8.2 Broadcast Regulation

THE CURRENT CRISIS (2025- )

Direct Threats — March 14-15, 2026 — President Trump and FCC chair Brendan Carr threatened to revoke broadcast licenses over what they claim to be incorrect news items. This followed a Trump social media post March 14 and March 15 claiming that damage reports from a minor incident were deliberately distorted. “Their terrible reporting is the exact opposite of the actual facts!” Trump wrote. “They are truly sick and demented people that have no idea the damage they cause the United States of America.”

The disparagement and threats ar facially unconstitutional. Historically, the only instance in which a broadcast TV license was revoked by the FCC over content issues was in the WLBT case of 1954 – 1969 (More below). More recently, in NRA v Vullo (2024), a unanimous Supreme Court decision said:

A government entity’s threat of invoking legal sanctions and other means of coercion” against a third party to achieve the suppression of disfavored speech violates the First Amendment… Government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors.

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Early Regulations

Radio telegraphy was invented in the 1890s by Guglielmo Marconi and put into widespread use about twenty five years before radio “telephony” (voice and music) became available commercially. The inventor formed the British company Marconi as well as American Marconi (which later became RCA, the Radio Corporation of America, which in turn formed NBC radio network).

The first use of radio telegraphy was to improve the safety of ships at sea, and by 1900, marine insurance companies like Lloyds of London insisted that every ship have a radio for emergency messages. But there were no rules as to training, monitoring or priority of emergency messages, and this loose set of regulations was a factor in the Titanic disaster of April, 1912.

Before the Titanic struck the iceberg, its radio operators were in touch with a nearby ship, the Californian, which was warning about the ice field that the Titanic was entering. The Titanic radio operators passed along four messages to the captain, but later told the Californian to get off the air.

Getting off the air, at the time, meant leaving the one existing frequency. Unlike today, radio technology had not been fully developed, and only one signal could be heard on the airwaves at a time. One could not “tune” a radio.

The Titanic’s radio operators were trying to send private telegrams to New York, and when they told the Californian operator to get off the air, he simply turned off the ship’s radio. Then the Titanic steamed off into the night, and the Californian was unaware of the disaster that took place only a few hours later.

The New York Times said on May 2, 1912: “Sixteen hundred lives were lost that might have been saved if the wireless communication had been what it should have been.” (See Radio and the Titanic).

The Radio Act of 1912 was passed by Congress only a few months after the Titanic disaster. It required all ships to have radio telegraph operators on duty 24 hours a day and it licensed all radio stations both onshore and onboard ships. The Radio Act of 1912 also stopped many of the unsafe and anti-competitive business practices of the Marconi company, including refusal to deal with non-Marconi radio operators and controlling Marconi radio employees.

This refusal to deal with competing technologies had also been a factor in establishing the International Radiotelegraph Union in 1906. That organization was a predecessor to the United Nations International Telecommunications Union based in Geneva, Switzerland.

During World War I, all US radio communications devices were controlled by the government. After the war, radio became a popular hobby and over 700 radio stations were in existence by 1927. Some were small, some were affiliated with churches and universities, and a few started growing into large institutions.

Centralizing radio control

The Radio Act of 1927 allowed a licensing and frequency allocation system for commercial stations after courts found that the US Dept. of Commerce did not have that authority. The new Federal Radio Commission moved quickly to consolidate radio licenses for major corporations, especially favoring the new NBC network.

On May 25, 1928, the FRC issued General Order 32, which notified 164 stations that “From an examination of your application for future license, [the FRC] does not find that public interest, convenience, or necessity would be served by granting it.”

Many low-powered independent and educational stations were eliminated, and while some stations such as WEVD of New York managed to survive the financial and political pressures of the early radio era, most did not survive.

What remained was an AM broadcast band of 96 frequencies with 25 super stations (also called “clear channel” stations). Of those, 23 of these were NBC owned or affiliated.

Overall, the controversial restructuring of America’s radio networks by and for commercial interests contrasted with government control in Europe. The British BBC, for example, was far more educational and culturally oriented than the US NBC. However, central control by government also had many negative consequences, for example, easing the path to complete Nazi totalitarianism in 1930s Germany.

The FRC issued a Public Programming Policy Statement in 1929 which said:

“The tastes, needs and desires of all substantial groups among the public should be met, in fair proportion, by a well-rounded program schedule, in which entertainment, religion, education and instruction, important public events, discussions of public questions, weather, market reports, news and matters of interest to all members of the family find a place. (Great Lakes Broadcasting, 3 FRC Annual Reports 32, 1929)

First FRC content regulation cases

Along with organizing the structure of radio, the Federal Radio Commission began content regulation in the 1920s and 30s. Some radio stations like WEVD (Eugene V Debs), a socialist radio station established in 1927 in New Jersey, and WCFL (Chicago Federation of Labor), a labor-oriented radio station established in 1926 in Chicago managed to survive the pressure, but had to change to a more commercial orientation.

