Jane Akre and Steve Wilson: Journalists , whistleblowers.

Broadcasting Law and Regulation

Is it illegal to force journalists to lie on the air? Does the FCC "news distortion rule" mean anything at all?

In 1996 and 1997, Jane Akre and her husband Steve Wilson investigated the use of a synthetic growth hormone (BGH) in Florida dairies. They found that the hormone probably had dangerous side effects, which was why it was banned in Canada and several European countries. When their report was completed, they also found their TV station, Fox affiliate WTVT-TV, was under heavy legal pressure from hormone manufacturer Monsanto.

Rather than airing a program that balanced public health concerns against the industry's position, Monsanto's lawyers told Fox management that they would sue if any program was run. Eventually, after a considerable amount of argument, Akre and Wilson were fired.

They sued WTVT and won in August, 2000, claiming that WTVT fired Aker after she threatened to tell the FCC that it had tried to distort the news. The Florida whistleblower law allows an employee to recover damages when an employer retaliates against efforts to report unlawful behavior. But a federal appeals court overturned the ruling, saying that WTVT had not broken the state's whistleblower statute. And technically, while the FCC had ruled against distortions of news in other cases, regulatory hearings were technically not the same as law. ( New World Communications of Tampa v. Akre, 2003 WL 327505, 28 Fla. L. Weekly D460. ) See RCFP story "FCC No Distortion Policy ..."

 

Introducing broadcasting law and regulations

Radio and Television are regulated media, (unlike print, film and the web, which are protected media). Regulation of technology, structure and content comes through Congress to the Federal Communications Commission.

The first and most important form of both content and structural control is through licensing of broadcast stations through the Federal Communications Commission. Stations which do not abide by a host of regulations can lose their broadcast licenses (although this is rare).

The main trend is toward deregulation, and the fact that demand for space in the broadcast spectrum continues to exceed supply means that some regulation will continue, at least in order to avoid chaos on the airwaves. But how much and how far reaching?

In the summer of 2003, a Federal Communications Commission order that loosened ownership regulations proved far more controversial than FCC anticipated and was subsequently challenged in court and stalled by Congress. The court case ** Prometheus Radio Project v FCC, overturned the loosened ownership regulations.

An informative (but poorly designed) website at the FCC helps keep track of some issues.

Legislative History:

The telegraph was unregulated in the US,

** Radio Act of 1912 -- Required all ships to have radio telegraph operators on duty 24 hours a day and licensed ship and shore stations. It also prevented the Marconi company from controlling the activities of people who used its equipment. The company had been forcing operators to refuse to communicate with those using other equipment.

** World War I -- All radio communication was controlled by the government. After the war, radio became a popular hobby and radio stations proliferated.

** Radio Act of 1927
-- Set up licensing and frequency allocation system for commercial stations. Rationale for regulation was the scarcity of available frequencies.

Public Programming Policy Statement, 1929 -- "The tastes, needs and desires of all substantial groups among the public should be met, in fair proportion, by a well-rounded program schedule, in which entertainment, religion, education and instruction, important public events, discussions of public questions, weather, market reports, news and matters of interest to all members of the family find a place. (Great Lakes Broadcasting, 3 FRC Annual Reports 32, 1929)

** Communications Act of 1934
-- Set up Federal Communications Commission with authority over a variety of areas, including: Mass Media licencing, Wireless (ham, aeronautic, marine), Common Carrier (telephone, telegraph) and field operations. The FCC also said that because the broadcasting spectrum belonged to the public, stations must operate in the "public interest, convenience and necessity."

Cable Television Consumer Protection and Competition Act, 1992
-- Created complex regulatory scheme cutting cable rates.

** Communications Act of 1996
-- Major reorganization and deregulation of the media marketplace, which has led to many mergers, reduced distinctions between common carriers and mass media. Among provisions

Required V-Chip to filter violent programming in all new TV sets

Communications Decency Act was part of this and was struck down in Reno v. ACLU 1997

Switch to Digital Television in 2009

Licensing Cases:

** Trinity Methodist Church v. FRC, 1933 -- A Los Angeles church had a radio license and claimed a First Amendment interst in maintaing it. The Supreme Court said radio licenses were properly regulated by FRC (FCC) and upheld what was in effect prior restraint. A similar case involved Dr. John Brinkley (left). Brinkley broadcast from KFKB radio all over the midwest, advocating medically fraudulent implants of supposedly rejuvenating animal organs. When his medical license was revoked in 1930, the FCC followed by revoking his broadcast license.

