Telecommunications Regulations Notes

Wireless Ship Act of 1910

Required all commercial vessels carrying 50 or more passengers to have wireless telegraphy on board.
Established SOS as the official distress signal.

Radio Act of 1912

Established government control under the Secretary of Commerce to issue licenses to radio transmitters.

Hoover v. Intercity Radio (1923)

Facts: Intercity Radio was denied a license by the Secretary of Commerce due to insufficient spectrum space.
Importance: A federal court determined that the Secretary of Commerce had to grant a broadcast license to any applicant.

U.S. v. Zenith Radio (1926)

Facts: Zenith Radio, dissatisfied with its radio frequency, changed it despite rejection of their application by the Commerce Department.
Importance: A federal court ruled that the Commerce Department lacked the authority to regulate frequency, power, or hours of operation for radio stations.

Radio Act of 1927

Established the Federal Radio Commission (FRC) as a separate agency overseeing the radio industry.
Telephone regulation remained with the Commerce Department.

Communication Act of 1934

Established the Federal Communications Commission (FCC), which oversees the telephone, radio, TV, cable, and other communication industries.
Section 326 prohibits the FCC from censoring broadcasters.

NBC v. U.S. (1943)

Facts: The FCC adopted a rule limiting the amount of network broadcast time an affiliate station could carry.
Importance: The U.S. Supreme Court (USSC) held that the FCC can regulate electronic media, and its rules must be obeyed.

Responsibilities of the FCC

Rate regulation of telephone and telegraph services.
Promoting safety and national defense through radio and TV.
Supervising the Emergency Broadcast System (EBS).
Consulting with other government agencies on telecommunications matters and frequency allocation.
Reviewing station performance in meeting public interest, convenience, and necessity for license renewal (7-year license for radio, 5-year license for TV).
Regulating broadcasting services, including frequency, power, and call signs (stations east of the Mississippi begin with "W," and those west begin with "K").
Reviewing accounting practices.
Approving changes in ownership.
Approving mergers and construction.
Responsible for all domestic administration of telecommunications provisions in treaties and international agreements, but lacks treaty-seeking power.

FCC Commissioners

Five commissioners appointed by the President with Senate approval.
Newton Minnow: Known for his statement about television being "The Vast Waste Land."
Mark Fowler & Patrick Dennis: Known for their stance on deregulation.

Enforcement Powers of the FCC

Simple letter.
Cease-and-desist order.
Forfeitures (fines).
Short-term renewals (6 months to 2 years).
Renewal denials and revocation.

FCC Appeal Process

Administrative Law Judge.
Review Board.
FCC Commissioners.
U.S. Court of Appeals, D.C. Circuit.
U.S. Supreme Court.

Licensing Process

Minority preference rules were established, but the USSC in Adarand Constructors v. Peña (1995) stated that any special preferences must be justified by a compelling government interest.
In 2008, the FCC created new rules to favor small businesses in the licensing process.
In 1996, the comparative license renewal process was revoked.
Two-step process: 1) FCC determines if licensee is entitled to renewal; 2) If licensee committed a serious offense, the license is revoked.

License Renewal - Ascertainment

In 2007, the FCC required TV broadcasters to file a Standardized TV Disclosure form quarterly, categorizing aired programs, setting up de facto programming quotas.
In 2008, the FCC issued a Broadcast Localism Report requiring broadcasters (radio and TV) to set up community advisory boards and specific programming to meet community needs as specified by the FCC.

Fairness Doctrine

In re Mayflower Broadcasting (1941): Stations could not use their stations to express opinions or editorialize.
In re United Broadcasting Co. (1945): Stations could not refuse to sell time for the discussion of controversial issues.

Report on Editorializing by Broadcast Licensees (1949)

Two provisions:
- Devote a reasonable percentage of time to the coverage of controversial public issues.
- Provide a reasonable opportunity for the presentation of contrasting viewpoints.

Controversial Public Issues

In re Representative Patsy Mink (1976): The FCC ruled that a station had not met its obligation to air controversial programming regarding strip mining techniques.

American Security Council Educational Foundation v. CBS (1979)

Facts: ASCEF requested CBS to cover national security issues as controversial public issues.
Importance: A federal court declared that when a complaining party and a broadcaster disagree on the characterization of a controversial issue or its public importance, the FCC must accept the broadcaster’s reasonable characterization.

Reasonable Opportunity

FCC examines:
- The amount of time devoted to the topic.
- How often a topic is aired.
- The size of the listening audience.
In re Cullman Broadcasting Co. (1963): A station must not wait for a spokesperson to appear.
Banzhaf v. FCC (1968): Applied the fairness doctrine to cigarette smoking; later dropped against commercial ads.

In re Syracuse Peace Council (1987)

A station was found guilty of not airing both sides of the nuclear power plant issue.

Syracuse Peace Council v. FCC (1989)

Facts: The FCC eliminated the public controversy portion of the fairness doctrine.
Importance: A federal court ruled that the FCC had the right to eliminate the fairness doctrine because it thwarted the discussion of public issues.

