Television and Radio Broadcasting Regulation

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 Regulating Television and Radio Broadcasting

Because television and radio broadcasting have the capacity to reach large audiences, both communication mediums have been highly regulated by the federal government. The Federal Communications Commission (“FCC”) was established by the Federal Communications Act of 1934 with the purpose of regulating interstate and international communications by radio, television, wire, satellite and cable.

The Communications Act authorizes the FCC to make regulations, not inconsistent with law, as the FCC may deem necessary to prevent interference between stations and to carry out the provisions of the Communications Act. The Act also covers the FCC’s jurisdiction, which covers all 50 United States, the District of Columbia, and U.S. possessions.

Goals of the FCC

As mentioned briefly above, the FCC has two primary concerns:

  1. To provide stability to the communications marketplace while facilitating the innovation needed for the future; and
  2. To ensure that television and radio-programming content is not violative of U.S. federal law standards established by the FCC.

The FCC’s authority to make regulations for TV and radio has been greatly expanded through the Supreme Court of the United States. For example, through the expansion of the FCC’s regulation authority, profane words cannot be used on a licensee radio station during hours in which a child may be part of the audience. If the broadcast station does so, they may be fined for a FCC violation.

How Does the FCC Make Rules and Regulations?

The FCC’s rules and regulations can be found in Title 47 of the Code of Federal Regulations (“CFR”), which are published and maintained by the Government Printing Office. The Rules are also available on the web in a searchable format.

It is important to note that most FCC rules are adopted by the notice and comment rulemaking process. Under notice and rulemaking process, the FCC gives the public notice that it is considering either adopting or modifying rules on a particular subject, and is seeking the public’s comment. Then, the FCC considers the comments they receive in developing final rules.

Standards for Television and Radio Broadcasting Content

Although the FCC has been granted broad power and discretion in regulating the communications industry, Title III of the Communications Act of 1934 prohibits the FCC from censoring television or radio broadcasts, unless they are depicting or uttering obscene or indecent language over a broadcast station.

Further, the First Amendment of the United States Constitution, as well as Section 326 of the Communications Act, prohibits the FCC from censoring broadcast material and from interfering with freedom of expression in broadcasting. The First Amendment’s protection of free speech includes programming that may be objectionable to many viewers or listeners, and as such, the FCC cannot prevent the broadcast of any particular point of view.

However, the right to broadcast is not absolute. In fact, the Commission’s enforcement actions regarding broadcasts of obscene and/or indecent material have evolved over the years as a result of Supreme Court decisions.

Today, the FCC’s enforcement actions are based on documented complaints of indecent or obscene broadcasting received from the public. The Commission’s staff then reviews each complaint to determine whether or not a violation of the obscenity or indecency prohibition has occurred.

Additionally, the FCC also regulates hoaxes and news distortion. If there is a broadcast by a station of false information concerning a crime or catastrophe, the broadcast may violate the FCC’s rules if:

  • The broadcast station knew that the information broadcasted was false;
  • The act of broadcasting the false information directly causes substantial public harm; and
  • It was foreseeable that broadcasting of the false information would result in such harm.

The FCC receives numerous complaints concerning allegations that stations have aired inaccurate or one-sided news reports or comments or covered stories inadequately. As mentioned above, the FCC will generally not intervene in these cases because it would be inconsistent with the First Amendment. However, the FCC has stated that “rigging or slanting the news is a most heinous act against the public interest.”

As such, any complaints of news distortion that the Commission receives may result in the investigation of a station for news distortion if there is documented evidence of rigging or slanting.

Examples of documented include testimony or other documentation from individuals who have direct personal knowledge that a broadcast station licensee or its management engaged in the intentional falsification of the news. Any evidence of directions to employees from station management to falsify the news would definitely result in penalties from the FCC.

Obscene, Indecent and Profane Broadcasts

As mentioned above, The FCC has been given authority regarding the regulation of indecent broadcasts. Specifically, the FCC maintains indecency regulations over television, radio, and other broadcasters, which limit indecent material and keep the public airwaves free of obscene material. The FCC’s authority in these matters was expanded through the Supreme Court of the United States.

Although the Supreme Court has declined to directly define obscenity, obscenity is identified using a test outlined in the 1973 Supreme Court Miller v. California case. Under the obscenity test in the Miller case, obscenity is something that appeals to deviants, breaks local or state laws, and lacks value.

The Supreme Court then later determined in the 1978 Supreme Court FCC v. Pacifica Foundation case that the presence of children in a broadcast audience trumped the right of broadcasters to air obscene and profane programming. However, broadcasters are allowed to show or broadcast indecent programming or air profane language between the hours of 10 p.m. and 6 a.m.

The FCC v. Pacifica Foundation case, also known as the George Carlin case, involved a George Carlin skit (the 7 dirty words skit) that was aired on the radio with a warning that it might be offensive to some audiences. The United States Supreme Court recognized specifically that the government had strong interests in:

  • Shielding children from potentially offensive material; and
  • Ensuring that unwanted speech does not intrude on the privacy of one’s home.

The Supreme Court held that the above two concerns were sufficient to justify special treatment of indecent broadcasting, which allowed the FCC to fine broadcasters for airing inappropriate content. Specifically, the FCC has the authority to prohibit such obscene, indecent, or profane broadcasts during hours when children may likely be among the audience.

If a broadcast station violates FCC’s rules and regulations, fines can range from tens of thousands to millions of dollars. Another famous case involved Janet Jackson’s wardrobe malfunction during the Super Bowl’s half-time show. After that case, many broadcasting networks instituted broadcasting delays in order to prevent similar incidents from occurring in the future.

How Do I Make a Complaint to the FCC?

In order for an individual to make an FCC complaint regarding obscene or indecent material, the FCC requests the following information be provided to them:

  • Any and all information regarding the details of what was actually said (or depicted) during the allegedly indecent or obscene broadcast;
  • The date and time of the broadcast; and
  • The call sign of the station involved.

Although the submission of an audio or video recording or transcript of the complaint of material is not required, submitting a recording is helpful in making a complaint to the FCC. Additionally, the specific name of the program, the on-air personality, song, or film, and/or the city and state in which the complainant saw or heard the broadcast is also helpful.

The fastest way to submit a complaint is through the FCC’s online complaint page. If you or your loved one suffered harm as a result of the broadcast then a television and radio lawyer may be able to assist you in initiating a civil claim against the wrongdoer.

Do I Need a Television and Radio Broadcasting Attorney?

If you have a complaint regarding television or radio programming content, you may contact the FCC and notify them of your concerns, either directly or through their online complaint portal. For all other legal matters, such as if you suffered any harm due to the broadcast, it is in your best interests to consult with an experienced entertainment lawyer.

An experienced entertainment lawyer with experience handling television and radio broadcasting issues will be able to assist you regarding your legal dispute. Finally, an attorney will also be able to initiate a civil claim on your behalf, and represent you in court, as needed.

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