of the act to assert that, while it is the purpose of the act to maintain the control of the United States over radio channels, but free from any regulation or condition which interferes with the right of free speech, nevertheless persons who are granted limited rights to be licensees of radio stations, upon a finding under Sections 307 (a) and 309 of the act that the public interest, convenience, or necessity would be served thereby, may themselves make radio unavailable as a medium of free speech. The legislative history of the Communications Act and its predecessor, the Radio Act of 1927 shows, on the contrary, that Congress intended that radio stations should not be used for the private interest, whims, or caprices of the particular persons who have been granted licenses, but in a manner which will serve the community generally and the various groups which make up the community. And the courts have consistently upheld action giving recognition to and fulfilling that intent of Congress….
6. It is axiomatic that one of the most vital questions of mass communication in a democracy is the development of an informed public opinion through the public dissemination of news and ideas concerning the vital public issues of the day. Basically, it is in recognition of the great contribution which radio can make in the advancement of this purpose that portions of the radio spectrum are allocated to that form of radio communications known as radio broadcasting. Unquestionably, then, the standard of public interest, convenience, and necessity as applied to radio broadcasting must be interpreted in the light of this basic purpose. The [Federal Communications] Commission has consequently recognized the necessity for licensees to devote a reasonable percentage of their broadcast time to the presentation of news and programs devoted to the consideration and discussion of public issues of interest in the community served by the particular station. And we have recognized, with respect to such programs, the paramount right of the public in a free society to be informed and to have presented to it for acceptance or rejection the different attitudes and viewpoints concerning these vital and often controversial issues which are held by the various groups which make up the community. It is this right of the public to be informed, rather than any right on the part of the Government, any broadcast licensee, or any individual member of the public to broadcast his own particular views on any matter, which is the foundation stone of the American system of broadcasting.
7. This affirmative responsibility on the part of broadcast licensees to provide a reasonable amount of time for the presentation over their facilities of programs devoted to the discussion and consideration of public issues has been reaffirmed by this Commission in a long series of decisions. The United Broadcasting Co. (WHKC) case, 10 FCC 675, emphasized that this duty includes the making of reasonable provision for the discussion of controversial issues of public importance in the community served, and to make sufficient time available for full discussion thereof. The Scott case, 3 Pike and Fischer, radio regulation 259, stated our conclusions that this duty extends to all subjects of substantial importance to the community coming within the scope of free discussion under the first amendment [to the U.S. Constitution] without regard to personal views and opinions of the licensees on the matter, or any determination by the licensee as to the possible unpopularity of the views to be expressed on the subject matter to be discussed among particular elements of the station's listening audience…. And the Commission has made clear that in such presentation of news and comment the public interest requires that the licensee must operate on a basis of overall fairness, making his facilities available for the expression of the contrasting views of all responsible elements in the community on the various issues which arise. Only where the licensee's discretion in the choice of the particular programs to be broadcast over his facilities is exercised so as to afford a reasonable opportunity for the presentation of all responsible positions on matters of sufficient importance to be afforded radio time can radio be maintained as a medium of freedom of speech for the people as a whole. These concepts, of course, do restrict the licensee's freedom to utilize his station in whatever manner he chooses but they do so in order to make possible the maintenance of radio as a medium of freedom of speech for the general public….
9. We do not believe, however, that the licensee's obligations to serve the public interest can be met merely through the adoption of a general policy of not refusing to broadcast opposing views where a demand is made of the station for broadcast time. If, as we believe to be the case, the public interest is best served in a democracy through the ability of the people to hear expositions of the various positions taken by responsible groups and individuals on particular topics and to choose between them, it is evident that broadcast licensees have an affirmative duty generally to encourage and implement the broadcast of all sides of controversial public issues over their facilities, over and beyond their obligation to make available on demand opportunities for the expression of opposing views. It is clear that any approximation of fairness in the presentation of any controversy will be difficult if not impossible of achievement unless the licensee plays a conscious and positive role in bringing about balanced presentation of the opposing viewpoints….
11. It is against this background that we must approach the question of "editorialization"—the use of radio facilities by the licensees thereof for the expression of the opinions and ideas of the licensee on the various controversial and significant issues of interest to the members of the general public afforded radio (or television) service by the particular station. In considering this problem it must be kept in mind that such editorial expression may take many forms, ranging from the overt statement of position by the licensee in person or by his acknowledged spokesmen, to the selection and presentation of news editors and commentators sharing the licensee's general opinions or the making available of the licensee's facilities, either free of charge or for a fee, to persons or organizations reflecting the licensee's viewpoint either generally or with regard to specific issues. It should also be clearly indicated that the question of the relationship of broadcast editorialization, as defined above, to operation in the public interest, is not identical with the broader problem of assuring "fairness" in the presentation of news, comment, or opinion, but is rather one specific facet of this larger problem.
12. It is clear that the licensee's authority to determine the specific programs to be broadcast over his station gives him an opportunity, not available to other persons, to insure that his personal viewpoint on any particular issue is presented in his station's broadcasts, whether or not these views are expressly identified with the licensee. And, in the absence of governmental restraint, he would, if he so chose, be able to utilize his position as a broadcast licensee to weight the scales in line with his personal views, or even directly or indirectly to propagandize in behalf of his particular philosophy or views on the various public issues to the exclusion of any contrary opinions. Such action can be effective and persuasive whether or not it is accompanied by any editorialization in the narrow sense of overt statement of particular opinions and views identified as those of the licensee.
13. The narrower question of whether any overt editorialization or advocacy by broadcast licensees, identified as such, is consonant with the operation of their stations in the public interest, resolves itself, primarily into the issue of whether such identification of comment or opinion broadcast over a radio or television station with the licensee, as such, would inevitably or even probably result in such overemphasis on the side of any particular controversy which the licensee chooses to espouse as to make impossible any reasonably balanced presentation of all sides of such issues or to render ineffective the available safeguards of that overall fairness which is the essential element of operation in the public interest. We do not believe that any such consequence is either inevitable or probable, and we have therefore come to the conclusion that overt licensee editorialization, within reasonable limits and subject to the general requirements of fairness detailed above, is not contrary to the public interest….
17. It must be recognized, however, that the licensee's opportunity to express his own views as part of a general presentation of varying opinions on particular controversial issues, does not justify or empower any licensee to exercise his authority over the selection of program material to distort or suppress the basic factual information upon which any truly fair and free discussion of public issues must necessarily depend. The basis for any fair consideration of public issues, and particularly those of a controversial nature, is the presentation of news and information concerning the basic facts of the controversy in as complete and impartial a manner as possible. A licensee would be abusing his position as the public trustee of these important means of mass communication were he to withhold from expression over his facilities relevant news or facts concerning a controversy or to slant or distort the presentation of such news. No discussion of the issues involved in any controversy can be fair or in the public interest where such discussion must take place in a climate of false or misleading information concerning the basic facts of the controversy….
19. There remains for consideration the allegation made by a few of the witnesses in the hearing that any action by the Commission in this field enforcing a basic standard of fairness upon broadcast licensees necessarily constitutes an "abridgement of the right of free speech" in violation of the first amendment of the United States Constitution. We can see no sound basis for any such conclusion. The freedom of speech protected against governmental abridgement by the first amendment does not extend any privilege to government licensees of means of public communication to exclude the expression of opinions and ideas with which they are in disagreement. We believe, on the contrary, that a requirement that broadcast licensees utilize their franchises in a manner in which the listening public may be assured of hearing varying opinions on the paramount issues facing the American people is within both the spirit and letter of the first amendment. As the Supreme Court of the United States has pointed out in the Associated Pressmonopoly case:
It would be strange indeed, however, if the grave concern for freedom of the press which prompted adoption of the first amendment should be read as a command that the Government was without the power to protect that freedom…. That amendment rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a free press is a condition of a free society. Surely a command that the Government itself shall not impede the free flow of ideas does not afford nongovernmental combinations a refuge if they impose restraints upon that constitutionally guaranteed freedom. Freedom to publish is guaranteed by the Constitution but freedom to combine to keep others from publishing is not. (Associated Press v. United States, 326 U.S. 1 at p. 20.)
20. We fully recognize that freedom of the radio is included among the freedoms protected against governmental abridgement by the first amendment…. But this does not mean that the freedom of the people as a whole to enjoy the maximum possible utilization of this medium of mass communication may be subordinated to the freedom of any single person to exploit the medium for his own private interest. Indeed, it seems indisputable that full effect can only be given to the concept of freedom of speech on the radio by giving precedence to the right of the American public to be informed on all sides of public questions over any such individual exploitation for private purposes. Any regulation of radio, especially a system of limited licensees, is in a real sense an abridgement of the inherent freedom of persons to express themselves by means of radio communications. It is, however, a necessary and constitutional abridgement in order to prevent chaotic interference from destroying the great potential of this medium for public enlightenment and entertainment…. Nothing in the Communications Act or its history supports any conclusion that the people of the Nation, acting through Congress, have intended to surrender or diminish their paramount rights in the air waves, including access to radio broadcasting facilities to a limited number of private licensees to be used as such licensees see fit, without regard to the paramount interests of the people. The most significant meaning of freedom of the radio is the right of the American people to listen to this great medium of communications free from any government dictation as to what they can or cannot hear and free alike from similar restraints by private licensees.
