THE FCC AND THE PUBLIC
In 1964 three petitioners, the United Church of Christ, the Rev. L. T. Smith, and Mr. Aaron Henry, requested that the FCC not renew the license of WLBT-TV, owned by Lamar Life, in Jackson, Mississippi. The parties claimed that WLBT had a long history of discriminatory practices toward the black community in Jackson. Not only did the station refuse black people the right to use its facilities, the station also systematically promoted segregationist views and denied the right of anyone to present opposing views.
Although the FCC denied the petitioners official standing, it did take their claims regarding programming seriously. The commission gave the station a one-year probationary license and ordered the station to stop its discriminatory practices.
The petitioners did not consider the one year license period a satisfactory solution and so they appealed the FCC decision to the United States Court of Appeals. The Court ruled that the petitioners had the right to official standing and that their claims against the station were serious enough to warrant a complete hearing. The FCC held the hearing and again decided in favor of the station and renewed its license with no special conditions. The people who were involved in the case were outraged at the FCC's decision. They maintained that just because the station had been "good" during its probationary year, it should not be forgiven for its past programming practices.
To make matters worse, during the hearing, the FCC refused to hear some of the witnesses against the station.
In order to understand this conflict involving the FCC, let us look at some of the station's practices during the license period in question: WLBT regularly carried programs and spots about the White Citizen's Council, which maintained that the Communists were behind the Civil Right's Movement.
Although 47 percent of the people living within the station's coverage area were black, they were almost completely unrepresented in the station's programming.
WLBT regularly interrupted pro-integration programming with a sign that said "Sorry-cable trouble." The station frequently used the terms "nigger" and "negra." Before each presentation of national news on the "Today" show a local announcer would say: "What you are about to see is an example of biased, managed Northern news. Be sure to stay tuned at 7:25 to hear your local newscasts.
When a black political candidate tried to buy time for his political campaign, the station manager told the candidate that if he persisted his body might be found floating in the local river.
In view of these examples it seems incredible that the FCC could renew a license for a station that was so obviously not operating in the public interest.
Nevertheless, even though it was not a unanimous decision, the FCC still renewed the station's license. Thus, the only recourse for the petitioners was to go back to the Court of Appeals which again overruled the FCC decision. Finally, after years of hearings and appeals, the FCC was directed by the Court to deny renewal of WLBT's license. The FCC had no choice but to comply.
The WLBT case was one of the most important cases in broadcast regulation in that it established the right of ordinary citizens to request that a station's license be denied. The case set a precedent that has granted numerous individuals and citizen's groups the right to be heard in regard to station licenses.
On the other hand, the case graphically illustrates the shortcomings and limited vision of the FCC. In the following section we will discuss the make-up of the FCC, what it can and cannot do, and some of the reasons why it is so often inefficient and ineffective.
CREATION OF THE FCC
Although the FCC was not the first federal agency designed to regulate broadcasting (FRC, 1929-1934), it was the first commission which had regulatory control over broadcasting and wire communication. Much of the legal philosophy that gave rise to the FCC was developed when Congress created the FRC. In fact, many of the provisions in the Radio Act of 1927 were transferred into the Communications Act of 1934, which established the FCC. For this reason, it is appropriate to review some of the ideas that went into the creation of the FRC. When Congress was considering a new radio commission, industry representatives, government officials, and educators urged Congress to establish an effective method to protect both the listener and the broadcaster. As Secretary of Commerce Hoover said, "The ether is a public medium, and its use must be for public benefit...Hoover continued by observing:
[The main] consideration in the radio field is, and always will be, the great body of the listening public, millions in number, countrywide in distribution. There is no proper line of conflict between the broadcaster and the listener .... Their interests are mutual, for without the one the other could not exist.
Hoover's declaration became the philosophical basis for radio regulation. Let us review the three points that permit the government to regulate radio. They are: 1. Radio is a public medium; 2. There are not enough radio channels for everyone to have a channel; 3. The government must regulate radio waves in the interest of the public and the broadcaster.
Thus, the Radio Act of 1927 set out to protect both the private interests of broadcasters and the more public interest of listeners, but there was no suggestion that the existing system needed to be changed. Basically the Radio Act was to decide which few broadcasters could stay on the air. The private, profit-motivated system of broadcasting continued on the same path it had begun before governmental intervention.
Later during 1933 President Roosevelt, who was dissatisfied with the existing system of radio regulation, called for an interdepartmental study of communications to determine if there was a more effective method for regulating electrical communication in the United States. The resulting study group recommended that a new agency be formed with power to regulate wire communication, which was then under the Interstate Commerce Commission; radio communication, which was controlled by the FRC; and other aspects of electrical communication, which were under the jurisdiction of the President. As a result of the committee's report and Congressional hearings, the FRC was abolished in 1934 and replaced by the FCC with expanded powers to regulate all interstate wire and radio communication in the United States. In addition, the FCC was created as a permanent body whereas the FRC had been a temporary agency. Although the new commission's jurisdiction had been enlarged, its mandate remained one of protecting the private interests of business within the commission's view of the "public interest".
AUTHORITY FOR CREATING FCC
When Congress wanted to create an agency to regulate broadcasting it looked to the Constitution for guidance. The authority to regulate radio and wire communication was given to Congress in the Commerce Clause of the Constitution, which states, "The Congress shall have the Power . . . to regulate Commerce with foreign Nations, and among the several States . . . .. " In the judgment of Congress, broadcasting and other forms of radio communication were commerce within the scope of the Constitution. Furthermore, Congress felt that broadcasting was an interstate activity since many signals cross state lines.
To make certain no conflicts with the states arose, Congress gave the FCC authority to regulate only interstate and foreign wire and radio communication, but without extending the FCC's powers to communication within states.
Parenthetically, the FCC was given the authority to regulate all broadcast stations including those that do not appear to cross state lines because no station can say with certainty that its signal will not cross a state line, and many broadcast signals cross state lines and broadcasting is regulated as a class. In addition, when Congress directed the FCC to regulate wire and radio-communication, it gave the commission authority to regulate long distance telephone communication, telegraph companies, and specialized services such as citizen band, amateur, and taxi radio.
While the FCC has wide authority to regulate business communication, it cannot regulate governmental use of radio communications. This means that the FCC cannot intervene in the activities of the military nor can it regulate the communication activities of other branches of government. However, the military and other governmental agencies that use radio frequencies are not free to wander over the radio spectrum at will. Government users of radio have regulations and statutes that limit their use of radio waves.
"THE PUBLIC INTEREST, CONVENIENCE, AND NECESSITY"
The Communications Act of 1934, which created the FCC, directs it to regulate many aspects of radio and wire communication in quite specific terms.
However, Congress did not always wish to be so detailed and so the FCC was given the general mandate of regulating in "the public interest, convenience, or necessity." This mandate gives the FCC wide latitude within which to use its discretion and applies to many areas of FCC jurisdiction. For example, the FCC may write rules and regulations to implement the intent of the Communications Act if the "public interest, convenience, and necessity" will be served.
In addition, the FCC must award, revoke, and renew licenses only if it can show that the "public interest, convenience, and necessity" is aided by its decision.
However, the public interest mandate appeared too general to at least two groups of individuals. In fact, these groups were so concerned that Congress had given the FCC unrestrained authority to act arbitrarily that they asked the courts for a ruling on the constitutionality of the "public interest, convenience, and necessity" mandate. These two companies, Pottsville Broadcasting Company and Allentown Broadcasting Corporation, were told by the United States Supreme Court that the "public interest" was as concrete a mandate as the complicated factors of radio permitted." Thus, the Supreme Court upheld the FCC's use of the public interest mandate as its authority to regulate.
