Telecommunications Regulation
| the incredible shrinking chapter! | |
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| Constitutional foundation - Article 1, Section 8, Clause 3 | |
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gives the federal government the power
to "regulate Commerce with foreign Nations, and among the several
States, and with the Indian Tribes;"
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ex. Broadcasting
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spectrum is interstate, information is
being transmitted
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other technologies have been added over
time - ex. cable, cell phones, DBS etc., others have been largely exempted
- ex. Internet
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| History | |
| 1844 - telegraph and the right to regulate | |
| 1910 - Wireless Ship Act | |
| 1912 - Radio Act | |
| 1927 - Radio Act | |
| 1934 - Communication Act | |
| 1996 - Communication Act | |
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| Congress has the authority to legislate areas over which the federal government has power, however, Congress doesn't have the resources to administrate these areas on a day to day basis | |
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enabling legislation creates federal
administrative agencies to oversee areas on a day to day basis
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Federal Communications Commission (the
administrative agency) was created by the 1934 Communications Act (the
enabling legislation)
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| The FCC has the authority to regulate (the power of law) | |
| FCC made regulations are in the Code of Federal Regulations | |
| The FCC is responsible to Congress (Congress can overrule the FCC) | |
| The Senate has a committee to oversee telecommunications | |
| The House has a committee to oversee telecommunications | |
| Congress can also change the enabling legislation | |
| Oftentimes, the Courts will ask Congress to act on a matter instead of the FCC | |
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| The FCC has a three-fold function: | |
| 1. promulgates rules (legislative) | |
| 2. holds adjudicatory hearings (judicial) | |
| 3. enforces regulations (executive) | |
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The guiding philosophy - the "public
interest, convenience or necessity" (PICON)
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| The President also has a way to develop/influence telecommunications regulation | |
| The National Telecommunications Information Administration | |
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| The FCC is engaged in structural regulation | |
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for Radio and TV - licensing
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for Cable - franchising
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| The FCC is engaged in content regulation | |
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Section 326!
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The FCC doesn't have employees monitoring
broadcasts, they wait for the public to complain about content
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"punishment after the fact"
rather than censorship
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the FCC won't tell you what you can't
say (that would be censorship) but they will fine a person or institution
if they say something that violates a content regulation
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| examples of content regulation: | |
| 1. Children's Programming | |
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Children's Television Act (1990)
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limits advertising
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mandates 3 hours of "educational
programming" per week
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| 2. Obscenity, Indecency and Profanity (Title 18, Section 1464) | |
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Obscenity is not protected under the
First Amendment
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There has never been a profanity case Bono's use of the f word has revived talk about profanity |
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The issue that usually causes concern
is indecency
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| Pacifica case - it is impermissible to broadcast "language that describes in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, at times when there is a reasonable risk children may be in the audience" | |
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channeling or safe harbor (10pm to 6am)
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family hour
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Can the FCC regulate indecency on cable?
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access is more limited than broadcast, blocking is an option (least restrictive?) Congress is considering legislation that would give the FCC the authority to regulate indecency on cable |
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| V-chips and TV ratings | |
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not all networks (cable) have adopted
these ratings
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some material is exempt (such as newscasts)
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both the NCTA and the NAB are working
on "voluntary" indecency guidelines
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| 3. Political programming | |
| a. candidate access rule | |
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applies to legally qualified candidates
for federal office (though most stations apply it to state offices as
matter of policy)
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Section 312 (a) (7) says that stations
must give "reasonable good faith attention to access requests"
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there is no right for a candidate to
buy time on a station
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a station can't reject all ads, but can
reject unreasonable requests
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| b. equal opportunity/equal time rule | |
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applies to legally qualified candidates
for any elected public office
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if a station permits one it has to permit
all
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stations don't have to solicit requests
(passive)
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stations can't censor what candidates
air
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applies to things such as TV entertainment
programs, feature films etc.
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| there are four exceptions to equal opportunity/equal time rules | |
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there is also the Zapple rule to cover
spokespersons/supporters who discuss the campaign
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| 4. Falsification of news | |
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"staged news"
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deliberate distortion or staging of news
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Cokie Roberts "live" from the
Capitol
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the "dead" fish in the river
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NBC and "exploding" trucks
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