21. To recapitulate, the Commission believes that under the American system of broadcasting the individual licensees of radio stations have the responsibility for determining the specific program material to be broadcast over their stations. This choice, however, must be exercised in a manner consistent with the basic policy of the Congress that radio be maintained as a medium of free speech for the general public as a whole rather than as an outlet for the purely personal or private interests of the licensee. This requires that licensees devote a reasonable percentage of their broadcasting time to the discussion of public issues of interest in the community served by their stations and that such programs be designed so that the public has a reasonable opportunity to hear different opposing positions on the public issues of interest and importance in the community. The particular format best suited for the presentation of such programs in a manner consistent with the public interest must be determined by the licensee in the light of the facts of each individual situation. Such presentation may include the identified expression of the licensee's personal viewpoint as part of the more general presentation of views or comments on the various issues, but the opportunity of licensees to present such views as they may have on matters of controversy may not be utilized to achieve a partisan or one-sided presentation of issues. Licensee editorialization is but one aspect of freedom of expression by means of radio. Only insofar as it is exercised in conformity with the paramount right of the public to hear a reasonably balanced presentation of all responsible viewpoints on particular issues can such editorialization be considered to be consistent with the licensee's duty to operate in the public interest. For the licensee is a trustee impressed with the duty of preserving for the public generally radio as a medium of free expression and fair presentation.
What happened next …
Although the Fairness Doctrine was unpopular in the broadcasting industry, the policy was gradually expanded and given the force of law over the next thirty years. In 1959, Congress added an amendment to the Communications Act of 1934 that spelled out broadcasters' obligation "to operate in the public interest," and specifically "to afford reasonable opportunity for the discussion of conflicting views on issues of public importance." In 1967, the FCC introduced new regulations concerning personal attacks and political editorials. The rules said that if a licensee aired an editorial supporting one political candidate, it must allow the opponent time to present his or her case to the listening audience. Similarly, if a station aired a personal attack against an individual's character, the rules required it to give that person a chance to respond.
In 1969, the "personal attack" rule became the subject of a high-profile court challenge. The case concerned a television station group called Red Lion Broadcasting Company. In 1964, it had aired a program called Christian Crusade, in which the Reverend Billy James Hargis launched a personal attack against author Fred J. Cook. Cook contacted Red Lion and requested air time to respond to the attack. When the station group refused to grant the request, the FCC penalized Red Lion for failing to follow federal regulations. Red Lion appealed the FCC's decision, and the case made it all the way to the U.S. Supreme Court. The Court's ruling in Red Lion Broadcasting Company v. FCC provided legal support for the Fairness Doctrine. The justices said that broadcast licensees did not have a constitutional right to control the airwaves at the expense of fellow citizens. They rejected the idea that the Fairness Doctrine violated broadcasters' right to free speech, and they agreed that the FCC could regulate use of the airwaves in order to serve the public interest.
Deregulation ends the Fairness Doctrine
The Fairness Doctrine was always somewhat controversial, and broadcasters fought against it from the beginning. Broadcast licensees said that the FCC policy held radio and television to a different standard than newspapers and magazines, which were allowed to publish editorials and opinions without restriction under the constitutional guarantee of freedom of the press. The policy also disturbed many journalists, who considered it a violation of their right to free speech under the First Amendment to the U.S. Constitution. They argued that they should be allowed to make their own decisions about how to report and achieve balance in news stories.
Some critics claimed that broadcasters simply stopped covering controversial issues in order to avoid the FCC requirement to provide opposing viewpoints. According to the Weekly Standard, respected television news anchor Dan Rather told the FCC that, in his experience, journalists "were very much aware of this government presence looking over their shoulders. I can recall newsroom conversations about what the FCC implications of broadcasting a particular report would be. Once a newsperson has to stop and consider what a government agency will think of something he or she wants to put on the air, an invaluable element of freedom has been lost." This "chilling effect" on the coverage of controversial issues was the opposite of what the FCC had intended to happen under the Fairness Doctrine.
The broadcast industry saw significant deregulation (reduction in rules) during the 1980s under President Ronald Reagan (1911–2004; served 1981–89). Reagan strongly believed in limiting the government's role in business. He felt that free competition between companies would provide consumers with more choices at a lower cost. Reagan appointed Mark Fowler as chairman of the FCC in 1981. Fowler was a former lawyer for the broadcast industry and a vocal critic of the Fairness Doctrine. Immediately after taking office, Fowler began dismantling the system of regulations that the FCC had long used to guide the television industry. For instance, the FCC lowered the qualifications for people to receive broadcast licenses. The agency also eliminated requirements for TV stations to provide educational children's programming.
The main target of Fowler's deregulation efforts, however, was the Fairness Doctrine. He and other critics of the FCC policy argued that the broadcast industry had changed dramatically since the 1940s. They pointed out that the rise of cable television systems had made many more TV channels available to viewers across the country. They claimed that these channels provided plenty of opportunities for minority views to be expressed, so the airwaves no longer needed government regulation to protect the interests of the public.
In 1985, the FCC issued its "Fairness Report," which said that the Fairness Doctrine no longer served its intended purpose of providing the American people with multiple perspectives on controversial issues. The commissioners wrote: "We no longer believe that the Fairness Doctrine, as a matter of policy, serves the public interests. In making this determination, we do not question the interest of the listening and viewing public in obtaining access to diverse and antagonistic [opposing] sources of information. Rather, we conclude that the Fairness Doctrine is no longer a necessary or appropriate means by which to effectuate [serve] this interest. We believe that the interest of the public in viewpoint diversity is fully served by the multiplicity of voices in the marketplace today and that the intrusion by government into the content of programming occasioned by the enforcement of the doctrine unnecessarily restricts the journalistic freedom of broadcasters."
The FCC's decision to stop enforcing the Fairness Doctrine alarmed many people. Supporters of the policy worried that eliminating it would allow wealthy and politically powerful people to slant the news and information broadcast on television and radio. In 1987, the U.S. Congress decided to turn the Fairness Doctrine into a law, rather than merely an FCC policy. Although the legislation passed both houses of Congress easily, President Reagan vetoed it. (Bills passed by Congress must be signed by the president to become law. If the president does not like a bill, he has the power to veto it and prevent it from becoming law. In this case, two-thirds of the members of Congress must vote to pass a bill again for it to become law without the president's signature.) Congress did not have enough votes to override Reagan's veto, and the FCC formally dropped the Fairness Doctrine in August 1987. Congress made another effort to reinstate the Fairness Doctrine in 1991, but the bill failed when President George H. W. Bush (1924–; served 1989–93) threatened to veto it. The FCC rules allowing responses to personal attacks and political editorials remained in effect until 2000, when they were dropped as well.
Ongoing debates about fairness
The debate over the Fairness Doctrine continued into the twenty-first century. As of 2006, the U.S. government did not require the broadcast industry to provide fair and balanced coverage of controversial issues of public importance. Instead, journalists and station owners were allowed to use their own judgment to decide whether and how to cover such issues. In addition, the American people were expected to use their own common sense to evaluate media coverage of issues and determine what was presented fairly and what was one-sided.
Critics claim that many television news operations became less objective and more biased in their reporting in the absence of the Fairness Doctrine. Some blamed the trend toward less objectivity in TV news on the fact that the major broadcast and cable networks were owned by large parent corporations, such as Time Warner, Walt Disney, Viacom, Seagram, News Corporation, Sony, GE, and AT&T. These major corporations had financial interests in a wide variety of industries, including movies and music, alcoholic beverages, theme parks, professional sports franchises, telephone services, and nuclear power plants. The critics pointed out that the desire to earn profits in one area of the business might create a conflict with the duty to provide fair and unbiased TV news coverage. For example, a network news program might be tempted to downplay its coverage of safety problems in a product manufactured by another division of its parent company. Since television has tremendous power to influence public opinion, critics claim that increasingly biased news coverage is a major problem that the U.S. government needs to address.
Did you know …
- Conservative radio talk show host Rush Limbaugh is one of the leading opponents of the Fairness Doctrine. When the U.S. Congress considered legislation to reinstate the Fairness Doctrine in 1993, Limbaugh mobilized his 20 million listeners to help defeat the bill. Calling it the "Hush Rush" bill, Limbaugh claimed that many radio stations would take his opinion-filled program off the air rather than trying to meet the requirement to provide listeners with opposing views on controversial issues. But Lim-baugh's critics say that his radio show provides clear evidence that a new Fairness Doctrine is needed. They argue that Limbaugh routinely gives his listeners false or misleading information, engages in personal attacks against people who disagree with his views, and uses his program to provide free political advertising for conservative candidates. They claim that people who endure his abuse should have the right to respond on the air. "It's mean. It's hateful. It's destructive broadcasting," communications professor Sid Savan said in the St. Louis Journalism Review. "At the very least, it needs to be answered. It is very, very destructive for our system of government to have the opposition characterized as an enemy."
