Cal Poly COM 360: FCC Rules

Broadcasting The transmission of radio / television

signal for intended reception by the general public (over the air / not through terrestrial cable)

Point-to-point communication: intended for a select number of identified receivers

The primary justification for broadcast regulation:

The scarcity rationale: Radio spectrum is limited

Thus: The government decides the rules for access and the rules for operations

BUT: Is the radio spectrum really limited?

Broadcast Regulation 1912 Radio Act: required radio operators to be licensed 1927 Radio Act: a comprehensive set of rules

aimed at creating order in broadcasting 1934 Federal Communications Act: remains the

base for all telecommunications regulations; created the Federal Communication Commission

1996 Telecommunications Act: revised licensing/ownership rules; added rules for new technologies (wireless, internet)

Federal Communication Commission

MISSION STATEMENT:

"make available so far as possible,

to all the people of the United States,

without discrimination on the basis of race, color, religion,

national origin, or sex,

rapid, efficient, Nation-wide, and world-wide wire and radio

communication services with adequate facilities at

reasonable charges."

Federal Communication Commission

has jurisdiction over all forms of electronic communication (radio, tv, telephone).

should carry its powers for public convenience and interest

shall not interfere with the right of free speech

Challenges to FCC powers:

NBC v United States (1943): The Court ruled that the FCC supervises the traffic and also can determine the composition of the traffic?

Red Lion Broadcasting v FCC (1969): the Court upheld two fairness doctrine-based restrictions

Regulations

Technical standards Licensing Content

The FCC has a wide range of sanctions against those who violate regulations:

Letter of reprimand Cease and desist order Forfeiture or fine Short-term renewal Non-renewal or revocation of license

Licensing: a prospective licensee must meet these qualifications:

The applicant must be a citizen of the United States or have less than 25% foreign ownership

The applicant must have sufficient funds to build and operate the station for at least three months without earning any advertising revenue

The applicant must either possess or hire people who possess the technical qualifications to operate a broadcast station

The applicant must be honest and open in dealing with the commission and must have good character

Licensing When two or more persons seek the same license,

the FCC uses an auction process to select who will receive the license

License RenewalCongress has instructed the FCC to renew a broadcaster’s license every eight years as long as:

The station has served the public interest, convenience and necessity

The licensee has not committed any serious violation of the Communication Act or FCC rules

The licensee has not committed any other violations that, taken together, would constitute a pattern of abuse

License Renewal Members of the public can challenge a broadcast

license renewal

Public participation in the renewal process, however, is rare

Recent rule changes make it harder for citizens to mount an effective license challenge

Multiple Ownership Rules A single company or individual may own

television stations whose signals reach no more than 45 percent of the total national viewing audience

There is no limit on the number of radio stations any single licensee can own

Ownership of both radio and television stations in a single market is limited, based on the number of stations in the market

Multiple Ownership Rules

Cross-ownership rules – the ownership of TV and radio stations and newspapers in the same market

Guided by the number of media properties in a market

Top Network TV companies by viewership

Comcast* 14,190,800 Disney 12,606,700 CBS 8,840,100 PBS 1,100,000

*Comcast includes NBC Network

Top Cable News TV companies by viewership

News Corporation 1,910,000 Time Warner 1,040,000 Comcast* 1,001,000

*Comcast includes NBC Network

Top Local TV companies(by combined station reach)

News Corporation 25% CBS 25% Univision 23% Tribune Company* 22% Disney 21%

*owns the L.A. Times and KTLA TV

Top Radio Companies(by radio audiences)

Clear Channel 160,099,000 CBS 82,178,500 Cumulus Media Inc. 46,266,900 National Public Radio* 27,200,000 Entercom 23,330,200

*NPR produces / distributes radio programming, but is not a radio station itself nor does it own any radio stations.

Top Online News CompaniesMonthly Unique Visitors for All News Sites

Yahoo 39,042,000 Time Warner 34,617,000 Comcast 29,438,000 Gannett 26,400,000 AOL 22,578,000

Electronic Media ContentChapter 10

Federal Communication Commission regulates:

Access to broadcast time Limits on commercials Children programming ‘Indecent’ material

Political broadcasting:Equal Opportunities Rule (equal time)

If a broadcasting station permits one legally qualified candidate for any elective public office to use its facilities, it must afford an equal opportunity for all other legally qualified candidates for the same office

Once a political campaign begins, the broadcasters must give reasonable good faith attention to access requests from ‘legally qualified’ candidates

A legally qualified candidate Any person:

Who publicly announces he or she is a candidate for nomination or election, and

Who meets the qualifications prescribed by law for that office (e.g., age, residency), and

Who qualifies for a place on the ballot, and Who was duly nominated by a political party

The use of a broadcast facility

Any presentation or appearance that features a candidate’s voice or image

For example: Appearances in televised feature films, TV entertainment programs, non-news interviews

Appearances Not Covered By the Rule

Appearance in a bona fide newscast Appearance in a bona fide news interview

show Appearance in the sport news coverage of a

bona fide news event Incidental appearance in a news

documentary

Bona Fide News Interview(in good faith)

A program must be regularly scheduled The content, format, and participants must be

determined by the licensee The determination that programming is a bona

fide news interview must have been made by the station “in exercise of its bona fide news judgment”

An equal opportunity

Equal time Equal facilities Comparable costs

See also Zapple Doctrine: the rules apply to supporters of candidates

Candidate Access Rule Broadcasters must allow candidates for federal

office access to or the purchase of airtime Once a political campaign begins, the broadcasters must

give reasonable good faith attention to access requests from ‘legally qualified’ candidates

