Broadcasting in the United States is one medium which still remains subject to substantial forms of content-based regulation, principally by the Federal Communications Commission (FCC). Justification for this regulation is based on the “public interest” rationale. Essentially that rationale is that there is a quid pro quo between the station operator (“licensee”) and the federal government which issues the operator a license in exchange for an obligation to serve the interest of the community. This obligation requires the licensee to “ascertain the needs of the community” and then provide program service to foster public understanding of those issues. How the licensee provides programming to serve the needs is left to the licensee’s discretion.
“Public Interest” Regulation:
Despite the prohibition against censorship in the Communications Act of 1934, the “public interest” standard has spawned substantial regulation in a number of areas which directly relate to the content of the programming which a station may broadcast. These include political editorials, obscene and indecent programming, lotteries, contests and promotions, children’s programming on television, recorded telephone conversations, prohibited advertising on broadcast stations.
(1) Political Editorials: For years news and issue-oriented programming was governed by the FCC’s “fairness doctrine,” a doctrine which had its genesis in the political broadcast rules adopted pursuant to ß315 of the Communications Act of 1934, as amended. The fairness doctrine was meant to insure that all sides of controversial issues aired over a broadcast station were represented. To do this the rules of the FCC imposed certain affirmative obligation on broadcast stations to identify the “controversial issues” of public importance in its community and to respond to programming, including different points of view, regarding those issues. Thus when a station carried one viewpoint on a “controversial issue” it had an obligation to present the contrasting view.
Although a well-intended idea in theory, the fairness doctrine proved a nightmare to broadcasters. With the growth of political activism, broadcasters were constantly facing claims that they had been “unfair” in covering issues or refusing to present contrasting viewpoints. In response, many stations simply backed away from the coverage of controversial matters. Ultimately the fairness doctrine was repealed by the Commission, a decision which was then later upheld by the appellate courts.
Despite the demise of the fairness doctrine, there are two corollary doctrines which remain in effect. These include the “political editorial rule” and the “personal attack rule.”
The Political Editorial rule requires that if a station editorializes either for or against a candidate for public office, the station must notify the disfavored candidate about the editorial within 24 hours; provide a transcript or tape of the editorial tape and offer the challenged candidate an opportunity to have his or her representative reply to the editorial. In order to avoid creating “equal time” rights, which would be triggered by an appearance of the candidate, the political editorial rule limits the reply to a spokesperson for the candidate.
(a) The Personal Attack Rule is invoked when a person or group’s character or integrity is impugned during the discussion of a “controversial issue of public importance.” In this instance the station must notify the person or group attacked within one week, provide a script of the program, and offer a reasonable time in which to respond. The rule does not apply to newscasts or to commentary and analysis contained in news broadcasts. The rule is usually invoked in programs involving panel discussions or talk shows.
(b) Political Candidate Advertising — Candidates for political office enjoy certain access rights to the broadcast airways. The scope of these rights depends upon whether the candidate is running for a state or local office or a federal office. In the case of a candidate for federal office, any legally qualified candidate is entitled to “reasonable access” to use a stations’ facilities, including a right to purchase program length time. “Reasonable access” is not quantified but is subject to the circumstances prevailing at the time of the candidate’s request for time.
State candidates do not have quite the same benefits as federal candidates. In fact a broadcast station has no obligation to provide any time to a candidate for state office, even a candidate for governor. However, if a station chooses to sell political time to a state candidate, that candidate’s opponent is entitled to equal time on that station. Moreover, political candidates are entitled to a discount on the price for the time charged by the station. This discounted rate is known as the “lowest unit charge,” a concept which is very complex because of the wide range of selling practices and pricing formulas employed by broadcast stations. Nonetheless, political candidates are entitled to “lowest unit rate” for any time purchased within sixty (60) days of a general election and forty-five (45) days of a primary election.
In order to qualify for “equal time” and “lowest unit charge” the candidate must appear in the political advertisement. By an “appearance,” his or her voice or visual likeness must appear in the ad. The appearance of the candidate constitutes a “use.” Without a “use” there is no access entitlement nor is there a right to lowest unit rate. Instead, the station has no obligation to sell or, in the event it does sell time on a candidate’s behalf, to charge whatever the prevailing rate is for that air time.
