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American businesses pour billions of dollars each year into marketing their services and products on television. Transmitted to viewers through electromagnetic airwaves, satellite feeds, optical fibers, and cable lines, television programming often transcends state lines. The interstate character of this commercial activity brings regulation of television within the purview of the Commerce Clause of the U. S. Constitution. U.S.C.A. Const. Art. I, section 8, cl. 3. Under the Commerce Clause, federal courts have ruled that Congress has the power to regulate "radio communications," including the power to control the number, location, and activities of broadcasting stations around the country.
Pursuant to this power Congress passed the Communications Act of 1934, which expanded the definition of "radio communication" to include "signs, signals, pictures, and sounds of all kinds, including all instrumentalities, facilities, apparatus, and services … incidental to such transmission.". With the advent of television in the late 1930s and its growth in popularity during the 1940s and 1950s, "radio communication" was eventually interpreted to encompass television broadcasts as well.
The rapid growth of telecommunications also prompted Congress to create the Federal Communications Commission (FCC), an executive branch agency charged with overseeing the telecommunications industry in the United States. The FCC has exclusive jurisdiction to grant, deny, review, and terminate television broadcast licenses. The FCC is also responsible for establishing guidelines, promulgating regulations, and resolving disputes involving various broadcast media. The FCC does not, however, typically oversee the selection of programming that is broadcast. There are exceptions for this general rule, including limits on indecent programming, the number of commercials aired during children's programming, and rules involving candidates for public office. Five commissioners, appointed by the president and confirmed by the Senate, direct the FCC. Commissioners are appointed for five-year terms; no more than three may be from one political party. Within the FCC, the Media Bureau develops, recommends and administers the policy and licensing programs relating to electronic media, including cable and broadcast television in the United States and its territories.
The FCC enacts and enforces regulations addressing competition among cable and satellite companies and other entities that offer video programming
In 1978 Congress established the National Telecommunications and Information Administration (NTIA) to serve as the policy arm for federal regulation of telecommunications. Together with the FCC, the NTIA formulates and presents official White House positions on a variety of domestic and international telecommunication-related issues.
Federal regulation of television broadcasting preempts any conflicting state or local regulation. However, the federal government's power to regulate television is not absolute. In regulating television, both Congress and the FCC must do so to advance the public interest. Congress and the FCC also must be sensitive to First Amendment concerns. Television broadcast companies are entitled to exercise robust journalistic freedom that is consistent with the right of the public to participate in a diverse marketplace of ideas, a marketplace that itself is tempered by appropriate social, political, esthetic, moral, and cultural values.
The Communications Act of 1934 confers upon the FCC the sole authority to examine applications for television broadcast licenses and to grant, refuse, or revoke them as the public interest, convenience, or necessity requires. Each license granted for the operation of a television station lasts for a term of not to exceed eight years and may be renewed for a term of not to exceed eight years, measured from the expiration date of the preceding license.
Pursuant to provisions in the Telecommunications Act of 1996, television in the United States must convert from analog signal broadcast to digital signal. During the transition period, the FCC has temporarily assigned each television station a second station to broadcast the digital signal, while continuing to broadcast the analog on the original channel. Total conversion is expected to be completed in 2006, unless the FCC approves an extension. The FCC is not accepting any applications for new stations until television broadcasting has completed the conversion to digital.
The FCC has broad discretion to establish the qualifications for applicants seeking a television broadcast license and for licensees seeking renewal. The FCC has exercised this discretion to prescribe an assortment of qualifications relating to citizenship, financial solvency, technical prowess, and moral character, and other criteria the commission has deemed relevant to determine the fitness of particular applicants to run a television station. The FCC will also compare the programming content proposed by an applicant to the content of existing programming. The FCC favors applicants who will make television entertainment more diverse and competitive.
To limit the concentration of power in television broadcast rights, the FCC has promulgated rules restricting the number of television stations that a licensee may operate. An applicant who has reached the limit may seek an amendment, waiver, or exception to the rule, and no licensee may be denied an additional license until he or she has been afforded a full hearing on the competing public interests at stake. Applicants or licensees who are dissatisfied with a decision issued by the FCC may seek review from the U. S. Court of Appeals for the District of Columbia Circuit, which has exclusive jurisdiction over appeals concerning FCC decisions granting, denying, modifying, or revoking television broadcast licenses. Decisions rendered by the appellate court may be appealed to the U. S. Supreme Court.
