FCC: Watchdog of Broadcast Media - Term Paper Example

Full and number FCC: Watchdog of Broadcast Media? American thought and American politics will be largely at the mercyof those who operate these stations, for publicity is the most powerful weapon that can be wielded in a republic. And when such a weapon is placed in the hands of one person, or a single selfish group is permitted to either tacitly or otherwise acquire ownership or dominate these broadcasting stations throughout the country, then woe be to those who dare to differ with them. It will be impossible to compete with them in reaching the ears of the American people. (Rep. Luther Johnson (D.-Texas), KPFA, 1/16/03) As the main communications overseer, the Federal Communications Commission (FCC) has had its hands full since its inception in 1934. Its responsibilities run the gamut from the media, public safety and homeland security, to ensuring appropriate competition among communication entities to the newly developing thorn in its side, the internet. One of the most challenging aspects of its job includes riding herd over the ever-evolving broadcast industry, with a huge listening and viewer base at its disposal. This is particularly challenging in the areas of fair competition, more specifically to the political arena where points of view and “spin” can affect the outcome of free elections. It is not, however, the only area affected by the broadcast media. The depths of its past and present influence is explored here from the perspective of changing laws, societal perspectives and what is or is not acceptable under its aegis. A Troubled History Before 1934 and government regulation, the airwaves were open to anyone with a studio and microphone. In short, there were too many voices cluttering up the airwaves, all insistent to be heard. Aside from the obvious din, this dearth of chatter would eventually come into conflict with new broadcast technology burgeoning at the time. Companies putting a good deal of financial resources into expanding broadcast access realized that in everyone being heard, no one was truly being heard.1 Working with the government, these entities eventually secured the attention of Congress, and in 1934 new legislation was passed that would lead to the regulation of the industry. The (FCC) was established by the Communications Act of 1934. The majority of its commissioners are appointed by the current president, a fact that has always given its decisions and actions a political taint, confirming the notion that “Not only must regulators be fair and impartial, but also they must be perceived as such…” (Wu & Xue 1). This was hardly the case in 1981, as deregulation of the industry under then President Ronald Reagan took a significant leap forward by extending television licenses from three to five years, and increasing the number of stations any single entity could own from seven to twelve in four years. (Now par. 8) As successor to the Federal Radio Commission, the FCC’s role is regulatory and covers all non-federal government use of the radio and television airwaves; interstate telecommunication (wire, satellite and cable), and international communications coming out of or entering the U.S. In the cooperative sense it has a degree of influence over communications agencies in other countries. Boasting an estimated 2011 budget of 335.8 million, and a proposed budget of 354.2 million for 2012, it is fully funded by regulatory fees. In essence, it is self-funded by those it oversees—another fact that in the past has left it open to charges of partisanship. 2 And there were other concerns as well, which suggested such control of the burgeoning airwaves, the primary new mode of disseminating information—any information—was under threat by a growing totalitarian state. Such power was not appropriate in a democratic society. While most of this rhetoric at the time came from those on the right or left who favored old “anything goes” rules, there was at the time and even today a general mistrust of any body with regulatory powers sufficient to stifle communication, such as the FCC possesses. Huber writes: Common law would have suited the American ethic of governance far better, particularly in matters so directly related to free speech. But between 1927 and 1934…the winds of history were blowing in the opposite direction…people in power persuaded themselves that the technical complexities of broadcasting…had to be managed through centralized control. The night of totalitarian government, always said to be descending on America, came to earth only in Europe. But America was darkened by some of the same shadows. One was the FCC. (5) 1980s, Reagan, and Weakening of the FCC The growing behemoth described by Huber 3 is indicated in a relevant timeline of its activities from 1941 through 2004. The chronology includes some of the more important cases adjudicated by and against FCC rulings.4 In analyzing the timeline from 1941 