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Legal Issues of the Mass Media
Electronic Media Law
Undergraduate 3

Additional Law Flashcards




electronic media law
  • telephone
  • broadcast radio
  • broadcast TV
  • cable TV
  • internet 
history of broadcast radio & TV
  • radio used for maritime communication
  • broadcasting developed communication of ideas and becomes commerical
  • Radio Act of 1912- ship to ship or shore to shore communication
  • Radio Act of 1927- Federal Radio Commission (FRC; later becomes FCC)
    • created in response to chaos on airwaves
    • assign licenses to frequencies so service would be predictable/could predict who you would hear
    • solve problem of scarcity- there are only a fixed # of frequencies on electro-magnetic spectrum; licenses only granted to those who do some type of public service
foundations of broadcast regulation
  • govt. issued licenses (to solve scarcity)
  • scarcity on electromagnetic spectrum
  • spectrum is public resource --> licensees must use it to provide some public service
  • public interest,convenience, and necessity
    • Federal Broadcast Commission left to define public interest, eonvenience, necessity
Federal Communications Act of 1934
  • Replaced FRC with Federal Communications Commission (FCC)
  • Continuously amended to deal with new technology
    • still satute that underlies regulation for broadcast industry despite amendments
organization of current boradcast radio & TV system
  • local stations licensed by FCC - issue licenses to frequencies; stations granted the right to use license in local area/community
    • 211 communities/broadcast markets
    • many stations affiliated with networks
    • networks not directly regulated by FCC (unless the network owns and operates the station)
Federal Communications Commission
  • Federal regulatory agency charged with implementing laws
  • administrative law (1 of 4 primary sources of law)
  • 5 commissioners appointed by Pres. and approved by Senate to 5 year terms
    • 1 is appointed chair
    • no more than 3/5 can be from a single party
Licensing & the FCC
  • most impt. function is issuing and renewing licenses
    • to get a license must:
      • be a citizen of U.S. of company w/ <25% foreign ownership
      • be able finacially to build and operate station for 3 months w/o advertising revenue
      • personally have technical expertise to run station or have enough $ to pay someone to do it
      • be open & honest in disclosure w/ FCC and of good character
  • licenses are issued for 8 yr. terms
enforcement powers of FCC
  • revoke license to broadcast- very rare
  • give short-term license renewal- show that you've changed and follow rules in 4 yrs.
  • assess fines- most often
  • issue a ceas & desist order- tell broadcaster they must stop doing something
  • issue a letter of reprimand- list of things to do differently
medium specific regulations
Supreme Court has said different characteristics of media justify
  • different regulations
  • different levels of 1st Amend. protection
 each medium is regulated according to its own model (print, broadcast, monopoly, common carrier, internet)
print model of regulation
  • model of regulation used for newspaper, magazines
  • *absence of govt. regulation
  • protects speakers' rights b/c assumes that everyone will have a chance to speak; diversity of voices
  • no scarcity (theoretically)
  • success = $$ (subscriptions = $ = success)
  • responsible for content- owner can be sued
  • legal ?S go to courts - FCC doesn't serve as an intermediary
broadcast model of regulation
  • model of regulation for TV and radio
  • scarcity of spectrum- not enough channels on spectrum for everyone
  • govt. licensing- solve scarcity by assigning people to certain frequencies
  • proctect audience rights- licensee must agree to serve public (different from print model)
  • success = $$ and serving public interest
  • responsible for content
  • legal ?s go to FCC first, then to courts
monopoly model of regulation
  • model of regulation for cable TV
  • community franchises- each community chooses who their franchisee is
  • cable has less public responsibility than TV & Radio
  • success =$$
  • rates can be regulated by fed gov. (but they typically assume non-regulatory position)
  • responsible for content
  • legal ?s go to FCC first, then to courts
common carrier model of regulation
  • model of regulation for telephone
  • required to carry whatever anyone wants to send out (phone is a public utility b/c it is of significant importance to society)
  • universal service- everyone has access to a telephone/telephone service
  • no discretion about content- not responsible for content/owner of phone company can't be sued
  • individual users responsible for content
  • rates regulated by fed. gov.