The FCC is authorized to assess and collect a schedule of license fees, application fees, equipment approval fees, and miscellaneous regulatory assessments and penalties to cover the costs of its enforcement proceedings, policy and rulemaking activities, and user information services. The commission may establish these charges and review and adjust them every two years to reflect changes in the Consumer Price Index. Failure to timely pay a fee, assessment, or penalty is grounds for dismissing an application or revoking an existing license.
The original rationale for federal regulation of telecommunications was grounded in the finite num-
First fully articulated in 1949, the fairness doctrine had two parts: it required broadcasters to (1) cover vital controversial issues in the community; and (2) provide a reasonable opportunity for the presentation of contrasting points of view. Violation of the doctrine could result in a broadcaster losing its license. Not surprisingly, licensees grew reluctant to cover controversial stories out of fear of being punished for not adequately presenting opposing views. First Amendment advocates decried the fairness doctrine as chilling legitimate speech. The doctrine came under further scrutiny in the 1980s when the explosion of cable television stations dramatically expanded the number of media outlets available.
In 1987 the FCC abolished the fairness doctrine by a 4-0 vote, concluding that the free market and not the federal government is the best regulator of news content on television. Individual media outlets compete with each other for viewers, the FCC said, and this competition necessarily involves establishing the accuracy, credibility, reliability, and thoroughness of each story that is broadcast. Over time the public weeds out news providers that prove to be inaccurate, unreliable, one-sided, or incredible.
Despite the death of the fairness doctrine in 1987, two underlying rules that were developed during its existence remained in effect for another 13 years: the personal attack rule and the political editorial rule. The personal attack rule required broadcast licensees to notify persons who were maligned or criticized during their station's coverage of a controversial public issue and allow the attacked persons to respond over the licensees' air waves. If the attack was made upon the honesty, character, or integrity of another person, the licensee was required to provide a script or tape of the attack to the person identified before giving that person a reasonable opportunity to respond. The political editorial rule afforded political candidates notice of and opportunity to respond to editorials opposing them or endorsing another candidate.
The personal attack and political editorial rules fell by the wayside in 2000, when the Court of Appeals for the District of Columbia ordered the FCC to either provide a detailed justification for their continued application or abandon them. Initially, the FCC suspended the rules on a temporary basis, but later formally repealed both rules.
Proponents of both the personal attack and political editorial rules, as well as the fairness doctrine, have sometimes called for reinstatement. For example, during the 2004 presidential campaign, a furor erupted when some stations decided to broadcast "Stolen Honor", a documentary critical of presidential candidate John Kerry. However, none of the rules have been reinstated.
Although the demise of the Fairness Doctrine and its underlying rules have given broadcasters greater control over the content of their programming, broadcasters still may not discriminate among candidates for public office. Once a broadcaster permits one candidate for public office to use its facilities, it must afford equal opportunities to all other candidates for the same office. Broadcast stations that willfully or repeatedly fail to provide a legally qualified candidate for elective office reasonable access to their airwaves may subject themselves to sanctions, including revocation of their licenses. The FCC "equal time" provisions apply only to the candidates themselves and not to appearances made by campaign managers or other supporters. The determination of what constitutes a legally qualified candidacy is made by reference to state law.
Within the universe of First Amendment protection, broadcast radio and television stations have been subjected to greater regulation than any other verbal, visual, or printed medium of expression. The licensing process by itself gives the federal government more power over the content of television and radio broadcasts than it has over any print medium. Radio and television stations have been required to carry public service messages that they might not otherwise have chosen to carry, and they have been subjected to censure for broadcasting materials that would not have been punishable if they had been published in another medium.
