Jessica Rosenworcel, acting FCC chair appointed by President Biden, is a proponent of net neutrality and better educational access to digital communication.
Radio, television, and cable — collectively called “electronic” media or “broadcast media” — are far more regulated than print or digital media.
This regulation involves both the structure and content of radio, television, telegraph, satellite and cable communication in the US and territories.
The authority to regulate “in the public interest, convenience and necessity” is placed by Congress in the Federal Communications Commission, and its most important regulatory power derives from the FCC’s licensing of radio and TV broadcasting stations and networks. Stations or networks who do not abide by regulations face fines and other penalties. In rare situations, they have lost their broadcast licenses.
The main trend in broadcast law today is toward deregulation, but a high level of regulation is likely to remain, considering the fact that demand for the broadcast spectrum continues to exceed supply which justifies regulation under the “scarcity rationale.” Recent controversies have involved indecency on broadcast television, the structural decline of radio and cable television, and the competition with relatively unregulated new digital media.
Principles of regulation have included:
- Appropriate allocation of scarce resources (the “scarcity rationale.”) The original reason for licensing and regulating radio (and later TV) involved the fact that the electromagnetic spectrum was relatively narrow, and the resource was “scarce.” This is less and less true. Over the years, communications channels have expanded with the advent of 1) Cable networks in the 1970s; 2) Satellite systems in the 1990s; and 3) the Internet and Web in the 2000s; and 4) Digital broadcasting in the 2010s. As a result, the “scarcity rationale” is not as compelling as it once was, and the regulatory trend has been towards deregulation in most content and structural areas.
- Fairness, as in the “Fairness Doctrine,” is another principle. The Fairness Doctrine was instituted by the FCC in 1949, upheld in the Red Lion case 1969, but overturned in FCC v League of Women Voters, 1984. The original idea emerged in the 1930s when American fascists like Father Charles Coughlin aired hour-long programs that supported European Nazis.
In response, corporate radio networks (especially NBC) and associations (esp. the National Association of Broadcasters) recommended an end to single-speaker programs and required that opposing viewpoints be presented in 1938-39. This continued on the government side with the FCC’s 1941 Mayflower decision in which radio stations, due to their public interest obligations, would have to be neutral in matters of news and politics, and were not allowed to give editorial support to any particular political position or candidate. The Fairness Doctrine of 1949 emerged from debates about this issue. It required radio and TV stations to present controversial issues of public importance and to do so in a manner that was honest, equitable, and balanced. - Localism for radio and television stations — The idea of localism was that radio and TV stations must serve their individual communities, at least to a small extent, and not simply repeat cheap and easily syndicated studio shows. The “must carry” rules for cable emerged from this principle. (See FCC’s “Background on Localism in Broadcasting“) .
- Universal service and neutrality for common carriers (telephone, internet) — Historically, telegraph and telephone companies started off in an atmosphere of cutthroat competition. American Telephone and Telegraph (AT&T) became a regulated monopolies by promising that profits would be applied to ensuring wide access to phone services at low cost. That same principle is being applied by the FCC, and contested by the telephone companies, in areas like net neutrality and municipal broadband agencies.
- Public forum, especially community access cable programming, which was strongly affirmed in Denver Area Educational Telecommunications Consortium v FCC, 1996, and weakly overturned in Manhattan Community Access Corp v Halleck, 2019.
The FCC’s overall approach to regulation is often used as an example of how an agency can be “captured” by the industry it regulates. High prices for telecommunications services, monopoly practices, and a lack of serious consumer privacy laws are all part of the FCC’s regulatory swamp, according to a 2015 Harvard ethics center study.