A Primer on the Public Interest Obligations of Television Broadcasters

Part I - The Principal Public Interest Obligations of Television Broadcasters Today

[1] Programs Responsive to Community Needs - Generally
[2A] Educational and Informational Programming by Commercial Television Licensees
[2B] Educational and Informational Programming by Noncommercial Television Licensees
[3] Parental Choice in Television Programming Television Program Ratings
[3A] Television Program Ratings
[3B] V-Chip: blocking of video programming based on program ratings
[4] Indecency and Obscenity
[5] Television Advertising
[6] Access to Broadcast Facilities by Candidates for Elected Political Office
[7] Personal Attack Rule
[8] Fair Break Doctrine [9] Video Programming Accessibility: Closed Captioning & Video Description
[10] Main Studio Location and Local Public Inspection File

Part II. Historical Evolution and Constitutional Basis for Public Interest Regulation of the Broadcast Medium

Endnotes

Introduction:

In exchange for the exclusive right to use the public's scarce electromagnetic spectrum, broadcasters are obliged to serve the public interest.¹ A broadcast licensee serves as a trustee of the public's airwaves with a fiduciary responsibility to use the spectrum not just for private gain, but also for the public interest. While most of the provisions discussed herein pertain to radio as well as television broadcasters, this primer focuses upon television.²

Since the inception of commercial television broadcasting in 1941, the parameters of public interest obligations have periodically been altered in response to re-evaluations of the public interest by the Federal Communications Commission (Commission, FCC), statutory measures taken by Congress and rulings by the federal judiciary.³ In some instances, the Commission's re-evaluation of public interest obligations has been prompted by persistent features of the television landscape that required policy attention such as insufficient children's educational programming.⁴ On other occasions re-evaluations of the public interest responsibilities have been spurred by a recognition of economic and technological changes in the media environment. This includes assessments of the impact of cable, video cassette recorders (VCRs), direct broadcast satellite (DBS) and other new technologies for the delivery of video programming services to consumers.

Sometimes Congress acts through statute to specify particular broadcasting obligations or to prohibit certain conduct. These statutory initiatives remove a degree of discretion from the Commission in determining the ambit of public interest obligations. The ban on tobacco advertising,⁵ access provisions for political candidates⁶ and a statutory effort to increase the amount of educational and informational television programming for children⁷ exemplify particularized Congressional efforts in the area of public interest obligations. Most recently, the Telecommunications Act of 1996, which amends the 1934 Act, adopted the public interest principle as the touchstone for the assignment and operation of the digital television broadcast spectrum.⁸

Today, many policy makers -- led by the President of the United States -- believe that the emergence of digital television (DTV) is cause for reconsidering the dimensions of television broadcasters' public interest obligations.⁹ The novel technological features of DTV give cause to re-examine the public interest responsibilities of television broadcasters to determine whether the public interest lies in the retention, repeal or addition to these obligations.

While the statutory and regulatory broadcasting measures in the public interest include both structural restrictions and programming obligations, the scope of public interest obligations given consideration in this primer are only those that are exclusively oriented towards the content that the licensee can broadcast and the conditions upon which the licensee can do so.¹⁰ This set of obligations is the focus of the Executive Order and President Clinton's public statements pertaining to the purpose of the Advisory Committee on Public Interest Obligations of Digital Television Broadcasters (PIAC).¹¹

The public interest obligations presented in this primer apply to commercial and noncommercial educational (NCE) television broadcasters, unless otherwise indicated.¹² Part I of this primer provides an annotated enumeration of the most significant public interest obligations that apply to television broadcasters. Part II discusses the Constitutional basis for public interest regulation of the broadcast medium drawing upon key judicial interpretation of the Constitution as applied to statutory and regulatory actions.

Part I - The Principal Public Interest Obligations of Television Broadcasters Today

[1] Programs Responsive to Community Needs - Generally: Each broadcaster has an obligation to provide programming that is responsive to the needs of the community of license. Toward this end, the FCC requires that the licensee file quarterly reports which enumerate a list of programs that have provided the station's most significant treatment of community issues during the preceding three month period. This list must be accompanied with a brief narrative describing what issues were given significant treatment and the programming that provided this treatment. Air date, day part, as well as program length and title must be included in the report to the Commission;

• Pertinent authority: 47 C.F.R. §§ 3526(a)(8)(i), 3527(a)(7).

[2A] Educational and Informational Programming by Commercial Television Licensees:

A licensee must provide a minimum of three hours per week of educational and informational programs which "furthers the positive development" of children 16 years of age and younger if the television licensee wants expedited license renewal approval of its children's television programming obligations. In order to qualify the licensee must provide educational or informational programming that (a) airs between 7:00 a.m. and 10:00 p.m.; (b) is part of a regular weekly schedule; (c) ensures that each episode is at least 30 minutes in length; (d) identifies each educational and informational program at the beginning of each episode; and (e) supplies publishers of television program guides information about which forthcoming program broadcasts are educational and informational for children, including the age group for which the program is intended.