Should a candidate purchase time outside the protected 45 and 60-day periods a station may not charge a candidate any more than would be charged for “the comparable use” of such time by other advertisers. This prevents a station from charging one price to a retail advertiser versus another higher price to an occasional political purchase.
A station is obligated under Commission rules to provide “full disclosure” to a political candidate of the various rates and options available to them. Many stations publish rate cards which set out a variety of advertising availabilities by day and program. Since these are often subject to change, including pricing changes based on the delivery of audience, full disclosure can often be extremely burdensome. However the failure to “fully disclose” all rates and options may result in substantial fines.
The “equal time” obligations imposed on broadcasters is not limited to paid appearances. Instead, if a candidate should make a guest appearance on a morning variety show, his or her opponent has a right to request equal coverage. The “equal time” aspects of the political broadcast rules are further complicated by the various “exemptions” available to candidate appearances on certain programs. For instance, the appearance of a candidate on a “bona fide newscast” or news interview does not trigger equal time obligations. And certain talk shows which are syndicated may also be exempt. However, exemptions on major or syndicated talk shows are done an a case-by-case basis.
A station is forbidden by federal law to censor the content or comment of a candidate appearing in a political spot or program. This exemption is absolute and thus in theory allows a candidate to make libelous or obscene statements. Fortunately the law recognizes that a station does not have liability for the defamatory or libelous remarks of the candidate. Nonetheless the problem is often created in the mind of the public that a station is responsible for the remarks of a candidate.
The FCC’s sponsorship identification rules as well as the rules of the Federal Election Commission require that all paid-for political announcements carry certain precise sponsorship identification taglines. These rules even go so far as to specify the size of the letters which appear in a television screen involving a broadcast ad.
Broadcasters are also obligated to maintain a political file which must contain all requests for political time, their disposition, schedule of times provided or purchased, rates charged, the dates aired, etc. The rules require that this information be placed in that file immediately after being received. The FCC takes the position that it is important to candidates to have timely access in order to exercise whatever equal time rights they have. During the heat of a hotly contested political campaign involving multiple candidates, this can impose a significant burden upon a broadcast station.
Political broadcasting takes other guises than political spot ads. This includes political debates sponsored by broadcasters which attempt to put all competing parties on the same platform. If a broadcast station sponsors such a debate, it is exempt from equal time opportunities provided the debate has “genuine news value;” does not allow any candidate to control the format or content of the debate; and does not attempt to advance the candidacy of one candidate over another. In these instances, a station is entitled to invite only the major candidates for a particular office and may disregard minor candidates if the station determines the minor candidate is “not significant.” Moreover, the failure to invite a minor candidate to a political debate does not create any separate “equal time” rights for the minor candidate.
Determining just who is a “legally qualified candidate” is not a simple task. Certain rules have been established in an attempt to define who qualifies. Briefly, they require that the candidate must publicly announce his or her intention to run and be qualified under the applicable law to hold that office. Candidates for presidency or vice presidency of the United States are national candidates and as such must qualify as a candidate in at least ten states. An “opposing candidate” is a person legally qualified for the same office as the legally qualified candidate. Interestingly, candidates for a party’s nomination are not considered to be opponents of candidates seeking other party’s nomination. For instance, when Bill Clinton sought the Democratic nomination in 1992 and ran against seven other Democratic hopefuls, he was not considered an opponent of George Bush during the primary phase of the campaign. This ruling holds despite the fact that the candidate during the primary could be directing his or her remarks and challenging the other party’s candidates in their respective primaries.
(2) Obscene and Indecent Programming: “Indecent” programming is that which is “patently offensive as measured by contemporary community standards for the broadcast medium and describes sexual or excretory activities and organs”. On the other hand, program material is “obscene” if “the average person, applying contemporary community standards, would find that the material appeals to the prurient interest; that the material describes or depicts sexual conduct in a patently offensive manner; or taken as whole, the material lacks serious literary, artistic, political or scientific value”. Perhaps the most distinguishing feature between obscene and indecent programs is that stations are barred from carrying any obscene programs.
