MCLawCh5notes - Ch 5 Electronic Media Regulations...

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Unformatted text preview: Ch. 5: Electronic Media Regulations Regulations Many of the most complex regulations have come from the broadcast industry, and it is the industry that most influences and is influenced by mass communications practitioners. Regulation of the business of broadcasting broadcasting The power of the U.S. Congress to regulate electronic media comes from Article I of the U.S. Constitution • Section 8 allows Congress to regulate interstate commerce • Hard for Congress to keep up with technology • Often there are conflicting needs between those of commercial enterprise and of the consuming public • Proliferation of laws and regs over the years shows the lack of any comprehensive or consistent congressional policy History & Principles of Regulation Regulation From the beginnings of electronic media through the 1980s, government heaped regulation on the industry. Since 1980, there has been a movement toward significant deregulation. History & Principles of Regulation Regulation Approaches to government control: • Proper role of representatives Independent delegate (trustee) & committed delegate (instructed) views • Motivation of individual citizens Homo economicus view (self­centered, immediate personal benefits) & the homo politicus view (greatest good for the largest number of people) • Appropriate goal of govt. regulation 3 views: • Moralistic – for the good of the governed • Traditionalistic – government seen as a vehicle for the advancement of their particular group • Individualistic – government itself is the problem; no regulation History of Broadcast Regulation History First commercial radio station to broadcast in U.S. was KDKA in Pittsburgh, PA in 1920. • As grew, overlapping signals and frequency interference was common • Radio Communications Act of 1912 had not anticipated such chaos and did not address many of the major issues of the day Specifically, did not grant authority to give licenses History of Broadcast Regulation History Debate raged as to how to handle the increasing problems • 1. Let the free market forces handle it Committed delegate/individualistic views Rejected because the free market had essentially created the problem at hand • 2. Government should create entire system of public radio and government should own and run it Homo politicus/moralistic views Tough to agree on details History of Broadcast Regulation History Debate raged… • 3. Agreed on a compromise where federal government controlled assignment of radio frequencies, but there would be private ownership of broadcast stations and facilities Led to the Radio Act of 1927 Newly created Federal Radio Commission had power to issue licenses The Public Interest Directive The Under the Radio Act of 1927, the FRC given power to issue licenses for only 3 years and so long as “the public convenience, interest or necessity will be served thereby” • The broadcast privilege will not be a right of selfishness, it will rest upon an assurance of public interest to be served • Act created the Federal Communications Commission (FCC) Charged with formulating a unified and comprehensive regulatory system for the industry The Public Interest Directive The From passage of the 1927 Radio Act through the 1934 Communications Act, the industry itself begged for government intervention to prevent chaos; it wanted a uniform system, fair business practices, prohibition of monopolies and establishment of an atmosphere conducive to the development of the industry. However, between 1934 and passage of the 1996 Telecommunications Act, the public interest directive steadily eroded. • Focus of governmental control shifted from greater good of the many to meeting political and ideological demands of factious groups Helped in large part by changes in political philosophies of Justices and FCC leaders Also changes in media technology and special interest group power The FCC The The purpose of the Communications Act of 1934 (and others to come after) was to maintain control of channels of radio transmissions and provide licenses for limited periods of time. • So, Congress created the FCC as an independent regulatory agency Charged with developing and enforcing communications regulations, as regards radio and TV broadcasting, and all interstate and international communications by wire, satellite, cable, or other communications technology The six major bureaus of the FCC and their functions are described in Ex. 5.1, p.116 in your text The FCC The The FCC’s mandate to implement the public interest directive is assigned to its Mass Media Bureau • 3 specific tasks: Spectrum allocation • Reservation of portions of the radio spectrum for particular uses Band allotment • Assigns the number of channels or frequencies available Channel assignment • Who is permitted to broadcast on a specific frequency • Includes assignment and supervision of station licenses The FCC The Also responsible for establishment of technical standards, fair trade and commercial practices, and creation and enforcement of often controversial regulations on the content of communications • Conflict with the First Amendment? Deregulation Deregulation A shift away from the public interest directive Probably as much for practical administrative oversight issues as for a desire to control budgets and allow more of a free market feel FCC Licensing FCC All local broadcast stations must have an FCC license to operate • In general, stations east of the Mississippi have call letters beginning with “W” and those west begin with “K” • Was a 3­year license, now an 8­year maximum • Character of the applicant still a factor and has caused applications to be denied (see p. 118 in text) FCC Licensing FCC Not the FCC’s job to protect competition in a given geographic area • Used to have to perform ascertainment studies to assess local community needs (out in the 1980s) Contested Applications • When there are two or more mutually exclusive applicants and only one available license Used to be that the focus was on serving the “public trust” • A drive to avoid monopolistic behavior and absentee ownership FCC Licensing FCC After 1978, a move to include more diversity of ownership, so