Advertising Rates: 45/60 days before elections candidates cannot be charged more than the lowest commercial rate

The Fairness Doctrine (abandoned in 1987, 2000)

The Doctrine required that all broadcasters 1. Devote a reasonable amount of their

programming to controversial issues of public importance

2. Provide contrasting viewpoints on those issues 3. Offer a reasonable opportunity to respond to

personal attacks 4. Offer an opportunity to candidates who were

not endorsed by a station to respond

Remaining Fairness Enforcement

Generally, the FCC rejects all complaints that television news coverage was slanted or staged or makes it difficult for those who seek to prove biased coverage to receive a remedy

BUT: Serafyn v. FCC (Federal Court of Appeals, 1998)

Serafyn v. FCC (Federal Court of Appeals, 1998)

Alexander Serafyn petitioned the FCC in October 1995 to deny the CBS application to acquire WGPR in Detroit.

He argued that CBS 60 Minutes’ segment "The Ugly Face of Freedom," was incorrect, slanted, and insulting by giving the impression that all Ukrainians are anti-Semitic

The FCC rejected his petition. Serafyn appealed to the court.

Serafyn v. FCC (Federal Court of Appeals, 1998)

Judge Douglas Ginsburg wrote for the appeals court that the FCC acted arbitrarily in not analyzing more precisely the evidence Serafyn gave that a news segment was distorted.

The evidence was at least sufficient to present a substantial question of fact and the agency did not sufficiently justify the decision not to set a hearing for the license renewal.

Violence on Television

In 1996, Congress mandated that all manufacturers of television sets include a V-Chip to block out violent programming

Along with the chip, Congress imposed a program rating system

Violence on Television Television Ratings System:

TV – Y approved for all children TV – Y7 approved for children 7 and over TV – G suitable for all ages TV – PG parental guidance TV – 14 parent strongly cautioned TV – MA mature audiences only

Violence on Television Television Ratings System:

A second tier of ratings summarizes content:

V – violence S – sexual situations L – coarse language D – suggestive dialogue FV – fantasy violence

The FCC and the First Amendment

In CBS v. National Democratic Committee (1973), the U.S.Supreme Court gave broadcasters the right to determine whether to air specific editorial advertising

The FCC and the First Amendment

In FCC v. League of Women Voters (1984), the U.S. Supreme Court struck down a statute that forbade public broadcasting stations from telecasting editorial opinions

Cable Television Regulation

Must Carry Rules - cable television systems must carry local television programming channels

In Turner Broadcasting System, Inc. v. FCC (1994), the U.S. Supreme Court ruled must carry rules were constitutional

Cable Television Regulation

Under the 1992 Cable Television Consumer Protection and Competition Act:

Local governments are given the primary responsibility to regulate cable systems in their communities

Local governments may issue franchises, collect franchise fees, and renew franchises

Includes provisions to protect subscribers’ right to privacy

Regulation of Children’s Programming

Restrictions on Programming Targeting Children: Only 10.5 advertising minutes are permitted

each hour on weekends, 12 minutes each hour or weekdays

At least three hours of “educational” children’s programming must air each week

Regulation of Children’s Programming

Restrictions on Programming Targeting Children:

There must be a buffer between commercials and program content (“We’ll be right back…)

A program may not mention an item advertised in a commercial for the same show

Regulation of Indecent Material: Seven Dirty words

George Carlin Seven Dirty Words…. On1973's Occupation: Foole album Carlin performed a

routine titled "Filthy Words." Pacifica station WBAI-FM broadcast the routine uncensored.

Morality in Media organization complained to the FCC that the material was inappropriate for the time of day.

FCC v. Pacifica Foundation, (1978)

The FCC upheld the complaint. Pacifica appealed this decision. The U.S. Court of Appeals overturned FCC’s

decision. The FCC appealed to the Supreme Court. The Supreme Court ruled in favor of FCC, but did

not define the scope of “indecency”

FCC v. Pacifica Foundation, (1978)

The Court upheld the FCC action by a vote of 5 to 4 The government has interest in: 1) shielding children from potentially offensive material 2) ensuring that unwanted speech does not enter one's

home. The FCC had the authority to prohibit such broadcasts

during hours when children were likely to be among the audience

It gave the FCC broad leeway to determine what constituted indecency in different contexts.

Indecent: Definitional problems

Indecent: offending against decency; unsuitable

Decency: correct, honorable, or modest behavior

Special legal meaning: a class of speech that is restricted on the broadcast airwaves, even though is not necessarily obscene and would be legally allowable in other avenues of expression.

Regulation of Indecent Material

In 2001, the FCC issued a comprehensive statement outlining its policy on indecent broadcasts. Indecency is:

Language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs

$550,000 Moment (FCC Fine)

The FCC determined that

the incident was of an “overall sexually provocative nature” and an indecency violation.

The FCC had fined CBS a total of $550,000, or $27,500 for each CBS owned-and-operated station.

BUT: A unanimous 3rd Circuit Court of Appeals in Philadelphia ruled that

Janet Jackson’s wardrobe malfunction on the 2004 Super Bowl halftime show didn’t violate TV indecency standards

FCC v. Fox Television Stations (2012)

The Supreme Court ruled against the FCC's policy regulating curse words and nudity on broadcast television.

In an 8-0 decision, the high court threw out fines and sanctions imposed by the Federal Communications Commission. The case involved some uncensored curse words and brief nudity on various networks.

FCC v. Fox Television Stations (2012)

The court said the FCC is "free to modify its current indecency policy" in light of the ruling.

The justices, though, declined to issue a broad ruling on the constitutionality of the FCC indecency policy.