Licensees must also file a quarterly Children's Television Programming Report describing efforts made in previous quarter and plans made for the forthcoming quarter to fulfill educational and information programming obligations for children

• Pertinent authority: Children's Television Act of 1990, Pub. L. No. 101-437, 104 Stat. 996; 47 C.F.R. § 73.671; 47 C.F.R. § 73.673(b); 47 C.F.R. § 73.3526(a)(8)(iii).

[2B] Educational and Informational Programming by Noncommercial Television

Licensees:

Noncommercial television licensees must serve the educational and informational needs of children 16 years of age and younger through overall programming including that designed specifically for children's informational and educational edification. Obligations may be met, in part, through non-broadcast efforts or effort to support such programming at other television stations.

• Pertinent authority: Children's Television Act of 1990, Pub. L. No. 101-437, 104 Stat. 996; 47 C.F.R. § 73.672.

[3] Parental Choice in Television Programming Television Program Ratings:

In order to give parents greater control over the television programs viewed by their children, the Telecommunications Act of 1996 included provisions for: (1) the design of a rating system in tandem with (2) technology built into television sets that would enable parents to screen out programs containing sexual, violent, or other indecent material. The "Parental Choice in Television Programming" provision of the 1996 Act (Section 551) encourages the television content providers and distributors to develop a voluntary rating system, and directs the FCC to oversee the television receiver industry's development of technical standards for blocking technology. This technology is to function in conjunction with the rating system.

[3A] Television Program Ratings:

• Video Programming content providers and distributors (includes broadcast licensees) are encouraged by statute to develop a voluntary program rating system;
• Commission must approve the rating system;
• Commission has authority to develop own system if it finds voluntary system inadequate, but must do so through consultation with advisory board mandated by statute which requires industry and public advocate representation;
• Commission now engaged in rule making proceeding to evaluate proposed rating plan with age-based and content-based features offered jointly by the National Association of Broadcasters (NAB), the Motion Picture Association of America (MPAA) and the National Cable Television Association (NCTA), which generally includes the following:

For programs designed only for children

TV-Y: Program appropriate for children of all ages.

TV-Y7: Program appropriate for children ages 7 and older.

For programs designed for the entire audience

TV-G: (General Audience) Most parents would find this suitable for all ages. Little or no violence, No strong language, no sexual dialogue or situations.

TV-PG: (Parental Guidance Suggested) This program contains material that parents may find unsuitable for younger children. Theme itself may be cause for parent guidance and/or the program contains one or more of the following: moderate violence (V), sexual situations (S), infrequent coarse language (L), or some suggestive dialogue (D).

TV-14: (Parents Strongly Cautioned) Program contains some material that many parents would find unsuitable for children under 14 years of age. Includes one or more of the following: intense violence (V), intense sexual situations (S), strong coarse language (L), or intensely suggestive dialogue (D).

TV-MA: (Mature Audience Only) Program is specifically designed to be viewed by adults, and therefore, may be unsuitable for children under 17. Contains one or more of the following: graphic violence (V), explicit sexual activity (S), or crude indecent language (L).

* Industry proposes that icons and associated content symbols appear for 15 seconds at the beginning of all rated programming, and that the icon size will be enlarged.

• Pertinent authority: Telecommunications Act of 1996, P.L. 104-104 (codified at 47 U.S.C. §303(w), (x)); see also, Federal Communications Com'n, Public Notice, CS Docket No. 97-55, FCC 97-34 (February 7, 1997).

[3B] V-Chip: blocking of video programming based on program ratings

• Strictly speaking, this is only an obligation of the television set manufacturers, rather than an obligation of the broadcast licensee. However, the licensee must make use of the blocking technology insofar as it must develop a rating system that is capable of being encoded and processed using the technical specifications and apparatus developed by the set manufacturers. Moreover, the FCC proposes to prohibit licensees from deleting or modifying program ratings information.
• Television set manufacturers are mandated by statute to equip sets featuring a picture screen size 13-inches (33 cm) or larger with blocking technology capable of using television rating systems approved by the Commission;
• Commission now engaged in rule making proceeding to establish the technical specification and the timetable for the availability of television sets equipped with blocking technology;
• Commission proposes that: (a) television set manufacturers provide blocking technology on at least half of their product models with a screen 13 inches (33 cm) or larger in size by July 1, 1998; and the remainder of the models must include blocking technology by July 1, 1999; (b) that computers sold with television reception capability be equipped with blocking technology; (c) that blocking technology accommodate multiple rating systems so that households can choose a rating system that best fits their needs; (d) that the technology be "user friendly" to parents, yet not easily overridden by children; (e) that DTV program blocking standards must provide the capability for delivering ratings information during either high definition (HDTV) or multi-channel standard definition (SDTV) operation; (f) all DTV receivers with a screen 13 inches (33 cm) or larger in size would be required to include program blocking capability within a short period of time, e.g., within 180 days, after rules are adopted in the current proceeding; (g) that all DTV set computer boards retro-fitted to a monitor must include blocking capability; (f)closed captioning receive top priority in use of Vertical Blanking Interval (VBI), but rating system will take precedence over other data transmitted via the VBI.





