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Broadcasting, Cable, and Access Theory
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by Jaime Corteyou
I. History of Broadcasting A. Guglielmo Marconi invented wireless telegraphy in 1894. B. Because frequencies are scarce, they need to be allocated. i. International Telecommunications Union (ITU) - worldwide regulations ii. United States – Wireless Ship Act of 1910 - All American passenger vessels must carry transmitters. iii. First International Radio Treaty 1912 iv. Radio Act 1. U.S. Act to meet the international treaty in Aug. 1912 2. Required broadcasters to obtain a license from the Secretary of Commerce 3. 1926 – IL Federal District Court ruled that the Sec. of Commerce had no authority to restrict v. Federal Radio Act of 1927 1. Response to the chaos from lack of restrictions 2. The Federal Radio Commission was formed. vi. Communication Act of 1934 1. Airwaves belong to the people. 2. FRC to the FCC (Federal Communications Commission) vii. Telecommunications Act of 1996 - addresses deregulation, cable transmission of programming, and Internet communication. II. The Federal Communications Commission (FCC) A. The FCC is an independent government regulatory agency. i. Five commissioners, appointed by the president and confirmed by the Senate, are in office for five years. ii. The commissioners cannot be made up of more than three representatives of one party or have a financial interest in the broadcasting industry. B. Challenging an FCC decision i. The complaint is first heard by an administrative law judge. ii. The decision of the judge is appealed to the FCC review board. iii. The Commissioners choose whether or not to hear the complaint. iv. If the issue is still not resolved, the Federal Circuit Court of Appeals will hear the grievance, then to the USSC if necessary. C. Six Bureaus of the FCC i. The Cable Services Bureau 1. Develops and administers policies and programs the regulation of cable t.v. systems 2. Investigates complaints from public 3. Conducts studies for policy and rule changes 4. Complies data concerning the cable industry ii. The Common Carrier Bureau 1. Regulates the interstate common carrier communications (telephone) 2. This regulation also includes wire, electrical, or optical cable. iii. The Compliance and Information Bureau 1. Assures compliance with communications law 2. Provides information to commission for decisions affecting telecommunications policy) iv. The International Bureau 1. Manages international policies 2. Represents FCC at international meetings v. The Mass Media Bureau 1. Licenses and supervises radio and television stations (To play Eminem, or to not play Eminem) 2. Administers federal law and FCC regulations concerning low-power and instructional television vi. The Wireless Telecommunications Bureau 1. Administers domestic commercial and private wireless programs and policies 2. Supervises cellular, paging, mobile radio, amateur, and marine broadcasting 3. Administers FCC’s spectrum auctions III. Licensing A. How-To-Start Broadcasting (in four not-so-easy steps) i. Purchase an existing station or find unused frequency for a new radio or television station ii. If new, apply to the Mass Media Bureau (FCC) for a construction permit. 1. Specify community and frequency 2. Show evidence of citizenship, good character, and adequate finances 3. Once construction is finished, license to operate generally follows routinely. iii. Meet challenges from your opposition 1. Rival applicant who wants the same opportunity 2. Established broadcaster who is concerned with interference iv. The FCC checks to see if demands are met and then grants a license. B. License Expiration i. Stations are licensed a maximum of eight years. ii. Once the license has expired, the station can apply for renewal. iii. Telecommunications Act of 1996 allows existing stations to automatically renew, regardless of competing applications, if the station has served the public and not violated any rules or laws. iv. If the station has violated a rule or law, the FCC may renew the license with limitations. C. Violations i. Letter of warning or reprimand ii. Forfeiture (fine) iii. Short-term license renewal 1. Renewed for less than eight years 2. The station is expected to ‘fix’ the problem. iv. Revocation or non-renewal of a license IV. Broadcasting and the First Amendment A. Licensing and Ownership i. Originally intended to prevent chaos and prevent monopolies ii. 1943 National Broadcasting Co. v. U.S. 1. Began in 1941 2. FCC issued regulations concerning the power of networks over local stations 3. Justice Felix Frankfurter ruled that the regulations were legal and requiring a license was constitutional. iii. Anti-monopoly Rules 1. An individual or group cannot own more than one station in the same community. 2. “7-7-7 rule” - An individual or group cannot own more than seven AM radio, seven FM radio, and seven television stations. 3. The rule was expanded to 12 of each between 1984 and 1994. 4. In 1994 it was expanded to 20. 5. The Telecommunications Act of 1996 removed many anti-monopoly restrictions. The remaining are: a. Radio – an individual or group may own an unlimited number of stations but has limits in individual markets. b. Television – an individual or group can have unlimited stations but cannot reach more than 35% of all households. c. Multiple Media Outlets and Networks i. Large companies (NBC, ABC) cannot own more than one network. ii. Broadcast networks can own cable systems. iii. Cable companies can own television stations. B. Balance and Access i. FCC’s Fairness Rules 1. 1941 Mayflower Doctrine a. Radio stations were not allowed to editorialize. b. Stations must address all sides of public issues. c. June 1949 – Mayflower Doctrine was thrown out 2. Fairness Doctrine 1949 a. Editorials were permitted if other views were also portrayed. b. Candidates or others who were likely to be attacked on air reserved a “right of reply.”
