Law School Outlines - broadcast law

Broadcast Regulation Mass Media is a more appropriate name of the couse because broadcast regulation is too narrow a term. Broadcasting is one medium divided into AM, FM, TV. Broadcasting is intended for private or public distribution and is of interest to the general public. Cable is not broadcasting. Early on, the FCC concluded cable was not braodcasting. Broadcasting goes through federally controlled airwaves for free. Cable goes through wires, but is also federally regulated. Broadcast content varies. Administrative Law Federal government preempts all regulation of broadcasting. Practical considerations: policy, political expediency, administration, bureaucracy, entreprenuerial, industry, citizen, executive, judicial control. Some parties are "in" broadcasting; some are "out." The "ins" have an interest; they exert power to protect interests. Practical consideration -basic public policy. Much in broadcast regulation deals with ill-defined concepts. Access to information/entertainment. Access to channels. Prevention of monopoly. Providing to citizens access to signals at low cost. Administrative convenience Government resources are spent wisely (not squandered) (or application not being processed until reviewer finishes lunch). Regulation comes from D.C. Congress empowered FCC; it is centered in D.C. (with some field officers). Some other agencies may affect regulation. The judiciary also plays an important part. Agency decisions are subject to judicial review. DC Ct. of Appeals hear appeals to commission decisions. Rulemaking can be appealed to Circuit Courts. Executive -the commissioners are appointed by the President by consent of the Senate. They can only be removed for cause. As a formal matter the President has no direct control. Should aliens be allowed to control a broadcasting outlet? CB 207 Should minorities be preferred? women? gays access? Should municipalities be allowed to zone out? Are content controls in broadcasting permissible and desirable? advertising? violence? alcohol? cigarettes? offensive language? drug lyrics? Commercial Broadcasting Emerged in 1920's;led to regulation. Westinghouse started radio in Pittsburgh -free to listen; supported by advertisers. Entreprenuerial system characterized US system, unlike Europe and China, where government operated and owned the stations. Competition ensued. At the time there was no regulation. Radio Act of 1927 lasted seven years; its purpose was to put broadcasting on firm footing, such as preventing interference in AM broadcasting. AM evolved, based on demand and economic interests. In FM & TV, the FCC made grants on demand basis in the 1930's. FM emerged [after] TV even though it was around before TV. TV and FM channels were issued on a sesible basis. hallmarks of regulation (characteristics) system is centralized in D.C. (preempting states). Federal government has exclusive authority over licensing of broadcasting. Licensing system -right to operate is limited to five or seven years (a tight leash). FCC retains supervisory power. Licensing does not provide a property right. Licensee has no property interest in license; the government retains ownership. Broadcast regulation concerns agency supervision of media. Regulation began in 1927 and slowed down chaotic growwth. The RAdio Act is the precursor of the Communications Act of 1934, which created the FCC and its jurisdiction over common carriers and broadcasting. The Acts are nearly identical. Is the FCC bipartisan? Malleable appointees: Three from one party -political favors; other two are housecats. Other partiws are part of the deals. The favorbank. FRC, FCC, FPC were quasijudicial; these agencies functionin a judicial capacity. Reality is President gets what he wants. FRC (1927-1934) did some effective work. Trinity Methodist Church, 42. FCC corrected itself in FM and TV; there is a fair and equitable distrivution and in AM there is a residue of the chaos. Licensing (except for cable) is done by federal government. Licensing is short-term and subject to renewal. Licensee knows he can be terminated at any time (for malfeasance) and can be alienated only with permission of government. FCC can make selling difficult for stations with bad behavior. Do FCC penalties work? Alicensee is like a lessee at will (tenant farmer). No assurance of continuation. FCC can call up a licensee for renewal before the term of the license expires. Section 312 (a)(7) revocation is known by most; but many do not know that renewal can happen any time. In renewal, the applicant has the burden. The government has the burden in revocation (to prove that you are disqualified). FCC rarely initiates renewals. Organizations can write to FCC to start a renewal proceeding instead of revocation. A lot of process involves fines; a jury may overturn fines. Industry presence prevents stripping licenses from publicly-held corporations. The hurt is dispersed and increases political clout of the corporation. Close corporations are most likely to lose out. Even though no property right, licensee has power. FCC does not [over]see day-to-day operations or content. Sanders (radio broadcasting is an area of free competition, but common carriers are strictly regulated). Common carrier, CB 60, is one that makes a public offering to provide communications facilities whereby all members of the public who choose to employ such facilities may communicate or transit intelligence of their own design and choosing. Anyone can access common carrier's facility. A common carrier must provide service to all. All public utilities are common carriers. Common carrier rates are controlled by the government. Government does not set rates for broadcasting. FCC -government avoids getting involved in editorial control of broadcasting. Commission licenses to qualified people who behave. Structural control -commission chooses club members and hopes they behave. Licensee has a loose leash and can do what it wants in programming. Section 153 (h) expressly negates broadcasting licensees from being