• Pertinent authority: Parental Choice in Television Programming requirements contained in Sections 551(c), (d), and (e) of the Telecommunications Act of 1996 , which amended Sections 303 and 330 in the Communications Act of 1934 (codified at 47 U.S.C. §§ 303 and 330; see also, In the Matter of Technical Requirements to Enable Blocking of Video Programming based on Program Ratings; Implementation of Sections 551(c), (d) and (e) of the Telecommunications Act of 1996, Notice of Proposed Rule Making, ET Docket No. 97-206, (Released September 26, 1997).

[4] Indecency and Obscenity:

• Broadcasters are forbidden to transmit any obscene, indecent, or profane language over the airwaves from 6:00 a.m. to 10:00 p.m as the "safe harbor" period when indecent speech may not be broadcast;
• Indecency is defined by the Commission 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 activities or organs." In re Enforcement of Prohibitions Against Broadcast Indecency in 18 U.S.C. § 1464, Report and Order, 8 F.C.C. Rec. 704, 704-5 ¶ n. 10 (1993)(defining broadcast indecency);
• Indecent speech is protected by the First Amendment, but may be restricted to certain periods of the day when children are less likely to be in the audience;
• Indecency is defined by the Commission as "language or material that, in context, depicts or describers, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs"In re Enforcement of Prohibitions Against Broadcast Indecency in 18 U.S.C. § 1464, Report and Order, 8 F.C.C. Rec. 704, 704-5 ¶ n. 10 (1993)(defining broadcast indecency);
• Indecent speech is protected by the First Amendment, but may be restricted to certain periods of the day when children are less likely to be in the audience;
• Obscene speech is defined by the United States Supreme Court, as: "(a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interests; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." See, Reno v. ACLU, 138 L. Ed. 2d 874 at 898 (1997) (citing for the definition of obscenity, Miller v. California, 413 U.S. 15 at 24 (1973)).





• Pertinent authority: See, 18 U.S.C. §§ 1464-1465 (criminalizing obscenity); § 2251 (criminalizing child pornography); 73 C.F.R.§§ 73.3999 (enforcement of 18 U.S.C. § 1464), 73.4165, 73.4170; see also, Action for Children's Television v. Federal Communications Comm'n, 11 F.3d 170 (D.C. Cir. 1993), vacated and reh'g granted en banc, 15 F.3d 186 (D.C. Cir. 1994)(appeal of ruling that the FCC implementation of statutory directive to ban the broadcast of indecent speech from 6:00 a.m. to 12:00 midnight violated the First Amendment); Federal Communications Comm'n v. Pacifica Found., 438 U.S. 726 (1977) (upholding FCC authority to regulate indecent speech transmitted via the broadcast spectrum).

[5] Television Advertising: Since the inception of broadcasting the federal government has regulated the business of selling time to sponsors of programming and purchases of advertising time. This section of the television public interest obligations primer discusses the requirement to provide sponsor identification to the television audience, the freedom to refuse to sell time (with the exception of candidates for federal political office), as well as limits on the amount of advertising during programs directed principally to children, the prohibition on tobacco advertising and the recent discuss over whether to regulate alcohol advertisements beyond the general restriction enforced by the Federal Trade Commission that, like all advertisements, they not be false or misleading.

• Sponsorship Identification: Must identify over the air waves the entity, if any, that has sponsored (i.e., paid for), or furnished in whole or part any money, service or other valuable consideration which has been provided either directly or indirectly in return for the presentation of particular broadcast content. Both commercial and noncommercial television stations are subject to this rule. Noncommercial stations, however, cannot interrupt programming to acknowledge sponsors and contributors, nor air a promotional announcement on behalf of a profit-making entity in return for consideration to the licensee, its principals or employees.



• Pertinent authority: 47 U.S.C. §§ 317, 507; 47 C.F.R. §§ 73.1212, 73.621(e).



• Refusal to sell advertising time: Licensees can refuse to sell air time t o any particular entity, with the exception of qualified candidates for federal elective office who must be given the opportunity of "reasonable access" to the airwaves (see, infra, subhead number 6).



• Pertinent authority: Columbia Broadcasting System, Inc. v. Democratic Nat'l Comm., 412 U.S. 94, 101 (1973); 47 U.S.C. 312(a)(7); 47 C.F.R. §§ 73.1941, 73.4005.



• Tobacco: Statutory prohibition on the broadcast advertisement of smoked and smokeless tobacco products on any medium of electronic communication regulated by the FCC.



• Pertinent authority: See 15 U.S.C. § 1335 (cigarettes and little cigars); 15 U.S.C. § 4402(f) (smokeless tobacco).