The United States Code prohibits the broadcast of any material that is "obscene, indecent, or profane," but offers no definition for those terms. Instead, that task is left to the FCC through its rulemaking and adjudicatory functions. Essentially, it is illegal to air obscene programming at any time. To determine what is obscene, the U.S. Supreme Court crafted a three-prong test:
Federal law also prohibits the broadcast of indecent programming or profane language during certain hours. According to the FCC, indecent programming involves patently offensive sexual or excretory material that does not rise to the level of obscenity. Indecent material cannot be barred entirely, because it is protected by the First Amendment. The FCC has promulgated a rule that bans indecent broadcasts between the hours of 6:00 a.m. and 10:00 p.m. The FCC defines profanity as "including language so grossly offensive to members of the public who actually hear it as to amount to a nuisance". Profanity is also barred from broadcast between 6:00 a.m. and 10:00 p.m.
In 1978 in FCC v. Pacifica Foundation, the U. S. Supreme Court upheld an FCC order finding that a pre-recorded satirical monologue constituted indecent speech with the repeated use of seven "dirty words" during an afternoon broadcast. The Supreme Court acknowledged that the monologue was not obscene and thus could not have been regulated had it been published in print. But the Court distinguished broadcast media from print media, pointing out that radio and television stations are uniquely pervasive in Americans' lives, and are easily accessible by impressionable children who can be inadvertently exposed to offensive materials without adult supervision. Print media, the Court said, do not intrude upon Americans' privacy to the same extent or in the same manner. Thus, the Court concluded that the FCC could regulate indecent speech on radio and television but cautioned that the commission must do so in a manner that does not completely extinguish such speech.
When a station airs obscene, indecent, or profane material, the FCC may revoke the station's license, impose a monetary forfeiture, or issue a warning. One of the highest profile cases in the last few years came after a half-time performance with Janet Jackson and Justin Timberlake at the 2004 Super Bowl. In August 2004, the FCC ordered CBS Broadcasting to pay $550,000 for its broadcast of indecent material. The FCC issued $7.9 million in indecency fines in 2004.
The FCC undertakes investigations into alleged obscene, profane, and indecent material after receiving public complaint. The FCC reviews each complaint to determine whether it appears that a violation may have occurred. If so, the FCC will begin an investigation. The context of the broadcast is the key to determine whether a broadcast was indecent or profane. The FCC analyzes what was aired, the meaning of it, and the context in which it aired. Complaints can be made online, via e-mail or regular mail, or by calling 1-888-CALL-FCC (voice) or 1-888-TELLFCC (TTY).
As cable television gained prominence during the 1980s, it became unclear whether the FCC's rules on indecency and profanity applied to this burgeoning medium. Cable operators do not use broadcast spectrum frequencies, but they are licensed by local communities in the same way broadcast television station operators are licensed by the FCC. Moreover, cable operators partake in the same kind of First Amendment activities as do their broadcast television counterparts.
Congress tried to clarify the responsibilities of cable operators when it passed the Cable Television Consumer Protection and Competition Act of 1992 (CTCPCA). CTCPCA authorized cable channel operators to restrict or block indecent programming. The authorization applied to leased access channels, which federal law requires cable systems to reserve for lease by unaffiliated parties, and public access channels, which include educational, governmental, or local channels that federal law requires cable operators to carry. Cable operators claimed that the statute was fully consistent with the First Amendment because it left judgments about the suitability of programming to the editorial discretion of the operators themselves. But cable television viewers filed a lawsuit arguing that the statute violated the First Amendment by giving cable operators absolute power to determine programming content.
In 1996 the case was appealed to the U. S. Supreme Court, which issued an opinion that was as badly divided as the litigants. In handing down its 5-4 decision in Denver Area Educational Telecommunications Consortium, Inc. v. F.C.C, the Court first noted that cable television shares the same characteristics of broadcast television that were discussed in the Pacifica case, namely that it is uniquely pervasive, is capable of invading the privacy of viewers' homes, and is easily accessible by children. Despite the similarities, the Court held that CTCPCA had violated the First Amendment by giving cable operators the power to prohibit patently offensive or indecent programming transmitted over public access channels. The court reasoned that locally accountable bodies comprised of community members are better capable of addressing programming concerns, and thus creating a "cable operator's veto" was not the least restrictive means of addressing the appropriateness and suitability of cable television programming.
