Fundamentals of Radio Broadcasting: Government Regulation

THE COMMUNICATIONS ACT OF 1934

To operate a broadcasting station one must accept certain responsibilities that are not imposed on people in other businesses. The reason for this is that a broadcaster uses a public resource. The airwaves are not private property; they belong to us all. Channels upon which broadcasters operate are in limited supply, not available to everyone. Those who are granted permission to use a broadcast channel must accept the terms and conditions of the assignment. The legislation under which all broad casters operate is the Communications Act of 1934. It adopted the tone and philosophy of the Radio Act of 1927 and added a few refinements, one of which was the creation of the Federal Communications Commission.

The Federal Communications Commission

The Federal Communications Commission (FCC) is composed of seven commissioners appointed by the President with the advice and consent of the Senate. The Communications Act provides that the Commission has the "authority to make general rules and regulations requiring stations to keep such records of programs, transmission of energy, communications, or signals as it may deem desirable."' Broadcasting stations are required to keep up-to-date copies of the Rules and Regulations and are expected to apply them in their day-to-day operation. The act also provides that the commission has "authority to inspect all radio installations associated with stations required to be licensed . . . to ascertain whether in construction, installation and operation they conform to the requirements. . . ." [ 2] For the convenience of FCC inspectors and the general public, each station is required to maintain a public file, which should contain the following:

1. The original application for the station license

2. The applications for license renewals

3. All applications for construction permits to modify facilities

4. Proof of performance; Verification that the station has been operating according to the technical specifications of the license

5. All correspondence with the FCC

6. Correspondence with the public that pertains to fulfilling programming responsibilities

7. Program and transmitter logs for the past 2 years

8. Maintenance logs; A record of adjustments and modifications made on transmitting equipment

The public file must he made available to an FCC inspector or any member of the general public upon request during normal business hours. It is one of the means the Commission uses to see that a station is operating within the terms of its license. In addition, the FCC may monitor a station and take measurements of its signal with electronic instruments.

[1. Public Law 416, 73d Congress, June 19, 1934, sec. 303(j).

2. Ibid., sec. 303(n).]

VIOLATIONS

The creation of the FCC was significant because it provided a means of enforcing the rules that govern broadcasting. Before the 1934 Act there was very little that could be done to see that radio operators obeyed the laws. The FCC has the power to exercise considerable force upon broad casters. In cases of minor infractions, fines can be levied on the holder of the license. When a rule violation has been identified, the FCC will issue a citation. The citation will specify which particular section of the Rules and Regulations has been violated. The station or individual must reply within 10 days and provide an explanation of the infraction. If the offense is minor, the FCC may require only that the condition be correct ed. If it is more serious, a fine may be imposed or the license suspended.

The station does however, have recourse. It can demand a hearing by the Commission and even take its case to the federal courts. This is an ex pensive procedure, of course, and not one that is often pursued.

RESTRICTIONS

The restraints put upon broadcasters are necessary and reasonable. Slander, of course, is actionable here as it is anywhere else. In addition, there are three sections of the Criminal Code that pertain directly to the broadcaster: those on lottery information, fraud, and obscenity.

[3. Frank J. Kahn, Documents of American Broadcasting 2d ed. (Englewood Cliffs, NJ.: Prentice -Hall, 1973) pp. 112-113.]

The Criminal Code

Section 1304. Broadcasting lottery information Whoever broadcasts by means of any radio station for which a license is required by any law of the United States, or whoever, operating any such station, knowingly permits the broadcasting of, any advertisement of or information concerning any lottery, gift enterprise, or similar scheme, offering prizes dependent in whole or in part upon lot or chance, or any list of prizes drawn or awarded by means of any such lottery, gift enterprise, or scheme, whether said list contains any part or all of such prizes, shall be fined not more than $1,000 or imprisoned not more than one year or both.

Each day's broadcasting shall constitute a separate offense. (Codified June 25, 1948, ch. 645, 62 Stat. 763.) An exception to the above law has been passed in recent years in order to permit the broadcasting of state lotteries that are used for tax revenue purposes. But section 1304 is still applicable to private individuals and corporations.

Section 1343. Fraud by wire, radio, or television Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such schemes or artifice, shall be fined not more than $1000 or imprisoned not more than five years, or both. (Codified July 16, 1952, ch. 879, sec. 18(a), 66 Stat. 722; amended July 11, 1956, ch. 561, 70 Stat. 523.) Section 1464. Broadcasting obscene language Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined not more than $10,000 or imprisoned not more than two years, or both. (Codified June 25, 1948, ch. 645, 62 Stat. 769.) A violation in any one of these cases, of course, would have to be determined in a court of law. Infractions can be brought to the attention of the FCC by any member of the public. Cases of obscenity are the most common, but also the most difficult to prosecute. The definition is not at all clear, and the Supreme Court has said that it depends upon "contemporary community standards." What is considered obscene in some areas may not be in others. The context in which the utterance takes place also seems to make a difference. Obscenity in the lyrics of a song is often considered less offensive than the same expressions uttered in prose. But remember that it is against the law, and you may want to ask yourself some questions about it: What would radio sound like if it were legal? How much are you willing to risk to press the issue?

SECTION 315

The basis of frequent discussion and controversy, section 315 of the Communications Act, pertains to the responsibilities of a broadcaster during political campaigns.

If any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting stations: Provided, that such licensee shall have no power of censorship over the material broadcast under the provisions of this section.