- The Fairness Doctrine returned to the news during the 2004 presidential election campaign. The Sinclair Broadcasting Group—a large television station group whose owners openly supported Republican president George W. Bush and other conservative candidates—announced plans to air a controversial documentary called Stolen Honor that questioned Democratic presidential candidate John Kerry's military record during the Vietnam War. During his service in the U.S. Navy, Kerry was awarded several medals for bravery in combat, and the documentary claimed that he did not deserve them. Many people criticized Sinclair's decision to air the program shortly before the election. They argued that it amounted to a personal attack on Kerry and free political advertising for Bush. Some people said that Sinclair had an obligation to present controversial issues in a fair and balanced way and they demanded that Kerry be given a chance to respond to the program. The controversy surrounding the program convinced several advertisers to withdraw their support, and it also led to a 17 percent decline in the value of Sinclair's stock. The broadcaster ultimately decided not to air the full documentary, but rather to include short clips within a news program.
- As of 2005 U.S. representative Louise Slaughter of New York was the leader of an effort in Congress to bring back the Fairness Doctrine. She claimed that the repeal of the long-standing FCC rule led to an increase in one-sided political views being expressed on American radio and television stations. She said that a new law was needed to ensure that minority opinions gained access to the public airwaves. "Partisan, biased material marketed as 'news' is increasingly contaminating our airwaves and democracy," she said in Alt Press Online. "Our democracy depends on an informed electorate [voting public]. The media is crucial to supporting the free exchange of ideas and providing thorough coverage of the important issues facing our nation. The American public owns the airwaves. Reinstating the Fairness Doctrine would return integrity to the media and ensure that the American public is adequately informed on all points of view."
Consider the following …
- After reviewing the arguments on both sides, do you think the Fairness Doctrine should be law in the United States? Give reasons to support your answer.
- What are the main sources of news and information for your family (radio, television, newspapers, magazines, Internet sites, other)? Do you believe that these media present controversial issues in a fair and balanced way?
- A 2006 study by the Washington Post indicated that the conservative Fox News Channel convinced between 3 and 8 percent of its audience to shift their voting behavior toward the Republican Party. This shift was enough to swing a very close 2004 presidential election in favor of President George W. Bush (1946–; served 2001–). What would the 1949 FCC commissioners who wrote the Fairness Doctrine think about the result of this study? What do you think about it?
For More Information
Hilliard, Robert L., and Michael C. Keith. The Broadcast Century: A Biography of American Broadcasting. Boston: Focal Press, 1992.
McChesney, Robert W. Rich Media, Poor Democracy: Communications Politics in Dubious Times. Urbana and Chicago: University of Illinois Press, 1999.
Aufderheide, Patricia. "After the Fairness Doctrine: Controversial Broadcast Programming and the Public Interest." Journal of Communication, Summer 1990.
Brennan, Timothy A. "The Fairness Doctrine as Public Policy." Journal of Broadcasting and Electronic Media, Fall 1989.
Corrigan, Don. "Applying Fairness Doctrine to Rush Limbaugh Wouldn't Limit Speech but Expand It." St. Louis Journalism Review, October 2003.
Hazlett, Thomas W. "Dan Rather's Good Deed: His Critics Should Thank Him for Sinking the Fairness Doctrine." Weekly Standard, March 21, 2005.
Hazlett, Thomas W. "The Fairness Doctrine and the First Amendment." Public Interest, Summer 1989.
Matelski, Marilyn J. "Fair's Fair … or Is It?" Nieman Reports, Spring 1995.
"Broadcasting Fairness Doctrine Promised Balanced Coverage." Wisdom Fund, July 25, 1997. http://www.twf.org/News/Y1997/Fairness.html (accessed on July 26, 2006).
Clark, Drew. "How Fair Is Sinclair's Doctrine?" Slate, October 20, 2004. http://www.slate.com/id/2108443 (accessed on July 26, 2006).
"The Fairness Doctrine." The Federal Communications Commission. http://www.fcc.gov/ftp/Bureaus/Mass_Media/Databases/documents_collection/490608.pdf (accessed on July 26, 2006).
Limburg, Val E. "Fairness Doctrine." Museum of Broadcast Communications. http://www.museum.tv/archives/etv/F/htmlF/fairnessdoct/fairnessdoct.htm (accessed on July 26, 2006).
"Media Groups Unveil Web Site to Support Slaughter's Fairness Doctrine Bill." Alt Press Online, October 21, 2004. http://www.altpressonline.com/modules.php?name=News&file=article&sid=278 (accessed on July 26, 2006).
Morin, Richard. "The Fox News Effect." Washington Post, May 4, 2006. http://www.washingtonpost.com/wp-dyn/content/article/2006/05/03/AR2006050302299.html (accessed on July 26, 2006).
Rendall, Steve. "The Fairness Doctrine: How We Lost It, and Why We Need It Back." Fairness and Accuracy in Reporting (FAIR), February 12, 2005. http://www.fair.org/index.php?page=2053 (accessed on July 26, 2006).
"What Happened to Fairness?" NOW. http://www.pbs.org/now/politics/fairness.html (accessed on July 26, 2006).
Broadcast licensees: Holders of permits from the government to operate television or radio stations.
Paramount: Most important.
Devolves: Settles; is handed down.
Mandate: Official command or instruction.
Common carrier: Public utility.
Claimants: People who make a claim or request.
Amended: Updated or changed.
Interstate: Taking place between two or more states.
Commerce: Business activities.
Express: Clear or specific.
Legislative: Legal; having to do with the process of making laws.
Predecessor: Something that preceded or came before.
Caprices: Sudden changes or impulses.
Upheld: Agreed with; allowed to stand.
Axiomatic: Widely accepted as true; taken for granted.
Democracy: System of government controlled by the people, usually through elected representatives.
Dissemination: Distribution; passing around.
Spectrum: Range of broadcast frequencies.
Discretion: Good judgment.
Expositions: Presentations or explanations.
Overt: Clear and straightforward.
Facet: One of several parts of something.
Propagandize: Spread information or ideas that support one's own position or damage another's position.
Advocacy: Active support of a idea or position.
Consonant: In agreement.
Espouse: Promote or support.
Suppress: Hide; prevent from becoming public knowledge.
Impartial: Objective; without bias.
Allegation: Charge or claim.
Abridgement: Reduction in scope.
Franchises: Rights as license holders.
Monopoly: A situation where one company controls an entire industry or line of business.
Refuge: Place of safety.
Subordinated: Ranked lower in importance.
Exploit: Take advantage of.
Precedence: The highest level of importance.
Chaotic: Messy and confusing.
Enlightenment: Knowledge; learning.
Recapitulate: Repeat the main points; summarize.
Partisan: Firm support of one political party or view.
Federal Communications Commission
FEDERAL COMMUNICATIONS COMMISSION
The Federal Communications Commission (FCC) is an independent regulatory agency that executes and enforces the provisions of the Communications Act of 1934 and its amendments. It has the statutory authority to create and execute administrative law such as rules, policies, and regulations. It also has the authority to investigate and penalize violators of these laws. Its jurisdiction covers interstate wire and wireless communication as well as international communication originating in or transmitted from the United States. It does not, however, regulate government communications.
The FCC is considered an independent agency because it does not fall directly under the executive branch of government. However, it is a "creature of Congress" in that the U.S. Congress created the agency through the Communications Act of 1934. Therefore, through legislation, Congress may alter or abolish the FCC if it so chooses. Congress also approves the selection of commissioners, appropriates the budget, and reauthorizes the existence of the FCC every two years.
The president of the United States also holds some influence over the FCC. For example, the president appoints the five FCC commissioners, subject to approval by Congress. The president may also take control of FCC-regulated media during wartime and national emergencies. Other government regulatory organizations that play a role in media regulation are the Federal Trade Commission (FTC), which is responsible for advertising and antitrust oversight, and the Equal Employment Opportunity Commission (EEOC), which monitors compliance of affirmative action and equal employment laws. In concert with these agencies, the FCC regulates the communications industry to ensure that the public interest is being served.
Powers and Procedures of the Commission
Perhaps the most visible function of the commission is to assign frequencies and issue licenses to broadcasters. However, it also makes rules, regulations, and policies that uphold U.S. domestic laws and international agreements. To do this, the FCC receives proposals for new rules, which are evaluated by the appropriate bureau. If the proposal survives this step, it goes to the FCC commissioners, who may employ one of four actions.
First, the commission may submit a Notice of Proposed Rule Making (NPRM), in which the rule is proposed and comments are solicited. The commission will then take written statements from interested parties and, perhaps, hold a hearing to discuss relevant issues. After comments are obtained, the commission will issue a Report and Order (R&O) that either adopts the proposed rule, alters and then adopts the rule, or makes no change.