  • legal ?s to FCC first, then to courts
internet model of regulation
  • model of regulation for the internet
  • combines elements of many different media (print, phone, broadcast, cable)
  • gray area
    • use existing model?
    • common carrier model?
    • not broadcast model
  • FCC will probably play as intermediary
comparison of 1st amendment protection among diff. models of regulation
most protection      print
least protection     broadcast
levels of govt. regulation
  • technical- doesn't cause much concern b/c doesn't deal w/ content
  • structural-guidelines for relationships w/i the mass media industries
  • content- deal w/ the message itself; limits and requires certain things
history of structural regulations on ownership
  • diversity and choice in programming & services offered- could hear diff. points of view
  • pricing- consumers didn't pay exorbitant prices for media
  • tied in with general antitrust regulations
  • monopolies to be discouraged in market economy
  • Sherman Act (1890)
    • prohibits efforst to combine companies/conspire to set prices, control trade, limit options
  • Abuse of monopoly power- run other companies out of town by working together to set prices
    • structural arrangements
    • anti-competitive practices
      • Clayton Act 1914
      • behavioral practices to destroy competition
structural arrangements
  • horizontal- combine to create one larger company (mergers)
  • vertical- consolidation of companies at different levels in the same industry (buyer/seller relationship)
  • cross-media ownership- own more than one mass media in the same market
  • concern about reduction of diversity- rights of audience to get what they need
current controversy over media ownership
  • % of audience any one company owning multiple broadcast stations can reach reduced to 39%
  • cross-media ban lifted
  • "Resolution of disapproval"- lift on cross-media ownership ban should not be held up
    • Bush Admin. will veto this legislation if passed- congress needs enough votes to override veto
anti-competitive practices
  • company behaviors that raise antitrust issues
    • predatory pricing
    • forced combination rates
    • microsoft case
    • ISPs and unsolicited e-mails
predatory pricing
  • anti-competitive practice
  • lower rates for a certain period of time to run competition out of business
forced combination rates
  • anti-competitive practice
  • can't require someone to use multiple outlets that you own so that they have access to a preferred outlet
    • ex.- can't force someone to buy ad space in both radio and newspaper if the only one they want to advertise in is radio
  • can offer incentives to advertise in both, but can't require both
microsoft case
  • exaple of anti-competitive practice
  • windows must come with browsers other than internet explorer or provide access code so that others can develop browser products
  • restores competition
ISPs & unsolicited e-mails
  • Blocking SPAM is not considered anti-competitive
  • AOL is w/i its rights to protect subscribers from unsolicited e-mails 
enforcers of antitrust regulations
  • Antitrust division of Dept. of Justice
  • FTC
  • FCC
  • State agencies (for state laws)
political programming of regulation of broadcast content
  • Section 315- Equal Opportunity/Time provision
  • Section 312- Candidate Access Rule
  • Zapple Rule
Section 315
  • Equal opportunity/Time provision
  • candidates must have access to same amount of broadcast time at the same cost- ads must be aired at approx. same time of day
  • candidates should have same amount of access to stations and personell
  • equality in terms of times, facilities, and costs
  • use= any content that features candidate's voice and/or image
exemptions to section 315
  • appearances in
    • bona fide newscasts- if candidate is quoted
    • bona fide news interviews- regularly scheduled interview shows
    • bona fide news documentaries- not about the election
    • on-the-spot coverage of bona-fide news events
  • broadcasters may not censor content of candidate's messages & can't be held legally responsible for objectionable content
Section 312
  • Candidate Access Rule- broadcasters are required to allow legally qualified Federal candidates access to stations
Zapple Rule
  • applies section 315 to a broadcaster who supports a certain candidate
    • if you allow a supporter on air in favor of a candidate, you must do the same with other candidates
Issues of regulation of broadcast content
  • free time for presidential candidates
    • conflict: only wanted to extend free time to major parties --> had to apply to FCC for exemption from section 315
  • candidates' graphic anti-abortion ads
    • broadcasters didn't this this was appropriate but FCC ruled that they couldn't ban ads or channel them to a certain times of day
Fairness Doctrine
  • reasonable amount of programming about controversial issues of public importance
    • must include opposing views on the issue
    • no specific issue
    • no specific amount of time
    • assumes local issues (w/i broadcast market)
  • Red Lion Broadcasting (1969)- not enforced
  • Personal Attack rule- not enforced
Red Lion Broadcasting
  • challenged Fairness Doctrine
    • violates broadcaster's 1st Amendment freedoms to require that certain content be covered
    • ruled that doctrine is constitutional based on scarcity principle
    • broadcasters can be required to cover controversial issues b/c they were using a scarce medium in the interest of the public
    • on the books but not inforced
Personal Attack Rule
  • if someone is attacked they should be able to similarly respond
  • on the books but not enforced
indecedy and regulation of broadcast content
  • anything "depicting sexual and excretory activities in a patently offensive manner, as measured by contemporary community standards for the broadcast medium."
