FCC Regulations on Radio, Television, and Cable

FCC's Power Over Radio and Television Regulations

Section 315 of the Federal Communications Act of 1934

  • Deals specifically with state or local candidates and their appearance on radio or over-the-air broadcasting.
  • Zapple Doctrine:
    • If a media outlet has a spokesperson for a candidate, they must offer equal opportunity for supporters of the opposing candidate.
    • Applies to state and local candidates.
  • Legally Qualified Candidate:
    • Must comply with state and municipal rules and regulations to qualify for the ballot.
  • Rate Card:
    • Radio and television stations have rate cards indicating the cost of buying air time.
    • The FCC considers audience size and demographics when determining rates.
  • Lowest Rate:
    • Forty-five days before a primary election, candidates get the lowest rate.
    • Sixty days before the general election, candidates get the lowest rate.
    • A primary election is internal party (e.g., Democrat vs. Democrat).
    • A general election is when different parties compete (e.g., Republican vs. Democrat).
  • Once time is sold to a candidate, the station is not obligated to notify the opposing candidate.
  • The purchase of time is not free; candidates must pay.
  • Equal Opportunity Considerations:
    • The FCC will consider the time of day and day of the week the advertisement is aired.
  • Stations cannot censor political commercials; doing so would be a prior restraint violating FCC policy and constitutional law (Near vs. Minnesota).
    • Stations can reject commercials with technical flaws preventing broadcast.
    • Stations may choose not to run any political ads.

Section 312

  • Applies to federal candidates (House of Representatives, Senate, President).
  • Candidates must be legally qualified to be on the ballot.
  • They receive the same rate breaks as state and local candidates.
  • Ads must be run as submitted.
  • Exemptions:
    • Bona fide newscast: If an incumbent is signing legislation, it's considered news.
    • Bona fide, regularly scheduled news interview programs: Examples include "Meet the Press" and "Face the Nation."
    • Bona fide documentary: Documentaries take years to produce, so participation usually occurs during non-campaign times; for example, Ted Kennedy's interview in a documentary.
    • On-the-spot news coverage: Interviews about an issue would not trigger sections 312 or 315.

Print vs. Electronic Media

  • Miami Herald vs. Tornillo (1974):
    • Newspapers, being privately owned, have more First Amendment rights than electronic media.
    • Electronic media is publicly owned; hence, more access should be granted.

Regulations Affecting Children and Television

  • Children's Television Act of 1990:
    • Limited commercial time in children's programming.
    • Prior to the act, shows could be half content and half commercials.
    • The characters in the shows could not advocate for buying certain products.

Radio Station Format Changes

  • FCC vs. WNCN Listeners Guild:
    • A radio station (WNCN) changed from classical to country western without consulting listeners.
    • The FCC ruled that stations are free to change formats without consulting the public based on a free market system.

Obscenity vs. Indecency

  • FCC vs. Pacifica Foundation (WBAI):
    • WBAI (New York City) played George Carlin's "Seven Words You Can't Say on Television" as part of a program on language.
    • They warned listeners before playing the controversial album.
    • One listener complained to the FCC after hearing it with his son.
    • The Supreme Court ruled for the FCC, establishing a new category of words outside First Amendment protection: indecent words.
    • Indecent does not equal obscene. Obscene words meet the Miller vs. California test regarding sexuality.
    • Indecent words are at the FCC's discretion and evolve with societal norms.
  • WGBH and Caligula Program:
    • WGBH invested heavily in a program about the Roman Emperor Caligula.
    • The FCC said the program could air with nudity, adult themes, and language because there was no repetitive use of questionable material.
  • Definition of Indecency:
    • Words that describe or depict sexual or excretory organs or activities.
    • Must be patently offensive as measured by contemporary community standards.
  • FCC's Application of Indecency Standards:
    • Is the language explicit or graphic?
    • Are there repetitive descriptions?
    • Is it used to titillate the audience or for shock value?
  • Fines for Indecency:
    • Up to 325,000325,000 for a profane utterance or indecent word/image.
    • Up to 3,000,0003,000,000 for the entire program being deemed indecent.
    • The FCC initially targeted all stations and affiliates after the Super Bowl wardrobe malfunction but later targeted only owned and operated stations.
  • Action for Children's Television (ACT):
    • Lobbying group believing much TV content was harmful to children.
    • They wanted a broad definition of indecent language.
    • The DC Circuit Court ruled for ACT, including depictions or descriptions of sexual or excretory activity.
    • ACT wanted a twenty-four-hour ban on indecent language, but the U.S. Court of Appeals disagreed.
    • The FCC and networks agreed on a "safe harbor" for adult programming from 10 PM to 6 AM (though it's informally moved to 9 PM).
  • Infinity Broadcasting: The FCC requires warnings that programming is for a mature audience.
  • Sable Communications: FCC attempted to ban phone calls that could be deemed indecent.

