Regulation-10 - Regulation Quick Facts Quick License terms...

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Unformatted text preview: Regulation Quick Facts Quick License terms for TV and radio stations: 8 years FCC has five commissioners, six bureaus and about 2,200 employees Amount of fines levied against CBS for indecent programming in 2006: $3.3 million What is Regulation? What Regulation is control or direction by govern behavior, typically applied to businesses Regulation is method of coordinating complex social activities that the market can’t effectively control or produce desirable outcomes for society What is Regulation? What the government licenses broadcasters to serve the public interest public airwaves, spectrum scarcity, and local service have a long legal tradition in US Rationale Rationale Scarcity Theory: electromagnetic spectrum is limited and a national resource; government reserves the right to impose obligations & regulations on those allowed to broadcast (traditional rationale) Rationale Rationale Pervasive Presence theory: TV and radio so pervasive and potentially intrusive that the public is entitled to some protection from unwanted or offensive messages (recent rationale) Legal Precedent The Constitution The “Commerce” Clause First Amendment How did government get involved in regulation? regulation? Wireless Ship Act (1910): Large at­sea vessels must be equipped with wireless sets Radio Act of 1912: Post­Titanic regulation said radio operators had to get license from Secretary of Commerce and assigned frequencies and hours of operation to prevent interference at sea 1920s: Spectrum interference; change was needed 1927 Radio Act: Principles of scarcity theory theory Spectrum is publicly owned, not private Stations to operate in the public interest Federal Radio Commission (FRC) created to grant licenses, make rules subject to judicial review FRC eliminates interference problem ­ strengthens idea of the “public interest” The Communications Act of 1934 1934 Expanded FRC from 5 to 7 members Renamed, “Federal Communications Commission” FCC now includes wireless and telephone Bulk of 1927 legislation included and strengthened Communications Act of 1934 Communications Important sections of the Act Spectrum users must be licensed Federal candidates must have access to facilities Communications Act of 1934 Communications Important sections of the Act Equal Time section is important FCC prohibited from censoring radio & TV content Cable Regulation & the FCC Cable 1950s: FCC refuses to regulate it for lack of on­ air use 1960s: pressure from broadcasters slows cable growth 1970s: pressure from Cable wins favorable legislation Cable Regulation & the FCC Cable Local regulations differ by locale (contrast w/Fed regulations) Local governments offer a particular cable provider, right of “exclusivity” Telecommunications Act of 1996 1996 The most significant piece of electronic legislation in more than 60 years Intent ­ create competition between cable & phone companies Removed limits on number of radio stations one could own Telecommunications Act of 1996 1996 The most significant piece of electronic legislation in more than 60 years Liberalized rules covering local ownership Could own multiple stations if combined viewership is less than 35% of nation’s homes (up from 25%) Telecommunications Act of 1996 1996 The most significant piece of electronic legislation in more than 60 years Created 8­year, license renewals for both radio & TV Required new TV sets to carry “V­Chip”: parental access control Copyright Laws Copyright Copyright Origins Areas of ownership Royalties and Music Digital Millennium Copyright Act (DMCA) 1998 The Environment of The Regulation: Participants Regulation: 1. Federal Communications Commission The FCC is a major force in the creation of electronic media policy 5 Commissioners: Presidential appointment, Senate­confirmed No more than 3 from any political party The Environment of The Regulation: Participants Regulation: 1. Federal Communications Commission The 5 Commissioners are served by the following bureaus: Consumer and Government Affairs Bureau: Enforcement Bureau Wireless Telecommunications Bureau Wireline Competition Bureau Media Bureau (most important): oversees FM, AM radio, broadcast TV cable and satellite services Structure of the Federal Communications Commission Commission The Environment of The Regulation: Participants Regulation: 2. Congress Created the FCC; all previous broadcast legislation Example: ended TV advertisement of cigarettes, 1969 The Environment of The Regulation: Participants Regulation: 2. Congress Controls purse strings of FCC Can create new legislation Can hold public hearings on actions of FCC The Environment of The Regulation: Participants Regulation: 3. Courts Rivals Congress in terms of influence over the FCC Main Player: U.S. Court of Appeals (DC Circuit) Courts look for fair, nonarbitrary actions by the FCC The Environment of The Regulation: Participants Regulation: 3. Courts Courts interact with other regulatory forces – not in a vacuum Courts articulated the “pervasive presence” rationale The Environment of Regulation: Participants Regulation: 4. The White House: Another potent force President’s cabinet officers can influence policy Can initiate communication legislation The Environment of Regulation: Participants Regulation: 4. The White House: Another potent force President can influence the FCC political agenda and regulatory tone with his appointees Has own agency specializing in telecommunications: the National Telecommunications