though 1975, the mission of the FCC seems clear: to keep the broadcast media in a position of non-monopoly and as an unbiased entity existing in the interests of the public. Ownership rules for radio and television were enacted to forward this goal. By 1970, further rules governing cross ownership of radio and television stations were enacted banning “ownership of both a newspaper and television stations in the same market” (Now par. 7). By 1981, however, the agency had become progressively more politicized under President Ronald Reagan, who, over the next four years retracted many of the regulatory statues governing the depth and breadth of the more powerful media corporations and their societal reach. By 1981 was clear that the FCC had become more politicized and that the agency was slowly beginning to eliminate many of the old rules in favor of media corporations and, in fact, individuals who wanted access. Abt and Mustazza describe the devolution: “….the FCC eliminated rules that required radio stations to ascertain community needs in their city of license by formally surveying community leaders and the general public and generating appropriate programming. In 1984, such standards for television stations were also dropped. And, in 1985, the FCC dropped "must‐ carry rules," and reversed the long-cherished Fairness Doctrine, asserting that the multiplicity of voices in the marketplace represented a reasonable substitute. (128-129) Introduced in 1949, The Fairness Doctrine required all holders of broadcast licenses to present all views of controversial topics important to the public in an honest format. It required these agencies to give adequate time to certain issues along with time for opposing views. A second part of the doctrine allowed for responses from individuals which has evolved into the common practice of editorializing. In essence, the whole reason for the FCC had devolved; its original purpose, to limit the spectrum of how many people had access to the airwaves, was now “the more the merrier.” As far back as the late 1960s the U.S. Supreme Court had upheld the right of the FCC to enforce the Fairness Doctrine, asserting “There is nothing in the First Amendment which prevents the Government from requiring a licensee to share his frequency with others.... [and] It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount” (U.S. Supreme Court, Red Lion Broadcasting Co. v. FCC, Opinion). In summary, the opinion of the Warren Court stated the following: …there can be no First Amendment right to broadcast comparable to the right to speak, write, or publish….[the] decision…upheld the FCC’s so-called fairness doctrine…based on "the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences." The implication is that there may be a right of individual access to the airwaves to ensure that the public right to receive diverse materials is vindicated. (Schwartz 210) The Burger Court in the Reagan era overturned the opinion… Lower courts, taking the opinion a step further, affirmed the FCC’s responsibility to protect the right. However, through a myriad of court actions the FCC finally abolished the ruling, prompting activists including Steve Rendall to suggest its reintroduction through either Commission policy or Congressional legislation” (Rendall, The Fairness Rule: How We Lost It, Why We Need It Back) According to Rendall, misconceptions, including some of those forwarded during the Reagan era to rid itself of the regulations concerned with the Fairness Rule, are many and damaging to those who support it. One involves the misinterpretation that programs themselves can not, as it were, include a certain slant, or that specifically equal time must be given to anyone and everyone. ( par. 17-18). This is particularly relevant in terms of political talk shows which we shall examine later. In summary of changes and diminishment of regulations over time, many others also occurred that increased terms of licensing and virtually eliminated rules requiring stations to keep program logs, a move that effectively made mute FCC control over the amount of commercial time injected into schedules. It is fair to say that the Reagan tenure changed the relationship between the FCC, the media and the public, in whose interest it was initially set up to protect. Abt et al write, “Mazzocco cites that year [1985], the one in which Capital Cities acquired ABC, as a watershed year in the road toward the creation of the giant media cartels” (129). Later, the Telecommunications Act of 1996 would contribute to the lessening of FCC power by removing restrictions of cross ownership of broadcast stations and print media, a change highlighted by the challenge to Ruppert Murdoch’s ownership of Fox news and several major dailies. Other diminishment of rules changed the equation regarding the number of television stations an individual or corporation could control through changes in permissible audience percentages that could