• Advertising During Children's Programming: Commercial television stations cannot present more than 10.5 minutes of commercials per hour during weekend presentations of programming for children, and no more than 12 minutes per hour during week day presentations of programming children.



• Pertinent authority: Children's Television Act of 1990, Pub. L. No. 101-437, 104 Stat. 996; 47 C.F.R. § 73.670.



• Liquor: Currently, there are no restrictions on the presentation of liquor advertisements over the airwaves. However until recently the distilled spirits industry had self-imposed a ban on solicitation of customers through the broadcast media. Lately, there has been a growing debate among policy makers about whether to place restrictions on the presentation of such messages, including whether to differentiate between beer and wine beverages, on the one hand, and distilled spirits, on the other.

• Pertinent authority: See, 44 Liquormart, Inc. and Peoples Superior Liquor Stores, Inc. v. Rhode Island and Rhode Island Liquor Stores Ass'n, 116 S. Ct. 1495 (1996) (state law banning the advertisement of retail liquor prices except at the place of sale violates the First Amendment); Anheuser-Busch, Inc. v. Schmoke, 63 F.3d 1305 (4th Cir. 1995) vacated and remanded, 116 S.Ct. 1821 (1996), reh'g, 101 F.3d 325 (4th Cir. 1996), cert. denied, 137 L Ed. 714 (1997) (applying 44 Liquormart in decision to uphold a city ordinance prohibiting the placement of outdoor advertising for alcohol beverages in designated areas of the city where children are likely to walk to school or play in their neighborhoods); Rubin v. Coors Brewing Co., 514 U.S. 476 (1995)(holding that a federal statute prohibiting the disclosure of the alcohol content of beer on labels or in advertising violated the First Amendment); Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N.Y., 447 U.S. 557 (1980)(articulating the framework for evaluating First Amendment protection for commercial speech).

[6] Access to Broadcast Facilities by Candidates for Elected Political Office:

Through statute and regulations promulgated by the FCC, broadcast licensees have obligations to provides access to candidates for federal office, and to provide a right of reply if the licensee endorses an opposing candidate or provides discriminatory access to its facilities. Licensees are also subject to price regulations for the sale of time to candidates for elected political office.

• Reasonable Access: Licensees are required by statute to afford "reasonable access" to legally qualified candidates for federal elected office to their facilities, or to "permit purchase of reasonable amounts of time." However, state and local candidates have no right of reasonable access to broadcast facilities, regardless of whether the candidate offers to pay or otherwise gives valuable consideration for such access.

The FCC relies on the "reasonable good faith judgment of licensees to determine what constitutes reasonable access." Broadcasters must make available a wide array of day parts to legally qualified federal candidates, but do not have to include advertising spot time in the course of news programs. Licensee can only create a special class of spot time for "news adjacency" if (a) no candidate is sold time during a news program and (b) if the lowest unit charge is provided to candidates vis a vis commercial buyers in that day part.

Broadcasters are required to apply the same policies to candidates with respect to access the weekend before election day that they applied to commercial advertisers during the preceding year, and licensees are prohibited from discriminating among candidates seeking access during the weekend prior to election day. Depending upon the particular facts, a licensee's ordering deadlines will have to be more flexible for candidates than commercial customers in order not to be in violation of the statutory reasonable access provision."

• Pertinent authority: Columbia Broadcasting System, Inc. v. Federal Communications Comm'n , 453 U.S. 367 at 394-397 (1981)( statutory right of access provision provided by 47 U.S.C. § 312(a)(7) does not violate the First Amendment rights of broadcast licensees); 47 U.S.C. § 312(a)(7); 47 C.F.R. §§ 73.1940, 73.1944; Codification of the Commission's Political Programming Policies, Memorandum Opinion and Order, 7 FCC Rcd 4611, 4611-12, 4624 at n. 20, 25 (1992); Codification of the Commission's Political Programming Policies, Report and Order, 7 FCC Rcd 678, 679 ¶ 4 (1991). See also, "TV Stations Curtail Discount Ads for Virginia Campaign," Wash. Post, Oct. 14, 1997 at A1 (discussing decision to both reduce amount of time for sale and an increase in rates charged to state candidates in, inter alia, the Virginia gubernatorial election).

• Equal Opportunities: Whenever a broadcaster permits a "legally qualified candidate for any political office" to "use" a station it must "afford equal opportunities to all other such candidates for that office" the use of the station; otherwise no obligation to sell time to a candidate except pursuant to the reasonable access provisions which apply only to candidates for federal office. A licensee cannot discriminate among candidates in the discharge of this obligation, and has no censorship power over material broadcast by candidate given equal opportunity access.

FCC defines "use" to be only candidate appearances that are controlled, approved or sponsored by the candidate or the candidate's authorized committee after the candidate is legally qualified. Unlike the "reasonable access" provision, the equal opportunities law covers candidates for local, state and federal office. However, statutory exemptions for broadcaster compliance have been carved out for: appearances in the context of a bona fide newscast, bona fide news interview, bona fide news interview, bona fide documentary (if the candidate's appearance is incidental), or on-the-spot coverage of bona fide news events (including but not limited to political conventions.