and Information Administration (NTIA) The Environment of Regulation: Participants Regulation: 5. Industry Lobbyists ­ 200 year­old force in American politics Serve a necessary function: help lawmakers learn about the impact of legislation on society Broadcasting/cable lobbyists express their views to the FCC, Congress, the Courts and the White House The Environment of Regulation: Participants Regulation: 5. Industry Lobbyists ­ 200 year­old force in American politics The major networks all maintain lobbyists Easiest for lobbyists to prevent something than to make it happen Example: broadcast lobbyists stopped Congress from forcing them to give sizable discounts to federal politicians buying campaign ads in 2002 The Environment of Regulation: Participants Regulation: 6. The Public 1970s: Citizen involvement peaked Deregulation, longer licensing terms & dwindling financial support hurt power of citizens lobbyists Two Citizen groups: Center for Media Education Media Access Project The Environment of Regulation: Participants Regulation: 6. The Public Citizens groups try to cultivate good public opinion Public influences policy through election of President and members of Congress The Environment of Regulation: Participants Regulation: 7. State and Local Governments States often have laws that touch upon areas of communications not specifically mentioned in Federal statutes (e.g. Lotteries, defamation of character) The Environment of Regulation: Participants Regulation: 7. State and Local Governments States/cities can enact laws that protect privacy of subscribers to local stations: (e.g. A candidate for office cannot access a rival’s penchant for “XXX” movies) Collect franchise fees, negotiate franchise contract The Environment of Regulation: Participants Regulation: 8. The Marketplace Concept involves buyers and sellers and general economic forces like supply, demand, competition, and prices Marketplace promotes “efficiency” Attitude of FCC towards marketplace varies with different administrations & commissioners The Environment of Regulation: Participants Regulation: 8. The Marketplace Recent trend of relying on marketplace as a determinant Disadvantage: only responsive to economic forces, not sensitive to social needs The Federal Communications Commission: Responsible for day­to­ day regulation of the electronic media The Role of the FCC The 1. Grants licenses for stations (not networks) Must be a U.S. citizen, free from foreign control Must be of “good” character Must report all felonious, adverse civil judgments Looks at potential future conduct of applicant Applicant must show financial and technical strengths The Role of the FCC The License renewal: FCC has traditionally endorsed diverse ownership Radio/TV station renewals up every 8 years Scrutiny: Has station operated in the “public interest”? The Role of the FCC The License renewal: Cable systems NOT licensed by FCC (responsibility of the local governments that grant the franchise) Renewal Forms: Station’s recent “Ownership Report” must be on file Commercial TV stations must report programs that address the educational needs of children The Role of the FCC: License Renewal Renewal Competing Applications Renewal Expectancy ­ an incumbent station will win out over a rival if past service is good Expectation of license renewal unless serious violation occurs The Role of the FCC: License Renewal Renewal License Denials Knowingly making a false statement to FCC Unauthorized transfer of control Indecency violations in programming rarely lead to refusal of renewal The Role of the FCC: Enforcement Enforcement Mildest form: FCC issues station a letter of reprimand Cease and Desist Order or a fine (forfeiture) of up to $25,000 a day The Role of the FCC: Enforcement Enforcement Short­term license renewal: 6 months ­ 2 years Allows FCC to see if past deficiencies have been corrected Refusal or revocation of licenses: rare Stations in Chicago & San Francisco have been denied renewals for representation The Role of the FCC: Policymaking Policymaking FCC makes a proposal, allows for public comments, posts it in the Federal Register Future planning: Office of Plans and Policy studies trends and anticipates future policy problems Formal Rulemaking Process Formal The FCC: Criticisms Lack of expertise Lack of resources Influence of regulated industries (e.g. regulatory capture) Revolving door Protectionist The Role of the FCC: Cable TV The FCC does NOT license cable systems State and local governments grant franchises Franchises last between 10 and 15 years The Role of the FCC: Cable TV The Many franchises are not exclusive and some cities authorize “overbuilds” Local franchise authority regulates basic rates Cable companies set rates for other tiers of service The Role of the FCC: Cable TV The Pay­per­view rates or per program services (e.g. HBO) are not regulated by FCC or local franchise authority FCC promulgates regulations that compel cable companies’ compliance: Cable Television Consumer Protection and Competition Act of 1992 The Role of the FCC: Satellite TV TV Communications Satellite Act of 1962 gave FCC power to control technical issues regarding satellite TV The Role of the FCC: Satellite TV TV Satellite Home Viewer Improvement Act (SHVI) of 1999 permits satellite carriers (EchoStar, Dish Network) to transmit local TV signals into local markets (“local into local”) An attempt to put satellite carriers on an equal footing with cable companies; fostering competition, giving consumers more choice The Role of the FCC: The Internet Internet FCC does NOT regulate