Note the contrast with Near v. Minnesota, 1931.

Office of Comm. of United Church of Christ v. FCC, 1969 -- Civil Rights groups challenged the FCC's licensing practices in Mississippi and won. It's an interesting story:

In 1954, a group of Civil Rights activists began studying the pattern of racially biased news and public affairs programming. The Jackson, Miss. Chapter of the NAACP filed repeated complaints with the FCC about one particularly racist television station, WLBT in Jackson. Requests for a public hearing when the station license came up over the years were consistently turned down by the FCC. When WLBT applied for what it thought would be a routine renewal of its broadcasting license in 1964, the church and a coalition of civil rights leaders formally challenged the license. They charged that the station blacked out nationally-produced civil rights news about nearby events; had promoted race-hating points of view without balance or regard for the Fairness Doctrine; and refused to feature African American speakers in any context, even on Sunday morning church service broadcasts.

The WLBT response was typical for stations whose licenses were challenged: It ginned up a list of all its public service activities from its log books, including service to the African American community. Usually complaints would stop at this point, and in effect be buried in red tape. But the coalition had an ace up its sleeve-- it responded that the station’s log books were highly inaccurate, and presented evidence from a detailed content analysis, which had been kept secret up until that point. When the FCC approved the WLBT license, The church appealed the decision to a federal court, but the attorneys did not really expect to win both the case and the much larger battle over FCC’s regulatory procedure. Yet in 1966, the appeals court ruled that the FCC would conduct public hearings on the license and that the citizens would have standing before the FCC.

The court decision, written by Judge Warren Burger (who would later become the Chief Justice of the US Supreme Court) eloquently restated the longstanding tradition of broadcast regulation: “A broadcaster is not a public utility … but neither is it a purely private enterprise like a newspaper or an automobile agency. A broadcaster has much in common with a newspaper publisher, but he is not in the same category in terms of public obligations imposed by law. A broadcaster seeks and is granted the free and exclusive use of a limited and valuable part of the public domain; when he accepts that franchise it is burdened by enforceable public obligations. A newspaper can be operated at the whim or caprice of its owners; a broadcast station cannot. After nearly five decades of operation the broadcast industry does not seem to have grasped the simple fact that a broadcast license is a public trust subject to termination for breach of duty… Under our system, the interests of the public are dominant. The commercial needs of licensed broadcasters and advertisers must be integrated into those of the public. Hence, individual citizens and the communities they compose owe a duty to themselves and their peers to take an active interest in the scope and quality of the television service which stations and networks provide and which, undoubtedly, has a vast impact on their lives and the lives of their children… The 1964 renewal application (for WLBT) might well have been routinely granted except for the determined and sustained efforts of Appellants (the church coalition) at no small expense to themselves. Such beneficial contribution as these Appellants, or some of them, can make must not be left to the grace of the (Federal Communications) Commission.” (United Church of Christ v FCC, 1966).

RKO v. FCC, 1981 -- This is one highlight in a long series of battles between the FCC and RKO, one of the largest Hollywood studios and TV / radio station owners. Following a series of violations, RKO lost its license to operate a television station in Boston. During the next15 years, the FCC forced RKO to divest many other holdings. Why is this significant? a) Imagine the government forcing the New York Times or Washington Post to close down. It shows how different broadcasting is from the newspaper business. b) While the airwaves belong to the public in theory, in practice the FCC has a difficult time simply taking them away because they are worth so much money to parent companies like RKO.

Bechtel v. FCC, 1993 -- Court struck down FCC preference for local ownership.

 

** Content Regulation Cases / Political broadcasting:

1) Equal Time Rule (Section 315): Began in 1934, regulates political campaign advertising. If stations sell advertising to one candidate, they must sell the same amount to the other. Equal Time doesnt apply to news programs or to talk shows. Still in effect.