Not so with indecent material. As a result of the famous George Carlin broadcast of the “seven dirty words” which were determined to be indecent, the Commission adopted a rule that such indecent programming could air but only when the number of the children in the audience was reduced to a minimum, suggesting late evening hours. The Commission vigorously polices “indecent” programming and has levied fines in excess of $100,000 when it has found a station to have carried such programming. Primarily these fines have been levied against “shock jock” hosts who go through great lengths to explore sexual and excretory activities on the air.
(3) Lotteries: The broadcast of any information regarding a “lottery” is tightly regulated under federal statute and FCC rules. “Lottery” is defined as a contest or promotion involving the awarding of a (1) “prize;” (2) based on “chance” selection; and (3) for which a participant must pay “consideration.” All three elements must be present or otherwise the activity is not a lottery under federal law and under most state laws. A prize is anything of value offered in the contest. Chance is present if the award of the prize depends in whole or in part upon chance rather than skill or some other factor within a contestant’s control. (Fishing contests are expressly exempted from the federal lottery statutes.) The final element is “consideration” which usually presents the greatest difficulty in interpreting the lottery statutes and rules.
Consideration not only involves items of value but can be found if the participant has to exert substantial time and energy in order to participate. Consideration is also subject to varying interpretations, depending upon whether federal or state law is applied. Some states hold that requiring the presence of a participant at a drawing is sufficient to constitute “consideration” even though the participant has done nothing more than register for a drawing. Oregon requires that for consideration to exist, a participant is required to provide some consideration of minimal value. Exerting a modest amount of personal time to participate does not meet that requirement.
Consideration presents other problems because a participant need not pay money to participate in a lottery if he or she is otherwise required to make a purchase to participate. Thus a person purchasing a new car may have a further right to participate with other new car buyers in a drawing for a new television set. The fact that the participant paid full value for one item in order to participate in a promotion at no extra cost is still deemed to be “consideration.”
(a) State Conducted Lotteries and State Authorized Lotteries — The federal lottery laws, particularly those affecting broadcasting, were greatly relaxed in 1990. As of that date broadcasters were permitted to advertise lotteries authorized or not otherwise prohibited by state if the lottery was conducted on behalf of (1) a not-for-profit organization; (2) governmental organization; or (3) commercial entities, where clearly the lottery was occasional and ancillary to the primary business of the commercial organization. However, this change in the law did not give broadcasters carte blanche to air ads regarding lotteries. Instead there was a further requirement that the lottery be authorized by the state in which the station was located. Clearly state conducted lotteries can be advertised over radio and television.
Charitable organizations are also permitted to air information regarding their lotteries provided they obtained appropriate authorization or permits from the state government. Occasional commercial lotteries have not benefited very much under the new federal rules because most states, including Oregon, prohibit those lotteries.
(b) Indian Gaming — Another form of gaming or lottery activity which is permitted to be advertised over broadcast facilities is Indian gaming. There are restrictions on Indian gaming ads as the rules require that the gaming and lotteries be conducted on Indian land; that they be operated by the Tribe; that the Indian gaming is permitted under state law where conducted; the state has entered into a “compact” to permit the games where participants “play against the house” instead of each other, e.g. slot machines, blackjack, etc.
(4) Contests and Promotions: The FCC has adopted a rule which prohibits the broadcasting of “false information concerning a crime or catastrophe,” if a station knows that the information is false or it is foreseeable that the broadcast will cause “substantial public harm” and such broadcast does in fact cause such harm to occur. Instances where broadcasts have announced that radio stations had been seized by Indians or that a volcano had erupted, or that the country was under nuclear attack, have been deemed the kind of catastrophe which will cause “substantial public harm.” However, stations can engage in creative programming and will not be presumed to propose foreseeable harm if a disclaimer “clearly characterizes the program as fiction” and is presented in a reasonable manner under the circumstances. At the heart of this rule is the goal of avoiding such public hysteria as resulted from the famous Orson Wells’ broadcast of the Martian invasion in 1938. The FCC has stated that the rule is only intended to prevent false reports of crimes and catastrophes and was not intended to prevent “harmless pranks.”