Second, the commission may issue a Notice of Inquiry (NOI), which states the issue and invites comments regarding potential solutions. Public comment is then gathered from written statements or hearings, allowing the commission to decide whether to proceed with an NPRM or to forego adoption of rules or changes with a Memorandum Opinion and Order (MO&O). If the commission does choose to issue an NPRM, then the rule-making process continues as if an NPRM was originally issued.
Third, the commission may skip an NPRM or an NOI and make unsubstantial changes in existing rules using a Report and Order Adopting Change. However, if the commission does not wish to adopt any rules or changes, the commission may exercise its fourth option and issue an MO&O, thus ending the rule-making process.
The FCC also has at its disposal a legal device that can be used to remove an uncertainty or terminate a controversy. This device is a declaratory ruling, made possible by the Administrative Procedures Act, and it can be used to clarify legal definitions, solidify regulatory concepts, or otherwise explicitly explain a controversial element or issue. However, even these declaratory rulings are subject to court decisions.
Hearings, presided over by an administrative law judge (ALJ), not only provide a forum for public comment but also test the constitutionality of FCC decisions. According to the Communications Act of 1934, hearings can be held to appeal FCC rules, and must be held in license denial or revocation actions. During these hearings, the ALJ hears comments from all interested parties, including the FCC, and issues an initial decision. The decision may then be reviewed by the five commissioners. If any parties are dissatisfied with the final decision, they may appeal the case to an appellate court and possibly to the U.S. Supreme Court. It is through this appeals process that the judicial system checks the constitutionality and legal authority of FCC rulings.
To enforce its existing rules, regulations, and policies, the FCC can choose from nine methods of enforcement. The most commonly used method is the forfeiture, or the fine. The FCC may levy up to $25,000 per day for violations of license terms, the Communications Act of 1934, the U.S. Criminal Code, or any FCC regulation or U.S. treaty. There is, however, a $250,000 maximum penalty for each individual station in violation.
The Communications Act of 1934 also authorizes the FCC to pursue court action against violators of the act. This involves obtaining a court order demanding that the violator either comply with the act, obey an FCC order, or comply with a previous court order. Similar to this is the consent order, which begins with an allegation by the FCC that some party has violated an FCC rule, regulation, or policy. A hearing is then held during which the party in question and the FCC negotiate a consent order, an agreement to comply with a specified ruling.
A related enforcement tool is the cease and desist order. This order demands that a party stop exhibiting a specific action that violates the Communications Act of 1934, the U.S. Criminal Code, an FCC regulation or U.S. treaty, or a license agreement. This method, although useful to many agencies, has been used the least by the FCC.
Another little used method is the revocation of a license before renewal. Revocation has mostly occurred in cases of misrepresentation or technical engineering violations by a station. Other, less harsh enforcement methods are the denial of license renewal, short-term license renewal, and conditional license renewal. All of these pertain to cases concerning violations of the license agreement, violations of FCC regulations, or petitions to deny renewal.
The regulatory tool that the FCC uses with frequency is the letter, or "raised eyebrow" approach. In these cases, the FCC simply sends the party in question a letter that either admonishes the party or asks the party to explain an alleged act. This method, though not a sanction, is very effective in that it cannot be appealed or challenged in court, and yet it warns the party of the FCC's knowledge of the possible violation. Usually, this threat of sanction is persuasive enough to gain compliance.
Organization of the Commission
The FCC is organized into three levels. At the top level, five commissioners create and review regulation. Beneath the commissioners are the offices, which perform various managerial, service, and auxiliary functions. At the third level, six bureaus develop and implement regulatory programs, process license applications, conduct investigations, and hear citizen comments and complaints. These levels cover the breadth of telecommunication and facilitate the commission's operation as an independent agency.
With the advice and consent of the U.S. Senate, the president of the United States appoints five commissioners, choosing one as chairman. These commissioners hold five-year fixed terms, which are staggered so that not all five positions will be vacant at once. The commissioners must be U.S. citizens and must not hold a financial interest in any industry that the FCC regulates. Also, no more than three commissioners may be from the same political party, although all may hold the same philosophies. Each commissioner selects a small personal staff that will leave when the commissioner leaves office. The chairman is allowed a larger personal staff and serves as chief executive of the commission.
The chairman presides over the commission meetings, which must be held at least once a month. Usually, the commissioners meet weekly, and they submit documents to each other for approval between meeting times, a process called circulation. The commissioners also go before Congress to request operating funds and reauthorization. However, the chairman may also serve as the sole representative of the FCC before Congress and other entities in various matters.
The Office of Inspector General was created by the Inspector General Amendments Act of 1988. This office ensures that the FCC operates internally in an efficient, effective, and legal fashion. It initiates internal audits and investigations of programs or operations in response to complaints, and it keeps the commissioners and Congress informed of any problems at the agency.
The Office of Managing Director is the primary operations manager of the agency. It creates and executes managerial and administrative policies, and it provides direction to the offices and bureaus underneath it. It is the central link in the organization of the FCC.
The Office of Legislative and Intergovernmental Affairs serves as the FCC's liaison to Congress and other governmental organizations. In addition to informing others about FCC decisions, the office prepares FCC responses to legislative proposals and feedback. The Office of Media Relations performs similar tasks in dealing with the news media, and it also manages the website of the FCC.
The Office of Plans and Policy advises the commission on economic and technical matters. It develops long-term policy planning, conducts research, and manages the budget for research funded by the FCC. The Office of the Secretary also keeps records, except that its focus is in managing the movement of documents filed through electronic and paper-based systems.
The Office of Workplace Diversity is the principal adviser to the commission on issues such as workplace diversity, affirmative action, and equal employment opportunity. It trains and counsels employees on fair treatment, and it also develops and implements programs that encourage fair treatment, affirmative recruitment, and understanding and acceptance of diversity in the work-place. The Office of Communications Business Opportunities counsels the commission on diversity in the national landscape, advising on issues and policies concerning female and minority ownership of communication businesses. In addition, the office represents small-business interests in all FCC rule-making proceedings.
The Office of Administrative Law Judges and the Office of General Counsel serve as the legal arm of the FCC. The Office of Administrative Law Judges houses the judges who preside over hearings and issue adjudicatory decisions that are reviewed by the commissioners. The Office of General Counsel advises the FCC on legal matters, represents the commission before the courts, recommends decisions in adjudicatory cases, and provides insight on promoting competition and deregulation in the marketplace.
The final office is the Office of Engineering and Technology. This office is the primary manager of the nongovernmental use of the electromagnetic spectrum. It advises the FCC on technical matters, the allocation of frequencies, and new technologies. The office also establishes technical standards for operating stations. In short, the Office of Engineering and Technology provides scientific leadership and guidelines on which the technological backbone of electronic media is built.
There are seven FCC bureaus: (1) the Cable Services Bureau, (2) the Common Carrier Bureau, (3) the Wireless Telecommunications Bureau, (4) the International Bureau, (5) the Mass Media Bureau, (6) the Enforcement Bureau, and (7) the Consumer Information Bureau. Each of these bureaus covers a distinct area of FCC responsibility.
The Cable Services Bureau, established in 1993, was formed to execute and enforce the Cable Television Consumer Protection and Competition Act of 1992. It promotes competition in local markets and between multichannel program distributors and monitors the deployment of new cable technologies. The Cable Services Bureau also monitors trends and developments in the cable industry. It evaluates compliance to such mandates as broadcast signal carriage, program access, and potential cable interference with over-the-air signal reception capability. In addition, the bureau resolves issues concerning cable franchise agreements and related fees.
The Common Carrier Bureau oversees common carriers such as telephony and cellular telephony. The bureau licenses transmission circuits, assigns frequencies, and approves construction for new common-carrier operations. It also regulates the practices and charges of interstate and international communication carriers such as long-distance telephone companies. Related to the regulation of practices, the bureau receives applications for mergers and dictates proper accounting practices for common carriers.
The Wireless Telecommunications Bureau is similar to the Common Carrier Bureau in that it regulates radio-wave communication that serves the needs of businesses, individuals, governmental entities, and nonprofit organizations. These communications include private microwave, private land mobile, marine and aviation, amateur, cellular, paging, and personal communications service (PCS) transmissions. The bureau ensures that these and other wireless telecommunication service providers comply with the Communications Act of 1934 and FCC regulations.
The International Bureau, established in 1994, regulates all FCC international communications and satellite programs. Its functions include the regulation of rates, the development of standards, international safety measures, and space-and earth-station communications. The bureau also represents the commission in international matters and oversees the domestic implementation of relevant treaties and agreements between the United States and other countries.
Perhaps the most familiar bureau is the Mass Media Bureau, which regulates radio and television broadcasting. It assigns frequencies, call letters, and licenses to applicants. It also ensures that licensees are in compliance with the current rules and provisions of the Communications Act of 1934, the FCC, and other federal laws. In the event of noncompliance, the bureau is authorized to investigate and ultimately issue sanctions.