common carriers. There is no right to access the broadcast media. There is no regulation of broadcasting rates. There is regulation of common carriers because everyone has same right of access at the same rate. Government licensing looks at qualifications. You maust pay a filing fee (win or lose). Winners may also pay another fee. Auctions occur for common carriers, race of the rich, but not broadcasting. Who is served in public interest? Has meaning in common carriers but can mean whatever you want in radio. It is all-encompassing. Courts command FCC to take into account the public interest evidenced in other laws. Broadcasting is not a common carrier field. FCC exercises jurisdiction over broadcasting differently than it does over common carriers. FCC used to give overall financial data of broadcast markets. Access -you have no right to access a broadcast station. Conrol over traffic lies with licensee. They arbitrate what happens -choose arbitrarily. Five exceptions to shooting way on to air (spawned by 153 (h) of the Act): 312 (a) (7), Supp. 21, federal candidates; ' 315, equal time statute -candidates for public interest; 73.1920, Supp. 48, commission rule, Attacked opponents have a right to respond, 73.1930, political editorials, commission decisions in 1960's said radio stations cannot be used in unfair competition. Palmolive Antitrust Case and leading case WFLI, Inc., 13 FCC 2d 846 (1968). Taking affirmative action to abuse license privilege means you have to give competitor right to air. See CBS, Inc. v. FCC, CB 342 (U.S. 1981). Government cannot censor what you put on the air. ' 326. Near v. Minnesota, CB 36 (U.S. 1931). How far can the FCC go in programming content? Trinity is a product of its time. FRC was ready to clear AM airwaves. A lot of wrong commission decisions are not appealed. Station that advocates killing a Jew got renewed. Structural controls are how the FCC regulates. Broadcasters want longer terms. Saying license is not property creates business problems. Station owns trademarks and property. Licensee that wants a loan has asset problems. Is the license an asset? Can it be amoritzed? A license cannot be used as collateral; there is no UCC stake in it. Commission releases broadcast applications and broadcast actions (what's granted and what's denied), both companion pieces. Review Regulatory scheme Broadcasting (AM, FM, TV, not CATV). Scheme is one of regulation, not ownership. In Europe and Asia, the countries own the broadcasting stations. Congress created a commission to succeed the Federal Radio Commission. FCC superintends spectrum available for AM-FM-TV. Availiability is due to government allocation through a licensing scheme. 309 (h) denies property interest. Revocation can be instituted for good cause (set out in the act). Term can be abridged by renewal -seldom invoked. In Revocation, the government has the burden of proof, but it can exercise its right to apply for renewal. In renewal, licensee has the burden of proof. Licensing of stations is exclusive to federal government. State and municipal governments play small limited roles. Government's power to license is rooted in supremacy clause. FCC does day-to-day work of regulating broadcast operations. It adopts rules, has adjudicatory hearing. There are five commissioners appointed by the President, but President has little control. Broadcast regulation resulted from the technological problems. Then the scarcity of channels justified Broadcast Regulation. Sanders: Congress broadcasting is not a public utility. FCC does not regulate the economics of broadcasting. FCC licenses and allocates stations; creates technical requirements. A station has assets and a licens; neither are the same. Technology of radio (AM, FM, TV) broadcasting. Signals are a form of electrogmagnetic waves. TEchnology requires agreements between counteries. Signals (especially FM & TV) have a limited range. AM goes farther. AM's groundwave signal is a primary signal. Clouds create a skywave signal. In some places people must rely on these. The lower the frequency the better the propagation. The farther your signal the cheaper the electricity bill. Straight line of sight -FM -TV. no groundwave; are skywave. Height of antennae determine signal strength. Translator stations carry FM & TV signals farther. Mountaintop height is good for FM & TV (In West, mountain areas are cheap). Marshy lands in East are good for AM. Transmission requires transmittor (antennae and electricity). Some antennaes are gain antennaes. EAP -Concept is signals go out multidirectional (fictional pure circle) Why pull signals? Maximize listeners. Directionalizing a signal allows you to reach audiences. You may also need to comply with FCC rules. Right now a person can own at most two FM stations in a market. Overlap involving one percent of new audience disqualifies license. You can seek a waiver. The rule with a waiver leads to . . . Policy arguments in favor of directional antennae. General rule was cannot own two stations in same market. Station may get too many contiguous areas. Today directionalizing is easier to get. Commission regulates by a hands-off policy. It is concerned about licenses in good hands. Policy: no cartelization; no control by government. Broadcast regulations only go out so far. dependent on street noise, conductivity, etc. When broadcast stations collide there is interference. TV qualitative differences between lower and upper band. Channels 2-69 comprise TV band. VHF 2-13 and UHF 14-69. Network stations are usually VHF, non-network are UHF. Lower bands have an inherant propagation advantage. Ed stations do not need far reaching signals. Totality of nationwide grid -may not be perfect. Lower frequencies go farther but there may be interference. AM may only be day-time stations. FCC allocates spectrum pursuant to 307 (B). Eliminate interference. Promotes larger more effective use of radio. 303 (g) Progress FCC is impatient with people who want to stop creating broadcast stations. Objections to changing hands conflict with Congress's pol