Digital Beat -- The Public & Broadcasting

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An overview of FCC regulation of Broadcasting prepared by the Benton Foundation. For a detailed report see the FCC's The Public and Broadcasting

 

The Digital Beat v.1 no. 10
Veronica Breckheimer and Kevin Taglang

THE PUBLIC AND BROADCASTING
o Introduction
o The FCC and Its Regulatory Authority
o The Licensing of TV and Radio Stations
o Broadcast Programming: Basic Law and Policy
o Broadcast Programming: Law and Policy of
o Specific Kinds of Programming
o Broadcasting and Advertising
o Interference
o Comments or Complaints About a Station
o The Local Public Inspection File
o Conclusion -- What's Missing

I. INTRODUCTION
On June 7, the Federal Communications Commission released _The Public and Broadcasting_ (http://www.benton.org/Policy/TV/public.html) to provide a general overview of broadcast regulation for the public including how broadcast stations are licensed, their obligation to serve their local communities, and other requirements relating to broadcast programming and advertising.

The FCC's goal in releasing this revised manual is to increase public participation in broadcasting by giving people the tools needed to encourage stations to provide high quality programming. "An informed public plays a vital role in helping stations serve the local community's needs," the manual's introduction reads. This week's Digital Beat provides a brief summary of the document and highlights opportunities for you to get involved in shaping television programming.

II. THE FCC AND ITS REGULATORY AUTHORITY
Congress created the Federal Communications Commission (FCC) with passage of the Communications Act of 1934. The aim was to "make available, so far as possible, to all the people of the United States a rapid, efficient, Nation-wide, and world-wide wire and [wireless] communications service." FCC commissioners, appointed by the President and confirmed by the Senate, set rules to prevent interference between broadcast stations and regulate other communications systems. Within the FCC, the bureau with day-to-day responsibility for radio and television broadcasting is the Mass Media Bureau and all rules pertaining to the industry are in Title 47 of the US Code of Federal Regulations (Parts 73&74).

The FCC allocates licenses to operate broadcast stations in a manner to prevent interference between stations, but the Communications Act also requires a public interest standard for review of applications to build and operate stations. The FCC considers community needs and expects stations to be aware of important problems and issues in their communities and to foster public understanding by making programming and/or announcements available about these local issues. However, the FCC is not responsible for the material disseminated over the airwaves as the Communications Act prohibits censorship. The FCC can fine stations or - in theory - revoke a station's license for airing 1) obscene language when children are likely to be in the audience, 2) types of lottery information (1) or 3) soliciting money under false pretenses.
(Since cable TV channels cannot be seen without subscription, they are the regulated differently by the FCC. However, even if a broadcast station is transmitted through a cable system, it is still regulated as a broadcast station.)
When proposing new regulations for the broadcast industry, the FCC must first ask for public comment in a process called a Notice of Proposed Rulemaking (NPRM). By a majority vote of commissioners, the FCC adopts a NPRM allowing a set time frame for interested parties to file opinions, to review other public comment and then to comment on what others have filed. FCC staff then review these filings and write new rules for the commissioners to vote on. There are four actions the FCC can take after completing this process: 1) adopt the proposed rules, 2) adopt a modified version, 3) ask for public comment on addition issues, or 4) end without any action.
For basic instructions on how to follow and participate actions at the FCC, see the Guide to the Paper Chase at the Federal Communications Commission (http://www.benton.org/Policy/96act/paperchase.html) or the FCC's own How to Participate in the FCC Process http://www.fcc.gov/how2par.html.