    • still should receive some level of 1st amendment protection
    • must be channeled between 10 pm and 6 am
  • FCC v. Pacifica (1978)
  • may impose fines- increased after J. Jackson incident
  • Broadcast Decency Enforcement Act
FCC v. Pacifica (1978)
  • comedian: 7 dirty words; FCC fined radio station and case went to US SC
  • indecency standards can be enforced on broacast media b/c of its pervasiveness in daily lives and basis as serving the public interest
violence and regulation of broadcast content
  • violence on TV- recurring issue in TV history
  • V-chip requirement- every new TV set required to have V-Chip
    • supposed to work in conjunction w/ rating system
  • Ratings system- done solely by broadcasters; controversy over whether ratings are applied consistently/appropriately
  • pros/cons of system
  • content/technical/structural regulation?
    • broadcasters argue that it's more of a content regulation
children's programming & regulation of broadcast content
  • children's TV Act of 1990-
    • requires 3 hrs. of educational programming per week
    • limits on commercials in children's programs; 10.5 min /hr on weekends & 12 min/hr weekdays
    • product based commercials- advertisement for product related to program not allowed
    • displaying of web addresses
regulation of TV commercials
  • no ad limit during adult programming
  • requirements:
    • sponsor of an ad must be identified
    • self imposed restrictions (began as result of Fairness Doctrine)
      • no cigarette ads
      • no hard liquor ads
transition to digital TV
  • Feb 17, 2009- last day of analog broadcast signals
  • digital transmission uses less bandwidth
    • more channels available
    • frees up space for public uses
  • DTV not the same as HDTV
regulation of cable
  • Federal vs. local regulation
    • local- cable franchises
    • PEG channels (public, educational, govt. access)
    • public access channels can't be censored by cable system or govt. b/c they are a public forum
must carry rules
  • cable systems must carry broadcast stations w/i that market
  • Turner Broadcasting v. FCC
    • supreme court upheld must carry rules bc/ must protect over-the-air broadcastng
    • if broadcast channels weren't included in cable systems, there wouldnt' be enough subscribers to financially sustain them; also must be provided to people who can't afford them
  • net neutrality issues- to reat all content, sites, and platforms equally
internet regulation
  • difficult to regulate
    • no boundaries- international = jurisdiction issues
    • no central location through which messages are sent
    • encryption methods
    • anonymity- different and more difficult to regulate than other media
Communications Decency Act (CDA)
  • Part of 1996 Telecommunications Act
  • distribution of anything to a child that is questionable in terms of sexual content may be met w/ criminal & civil penalties (up to 2 yrs. in jail)
  • *ruled unconstitutional in ACLU v. Reno (1997)
    • CDA is too broad- ability of adults to access info. outweighs compelling govt. interest
    • should approach technological solutions to problem instead of content solutions
child online protection act (COPA)
  • 1998- it is a federal crime for commercial websites to communicate material "harmful to minors"
  • diff. from CDA b/c only applies to commercial websites
  • requires publishers to make a good faith effort to prohibit children from accessing sexual content
  • *declared unconstitutional (too broad)
children's internet protection act (CIPA)
  • requires filtering software on computers in public schools & libraries or else lose federal technology funding
    • "voluntary" but not really b/c schools & libraries will lose funding if they don't comply
    • upheld by US Supreme Court
arguments for/against CIPA software filters
  • for filters- many libraries have separate section for children w/ filters and adults w/o filters
  • against filters- companies don't have to release criteria used to make filters; can only block words which takes things out of context
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