Internet FCC DOES regulate telephone & cable and thus has an influence on how one connects to Internet 2005: FCC did away with regulations that treated broadband services provided by telephone companies differently than broadband offered by cable companies Equal Opportunities for Political Candidates Candidates Sec 315 (Communications Act 1934) Required that broadcasters provide equal opportunities for campaign advertising and prohibited censorship Equal Opportunities for Political Candidates Candidates Sec 315 (Communications Act 1934) “opportunities” not “time” Has to be at same ad rate Don’t have to give free time to one unless gave free time to another Must be legal candidate running for office Equal Opportunities for Political Candidates Candidates Sec 315 (Communications Act 1934) Exceptions include: Bona fide newscasts Bona fide news interviews Dona fid3e documentaries On the spot news Equal Opportunities for Political Candidates Candidates Sec 315 (Communications Act 1934) Questions of Interpretation: What about a candidate on an entertainment program Candidates technically not running until declared How much can broadcasters charge Can ads be edited Children’s Television Children’s Children’s Television Act of 1990: compels TV stations to meet the informational and educational needs of children Cap on number of commercials allowed in children’s shows Children’s Television Children’s Stations must provide a minimum of 3 hours per week of children’s educational programming Multimillion dollar endowment begun for children’s programming FCC is active in enforcing provisions for the “public interest” Copyright: Trying to Keep Up Copyright: Copyright protects intellectual and aesthetic property Includes anything “…fixed in any tangible means of expression” (i.e. records, films, TV and computer programs, etc…) Copyright: Trying to Keep Up Copyright: Protection lasts for life of author + 50 years (70, if created during or later than 1978) Doctrine of “fair use” Copyright: Trying to Keep Up Copyright: “Fully protected” means the work contains notice of the copyright and must be registered with the Copyright Office in Washington, DC Author entitled to royalty payment when material is used publicly Music Licensing Music Music licensing organizations grant rights and collect, distribute royalty payments: ASCAP, BMI, and SESAC. For a fee, licensing firms grant “blanket rights” to stations, allowing them performance rights to the agency’s entire music catalog. Money is distributed to composers and publishers. Copyright and the Internet: FileCopyright sharing Demise of Napster: right of “fair use” vs. recording industry Servers cannot control the download No use of central servers; virtually impossible to shut down Copyright and the Internet: FileCopyright sharing 1998 Digital Millennium Copyright Act: record companies and artists get an additional royalty when music is played on Internet radio (per song basis: ending many Web stations) The First Amendment Pertains to government action to prohibit expression “Marketplace of Ideas” Philosophy against government intervention Encourage Dissent Limits on Limits First Amendment Rights First Incitement (imminent lawless action) National Security Obscenity Obscenity, Indecency, and Profanity Profanity Each has a different legal definition Current definition of obscenity ­ from Miller v. California (1973): prurient, “tending to lust”, “lacking serious artistic…value” Broadcast Indecency Regulation Regulation Material alleged to be indecent must fall within indecency definition, that is must describe or depict sexual or excretory organs or activities Broadcast Indecency Regulation Regulation Broadcast must also be patently offensive as measured by “contemporary community standards of the broadcast medium” (average national listener or viewer) Broadcast Indecency Regulation Regulation Full context in which the material appeared is critically important Broadcast Indecency Regulation Regulation Principal significant factors in making fines have included: 1) explicitness or graphic nature of material; 2) whether material dwells on or repeats at length descriptions; 3) whether the material appears to pander, is used to titillate or whether presented for shock value Obscenity, Indecency, and Profanity Profanity Efforts to define standards of decency protecting the public versus adhering to principles of non­censorship George Carlin, October 30, 1973: The 7 Dirty Words Establishment of “safe harbor” between the hours of 10 p.m. and 6 a.m. Broadcast Indecency Regulation Regulation The FCC has struggled in clearly applying indecency standards in broadcasting ever since Pacifica (even w/ a “safe harbor”) Obscenity, Indecency, and Profanity Profanity “Context” of language use a continuing issue Howard Stern: “out of context”? $2 million in fines Indecency and the Internet Indecency More than 10,000 sexually­oriented sites currently Communications Decency Act of 1996: illegal to transmit indecent and obscene material over Internet to minors Indecency and the Internet Indecency Supreme Court rules CDA of 1996 unconstitutional, affords Internet protection same as books/magazines Congressional response: 1998 Child Online Protection Act: Still being evaluated Indecency and the Internet Indecency 2003: Children’s Internet Protection Act Congress has not found a way to protect children from Internet obscenity while also protecting principle of free speech for adults (libraries must install computer filters) Equal Employment Opportunities Opportunities Broadcast industry bound by federal law prohibiting job discrimination based on race, color, sex, religion, etc. Broadcast industry bound by Equal Employment Opportunity Commission The Law and Broadcast Journalism Journalism Defamation: protection of reputation Makes sure that the press does not act in an irresponsible and malicious manner Erroneous stories can bring serious consequences Slander: spoken words; Libel: stated in a tangible medium The Law and Broadcast Journalism Journalism Defamation: protection of reputation Libel treated more seriously due to wider circulation Journalists particularly wary of libel: potential large cash awards Defamation: Protection of Reputation Reputation Plaintiff must prove 5 things to win 1. 