III. THE LICENSING OF TV AND RADIO STATIONS
There are two types of licenses in broadcasting: commercial and non-commercial. Commercial stations support themselves with advertising; noncommercial stations support themselves with different combinations of contributions from viewers/listeners, commercial companies, foundations, and the government. However, non-commercial stations cannot air advertisements for the companies that fund them, they can only name and generally describe them.(2)

For anyone wishing to build a station of any type, they must first apply to the FCC for a construction permit. Only after the station is built - consistent with the construction permit -- can a radio or television license be applied for. If granted, the license is for a period of up to eight years and to be renewed, the FCC must determine whether the station has served the public interest. In addition, the station must certify that: 1) it has filed required FCC reports; 2) it is not owned by foreign governments or non-US citizens; 3) no court judgment of any kind has been filed against it; and 4) required materials are in its public inspection file. All stations must also afford equal opportunities in employment. (The FCC is in the process of adopting specific rules, which will comply with recent court decisions.) Any person can protest against a station and attempt to deny the renewal by filing a formal petition with the FCC. The Petition to Deny must be filed by the end of the first day of the last full calendar month of the expiring license. (Ex: If license expired December 31st, you must file before the end of the day on December 1st). People can also participate in the assignment of a license (when a station is sold) or a transfer of control (a major stock transfer). Station owners are required to advertise in the closest local newspaper for these types of applications. Then the FCC places all Public Notices for these applications at http://www.fcc.gov. The public has 30 days to file formal petitions. Informal petitions can be filed at anytime.(3)

IV. BROADCAST PROGRAMMING: BASIC LAW AND POLICY
The First Amendment and federal law generally prohibit the FCC from censoring material in broadcasting. Stations choose the material they determine as best for their community. The FCC does not advise on artistic standards, formats, grammar or the quality of their programming. This also applies to advertising, except political advertising (discussed later). Stations have no obligation to have any particular person participate in a broadcast or to present that person's remarks. Stations are not required to do public service announcements of any kind. However, as discussed later, there are certain rules from the Communication Act that stations must follow concerning personal attacks, political editorials and the use of stations by candidates for public office.

The FCC does not require stations to archive the material they broadcast except in cases of personal attacks or political editorials. Personal attacks are when someone attacks the honesty, character and integrity or personal qualities of person(s) or group(s). No more than one week after the broadcast of such material, the station must transmit to the person attacked: 1) notification of the time, date, and identification of the broadcast; 2) a tape, script or accurate summary of the attack; and 3) offer a reasonable opportunity to respond on the air. Political editorials are when a station endorses or opposes a candidate. (This does not include "comments" or "commentary.") Within 24 hours of said editorial, the station must notify the candidate in the same three-step fashion noted above. Stations must identify themselves when signing on and off for the day. Hourly announcements must also be made as close to the hour as possible. The identifications must include station's call letters, the communities specified in the license and the station's location -- and may also include the name of the licensee, the channel number and/or frequency.

V. BROADCAST PROGRAMMING: LAW AND POLICY OF SPECIFIC KINDS OF PROGRAMMING

The FCC cannot prohibit the broadcast of an opinion on any subject nor does the Commission review anyone's qualifications to gather, edit, announce, or comment on the news. Selection of news material and decisions about journalism are entirely the responsibility of broadcast stations. Stations violate FCC rules when they air information about a crime/catastrophe they know is false, and it is foreseeable that the broadcast would cause harm. A station must inform any party of its intent to broadcast conversations before recording, except in cases where broadcast is reasonable presumed (ex: radio call in shows). No federal laws prohibit broadcasting requests for funds.

Stations must fully and accurately disclose the terms of contests. Federal law prohibits broadcasting any advertisement for a lottery or any information concerning a lottery.(4)

Political speech, however, is somewhat of a different animal. The Communications Act requires a station that permitted time to one qualified candidate for "use" to afford the same amount of time to all qualified candidates. "Use" in this example does not include bona fide newscasts, interviews, and documentaries.

Every station must address the educational and informational needs of children -- the only programming mandated by law, the Children's Television Act of 1990. The FCC rules that a station has complied with the CTA if the licensee has aired at least three hours/week of children's educational programming. Material is considered educational if it meets the intellectual/cognitive or social/emotional needs of children 16 years old or younger. The programming must be aired between 7:00 a.m. and 10:00 p.m., be at least 30 minutes in length, and be scheduled regularly. Advertising time during these programs must not exceed 10.5 minutes/hour on weekends and 12 minutes on weekdays. All such programming needs to be identified at the beginning of the program and information identifying the programming must be sent to program guide publishers.