STRUCTURE OF RADIO LAW
Congress established the FCC as an independent commission along the lines of such agencies as the Interstate Commerce Commission and the Federal Trade Commission. An independent commission is a separate entity, "independent" of the other three branches of government. The independent commissions form a fourth branch of government to regulate, creatively and effectively, one particular aspect of business such as communications. (As we shall see later this concept works well in theory, but not so well in reality). To function as a regulator the FCC must have the scope of its authority stated explicitly, which is the role of the Communications Act of 1934. This Act is divided into six sections, also called subsections or titles. The first section of the law states the general provisions and scope of the Communications Act. In this section are the reasons for radio law, definitions of important terms that appear throughout the law, and the organization of the FCC. The second section deals with common carrier regulation such as telephones, telegraph, and microwaves. The third title, of more interest to students of broadcasting, deals with radio. In legal terms, "radio" refers to radio and television since both use radio waves. This section contains the provisions that deal with the formation of Corporation for Public Broadcasting. In fact the legislation forming CPB is to be found here. (See Figure 10-1.) The fourth and fifth titles of the Communications Act deal with fines or penalties and with procedures and methods, that the FCC uses to carry out its assigned duties, the sixth section deals with miscellaneous matters such as the war powers of the President over electrical communications.
THE FCC AS LEGISLATOR AND JUDGE
Since Congress could not possibly have foreseen all the problems that might arise in radio, the responsibility of writing specific rules and regulations consistent with the Communications Act was left to the FCC. Just as the Communications Act derives its authority from the Constitution of the United States, FCC rules and regulations derive their authority from the Communications Act. And just as provisions in the Communications Act must be consistent with the Constitution, so must provisions in the FCC rules and regulations be consistent with the Communications Act. As Figure 10-2 shows, FCC rules and regulations are subordinate to the Communications Act. But where the FCC has jurisdiction, its rules and regulations take precedence over laws passed by states. That is, the FCC has authority over the interstate aspects of radio communication and states may not intrude into the FCC's domain.
The Communications Act prescribes penalties for violators of either FCC rules and regulations or the Communications Act itself. The penalties are consistent with the importance Congress ascribed to the Communications Act and FCC regulations. A violator of the Communications Act may be fined up to $10,000, or may be imprisoned for as long as one year, or both for the first conviction. A second violation may lead to a two-year prison term and a $10,000 fine. Violators of FCC rules and regulations may only be fined $500. There is no provision for a prison term.
Not only did Congress authorize the FCC to function as a legislator, it directed the commission to function as a judicial body; that is,. it must review, award, revoke, and renew licenses to use wire and wireless communication devices. In this regard, the FCC must examine the qualifications of applicants to determine if they are qualified to operate a broadcasting station. In its review of applicants, the FCC must use the Communications Act and its own rules and regulations as its basis for judgment.
Licenses are often granted by the staff of the FCC, but if applicants are dissatisfied with the decision they receive, they may appeal through the FCC and the Courts. Within the FCC an applicant may appeal first to an administrative law judge. This judge will rule on legal points and will render a decision.
However, if the applicant remains dissatisfied, he or she may appeal to a Review Board composed of five senior FCC employees and, from there, to the seven member commission. (See Figure 10-3.)
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SCOPE OF FCC AUTHORITY -- According to the Communications Act of 1934, the FCC has the authority to regulate the following areas consistent with the public interest:
1. Devices that can transmit radio energy
2. The sale of devices that can transmit radio waves
3. Classify radio stations
4. Prescribe the nature of service provided by stations
5. Assign bands of frequencies to different types of radio services
6. Set the location of transmitters
7. The kind of equipment stations use
8. Create specific regulations consistent with the Communications Act
9. Conduct studies of radio
10. Set the geographic region or area a station may serve
11. Create special rules to control stations engaged in network broadcasting
12. Create specific regulations on keeping station logs, and the type of signals stations may use
13. Set license qualifications for people operating transmitters
14. Designate call letters
15. Set times when stations must air call letters
16. Regulate the construction and color of transmitter towers.
17. Grant licenses
18. Require UHF tuners on television sets Source: Communications Act of 1934 amended through January 1969.
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----------------- I Title I General provisions A. Purpose B. Definitions
C. Qualifications of Commissioners D. Organization I Title II Provisions
of Wire A. Licenses B. FCC Powers C. Sanctions I Title III Provisions
of Radio A. Powers B. Licenses C. Procedures D. Sanctions E. Corporation
for Public Broadcasting I I I Title IV Procedures A. Appeals B. Jurisdiction
C. Hearings Figure 10-1. Details of the Communications Act. Source: Communications
Act of 1934 Amended to January 1969.
Title V Title VI Penal Miscellaneous Provisions
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DISTINCTION BETWEEN COMMON .... CARRIERS AND BROADCASTING
The Communications Act of 1934 distinguishes between broadcasting and all other forms of radio and wire communication by specifically noting that broadcasting does not come under the common carrier provisions of the law. Broadcasting, says the law, is the "Dissemination of radio communications intended to be received by the public" [3(4)(0)]. Common carriers usually hold local monopolies over the business in which they are engaged. Thus there is only one telephone company in a city or perhaps a state; only one electric power company in an area; and only one water company. In all of these cases the companies give up competition and in return their rates and the places where they can run their services are regulated by public service commissions.
Congress did not want broadcasting to fall into this kind of monopoly situation, but preferred that many stations in a market would compete with each other. Through competition the government hoped that stations would keep their rates reasonable and their programs high quality. Congress did not wish to have the FCC setting .... program formats, nor did it wish to have the FCC regulating rates.
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United States Constitution 1 Communications Act of 1934
1 State Laws FCC Rules and Regulations
Figure 10-2. Legislative line of authority over radio. All legal authority
derives from the United States Constitution as the founding document
of the United States. The Communications Act derives its authority from
the Constitution and FCC Rules and Regulations derive their authority
from the Communications Act. State laws are passed by respective governments.
It should be noted that not all state laws come under the jurisdiction
of FCC Rules and Regulations.
Figure 10-3. Review of FCC decisions. Source: * 402 of the Communications Act of 1934.
The applicant may, further, appeal to the federal courts.' If the appeal regards a license issued by the FCC, then the appeal would be heard by the Federal Court of Appeals for the District of Columbia. Appeal to the Court of Appeals will always result in a hearing. If an individual is still unhappy with the decision rendered by the Court of Appeals, then appeal to the United States Supreme Court is the next step. However, the Supreme Court can choose not to hear the appeal. These safeguards are built into the regulatory process so that the FCC may not be the sole arbiter in these matters.
ORGANIZATION OF THE FCC
The FCC has two types of employees: at the highest level are seven com missioners appointed by the President with consent of the Senate. Below the commissioners is the commission staff. This staff is composed of lawyers, engineers, technical personnel, secretaries, and other people required to maintain the Commission. The entire agency is composed of approximately 1900 individuals located in Washington and other cities.
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FCC OFFICES
The FCC maintains twenty-four field offices. These offices, located all over the nation, provide testing places for those who wish to take any of the FCC's license tests, and they provide headquarters for the field engineering staff who monitor the performance of stations.