Radio station owners balked. After all, if J. M. Near’s Saturday Press newspaper could be exempted from a Minnesota state “prior restraint” in the 1931 case Near v Minnesota, could the government directly censor radio? In two major cases, the courts said yes, and prior restraint of radio through licensing by the FRC and the new FCC.

John Brinkley, fake doctor and radio station owner shut down by the Federal Radio Commission in 1930.

KFKB v FRC, 1930 — “Doctor” John Brinkley ,a Kansas man passing himself off as a doctor, bought a radio station to broadcast his quack medical philosophy of implanting “goat glands” to rejuvenate men. Brinkley had no medical training but, for a while, he did have a license to practice medicine in Kansas. On radio station KFKB, Brinkley spoke for hours each day about his goat gland treatments. “He variously cajoled, shamed and appealed to men’s (and women’s) egos, and to their desire to be more sexually active. In between Brinkley’s own advertisements, his new station featured a variety of entertainment including military bands, French lessons, astrological forecasts, storytelling and exotica such as native Hawaiian songs, and American roots music including old-time string band, gospel and early country.”

When his medical license was rescinded in 1930, the Federal Radio Commission took away his radio station’s broadcast license as well. Brinkley appealed on the grounds that this was censorship, but a federal appeals court backed the FRC: “There has been no attempt on the part of the (Federal Radio) Commission to subject any part of appellant’s broadcasting matter to scrutiny prior to its release. In considering the question whether the public interest, convenience, or necessity will be served by a renewal of appellant’s license, the commission has merely exercised its undoubted right to take note of appellant’s past conduct, which is not censorship.” In response, Brinkley built a “border blaster” radio station in Mexico, XER. He continued to broadcast his goat gland philosophy until legal problems and a US – Mexican radio agreement stopped him in 1941.

Robert P. Shuler, pastor of Trinity Methodist Church

Trinity Methodist Church KGEF v. FRC, 1933 — Robert Shuler was a controversial and outspoken evangelist in Los Angeles in the 1920s whose church acquired folk hero status for his sermons and broadcasts that attacked evil and its agents on earth, among whom he numbered gamblers, bootleggers, grafters, and corrupt police and politicians; the president of UCLA for allowing evolution to be taught; the Los Angeles public library for allowing certain evil books; the YWCA for allowing dances; and fellow evangelists such as Billy Sunday and Aimee Semple McPherson.

In November 1931, the Federal Radio Commission revoked Shuler’s broadcast license, and KGEF went off the air. Shuler appealed the revocation, but a federal appeals court affirmed the decision, denouncing Shuler’s broadcasts with the idea that if this use of the airwaves were permitted, “radio will become a scourge and the nation a theater for the display of individual passions and the collision of personal interests.” While the ACLU supported Shuler’s right to free speech and challenged the courts’ decision, the Los Angeles Times published an editorial that delighted in the termination of his radio broadcasting license.

Unlike “doctor” Brinkley, Schuler was a genuine minister with training at Emory & Henry university in Virginia, and was nothing more than a public irritant, rather like J.M. Near with his newspaper. Nevertheless, the FRC and the courts took a very different approach to regulating the new medium of radio.

The new Federal Communications Commission

Questions about the FRC’s authority to regulate the entire radio spectrum led to the Federal Communications Act in 1934. This gave the new FCC expanded authority over a variety of areas, including: Mass Media licensing, Wireless (ham, aeronautic, marine), Common Carrier (telephone, telegraph) and field operations. The FCC also said that because the broadcasting spectrum belonged to the public, stations must operate in the “public interest, convenience and necessity.”

One decision for the public interest was to create the 1949 Fairness Doctrine, which was repealed in 1987. This described on a separate page on this site.

Content Regulation and civil rights

The WLBT Civil Rights media case 1964-1969
Local Southern television and radio stations deliberately blocked civil rights news coverage coming from network news in the 1950s and 60s. The confrontation led to the 1969 Supreme Court case, Office of Comm. of United Church of Christ v. FCC., in which civil rights groups challenged the FCC’s licensing practices in Mississippi — and won. It’s an interesting story:

In 1954, a group of civil rights activists began studying the pattern of racially biased news and public affairs programming. The Jackson, Miss. Chapter of the NAACP filed repeated complaints with the FCC about one particularly racist television station, WLBT in Jackson. Requests for a public hearing when the station license came up over the years were consistently turned down by the FCC.

When WLBT applied for what it thought would be a routine renewal of its broadcasting license in 1964, the church and a coalition of civil rights leaders formally challenged the license. Headed by Rev. Everett Parker, the group charged that the station blacked out nationally-produced civil rights news about nearby events; had promoted race-hating points of view without balance or regard for the Fairness Doctrine; and refused to feature African American speakers in any context, even on Sunday morning church service broadcasts.