Not mentioned in the FCC manual are a couple of tools for people who want to track the success of children's television rules. The Children's Television Act Tool Kit (http://tap.epn.org/cme/ctatool/ctahome.html) provides tools to help you monitor the implementation of the Children's Television Act CTA. Additional information is available from the FCC at (http://svartifoss.fcc.gov:8080/prod/kidvid/prod/kidvid.htm).

The First Amendment protects programming that stereotypes or offends people with respect to race, religion, national background and gender. However, the Supreme Court has ruled that government may curtail speech that is 1) intended to incite or produce dangerous activity and 2) likely to succeed in achieving that result. The FCC believes the appropriate criminal law officials should be the authorities to police such unlawful activity, not the FCC. Federal law prohibits the broadcasting of obscene programming and regulates obscene language. Profanity does not fall under these categories. Congress passed a law in 1996 requiring the V-Chip technology in all televisions by January 1, 2000. The V-chip is a device that allows parents to program their TV sets to block display of TV programming they decide is unsuitable for their children to watch. The technology is complemented by a voluntary programming rating service, called "TV Parental Guidelines," established by the National Association of Broadcasters, the National Cable Television Association and the Motion Picture Association of America. The system is used by *most* of the major broadcast networks. The FCC has formed a task force to ensure the V-Chip technology works for parents, for more information, see (http://www.fcc.gov/vchip/).

Apart from the FCC, the V-Chip Education Project, a partnership of the Henry J. Kaiser Family Foundation and Center for Media Education, to teach interested parents, children, educators, and other members of the public how to use the television ratings system and new V-Chip TVs. Additional information is available at (http://www.cme.org/).

VI. BROADCASTING AND ADVERTISING

Commercial Stations

Stations can accept or reject any advertising and stations negotiate their own advertising rates. The FCC only regulates political advertisements. Sponsorship identification must accompany any material broadcast in exchange for money or services. No law restricts this except the aforementioned rules on children's programming. Federal law prohibits advertising for cigarettes and other tobacco products, but does not prohibit ads for smoking accessories, pipes or alcoholic beverages. With respect to advertising content, citizens can address all complaints to the network or station, as the FCC does not regulate content. The Federal Trade Commission (FTC) and the Food and Drug Administration have responsibility for false or misleading advertising.

Unless a station is breaking a law, the government cannot take action even when audience members may find an advertisement offensive. A complaint should first be filed with the station. Subliminal programming, designed to be perceived on a subconscious level only, is considered inconsistent with a station's obligation to serve the public interest as it is intended to be deceptive.

Noncommercial Stations

Noncommercial stations are different. They cannot promote the goods and services of for-profit donors or underwriters. "Enhanced underwriting" acknowledgements of for-profit donors may include the company's name, slogan (if it identifies, but does not promote the company), brand name, trade name or the company's location. (5)

VII. INTERFERENCE

People who are close to a station's transmitting antenna may experience impaired receptions of other stations. The station causing the interference resolves those complaints in the first year of operation at no cost to the person complaining -- as long as the complaints are inside the blanketing contour (115 dBu contour for FM stations, 1 V/m contour for AM). If the problem is not rectified by the station in question, contact the FCC:
For radio stations:
Federal Communications Commission
Audio Services Division, Mass Media Bureau
445 12th St., SW,
Washington, DC 20554
202-418-1410 (fax)
jcrutchf@fcc.gov
For television stations:
Federal Communications Commission
Video Services Division, Mass Media Bureau
445 12th St., SW,
Washington, DC 20554
202-418-2827 (fax)
dbennett@fcc.gov

Complaints should include your name, address and phone number,and the call letters of the station involved. The more specific the complaint, the easier it will be to identify and correct the problem.

VIII. COMMENTS OR COMPLAINTS ABOUT A STATION

The FCC encourages citizens to first contact stations when they have complaints since the station is responsible for its content. When no progress is made at this level, the FCC will consider complaints. All comments or complaints should include the following: 1) call letters of the station, 2) city and state, 3) specifics about the matter, 4) name of anyone you contacted at the station(s), and 5) a statement of the problem along with a recording of the program, if possible.