These offices are located in the following cities:
Boston, Mass. New York, New York Philadelphia, Pennsylvania Baltimore, Maryland Norfolk, Virginia Atlanta, Georgia Miami, Florida New Orleans, Louisiana Houston, Texas Dallas, Texas Los Angeles, California San Francisco, California Portland, Oregon Seattle, Washington Denver, Colorado St. Paul, Minnesota Kansas City, Missouri Chicago, Illinois Detroit, Michigan Buffalo, New York Honolulu, Hawaii San Juan, Puerto Rico Anchorage, Alaska Washington, D.C.
Source: Federal Communications Commission: Directory of Organization and Personnel, (Washington, D.C.: National Association of Broadcasters, 1974), pp. 11, 12.
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Although the commissioners have the authority to hire the staff, they are bound by civil service laws and provisions of the Communications Act in their hiring practices.
Many staff-level people enter the agency and remain there for much of their working life. Thus the civil service staff is more stable than the commissioners, who are appointed for seven-year terms and who sometimes resign before the expiration of their term. Most proceedings begin with the staff, and many decisions are made without reaching the Commission, making the work of the staff very important.
Commissioners
Qualifications. The commissioners must meet certain qualifications. They must be American citizens who have no financial interest in the manufacture or sale of radio equipment, in businesses involved in communication by wire or radio, in companies providing wire or radio communication, or in any company owning stocks or bonds in a communication company. Furthermore, commissioners may not be engaged in any work or business other than their job as a commissioner.
Tenure. The Communications Act authorized the President to appoint seven commissioners in 1934 with terms varying from one to seven years so that a vacancy occurred each year beginning in 1935. Succeeding commissioners have had seven-year terms, thereby maintaining annual vacancies. The law provides that if a commissioner resigns his or her position before the expiration of the seven-year term, a new appointee may be selected to serve out the unexpired portion of the term. A commissioner's salary, because of a 1975 law, has a built-in cost of living adjustment that automatically adjusts the salary annually to conform to the cost of living index. When the law was passed a commissioner was receiving $38,000 and the chairperson was receiving a salary of $40,000. Appointments. Since a commissioner is appointed by the President few, if any, commissioners have received a nomination to the FCC without either knowing or working for a presidential candidate or without having close ties with an influential senator. When selecting a new appointee, the President has often consulted members of Congress whom he respects or whose support he needs. Some have suggested that a new President's first appointment has tended to be someone who has received strong Presidential favor; the second appointee usually has been a favorite of the opposition party; and succeeding candidates have tended to be individuals who would alienate no one.
No matter how a President selects commissioners, the Communications Act prohibits the President from placing more than four commissioners of any one party on the FCC at one time. Even with the limitation on party affiliation, a President's power is great because it is possible for him to nominate individuals from the opposition party who favor his views. This power is better understood when one notes how many commissioners recent presidents have appointed.
Kennedy nominated four commissioners to the FCC. Later President Johnson selected two new commissioners, and during his years in the White House President Nixon selected eight commissioners. President Ford appointed two commissioners in 1976. It should be noted that each year a commissioner's term expires and the President may reappoint the same commissioner or a new commissioner. Johnson could have appointed at least five new commissioners, but chose to reappoint many of those already on the FCC. Duties. The commissioners have authority to expend funds allocated to the FCC for studies related to radio or wire communication, to pay salaries, to purchase equipment, to pay rent on buildings the FCC uses, to conduct hearings on licenses, and to create rules and regulations. The commissioner designated as the chairperson by the President also functions as the chief executive officer for the agency. In this capacity the chairperson has an office, Office of the Executive Director, which assists in planning and directing duties of the FCC. Figure 10-4 shows the arrangement of the various bureaus, offices, and staffs as they relate to the chairperson and other commissioners.
To assist in the execution of their duties, each commissioner may appoint a personal staff composed of a legal assistant, an engineering assistant, and a secretary. Since this administrative staff comes and goes with a commissioner, it does not come under the civil service laws. (see §4(f)(2)) In addition to other duties, the Commission was directed by Congress to prepare annual reports that are to be forwarded to Congress for its review.
Congress was specific in prescribing the contents of the annual reports, which are to include: information that would be valuable in answering questions about the regulation of interstate and foreign communication; information that would help Congress assess the work of the FCC; statements about the funds spent by the FCC; recommendations on the need for additional funds. Besides issuing an annual report, Congress directed the FCC not only to make all its records public but also to publish the records in a way that would serve the public interest.
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COMMISSIONERS CHAIRMAN OFFICE OF PLANS AND POLICY OFFICE OF OPINIONS AND REVIEW BOARD
Figure 10-4. Federal Communications Commission. Source: U.S. Government
Manual 1975/1976 (Washington: General Services Administration, 1975).
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OPERATION OF THE FCC
The FCC as Legislator
As noted earlier, the FCC issues rules and regulations from time to time to implement the intent of the Communications Act. The terms "rules" and "regulations" are used interchangeably. In fact, in Black's Law Dictionary the word rule is used in defining regulation and vice versa. The title of the document containing the FCC's guidelines is called "Rules and Regulations." Thus the two may be thought of as meaning the same thing.
Congress imparted power to the FCC to act as the arm of Congress without specific authorization for every rule and regulation. When the FCC creates a new law it demonstrates its legal force even though Congress may choose not to
take specific action regarding the rule. In its legislative role, the FCC is to write regulations that would set technical standards for the industry, govern the FCC's own behavior, and serve as the standard in settling disputes.
When the FCC wishes to create a new regulation, it first issues a proposed rule that functions as a trial balloon to see how the industry and citizen groups will react. If the proposed regulation raises protests from interested groups then the FCC conducts public hearings to determine public sentiment. The hearings may result in amendments to the proposed regulation; the proposed rule may be abandoned; or it may become a regulation without change.
Whatever the results, a dissatisfied individual or group may appeal to the courts.
The FCC has the power to write regulations that classify stations in ways which would clarify their operation. The FCC has classified some stations as clear channel stations, others as community stations, and still others as regional stations. Each classification limits a station's operations. For example, many community stations can remain on the air only during daylight hours.
In addition to creating rules governing the performance of a station, the FCC was authorized to establish requirements for operators of stations. In this task the FCC has created a number of classes of operators and tests, which applicants for each class must take. The FCC has further written rules that specify what classes of operators a station must employ.
The FCC as Licensor The most important power of the FCC is its licensing power because it is through this means that the FCC awards and revokes licenses to operate radio equipment. The FCC's licensing power becomes more significant when one realizes that the maximum term of a license, by order of Congress, is only three years. The FCC is free to grant licenses for shorter periods if it feels the public interest will be served." So great is the concern of Congress that broadcasters not have permanent control of a radio channel that each applicant must sign a waiver (Sec. 304) that acknowledges that the license is valid only for the term issued by the FCC and that the licensee has no ownership rights to the radio channel. At the end of the license term the government is free to refrain from renewing the license if the public interest would not be served by renewal. The purpose of the waiver is to clarify that the government, as trustee for the public, owns the radio channels and that the licensee is only borrowing the channel from the government to use in the public interest.
Qualifications
To receive a license the applicant must fulfill the requirements of the Communications Act and FCC rules and regulations. In determining eligibility the FCC must examine the applicant's qualifications in the following areas:
1. Citizenship. Licenses will not be awarded to aliens or to companies in which alien ownership or control exceeds one-fifth.
2. Legal Qualifications. No license is to be given to an applicant who has been convicted of a violation of the antitrust laws.
3. Financial Qualifications. An applicant must show that he or she has the necessary financial assets to set up the station and keep it on the air while it is building sales revenues. The applicant must be able to purchase the necessary equipment and maintain it for a reasonable period of time. The exact amount of time is dependent upon the applicant's estimate of the time needed to build the station into a paying enterprise.''
