Mass Communications Law

Although the primary responsibility of the FCC is the licensing of broadcasting stations, it also regulates, to a certain extent, the manner in which stations operate.

Political Broadcasts Congress has long recognized the potential of using various broadcast media to influence the outcome of an election. A candidate with access to broadcasting facilities has a greater chance of reaching more voters than does a candidate who lacks such access. Congress has mandated that any licensee that permits a legally qualified candidate for public office to use its facilities to campaign must give all other candidates for that position equal opportunities to use the broadcast station. This requirement, sometimes called the "equal-time doctrine," does not apply to news broadcasts or advertisements on behalf of the candidate in which the candidate does not appear.

Equal rates must be charged to each candidate. During election campaigns, candidates must be given the "lowest unit charge" that is offered by the station to commercial advertisers for comparable time. The FCC is the regulatory agency that ensures licensee compliance with this law. Stations may not censor political advertisements, even if the candidate makes libelous or scandalous charges. Stations may not be sued, however, for libel or slander based on a candidate's remarks.

When a licensee either endorses or opposes a legally qualified candidate in an editorial, the other candidate must be notified within 24 hours of the date and time of the editorial, must be given a script or videotape or audio tape of the editorial, and must be furnished with a reasonable opportunity to respond. If the editorial is broadcast within 72 hours of the election, the licensee must provide the material within sufficient time prior to the broadcast to enable candidates to have a reasonable opportunity to present a reply. These requirements exist only when a station endorses a particular candidate. They do not apply to editorials on public issues, such as funding for public education.

The FCC has developed a "quasi equal opportunity doctrine" that governs appearances by representatives for candidates who are not covered by the equal-time doctrine. When supporters of a candidate purchase time from a broadcaster during an election campaign, the licensee must make comparable time available to the supporters of the opponent.

Fairness Doctrine From 1959 to 1987, the FCC enforced the "fairness doctrine," which required that broadcasters provide reasonable opportunity for the discussion of opposing views on controversial issues that affect the public. The doctrine proved controversial, and in 1987 the FCC rescinded it, concluding that it was a restriction on the FIRST AMENDMENT and that the growth of electronic media provided adequate means for presenting diverse opinions on issues of public policy.

Personal Attack Rule Although the FCC repealed the FAIRNESS DOCTRINE, it left intact the "personal-attack rule," which is an aspect of the fairness doctrine that concerns the right of a person who has been criticized in a broadcast to gain access to the broadcast facility to defend herself or himself. When, during the presentation of views on a controversial issue of public importance, the honesty, character, or integrity of an identified person or group is impugned, the licensee must, within one week after the attack, notify the subject of the attack of the date, time, and identification of the broadcast and must provide a script or videotape or audio tape of the attack and a reasonable opportunity to reply using the licensee's facilities. This rule does not apply to attacks on foreign groups or foreign public figures, or to personal attacks made by legally qualified candidates, their authorized representatives, or persons associated with them. Attacks occurring during bona fide newscasts, news interviews, or on-the-air coverage of bona fide news events are not covered by the personal-attack rule.

This rule does not cover every personal attack carried on a station—only personal attacks broadcast during the presentation of views on a controversial issue of public importance. A person who is attacked at some other time will have no redress from the FCC but might have grounds to seek relief under the law governing LIBEL AND SLANDER. If the personal-attack rule is applicable, the person who has been attacked has an absolute right to appear in his or her own defense, and the station may not require that a different person make the defense.

Broadcasting Content Unlike print media, radio and television broadcasts may be regulated for content. Typically this practice has involved broadcasts of allegedly obscene or indecent material. The U.S. Supreme Court has upheld regulations banning obscene material because OBSCENITY is not protected by the First Amendment. It also has permitted the FCC to prohibit material that is "patently offensive," and either "sexual" or "excretory," from being broadcast during times when children are presumed to be in the audience (FCC v. Pacifica Foundation, 438 U.S. 726, 98 S. Ct. 3026, 57 L. Ed. 2d 1073 [1978]). The courts rejected FCC attempts to interpret the indecency standard more broadly. Congressional legislation that expanded the standard also was ruled unconstitutional. The Telecommunications Act of 1996 contained the Communications Decency Act (CDA), codified at 47 U.S.C.A. § 223 (a) to (h), which makes it a federal crime to use telecommunications to transmit "any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent, knowing that the recipient of the communication is under 18 years of age, regardless of whether the maker of such communication placed the call or initiated the communication." A three-judge panel, in American Civil Liberties Union v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996) held that the CDA was unconstitutional because it violated the First Amendment. The U.S. Supreme Court later upheld the decision in Reno v. American Civil Liberties Union, 519 U.S. 1025, 117 S. Ct. 554, 136 L. Ed. 2d 436 (1996).

The Telecommunications Act of 1996 also mandates the establishment of an advisory committee to rate video programming that contains indecent material, in order to warn parents of its content. The act also requires that by 1998, all manufactured televisions with screens 13 inches or larger must be equipped with a "V-chip" to allow parents to block programs with a predesignated rating for sex and violence.