Complaints should be directed to:
Federal Communications Commission
Enforcement Division, Mass Media Bureau
445 12th St, SW
Washington, DC 20554
202-418-1430
202-418-1124 (f)
complaints-enf@fcc.gov

The FCC does not regulate the following: 1) broadcast networks (ABC, CBS, FOX, NBC, etc) except as owners of particular stations; 2) information provided over the Internet; 3) closed-circuit systems; 4) sports entities; 5) motion pictures; 6) the publishing of newspapers, books or any printed material; 7) copyright laws; 8) associations of any kind.

IX. THE LOCAL PUBLIC INSPECTION FILE

All TV and radio stations must maintain a public file with FCC-required documents, including the document described below. The purpose of this file is to serve community needs and keep people informed. It must be available at each station's main studio during business hours. Copies of materials may be requested at your cost, the station only pays for the postage if documents are requested by phone. The stations can post the information/documents on their Web site but it is not required. Recommendations made by a Presidential advisory committee last year (http://www.benton.org/PIAC/rec1.html) ask the FCC to set disclosure rules for information pertaining to contributions to political discourse, public service announcements, children's and educational programming, local programming, programming that meets the needs of underserved communities, and community-specific activities. The Committee also recommended that broadcasters should take steps to distribute such public interest information more widely, perhaps through cooperation with local newspapers and/or local program guides so that viewers can more readily identify and evaluate the efforts local broadcasters are making to address their interests. Similarly, many local television stations now maintain Internet websites where they could post on a regular basis this kind of information. The Commission report reads, "Greater availability of relevant information will increase awareness and promote continuing dialogue between...broadcasters and their communities and provide an important self-audit to the broadcasters."

Currently, a station's public file must contain:
(1) Station's License

(2) Applications and Related Materials - applications for things such as selling the station, transferring the station, modifying the facilities or increasing power which are still pending at the FCC or courts

(3) Citizen's Agreements - programming, employment or other agreements stations make with local viewers and listeners

(4) Contour Maps (for interference) - the service contours (boundaries in broadcast signal) and transmitter location

(5) Material Relating to an FCC Investigation or Complaint - if there is an investigation or complaint against the station because it has violated (or has been accused of violating) FCC rules, the documentation must be filed until the FCC notifies the station otherwise

(6) Ownership Reports and Related Materials (contracts) - contains the most recent information including names of the owners of the station, their interests [and hobbies], lists of contracts related to the station that are required to be filed with the FCC and any interest the station holds in additional broadcast stations.

(7) Contracts to be Filed with the FCC - the contracts or an updated list thereof related to network affiliation, contracts relating to ownership control, permittee or stock and management consultant/profit sharing agreements. If the contracts are requested from a list, the station must provide them to you in seven days

(8) Political File (candidates time etc.) - these are records for broadcast time used by candidates for public office with times, rates, responses, classes of time purchased, whether or not it was free. All records must be kept for two years from the broadcast date

(9) Copies of the Complete Manual, The Public & Broadcasting, summarized here

(10) Annual Employment Records and Related Materials - the purpose of this is to show the community being served by the station whether or not their station affords equal opportunity in employment as the FCC prohibits discrimination based on race, color, religion, national origin or sex. The stations must file a report with the FCC annually on how they have complied with these policies. The FCC is in the process of making these rules consistent with a recent D.C. Circuit Court decision, which struck down some of the specific rules regarding equal opportunity in employment.

(11) Letters and E-mail from the Public - for three years each station must keep written comments and suggestions from the public. Noncommercial stations are not subject to this requirement.

(12) Issues/Programs List (relevant community programming) - each station must keep a list of the previous three months of programming dealing with community issues with brief descriptions of what the program was and how the programming dealt with community issues. They must keep the lists for the entire license term.

(13) Children's Television Programming Reports - these reports must be submitted by commercial TV stations each calendar quarter. They must keep them for the remainder of the license and they should include programming that serves the needs of children 16 and under which is required by the Children's Television Act of 1990 and FCC rules.

(14) Records Regarding Children's Programming Commercial Limits (see sectionV above);

(15) Radio Time Brokerage Agreements (contacts for selling time to a broker
in radio);

(16) List of Donors (noncommercial only) - all stations must keep a list of donors supporting specific programs for two years after the program airs.

