Rules & Regulations

Chapter 10

Broadcasting Rules & Regulations• Broadcasting has always had special requirements and

responsibilities placed on it by the government for two reasons/rationales:

• Scarcity theory: finite number of frequencies; such a valuable resource that it should not be privately owned

• Pervasive presence theory: broadcasting is available to everyone, and once a TV or radio is on, you are exposed to what is broadcast (in your home/private life)

• http://www.gpo.gov/fdsys/pkg/CFR-2009-title47-vol4/pdf/CFR-2009-title47-vol4-part73.pdf

History• 1910: Wireless Ship Act – large passenger ships

must be quipped with wireless sets• Radio Act of 1912: spurred by the Titanic

disaster, required broadcasters to seek a license, call letters were assigned (to avoid station & frequency overlap), established frequencies and hours of operation

• Radio Act of 1927: recognizes the public owns the frequencies, radio stations must operate in the public interest, gov’t cannot censor, commissioned the Federal Radio Commission

History

• Communications Act of 1934: FRC – FCC, licensing, candidates for public office must be given reasonable access to broadcast facilities, use of facilities by candidates for public office is outlined, FCC cannot censor content

• 1959: amended to prevent quiz-show rigging• 1962: Communications Satellite Act: expands

regulatory powers of the FCC

Cable Regulation

• 1950s: FCC wanted no involvement• 1960s: FCC got involved on behalf of over the air

broadcasters to hamper cable’s growth and competition

• 1970s: rules got more favorable to cable operators• 1980s: deregulation; Cable Communications Policy Act

of 1984 – allowed cable systems the freedoms to set their own rates

• Telecommunications Act of 1996: ownership deregulation, enter cross-business lines, V-chip, license renewal terms for TV and radio

Regulatory Forces

• FCC• Congress• Courts• White House• Industry Lobbyists• The Public• State & Local Governments• The Marketplace

Federal Communications Commission

• Consists of 5 commissioners, one of whom serves as chair, appointed by the president and confirmed by the Senate, for staggered 5-year terms. No more than three members can be a part of the same political party.

• Consumer and Gov’t Affairs Bureau: informs consumers about telecommunications goods and services and coordinates policy efforts with other governmental agencies

• Enforcement Bureau: upholds FCC rules and regulations

Federal Communications Commission

• International Bureau: represents the FCC in satellite and other matters that involve the US with other countries

• Wireless Telecommunications Bureau: regulates cell phones, pagers, two-way radios, and similar devices

• Wireline Competition Bureau: regulates telephone companies

• Media Bureau: oversees AM/FM radio, TV and satellite services

Congress

• Congress looks over the shoulder of the FCC• FCC does not make law, Congress does!• Can enact legislation that affects media (1969,

Cigarettes are banned in ads on radio and TV, laws regarding children’s television programming)

• Controls the FCC’s budget• All presidential appointments to FCC require

Congress approval

The Courts

• If Congress looks over one shoulder of the FCC, the courts look over the other!

• If a broadcaster, cable operator or citizen disagrees with an FCC decision, it can be appealed in federal court

• Important in determining policy; affirmed the FCC’s right to regulate indecent programming, deregulation rulings, etc.

The White House

• The president appoints members to the FCC• National Telecommunications and Information

Administration (NTIA): part of the Commerce Department, it allocates radio frequencies used by the federal gov’t, makes grants available to public telecom facilities, advises the administration on telecom matters, represents the administration’s interests before the FCC and Congress

• Initiate communications legislation

Industry Lobbyists

• Lobbyist: represents a special interest and tries to influence legislators’ voting behavior

• Each major network has their own lobbyists, as do many trade organizations (NAB)

• Can affect the passing or blocking of legislation in Congress

The Public

• Media Access Project, Parents Television Council are both grass-roots citizen organizations that have affected policy

• Put pressure on lawmakers• Parents Music Resource

Center (Video 1, 2, 3)

State and Local Governments

• Federal law supersedes state and local regulations, but many federal laws don’t cover specific issues that state and local laws might

• States usually have individual laws regarding defamation, laws covering lotteries, public broadcasting stations, privacy laws

The Marketplace

• Refers to general economic forces like supply, demand, competition and price

• FCC looks to the marketplace as a determinant of public opinion/interest

The Role of the FCC

• License Granting: new licenses are not often granted (usually transferred)

• Obtaining a license: must be a US citizen to apply, character qualifications (police record), financial and technical considerations (can you afford to run a radio station, do you have the equipment to do so?)

• Diversity of Ownership: Telecom Act of 1996 relaxed many regulations on ownership

The Role of the FCC• License Renewal: TV and Radio, every 8 years.

Broadcasters must file the renewal form, and supply documentation about station ownership, public file and complaints

• Competing applications: if your station has a poor history with the FCC and someone else applies for your license, they could get it – renewal is not automatic. Renewal expectancy means that if your station is in good standing, your license should be fine for renewal – but no guarantees.