c. Stations are not required to accept editorial advertising. But if accepted, they must be fair. 3. Red Lion Broadcasting Co. v. FCC 1969 a. USSC upheld the Fairness Doctrine. b. Justice White said the doctrine promotes the freedom of speech.
4. The broadcast industry is against the Fairness Doctrine - it inhibits views because stations avoid topics. a. The doctrine was found to have a negative impact on broadcasting (less discussion of issues).
By 1987 the FCC no longer required stations to balance public issues but kept the personal attack rules .
1. Equal (Campaign) Opportunity Law a. 1959 – short radio or television news clips required stations to offer reply time on an equal basis to opposing candidates b. Four types are not considered political campaigning (Bona fine newscasts, news interviews, news events, and incidental appearances). 2. “Great Debates Law” 1960 a. FCC allowed coverage of presidential and vice presidential debates – John Kennedy vs. Richard Nixon b. Experimented with this for one year 3. 1975 Debates could be broadcast by a nonpartisan group. a. League of Women Voters sponsored Gerald Ford and Jimmy Carter 1976 b. LWV - Jimmy Carter and Ronald Reagan 1980 4. 1984 Stations could sponsor debates. a. Debates must be presented as news events. b. The hope for this amendment was to encourage more debates. 5. 1992 Arkansas Educational Television Commission (AETC) v. Forbes a. SCOTUS (Justice Kennedy) said a television station could exclude candidates. b. If the forum was nonpublic and the exclusion was not based on political views. 6. Federal Election Campaign Act of 1971 a. Previously the FCC could revoke a license for failure to allow candidates equal response time. c. This amendment was limited to federal elections and does not mandate free time. 7. Oct. 1979 - Three networks refused the Carter-Mondale Presidential Committee's ad request. a. Networks declared October ‘79 too early to begin 1980 campaign. b. FCC agreed with complaint. c. SCOTUS affirmed ruling (July 1981). d. Chief Justice Burger said that courts approved limited right of access to broadcast media. C. Censorship i. Constraints on Program Content 1. Broadcast can freely publish with the exception of the improper, mischievous, or illegal. 2. Communication Act of 1934, Sec. 326 - This act claimed to not censor but banned “obscene, indecent, or profane” language and information on lotteries. a. Lottery Information i. Moved from Communications Act of 1934 to the U.S. Criminal Code in 1948 ii. Violators can be fined up to $1000 or serve imprisonment up to one year. iii. 1988 – State lotteries and gambling activities on Indian reservations were allowed. iv. 1999 – New Orleans broadcasters wanted to run advertisements for private casinos. 1. SCOTUS sided with the casinos. 2. Recommended that legislation be rewritten. b. Objectionable Programming i. Moved from Communications Act of 1934 to the U.S. Criminal Code in 1948 ii. Violators can be fined up to $10,000 or serve imprisonment up to two years. iii. Telecommunications Act of 1996 – increased fine to $500,000 iv. 1978 FCC v. Pacifica Foundation 1. George Carlin’s “Filthy Words” played (uncensored) on the radio during daytime programming. 2. Justice John Paul Stevens upheld legislation. 3. The station received a warning but no fine. v. Indecent is defined as material that depicts or describes in terms patently offensive as measured by the contemporary community. vi. “Guilt” for Indecency depended on: 1. Time of day 2. Content of Program (who is the audience) 3. Medium (radio, television, etc.) vii. Public Broadcast Funding Bill of 1992 1. U.S. Circuit Court of Appeals for the District of Columbia says FCC’s prohibition on indecency violated the First Amendment (1991). 2. Congress implements a “safe harbor” of midnight – 6am. 3. Moved back to 10pm 4. Expanded to include violent and sexually explicit television programs viii. Telecommunications Act of 1996 1. Required televisions 13 inches and larger to have V-chips by January 1, 2000 2. Allows viewers to program television to block shows with an objectionable rating
3.