4. Technical Qualifications. The applicant must be able to show that he or she has the necessary engineering qualifications to operate the station within FCC requirements. This means that the applicant must employ people with the necessary FCC operator licenses.
5. Character Qualifications. This aspect is usually based in part upon the honesty of comments made on the application and in part upon any criminal convictions the applicant may have.
6. The Program Proposal. Of great importance to the FCC is the applicant's proposal for programming the station. In this regard the FCC looks at the amount of news, sports, entertainment, agricultural, public affairs, religious, educational, and instructional programming the applicant plans to offer. While the FCC has no exact rules on the amount of time that should be allocated to each area, it does look at how the applicant assessed local needs and proposed to serve those needs.
Securing the License
To secure a license one must file application forms with the FCC indicating that all of the requirements in the Communications Act and FCC rules and regulations have been met. Once this is done the applicant must fulfill certain procedures required by law. First, the applicant must publish the fact that he or she wishes to secure a broadcasting license in newspapers or other local media in the area in which the station will be constructed. By this method the government hopes to discover if other qualified applicants wish to apply for the same channel.
Mutually Exclusive Applications
In the event that no other applicant appears, the FCC may award the license to the original applicant if all of the FCC's requirements have been met.
Frequently, however, a second applicant may wish to apply for the same facilities and when this "mutually exclusive" situation occurs, the FCC must conduct a comparative public hearing to decide which applicant is more qualified."
The second major area the FCC considers in the competitive situation is programming. In this regard the FCC attempts to determine which applicant will offer the most local programs, which will offer the most live programs, and which will program the least commercial matter.
Fees for Licenses
For the privilege of engaging in broadcasting, one must pay the FCC three different types of fees-filing fees, grant fees, and annual fees. Each of these fees is graduated on the basis of the size and type of station one wishes to operate.
The filing fee is paid to the FCC at the time an applicant requests a license and only assures that the FCC will examine the application. It in no way commits the FCC to grant a license to the applicant. The filing fee ranges from $50 to $10,000 depending on the size of market and type of license requested. The lower fee would be for very small AM station while the larger fee would be for a VHF television station in a large market.
After the FCC has taken whatever administrative action is necessary and is ready to award the license, the applicant must pay a grant fee. The grant fee covers some of the costs the FCC incurs in providing the license to operate. It is, in effect, the admission price to regular broadcasting. Grant fees range from $340 to $67,500 and, once again, depend upon the size of market and type of service requested.
Finally, the FCC charges stations an annual fee, which is based upon the rates the station charges to advertisers. Like the other two fees the annual fee is intended to defray some of the FCC's operation expenses, and all of the fees are keyed to the amount of revenue the station might be expected to receive. However, as a result of a court case, the FCC's fee schedule was declared illegal and in early 1977 the FCC requested the assistance of Congress in creating a new schedule. As a result, fees were not being collected as of this writing and the future of fees was uncertain.
The FCC, over the years, has come to require specific performance in several areas of programming such as political use of broadcasting, fairness, and personal attack. Each of these areas are briefly mentioned below and are more fully developed as current issues of broadcast regulation in Section 11.
Equal Time. A broadcaster is not required to accept advertising for political candidates, but if the station does carry any advertising, it must afford equal opportunities to all candidates for the same office. This provision stipulates that each candidate be permitted to purchase equal amounts of time for equal amounts of money. If candidate Jones purchases ten thirty-second spots for $15.00 each, then candidate Smith must be permitted to purchase ten thirty second spots for $15.00 each. Both candidates must be sold the time for the lowest rate card price. If Smith does not have enough money to buy all ten spots, the station does not have to donate the time that the candidate cannot afford.
Not only must each candidate be able to buy the same amounts of time for the same price, but they have the opportunity to secure equal quality time.
When Jones buys a ten minute prime-time spot, Smith must be able to buy the same. The quality, length, and cost of the time offered to each candidate must be equal.
Fairness Doctrine. The Fairness Doctrine is the FCC's statement, made first in 1949" and restated in 196428 and 1974,28 requiring stations to be fair or balanced in their treatment of important controversial issues. The Fairness Doctrine permits editorializing by the licensee, but it orders station owners to be careful in seeing that the overall treatment of controversial issues be balanced so that listeners may have the opportunity to hear most shades of opinion. This Doctrine is invoked when an issue is (1) controversial and (2) of public importance. Under the Fairness Doctrine the station need not balance equal amounts of time devoted to the liberal and conservative viewpoints, but it must use its discretion in being fair.
Programming Statements. From time to time the FCC writes policy statements on its view of responsible programming such as the Blue Book, which was published in 1946. In 1960 the FCC followed up with a much shorter statement of its views on programming. In this statement the FCC listed fourteen areas which it said were the major elements in determining if the station's programming was in the public interest. They were: 1. local self expression; 2. use of local talent; 3. children's programs; 4. religious programs; 5. educational programs; 6. public affairs programs; 7. editorialization; 8. political broadcasts; 9. agricultural programs; 10. news programs; 11. weather and market reports; 12. sports; 13. minority programs; 14. entertainment?' The FCC pointed out that the list was not all inclusive and that it might change from time to time.
By 1971 the FCC believed that programming proposals should be judged upon what the local community wanted and issued a statement on how stations should ascertain the interests of the community. The Ascertainment Primer, as it was called, directed stations to: consult with community leaders and members of the public, evaluate the material collected, and show how programming would serve the needs revealed by the ascertainment survey.
Logs
As proof that the station is both on the air and programming as it should be, each station must maintain program and engineering logs which record all aspects of station operation. According to the FCC regulations [ 73.670] the program log must indicate whether a program is sustaining-programs not paid for-or commercial; when the program was aired, and when commercial and public service messages are aired. In addition the type of program must be noted in line with the fourteen types of programs listed in the Blue Book. Stations must also indicate if the program was live, recorded, or network and when station call letters and location were aired.
Besides the program log, the station must maintain the engineering log, which records the frequency on which the transmitter is operating and which indicates the technical measures that show the power with which the station is operating. Other entries include notes in which the operator certifies that the tower lights are operating correctly and registers anything unusual such as a power failure.
Sanctions
To enforce its rules and regulations and the Communications Act the FCC has several sanctions which may be imposed upon stations. The most severe is the revocation of a license authorized in 312(a) of the Communications Act, but the FCC rarely uses this power because it is so harsh. A related power is refusal to renew a license upon its expiration. This power, of course, has the same impact as revoking a license because the holder of the licensee is not permitted to broadcast after the license lapses.
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LICENSE RENEWAL
Broadcasters have long desired new laws which would make their broadcast licenses more secure. The present law permits a broadcaster to hold a license for three years. At the end of the three year term the broadcaster must apply for a renewal license, which, if granted, would authorize the broadcaster to use the radio waves for another three years. However, the present law permits interested parties to apply for the channel an existing broadcaster is using. If the application of the new party appears better than the proposal for the incumbent, then the FCC is free to award a license to the new applicant and not renew the license of the incumbent.
Broadcasters have gone on record as desiring a five year license and one that can only be challenged when the incumbent has clearly failed to fulfill the conditions of the license. Consequently, broadcasters have been asking the Congress to amend the Communications Act to incorporate their requests. During the ninety fourth Congress (1975-1976) dozens of bills were pending before both houses of Congress that would give broadcasters all or part of what they wanted in renewal relief.
