Analysis of the

Federal Communications Commission by Fritz Messere



Broadcast Regulation and FCC Policy Decisions

Throughout its history, a primary goal of the Federal Communications Commission has been to regulate the relationship between affiliated stations and broadcast networks, because the Communications Act does not grant specific powers to regulate networks. When the commission issued Chain Broadcasting Regulations the networks challenged the commission’s authority to promulgate such rules, and sued in National Broadcasting Co., Inc. et al. v. United States. The Supreme Court upheld the constitutionality of the 1934 Act and the FCC’s rules related to business alliances, noting the broad and elastic powers legislated by Congress. The FCC has used The Network Case as a precedent to ratify its broad discretionary powers in numerous other rulings.

On another front, at various times the commission has promulgated rules to promote diversity of ownership and opinion in markets and geographical areas. The Seven Station Rule limited the number of stations that could be owned by a single corporate entity. Multiple-Ownership and Cross-Ownership restrictions dealt with similar problems and monitored multiple ownership of media outlets—newspapers, radio stations, television stations—in regions and locations. Rules restricting multiple ownership of cable and broadcast television were also applied in specific situations. However, as more radio and television stations were licensed, restrictions limiting owners to few stations, a limitation originally meant to protect diversity of viewpoint in the local market, made less sense to the commission. The FCC made changes to ownership rules in 1985 and again in 1992, but Congress mandated a broad relaxation of ownership rules with the passage of the Telecommunications Act of 1996. Today, broadcaster are not limited by the number of stations they can own, although the FCC enforces a market cap that limits the number of stations that can be owned within each market. Restrictions on Ascertainment, Limits on Commercials, Ownership, Anti-Trafficking, and Syndication and Financial Interest Rules have been eased as well.. Recently waivers in ownership and Duopoly rules suggest that further deregulation is likely.

Still, it is the issue of First Amendment rights of broadcasters that has generated more public controversy in the seventy year history of the Communications Act of 1934 than any other aspect of communication law. Since the earliest days, the FRC and then the FCC insisted that because of "scarcity," a licensee must operate a broadcast station in the public trust rather than promote only his or her point of view. The constitutionality of the Fairness Doctrine and section 315 was upheld by the Court in Red Lion Broadcasting v. FCC. Broadcasters complained that the doctrine produced a "chilling effect" on speech and cited the possibility of fighting protracted legal battles in Fairness Doctrine challenges. Generally, though, the FCC determined station "fairness" based on the overall programming record of the licensee. The court reaffirmed the notion that licensees were not obligated to sell or give time to specific opposing groups to meet Fairness Doctrine requirements as long as the licensee met its public trustee obligations. But, as commissioners embraced deregulation, they began looking for ways to eliminate the Fairness Doctrine. In the 1985 Fairness Report, the FCC concluded that scarcity was no longer a valid argument and the Fairness Doctrine inhibited broadcasters from airing more controversial material. Two cases gave the commission the power to eliminate the doctrine; in TRAC v. FCC, the court ruled that the doctrine was not codified as part of the 1959 Amendment to the Communications Act as previously assumed. Secondly, the FCC applied the Fairness Doctrine to a Syracuse television station after it ran editorials supporting the building of a nuclear power plant (Meredith Corp. v. FCC, 809 F. 2d. 863 [1987]; Syracuse Peace Council 3 FCCR 2035 [1987] ). Meredith Corporation challenged the doctrine and cited the 1985 FCC report calling for the doctrine’s repeal. The courts remanded the case back to the commission to determine whether the doctrine was constitutional a

nd in the public interest. In 1987, the FCC repealed the doctrine and in 2000, the courts ordered the FCC to rescind the personal attack and political editorializing rules.
Other First Amendment problems facing the commission include enforcing rules against indecent or obscene broadcasts (FCC v. Pacifica). After Pacifica, the FCC enforced a ruling preventing broadcasters from using the "seven dirty words" enumerated in comedian George Carlin’s "Filthy Words" monologue on the air. However, "shock jocks" such as Howard Stern routinely test the boundaries of language use and increasingly suggestive musical lyrics have made this policy difficult to reconcile in a era of relaxed language standards. In a formal Public Notice, the FCC restated a generic definition of indecency which was upheld by the U.S. Court of Appeals. Spurred by Congress, the commission stepped up efforts to limit the broadcast of indecent programming material, including the graphic depiction of aborted fetuses in political advertising. Today FCC enforces a ‘safe harbor’ restriction for broadcast material. Indecent programming is limited to times when children are not likely to be in the audience (10 p.m. until 6 a.m.).

Other perennial areas of concern for the commission include television violence, the numbers of commercials broadcast in given time periods, the general banality of programming, and many issues related to children’s television. Several FCC Chairmen and commissioners have been successful in using the "raised eyebrow" as an informal means of drawing attention to problems in industry practices. Calling television "a vast wasteland," a phrase adopted by many critics of television, Chairman Newton Minnow (1961–63) challenged broadcasters to raise programming standards. In 1974, under Richard Wiley (1972–77), the commission issued the Children’s Television Programming and Advertising Practices policy statement starting a review of industry practices. And, Alfred Sikes (1989–92) called for "a commitment to the public trust" when he criticized television news coverage. William Kennard (1997 – 2001), the FCC’s first African-American chairman, encouraged minority ownership of media and equality of services in new technologies. Current chairman Michael Powell (2001-) has pushed for voluntary standards as a way to speed the development of digital television.

Interest in children’s television was further renewed in 1990 by the passage of the Children’s Television Act which reinstated limits on the amount of commercial time broadcast during children’s programming and required the FCC to consider programming for children by individual stations at license renewal. Today television stations must air at least three hours of prosocial programs for children every week. In 1996 Congress became increasingly interested in reducing the amount of violence on television. Industry representatives agreed to development of a ratings system that could be used in conjunction with V-Chip technology available in modern televisions.

Currently, the FCC has refocused its interest as a result of the passage of the Telecommunications Act of 1996 and the Balanced
Budget Act of 1997. Digital radio and television authorizations, deployment of broadband telecommunications services and media ownership are among the items that required the FCC to promulgate new rules in order to meet its mandates. Legislative initiatives have provided the FCC with a substantial agenda of items over the past decade, and the creation of new telecommunication services through spectrum auctions has provided substantive revenues for the government. But, concerns over the growth of a ‘Digital Divide,’ inequity in deployment of telecommunications services among rural and urban users, has prompted watchdog organizations to charge the FCC with inadequate oversight and pro-business rulemaking. Whether the commission will be substantially changed in the future is uncertain, but rapid changes in communications technology are placing new burdens on the commission’s resources.

Analysis of the Federal Communications Commission - page one

Analysis of the Federal Communications Commission - page two

Further Readings for Understanding the FCC - page four

Link to The Federal Radio Commission Archives

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