Furthermore, the FCC has adopted a Fleeting Time Doctrine which does not deem to be a "use" candidate appearances that are de minimis in length and format. However, the Fleeting Time Doctrine does not apply to candidate spot announcements.

Independently produced programs presented by licensee may qualify for news exemption. News classification is determined by the whether the program reports news of some kind on current events in a manner similar to traditional newscasts; quality and or significance of the topics and stories selected are not considered by the FCC;

• Pertinent authority: 47 U.S.C. § 315(a); 47 C.F.R. § 73.1941; Columbia Broadcasting System, Inc. v. Democratic Nat'l Comm., 412 U.S. 94 (1973) (neither the First Amendment not the Communications Act require a broadcaster to accept paid editorial advertisements from candidates for any political office); In re Request of Access Hollywood for Declaratory Ruling, Staff Ruling, 1997 FCC LEXIS 3419 (released Jul. 1, 1997) (granting Access Hollywood bona fide newscast exemption, discussing possibility of exemption for independently produced programs and FCC reliance upon the "good faith news judgment" of the licensee); Codification of the Commission's Political Programming Policies, Memorandum Opinion and Order, 9 FCC Rcd 651, 651-52 ¶¶ 3, 6 (1994)(definition of "use" for application of Section 315 and exemption to the "use" definition for candidate debates) (citing, Codification of the Commission's Political Programming Policies, Report and Order, 7 FCC Rcd 678, 685 ¶ 33 (1991); Aspen Institute, Memorandum Opinion and Order, 55 FCC 2d 697 (1975), aff'd, Chisholm v. Federal Communications Comm'n, 538 F.2d 349 (D.C. Cir.) cert. denied, 429 U.S. 890 (1976)) ; Paramount Pictures Corp., Staff Ruling, 3 FCC Rcd. 245 (1988) (granting "Entertainment Tonight" and "Entertainment This Week" the bona fide newscast exemption); Time, Inc., 55 Rad.Reg. 2d (P& F) 581 at 582 (1984) (discussing Fleeting Use Doctrine).

• Lowest Unit Charge (LUC) and Comparable Use Rates (CUR): LUC and CUR obligations do not apply to non-commercial broadcasters. LUC and CUR applies to candidates for local, state and federal elected office; while local and state candidates do not have a statutory right of access to buy time on a broadcast facility, if the candidate is sold time, the broadcaster must offer LUC and CUR rates. If a broadcaster offers to sell time to political candidates, the broadcaster has a statutory obligation to charge political candidates the "lowest unit charge of the station" for the "same class and amount of time for the same period," during the 45 days preceding a primary or runoff election and the 60 days preceding a general or special election. That is, during this pre-election period candidates must receive a reduction on the CUR price to an amount equal to the volume and discounted rates obtained by commercial advertisers even though the candidate is not purchasing in the same volume of time.

Licensees are prohibited from charging candidates more than the licensee's most favored commercial advertiser for the same classes, amounts and periods of time. For each class of time, broadcaster must charge uniform rates to all candidates seeking a particular elected office. There is an affirmative obligation for broadcasters to disclose to candidates purchasing time information about rates, terms, conditions and all value-enhancing discount privileges offered to commercial advertisers. A broadcaster does not have total discretion to designate "classes of time," FCC recognizes the following distinct classes of time (a) non-preemptible, (b) preemptible with notice, (c) immediate preemptible, and (d) run-of-schedule (no guarantee that advertisement will run at a fixed time, or that they will run at all), as distinct classes of time. However, a broadcaster is permitted to designate separate classes of immediately preemptible time if not based only upon price, and are contingent upon at least one demonstrable benefit of the time class such as, but not restricted to, level of protection against preemption, scheduling flexibility for the broadcaster, guaranteed time-sensitive make goods.

A candidate cannot be required to purchase time in every program or day part in order to receive a package unit rate available to commercial advertisers. Enhancements, such as, but not limited to bonus spots (including Public Service Announcements, PSAs, provided to commercial advertisers in connection with a paid schedule of time), time- sensitive "make goods" (i.e., the rescheduling of preempted advertising); preemption priorities provided to commercial advertisers must be available to political candidates on an equal basis, and must be included in the calculation of the LUC. Make goods must be honored before election day, if within the previous year the broadcaster has for commercial clients provided a time-sensitive make good for the same class of time. Licensees must disclose and make available to candidates any make good policies given to commercial advertisers.