Most bills differed only in the term of a license or in the conditions under which a license may be challenged. The bills ranged from retaining the present three year term to permitting a five year license term. Some bills would retain the present right to challenge an incumbent, while others would make it virtually impossible for challengers to oppose incumbents. Although many bills were introduced, it is probable that Congress will take no immediate action.
This is a case where Congressional inaction works to the benefit of citizens. Almost all bills would make it more difficult to have a license revoked, either because of the long license term or because of the new legal protection of incumbents.
Source: "Status of Major Legislation in the 44th Congress," Access February 9, 1976 (#27), p. 17
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A somewhat less severe measure taken by the FCC is to renew licenses for a shorter period than the usual three years. This serves as a kind of probation during which the licensee has the opportunity to prove to the FCC that it is willing to improve its performance to merit a full term license. Before the FCC imposes such sanctions against a station it generally calls a hearing on the station's license. In fact, a licensee has a right to a hearing before its license is terminated or shortened and, because of the seriousness of these actions, licensees generally demand a hearing if the FCC fails to set one. If the licensee does not like the results of the FCC's hearing, it may appeal the decision to the courts.
To provide the FCC with additional though less severe penalties, Congress incorporated a provision for Cease and Desist Orders into the Communications Act [503(b)]. Through this power the FCC can formally order a station to stop a practice that the Commission has found to be legally unacceptable. However, before the Cease and Desist Order can be issued, the FCC must send the station a Show Cause Order asking why the Cease and Desist Order should not be issued.
In addition to the Cease and Desist Order, the same section of the law provides for fines and forfeitures. Fines differ from forfeitures in that fines result from a conviction (fines have already been discussed.) A forfeiture, on the other hand, may follow a Cease and Desist Order. Forfeitures may range to $1,000 per day to a maximum of $10,000 for multiple violations. The forfeiture, because of the small size of the fine, serves as only a minimal legal reminder to the station.
The final and lowest power of the FCC, a letter of inquiry to a station, has no legal force and sometimes has been called -the raised eyebrow. Broadcasters have come to think of letters of inquiry as a hint that worse things are to come and they should change their ways. Sometimes the FCC sends open letters to one or more stations as a method of informing the entire broadcast industry of its thinking. This informal power has often been used in place of more serious action.
CRITICISM OF THE FCC
Probably every major group concerned with broadcasting-broadcasters, citizen groups, and individuals-has at one time criticized the FCC. Fred Friendly, a former vice-president of the Columbia Broadcasting System and later a professor at Columbia University, once called the FCC "a leaning tower of jello" because of the FCC's inability to take a firm stand on any issue.
However harsh the criticism may sound it has been echoed in other words many times. Even FCC commissioners have criticized their own agency.
Former Commissioner Nicholas Johnson often criticized the agency through dissents to majority opinions, through appearances on television and radio, and in books and journal articles. When the FCC was asked to approve a merger between the International Telephone and Telegraph Company (ITT) and ABC, which would have created the largest communications company in the world, Johnson found evidence that ITT officials were misleading the FCC during the hearing. Additionally, there was evidence that ITT was trying to in fluence The New York Times to print inaccurate stories favorable to ITT. Regardless of the evidence, the FCC approved the merger. This led Johnson to accuse the commission of making "a mockery of the public responsibility of a regulatory commission that is perhaps unparalleled in the history of the American administrative process." Frequently Johnson accused the FCC of being lax in its enforcement of the public interest. So displeased was Johnson with the climate at the FCC that he often took his cause to the public via television appearances, magazine articles, and books. Johnson believed that the FCC was blinded to the needs and interests of the public by the intense lobbying of the broadcast and cable industries and hoped that the public would exercise its own lobbying force on the FCC to balance that of the powerful broadcast and cable industries.
One recurring criticism from both broadcasters and citizens has been that the FCC takes too long to resolve issues. When the agency first contemplated charging a fee to applicants for radio and wire licenses in 1941, it acted because of pressure from Congress and the public. The FCC considered several fee proposals, but due in part to changing congressional pressure it did not adopt a fee schedule until 1963; this schedule has since been tested in court. Similarly, the FCC spent three and one half years contemplating how to handle the color television question. The FCC began considering the question of cross ownership of radio, television, and newspaper properties during the 1930s and 1940s-an issue that was not resolved until the 1970s. Finally, the FCC took five years to decide which band of frequencies FM broadcasters should have.
Citizen groups and individuals have often felt that the FCC was unwilling to admit members of the public to hearings-a suspicion that has often been well founded. In fact until recent years, the FCC has generally prevented citizen groups from being admitted to hearings. The court case involving the United Church of Christ, discussed at the beginning of this section, changed this when the Church appealed to the courts, asking that it be considered a party in interest in the WLBT hearing.
One of the complaints from broadcasters has been that the FCC exceeds its authority as authorized by the Communications Act. When the Radio Act was created, broadcasters wanted the new agency to regulate only the technical aspects of broadcasting and to remain out of programming matters. When the FCC has made nontechnical decisions, broadcasters have complained that the First Amendment rights of the broadcaster has been violated. The federal courts have agreed with the FCC in more than half of the cases.
The FCC's Problems Although critics have been severe in their criticisms of the FCC, some of the problems have been beyond the FCC's control. While Congress has called it an independent agency, the FCC has been harassed with a variety of problems associated with being too dependent on other branches of government. Often its budget has been too small to accomplish the tasks assigned to it and, because of limited funds, the agency has sometimes been unable to hire the best qualified personnel.
Budget has not been the only problem. Since the commissioners are appointed by the president and approved by the Senate, it is possible that some appointees will be placed on the agency for partisan reasons, thereby reducing the technical expertise of the FCC. And while it is performing its assigned duties, the FCC is continuously exposed to the threat of congressional investigation, presidential influence, and industry pressure.
OTHER AGENCIES CONCERNED WITH BROADCASTING
The FCC is only one of several federal and state agencies concerned with regulating various aspects of broadcasting. Other agencies regulate taxation, defamation, and a variety of other aspects of the broadcast enterprise. These agencies are discussed briefly in the following sections.
Federal Trade Commission
Except for the FCC, the FTC is the agency most concerned with the day-to-day activities of broadcasters. The FTC has congressional authorization to function in two distinct areas-advertising and antitrust. Although the agency maintains a Bureau of Competition for antitrust cases, the FTC's major concern with broadcasting at present is in the area of advertising.
Congress created the FTC in 1914 to assist in the prosecution of monopoly and antitrust cases under the Sherman Antitrust Act of 1890 and the Clayton Act of 1914. Since the Department of justice had an antitrust division that performed some of the same functions, the FTC did not see its role solely as an agency concerned with monopoly. During the 1930s the FTC decided to get into the consumer protection area and in 1938 Congress amended the FTC Act to include a new clause concerning "unfair methods of competition in commerce" and stated that "It shall be unlawful for any person . . . to disseminate . . . any false advertisement."36 This amendment came shortly after the Supreme Court handed down its ruling in the Marmola case suggesting that Congress disagreed with the court and wanted the FTC's jurisdiction to include advertising.
Although the FTC had a new mandate from Congress, its actions have not always been of the most aggressive sort. Before 1970 much of the agency's activities were limited to relatively trivial inquiries involving small or medium size businesses, but the actions of the FTC seldom involved the major industries in the United States. Like the FCC, the FTC has often been exceedingly slow about getting its actions concluded. Perhaps the classic case involved Carter's Little Liver Pills. In 1943 the FTC began a drive through its own organization and the federal courts to have the word "liver" removed from the name of the product. In 1959, sixteen years later, the FTC won its case. Despite its slowness, the FTC has disposed of many actions against a variety of businesses.
