Rules and Regulations Adam Lundquist

Quote  “Best test of truth is in the power of thought to get accepted into the free market”  Justice Holmes  “Best test of truth is in the power of thought to get accepted into the free market”  Justice Holmes

First amendment  Congress shall make no law restricting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Marketplace of ideas  Theory that we should be able to speak our minds because free speech is similar to a real market. The best ideas will rise and the worst will falter

Radio  Who owns the airwaves?  Limited  Frequency allocation  Auction  Overall picture National Telecommunications and information admin  Office of Spectrum Management  Who owns the airwaves?  Limited  Frequency allocation  Auction  Overall picture National Telecommunications and information admin  Office of Spectrum Management

Problems  How do you regulate radio without violating free speech?  Where does radio fall in the free speech spectrum?  Protect without too much restriction  Changing tastes  How do you regulate radio without violating free speech?  Where does radio fall in the free speech spectrum?  Protect without too much restriction  Changing tastes

Obscenity  Never protected  Indecency is regulated  Never protected  Indecency is regulated

Why Government has the right  Airwaves are considered public property that government “rents out”  Public interest  Airwaves are considered public property that government “rents out”  Public interest

Radio act of 1912 “Act to regulate radio communication” Mainly concerned with seafaring vessels. Required radio operators to obtain licenses Prevented them from transmitting on certain frequencies “Act to regulate radio communication” Mainly concerned with seafaring vessels. Required radio operators to obtain licenses Prevented them from transmitting on certain frequencies

Radio Act of 1927  Established the Federal Radio Commission  Regulate radio commerce inside the US “as public convience, interest or necessity requires”  “No person within the US shall utter any obscene, indecent, or profane language by means of radio communication.”  Established the Federal Radio Commission  Regulate radio commerce inside the US “as public convience, interest or necessity requires”  “No person within the US shall utter any obscene, indecent, or profane language by means of radio communication.”

First FRC Violation!  March 9, 1931 Robert Gordon Duncan  Says damned and “by god”  March 9, 1931 Robert Gordon Duncan  Says damned and “by god”

Communications act of 1934  Formed the FCC  Equal time rule  Included the provisions of the 1927 act such as keeping out indecent and obscene phrases from the airwaves.  Formed the FCC  Equal time rule  Included the provisions of the 1927 act such as keeping out indecent and obscene phrases from the airwaves.

Case Study  John R. Brinkley

1940 Report on Chain Broadcasting  Was one of the FCC’s earliest attempts to preserve localism by telling the networks that they could only have so much say over their affiliates. Upheld in NBC vs. US 1942

March 10, 1943  NBC v. US  Scarcity theory  Rules radio spectrum is limited and thus requires government regulation  One of the reasons why the regulate radio and not print, or internet radio  NBC v. US  Scarcity theory  Rules radio spectrum is limited and thus requires government regulation  One of the reasons why the regulate radio and not print, or internet radio

Payola  Defined as “The illegal practice of payment or other inducement by record companies to broadcast the song as if it is normally part of the days programming”  A radio station CAN play a cong for money, but THAT MUST BE DISCLOSED.”  Defined as “The illegal practice of payment or other inducement by record companies to broadcast the song as if it is normally part of the days programming”  A radio station CAN play a cong for money, but THAT MUST BE DISCLOSED.”

Effects  Some radio stations report spins of songs to publications and can change perceived popularity  Part of the reason that DJ’s are often left out of the song choosing process. Usually falls to program directors, Music directors, etc.  Some radio stations report spins of songs to publications and can change perceived popularity  Part of the reason that DJ’s are often left out of the song choosing process. Usually falls to program directors, Music directors, etc.

Payola (FCC)  When a broadcast licensee has received or been promised payment for the airing of program material, then, at the time of the airing, the station must disclose that fact and identify who paid for or promised to pay for the material. All sponsored material must be explicitly identified at the time of broadcast as paid for and by whom, except when it is clear that the mention of a product or service constitutes sponsorship identification.

Payola cont  Any broadcast station employee who has accepted or agreed to accept payment for the airing of program material, and the person making or promising to make the payment, must disclose this information to the station prior to the airing of the program.

1969  Red lion broadcasting v FCC  Carried a program that attacked a specific individual. Did not allow him to reply  Equal time rule  Red lion broadcasting v FCC  Carried a program that attacked a specific individual. Did not allow him to reply  Equal time rule

Results of Red Lion Case  1. It is in the public interest that both sides be represented  2. Does not violate the first amendment since it is held that viewing and listening public have right to see and hear what they want, but broadcaster operating in the public interest doesn’t  1. It is in the public interest that both sides be represented  2. Does not violate the first amendment since it is held that viewing and listening public have right to see and hear what they want, but broadcaster operating in the public interest doesn’t

Continued  3. Radio is a scarce resource  4. “The danger that licenses will eliminate coverage as a result of the personal attacks and political editorial rules is at best speculative and in any event FCC has authority to guard against it”  3. Radio is a scarce resource  4. “The danger that licenses will eliminate coverage as a result of the personal attacks and political editorial rules is at best speculative and in any event FCC has authority to guard against it”

First fine!  FCC issues 100 dollar fine against WHYY in Philadelphia  Ran a pretaped interview with Gratefull Dead front man Jerry Garcia where he used many swears  2 FCC dissented because of possible chilling effect  Cycle II (The show it was on) taken off air  FCC issues 100 dollar fine against WHYY in Philadelphia  Ran a pretaped interview with Gratefull Dead front man Jerry Garcia where he used many swears  2 FCC dissented because of possible chilling effect  Cycle II (The show it was on) taken off air

Obscenity and Indecency  Title 18 prohibits the broadcasting of any “indecent or profane language by means of radio communication”  Leads to the question of “What is obscenity”  Title 18 prohibits the broadcasting of any “indecent or profane language by means of radio communication”  Leads to the question of “What is obscenity”

Miller v California (1973)  Miller was a West Coast distributor of porn  Sent out unsolicited mail to advertise for his product  Man and mother in Newport Beach, Ca. open package  Complained to police  Miller was a West Coast distributor of porn  Sent out unsolicited mail to advertise for his product  Man and mother in Newport Beach, Ca. open package  Complained to police

Court  Was the sale and distribution of obscene materials protected by the first amendment?