Personal Attack Rule (PAR)

Attack on honesty, integrity, and character of a person or group.
Must notify the attacked party of time, date, and ID of broadcast within one week.
A script or tape or accurate summary must be supplied.
An offer of a reasonable opportunity to respond.

PAR Exemptions 47 C.F.R. 73-123 (b)

Attacks on foreign groups or public figures.
Personal attacks made by legally qualified candidates or their associates.
Bona fide newscasts, news interviews, or on-the-spot news.

Red Lion Broadcasting v. FCC (1969)

Facts: Reverend Billy James Hargis criticized author Fred Cook over WGCB. Cook requested free time to reply, and the FCC agreed.
Importance: The USSC upheld the FCC's PAR as constitutional.

RTNDA V. FCC (2000)

FACTS: The Radio TV News Directors challenged the FCC’s PAR and Political Editorializing Rules, claiming the rules violated the First Amendment.
IMPORTANCE: The Court ruled the rules were vague, entangled the government in the day-to-day operations of broadcasters, and led to government second-guessing of professional broadcast journalists' judgement.

Section 315

Letter to Nicholas Zapple (Zapple Doctrine): Applies Section 315 to spokesperson or supporter of a candidate, not just the candidate.
Applies to State/Local candidates.
Must be a legally qualified candidate.
Rate change 45 days before a primary and 60 days prior to general election must be at the lowest unit cost.
No requirement to notify opposing candidates.
Requires equal opportunity and equal time for candidates regarding:
- Time of day.
- Day of week.
Station can’t censor program content but can reject it based on technical considerations.

Section 315

Station has the option not to run the ad, as long as it is not running any political ads at all.

Section 312

Applies to Federal Candidates.
Must be a legally qualified candidate.
Rates change 45 days before a primary and 60 days prior to the general election and must be at the lowest unit cost.
Must run the ad when submitted.

Section 312 & 315 Exemptions

Bona fide newscast.
Bona fide news interview.
Bona fide documentary.
On-the-spot news coverage.

Content Restrictions

Miami Herald Pub. Co. v. Tornillo (1974): USSC held that newspapers have different First Amendment rights than electronic media.

Children and TV

Children’s TV Act of 1990: Limited commercial time and set requirements for considering the child audience at license renewal time.
By 1993, the FCC determined that 90-95% of stations had met the statute's requirements.

Format Changes

FCC v. WNCN Listeners Guild (1981): A radio station is free to change its format without considering the impact on the public.

Indecent Communication

FCC v. Pacifica Foundation (1978): USSC ruled that the FCC could regulate indecent programming. Obscene programming can’t be aired because of section 1464 of the US Code.
In re WGBH Educational Foundation (1978): The FCC found a public TV station airing programs containing nudity and “adult” themes. It was not indecent because it was not a repetitive use of questionable material.

In re Industry Guidance … Regarding Broadcast Indecency (2001)

FCC stated two-part indecency test:
- The material must describe or depict sexual or excretory organs or activities; and
- It must be patently offensive as measured by contemporary community standards for the broadcast medium.
To measure the test, the FCC would look at:
- The explicitness or graphic nature of the description or depiction of sexual or excretory organs or activities.
- Whether the material dwells on or repeats at length descriptions of sexual or excretory organs or activities.
- Whether the material appears to pander or is used to titillate or whether the material appears to have been presented for its shock value.

Broadcast Decency Enforcement Act of 2006

Increased the fines that the FCC can assess against broadcasters: $325,000$ for one profane or indecent word or image, up to a max of $3 million$ for one program.

ACT v. FCC (1988)

Facts: Action for Children’s Television wanted the FCC to regulate a broader definition of indecency than the words used in Carlin’s monologue.
Importance: The DC Circuit ruled that the FCC should regulate a broad range of offensive descriptions or depictions of sexual or excretory activity.

ACT v. FCC (1992)

Facts: Action for Children’s Television wanted the FCC to declare a 24-hour ban on indecent material.
Importance: The US Court of Appeals for the D.C. Circuit declared a 24-hour ban unconstitutional.
Today, “adult” themes may be aired from the “safe harbor” of 10 pm to 6 am.

In re Infinity Broadcasting Corp. (1987)

Importance: The FCC stated it would look at the “serious merit” of a program as a factor in determining “indecency,” the reasonable risk of children in the audience, and a warning should precede the program.

Sable Communications v. FCC (1989)

Facts: Congress passed a statute to eliminate indecent and obscene dial-a-porn.
Importance: A total ban on dial-a-porn is unconstitutional. Indecent phone messages have some constitutional protection.

Lotteries

Lotteries can only be broadcast if a state lottery: chance, consideration, and prize.
US v. Edge Broadcasting (1993): USSC held that a state can regulate commercial speech broadcast such as lottery results.