2. 3. 4. 5. Statement(s) defamed, caused plaintiff harm (loss of wages) Statement was broadcast Plaintiff was identified in broadcast Organization shows degree of fault or carelessness Statement is proven to be false Libel: Protection of Reputation Libel: Press Defenses Against Libel Truth of statement Privilege or immunity: public’s right to know versus reputation Libel: Protection of Reputation Libel: Press Defenses Against Libel Fair comment or criticism: public officials subject to both but does not entitle press to consciously report lies Plaintiff must prove malice (for punitive, cash damages) 1964: New York Times v. Sullivan Invasion of Privacy Invasion Relatively new area of law Person has right to be free from intrusions or unwarranted publicity Like defamation, the law differs in many states Invasion of Privacy Invasion Contains 4 areas: Unwarranted publication of private facts Intrusion on a person’s solitude or seclusion Publicity that creates false impression (“false light”) Unauthorized commercial exploitation of name/likeness Protecting Sources Protecting Conflict since 1950: conflict between courts & reporters Since 1970s, courts have supported the idea that reporters and their confidential sources have a privileged relationship: similar to doctor­ patient Shield laws’ substance varies from state to state Cameras in the Courtroom Cameras Conflict of two basic rights Conflict between the right to a fair trial and the right to report the news Cameras in the Courtroom Cameras Conflict of two basic rights Controversy begun during 1932 kidnap & murder trial of Charles Lindbergh’s infant son Trial was media circus ABA conjures up Canon 35 Canon 35 enacted by many states as a sober reaction Cameras in the Courtroom Cameras Conflict of two basic rights Fresh debate since O.J. trial in 1995 Cameras still not allowed in federal district courts/Supreme Court Regulating Advertising Regulating Supreme Court decisions reflect need for protections under First Amendment Protections do not match degree given to other forms of free speech, however How is false, deceptive advertising controlled? By the Federal Trade Commission Regulating Advertising Regulating FTC regulates against deceptive advertising but does realize there is room for reasonable exaggeration in advertising: “puffery” Advertising is very self­regulating to prevent deceptive ads Regulating Advertising Regulating Food and Drug Administration Regulates the prescription drug ads on TV 1997 ruling allows companies to advertise to public – not just physicians Current regulations require that drug ads contain information about the drugs’ safety and side effects Self-Regulation in Broadcasting and Cable and Codes: written statements of principle guiding behavior E.g.. “Thou shalt not bear false witnesses against…” Codes are common in all professions: medicine, law, journalism The NAB Code: National Association of Broadcasters Established radio code in 1929, included TV in 1952 Covered both programming and advertising Afteranti­trust suit, NAB code was revoked Self-Regulation in Broadcasting and Cable and NAB: National Association of Broadcasters Radio & Television News Directors Association (RTNA) 1990 ­ Voluntary programming principles adopted Code of Broadcast News Ethics Society of Professional Journalists (SPJ) American Advertising Federation (part of Better Business Bureau) Code for objectivity and press responsibility Code for truthfulness in advertising Self-Regulation in Broadcasting and Cable and Without Codes: Advantages to codes Management must be sensitive to political, social and economic sensibilities of community Stations develop own policy guidelines Public & employees are made aware of specific policies Codes could be used in court against a station Need to be worded vaguely to reflect an entire organization and thus are not useful day­to­day Disadvantages to codes Departments of Standards and Practices Practices Standards and Practices Departments have been cut back, reflecting a more liberal viewing public Societal standards more tolerant Departments of Standards and Practices Practices Success of The Sopranos & Sex and the City has encouraged programmers to “push the envelope” The V­Chip passes some responsibility on the public Department of Standards and Practices Practices Network’s competitive position influences standards Fox Network: introduced controversial shows like Married With Children,The Simpsons Department of Standards and Practices Practices Cable has more leeway in following standards South Park in the late evening The Osbornes at night Department of Standards and Practices Practices Premium Cable channels, HBO & Showtime have greatest latitude when it comes to mature and sexual content Sex and the City would never be aired by a broadcast network without editing content ...
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