Court  No, obscene material is not protected under the first amendment  Government can outlaw works based on “whether the work, taken as a whole lacks serious literary, artistic, political or scientific value  No, obscene material is not protected under the first amendment  Government can outlaw works based on “whether the work, taken as a whole lacks serious literary, artistic, political or scientific value

Obscenity  3 pronged test for obscenity  1. Average person when applying contemporary community standards, must find that the material when presented as a whole appeals to the prurient interests (defined as materials having to deal with lustful thoughts)  The material must depict or describe in a patently offensive way, sexual conduct as explicitly defined by law.  The material taken as a whole must lack serious literary artistic or political or scientific value  3 pronged test for obscenity  1. Average person when applying contemporary community standards, must find that the material when presented as a whole appeals to the prurient interests (defined as materials having to deal with lustful thoughts)  The material must depict or describe in a patently offensive way, sexual conduct as explicitly defined by law.  The material taken as a whole must lack serious literary artistic or political or scientific value

Indecency  Indecent material is not illegal but it is highly regulated  Can not be broadcast between 6am and 10 pm. This is because of FCC v Pacifica  Indecent material is not illegal but it is highly regulated  Can not be broadcast between 6am and 10 pm. This is because of FCC v Pacifica

What is Indecent?  Does it depict sexual or excretory organs or activities in terms patently offensive judging by contemporary community standards  What is patently offensive?  Does it depict sexual or excretory organs or activities in terms patently offensive judging by contemporary community standards  What is patently offensive?

Supreme courts test  3 tests  Is the description explicit or graphic?  Does the material dwell on or repeat at length descriptions or descriptions of sexual or excretory organs  Does the material appear to pander to titillate or shock. No single factor in determining. FCC balances many factors.  Pretty much can never say the F word  3 tests  Is the description explicit or graphic?  Does the material dwell on or repeat at length descriptions or descriptions of sexual or excretory organs  Does the material appear to pander to titillate or shock. No single factor in determining. FCC balances many factors.  Pretty much can never say the F word

FCC vs. Pacifica  Before this case, broadcasters regulated themselves  Landmark case  George Carlin releases album “Occupation Foole”  Gets played on WBAI  Dad and son hear it  Seven words  Before this case, broadcasters regulated themselves  Landmark case  George Carlin releases album “Occupation Foole”  Gets played on WBAI  Dad and son hear it  Seven words

Obscenity  Obscenity is illegal, indecency is regulated.

Decided  Material was indecent  Right to broadcast indecent material (not obscene) between 10 pm and 6am when kids are sleeping and likely not listening to the radio  5-4 Decision FCC could rule on what is indecent  Material was indecent  Right to broadcast indecent material (not obscene) between 10 pm and 6am when kids are sleeping and likely not listening to the radio  5-4 Decision FCC could rule on what is indecent

1987  In response to increasing complaints, FCC expands their definition of what is indecent is.  New definition - “Material that in context depicts or describes sexual or excretory organs in terms patently offensive as measured by contemporary community standards  10 pm no longer safe harbor  In response to increasing complaints, FCC expands their definition of what is indecent is.  New definition - “Material that in context depicts or describes sexual or excretory organs in terms patently offensive as measured by contemporary community standards  10 pm no longer safe harbor

1988  FCC bans all indecent material  1991 Court rules that complete ban on indecency is unconstitutional  FCC bans all indecent material  1991 Court rules that complete ban on indecency is unconstitutional

Jan 19, 1993  Congress passes the Public Telecommunications Act of Bans indecent material from 6am- 10pm

2001  Broadcasts TV first fine  January 26, 2004 FCC levies largest single fine for indecency in history against Bubba the Love Sponge  Broadcasts TV first fine  January 26, 2004 FCC levies largest single fine for indecency in history against Bubba the Love Sponge

Watchdogs  FCC does not actually monitor the airwaves, rather works by acting on complaints  For this reason watchdog agencies have sprung up  FCC does not actually monitor the airwaves, rather works by acting on complaints  For this reason watchdog agencies have sprung up

Case study  Morality in America  Donald E. Wildman  Howard Stern  1.7 Million Dollar settlement  Morality in America  Donald E. Wildman  Howard Stern  1.7 Million Dollar settlement

Broadcast limited protection  1. Unique pervasiveness - can come into homes uninvited. Since audience constantly tuning in and out doesn’t make sense to warn.  2. Broadcasting uniquely accessible to children. Even those who can’t read  1. Unique pervasiveness - can come into homes uninvited. Since audience constantly tuning in and out doesn’t make sense to warn.  2. Broadcasting uniquely accessible to children. Even those who can’t read

Case study  Donald E Wildman  Head of Morality in America  Took on Howard Stern  Stern gets fined  Stern gets ratings  Infinity fined and paid 1.7 Million  FCC can’t stop free speech, but can regulate it  Donald E Wildman  Head of Morality in America  Took on Howard Stern  Stern gets fined  Stern gets ratings  Infinity fined and paid 1.7 Million  FCC can’t stop free speech, but can regulate it

Pervasiveness theory  Because broadcast waves are available to anyone they are uniquely pervasive. Choose to or not to read a newspaper lying there but theoretically if you were walking through a city block you would be forced to hear it.