• License denial: programming violations, lying to the FCC on applications

FCC Enforcement

• Issue a letter of reprimand that scolds a station for some practice that is not in the public interest

• Cease-and-desist order• Fines• Failing to renew a license for a full-term

(probation – 6 months – 2 years)• Refusing renewal/revoking license

FCC and Policymaking

• The FCC can enact rules governing some aspect of broadcasting and/or cable

• First, must publish a proposal in the Federal Register

• Office of Strategic Planning and Analysis – analyzes trends and attempts to anticipate future policy problems

The FCC and Cable, Satellite and the Internet

• Cable: FCC does not license cable TV systems• Franchised by local and state gov’t• Premium and pay-per-view rates are not regulated by the

FCC; basic rates are regulated by state and local gov’t• Cable Television Consumer Protection and Competition Act

of 1992: requires that cable systems must carry the signals of local broadcast stations

• Communications Satellite Act of 1962: FCC has power to regulate technical issues concerning satellite TV

• Satellite Home Viewer Improvement Act 1992: permitted satellite carriers to carry local stations, as well as provide distant stations.

• FCC does not regulate the internet or ISPs

Other Federal Laws• Communications Act, Section 315: Equal opportunities rule

mandates equal time for opposing political candidates• Children’s Television Act of 1990: put a cap on the number of

commercials allowed in children’s programming (10.5 minutes per hour on weekends, 12 minutes per hour on weekdays), TV stations must have 3 hours a week of educational programming

• Copyright: after 1978, life of the author plus 70 years, before 1978 a total of 95-120 years

• Music Licensing: Organizations provide rights to the music for use and collect and distribute royalty payments. American Society of Composers, Authors and Publishers (ASCAP), Broadcast Music Incorporated (BMI) and SESAC

• Blanket rights: Media firms pay a flat fee for music use

Copyright and the Internet• 1999: music industry files a lawsuit against Napster for

copyright infringement; Napster argued they were protected by the fair use provision. Courts ruled against Napster, and put them out of business in 2002

• Music industry filed several hundred lawsuits against individuals they claimed had illegally downloaded copyrighted material

• 2005: music industry sues Grokster and wins• 1998 Digital Millennium Copyright Act: ISPs cannot be sued;

internet radio stations must pay internet broadcast royalties (.076 cents per song per listener, 1.17 cents per listener, or 10.9% of their subscriber revenues)

Obscenity, Indecency, Profanity

• Section 1464 of US Criminal Code states that anybody who utters profane, indecent, or obscene language over radio or TV is liable to fine or imprisonment

• Both the FCC and the Department of Justice can prosecute under this sections

• If guilty, fine up to $10,000, loss of license and jail time

Obscenity, Indecency, Profanity• Defined as the irreverent or blasphemous

use of the name of God• Obscenity: the program as a whole, must be

(1) contain material that depicts or describes in a patently offensive way certain sexual acts defined in state law; (2) appeal to the prurient interest of the average person applying contemporary community standards, and (3) lack serious political, artistic, social, literary or scientific value

• Broadcast indecency: something broadcast is indecent if it depicts or describes sexual or excretory activities or organs in a fashion that’s patently offensive according to contemporary community standards for the broadcast media at a time of day when there is a reasonable risk that children may be in the audience

Pacifica v. FCC• Broadcast of George Carlin’s

Filthy Words (1973)• Video• WBAI FM (NYC) broadcast the

routine uncensored, in the afternoon of October 30 1973

• A man was driving with his son in the car when he heard it; filed a complaint with the FCC

• 1978: Supreme Court rules in favor of the FCC

• Established safe harbor rules

Fleeting Expletive

• An excited utterance of a curse word during a live broadcast

• Supreme Court upholds the FCC’s right to penalize networks for fleeting expletives, though a court of appeals found the FCC did not follow proper procedure during the original 2008 Supreme Court case

• There are no clear rules, only that the FCC may seek action if they desire/ respond to complaints

• Most live broadcasts are not live – many networks and affiliates use delay systems

• More examples!@3$51!

The Law & Broadcast Journalism

• Defamation: causing harm to someone’s reputation

• Slander, libel• To prove libel: the person has been defamed, the

statements have been published/broadcast, the person is identified, the media were at fault/error, what was published was false

• Defense against libel: truth, privilege, fair comment & criticism, actual malice

Invasion of Privacy• Private facts: private facts must be

highly offensive to a person of “reasonable sensitivities” Examples: publishing medical records

• Intrusion and trespass: being on someone’s private property is trespass; taking photos of someone with a telephoto lens from across the street is intrusion

• False light: closely related to libel, presenting someone in a false way

• Commercial exploitation: using someone’s image without consent

Protecting Sources• Criminal and civil law• Journalists have argued for

privilege• Shield laws vary from state to

state. Most follow a three part test:

1. That the journalist has information that bears directly on the case

2. That the evidence cannot be obtained from any other sources

3. That the evidence is crucial in the determination of the case

Cameras in the Courtroom• 1932 trial of the man accused of

kidnapping and murdering Charles Lindbergh’s baby

• Canon 35 of the ABA prohibited cameras and microphones in the courtroom (enacted state by state)

• 1962: Supreme Court affirms ban, but states that as technology gets better, they may not be such a distraction in the courtroom

• 1981: Supreme Court rules that televising a trial is not inherently prejudicial

• States make their own laws granting access

Regulating Advertising• State regulations, overseen by Federal Trade

Commission• FTC was set up in 1914 to regulate unfair business

practices• Five commissioners, appointed by the president,

confirmed by Congress – serve 7 year terms• Bureau of Consumer Protection: handles

advertising complaints• Guards mainly against deceptive advertising• Deception: any kind of falsehood constitutes

deception• Puffery: reasonable room for exaggeration in

advertising• Consent decree, cease-and-desist orders• Most advertising rules and practices are self-

regulated by industry (automobile, pharmaceuticals)