Rules and Regulations

1. Rules and Regulations Adam Lundquist

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

3. Heroes of Free Speech Born in Boston in 1841 Served in Civil War Appointed by Teddy Roosevelt Clear and present danger test Sterlization program Common law vs. statutory law Chief Justice Oliver Wendall Holmes

4. 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.

5. 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

6. History of Libel • 1637 English writer William Prynne wrote • a book that critisized the queen.  • Found guilty of Libel • Thrown in Jail and had his ears cut off

7. Libel Working Defintion: To publish in print, writing or broadcast an untruth about another which will cause harm to that person

8. Heros of free Speech • John Peter Zenger • Born in Germany in 1697 • Came to America • Published paper • Jailed for Libel • Trial in 1735 • Freed due to great attourney

9. Gold standard for Libel • Truth is an absolute defense against libel!

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

11. 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

12. Why Government has the right Airwaves are considered public property that government “rents out” Public interest, convience and nessicty

13. Public info files • Requirement to Maintain a Public Inspection File. Our rules require that all licensees and permittees of TV and radio stations and applicants for new broadcast stations maintain a file available for public inspection.

14. Check out my public file • Viewing the Public Inspection File. Each broadcast licensee, permittee, and applicant must make its station public inspection file available to members of the public at any time during regular business hours. Although you do not need to make an appointment to view the file, making one may be helpful both to the station and to you

15. What is in a public file • The License • Applications and Related Materials. • Citizen Agreements • Contour Maps. • Material Relating to an FCC Investigation or Complaint. • Political File. • Letters and E-Mails from the Public. • Local Public Notice Announcements.

16. 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

17. W and K Beginning in 1912 every country recieved designated call letters US at first didn't matter K or W wherever Original K and W boundary ran on the texas/new mexico border January of 1923 set where they are now East of Missippi W and West K Some Exceptions

19. Map of W and K

20. Where are these?

21. 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.”

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

23. 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.

24. Case Study John R. Brinkley

25. 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

26. 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

27. 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.” Also called Pay for Play

28. Effects Rico and mambo Part of the reason that DJ’s are often left out of the song choosing process. Usually falls to program directors, Music directors, etc.

29. 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.

30. 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.

31. 1969 Red lion broadcasting v FCC Carried a program that attacked a specific individual. Did not allow him to reply Equal time rule

32. 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

33. 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”

34. 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

35. 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”

36. 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

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

38. 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

39. 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

40. 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?

41. 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

42. 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

43. Indecency The FCC has defined broadcast indecency as “language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities.” Indecent programming contains patently offensive sexual or excretory material that does not rise to the level of obscenity.

44. Obscenity • Obscenity is illegal, indecency is regulated.

45. From FCC site Obscene Broadcasts Are Prohibited at All Times Obscene material is not protected by the First Amendment to the Constitution and cannot be broadcast at any time. The Supreme Court has established that, to be obscene, material must meet a three-pronged test: • An average person, applying contemporary community standards, must find that the material, as a whole, appeals to the prurient interest; • The material must depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable law; and • The material, taken as a whole, must lack serious literary, artistic, political, or scientific value.

46. 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

47. 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

48. 1988 FCC bans all indecent material 1991 Court rules that complete ban on indecency is unconstitutional

49. Jan 19, 1993 Congress passes the Public Telecommunications Act of 1992. Bans indecent material from 6am-10pm

50. 2001 Broadcasts TV first fine January 26, 2004 FCC levies largest single fine for indecency in history against Bubba the Love Sponge