With respect to leased access channels, the Court ruled that CTCPCA also violated the First Amendment by requiring cable system operators to segregate patently offensive programming on separate channels and then requiring the operators to block those channels from viewer access until individual cable subscribers requested access in writing. The Court said that these requirements had an obvious speech-restrictive effect on viewers and were not narrowly or reasonably tailored to protect children from exposure to indecent materials. The Court cited the V-chip, as one less restrictive means of accomplishing the same objective.
The law governing television advertising is more settled than that of obscene, indecent, or profane materials. The First Amendment permits governmental regulation of television advertising and other forms of commercial speech so long as the government's interest in doing so is substantial, the regulations directly advance the government's asserted interest, and the regulations are no more extensive than necessary to serve that interest. This test affords advertisers more First Amendment protection than does the public-interest test under which federal courts review most FCC content-related regulations. In a free enterprise system the law recognizes that consumers depend on unfettered access to accurate and timely information regarding the quality, quantity, and price of various goods and services.
Conversely, society is not served by false, deceptive, or harmful advertisements, and thus regulations aimed at curbing such advertising are typically found to serve a substantial governmental interest. The best example involves the federal ban on cigarette advertising. In 1967 the FCC acted upon citizen complaints against the misleading nature of tobacco advertisements by implementing a rule that required any television station carrying cigarette advertisements to also air public service announcements addressing the health risks posed by tobacco. The rule withstood a court challenge. In addition, two years later Congress passed the Public Health and Cigarette Smoking Act of 1969, which banned all electronic advertising of cigarettes as inherently misleading and harmful. The act took effect in 1971 and survived a court challenge that same year. The law remains in effect today. No federal laws or FCC rules ban alcohol advertising, however.
Unlike other areas of telecommunications law, Congress has allowed states to adopt their own regulations governing false and deceptive advertising. Many states have responded by adopting the Uniform Deceptive Trade Practices Act (UDTPA), which prohibits three specific types of representations: (1) false representations that goods or services have certain characteristics, ingredients, uses, benefits, or quantities; (2) false representations that goods or services are new or original; and (3) false representations that goods or services are of a particular grade, standard, or quality. Under UDTPA, liability may arise for advertisements that are only partially accurate, if the inaccuracies are likely to confuse prospective consumers. Ambiguous representations may require clarification to prevent the imposition of liability. For example, a business that accuses a competitor of being "untrustworthy" may be required to clarify that description with additional information if consumer confusion is likely to result.
The 1990 Children's Television Act (CTA) was passed to increase the amount of educational and informational television programming for children. CTA requires broadcast stations to serve the educational and informational needs of children through its overall programming, including programming specifically designed to serve these needs ("core programming"). Core programming is programming specifically designed to serve the educational and informational needs of children ages 16 and under. CTA requires that broadcasters:
Fueled in part by growing public sentiment against the increasingly violent nature of television programming, NTIA and FCC officials recommended that federal law give parents greater control over the programming viewed by their children. The Telecommunications Act of 1996 introduced a ratings system that requires television shows to be rated for violence and sexual content. The act also created the so-called V-chip, a receptor inside television sets that gives parents the ability to block programs they find unsuitable for their children. Under the act, authority to establish TV ratings is given to a committee comprised of parents, television broadcasters, television producers, cable operators, public interest groups, and other interested individuals from the private sector.
In 2004, the FCC imposed children's educational and informational programming obligations on digital multicast broadcasters. Effective January 1, 2006, at least three hours per week of core programming must be provided on the main programming stream, for digital broadcasters. The minimum amount of core programming increases for digital broadcasters that multicast; it increases in proportion to the amount of free video programming offered by the broadcaster on multicast channels. The FCC also limited the amount of commercial matter on all digital video programming, whether free or pay, that is aimed at an audience 12 years old and under.
Beginning January 1, 2006, the FCC also imposed rules governing and limiting the display of Internet web site addresses during programs directed at children 12 and under. The requirements apply to both analog and digital programming. Moreover, FCC rules prohibit "host-selling". According to the FCC, host-selling is any character endorsement that may confuse a child viewers from distinguishing between program and non-program material.
American Jurisprudence West Group, 1998.
http://caselaw.lp.findlaw.com/data/constitution/amendment01 U..S. Constitution: First Amendment.
West's Encyclopedia of American Law West Group, 1998.
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