** Farmers Educational Cooperative Union v. WDAY, 1959 -- Broadcasters have to air a candidates remarks even if they are libellous, but the broadcaster is granted absolute immunity from a libel suit under these circumstances.

CBS v. Democratic National Comittee, 1973 -- Aside from campaigns, broadcasters do not have to carry advertising if they dont want to, even political advertising.

CBS v. FCC, 1981 -- Court upheld FCCs authority to order stations to air federal candidate's statements. This case had to do with a 1980 Carter campaign request to purchase a half hour of air time from all three networks. Since FCC rules state that the air time must be sold at the lowest rate available, the networks did not want to lose money.

2) Fairness Doctrine (1949-1887)

Mayflower Decision, 1941 -- (precursor to the Fairness Doctrine) banned radio broadcasters from taking sides in controversies.

Fairness Doctrine established 1949 to ensure both sides of controversial issues (outside of political campaigns) be presented by broadcasters.
Abolished 1987
in the deregulatory Reagan era, despite its supported from liberals (eg Robert F. Kennedy). **

Exceptions
: Personal Attack Rule and Political Editorializing Rule gives a right of reply under these circumstances.
Summary: Aside from personal attacks and political editorials, broadcasters are free to use news judgement to cover controversial issues as they see fit.

Red Lion Broadcasting v. FCC, 1969 -- Involved a station's attack on a book author who wrote about 1964 presidential candidate Barry Goldwater. Court upheld the FCC's Fairness Doctrine regulations imposing equal time to respond to personal attacks. Also upheld and entrenched the scarcity rationale. It is the right of viewers and listeners, not brodcasters, which is paramount, the SC said. In contrast, note Miami Herald v. Tornillo, 1974 case, in which a print medium was not forced to give right of reply.

FCC v. League of Women Voters of California, 1984 -- Case was a challenge to law that said public broadcasting stations couldn't editorialize, first time the court had ever overturned a content restriction of broadcasters on First Amendment grounds. Case paved the way for abolition of most of Fairness Doctrine.

** Robert F. Kennedy said: "The majority of Americans are still getting our news from electronic media, and it's the corporate-owned media, which has no ideology except for filling its pocketbooks. Many of them are run by big polluters. All of them are run by giant corporations that have all kinds of deals with the government and are not going to offend public officials. This all started in 1988 when Ronald Reagan abolished the Fairness Doctrine. The Fairness Doctrine said that the airwaves belong to the public. They were public-trust assets, just like our air and water, and broadcasters could be licensed to use them but only with the proviso that they use them to promote the public interest and to advance American democracy. They had to inform the public of issues of public import. They had to have the news hours... They had to avoid corporate consolidation. They had to have local control and diversity of control. That had been the requirement of the law since 1928.

Today, as a result of the abolishment of that doctrine, six giant multinational corporations now control all 14,000 radio stations in our country, almost all 6,000 TV stations, 80 percent of our newspapers, all of our billboards, and now most of the Internet information services. So you have six guys who dictate what Americans have as information and what we see as news. The news departments have become corporate profit centers. They no longer have any obligation to benefit the public interest; their only obligation is to their shareholders, and they fulfill that obligation by increasing viewership.

Content Regulation / Indecency & Obscenity

Adam and Eve in the Garden of Eden

The Dec. 12, 1937 skit that outraged the FCC

Don Ameci:

What do you want, trouble?

Mae West:

Listen, if trouble means something that makes you catch your breath, if trouble means something that makes your blood run through you veins like seltzer water, mmmm, Adam, my man, give me trouble.

The Garden of Eden sketch prompted the FCC to issue a “stern reprimand” for violating "the ethics of decency." The agency began considering how to deal more effectively with content on the radio networks – not just allowing or taking away station licenses, but reaching more into the core of the program development process. One effective tool was the National Association of Broadcasters Code of Ethics -- an approach that allowed an industry to claim it was "self-regulating" rather than being censored.

In re:WDKD Palmetto Broadcasting Co. 33 FCC 265, 1961 -- The FCC reprimanded a South Carolina broadcaster for telling raunchy stories and saying "let it all hang out" on occasion. The FCC argued that broadcast media are unique. Radio and television were accessible to everyone "at the flick of a switch to young and old alike, to the sensitive and the indifferent, to the sophisticated and the credulous... " And so the commission saw a duty to protect "those of highly developed sensibilities" from indecent language.