be reached. (Telecommunications Act of 1996 Sec. 202). As journalist Ken Auletta was to note, until then [1980’s] “few outwardly challenged the idea that the FCC had the right and responsibility to monitor the airwaves in the public interest. Then, under Reagans first FCC chairman, Mark S. Fowler, that assumption crumbled…” (Abt et al 128). As Creech adds, “the new view at the FCC…corresponded with Reagans campaign promise to get government off the backs of the people, but in reality, he managed only to get government ‘off the backs of the broadcasters’” (97). Once the media giants moved in with their lobbyists and big money with sway over politicians, the writing for FCC power was on the wall. Combined with the trend of laissez-faire attitudes of government, a flurry of media mergers changed the regulatory game for the agency and forever diminished its power. (Abt et al 128). Even court actions would take on a different tone, revised and weakened by previous court actions more amenable to the current political climate that remains in effect today. Media Activism and the FCC Subsequent to deregulation of the broadcast industry, a plethora of issues have arisen, particularly in the realm of political talk shows and commentary. Rendall challenges known conservative talk show host, Rush Limbaugh’s notion that the Fairness Doctrine “as repeatedly claimed…all that stood in the way between conservative talk shows hosts and the dominance they would attain after the doctrine’s repeal” (Rendall par 18). In fact, when analyzed, the Fairness Doctrine did not stifle such opinion but merely kept radio stations, which ostensibly operate for the public at large, from providing a single daily and relenting perspective without offering opposing views. The result of the subtle bending of this rule is shown in the number of stations today which offer nothing but one view or the other. Even stations purporting not to do so often hire staff from commentators to disc jockeys to impart views similar to those of the ownership. There is no doubt in the mind of anyone who listens to radio, or who views television that society is heavily impacted by the media. This is fact obviated by the opportunities for public comment and participation through email, twitter, facebook and other avenues to express opinions that many say affects media programming. Thus, Fox programming, despite their claims of being “fair and balanced,” panders to certain tastes, as does programming on liberal segments of MSNBC such as Rachel Maddow and others. Considering the easing over time of FCC restrictions on advertising time percentages, the logical assumption is that this is being done to attract advertisers, which has turned news broadcast media into a marketing venue with the enticement for viewers of hearing “what they want to hear.” But there is certainly more to FCC regulations than how they impact political and social opinions. The agency, in a larger sense, acts as a defacto moral guardian of the country in its regulation of what is and is not acceptable to be done or said over the airwaves. In that, the social impact of laws governing its sway is significant. As most people familiar with European culture recognize, what is considered appropriate on the airways there is vastly different from what is accepted in the U.S. Enforcing what is considered FCC decency regulation becomes, because of free speech laws, a tricky endeavor. Over time, Fairness Doctrine aside, the role of the FCC in enforcing decency regulation has actually expanded, perhaps due to the influence of conservative religious groups, perhaps moreso in response to regulation (18 U.S.C. [section] 1464). The regulation provides that broadcasting "any obscene, indecent or profane language" is subject to fine or imprisonment. However, it is surprising to note that until 2004 such potential offenders as “fleeting expletives” did not violate FCC’s indecent speech regulations. Serious infractions of the main indecent speech rule was enforced by the Justice Department, and just recently turned over to the FCC because of free speech conflicts.5 An example of the complex nature of such rulings is evident in a recent Circuit Court hearing to which the issue was remanded. The conclusion was that FCC’s position was “arbitrary and capricious ” (Barton 1). However, it is interesting to note as reported by the Associated Press that "[a]ll three judges on a panel of the 2d U.S. Circuit Court of Appeals in Manhattan kept a government lawyer on the defensive decision in the case...." (Barton 1). One important option open to the public has remained in tact, though difficult to exact: the ostensible ability of the public to challenge with the FCC the licensing of or renewal of a broadcast license. Figures on how successful complaintents have been over time were not available, at least any that this researcher could find. It is interesting that while the FCC is obviously reluctant to become