The Enforcement Bureau is charged with improving the effectiveness of the enforcement measures of the various laws. Established in 1999, it joins the enforcement forces of the various bureaus and acts on potential violations of the Communications Act of 1934 and FCC rules, regulations, and orders.
The Consumer Information Bureau, the official liaison to the general public, handles all consumer inquiries and complaints.
Evolution of the Commission
The FCC grew out of the Federal Radio Commission (FRC), which was created by the Radio Act of 1927. The FRC, a five-member commission, began with a limited and temporary role— the U.S. Department of Commerce maintained most of the regulatory responsibility for the communication industry. The original intent of the FRC was to solve growing station interference problems, set standard broadcast bands, and reduce the total number of operating stations within one year. This, however, was not accomplished, and the FRC became permanent in 1929.
In 1934, President Franklin D. Roosevelt asked Congress to create a single agency with broad authority over all nongovernmental communication. Consequently, Congress passed the Communications Act of 1934, which combined aspects of the FRC and the U.S. Department of Commerce and created the FCC as an independent regulatory agency that would have jurisdiction over all wire and wireless communication, both interstate and international.
The FCC derives its powers, duties, procedures, enforcement methods, and organizational setup from Titles I and V of the Communications Act of 1934, a blueprint that has changed little over time. For example, the number of commissioners has varied from five to three to seven, but a 1982 amendment set the number back at five. The only other significant change is that the commission, due to a 1981 amendment, is once again a temporary agency that must be reauthorized by Congress every two years. Other amendments have altered the rules, policies, regulations, and provisions that the FCC executes and enforces. However, the commission continues to function very much in the tradition that was established in 1934.
See also:Broadcasting, Government Regulation of; Cable Television, Regulation of; Communications Act of 1934; First Amendment and the Media; Radio Broadcasting; Telecommunications, Wireless; Telecommunications Act of 1996; Television Broadcasting.
Federal Communications Commission. (2001). "Federal Communications Commission." <http://www.fcc.gov>.
Kahn, Frank J., ed. (1978). Documents of American Broadcasting, 3rd edition. Englewood Cliffs, NJ: Prentice-Hall.
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
Federal Communications Commission
FEDERAL COMMUNICATIONS COMMISSION
The Federal Communications Commission (FCC) regulates interstate and foreign communications by radio, television, wire, satellite, and cable television. The FCC oversees the development and operation of broadcast services and the provision of nationwide and worldwide telephone and telegraph services. It also oversees the use of communications for promoting the safety of life and property and for strengthening the national defense. The FCC maintains a comprehensive web site: www.fcc.gov.
The FCC was created by the Communications Act of 1934 (47 U.S.C.A. § 151 et seq.) to regulate interstate and foreign communications by wire and radio in the public interest. The scope of its regulation includes radio and television broadcasting; telephone, telegraph, and cable television operation; two-way radio and radio operation; and satellite communication. The FCC is composed of five members who are appointed by the president. Only three of the commissioners may be members of the same political party at any given time. A review board and an office of general counsel assist the commission. In addition, administrative law judges conduct evidentiary adjudicatory hearings and write initial decisions. In January 2002, the FCC announced a major restructuring of several of its bureaus, reducing the number of bureaus from seven to six and renaming several of them.
The Media Bureau combines the functions of the Mass Media and Cable Services Bureaus. The Mass Media Bureaus regulates the following services: amplitude modulation (AM), frequency modulation (FM), television, low-power television, translator, instructional television and related broadcast auxiliary, and directbroadcast satellite. The Media Bureau issues construction permits, operating licenses, and renewals or transfers of such broadcast licenses except for broadcast auxiliary services. The bureau also oversees compliance by broadcasters with statutes and FCC policies.
The division of the Media Bureau (formerly organized as the Cable Services Bureaus) develops, recommends, and administers policies and programs for the regulation of cable television systems. It advises the FCC on the development and regulation of cable television. Among its other responsibilities, the bureau investigates complaints from the public; coordinates with state and local authorities in matters involving cable television systems; and advises the public, other government agencies, and industry groups on cable television regulation and related matters.
Wireline Competition Bureau
The Common Carrier Bureau was renamed the Wireline Competition Bureau in 2002. This Bureau regulates interstate common carrier communications by telephone. Common carriers include companies, organizations, and individuals providing communications services to the public for hire, which must serve all who wish to use them at established rates. In providing interstate communications services, common carriers may employ landline wire or electrical or optical cable facilities.
Wireless Telecommunications Bureau
The Wireless Telecommunications Bureau administers all domestic commercial and private wireless telecommunications programs and policies. Commercial wireless services include cellular, paging, personal, specialized mobile radio, air-ground, and basic exchange telecommunications. Private wireless services include land mobile radio (including public safety, industrial, land transportation, and business), broadcast auxiliary, operational fixed microwave and point-to-point microwave, and special radio telecommunications. The Wireless Telecommunications Bureau also implements laws and treaties covering the use of radio for the safety of life and property at sea and in the air, and administers commercial and amateur radio operator programs.
The International Bureau manages all FCC international telecommunications and satellite programs and policies, and represents the FCC at international conferences, meetings, and negotiations. The International Bureau consists of three divisions: Telecommunications, Satellite and Radiocommunication, and Planning and Negotiations.
The Telecommunications Division develops and administers policies, rules, and procedures for the regulation of telecommunications facilities and services under section 214 of the Communications Act (47 U.S.C.A. § 153 et seq.) and Cable Landing License Act (47 U.S.C.A. § 34 et seq.). In addition, the division develops and administers regulatory assistance and training programs in conjunction with the administration's Global Information Infrastructure initiative.
The Satellite and Radiocommunication Division develops and administers policies, rules, standards, and procedures for licensing and regulating satellite and earth station facilities, both international and domestic.
The Planning and Negotiations Division represents the FCC in negotiations with Mexico, Canada, and other countries on international agreements that coordinate radio frequency assignments to prevent and resolve international radio interference involving U.S. licensees.
Consumer and Governmental Affairs Bureau
The Consumer Information Bureau was renamed the Consumer and Governmental Affairs Bureau in 2002. This bureau is a one-stop-shopping place for information regarding FCC policies, programs and, activities. The Consumer Centers, located in Washington, D.C., and Gettysburg, Pennsylvania, also help individuals file informal complaints on a variety of issues, including: slamming (switching services without customer approval or knowledge); cramming (unauthorized, misleading, or deceptive charges for services not requested or not received); and disability access. The Consumer Education Office (CEO) works with consumer organizations and government agencies concerned with FCC regulatory activities. CEO prepares informational materials and conducts forums to educate the public about important FCC regulatory programs and to solicit feedback on issues regulated by the commission. This office also arranges briefings and seminars for educational institutions, consumer organizations, and other interested groups. The Disability Rights Office (DRO) ensures that FCC actions and policies enable people with disabilities to have the same access as everyone else to telecommunications. DRO helps to implement mandates for nationwide telephone-relay services; access to telecommunications wireline and wireless products and services; televised emergency access; and closed captioning on television programming.
Office of Engineering and Technology
The Office of Engineering and Technology administers the Table of Frequency Allocations, which specifies the frequency ranges that various radio services may use. The office also administers the Experimental Radio Service and the Equipment Authorization Program. The Experimental Radio Service permits the public to experiment with new uses of radio frequencies. This allows the development of radio equipment and exploration of new radio techniques prior to licensing under other regulatory programs. The Equipment Authorization Program includes procedures for agency approval of radio equipment importation, marketing, and use.
Much of the investigative and enforcement work of the FCC is carried out by the commission's field staff. The Field Operations Bureau
has six regional offices and 35 field offices. It also operates a nationwide fleet of mobile radio direction-finding vehicles for technical enforcement purposes. The field staff detects radio violations and enforces rules and regulations. The radio spectrum is under continuous surveillance to detect unlicensed operation and activities or nonconforming transmissions, and to furnish radio bearings on ships and planes in distress. The Field Operations Bureau also administers public service programs aimed at educating FCC licensees, industry, and the general public to improve compliance with FCC rules and regulations.
Telecommunications Act of 1996
In a sweeping overhaul of the Communications Act of 1934, Congress passed the Telecommunications Act of 1996 (47 U.S.C.A. § 51 et seq.) in February 1996. The legislation was designed to deregulate the $500-billion-per-year telecommunications industry and to encourage competition, thus freeing telephone companies, broadcasters, and cable television operators to enter one another's markets in order to secure lower prices and higher-quality services for U.S. consumers. Critics of the legislation charged that it would increase the cost of cable TV and telephone service and would encourage monopolization of the media. Supporters of the legislation claimed that it would foster competition and make available new services such as advanced wireless communications, home banking, and interactive television. By 2002, both sides could claim that parts of their predictions had come true.
