Jane Akre and Steve Wilson: Journalists and whistleblowers (Associated Press)

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 ..."

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 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 (and poorly designed) website at the FCC helps keep track of some issues.

Legislative History:

** 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. Note the contrast with Near v. Minnesota, 1932.

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

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 (mostly abolished)

Established 1947 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
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.

Content Regulation / Indecency & Obscenity

** FCC v. Pacifica Foundation, 1978 -- Mild sanctions upheld against radio network for airing George Carlin's Seven Dirty Words comic monologue. Defined indecency as: 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.

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 regulations on indecency and obscenity issued in 2001 are at this link. -- 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.

Following the Janet Jackson incident at the Super Bowl in January, 2004, political pressure increased to remove indecency from the airwaves. In the summer of 2004, Congress approved incrasing 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. See Adam Thierer's interesting comments at the CBS website.

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.