No obligation is imposed under this subsection upon any licensee to allow the use of its station by any such candidate. Appearance by a legally qualified candidate on any:

1. bona fide newscast,

2. bona fide news interview,

3. bona fide news documentary (if the appearance of the candidate is coincidental to the presentation of the subject or subjects covered by the news documentary), or

4. on -the -spot coverage of bona fide news events (included but not limited to political conventions and activities incidental thereto), shall not be deemed to be use of a broadcasting station within the meaning of this subsection.

Nothing in the foregoing sentence shall be construed as relieving broadcasters, in connection with the presentation of newscasts, news interviews, news documentaries, and on -the -spot coverage of news events, from the obligation imposed upon them under this Act to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public importance! The section goes on to explain that all candidates who buy time on a commercial station must be charged the same rate, and that the rate must be no higher than is normally charged by the station. Noncommercial stations which donate their time to candidates must provide equal time to all candidates for the same office. This section of the Communications Act has been strongly criticized on the ground that, contrary to its stated intent, its implementation actually hampers access of candidates to the media. Some stations will not give time to any candidate, arguing that they cannot afford to accommodate every person claiming to be a candidate for that office, as the "equal opportunity" clause would require. During presidential campaigns, stations are loath to give time for debates between candidates for the same reason. An exception to this was first made in the 1960 campaign, when the networks gave time for a series of debates between Richard Nixon and John Kennedy. But in order to do this, Congress had to suspend the rules of section 315 for the needed period of time.

THE FAIRNESS DOCTRINE

Originally the FCC intended that broadcasting stations should not take sides on controversial issues. Newspapers, of course, have always been free to editorialize; indeed, that has been one of their prime functions.

But the status of broadcasters is different, because they use a public asset-the airwaves-as their medium of communication. The price of a printing press is all that is required to establish a newspaper and print whatever one wishes. But channels for broadcasting are few and access is not available so easily. All through the early years of development, broadcasters avoided issues that might be regarded as controversial. In 1949 that condition changed. The FCC issued the Fairness Doctrine, which stated, in effect, that stations could express opinions on matters of public importance as long as an effort was made to air all sides of the issue. At first broadcasters were reluctant to implement the new ruling for fear of offending sponsors and listeners. Then a few brave souls began trying it out; now almost every commercial station you hear takes an editorial stand on some issues, or allows listeners to broadcast free-speech messages.

In 1964, 15 years after the adoption of the Fairness Doctrine, the FCC issued a Primer in an attempt to explain some of the ambiguities. In part it says:

While Section 315 thus embodies both the "equal opportunities" requirement and the fairness doctrine, they apply to different situations and in different ways. The "equal opportunity" requirement relates solely to use of broadcast facilities by candidates for public office. . . .

The fairness doctrine deals with the broader question of affording reasonable opportunity for the presentation of contrasting viewpoints on controversial issues of public importance. Generally speaking, it does not apply with the precision of the "equal opportunities" requirement. Rather, the licensee, in applying the fairness doctrine, is called upon to make reasonable judgments in good faith on the facts of each situation--as to whether a controversial issue of public importance is involved, as to what view points have been or should be presented, as to the format and spokesmen to present the viewpoints, and all the other facets of such programming.5 While this language may appear to be extremely vague, there are several points upon which the FCC is clear. It establishes that, when a viewpoint is expressed on the air, the station must make a conscientious effort to seek out a spokesperson for the other side. When the viewpoint involves a personal attack upon an individual or an organization, the station is obliged to send a transcript of the message to the concerned parties and offer them equal time to reply. If a viewpoint is expressed on a campaign issue during an election period, the station must allow opposing candidates or their designated spokesmen to reply.

The Fairness Doctrine still has a number of ambiguities that will require clarification in the courts. There is a strong movement among broadcasters to abolish the doctrine altogether. We can expect that it will be subject to continued modification for many years to come.

Freedom of Expression

One of the most important parts of the Communications Act is section 326. The main paragraph reads as follows:

Nothing in this Act shall be understood or construed to give the Commission the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech by means of radio communication.

While the Commission does require that stations submit their pro gram schedules for approval, it does not specify what the programs should be. Everything in the Communications Act is designed to pro mote free expression rather than thwart it. But the Act does impose certain restrictions to protect the rights of those members of society who do not own broadcasting stations. In other words, broadcasters should not have an unfair advantage over everyone else. In fact, there has been a strong movement in recent years toward public access to the media. At the urging of the Commission, broadcasters are making a concerted effort to encourage members of the public to use the facilities of radio and television stations.

SUMMARY

The Communications Act of 1934 is the most significant piece of legislation affecting the broadcasting industry. Out of it came the Federal Communications Commission, which exercises control over all radio and television transmission. The Commission requires that anyone engaged in broadcasting activities be familiar with Rules and Regulations, a document that establishes the parameters for use of the airwaves. The air waves are regarded as public property and therefore must be used in the public interest. While the Communications Act maintains that the FCC does not have the power of censorship, it does grant the Commission the ability to suspend licenses and impose fines. It also demands that broad casters not use the airwaves to cheat, offend, or take advantage of the public. It insists that controversial issues and matters of public importance be dealt with fairly.

TERMINOLOGY

Airwaves

Logs

Channel

Primer

Citation

Proof of performance

Construction permit

Public file

Fairness

Doctrine

Rules and Regulations (R & R)

Free-speech message

ACTIVITIES

1. Call a radio station in your area and find out what the requirements are for getting a free -speech message on the air. Write a free -speech message, submit it to a station, and make arrangements to record it in their studios. If the station does not accept your message, find out why it was rejected.

2. Visit a radio station and ask to see the public file. See if all the items listed in this Section are included in the file. See if the file contains any citations issued by the FCC for violations. If so, see what measures the station had to take to rectify the situation.