Federal Communications History and the Federal Communication Act of 1934

Federal Communications History

  • Wireless Ship Act:
    • Initial congressional action addressing new wireless telegraphy technology (Morse code).
    • Required wireless on ships with 50+ passengers.
    • Flaws:
      • No mandate for 24/7 operation.
      • Seen as a novelty, not a life-saving device.
    • Established the SOS signal (three dots, three dashes, three dots) as a universal distress signal, enhancing maritime safety.
  • Radioactive 19 Motivation: The Titanic disaster in 1912 prompted legislative action to regulate radio technology.
    • Secretary of Commerce was put in charge of radio transmitters because radio waves transcend state borders.
    • Herbert Hoover initially tried to regulate licenses but faced court challenges.
  • Herbert Hoover's Licensing Challenges:
    • Hoover attempted to deny licenses based on spectrum congestion.
    • Intercity Radio challenged his authority, arguing the 1912 Act didn't allow license denial.
    • Federal court sided with Intercity Radio, leading to unregulated licensing and chaos on the radio spectrum.
  • Zenith's defiance:
    • Zenith changed its frequency and power without permission.
    • The Secretary of Commerce intervened, but Zenith challenged the government's authority.
    • Federal court ruled against the government, limiting its power to regulate frequency, power, and hours of operation.

Radio Act of 1927

  • Established the Federal Radio Commission (FRC).
  • Seven commissioners represented seven regions of the U.S.
  • Aimed for uniformity in regulation with regional expertise.
  • The Commerce Department continued regulating telephone services.

Communication Act of 1934

  • Still in effect today, forming the framework for radio and over-the-air television regulation.
  • The FCC was given charge of communication technologies, including telephone, radio, TV, and early cable.
  • Cable is now mostly outside the FCC's control, except for obscenity.
  • Section 326:
    • Prohibits the FCC from acting as a censor, preventing prior restraint of content.
  • NBC Challenge:
    • NBC's affiliate programming mirrored network programming, limiting local content.
    • The FCC wanted to break this stranglehold by limiting network programming to allow more local broadcasting.
    • The U.S. Supreme Court upheld the FCC's regulatory power and deemed the Communications Act of 1934 constitutional.

Responsibilities of the FCC under the 1934 Act

  • Regulation of telephone and telegraph services.
  • Radio and television as a safety mechanism:
    • Broadcasting alerts for attacks or weather threats.
    • Established the Emergency Broadcast System (EBS), still tested today.
  • Consultation with other agencies:
    • Department of Defense: Due to their significant use of the electromagnetic spectrum.
    • Department of State: For negotiating treaties regarding signal transmission across borders.
  • Review of radio station operations every seven years and TV stations every five years:
    • Review of logs and accounting books to ensure compliance.
  • Regulation of frequency, power, and call signs for stations.
    • East of the Mississippi: Call signs generally begin with "W."
    • West of the Mississippi: Call signs generally begin with "K."
  • Standardized accounting practices for all stations.
  • Approval required for station sales, with preference for American naturalized citizens.
    • Exception: Rupert Murdoch's ownership of Fox Broadcasting, contingent on hiring Native American consultants.
  • Approval needed for building new stations or merging existing ones.
  • Treaties and agreements:
    • The FCC approves the technological aspects of treaties to ensure they align with the government's interests.
  • The FCC consists of five commissioners, a reduction from the original seven.
  • No more than three commissioners can be from one political party.
  • Commissioners are nominated by the President and approved by the Senate.

Philosophies of FCC Chairs

  • Newton Minow:
    • Believed television was a "vast intellectual wasteland" due to low-quality programming.
  • Mark Fowler and Patrick Dennis (Reagan Era):
    • Advocated for deregulation, allowing the marketplace to control radio station viability.
    • If stations couldn't secure advertising, they would not survive.
  • Many former FCC members transition into lobbying roles for large networks.