involved in any issue involving free speech, it encourages anyone offended by programming to contact the station licensee—a euphemism for, “if enough people complain they will take the offending program off the air in the interests of maintaining viewership. Speaking personally, a film on one of the cable channels with extreme sexual violence by children against children was recently protested. An email received by the FCC was acknowledged with the promise to investigate the complaint. Two weeks later, the same film was shown on the same channel. Is this an indication of the FCC’s lack of teeth? or lack of interest in pursuing such complaints? Conclusion The FCC, while begun as an agency to protect the public and ensure a protracted and valuable dissemination of information over the years, has become hogtied by laws that conflict with its mission, from political powers, social agendas and the capitalist state itself for whom business rules. Beyond radio and television broadcasting, the FCC is now negotiating the legalities of its position in regulating the internet and cyberspace--a legal entanglement that may prove far more complex if recent attempts to control the cable broadcast industry are any indicator. Complicated by he presence of regulators other than itself [local cable companies], the FCC tried to keep local regulators from seize [ing] no more than 5 to 10 percent of cables gross revenues, a move sidestepped through the activity [legal] of “accept [ing] noncash payments, free wiring school systems and offering free channels to politically favored organizations” (Huber 52). Handcuffed by Congress, the FCC was eventually stripped of its power to negotiate franchise fee disputes. (Huber 52). The FCC is currently dealing with similar issues—legality versus politics versus business as usual-- in deciding whether or not to attempt to regulate the internet. This issue, which crosses international lines of communication, present an even more entangled legal prospect on free speech and other democratic aspects. From a legal standpoint, some say, Huber among them, that the FCC Commission is useless and should be done away with entirely, even suggesting that the Constitution itself has muddied he waters of free speech. When it comes to cyberspace, the Commission, if it chooses, will be fighting a battle that is essentially parochial on a global basis. Rules it installs will not apply universally to a global media community. The task, it seems, will be impossible--one the FCC might consider putting aside altogether as outside of regulatory mandate. Endnotes 1. See Einstein, pp. 9-12 for an insightful analysis of this trend. 2. See Wu and Xue, Decision making procedures and ethics rules…Executive Summary which discusses the problem and rules for remaining literally impartial and giving the appearance of impartiality. 3. See Huber, Introduction, pp. 3-9 for an encapsulated view of the growing power of the FCC. 4. Media regulation timeline is outlined on the Now website. 5. Barton goes on to expand on the intricacies of law concerning any regulation on speech p. 567. Works Cited Abt, Vicki & Mustazza, Leonard. Coming after Oprah: Cultural Fallout in the Age of the TV Talk Show. Bowling Green, OH: Bowling Green State University Popular Press, 1997. Barton, Jerome A. “FCC V. Fox Television Stations and the FCCs New Fleeting Expletive Policy. Federal Communications Law Journal, 62. 3 (2010): 567 (p. 1 on Questia.com). Creech, Kenneth. Electronic Media Law and Regulation. Oxford: Elsevier, 2007. Einstein, Mara. Media Diversity: Economics, Ownership, and the FCC. Mahwah, NJ: Lawrence Erlbaum Associates, 2004. Huber, Peter. Law and Disorder in Cyberspace: Abolish the FCC and Let Common Law Rule the Telecosm. Oxford: Oxford University Press, 1997. Page Number: 5. Johnson, Rep. Luther (D.-Texas). …in the debate that preceded the Radio Act of 1927 (KPFA, 1/16/03). Now. Media Regulation Timeline. Available at: http://www.pbs.org/now/politics/mediatimeline.html (Accessed 13 April 2011). Opel, Andy. Micro Radio and the FCC: Media Activism and the Struggle over Broadcast Policy. Westport, CT: Praeger, 2004. Rendall, Steve. The Fairness Doctrine: How We Lost It and Why We Need It Back. Democratic Underground.com, April 18, 2011. Available at: http://www.commondreams.org/views05/0212-03.htm (Accessed 12 April 2011). Schwartz, Bernard. Decision: How the Supreme Court Decides Cases. New York: Oxford University Press, 1997. Telecommunications Act of 1996, Sec. 202, "Broadcast Ownership," 110, Stat 110. U.S. Supreme Court, upholding the constitutionality of the Fairness Doctrine in Red Lion Broadcasting Co. v. FCC, 1969. Wu, Irene & Xue, Cathleen. Decision-making Procedures and ethics rules: The Practical Enablers of Integrity and Impartiality in Telecommunications Regulation. Executive Summary, August 15, 2002. Available on: http://www.regulationbodyofknowledge.org/documents/183.pdf (Accessed 15 April 2011). Read More