Cable

Must Carry Restrictions: Cable has to carry local broadcasters.
Anti-leapfrogging: Cable cannot generate a signal outside of the area.
Syndex Rule: Syndication Exclusivity.

Cable

US v. Southwestern Cable Co. (1968): USSC held that the FCC has a right to apply broadcasting rules and regulations to cable television.

Fortnightly Corp. v. United Artists TV, Inc. (1968)

Importance: USSC held that retransmission of a TV signal wasn’t a copyright infringement because it wasn’t a performance.

Teleprompter Corp. v. CBS (1974)

Importance: USSC held that retransmission by a microwave facility (MDS) wasn’t a copyright infringement.

Copyright Act of 1976

Created a Copyright Tribunal to redistribute copyright funds.
Local governments were given the power to regulate franchise agreements.

Cable Changes

Anti-leapfrogging rules and Syndex were eliminated in 1976-1980.
Syndex was reestablished in 1990.

Cable Communications Policy Act of 1984

Gave the FCC direct control over the cable industry.
Restrictions were placed on how much cable companies can charge during a typical 15-year contract.
Allowed “leased access” channels.
Obscene programming is not allowed.
The government can ensure broad categories of programming.
PEG left up to local governments.

Quincy Cable TV, Inc. v. FCC (1985)

Importance: USSC held that "must carry" rules were unconstitutional.

City of Los Angeles v. Preferred Comm. (1986)

Importance: USSC held that lower courts should determine if cable companies should be allowed to compete.
The Court refused to address First Amendment issues of cable (e.g., should cable be treated like print or broadcast).

Century Comm. Corp. v. FCC (1988)

Importance: USSC held that an A/B switch was constitutional.
The revised must-carry rules were still unconstitutional.

Turner Broadcasting Systems v. FCC (1997)

Significance: The Supreme Court ruled that the First Amendment test it will use for cable will be the print model.
The Court upheld the constitutionality of the must-carry ruled, deciding it was a “content neutral” regulation.
Every three years, a cable company must select the must-carry or retransmission consent of local broadcasters.

ABC v. Aereo, Inc., 2014

Facts: Because there were different rulings between Circuits, the USSC granted cert.
Holding: The USSC ruled against Aereo.
Rationale: Aereo violated the Copyright Act because the rebroadcasted material was determined to be a public performance. Consequently, the Fortnightly and Teleprompter decisions were overturned as supported in the 1976 Copyright Act.

Cable TV Consumer Protection and Competition Act of 1992

Cable must negotiate with broadcasters over carriage fees.
Bills must be itemized.
Cable Co. has to notify viewers about sexually explicit promotions.
Cross-ownership limits are set.
Basic tier rates are set: three networks plus PBS.
Studies of home shopping and sports networks are commissioned.

National Association for Better Broadcasting v. FCC (1988)

Importance: A federal court determined that DBS is a non-broadcast service.

Satellite Home Viewer Act of 1988

Importance: Satellite viewers can receive signals from networks as long as they are not in that network's broadcast area (e.g., a person in Harrisonburg could receive NBC & CBS, but not ABC).

Other Satellite Legislation

Local stations can be offered to be included in a satellite’s package.
On January 1, 2002, the FCC implemented a “Carry One, Carry All Rule” governing satellite packages: if you carry one local station, you must carry them all.

Low Power TV (LPTV)

The same rules apply, except that PAR and Section 315 apply only to originated programming.

Telecommunication Act of 1996

Broadcasting: Advanced TV (HDTV) - stations will have two 6MHz channels and will not have to pay for the second channel.
Radio Ownership: No limits on AM & FM.
One company can own up to 8 stations in a single market.
Station owners can assemble varied programming in a single market.
TV Ownership: Limit to 35% of the national audience.
Cross-Ownership Rules: TV, AM & FM stations are being revamped.
TV & Cable in the same market are eliminated.
License Renewal: Licenses are issued for 8 years.
Comparative hearings are eliminated but have to keep complaints about violent programming.
DBS: The FCC has direct control over direct satellite.
Extended signal piracy to illegal devices to receive DBS.
Cable: “Private Cable” systems to multiple dwelling units are exempted from state and local regulations.
“Small Operators” (less than $250,000,000$ ) are exempt.
Rate regulation of "Upper Tier" channels is set to sunset March 31, 1999.
Interactive & Telecommunication Services: Internet access, two-way, interactive cable are not subject to cable regulations.
A separate license is needed for just video, and the right is extended to all common carriers.
Wireless cable is not subject to state or local government.
Open-Video System: Maybe either wireline or wireless and may be open to anyone (e.g., cable, telephone, etc.).
All rules apply: syndex, PEG, etc.
Telephone: Exclusive telephone franchises are preempted.
Cable and phone companies can form joint ventures if not on home-turf.
The Communication Decency Act was declared unconstitutional in Reno v. ACLU (1996).
TV: Must establish a voluntary code similar to MPAA. Must begin to develop V-chip for home use.
Cable: Must scramble or block on request.