The WLBT response was typical for stations whose licenses were challenged: It ginned up a list of all its public service activities from its log books, including service to the African American community. Usually complaints would stop at this point, and in effect be buried in red tape. But the coalition had an ace up its sleeve– it responded that the station’s log books were highly inaccurate, and presented evidence from a detailed content analysis, which had been kept secret up until that point. When the FCC approved the WLBT license, The church appealed the decision to a federal court, but the attorneys did not really expect to win both the case and the much larger battle over FCC’s regulatory procedure. Yet in 1966, the appeals court ruled that the FCC would conduct public hearings on the license and that the citizens would have standing before the FCC.

The court decision, written by Judge Warren Burger (who would later become the Chief Justice of the US Supreme Court) eloquently restated the longstanding tradition of broadcast regulation:

“A broadcaster is not a public utility … but neither is it a purely private enterprise like a newspaper or an automobile agency. A broadcaster has much in common with a newspaper publisher, but he is not in the same category in terms of public obligations imposed by law. A broadcaster seeks and is granted the free and exclusive use of a limited and valuable part of the public domain; when he accepts that franchise it is burdened by enforceable public obligations. A newspaper can be operated at the whim or caprice of its owners; a broadcast station cannot. After nearly five decades of operation the broadcast industry does not seem to have grasped the simple fact that a broadcast license is a public trust subject to termination for breach of duty… Under our system, the interests of the public are dominant. The commercial needs of licensed broadcasters and advertisers must be integrated into those of the public. Hence, individual citizens and the communities they compose owe a duty to themselves and their peers to take an active interest in the scope and quality of the television service which stations and networks provide and which, undoubtedly, has a vast impact on their lives and the lives of their children… The 1964 renewal application (for WLBT) might well have been routinely granted except for the determined and sustained efforts of Appellants (the church coalition) at no small expense to themselves. Such beneficial contribution as these Appellants, or some of them, can make must not be left to the grace of the (Federal Communications) Commission.” (United Church of Christ v FCC, 1966). For more on the Civil Rights WLBT story, see this National Archives publication.

Content Regulation / Children’s Television Act, 1990 — Advertising limited to 12 minutes / hour weekdays and 10.5 minutes/hour weekends, subsequent regulations limited interaction between content and advertising (eg, improper program length commercials such as GI Joe).

Prime Time Access Rule, 1971 – 1995, required that one of the four prime time hours be locally originated. Resulted in proliferation of Jeopardy, Wheel of Fortune syndicated shows.

Content Regulation / News distortion rule

One longstanding and rather dormant FCC regulation that has resurfaced in 2025 is the “news distortion rule” against broadcasting false information.

The rule has two parts. One prohibits harmful false broadcasts, such as Orson Welles 1938 “War of the Worlds” broadcast on CBS. The other part prohibits intentional distortion of the news.

Broadcasting false information that causes substantial ‘public harm’ — The FCC prohibits broadcasting false information about a crime or a catastrophe if the broadcaster knows the information is false and will cause substantial “public harm” if aired. FCC rules specifically say that the “public harm must begin immediately, and cause direct and actual damage to property or to the health or safety of the general public, or diversion of law enforcement or other public health and safety authorities from their duties.” Broadcasters may air disclaimers that clearly characterize programming as fiction to avoid violating FCC rules about public harm.

Broadcasting false content during news programming — The FCC is prohibited by law from engaging in censorship or infringing on First Amendment rights of the press. It is, however, illegal for broadcasters to intentionally distort the news, and the FCC may act on complaints if there is documented evidence of such behavior from persons with direct personal knowledge.

In 2025, the U.S. Federal Communications Commission investigated CBS for possible violations of the rule in the wake of a complaint about the editing of a “60 Minutes” interview with then-Vice President Kamala Harris. Whether the complaint will lead to a court case, or if it is even serious, remains to be seen in early 2025. (See “FCC must drop CBS news distortion inquiry” by the RCFP).

The largest previous example of the news distortion rule involved a 1996 investigation of the synthetic growth hormone BGH used by US milk producers but banned in other countries. Journalists Jane Akre and Steve Wilson investigated the issue for Fox affiliate WTVT. Under legal pressure from BGH manufacturer Monsanto, Akre and Wilson were fired by the TV station. They sued under a Florida whistleblower law, and won, but their victory was overturned by a Federal court citing the FCC news distortion rule. ( New World Communications of Tampa v. Akre, 2003 WL 327505, 28 Fla. L. Weekly D460. )

Content Regulation / Hoax Rule – FCC regulations ban broadcast fabrications of disasters or catastrophes. Although the intent is to minimize panic, and avoid harm, it is also true that no similar “hoax rule” is imposed on the print media. Imagine print tabloids being banned from fabrications.

The broadcasting of hoaxes, or false information concerning a crime or catastrophe, may be a federal crime and violate FCC regulations if:

· the station licensee knew that the information was false,
· broadcasting the false information directly causes substantial public harm, and
· it was foreseeable that broadcasting the false information would cause such harm.