By 1964 the FTC had received over 12,000 agreements from advertisers to halt practices that the FTC felt were not in the public interest. Most of these agreements were from small- and medium-sized businesses. (See Figure 10-5.) Critics were not satisfied with the work of the FTC. Ralph Nader, the well known consumer advocate, instituted a long-range study of the FTC that examined every aspect of the agency's activities and wrote an extensive report on his findings, which was entered into the Congressional Record. Much of what Nader found confirmed the critic's opinions. His group found that the agency took long periods of time to handle legal proceedings, many of which were inconsequential. A 1970 study commissioned by President Nixon confirmed the findings of Nader. It said, "The agency has been preoccupied with technical labeling and advertising practices of the most inconsequential sort."38 As a result, the FTC was reorganized into a more consumer-oriented organization.
Reorganized FTC. Until 1970, consumer protection had been under the Bureau of Deceptive Practices, but with the reorganization of the FTC the consumer protection area was placed under the Bureau of Consumer Protection, established to process complaints about consumer products. This branch has tried to inform the public of its role in finding and prosecuting organizations that unfairly use the consumer by supplying information sheets to the mass media regarding cases the FTC is handling or wishes to consider. The Bureau also supplies information to its regional offices, which may be acquired by interested citizens for the asking.
Interestingly, this reorganization of the FTC to a consumer-oriented agency came during the Consumer Era when national attention was directed to the plight of the consumer. Thus the FTC, which was created during the progressive era when government felt pressure to be more responsive to small business, was reorganized during the consumer movement to be responsive to the consumer. As a partial result of the latest revision, the FTC has examined all of the ten largest businesses in the country for various misleading or fraudulent advertising. For example, the FTC has examined Coca Cola, Hi-C fruit drinks, and the Continental Baking Company.
Figure 10-5. Regulatory agencies and interrelationships.
Corrective Powers of the FTC. The FTC has five weapons against companies that engage in false advertising, however, not all of the five powers are legally binding. The FTC's first device is a "letter of compliance," in which an advertiser agrees to refrain from continuing certain practices. This is an informal, low cost procedure that does not have the force of law since the FTC has not proved that the company was engaging in an illegal practice. The second method available to the FTC is a "stipulation," which is a formal agreement from the company in which it agrees to stop the practices that the FTC has found to be misleading. Both of these procedures permit the FTC to go to court later if the company fails to abide by the agreement.
The third power, a "consent order," is a formal complaint handed down by the FTC. The advertiser who agrees to the consent order does not admit guilt-also true in the first two agreements-but he or she consents to refrain from engaging in the questionable practice.
The fourth power open to the FTC is the only legally binding power. It is a `cease and desist order" in which the FTC, after formal hearings, directs an advertiser to cease and desist from the misleading practice. The order does not go into effect for 60 days and is appealable to a federal court, but if the advertiser does not appeal he is obliged to obey the order.
The final power--an extralegal device--is publicity. The FTC has the authority to publicize its orders and complaints so that an informed public can carefully select its products on the basis of the findings of the FTC and other bodies employed by the FTC. The first three of the FTC's powers have the inherent problem that industry can readily fail to comply with the procedure since compliance is purely voluntary. The fourth power has the obvious limitation that it can be appealed to a federal court and, as such, can be delayed for a long time by an advertiser. Using delaying tactics, advertisers are able to exploit all of the effectiveness of an ad campaign and then discard it before the FTC is even able to get a legal in junction against the campaign.
Many of the complaints the FTC receives come from business competitors or private citizens, but recently the FTC has been receiving scripts of all commercials carried on the major networks within seven days after the commercial first goes on the air. It is then possible for the FTC itself to evaluate the commercial for deceptive or misleading practices and to inform the networks of problems it forsees. Generally the networks have voluntarily complied with the FTC's findings.
Corrective Advertising. A new device the FTC has been using recently to correct misleading advertising has been called corrective advertising. Under this new procedure the FTC has been requiring advertisers to correct the mis leading information they inserted into previous commercials. Although it does not come under one of the traditional five powers of the FTC, this procedure has been effective in correcting misrepresentations. An example of corrective advertisement appeared in a Profile Bread commercial. The FTC directed the manufacturer to insert the following statement into the ad: I'd like to clear up any misunderstandings you may have about Profile Bread from its advertising or even its name. Does Profile have fewer calories than other breads? No, Profile has about the same per ounce as other breads. To be exact Profile has 7 fewer calories per slice. That's be cause it's sliced thinner. But eating Profile will not cause you to lose weight. A reduction of 7 calories is insignificant. The message was carried by the ITT Continental Baking Company in twenty five percent of its advertising for one year in response to an FTC order.
New Powers. Prior to 1975 the FTC was severely limited in what it could do because every action had to be taken on a case-by-case basis. The FTC could not issue general regulations that would set standards by which an industry would be regulated. Then President Ford signed a new bill into law authorizing the FTC to write general regulations.
Department of Justice While the FTC is an independent commission not under the direct control of either the President or Congress, the Department of Justice, headed by the Attorney General, is one of the departments of the Executive branch of government under the direct control of the President. Thus the Department's philosophy is, to a large extent, directed by the President in office.
One of the powers of the Department of Justice, through its Antitrust Division, is to enforce the Sherman Antitrust Act and other antitrust laws. In this capacity, the Department of Justice has worked closely with the Federal Communications Commission and the Federal Trade Commission. During the 1940's, James Laurence Fly, as chairman of the Federal Communications Com mission, conducted a study of the national radio networks, Columbia Broadcasting System and National Broadcasting System. After two years of hearings and research, the Commission compiled a report that recommended that the National Broadcasting System divest itself of one of the two national networks it operated. NBC operated the Blue network, which carried most of the sustaining programming and the Red network, which carried most of its commercial programs. Both networks served the same communities giving NBC a near monopoly in the communities it served. The report also suggested that the Columbia Broadcasting System be required to rewrite its network-affiliate contract. This change was suggested because the CBS contract gave the network virtual control over local stations. When the Commission completed its study, it gave the Department of Justice the report and it was the Department that fought the case against NBC and CBS through the courts to the Supreme Court, which ruled in favor of the Department of Justice. In this case, the Department of Justice handled the complicated task of arguing the case before federal courts after the Commission had compiled the basic evidence.
Many years later in the 1960s, when the Commission was contemplating the merger between the International Telephone and Telegraph Company and the American Broadcasting Company, it was the Department of Justice that filed a protest with the Commission holding that the merger would create a corporation that would be in clear violation of the antitrust laws. Although the Com mission approved the merger the Justice Department took the case to court, but before the courts decided the case International Telephone and Telegraph dissolved the merger.
The Department of justice has often encouraged the Commission in its anti trust proceedings. For example, the Department has repeatedly encouraged the Commission to enforce its one-to-a-customer rule, which would force broadcasters to divest themselves of all but one broadcast property in a given market. But the Department of Justice has not limited itself to influencing the Commission or to fighting the Commission's cases.
The Department itself fought cases against the Kansas City Star, the Lorain Journal, and Associated Press. Each of these firms had violated the antitrust laws by trying to damage the business interests of a competitor. Thus the Department of Justice has an extensive history of fighting important antitrust cases both on its own and for the FCC. In addition to prosecuting antitrust cases the Department of Justice is bound to serve as the District Attorney for either the Federal Communications Commission or the FTC in cases involving their respective activities. The Communications Act and the Federal Trade Commission Act prevent either of the commissions from prosecuting their own cases and instruct the Department of Justice, on request from the commissions, to handle the cases in court. Al though members of either commission may advise the Department of Justice and may attend the trial, lawyers for the agencies may not argue the cases.