Critics of the act have noted that the cable television industry has gone through a steady stream of mergers and acquisitions, resulting in just a few major cable companies dominating the cable industry in the United States. Cable bills have steadily risen since the passage of the 1996 act. Advocates of deregulation point out that wireless communication has continued to grow in a competitive marketplace and that consumers have more choices and lower costs. As for radio, critics have charged that the relaxation of ownership rules by the FCC has resulted in the acquisition of many stations in one market by just one company. As a consequence, local programming has given way to national programming for entire radio chains.
The 1996 act contained provisions that went beyond deregulation to include restrictions on the distribution of indecent material. For example, Title V of the act, known as the Communications Decency Act of 1996 (CDA) (47 U.S.C.A. § 223(a)–(h)), forbade the transmission of indecent material over computer networks such as the internet unless steps were taken to keep the material away from children, and required that new television sets be equipped with an electronic block that would allow viewers to prevent children from viewing objectionable programming. In February 1996, two separate actions were filed in U.S. district court in Philadelphia challenging the constitutionality of the CDA. The first suit, ACLU v. Reno, No. Civ.A. 96-963, 1996 WL 65464 (E.D. Pa.), was filed by the american civil liberties union and 19 other plaintiffs. The second action, American Library Ass'n v. United States Department of Justice, No. Civ. A. 96-1458 (E.D. Pa.), was brought by the American Library Association and 26 other plaintiffs. The other plaintiffs in both actions included civil libertarians, computer businesses, online services, newspapers, and librarians.
The lawsuits were consolidated for hearing before a special three-judge panel, authorized under the CDA and consisting of two federal district court judges and the chief judge of the U.S. Court of Appeals for the Third Circuit. The plaintiffs sought a preliminary injunction to prevent enforcement of the CDA pending the outcome of a trial of their lawsuit. They challenged section 223 of the CDA, which states, in part, that any person in interstate or foreign communications who "by means of a telecommunications device knowingly … makes, creates, or solicits and … initiates the transmission of … any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent, knowing the recipient of the communication is under 18 years of age" may be fined or imprisoned. In addition, section 223 makes it a crime to use an "interactive computer service" to transmit to persons under 18 years of age any material that, in context, "depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs, regardless of whether the user of such service placed the call or initiated the communication." The plaintiffs argued that the CDA violates the first amendment because it bans a substantial category of protected speech from most parts of the Internet. The government responded that shielding minors from access to indecent materials is a compelling interest that justifies the restrictions imposed by the act.
The court noted that the CDA was not narrowly tailored to further the government's interest in protecting minors, noting that "it is either technologically impossible or economically prohibitive for many of the plaintiffs to comply with the CDA without seriously impeding their posting of online material which adults have a constitutional right to access." According to the court,
The Internet is a far more speech-enhancing medium than print…. Because it would necessarily affect the Internet itself, the CDA would necessarily reduce the speech available for adults on the medium. This is a constitutionally intolerable result….As the mostparticipatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion. The court granted the plaintiffs' request for a preliminary injunction to prevent enforcement of the disputed sections of the CDA pending trial (Reno, 929 F. Supp. 824 [E.D. Pa. 1996]).
In another lawsuit, Playboy Entertainment Group, owner of the Playboy cable television channels, challenged the act's requirement that cable companies block audio and video transmissions of sexually explicit programs. Section 561 of the act states, in part,
In providing sexually explicit adult programming or other programming that is indecent on any channel of its service primarily dedicated to sexually-oriented programming, a multichannel video programming distributor shall fully scramble or otherwise fully block the video and audio portion of such channel so that one not a subscriber to such channel or programming does not receive it.
In Playboy Entertainment Group v. United States, 918 F. Supp. 813 (D. Del. 1996), the district court issued a temporary restraining order blocking the enforcement of section 561. Playboy had argued that the blocking and time requirements imposed on cable operators violated the First Amendment and equal protection. When Playboy applied for an injunction, the same court dissolved the restraining order and upheld the law. On appeal, the U.S. Supreme Court affirmed.
The pace of deregulation by the FCC continued through 2002, with the promise of more consolidation of companies in the cable, broadcast, radio, and telecommunications sectors.
U.S. Government Manual Website. Available online at <www.gpoaccess.gov/gmanual> (accessed November 10, 2003).
Federal Communications Commission
FEDERAL COMMUNICATIONS COMMISSION
FEDERAL COMMUNICATIONS COMMISSION. As the radio spectrum became increasingly crowded during the mid-1920s, it became necessary to regulate its frequency allocations. The Post Office and Commerce Departments and the Interstate Commerce Commission had initiated some regulation, and in 1927, Congress created the Federal Radio Commission (FRC). Its purpose was to regulate all forms of interstate and foreign radio transmissions and communications. FRC roles included assigning the frequencies and power of each station and revoking a station's license when the station violated the Radio Act of 1927 or the Commission's guidelines.
On 19 June 1934, the Communications Act became the latest addition to Roosevelt's New Deal. Introduced for the purpose of regulating interstate and foreign commerce in communication by wire and radio, it created the Federal Communications Commission (FCC). The task before the FCC was to make available a rapid, efficient, national and worldwide wire and radio communication service.
The FCC is an independent U.S. government agency with jurisdiction over communications in all the states, the District of Columbia, Guam, Puerto Rico, and the Virgin Islands. Originally intended to regulate only radio, telephone, and telegraph industries, today the agency is charged with regulating interstate and international communications by radio, television, wire, satellite, and cable. It is not that the agency exceeded its charter; rather, the Act's flexibility and a sympathetic Supreme Court have allowed the agency to regulate additional communication media and related industries as they develop. However, when these modifications became too complex, Congress stepped in and passed additional amendments and acts, such as the 1962 Communications Satellite Act, to guarantee that the FCC could keep up with the pace. Congress's changing views on regulation and the market found their way into the agency and its guidelines, as reflected in the Telecommunications Act of 1996.
The agency is directed by five commissioners—appointed by the president and confirmed by the Senate—and they serve five-year terms. To avoid political bias, only three commissioners can be members of the same political party, and none of them may have a financial interest in any FCC-related business. The chairperson, assigned by the president, is responsible for setting the agency's agenda and, with the aid of the executive director, of running the Commission. By 2002, the FCC had almost 2,000 full-time employees and an annual budget of $245,071,000, about 90 percent of which comes from fees paid by the regulated industries—not from taxpayers.
The FCC, with its seven bureaus and ten offices, has a functional division of labor. The bureaus deal with the main communications sectors—processing their licenses, conducting investigations, looking into complaints, developing and implementing regulatory programs, and taking part in hearings. The offices provide the bureaus with support services. The Cable Services Bureau, originally established in 1993 to implement the Cable Television Consumer Protection and Competition Act of 1992, ensures competition among cable and satellite companies and regulates the distribution of multi channel video programming. The Common Carrier Bureau is responsible for policies regarding long distance and local service telephone companies (called "common carriers"); its primary focus is affordable, efficient, national and worldwide telephone service. Similarly, the Wireless Telecommunications Bureau is responsible for the licensing, enforcement, and regulation of all wireless telecommunications, except satellite and broadcasting; these include cellular telephone, paging, personal communications services, and amateur radio services. It is also responsible for public safety and the efficient use of the frequency spectrum in these areas.
The Mass Media Bureau regulates over 25,000 broadcast stations throughout the United States (television, radio, translators, and boosters). A station found in violation of FCC rules may be asked to rectify the situation and pay a fine; in extreme cases the bureau may revoke a station's license or refuse to renew it. The International Bureau is responsible for worldwide communications. In addition to advising and representing the FCC on all international communication matters, the bureau is concerned with the development of efficient, available, and reliable domestic and international communications services and with administering the Commission's international telecommunications policies and obligations. The Consumer Information Bureau is the FCC's link to the public. It is also charged with overseeing disability mandates. Finally, the Enforcement Bureau is responsible for enforcing most of the provisions of the Communications Act as well as the Commission's rules, orders, and authorizations.
During its early days, radio industry practices demonstrated that regulating the spectrum was necessary. In 1926, a federal district court ruled in U.S. v. Zenith Radio Corp. et al. that the Commerce Department had no authority to establish radio regulations. Left to the forces of the market, stations decided to set their own frequencies and transmission power, thus crowding the spectrum and filling the airwaves with interference. Following that ruling and its negative effects on the industry, Congress passed the Radio Act, making a clear statement that the frequency spectrum was a public domain and that public broadcasting was a national interest. The 1934 Communications Act gave the FCC the power to regulate all wire and radio communication. This was later interpreted by the Supreme Court to include other industries, such as cable TV. (See U.S. v. Southwestern Cable Co. .) Ever since, the FCC has been responsible for allocating all frequencies and making sure that one industry or station does not interfere with another.
While the FCC's emphasis during its first few decades was on securing the existence of communication services, since the mid-1970s, as the public has become more antagonistic toward "big government," the agency has initiated more deregulation than regulation. After various pieces of legislation in the 1980s and early 1990s, and some deregulation by the agency itself during this period, Congress passed the Telecommunications Act of 1996, the most significant piece of communications legislation since the Act of 1934. By lifting various limitations, such as cross and multiple ownership restrictions, the act opened all telecommunications markets to competition. While the Commission argues that competition will benefit the public, as more service providers and cheaper prices become available, consumer advocates maintain that it will only lead to mergers of communication corporations, creating media empires that will drive prices up and service quality down.