Lotteries

  • Lotteries can only be broadcast if the state recognizes the lottery.
    • State lotteries are generally permissible within the state.
    • Multi-jurisdictional lotteries (e.g., Powerball) can only be advertised in participating states.
  • Elements of a Lottery:
    • Chance: Some will win, some won't.
    • Consideration: The individual needs to take action.
    • Prize: A prize must be awarded.
  • U.S. vs. Edge Broadcasting:
    • A radio station in North Carolina broadcast lottery results to an audience mostly in Virginia.
    • Virginia had a legal state lottery, but North Carolina did not.
    • The Supreme Court ruled that a state can regulate commercial speech dealing with lottery results.
    • Both the state and the FCC can have regulations for radio stations to abide by.

Cable Regulations

  • Today, there is no heavy FCC regulation of cable due to the Telecom Act.
    • Local governments oversee and regulate cable entities.
  • Early on, the FCC regulated cable to cultivate over-the-air broadcasting.
  • Must Carry: Cable stations must carry local broadcast stations.
  • Anti-Leapfrogging: Illegal to take a signal and jump over another company's signal.
  • Syndication Exclusivity (Syndax): Only place you can find certain games is on a certain channel.
    • If ESPN negotiates Monday Night Football, it can only be found on ESPN on Monday night.
  • Early Cable Structure:
    • Head: Big satellite antenna.
    • Trunk: Large coaxial cable spreading the signal.
    • Drop: Cable leading from the trunk to individual homes.
  • Early Regulations: Cable companies had to meet all broadcast rules and regulations that applied to over-the-air broadcasters.
  • Fortnightly:
    • A cable company captured signals and retransmitted them.
    • United Artists wanted copyright fees from both networks and cable companies.
    • The Supreme Court said it was not a new performance requiring a performance license but a retransmission, so there was no copyright infringement.
  • Teleprompter: Applied the same ruling to microwave delivery systems.
  • In 1976, local governments were given power to regulate franchise agreements.
  • The FCC regulated cable only to the extent of obscenity and obscene broadcasting.
  • Anti-leapfrogging rules have been eliminated, allowing super stations like WGN to broadcast throughout the United States.
  • Syndication exclusivity was dissolved but came back in 1990.

Cable Communications Policy Act of 1984

  • The FCC is in a monitoring restriction area, keeping a clue on developmental and technical aspects.
  • Local governments set up franchise agreements, generally with a lease agreement for a minimum of fifteen years.
  • Cable companies could establish leased access channels.
  • Local governments ensure broad categories, including religious, language, entertainment, and sports, cooking, etc.
  • They can establish public, educational, and government channels.

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

  • The Supreme Court reviewed the FCC's role protecting local stations and ruled must-carry rules were unconstitutional.

City of Los Angeles v. Preferred Communications, Inc. (1986)

  • Preferred argued that they had a constitutional right to compete, and therefore there is no rules or regulations that should preclude them from competing with an existing cable franchise.
  • The Supreme Court agreed, allowing competition between cable companies.
    • The Supreme Court missed an opportunity to rule either similar to a newspaper or an electronic broadcast.
  • AB Switch was something that constitutionally cable companies should be supplying, that they could charge, but they also would have to keep it on hand for any customer who would want it.

Turner Broadcasting System, Inc. v. FCC

  • The Supreme Court agreed that cable would follow the Miami Herald versus Tornillo model of accessibility.
  • The court stated the must-carry rule was constitutional because it did not mandate the content of local stations.
  • Local networks and cable entities negotiate a fee every three years, allowing cable companies to retransmit local broadcast stations.

American Broadcasting Companies, Inc. v. Aereo, Inc. (2014)

  • Aereo ran a digital antenna service broadcasting to individuals who possessed their digital antennas, which was ruled copyright infringement.
  • Aereo had to pay copyright fees.

Cable Television Consumer Protection and Competition Act of 1992

  • Emphasizes negotiation in terms of the carriage fee.
  • Bills are itemized.
  • Clear promotions are required, along with clear promotions notification.
  • Cross-ownership limits are set.
    • Limits regarding owning radio stations, television stations, cable companies, and newspapers.
  • Different tier rates are established.
    • Basic tier includes television networks plus public television networks.
  • Implications of home shopping networks and sports networks are being studied.

DBS (Direct Broadcast Satellite)

  • DBS can be non-broadcast because they simply capture signals and retransmit them.
    • Different from Arrow because Arrow was not capturing signals, but sending out signals without paying any copyright fee whatsoever. DBS captured signals already in the air.
  • Satellite Home Viewer Act of 1988:
    • Satellite viewers can receive signals from networks as long as those networks are not in their local area.
  • Satellite Home Improvement Act of 1999:
    • Allowed a local station, if they wanted, to be in the satellite package.
  • The FCC implemented their carry one, carry all rule.
    • If one local station was carried by the satellite company, they should carry all local programming.