Lecture 10c: Regulation of Broadcasting and Political Candidate Programming

1. COM 451 1 Lecture 10c:Regulation of Broadcasting and Political Candidate Programming COM 451 Communication and Law

2. COM 451 2 I. Broadcast Regulation Rationale Air is a public resource Spectrum is limited Government controls allocation of spectrum Government must set standards and make choices Licensees must broadcast in the public interest License renewal is not guaranteed

3. COM 451 3 I. Scarcity(?) of Broadcast Stations At the end of 1999, there were 12,500 radio stations in the USA. About� 5,000 were AM 5,700 were FM almost 2,000 were �educational.� There were about� 1,700 �standard� television stations, plus about 2,000 low power TV stations By contrast, there were about 1,600 daily newspapers.

4. COM 451 4 II. Red Lion Broadcasting Co. v. FCC (1969) The Supreme Court upheld the constitutionality of a requirement that broadcasters provide a right of reply to a person whose character has been attacked during discussions of controversial public issues. Red Lion, a small town in Pennsylvania with a radio station and an association of broadcast journalists, challenged the personal attack policy. In Nov. 1964 on WGCB radio, Reverend Billy James Hargis sharply criticized Fred Cook, the author of a book about Senator Barry Goldwater. Cook did not like what was said and asked for free airtime to reply. Radio station refused, and Cook complained to the FCC. FCC insisted that Cook be provided free airtime. The radio station appealed arguing that the Fairness Doctrine violated his right of free expression. US Court of Appeals in DC upheld the FCC in 1967.

5. COM 451 5 II. Opportunity to rebut personal attack �Personal attack policy� is one of the few remaining remnants of the Fairness Doctrine (ousted in 1987) Requires broadcasters to provide diverse viewpoints on controversial public issues Regulation upheld: station must offer free time for reply. Must also send a tape, transcript or broadcast summary to the person attacked. Justice White said the First Amendment can be applied differently to different media and spectrum scarcity makes broadcasting different. �As long as the demand for spectrum space exceeds the frequencies available, no person has a constitutional right to use the broadcast spectrum, including the licensee who does not have an unfettered right to broadcast only their own views on public issues.� � It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.�

6. COM 451 6 II.Miami Herald Publishing Co. v. Tornillo(1974) Similar factual background to Red Lion case but with totally opposite result. Illustrates how regulation of print media and of broadcasting are viewed very differently in the United States, even today. The Miami Herald refused to publish a reply to the paper�s criticism of Pat Tornillo, a candidate for the state legislature. Tornillo argued that the First Amendment rights of the public would be served if dominant newspapers were required to print replies from political candidates. The US Supreme Court said that requiring newspapers to print replies from political candidates attacked by a paper would dampen the vigor and limit the variety of public debate because the replies would cost money and time and take up space that could be devoted to other subjects. Thus, they found the Florida law that required that candidates be given a right of reply unconstitutional. Chief Justice Burger said �A newspaper is more than a passive receptacle or conduit for news, comment, and advertising.�

7. COM 451 7 II. CBS v. Democratic National Committee (1973) The DNC petitioned the FCC to declare that no broadcaster could refuse to run paid editorial advertisements. They wanted the FCC to declare that stations must sell airtime to the committee to present party views and solicit funds. FCC ruled that broadcasters could refuse to sell airtime for comment on public issues, but the DC Court of Appeals reversed the FCC. US Supreme Court then reversed the Appeals Court and supported the FCC. Court ruled that First Amendment does not require broadcasters to provide airtime to specific individuals or groups who want to present a point of view on public issues. FCC feared that if access to broadcast media could be purchased on demand, discussion of public issues would be dominated by rich, or monopolized by one political persuasion. Justice Burger: �For better or for worse, editing is what editors are for; and editing is selection and choice of material.�

8. COM 451 8 III. The Concern� and the Law A licensee could influence an election by giving candidates unequal access to the audience, or through other types of favorable treatment To counter this possibility, Congress passed Sec 315a which states: �If any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other candidates for that office in the use of such broadcasting station.�

9. COM 451 9 III. What Section 315a Requires Equal opportunity for qualified candidates publicly announced (rule exemption: incumbent may be �expected� but not formally announced) must be legally qualified for office (age, citizenship, etc.) Must qualify for place on ballot or meet write-in requirements Must be a candidate for the same office Reasonably equal amount and comparable quality of time 10 one-minute spots not equal to one 10-minute spot Equal facilities (sound, lighting, etc.) Equal prices and payment format Lowest unit charge for commercials No censorship Section 315a is invoked only when there is� �Use� of the airwaves

10. COM 451 10 IV. Issues regarding �Use� Key is station control, not candidate control Problems of staff running for election Only for legally qualified candidates Political and non-political uses Fleeting appearances Foreign broadcasts received in USA Speech in time of crisis

11. COM 451 11 IV. Understanding what �Use� is Any positive appearance when candidate's voice or picture is used even if appears to benefit charities An incumbent�s weekly news broadcast TV evangelist�s time on program TV Anchor�s or journalist�s appearance on news show is �use� if person is a candidate Appearance need not be political i.e. Entertainment program: If candidate appears on Saturday Night Live, considered �use� If the show is controlled by someone other than the candidate, the �time of use� is only when he is on screen or on mic.

12. COM 451 12 IV. Understanding what �Not-Use� is Any negative appearance or unfavorable description If spot merely describes a candidate�s voting record AND if opponent uses candidate�s picture and then tries to claim equal opportunity It is a �use� only if the candidate authorizes the appearance of his voice/picture (1991 rule) Campaign ad that does not use the candidates image or voice Appearances on Meet The Press, Face the Nation, Good Morning America�and even Oprah are not use Conventions and debates not �use� Old movies no longer considered �use� (since 1991 amendment) Law was changed after many old Ronald Reagan movies were shown by stations during his campaign for President.

13. COM 451 13 V. Exempt programming A station does not have to give equal opportunities in the following cases� 1. Newscasts Must be regularly scheduled and emphasize news Content must be determined by someone other than candidate Today Show and Entertainment Tonight qualify as �bona fide news programs� 2. News Interviews and Documentaries Tomorrow show with Tom Snyder was found not to be �usually associated with recent news events,� thus not exempt Donahue show was found to be bona fide news/interview program, and thus exempt

14. COM 451 14 V. Exempt programming (con�t) 3. On the Spot Coverage of News Events Includes announcing candidacy and appearances at parades, court proceedings and baseball games. Also, to political conventions, press conferences and many forms of debates featuring candidates. FCC trusts �broadcasters' good-faith judgment that press conference is bona fide news event� as long as �licensee did not intend to provide one candidate with advantage over another.�

15. COM 451 15 VI. Equal Opportunity / Time Equal opportunity, not just equal time (comparable audience) Not up to candidate to choose Station doesn�t have to limit time to one candidate because the other one can�t afford to buy the time An opponent may be granted time for the duration of a program not just for the limited time a candidate appears on the screen: if appearance is �substantial� and candidate is �integral� to the plot.

16. COM 451 16 VII. Lowest-Unit Rate Until 1971, stations had to treat candidates the same as any commercial advertiser In 1971, Congress amended the law for 45 days before a primary and 60 before a general election Today, stations must charge candidates the lowest-unit rate, comparable to their most preferred commercial customers. That might mean giving a candidate the rate for one insertion that a commercial advertiser pays per insertion for a year�s worth of commercials Candidates still bound by the �time� of their purchase. Pay LUR for day-part purchased

17. COM 451 17 VIII. Section 315a and Censorship You sell time to candidate A Candidate B requests a purchase of the same amount of time; you must sell B the time In his �use� he libels candidate A Is your station liable for what he said? The U.S. Supreme Court faced this issue in the 1950s in a case involving a licensed radio station in North Dakota. Farmers Educational Cooperative v. WDAY, Inc. Court found that stations subject to the equal opportunities rule could not hold licensees responsible for libelous remarks. If the licensees were liable, then they would be penalized for doing what the law intended, that is to provide broadcast time for political candidates. Of course, the candidates themselves are responsible for any remarks they make over the air.

18. COM 451 18 VIII. Limitation of B'caster Censorship of Political Content Broadcaster has NO control over content of programming aired by political candidates, even if statements are racist, vulgar or defamatory. So, broadcasters not responsible for libel by candidates. Fed District Court said broadcaster could delay airing of legally indecent advertisement to �safe harbor� hours. Attacking abortions: graphic depictions of female genitalia, a uterus, dismembered fetal body parts and aborted fetuses.