** FCC v. Pacifica Foundation, 1978, The court held that the FCC could create time, place and manner restrictions for indecent language, but not broad restrictions. The case involved George Carlin's "Seven Dirty Words" monologue. Over time, FCC standards slipped, but in 1987, FCC tried to re-regulate obscenity on the air, especially in songs (Makin' Bacon), a play (The Jerker) and "shock" radio (Howard Stern). The FCC faced typical difficulties in defining indecency. They settled on: "Language or material that depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs." This, of course, is very similar to the language in Miller v California. The more practical effect of the Pacifica case was to create a new time, place and manner restriction by setting aside the 12 - 6 am slot as a "safe harbor" for any material because probably there were no children in the audience. Click for Carlin's Seven Dirty Words monologue on YouTube. Warning: This is EXPLICIT. Not for children !!

Action for Childrens Television v. FCC, 1995 -- Following 1987 crack down on indecency, (eg Howard Stern, Pork Dukes), court in three progressive cases overturned FCC's round the clock ban on indecency and returned to concept of a "safe harbor" for indecent programming from 10 pm to 6 am. Note, this doesnt apply to cable networks, just over the air broadcasting.

FCC and the fleeting indecency cases of the 2000s ...

2001 -- FCC has new regulations on indecency and obscenity -- Complete with examples of indecency such as Howard Stern monologues, "I'm Not Your Puppet'' Rap Song and "Uterus guy" rap. All in all, a very unusual government document. Here's a summary.

2002 -- - Billboard Music Awards, Cher gives classic response to critics: “I’ve had unbelievable support in my life, and I’ve worked really hard.  I’ve had great people to work with.  Oh, yeah, you know what?  I’ve also had critics for the last 40 years saying that I was on my way out every year.  Right.  So fuck ‘em.  I still have a job and they don’t.”

2003-- Billboard Music Awards, Nicole Richie asks: " Have you ever tried to get cow shit out of a Prada purse? It's not so fucking simple."  

2004 -- Janet Jackson "wardrobe malfunction," Super Bowl, January

2004 -- FCC prohibits "single uses of vulgar words" (fleeting expletives)

2005 -- Congress approved increasing fines for indecency from $27,500 to $275,000 per incident. Many were gratified, but media professionals felt they had been singled out by the "ministry of culture" at the FCC. Twelve major violations that year resulted in $8 million in fines.

** Fox v FCC, 2009 -- (Billboard case) The US Supreme Court upholds fine by the FCC against Fox network for off the cuff indecent remarks during the 2002 and 2003 Billboard Music Awards. The court said the FCC was not being arbitrary or capricious, but it did not review the case for First Amendment constitutionality.

** Fox v. FCC, 2010 -- (Billboard case take 2) A lower federal appeals court (2nd district) performs the constitutional review and says that the FCC's rules on indecency are vague and violate the First Amendment. Fleeting explitives or wardrobe malfunctions should not lead to massive multi-million dollar fines. The lower court also said that it was possible that some construction of rules would be constitutional.

** CBS v. FCC, 2011 -- (Wardrobe malfunction case) A lower federal appeals court (3rd district) finds that the FCC improperly imposed a penalty on CBS for violating a previously unannounced policy. This case started in 2008, was appealed to the Supreme Court, and sent back to the 3rd district.

Content Regulation / Misc.

Children's programming: FCC regulations adopted 1996 specify 3 hours / week of educational programming for children in at least half hour segments at times when children are likely to see them (between 7 am and 10 pm).

Childrens Television Act, 1990 -- Advertising limited to 12 minutes / hour weekdays and 10.5 minutes/hour weekends, subsequent regulations limited interaction between content and advertising (eg, improper program length commercials such as GI Joe).

Prime Time Access Rule, 1971 - 1995, required that one of the four prime time hours be locally originated. Resulted in proliferation of Jeopardy, Wheel of Fortune syndicated shows.

** Hoax Rule - FCC regulations ban broadcast fabrications of disasters or catastrophes. Although the intent is to minimize panic, and avoid harm, it is also true that no similar "hoax rule" is imposed on the print media. Imagine print tabloids being banned from fabrications.