All broadcast television programs must
be rated. Networks assign letter labels or age restrictions. Campaign Finance Regulation
1. In Buckley v Valeo (1976) SCOTUS
CABLE by MOLLY LARCOMBE I. Cablea. First commercial cable television systems began operation in the late 1940s and early 1950s. b. The FCC left the industry untouched for 12 years but then in 1962 entered the market to establish governing rules. The reason for entering the cable market was not to censor programming but to restrict the industry in order to protect existing television stations c. However in 1970 the FCC saw that the cable industry was doing little if any damage to establish broadcasters. The tight regulations that were once upon the cable industry had begun to become removed. d. Between 1984 and 1996, congress passed three major bills governing cable-the Cable Communications Policy Act of 1984, the Cable Television Consumer Protection and Competition Act of 1992, and the Telecommunications Act of 1996. e. The Cable Communication Policy of 1984 included a legal framework for local government and FCC supervision with an orderly process for cable ownership and rate setting. II. Controls on Cable Contenta. The Cable Act of 1984 set out many provisions against cable content that were originally derived from the Communications Act of 1934. Rules were placed on cable operators to not permit having lotteries and carrying cigarette advertising. Also the cable system was to ban programs that were “obscene” or “indecent”. b. The first case in which federal courts ruled on the indecency law applied to cable began in 1983 in Miami, Florida. The city has an ordinance prohibiting both “obscene” and indecent” programming over cable. The ordinance defined obscenity according to the Miller decision. Then defined indecency as “material, which is a representation or description of a human sexual or excretory organ or function which the average person, applying contemporary community standards, would find to be patently offensive.” c. The cable subscriber Ruben Cruz, challenge the “indecency” provision of the ordinance. He won his case when the court declared the “indecency provision unconstitutional. On appeal, the U.S. circuit court affirmed the decision and in doing so, set out a rationale for distinguishing between broadcasting and cable that has been influential in resolving similar disputes. d. In a second case regarding cable programming. In Utah a U.S. district court ruled that the Utah Cable Television Programming Decency Act violated the first amendment, for its prohibition on “indecency” did not meet the standards required by the Supreme Court in Miller. The district court emphasized that cable, unlike broadcasting, was not an “uninvited intrusion” into the home, for cable subscribers voluntarily requested and paid for cable service. Therefore government may not regulate “indecency” over cable in the way that it does for broadcasting. e. The Cable Television Consumer Protection and Competition Act of 1992 brought freedom of expression into the light again. The previous 1984 act did only allowed cable operator to censor program content (except for obscenity). The 1992 act included three procensorship provisions i. First-cable operators were authorized to either allow or prohibit “indecent” programs on leased access channels ii. Second-operators were given the same authority to allow or prohibit indecent programs on public access channels iii. Third- “segregate and block” required operators who decided to allow indecent programming to segregate it on a single channel and to block access to that channel unless a viewer requested access iv. 2 out of 3 of these laws were declared unconstitutional. After much consideration the courts decided to uphold only the one rule that gives cable operators the right to decide whether to transmit “indecent” programming on leased (commercial) channels. f. Telecommunications Act of 1996-More and more provisions have been added onto the cable laws in 1996, “language” was inserted into the telecommunications act which required cable operators to devote “sexually-oriented programming” between 10pm and 6am.
III. The “Must-Carry” Rulesa. In 1966 when the cable systems began to be effective competitors for local television stations, the FCC announced that cable operators “must-carry” signals fro all local television channels that were “significantly viewed” in the community. However the D.C. circuit court emphasized that the FCC had not proved that the rules were necessary and that the rule was unconstitutional. b. In 1992 with the passage of the Cable act congress entered debate yet again mandating cable systems to devote a portion of their channels to transmitting local television stations. After the district court reviews the U.S. Supreme Court granted review for the “must carry” laws c. After much deliberation the final decision of the court was that the must-carry rule served the three related governmental interest i. Preserving free television broadcasting ii. Promoting widespread dissemination of information from a variety of sources iii. Promoting fair competition in the television marketplace.
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