(5) Children’s Programming on Television: Under congressional legislation adopted in 1990, television stations are obligated to air at least three hours a week of programming specifically meant to serve the “educational informational needs of children” between 7:00 a.m. and 10:00 p.m. The failure to air this minimum amount of programming has cost television stations dearly with major fines ranging as much as $150,000.
In addition to airing the programming, television stations must file in their public inspection files on a quarterly basis a report showing their efforts during the previous three months and their proposed efforts for the succeeding quarter to serve the educational and information needs of the children. Furthermore, television stations must publicize the existing and locations of the reports and file them on an annual basis with the FCC.
In addition to minimum requirements television stations are also limited in the amount of commercial matter which may appear in a children’s program. The current limits are that no more than 10_ minutes of commercial time may appear on weekend programs designed for children and no more than 12 minutes during the weekdays. These limits apply to those programs designed for an audience of 12 years old and under.
(6) Recorded Telephone Conversations: Both radio and television stations today engage in active news coverage. A regular feature of news coverage is the recordation of telephone conversations. The recordation of telephone conversations brings at least three separate sets of laws into play: the FCC rules, state laws, and the federal criminal code. Federal law allows the recordation of a telephone conversation if only one party has given consent. Thus a newspaper reporter initiating a call to a third party can record that conversation without seeking the recipient’s consent. However, if a broadcast station records such a conversation, that does not entitle the station to rebroadcast that conversation over the air as part of its programming. Instead, the FCC rules require that “all parties” must consent prior to the beginning of the conversation. It is a violation of the rule to air a recorded conversation if prior consent has not been obtained, even though the party may later consent to the airing of that conversation. Finally, state laws often require that both parties consent to a conversation before it can be recorded.
Thus, even before considering airing a recorded conversation as part of a radio or television program, the broadcaster’s first concern is to make sure that all parties consented to the conversation before recordation. The problems with recorded conversations most often surface with morning talk shows where hosts will make random calls to members of the public. Unless that person has been forewarned and has consented to the call, the conversation cannot be recorded or broadcast.
Another area where the unauthorized use of communications arises is in the “intercept” of information transmitted over a discrete frequency. For instance, if newsroom personnel monitor a police channel for the purpose of securing information on accidents or crimes and then utilize that information as part of a news report, the broadcaster is exposed to both civil and criminal penalties for an unlawful intercept. While a news organization may listen to such transmissions, they may not divulge the content of those transmissions.
Competition for being first with the news in broadcasting can be intense. However, the fact that one station attains a news story and airs it does not permit a competing station to rebroadcast that programming without first obtaining the written consent of the originating station. The FCC rules require that copies of written consents for such rebroadcasts be available at the station. The key is the consent of the originating station and not that of the FCC.
(7) Prohibited Advertising on Broadcast Stations:
Hard Liquor Advertising— In addition to the limits on the amount of commercial material which may appear in children’s programs, there are other areas of content-based commercial matter which are heavily regulated. These include the advertising of alcoholic of beverages and the ban on advertising tobacco products.
While there is no federal prohibition against the advertisement of alcoholic beverages by broadcasters, many states do in fact prohibit the advertisement of alcohol other than beer and wine. Oregon bars the advertising of hard liquor ads on any broadcast medium.
Tobacco Products— Congress has banned the advertising of cigarettes and little cigars over broadcast facilities. In 1986 Congress also banned the advertising of smokeless tobacco products such as chewing tobacco and snuff. The law does not bar the broadcast advertising of pipe tobacco or cigars provided the cigar is not a “little cigar.” Although not addressed it is generally understood that a station may carry advertising for cigarette papers
Fireworks— Under Oregon law, the broadcast of any advertisement for the sale of fireworks, the use or possession of which is “unlawful” in Oregon, is prohibited. Generic ads for fireworks which do not mention specific items prohibited, are probably permissible. Broadcast stations must be careful though because of the dual state-local approached to fireworks regulation which exists in Oregon. Thus a particular fireworks may be permissible under state law but prohibited under county or municipal ordinance. Under those circumstances the ad would be prohibited.