The broadcasting of hoaxes, or false information concerning a crime or catastrophe, may be a federal crime and violate FCC regulations if:

Cable Regulation & cases

Copyright Act of 1976 required cable systems to pay royalties for programming.

Cable Communications Policy Act, 1984 -- affirmed right of municipalities to award contracts, kept phone company out of cable (that changed with Comm. Act. 1996). Critics began calling cable an unregulated monopoly.

Syndex rule, If a local station had an exclusive contract to carry a program, and it was also broadcast on a distant channel, the cable system had to block the distant channel. This has been modified to make it easier for superstations to carry conflicting programming. This is different from the Financial Syndication rule (Fin-Syn) which is an anti-trust rule.

Cable Television Consumer Protection and Competition Act, 1992 -- Complex act giving local governments power to set rates, clarifying must carry rules, setting service standards.

Preferred Communications v. City of LA, 1986, competitor was allowed to string separate lines, and court recognized that cable had First Amendment interests.

 

Ownership Issues

** Original ownership limit: The Rule of Sevens -- From 1940s thru 1984, no one owner (note, not affiliate) could have more than seven TV, seven AM and seven FM stations. The law was liberalized in 1984 to 12, and again limit raised to 18 in 1992 and 20 in 1994.

** Federal Communications Act of 1996 realigned ownerships -- Following this law, there was no limit to the number of radio and TV stations owned, but owners were not supposed to reach more than 35 percent of all audiences. The law had a UHF discount provision saying the UHF stations counted as half the number as VHF stations. Theoretically, one company could own TV stations serving up to 70 percent of the market. Before 1996, duopoly was prohibited: no company could more than one FM and one AM station and one TV station in any single market. After 1996, a major market realignment for radio occurred after the rules changed for radio (Realignment of TV ownership occurred with the FCC 2003 order):

  • Metro markets (45 +) -- max is 8, w/ five of each kind (eg., five FMs, 3 AMs).

  • Large markets (30 - 44) -- max is 7, with 4 of each kind.

  • Mid sized markets (15 - 30) -- max is 6, again 4 of each kind

  • Small markets (less than 15) -- max is 5, with 3 of each

  • Mini markets (three or less) -- max is two.

** FCC Order June 2, 2003 -- The FCC retained its ban on mergers among any of the top four national broadcast networks.
Local TV Multiple Ownership Limit:

  • In markets with five or more TV stations, a company may own two stations, but only one of these stations can be among the top four in ratings.

  • In markets with 18 or more TV stations, a company can own three TV stations, but only one of these stations can be among the top four in ratings. In deciding how many stations are in the market, both commercial and non-commercial TV stations are counted.

  • In markets with 11 or fewer TV stations in which two top-four stations seek to merge there is a waiver process.

    The new rule permits local television combinations that are proven to enhance competition in local markets and to facilitate the transition to digital television through economic efficiencies. Finally, the new rule? continued ban on mergers among the top-four stations will have the effect of preserving viewpoint diversity in local markets. The record showed that the top four stations each typically produce an independent local newscast.

** Cross ownership (two media in one market) Under old rules, one company couldnt own more than one medium in any market. FCC Order June 2, 2003 --

  • In markets with three or fewer TV stations, no cross-ownership is permitted among TV, radio and newspapers. A company may obtain a waiver of that ban if it can show that the television station does not serve the area served by the cross-owned property (i.e. the radio station or the newspaper).

  • In markets with between 4 and 8 TV stations, combinations are limited to one of the following:

    • (A) A daily newspaper; one TV station; and up to half of the radio station limit for that market (i.e. if the radio limit in the market is 6, the company can only own 3) OR

    • (B) A daily newspaper; and up to the radio station limit for that market; (i.e. no TV stations) OR

    • (C) Two TV stations (if permissible under local TV ownership rule); up to the radio station limit for that market (i.e. no daily newspapers).

  • In markets with nine or more TV stations, the FCC eliminated the newspaper-broadcast cross-ownership ban and the television-radio cross-ownership ban.