• Pertinent authority: 47 U.S.C. § 315(b)(1) (pertaining to LUC during the pre-election period); 47 U.S.C. § 315(b)(2) (pertaining to CUR during the non-election period); 47 C.F.R. § 73.1942; Hernstadt v. Federal Communications Comm'n , 677 F.2d 893, 900-901, 903, 905 (D.C. Cir. 1980)(broadcasters do not have total discretion to define classes of time; Section 315 is applicable to local, state and federal candidates; all rates and discount privileges offered to commercial advertisers must be offered to candidates); Codification of the Commission's Political Programming Policies, Memorandum Opinion and Order, 9 FCC Rcd 7919, 7920 ¶ 8 (1994)(declining to reverse policy of treating paid PSAs as bonus spot when calculating the LUC for the same class and length of time in the same time period).
• Political Editorials and Right of Reply:

If a licensee broadcasts an editorial that either endorses or opposes a legally qualified candidate(s) the licensee must within 24 hours of the broadcast provide (a) notification of the date and time of the editorial to all other candidates for the particular office not endorsed, or the candidate(s) opposed in the editorial, (b) a script or tape of the editorial and (c) an offer of reasonable opportunity to respond through the use of the licensee's broadcast facilities. If the licensee's editorial is broadcast within 72 hours of the election, the licensee must have taken steps to afford the alternative candidate(s) timely notice and opportunity to reply. This rule is not applicable to noncommercial broadcasters since such licensees are prohibited by statute (47 U.S.C. § 399) from either supporting or opposing a candidate for political office.

• Pertinent authority: 47 C.F.R. § 73.1930; Commission Proceeding Regarding the Personal Attack and Political Editorial Rules, Public Notice, (Aug. 8, 1997)(indicating that the FCC voted to a tie in pending proceeding regarding the possible repeal or modification of the personal attack and political editorial rules).

Political File: All licensees must maintain and permit public inspection of a complete and orderly record of all requests for time made by or on behalf of a candidate for public office, information about the disposition of the request, and the amount charged, if any, for access; whether and when free time was provided. Records must be maintained for two years.



• Pertinent authority: 47 C.F.R. § 73.1943.

[7] Personal Attack Rule:

• Provides an opportunity for response to attacks on the honesty, character, or integrity of an identifiable person or group made during the presentation of views on controversial issues of public importance;
• Not applicable to attacks made upon: foreign groups or foreign public figures, attacks made during uses of the broadcast facilities by legally qualified candidates or their authorized representatives or persons associated with a candidate's campaign, and attacks made during the course of bona fide newscasts, bona fide news interviews and on-the-spot coverage of a bona fide news events, including analysis and commentary occurring in the context of these programs;
• Cannot be invoked by a third party who claim that others were the subject of attack.



• Pertinent authority: 47 C.F.R. § 73.1920; Commission Proceeding Regarding the Personal Attack and Political Editorial Rules, Public Notice, (Aug. 8, 1997)(Commission voted to a tie in pending proceeding regarding the possible repeal or modification of the personal attack and political editorial rules); Karen N. Benfield, Letter, 1997 FCC LEXIS 1769 , File No. BRH-960231D8 (Released Apr. 3, 1997)(no third party standing to bring personal attack rule action)(citing, Dontron, Inc., Memorandum Opinion and Order, 6 FCC Rcd 2560, 2562 ¶ 24 (1991).

[8] "Fair Break" Doctrine:

• Requires the at a broadcaster give a "fair break" to groups which do not share broadcaster's views;
• Fair Break Doctrine is not the Fairness Doctrine, which the FCC ceased enforcing in 1987 after it determined the Fairness Doctrine contrary to public interest. The Fairness Doctrine gave broadcasters an affirmative obligation to (a) present issue of public importance and (b) afford a reasonable opportunity for the presentation of conflicting views on the topic in the broadcaster's overall programming.

• Pertinent authority: Pillar of Fire, Decision, 99 F.C.C. 2d 1256, 1271¶ 21 (1984) (citing WBNX Broadcasting Co., 12 FCC 2d 837, 841 (1948); and quoting, Noe v. Federal Communications Comm'n, 260 F.2d 739 (D.C. Cir. 1958), cert. denied, 359 U.S. 924 (1959)); In re Complaint of Syracuse Peace Council Against Television Station WTVH, Syracuse, New York, 2 FCC Rcd. 5043 (1987), recon. denied, 3 FCC 2d 2035 (1088), aff'd sub nom., Syracuse Peace Council v. Federal Communications Comm'n , 867 F.2d 654 (D.C. Cir. 1989), cert. denied, 493 U.S. 1019 (1990).

[9] Video Programming Accessibility: Closed Captioning & Video Description:

• Closed Captioning: Closed captioning is the visual display of the audio portion of video programming contained in line 21 of the vertical blanking interval (VBI). The FCC issued new obligations for the provision of closed caption services in response to statutory mandate in Section 713(b)-(d) of the Telecommunications Act of 1996.