race and how management would be diversified with diverse needs of the community met came into FCC decision­making • On­site, hands­on management preferred • USSCt. said that could not be a factor, too arbitrary and not required of other types of businesses • But minority ownership was supported by the Court FCC Licensing FCC Interestingly, this desire for diversity did not extend to female ownership, as the Court ruled against as late as 1992 • Such preferential treatment would not lead to diversity of programming Court then moved to a tie­breaker lottery system (wealth­based) (1985) • Competitive bidding system when the Court ruled that the integration of ownership system was unconstitutional FCC Licensing FCC The current system is called electronic simultaneous multiple­round auctions • Once minimum technical requirements met by all interested parties, the license is simply sold to the highest bidder • Licenses sold in bundles for simultaneous auction on the Web • Language in the current statute still seems to prefer minorities and women, but in practice that doesn’t happen FCC Licensing FCC To safeguard the public’s right to receive a diversity of views and information, two consistent themes in government control of the licensing and business practices of the communications industry emerged: • To avoid the creation of monopolies To accomplish this, the FCC limited the number of licenses any one individual or corporation could hold • To encourage diversity of ownership and voices FCC restricted cross­ownerships in certain categories of media FCC Licensing FCC In the 1996 Act, Congress began to allow multiple media ownerships in anticipation of the transition to digital and the associated increase in frequency. Some of the former rules and changes are: • Local radio multiple ownership rule Developed in the 1940s, said that no one entity could own more than one AM and one FM station in the same market As of 1996 Act, changed to market­tiered approach where as many as 8 stations could be owned if the market was large enough • Local TV multiple ownership rule Enacted in 1999, allows common ownership of 2 stations under certain circumstances FCC Licensing FCC Some of the former rules and changes are: • Radio/TV cross­ownership rule Enacted in 1970s, limiting number of stations that could be owned together, changed in 1999 (now called the duopoly rule) to a three­tiered market system, but being phased out (see p. 124 in text) • Newspaper/broadcast cross­ownership rule Developed in 1975, no such cross­ownership allowed because would give too much journalistic power to single entity, being phased out in light of FCC interpretation of 1996 Act • National TV multiple ownership rule Developed in 1953, originally called the “7­7­7 rule”, it limited the total number of stations that could be owned nationally by a single entity. In 1984, changed to 12­12­12, changing again in1992 to a more complicated sliding scale, then 1996 Act changed to 35% rule… FCC Licensing FCC Some of the former rules and changes are: • Dual network rule Established in 1940s, prohibited any one entity from operating more than one radio network. 1996 Act allows TV stations to affiliate with more than one network, but no network can be created by merger among Big­4 networks. • Statutory license restrictions against foreign ownership 1/5 foreign ownership only ¼ OK if a subsidiary FCC rules seem to be evolving toward permitting conglomerate broadcast domination • Seemingly allowing monopolistic control and moving completely away from the “public interest” directive of the past Cable TV Cable Began as Community Antenna Television (CATV) systems in 1960s • At first unregulated except for easements, and therefore could pick and choose which broadcast signals to capture and retransmit for a fee • 1976 Copyright Act specifically allowed cable operators to retransmit broadcast signals, but had some restrictions Must­Carry rule • Imposed by the FCC in 1965, required cable systems to retransmit the signal of any requesting broadcast station that was significantly viewed in its local market • Done to help local stations stay in business and to protect the newer UHF stations that lacked the strength of the VHF stations Cable TV Cable Cable operators filed suits challenging the must­carry rules as unconstitutional (burden on freedom of speech), and U.S. Circuit Court struck down the rules in 1980s, but Congress reinstituted them in 1992. The new rules were challenged in Turner Broadcasting in 1994. The Court ruled that the rules were content­ neutral and reviewed using an intermediate standard of review, finding that the rules served three important government interests: • Preserving local broadcast TV • Promoting the widespread dissemination of information from a multiplicity of sources • Promoting fair competition in the TV programming market Cable TV Cable Channel dedication rules were imposed by the FCC in 1976 • Cable operators required to dedicate four of their channels for public, governmental, educational and leased access • Operators challenged and the Court struck down the rules as unconstitutional in 1979 Reasoning that it turned cable operators unfairly into common carriers, something Congress itself was unwilling to do to broadcast licensees So, Congress passed the Cable Communications Policy Act of 1984 Cable TV Cable Cable Communications Policy Act of 1984 • Created four impositions on cable programming: Some operators had to set aside a percentage of their channels for use by persons not affiliated with the operator, but allowed the operator freedom from liability for what was transmitted on those channels Operators could get out of such leasing requirements if the content was deemed obscene or indecent Operators must set aside channel capacity for PEG channels, or risk losing their licenses, and they could not control its content, but were relieved of liability and obscenity/ indecency not OK Operators must provide a “lockbox” to subscribers upon request Satellite TV Satellite When Congress passed the 1976 Copyright Act, home satellite service did not exist, so the statutory copyright license extended only to cable systems After one attempt to regulate satellite TV in 1988, Congress came up with the Satellite Home