The FCC faces a far more difficult job than other independent regulatory agencies, for it must regulate an industry as well as its content. The First Amendment guarantees freedom of speech, and Title III of the Communications Act prohibits censorship by the FCC, yet the Commission and the courts have made it clear that speech may be limited when it does not serve the law's "public interest" requirement. "It was not that the speech of broadcasters was to be protected, as much as it was the right of the radio audience to be protected from certain forms of speech" (Creech, p. 68). This protection mainly refers to the broadcasting of obscene and indecent material; the former is completely prohibited, while the latter is only regulated.
Concerned about children's exposure to violent programming, Congress passed the Telecommunications Act of 1996, which required all TV sets with screens larger than 13 inches to be equipped with V-chip technology. When the chip is used with a voluntary TV rating system created by the television industry, this technology allows parents to program their TV sets to block programs that carry any sexual, violent, or other material they believe may be inappropriate for their children. A similar attempt to block such materials over the Internet was found to be unconstitutional in ACLU v. Reno (1996), when the court argued that the Internet deserves the broadest constitutional protection because it more closely resembles newspapers than a limited-spectrum broadcast.
Limitations placed on multiple ownership to promote diversity of ideas were relaxed in 1985 and significantly changed in 1992, as Congress favored promoting the availability of diverse views and information through the marketplace. Yet, even in an era of multiple ownership, stations must serve the needs of their own communities by covering local issues. While the FCC provided some guidance as to what it saw as adequate public service (in its 1960 Blue Book), it was always up to individual stations to determine how they could best serve their communities.
As part of that public service, the Communications Act forced any station allocated airtime to any political candidate to afford other candidates equal opportunities. Later, in Red Lion Broadcasting Co. v. FCC. (1969), the Supreme Court affirmed the "fairness doctrine," arguing that the right of the people to a marketplace of ideas has precedence over the rights of broadcasters. By 1985, however, in its Fairness Report, the Commission argued that diversity of opinion was being served by the multiplicity of voices in the marketplace. Following some criticism from the courts, the FCC abolished the doctrine in 1987.
It was Supreme Court justice Felix Frankfurter who argued in National Broadcasting Co. v. U.S. (1943) that Congress's lack of technical knowledge required it to delegate some of its legislative powers to the FCC. Today, as media content breaks its traditional borders (TV and radio broadcasting over the web, cell phones providing web content, digital radio transmissions via satellite) and as demand for more information and stations reaches new levels, Congress continues to lack the ability to keep up with technical advancements. Whether the FCC will be able to fill this void without being transformed into a semi-legislature for all communication issues remains to be seen.
Creech, Kenneth C. Electronic Media Law and Regulation. 3d ed. Boston: Focal, 2000.
Federal Communications Commission. FCC Handbook. Available from http://www.fcc.gov/cgb/.
Federal Communications Commission. The Public and Broadcasting. Available from http://www.fcc.gov/mb/.
Messere, Fritz. "Regulation." In Encyclopedia of Radio. Edited by Christopher H. Sterling. Chicago: Fitzroy Dearborn, 2002.
Napoli, Philip. Foundations of Communication Policy: Principles and Process in the Regulation of Electronic Media. Creskill, N.J.: Hampton, 2001.
Federal Communications Commission
FEDERAL COMMUNICATIONS COMMISSION
Fox Television Stations, Inc. v. Federal Communications Commission
The Federal Communications Commission (FCC) has the authority to police the use of obscene, indecent, and profane language on broadcast television and radio programming. In the past, the FCC has used this authority sparingly, rarely sanctioning networks or local stations for the utterance of common swear words. This restrained enforcement policy changed in 2003 when the rock star Bono uttered the F-word at the Golden Globes Award Show broadcast by NBC. The FCC shifted its policy, declaring that any use of the F-word was indecent, no matter how fleeting or in a non-sexual context. In addition, the commission held that the use of the word was profane. Broadcasters were put on notice that any broadcast of the F-word would subject them to monetary penalties. The FCC also suggested that broadcasters implement a delay technology that would give them the time to “bleep” out indecent and profane words from live broadcasts. In 2006 the FCC backed its new position by ruling that several live broadcast utterances of the F-word or the S-word violated this policy. The FCC declined to assess monetary penalties because the broadcasts occurred before the Golden Globes decision, but its shift in policy alarmed broadcasters. The FOX, CBS, NBC, and ABC television networks appealed the FCC order, contending the new policy was arbitrary and capricious and that it raised First Amendment censorship issues.
In a 2–1 decision, a three-judge panel of the Second Circuit Court of Appeals agreed with the television networks that the policy change was arbitrary and capricious. Fox Television Stations, Inc. v. Federal Communications Commission, 489 F.3d 444 (2d Cir. 2007) It declined to rule on the First Amendment issue because the first ground was sufficient to settle the matter. Judge Rosemary Pooler, writing for the majority, reviewed the FCC's history of policing indecent speech. Pooler noted that the FCC had not aggressively pursued isolated utterances of obscenity and profanity . Instead, it concentrated on material that was explicitly sexual or excretory and was patently offensive as measured by contemporary community standards.
The FCC's Golden Globe decision illustrated the abrupt shift in policy. The FCC's Enforcement Bureau denied complaints filed about Bono's offensive language because the word, viewed in context, did not describe sexual or excretory organs or activities and the utterance was fleeting and isolated. The FCC, in overruling its Enforcement Bureau, held that any use of any variant of the F-word inherently had sexual connotations and therefore fell within the FCC's indecency definition. The commission also stated that the use of the F-word was patently offensive under contemporary community standards and that the isolated or fleeting use of the word was irrelevant. In doing so, the FCC overruled all prior decisions in which the fleeting use of an expletive was held not to be indecent. In addition, the commission found that the use of the F-word was profane. Prior decisions had interpreted “profane” to mean blasphemy but the current members saw no basis for limiting the definition to this meaning.
Turning to the 2006 decision by the FCC, Judge Pooler pointed out that the utterances in dispute took place on two awards shows and a morning news show. The application of the commission's new “fleeting expletive” policy had to be considered in light of its previous policy and the reasons justifying the new one. The court set aside the policy because it was arbitrary and capricious. Judge Pooler acknowledged that administrative agencies should be accorded great deference in managing their responsibilities but they when they make policies there must be a “rational connection between the facts found and the choice made.” The networks contended that the FCC had acted arbitrarily because it made a complete about-face on its treatment of “fleeting expletives” without providing a reasoned explanation that justified its action.
The court agreed, finding no compelling reasons to justify the change. The FCC's primary reason for the crackdown was a so-called “first blow” theory. Because the airwaves entered the privacy of the home uninvited and without warning, allowing isolated or fleeting expletives “unfairly forces viewers (including children) to take “the first blow.” Judge Pooler rejected this as a “reasoned basis” for overturning the prior policy for several reasons. First, the FCC did not provide a reasonable explanation for why it had changed its perception, after 30 years, that a fleeting expletive was not a harmful “first blow.” Moreover, the first blow theory had no rational connection to the commission's actual policy toward fleeting expletives. The FCC had ruled that it would excuse an expletive if it occurred during a “bona fide news interview,” and it had told the court during oral argument that the news exception was a broad one. For example, a broadcast of the oral argument, where the offending expletives were spoken in open court , would be permissible. In addition, the FCC had permitted the airing of the film “Saving Private Ryan,” which had numerous expletives, because censoring the words would have detracted from the power and realism of this artistic work. These scenarios would not have prevented viewers, including children, from taking the “first blow” caused by the expletives. Therefore, this theory could not justify the change in policy.
Judge Pooler also found even less analysis to support for the change in the definition of profanity . The FCC had not set forth any independent reasons to expand the definition of profane speech. It merely stated that its prior precedent did not prevent it from setting a new definition. In addition, the commission could not explain why the change was necessary, as prior to 2004 it had never attempted to regulate profane speech. To the court there appeared no reason why profane language couldn't be addressed through the commission's indecency and obscenity enforcement.
In early 2008 the Supreme Court agreed to hear the FCC's appeal of this decision, with oral argument taking place in its 2008–2009 term.
FCC Changes Media Ownership Rules
The Federal Communications Commission (FCC) has the administrative authority to set rules on media ownership in the United States. Until the 1990s there had been consensus within the FCC and Congress to prevent large media companies from controlling television stations, radio stations, and newspapers in large cities. From a public policy perspective, consolidated ownership would rob localities of a diversity of information choices. However, in the 1990s, as the Internet grew and newspapers saw advertising revenues begin to decline, the major media companies began lobbying for a change in media ownership rules. They argued that economic realities required such changes. The FCC changed its ownership rules in 2003 but they were eventually tossed out by a federal appeals court in 2005. In December 2007 the commission again enacted rules to allow broadcasters in the 20 largest U.S. cities to also own a newspaper. Members of Congress have objected to the changes and have introduced legislation to overturn the new rules.