Food and Drug Administration
While the FTC concentrates on advertising claims, the Food and Drug Administration devotes its attention to packaging and labeling of food and drug products. This division of control between the FTC and the Food and Drug Administration is not clearly defined by law since it is more a fact of agreement between the two agencies. Because of this division of authority, the FDA does not directly regulate broadcast stations, however, broadcasters are responsible for violations of FDA regulations and the FTC may prosecute stations who advertise products banned by the FDA.
Congress
The agencies mentioned above are either the product of Congressional legislation or are a branch of the Executive. Thus these agencies report to either the President, or Congress, or both. Congress does not exercise any enforcement powers in handling the problems of regulating the complex broadcast establishment, but it does have many legislative powers.
Congress has the power to affect the actions of most governmental agencies by its appropriations of funds used to operate various agencies. Each year both the FTC and the FCC must file reports with the Congress concerning how they spent funds for the proceeding year and they must also request funds for the forthcoming year. Generally, hearings are conducted to determine if the proposed budget will meet with Congressional approval.
Congressional powers extend beyond control over the budget-Congress must either confirm or reject appointments to both commissions as it sees fit. In the Senate the Commerce Committee is the body responsible for recommending new legislation that covers broadcasting or its allied field, advertising. From time to time this committee, and its appropriate subcommittees, calls hearings to recommend new laws. These new laws may be intended to extend or curb the FCC's power in areas in which senators have particular interests. In the House of Representatives a similar committee, the Committee on Interstate and Foreign Commerce, is concerned with the actions of the FCC and the FTC. In addition, Congress has occasionally appointed special committees to examine particular aspects of the FCC. The Executive Branch As already noted, the President has direct control over the Department of Justice and its activities in matters of antitrust and the District Attorney. But the President's powers extend beyond the Department of Justice. The President nominates commissioners to the FTC and the FCC and disburses funds to these two agencies through the Office of Management and Budget.
In addition to the direct legal controls, the President lobbies for issues through the Office of Telecommunications Policy (OTP). In addition, the OTP may conduct studies into more effective uses of radio waves and it may appear before the FCC to argue issues of interest to the President. A more concrete power of the OTP is its authority to prepare proposed bills for Congress on matters related to broadcasting--Congress is free to accept or reject these proposed bills, but they are an effective way for the President to inform Congress of his wishes. OTP also directs the assignment of radio channels used by the government. The sharing of governmental channels is coordinated through the Interdepartmental Radio Advisory Committee, which was formed in 1922. OTP was formed in 1970 and was being phased out in 1977. Its task was given to the Office of Telecommunications in the Commerce Department.
Courts The federal courts have been directed by the Communications Act to review actions of the FCC at the request of the FCC, a concerned member of the broadcast establishment, or of the public. The same provisions exist for the FTC in the FTC Act. The courts serve as the final arbiter in issues related to the regulation of broadcasting. Judicial review has permitted the courts to act on procedures of the FCC, to elements of the Communications Act, and to FCC programming policies.
Although the courts cannot institute hearings on their own, they have had considerable effect on broadcast regulation. Some critics have suggested that this review power has caused the FCC to create procedures that are as inflexible as those of the courts. Whatever the advantages or disadvantages to having the courts review the regulatory problems of broadcasters, Congress has shown no inclination to curb the courts in their investigations of the commission. In fact, when a court pointed out to a broadcaster that Congress had failed to give the courts the right to review a particular area, Congress, which reviewed the opinion, immediately took action to correct the oversight .
AGENCIES INDIRECTLY CONCERNED WITH BROADCASTING
The above mentioned agencies form the major group of administrative bodies concerned with the direction of broadcasting in the United States, but there are other organizations involved in the total process. The Department of Health, Education and Welfare has been directed by Congress to disburse funds for the construction of public broadcast facilities. Working with Health Education and Welfare is the Corporation for Public Broadcasting, which directs and funds the national public radio and television networks operating on a noncommercial basis. Although the Corporation for Public Broadcasting is not a branch of the government, it is largely funded by the government and operates as a quasi governmental body.
State Agencies Concerned with Broadcasting
Certain aspects of the regulation of broadcasting have been assigned to the states. State legislatures have the authority to write laws governing defamation over the air-as well as through print and spoken means. A number of states have laws governing these areas. Interpretation of the defamation laws is left to state courts.
Since the coming of cable television, a number of states have set up cable television commissions intended to assure that local cable television stations fulfill certain standards established by the state. Generally, to set up business in a locality, a cable system must have a permit from the municipality in which it will operate, it must be licensed by the state cable television commission (where one exists), and it must meet certain provisions set down by the FCC, which has determined that it has an obligation to regulate the cable television business.
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BIG DECISIONS
No, question is too small for the network. The big issue of the 1975 76 season at CBS was whether Cher Bono's navel should be displayed. Although her naval had been seen on CBS in the past, her new show was scheduled for the Family Viewing Hour and CBS executives were not certain that such a sight was appropriate for children. The question was finally resolved: her navel could be exposed but her dresses were to be more modest.
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SELF-REGULATION
Self-regulation is the voluntary regulation that an industry imposes on itself; it is in no way legally binding. In the broadcast industry, the most widely followed form of self-regulation has been set by the National Association of Broadcasters (NAB), which has set programming and advertising standards for radio and television in documents called the Radio Code and the Television Code. Networks, stations, and suppliers of programming material can decide whether or not they want to subscribe to the Codes. If they do subscribe, they are obligated to follow the regulations set forth in the Codes. If they violate any of these regulations, their right to call themselves Code subscribers can be withdrawn by the NAB.
There are basically two reasons why an industry may decide to establish self-regulation. The first reason is that it is good public relations. For example, the movie rating system, which is an example of self-regulation, helps people to decide if they want to see a particular movie. By rating a movie as "PG", "R" or "X" the movie industry warns parents that the film might not be suitable for children. The second reason for self-regulation is that if an industry regulates it self, the government will not intervene-an arrangement the industry prefers.
Enforcement of the Code
The responsibility for the administration of both Codes lies with the Code Authority Director and staff. They are responsible for reviewing programming and advertising, for screening complaints, and for informing subscribers about charges if the subscriber is in violation of the Code.
The Code Authority staff monitors networks, radio, and television stations to make certain that they comply with the Code. Since the networks provide the bulk of television programming, on-the-air network programming is monitored by the Code Authority staff in New York, Washington, and Los Angeles.
If requested, the Code Authority will also screen television programs prior to the time they are broadcast. In 1974, approximately 740 hours of network programming were monitored.
Radio and television stations are monitored for their compliance with Code advertising procedures. Monitoring covers such areas as the number of commercials and the number of program interruptions. During 1974, 70,000 television and 45,000 radio broadcast hours were monitored.
If a subscriber violates the Code the case goes before the Code Board.
After the Board hears the case, it make recommendations as to what should be done. The final decision rests with either the Television Board of Directors or the Radio Board of Directors, both of which have the power to revoke a station's subscription.
Code Provisions
In the radio code there is a section pertaining to news. It advises stations to use reliable news sources, to present factual and objective news, and to place advertising in such a way that it is clearly distinguished from news. Editorials and commentaries are also to be clearly separated.
The Radio Code is very general about its expectations for program content.