** FCC ORDER OVERTURNED in Prometheus Radio Project v FCC.

From the Prometheus Press Release: "The court's decision in this case requires the FCC to reverse its controversial June 2003 decision relaxing the regulation of ownership of the newspaper, television and radio industries. Judges faulted the FCC's methodology in measuring concentration, and rejected the FCC's argument ownership limits should be removed unless evidence could be shown to warrant their retention. With the burden of proof back on the FCC, consumers groups, parents, activist organizations, and even FCC Commissioner Michael Copps joined Prometheus in celebration of the Court's decision. "The rush to media consolidation approved by the FCC last June was wrong as a matter of law and policy," said Commissioner Copps in a released statement. "The commission has a second chance to do the right thing."

More Broadcast AntiTrust cases

US v. RCA, 1959 -- complex case involving transfer of stations forced by RCA (parent of NBC) on Westinghouse. Justice Dept. claimed RCA used monopoly power, and Supreme Court agreed, even though FCC had approved the transfer. Bottom line: Justice was free to challenge mergers and transfers even if approved by FCC.

City of Los Angeles v. Preferred Communications, 1986 -- Cities may not abridge First Amendment rights of cable companies and exclude other cable providers from competition.

Broadcast Music Inc. v. CBS, 1979 -- CBS sued ASCAP and BMI saying blanket licenses for fees they negotiated was anti trust price fixing. ASCAP and BMI handle copyrights for millions of pieces of music. Flat fees are paid to them by broadcasters for rights to use music on the air. They in turn pay to copyright holders. The court upheld the voluntary arrangement, saying ASCAP and BMI licenses were nonexclusive and that CBS was free to negotiate on its own with copyright holders if it wanted to. (Of course, it couldnt, because the task would be overwhelming, but theoretically it would be possible to go it alone).

NCAA v. University of Oklahoma, 1984 -- Television plan limiting athletic team appearances (2 per season) was found to be anticompetitive. University sports team appearances can't be limited by the NCAA.

Links to interesting sites:

The Policy Limits of Markets: Antitrust Law as Mass-Media Regulation?y Howard A. Shelanski University of California, Berkeley, June 2003
(MS Word document)

As the FCC considers repealing or modifying its media ownership rules, a debate has developed between those who see the rules as inefficient economic regulations no longer necessary in light of current market conditions and those who see the rules as the last protections against a homogenized, corporate media industry. At the heart of this debate are two distinct views of the ?public interest? objectives of American communications policy, both of which have substantial precedent in FCC regulation and both of which are purported to underlie the media ownership rules currently under review. The pro-deregulatory view is of a market-oriented model in which the policy objective is to maximize satisfaction of consumer preferences. The opposing view is of a ?public-discourse? model in which the policy objective is to preserve opportunity for diverse voices and to promote informed public discussion of important issues. These competing formulations of the public interest purposes of the ownership rules lead to divergent opinions about the need for the rules and about the consequences should the FCC leave media concentration to be governed by general antitrust law.

"Anti-Trust Bust" -- Center for Digital Democracy -- In 2002 the CDD argued that citizen action is needed to prevent a planned "streamlining" ploy which would allow media companies to merge unimpeded. Consumers Union -- Who Owns the News ? Columbia Journalism Review -- Who owns What -- CJR's online guide to what major media companies own. Watching Justice -- Justice Dept. watchdog group / Antitrust pages.

 

Recent issues & useful links

University of Wisconsin readings in broadcast regulation.

Center for Digital Democracy -- Highly critical of FCC "giveaways" to big broadcasters, focus is on the broadband revolution. "Much like the radio, television, cable, and online revolutions of the recent past -- [broadband] provides yet another opportunity to make our media system more democratic, more diverse, and more participatory."

Activists Guide to the FCC -- From the Promethius Radio Project. Strongly opposed to media monopolies, favoring community low power FM radio, stages .

Low Power FM Radio broadcasting -- Official FCC site.

Reclaim the Media -- Reclaim the Media is a coalition of independent journalists, media activists and community organizers in the Pacific Northwest, promoting press freedom and community media access as prerequisites for a functioning democracy. One Reclaim the Media article involves RFK's call for a Return to the Fairness Doctrine.

Abolish the FCC says Declan McCullagh. Its outlived its usefulness and anti-trust laws are still on the books.