The Telecommunications Act of 1996 made major changes in mass media regulation. It sought to increase competition in local, long distance, can cable TV markets. The act repealed cross-ownership rules for telephone/cable, cable/broadcast, and cable/network. It also increased the percentage of households that a single broadcaster could reach from 25 to 35 per cent. Another provision required the FCC to review media ownership rules every two years to determine whether they were “necessary in the public interest as a result of competition. When GeorgeW. Bush became president in 2001 he appointed several FCC commissioners, including Chairman Michael Powell. Powell advocated greater competition and used the mandated biennial review to put forward regulations that would relax restrictions on media ownership.
In June 2003 the FCC approved, on a 3–2 vote, three major changes. First, a single media company would be permitted to own TV stations that reached 45 per cent of U.S. households, an increase of 10 percent. Second, the FCC lifted the ban on a single company owning both a broadcast outlet and a newspaper in the same market. This change affected all but the smallest markets, which were defined as having less than nine TV stations. Third, the rules allowed companies to own more than one TV station. In markets where there were at least five stations, a company could own two stations; a company could own three TV stations where there were 18 or more stations. There was substantial opposition to the rules in Congress but it was the Third Circuit Court of Appeals that decided their fate. In 2004 the appeals court overturned the rules, finding that the FCC had not “sufficiently justified its particular chose numerical limits for local television ownership, local radio ownership, or cross-ownership of media within local markets.”
The Republican majority on the FCC then began a new rulemaking process. In 2005, Commissioner Kevin J. Martin succeeded Michael Powell as chair of the commission and conducted public hearings around the U.S. concerning media ownership rules. However, Martin was criticized by the two Democratic commissioners for allegedly calling public hearings without adequate notice and rushing the review process. The matter was finally brought to the FCC for a vote on December 18, 2007, where Martin's proposal won approval on a 3–2 vote.
The new proposal eliminated the national audience cap on television broadcasters that proved very controversial in the 2003 rules, leaving the other two 2003 changes for consideration. At the commission meeting, Martin noted the steady decline in revenue for newspaper companies and argued that the new proposal “strikes a balance” between a changing media marketplace and the preservation of competition and diversity in broadcasting. The FCC approved a rule that permits a media company to own a newspaper in one of the 20 largest media markets if, after the transaction, at least eight independently-owned-and-operated television stations remained. The FCC also granted permanent waivers 42 newspaper-broadcast combinations in large and small markets that had been given temporary waivers as they awaited the commission's decision. The commission also approved the local television multiple ownership limits that were part of the 2003 rules.
Some members of Congress denounced the changes. On March 5, 2008, Senator Byron Dorgan, Democrat of North Dakota, introduced a “resolution of disapproval” that would invalidate the commission's vote. Dorgan argued that the FCC had succumbed to “corporate interests” and that without a congressional vote blocking the changes, the nation would see even more concentration of media ownership by a few large corporations. On May 15 the Senate approved the resolution, while a companion bill awaited a hearing in the House of Representatives. The resolution must be approved within 60 legislative days or else the rules go into effect. However, commentators pointed out that even if the resolution passes, President Bush could veto it.
Federal Communications Commission
Federal Communications Commission
Global Crossing Telecommunications, Inc. v. Metrophones Telecommunications, Inc.
The Federal Communications Commission (FCC) regulates long-distance telephone carriers through statutes and its own regulations. In 1990 Congress directed the FCC to establish a per call compensation plan to compensate payphone operators when callers use a payphone to obtain access to a carrier's lines by using a calling card with a 1-800 number and an access code. When a carrier failed to pay a payphone operator, the operator sued the carrier for violations of FCC regulations. The Supreme Court, in Global Crossing Telecommunications, Inc. v. Metrophones Telecommunications, Inc., ___ U.S.__, 127 S.Ct. 1513, __L.Ed.2d __ (2007), rejected the carrier's claims that no such private right of action existed for violations of FCC regulations.
Prior to 1990 a payphone operator had great control over the placing of long-distance calls using its phones. The operator could require the caller to use a long-distance carrier favored by the operator while blocking access to the caller's preferred carrier. In 1990 Congress enacted the Telephone Operator Consumers Services Improvement Act, 47 U.S.C.A. §226. The act required payphone operators to allow users "free" access to the carrier of his or her choice. This meant that a long-distance call could be made without the depositing coins. In return, Congress directed the FCC to impose regulations that would pay the payphone operators a fee for each of these "free" calls. The FCC drafted regulations that directed long-distance carriers to reimburse payphone operators $0.24 per call; this amount could be passed on to the long-distance carrier's customers. If a carrier refused to compensate a payphone operator this refusal constituted an "unreasonable practice" under the terms of the Communications Act of 1934, 47 U.S.C.A. §201(b). Such a determination would allow a private party, the payphone operator, to bring a federal lawsuit under §207 of the act to collect the compensation owed.
In 2003, Metrophones Telecommunications, Inc., a payphone operator, filed a civil action in federal district court, alleging that Global Crossing Telecommunications, Inc., a long-distance carrier, had failed to pay $30,000 in "free calls" reimbursements. Metrophones argued that the failure to pay was an unreasonable practice under §201(b), thereby permitting it to sue under §207. The federal district court agreed and this decision was upheld by the Ninth Circuit Court of Appeals.
The Supreme Court, in a 7-2 decision, affirmed the Ninth Circuit ruling. Justice Stephen Breyer, writing for the majority, found that the clear purpose of §207 was to allow persons injured by §201(b) violations to bring an action for damages in federal court. The question in this case was whether the FCC regulation lawfully implemented §201(b)'s "unreasonable practice" prohibition. The Court concluded that that FCC's unreasonable practice determination was a reasonable one. Using ordinary English, the refusal to pay FCC-ordered compensation despite having received a benefit from the payphone operator was clearly unreasonable. The payphone operator provided an "integral part of the total long-distance service" and the carrier's refusal to pay, despite the FCC regulation, was a "practice" that was "unreasonable."
Global Crossing had argued that §207 only authorizes actions for statutory violations and not for regulations imposed to carry out statutory objectives. Justice Breyer rejected this claim, for the lawsuit sought damages for a statutory violation, "namely, a violation of §201(b)'s prohibition of an "unreasonable practice."
Justice Antonin Scalia, in a dissenting opinion, claimed that the decision "conflicts with the Communications Act's carefully delineated remedial scheme." He saw a difference between private actions to enforce interpretive regulations, which construe a statute by itself, with private actions to enforce substantive regulations. Substantive regulations were promulgated "pursuant to an express delegation of authority to impose freestanding legal obligations beyond those created by the statute itself." In his view substantive regulations could not trigger a §207 lawsuit.
Justice Clarence Thomas, in a separate dissenting opinion, argued that the FCC had contradicted provisions of the Communications Act when it imposed the compensation plan and the consequences for non-payment by long-distance carriers. The law was intended to deal with practices that harm carrier customers, not carrier suppliers.
Federal Communications Commission
Federal Communications Commission
Created by the Communications Act of 1934, the Federal Communications Commission (FCC) is an independent agency in charge of regulating interstate and foreign communications by radio, television, satellite, wire, and cable. It is responsible for the development and operation of broadcast services and must provide rapid and efficient telephone and telegraph service at reasonable rates throughout the world. In the event of a national emergency, the FCC coordinates licensed communications services to help keep the public informed.
Five commissioners sit on the FCC, each appointed to a five-year term by the U.S. president with the consent of the Senate. One of these commissioners is appointed chairman. There are seven operating bureaus and ten staff offices.
When the FCC was established, it had a budget of just over $1 million and 442 staff members. The estimated budget for 2008 was $313 million, and the staff numbered around 2,000.
FCC is everywhere
It is common knowledge that the FCC regulates interstate and international communications. But the commission plays a more active role in daily life than most Americans may realize. For example, most electrical and electronic equipment emit radio frequencies that the FCC must protect. Every time a person sets a home security alarm, opens the garage door with a remote control, or heats food in a microwave, he or she is being protected by FCC rules.
Where once the FCC's focus was primarily on radio and television, much of the commission's work in the twenty-first century involves the Internet. One of the newest technologies is broadband, which integrates several digital services such as cable, satellite, wireless, phone lines, and power lines to bring Internet users the fastest speeds available. The FCC has worked closely with those industries involved in the evolving technology of broadband, and by the middle of the first decade of the twenty-first century, 45 percent of American households that accessed the Internet did so via broadband. All of the rules and regulations of Internet use are presided over and enforced by the FCC.
There have been times when the FCC has been accused of censorship, and decisions of the FCC can be appealed to the courts. With responsibilities and power that extend to such vast and various segments of daily life, it is inevitable that the FCC will be challenged. Very few individuals or businesses have ever won an appeal against the FCC.