Viewer Improvement Act of 1999 • Essentially the same system that had been imposed on the cable operators in 1984; upheld by the Court • Statutory copyright license, especially important for carrying local stations • Carry­one, carry­all rule (2002) – must carry all requesting stations in the area • A La Carte rule (2000) – allows satellite providers to offer local broadcast stations to subscribers either individually or as a single package Telecos Telecos Telephone companies (telecos) are covered under the Communications Act of 1934 Regulated as common carriers, so not responsible for the content of the messages they carry Natural monopolies, therefore needed to be controlled in the public interest Regulation as it grew was supposed to limit abuses of market power and promote universal service in even remote areas Telecos Telecos However, the effect of all this regulation was actually to prohibit rather than stimulate competition, and consumers complained about service quality and pricing The Telecommunications Act of 1996 tried to change the regulatory system a bit by: • Promoting competition in local markets by allowing local Bell companies to offer long­distance service • Allowed telecos to cross­own cable companies and vice­versa, and to offer video services The Internet The Originated with the military’s ARPANET • Still has the redundancy and lack of central control that defined ARPANET Therefore virtually impossible to regulate Internet Law is a misnomer in that there is no special category of law that is unique to the internet • Instead, the laws attempted by Congress to control the internet are just applications of existing legal principles to this new technology, which often is an uneasy fit Copyright, defamation, privacy, obscenity, indecency Content Control Content Prescriptive Rules • Fairness Doctrine Motivated largely by same issues guiding the pubic interest directive Required broadcasters to give coverage to controversial issues of public interest Required coverage of those controversial issues to be fair, including an obligation to permit presentation of conflicting views Balance was required but equal treatment was not Modified over the years with corollaries and doctrines (see Ex. 5.3, p. 132 in text; see especially the Zapple Doctrine, which is current) Content Control Content Prescriptive Rules • Equal Opportunity Rule Essentially says that if a station allows a political candidate to use its access to the airwaves to talk about the candidacy, then it must make the same opportunity available to other candidates for that office But, no station has to make that available to any candidate And, just the appearance of a candidate in a bona fide newscast, etc., does not invoke the rule Lowest unit charge for political candidates Records available for public inspection FCC has said that “equal opportunities” means no discrimination in rates, facilities, practices or services rendered to candidates, but does not require a station to donate time to one who can’t afford it Also does not require equal time, but comparable in terms of exposure to the audience Station cannot censor content Content Control Content Prescriptive Rules • Equal Opportunity Rule In 1971, Federal Election Campaign Act added the Reasonable Access Rule for Federal Candidates to the 1934 Act • • • Affirmative right of access for federal candidates Violation can be punished by license revocation Candidates still have to pay for time Content Control Content Also other special interests served by the Court allowing prescription of programming content: • • • Sponsorship identification rules Closed­captioning requirements Children’s television mandates Content Control Content Proscriptive Content Regs • Censorship? The denial of a right of freedom of the press and freedom of speech, and of all those rights and privileges which are had under a free government See p. 138 in text Act of 1934 clearly addresses this in section 326 Despite this, the government does censor the electronic media; protecting from obscenity, indecency, profanity “safe harbor” is the exception (10pm­6am) when only obscenity is prohibited Content Control Content Lots of contradictions in FCC rulings, statements, Supreme Court findings, etc. over the years as they relate to obscenity and indecency and censorship • • • FCC v. Pacifica (George Carlin case) Sex talk case Aborted fetuses/political ad Channeling is a form of censorship After dispensing with the “fairness doctrine” in 1987, the FCC no longer considers the rights of the public as paramount. Much of the recent censorship shows FCC allowing itself to be guided by personal objections Content Control Content 1996 Act provided two additional mandates: • The V­Chip requirement Program­blocking technology on sets made after 2000 17% actually use the technology • Program rating systems Attempt at making parental control easier Approved by FCC in 1998 Content Control Content Congressional attempts to censor the internet • Communications Decency Act (1996) Attempt to control adult communication on the internet Criminalized transmission of obscene and indecent material on internet that could be accessed by anyone under age 18 In 1997, 2 of 3 sections struck down by SC because they violated the First Amendment • • • • Void for vagueness Definition of obscenity not consistent with Miller Overbroad See pp.143­144 in text Content Control Content Undaunted, Congress passed the Child Online Protection Act (COPA) in 1998 • Imposed criminal penalties for knowingly posting for commercial purposes to the Web content that is harmful to minors • Lengthy attempt to define terms so as not to be “vague” • Still challenged as violating the First Amendment Supreme Court upheld a preliminary injunction preventing its enforcement (Ashcroft v. ACLU, 2004) Reasoning: Because it’s content­based, it has the potential to be a repressive force on speech; because “community standards” are used, it’s overbroad; less restrictive alternatives exist (blocking and filtering software) ...
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This note was uploaded on 10/03/2011 for the course MCOM 3320 taught by Professor Parksinson during the Spring '08 term at Texas Tech.

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