(17) List of Public Notices (FCC required documents); - applications to build a new station or to renew, sell or modify an existing one. Most are required to be announced in a local paper so the community can comment on them and copies of the announcements should be filed as well.

(18) Must-Carry or Retransmission Consent Election (commercial television) - a broadcast TV station can be carried by cable operators in two ways: must-carry and retransmission consent. Must-carry means that a station is carried on a cable system with no compensation. Retransmission consent is only available to commercial television stations which can receive compensation from the cable system in return for granting the cable company permission to carry their station. Noncommercial stations can mandate to cable systems that they be carried but cannot receive compensation therein. Stations decide every three years which choice to make and must keep the record on file for said three-year period.

X. CONCLUSION -- WHAT'S MISSING
The Public and Broadcasting provides basic tools for citizens to participate in broadcasting -- but only as commenters on programming that has already aired. What is missing is a description of the public's role in deciding just what broadcasters should air and how stations should address the needs of community.

Broadcasters cannot be said to operate in the public interest when the public has not had an opportunity to determine what the public interest is. Recently, People for Better TV (www.bettertv.org), a broad coalition of concerned citizens and organizations, asked the FCC to begin an inquiry into, and the establishment of clear guidelines regarding, the public interest responsibilities of digital television broadcasters. People for Better TV asked that these proceedings begin as soon as possible, and include a full range of services in the public interest made possible with digital broadcasting.

Here's another way for you and your organization to get involved in the future of broadcasting. Contact the FCC and let the Commission know that citizens and communities have the right to define their compact with broadcasters who are licensed to serve in the public interest. Let the FCC know that you want to have your say in defining what "in the public interest" will mean in the age of digital television.

To contact FCC commissioners, write to:
Chairman William Kennard: wkenndard@fcc.gov
Commissioner Susan Ness: sness@fcc.gov
Commissioner Harold Furchtgott-Roth: hfurchtg@fcc.gov
Commissioner Michael Powell: mpowell@fcc.gov
Commissioners Gloria Tristani: gtristan@fcc.gov

or at this address:

Federal Communications Commission
445 12th St, SW
Washington, DC 20554

What's needed is a strong message from the public: the airwaves belong to us-thus our rights as viewers, listeners, information providers and producers are paramount. Digital television will serve democracy in the years to come as long as the public secures a guarantee from station owners to serve our diverse educational, cultural and civic needs.

For more on this issue, see Digital Beat #7, The Viewers Bill of Rights
(http://www.benton.org/DigitalBeat/db051499.html)

(1) A recent Supreme Court ruling will most likely permit advertising for gambling in states where gambling is legal.

(2) Marketplace, Public Radio International's daily business show, recently aired a provocative three-part series examining whether increased reliance on corporate and foundation funding is influencing not only the sound of underwriting credits, but also the journalistic choices of local and national public radio organizations. Among other things the series reported that foundations with a mission sometimes seek to exert more influence on programming than do corporations, that local public radio news organizations often do not have clear guidelines separating news decision-making from local underwriters, and that even inside public radio concern over increasingly enhanced underwriting is widespread. To hear the series on the Web, see (http://www.marketplace.org/features/underwriting/). [Note: the Benton Foundation and the Robert Woods Johnson Foundation award grants to public radio stations that submit proposals demonstrating the positive impact public service media can have on health care issues. (see http://www.soundpartners.org/)]

(3) See Benton's Guide to the Paper Chase at the Federal Communications Commission (http://www.benton.org/Policy/96act/paperchase.html) for a discussion of formal vs informal comments.

(4) See note 1 above.

(5) See note 2 above.
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(c)Benton Foundation, 1999. Redistribution of this email publication - both internally and externally -- is encouraged if it includes this message. This and past issues of Digital Beat are available online at (www.benton.org/DigitalBeat). The Digital Beat is a free online news service of the Benton Foundation's Communications Policy & Practice program (www.benton.org/cpphome.html). Digital Beat is made possible by support from the Open Society Institute.