• Requirements for new programming (programming that is first published or exhibited on or after January 1, 1998):

(i) between January 1, 2000, and December 31, 2001, video programming distributors shall provide at least 450 hours of captioned video programming, or if the video programming distributor provides less than 450 hours of new nonexempt video programming, then 95% of its new nonexempt video programming must be provided with captions;

(ii) between January 1, 2002, and December 31, 2003, video programming distributors shall provide at least 900 hours of captioned video programming, or if the video programming distributor provides less than 900 hours of new nonexempt video programming, then 95% of its new nonexempt video programming must be provided with captions;

(iii) between January 1, 2004, and December 31, 2005, video programming distributors shall provide at least an average of 1350 hours of captioned video programming, or if the video programming distributor provides less than 1350 hours of new nonexempt video programming, then 95% of its new nonexempt video programming must be provided with captions; and (iv) as of January 1, 2006, and thereafter, 95% of the programming distributor's new nonexempt video programming must be provided with captions.

• Requirements for pre-rule programming (programming that was first published or exhibited before January 1, 1998). As of January 1, 2008, and thereafter, 75% of the programming distributor's pre-rule nonexempt video programming being distributed and exhibited on each channel during each calendar quarter must be provided with closed captioning. In the meantime, video programming distributors shall continue to provide captioned video programming at substantially the same level as the average level of captioning that they provided during the first 6 months of 1997 even if that amount of captioning exceeds the requirements otherwise set forth in this section;
• Obligation to Pass Through Captions of Already Captioned Programs: All video programming distributors shall deliver all programming received from the video programming owner or other origination source containing closed captioning to receiving television households with the original closed captioning data intact.
• Captioning Expense in Excess of 2% of Gross Revenues: No video programming provider shall be required to expend any money to caption any video programming if such expenditure would exceed 2% of the gross revenues received from that channel during the previous calendar year;
• Channels Producing Revenues of Under $3,000,000: No video programming provider shall be required to expend any money to caption any channel of video programming producing annual gross revenues of less than $3,000,000 during the previous calendar year other than the obligation to pass through video programming already captioned.





• Pertinent authority: 47 U.S.C. § 613; 47 C.F.R. § 79.1.

• Video Description: Video description is the insertion of audio narrated descriptions of a television program's key visual elements into natural pauses between the programs dialog. While the FCC is not required by statute to promulgate regulations for the provision of a video description service by broadcasters, the FCC is directed by statute to prepared a report to Congress on the status and feasibility of video description, but otherwise accorded the FCC discretion to assess appropriate methods and schedule for phasing video description into the market place. It is currently engaged in notice of Inquiry to update the record on the feasibility of providing video description services.





• Pertinent authority: 47 U.S.C. § 613; Annual Assessment of the Status of Competition in Markets for the Delivery of Video Programming, Notice of Inquiry, CS Docket No. 94-141, (released June 6, 1997) at ¶¶ 21-23.

[10] Main Studio Location and Local Public Inspection File:

• Main studio rule requires that each broadcast licensee locate its main studio within its principal community signal contour;
• Local public inspection file rule, with separate provisions for commercial and noncommercial stations, requires a licensee to maintain a number of records in a file that is conveniently accessible to the public;
• Both rules are intended to facilitate licensee responsiveness to local programming needs by making it easy for audience members to contact licensee and to access particular data pertaining to the operation of the station and its programming;
• Main Studio: Presently, the licensee's main studio can be located outside of the community for which it is licensed as long as the station is within its "principal community contour" (PCC); Commission proposes to replace the PCC location standard with a "reasonable access"standard. Among the Commission's purposes is an effort to remove burdens placed upon multiple radio station owners in a single market who are otherwise denied the benefit of efficiencies gained by operating stations from a centrally located studio/business office;
• Whether a commercial or noncommercial licensee, a broadcaster must maintain is local public inspection file either at its main studio or any accessible place in the community for which the station is licensed., e.g. local public library. Commission now proposes to require only that the local public inspection file be available at the main studio; change presented in contemplation of the main studio requirement will be relaxed in accordance with a new "reasonable accessible" standard; consequently, the file may be located outside community for which the station is licensed;
• Public File: Presently, commercial and noncommercial stations must maintain public files that include: applications and related materials filed with the Commission, ownership reports, employment reports, a list of programs aired by the stations during the previous three months that provided its most significant treatment of community issues (i.e. the "issues/programs list"), a separate "political file" documenting requests for broadcast time made by or on behalf of candidates for public office, information on children's educational and informational programming;
• Among the changes proposed by the Commission is the expansion of the "written comment and suggestions" requirement to include printed copies of e-mail sent to licensees;
• Commission is also considering the extent to which the assignee should be responsible for maintaining files of the assignor.

• Pertinent authority: 47 C.F.R. §§ 73.1125, 73.3526, 73.3527; Review of FCC rules regarding the main studio and local public inspection files of broadcast television and radio stations, Notice of Proposed Rule Making, MM Docket No. 97-138, (released May 28, 1997).