FCC Enforcement Powers

  • Letter of Reprimand:
    • Issued for initial violations based on complaints or monitoring.
  • Cease and Desist Order:
    • Issued for repeated violations, warning of severe penalties such as license loss or fines.
  • Forfeitures (Fines):
    • Substantial fines for offenses (e.g., $25,000+ for indecent language at a college radio station).
  • Short-Term Renewals:
    • Licenses are reviewed more frequently (e.g., every six months), incurring significant costs for compliance.
  • Denial of License Renewal:
    • The most powerful penalty, leading to station shutdown and forced sale.

Administrative and Judicial Review Process

  • Internal Judicial Process:
    1. Administrative Law Judge (FCC employee) reviews the case.
    2. Review Board (three FCC hearing law judges) hears appeals.
    3. The five FCC commissioners review further appeals.
  • External Judicial Process:
    • Appeals must go to the U.S. Court of Appeals in the DC Circuit.
    • Final appeal to the U.S. Supreme Court.

Licensing Preferences and Renewal

  • Initial preferences for minorities have diminished.
  • Current focus on small businesses.
  • Automatic license review has been in place since 1996.
  • Comparative process only occurs if there's proof of consistent disregard for FCC rules or violence causing viewer complaints.

Renewal Process

  • Presumption of license renewal.
  • Renewal granted unless there is a serious offense under FCC rules.
  • 2007 Standardization:
    • De facto programming quotas for children's hours and adult entertainment.
  • 2008 Broadcast Localism Report:
    • Radio and television stations need advisory boards made up of local citizenry to address local interests, convenience, and necessity.

Fairness Doctrine (No Longer in Effect)

  • Two components:
    • Covering controversial issues and allowing both sides to be heard.
    • Personal Attack Rule (PAR).

Covering Controversial Issues

  • In re Mayflower (1941):

    • FCC initially prohibited stations from expressing opinions or editorializing.

  • United Broadcasting Company (1945):

    • FCC ruled stations could not refuse to sell time to those raising controversial issues.

  • Report on Editorializing by Broadcast Licensees (1949):

    • Required stations to:
      • Devote a reasonable percentage of time to controversial issues.
      • Present both sides of a controversy (equal time and audience reach).

  • Patsy Mink Case:

    • The FCC agreed that the West Virginia radio stations needed to program the bad effects of strip mining.

  • American Security Council Educational Foundation Case:

    • The FCC ruled that CBS was not covering the spread of communism.

  • Reasonable Opportunity:

    • The FCC looks at the amount of time, how often the topic is raised, and the size of the audience.

  • Enri Cullum Case:

    • Culum had trouble finding the other side to be covered.

  • Banzif Case (1968):

    • Banzif noticed that the stations had many pro-cigarette ads, but no information on the danger of smoking.

    • The FCC originally decided it wasn't a controversial issue, but the U.S. Supreme Court ultimately declared it was.

    • This ultimately led to radio and television ads on smoking being banned by congressional action, so stations didn't have to pay for pro-smoking ads anymore.

  • In re Syracuse Peace Council (1987):

    • FCC felt there should be more debate.
    • Ruled it was no longer going to enforce the controversial coverage issue.

  • Syracuse Peace Council Sued FCC:

    • Wanted to reinstate controversial coverage.

    • A federal court judge ruled against them.

The Right to a Fair Response: Personal Attack Rule (PAR)

  • Definition: If the honesty, integrity, or character of a group or person is attacked on radio or television, the station must:
    • Notify the attacked party.
    • Provide details of the attack (time, description, tape).
    • Offer a reasonable opportunity to respond.
  • Exemptions:
    • Attacks on foreign groups or public figures.
    • Attacks by legally qualified candidates against opponents.
    • Attacks during bonafide regular newscasts, news interviews, or on-the-spot news coverage.
  • Red Lion Broadcasting Case:
    • Reverend Billy James Hargis attacked author Fred Cook on a radio program.
    • Fred Cook contacted the station for free time to respond, and The FCC agreed.
    • The U.S. Supreme Court upheld the constitutionality of PAR.
  • Radio Television News Director Association Case:
    • Challenged PAR and political editorializing rules.
    • The U.S. Supreme Court declared that they violated First Amendment rights.
    • Outcome: The personal attack rule was declared unconstitutional at this particular time.