The Code says that the broadcaster should be responsive to the community, should advance education and culture, should show responsibility toward children, and so on. In advertising the Code's standards are more specific: it deals with the presentation of advertising, the products that should not be advertised such as hard liquor, the advertising of medical products, the amount of time that can be devoted to commercials, and guidelines regarding contests, premiums, and offers.
The Television Code has sections that deal with news, editorials, and political broadcasts, which are quite similar to the Radio Code. In addition, the code exhorts the broadcasters to seek out and serve the needs of their particular communities.
The Television Code has provisions that deal with program responsibilities.
It states that acts of violence must only appear in a responsible context and pro grams must show the effects of violence on both the victims and perpetrators.
Narcotic addiction, drugs, liquor, and smoking are to be deemphasized. In addition obscenity, profanity, and indecency are prohibited.
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MISSING HORROR
In James Cann's death scene in -The Godfather - gunmen appear at a highway toll booth and blast at Caan through the window of his car. He staggers out onto the road and is about to be hurled back by another blast. In the television version, the shots came, but Caan's chest does not erupt into a fountain of blood. The horrifying scene--Caan arched back, blood pouring from his wounds, an underworld St. Sebastian--is missing.
Source: David Black, "How the Gosh Darn Networks Edit the Heck Out of Movies," The New York Times, January 26, 1973.
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BLEMISHED VIEW
Persons with acne should not be depicted as social outcasts nor should their condition be presented in a negative manner (e.g., “Flick, pimples"). Emphasis on close-up shots or graphic descriptions of pimples or blackheads are believed unacceptable. Additionally, reiteration of words such as "pimples" or "blackheads" should be avoided. Some Code subscribers, because of taste considerations, do not accept these words and prefer in their place -blemishes."
Source: "Taste is Major Issue in Acne Commercials" ( Washington, D.C.: NAB, Oct. 67 RITUCN).
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The Television Code opposes detailed treatment of hypnosis and prohibits the use of extremely short messages during a program such as "eat popcorn." Any professional advice, diagnosis, and treatment must be in conformity with the law and recognized professional standards. The Code is more flexible in its treatment of the occult and numerology.
The Code maintains that marriage, the family, and other important human relationships should be treated with sensitivity. Sensitivity is also required in portraying persons where race, sex, creed, religion, color, or ethnic origin is involved. The Code forbids rigged contests in which individuals win by dishonest means. In general programming, broadcasters are warned to make clear distinctions between fact and fiction.
OTHER FORMS OF SELF-REGULATION
The Code is only one form of self-regulation found in the broadcast industry.
Other forms of self-regulation not covered by the Code are developed by individual stations, networks, and advertisers. All of these groups differ because of different management policies and community standards.
Some stations, particularly in radio, follow the Code but have additional policies that apply to their particular station. Others are not Code subscribers and instead determine all of their own policies. Still other stations follow the code without being subscribers.
The three commercial television networks have divisions or departments that decide on the suitability of broadcast material. They all operate along similar lines and are responsible for reviewing entertainment programs at all stages from script to final production. In addition, the department screens out side films that are rented or purchased by the network.
One of the most interesting forms of self-regulation comes indirectly from the advertiser. Advertisers are anxious to appeal to as many people as possible, so they are likely to associate with what they see as prevailing American attitudes and to avoid controversial topics. Other advertisers are anxious to convey the proper image for their product and will issue advertising guidelines.
Whatever form they may take, codes and other self-regulation methods have the common purpose of protecting the station, advertiser, or network from public criticism and from legal encounters. For the most part the various codes have been successful in their intent.
Broadcasting, because of the nature of the enterprise, is perhaps more regulated than any other industry. At the federal level one agency exists solely to regulate electrical communication, but many other federal agencies are concerned with broadcasting. At the state level cable is often regulated. In addition, states regulate broadcast defamation and state courts determine the amount of damages. Even local governments are involved in the regulation since they control taxation and are in charge of granting franchises to cable operators.
NOTES
1. Office of Communication of the United Church of Christ v. Federal Communications Commission, 359 F. 2d 994 (D.C. Cir., 1966).
2. Fourth National Radio Conference, Proceedings and Recommendations for Regulation of Radio (Washington, D.C., November 9-11, 1925), p. 6.
3. Ibid.
4. Walter B. Emery, Broadcasting and Government (East Lansing; Michigan State University Press, 1971), p. 33.
5. U.S. Constitution, Article I, Section 8.
6. FCC v. Pottsville Broadcasting Company, 309 US 134 (1940).
7. FCC v. Allentown Broadcasting Corporation, 349 US 358 (1955).
8. Citations of the Communications Act in this section refer to the law as it appeared in Pike and Fisher Radio Regulation updated through 1975.
9. Ibid., §501 and §502.
10. Ibid., §402.
11. Ibid., §4.
12. Ibid.
13. Ibid., §5.
14. Ibid., §307 (b).
15. Ibid., §310 (a).
16. Ibid., §308 (b).
17. Ibid.
18. Ibid.
19. Ibid.
20. Report and Statement of Policy re: Commission en bane Programming Inquiry, 25 Fed. Reg. 7291 (1960).
21. Communications Act, op. cit., §309.
22. Pottsville, op. cit., Allen T. Simmons, 11 FCC 1160, 1947. Public Service Responsibility of Broadcast Licensees (Washington, D.C.: FCC, 1946).
23. Ibid., §73.670.
24. Kentucky Broadcasting Corp., 12 FCC 282 (1947). 25. FCC Rules & Regulations, §1.1101.
26. Communications Act, op. cit., §315.
27. In the Matter of Editorializing by Broadcast Licensees, 13 FCC 1256 (1949).
28. Applicability of the Fairness Doctrine in the Handling of Controversial Issues of Public Importance, 29 Fed. Reg. 10415 (1964).
29. FCC, "Fairness Doctrine & Public Interest Standards: Handling Issues of Public Importance," 1974.
30. Applicability, op. cit.
31. Report and Statement of Policy re: Commission en bane Programming Inquiry, 25 Fed. Reg. 7291 (1960).
32. Federal Communications Commission Primer on Part 1, Section IV-A and IV-B of Application Forms Concerning Ascertainment of Community Problems and Broadcast Matter To Deal With Those Problems, 27 FCC 2d 650 (1971).
33. Communications Act, op. cit., §307 (d).
34. Quoted in Harold L. Nelson and Dwight L. Teeter, Jr., Law of Mass Communications: Freedom and Control of Print and Broadcast Media (Mineola, New York: Foundation Press, 1969), p. 553.
35. Leonard Zeidenberg, "Seven Years and Five Months: A Look Back at the Tenure of Nick Johnson," Broadcasting (December 10, 1973), p. 26.
36. Subcommittee on Communications Staff , Cable Television: Promise Versus Regulatory Performance (Washington, D.C.: Government Printing Office, 1976). 37. Federal Trade Commission v. Raladam Co., 258 US 483 (1931). 38. 52 Stat. Ill (1938). 39. Carter Products Co. v. Federal Trade Commission, 361 US 884 (1959). 40. Reported in Nelson, et. al., op. cit., p. 521.
41. "Advertising: Mea Culpa, Sort Of," Newsweek (September 27, 1971), p. 98.
42. National Broadcasting Co., Inc., et al. v. United States et al. 319 US 190 (1943).
43. Kansas City Star v. United States, 240 F 2d 643, (1957).
44. Lorain Journal Co. v. United States, 342 US 143 (1951).
45. Communications Act op. cit., §402 (b).
46. Letter from Stockton Helffrich, Code Authority Director, February 7, 1975.