Part II. Historical Evolution and Constitutional Basis for the Public Interest Obligations of Broadcasters

Congressional authority to regulate the allocation and assignment of licenses for the use of the electromagnetic spectrum for broadcasting and a myriad of other uses derives from its authority under the Commerce Clause of the U.S. Constitution.¹³ Beyond articulating a licensing regime for the portion of the spectrum allocated for broadcasting by non-governmental entities, the 1934 Act explicitly states that a broadcaster does not have any ownership in his or his assigned channel position on the spectrum.¹⁴ On the basis of this policy decision the United States Supreme Court (Court) has observed that "the [1934] Act is clear that no person is to have anything in the nature of a property right as a result of the granting of a license."¹⁵

Furthermore, the Supreme Court (Court) has asserted that "[t]he right of free speech does not include, however, the right to use the facilities of radio without a license."¹⁶ According to the Court, "each medium of expression . . . may present its own special [First Amendment] problems."¹⁷ In the case of broadcasting, "with everybody on the air, nobody could be heard" due to the physical limits of the spectrum.¹⁸ "[T]he inherent physical limitation on the number of speakers who may use the broadcast medium has been thought to require some adjustment in traditional First Amendment analysis to permit the Government to place limited content restraints, and impose certain affirmative obligations, on broadcast licensees."¹⁹ In discharging it obligation to regulate in the public interest, the Court has explained that "[w]here there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit an unbridgeable First Amendment right of every individual to speak, right, or publish."²⁰

Nevertheless, the physical limits of the broadcast spectrum does not mean that the Congress and the Commission can ignore the First Amendment. Indeed, the 1934 Act forbids the Commission from engaging in "censorship" or to otherwise "interfere with the right of free speech by means of radio communication"²¹ Through the use of public interest criteria, the Commission "must oversee without censoring."²² The Court has pointed out that "[t]he FCC's oversight responsibilities do not grant it the power to ordain any particular type of programming that must be offered by broadcast stations; for although the Commission may inquire of licensees what they have done to determine the needs of the community they propose to serve, the Commission may not impose upon them its private notions of what the public ought to hear."²³

The tension between regulation in the public interest of a limited public resource used for speech and the First Amendment proviso that the "Congress shall make no law . . . abridging the freedom of speech, or of the press"²⁴ lies in the fact that what constitutes interference with First Amendment rights in the context of broadcast communication is a function of the technological characteristics of the medium used to communicate. According to the Court, "[a] broadcaster has a large measure of journalistic freedom but not as large as that exercise by a newspaper. A licensee must balance what it might prefer to do as a private entrepreneur with what it is required to do as a public trustee."²⁵

The statutory doctrine that broadcast licenses be allocated and used consistent with the "public interest, convenience and necessity" has endured since the codification of the Radio Act of 1927 (1927 Act).²⁶ The public trustee model emerged from policy deliberations over the best allocation regime for avoiding signal interference caused by too many broadcasters seeking to operate on an inadequate amount of spectrum. The 1912 Act gave the government the right to allocate frequencies but did not empower it to avoid signal congestion by denying license applications or even regulating signal strength or hours of operation among licensees.²⁷ The 1927 Act eliminated this problem by giving the federal government the authority to grant licenses for exclusive use of designated portions of the radio spectrum so long as the government did so in the public interest. The public interest model was retained in the broadcasting section of the successor statute to the 1927 Act, the Communications Act of 1934.²⁸

The public trustee model is but one possible policy solution to the problem of signal interference. During the formulation of the Radio Act of 1927 a deliberate choice was made to select the public trustee model over approaches such as a "first in time, first in right" property-based regime²⁹ or to regulate broadcasting as a common carrier.³⁰ Nearly seventy years later, the Telecommunications Act of 1996 explicitly affirmed and retained the public trustee model for the assignment of digital television spectrum to incumbent broadcasters.³¹ This decision was made amid full realization of a multichannel universe that did not exist when the public trustee concept was first adopted by the Radio Act of 1927 and later incorporated into the 1934 Act. Congress continued to recognize that the intrinsic physical scarcity of broadcast spectrum still abides. Furthermore, the Supreme Court recently declined to question the "continuing validity" of the "scarcity rationale" which undergirds broadcast regulation.³²

It is through the regulatory actions of the Commission, an independent federal agency, that the details of television public interest obligations have taken shape. While the Commission's public interest rules for broadcasters have from time to time been litigated in the courts or been given more definite direction and definition through statutory measures, the Commission by and large has had ample lee way to determine the parameters of the public interest obligations for commercial and non-commercial broadcasters. The Court has observed that the public interest standard is a "supple instrument for the exercise of discretion by the expert body which Congress has charged to carry out its legislative policy."³³ However, as a countervailing consideration the Court has also pointed out that since the Radio Act of 1927 the Congress has deliberately chosen to leave the broadcast of public issue discussions to the "broad journalistic discretion" of the licensee.³⁴ The task of balancing public interest obligations with First Amendment rights has been and will continue to be the joint, if not always harmonious, efforts of the Commission, the courts and the Congress.