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 led to 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 alone for what the Titanic’s passenger messages. Unlike today, radio technology had not been fully developed, and only one signal could be heard on the airwaves at a time. The Titanic’s radio operators were trying to send telegrams to New York, and when they told the Californian to get off the air, the operator turned off its radio. The Californian steamed off into the night, unaware of the disaster that took place only a few hours later with nearby Titanic.
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).
Congress passed the Radio Act of 1912 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.
During World War I, all radio communication was controlled by the government. After the war, radio became a popular hobby and radio stations proliferated. Some were small, some were affiliated with churches and universities, and a few started growing into large institutions.
After the war, radio became enormously popular. Over 700 radio stations were in existence in 1927 when the government began an organizing campaign.
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 in General Order 32 and General Order 40. Many low-powered independent and educational stations were eliminated, and an AM broadcast band of 96 frequencies was created by the FRC. Among these were 25 super stations (clear channel); 23 of these were NBC owned or affiliated.
Overall, the controversial structuring of America’s radio networks by and for commercial interests contrasted with other educational and culturally oriented radio development in Europe. 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 took on content regulation in the 1930s. Some 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, was regulation of radio all that different? The courts said yes, it was, and upheld regulation of radio 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, 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 end of a bitter critic of public affairs.
Unlike Dr. 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 showed who was in charge of the new medium of radio.
The new Federal Communications Commission
Since the FRC did not have enough authority to regulate the entire radio spectrum, Congress passed the Federal Communications Act in 1934 giving an expanded agency authority over a variety of areas, including: Mass Media licencing, 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.”
Under the FCC, regulation of content and structure continued through the 20th century. Content regulations (as we will see) included the Fairness Doctrine.
The Fairness Doctrine
One of the first major issues involved the problem of how to deal with Father Charles Coughlin, the pro-Nazi American radio personality of the 1930s. With a following of 16 million radio listeners, Coughlin tried to convince people that the Nazis were a logical antidote to communism in Germany. Coughlin’s demise came after broadcast a program approving of Kristallnacht (Nov. 9-10, 1938), in which 30,000 Jewish men were imprisoned without cause and hundreds of synagogues and thousands of businesses were burned to the ground. The networks and the FCC agreed that in the future, that no one speaker would be allowed to have their own hour-long program, but rather, that a variety of speakers would be required on all programs. This was followed by the FCC’s 1941 Mayflower Decision, which banned radio broadcasters from taking sides in controversies, especially elections.
The Fairness Doctrine had roots in the founding of the Federal Radio Commission, but was formally established in 1949 to ensure both sides of controversial issues were presented by broadcasters. There were problems with trying to enforce fairness.
Billy Joe Hargis, evangelical minister and forerunner of right wing radio, was sued under the Fairness Doctrine for not including alternative viewpoints about author Fred J. Cook. (Center for Public Secrets)
Red Lion Broadcasting v. FCC, 1969 — The case involved the right of reply to an attack by “Christian Crusade” radio personality — Billy Joe Hargis — on book author Fred J. Cook who wrote about Barry Goldwater and the 1964 presidential campaign. In effect, it was a right-wing radio attack on a left wing book, and the FCC said the author ought to have his say. The court upheld the FCC’s Fairness Doctrine regulations that imposed a requirement for equal time to respond to personal attacks. It also upheld and entrenched the scarcity rationale. It is the right of viewers and listeners, not broadcasters, which is paramount, the court said. In contrast, note the Miami Herald v. Tornillo 1974 case, in which a print medium was not forced to give right of reply.
Friends of the Earth v. FCC 1971 — This case highlighted problems with the Fairness Doctrine. In some areas of controversy, it seemed easy to present alternative points of view. For example, advertising from the tobacco industry was balanced under the Fairness Doctrine by ads urging people to quit smoking. But in other areas of controversy, the Fairness Doctrine didn’t quite work. When Friends of the Earth, an environmental public interest group, sued the FCC under the Fairness Doctrine, wishing to present alternative views about leaded gasoline and gas guzzling cars, the FCC reinterpreted the Fairness Doctrine as not giving a right of reply in cases involving commercial advertising.
FCC v. League of Women Voters of California, 1984 — Case was a challenge to law that said public broadcasting stations couldn’t editorialize, first time the court had ever overturned a content restriction of broadcasters on First Amendment grounds. Case paved the way for abolition of most of Fairness Doctrine.
Who wants to bring back the Fairness Doctrine?
A lot of people, according to this February 2021 Washington Post Op-Ed by media law professor Victor Pickard.
While the Fairness Doctrine’s overall effectiveness and enforceability are debatable, it encouraged sensitivity toward programming biases and empowered local communities to hold broadcasters accountable. Activists used the Fairness Doctrine to help combat racist broadcasting, most notably in the WLBT-TV case when a pro-segregationist broadcaster in Jackson, Miss., was ultimately driven off the air in the late 1960s. The Fairness Doctrine also enabled activists to contest advertising for tobacco and other harmful products. From the 1960s into the ’80s, consumer advocates like Ralph Nader saw it as an essential means for publicizing causes in the nation’s media.
Over the decades, many conservatives also came to value the Fairness Doctrine. Phyllis Schlafly was a major proponent and used the doctrine to gain media coverage for her Anti-Equal Rights Amendment campaign. Conservative activists like Reed Irvine saw it as a tool for including conservative voices within a media landscape that they perceived as predominantly liberal. Even right-wing groups such as Accuracy in Media and the NRA supported it well into the 1980s.
Content Regulation
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
Is it illegal to force journalists to lie on the air? Does the FCC “news distortion rule” mean anything at all? In 1996 and 1997, Jane Akre and her husband Steve Wilson investigated the use of a synthetic growth hormone (BGH) in Florida dairies. They found that the hormone probably had dangerous side effects, which was why it was banned in Canada and several European countries. When their report was completed, they also found their TV station, Fox affiliate WTVT-TV, was under heavy legal pressure from hormone manufacturer Monsanto.
Rather than airing a program that balanced public health concerns against the industry’s position, Monsanto’s lawyers told Fox management that they would sue if any program was run. Eventually, after a considerable amount of argument, Akre and Wilson were fired.
They sued WTVT and won in August, 2000, claiming that WTVT fired Aker after she threatened to tell the FCC that it had tried to distort the news. The Florida whistleblower law allows an employee to recover damages when an employer retaliates against efforts to report unlawful behavior. But a federal appeals court overturned the ruling, saying that WTVT had not broken the state’s whistleblower statute. And technically, while the FCC had ruled against distortions of news in other cases, regulatory hearings were technically not the same as law. ( New World Communications of Tampa v. Akre, 2003 WL 327505, 28 Fla. L. Weekly D460. ) See RCFP story “FCC No Distortion Policy …”
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.
Section 315 – Political advertising
Access to political advertising under the “Equal Time Rule” was one of the FCC’s original major regulations, enacted in 1934 to ensure an even-handed approach to all federal political campaign advertising. If stations sell advertising to one candidate, they must sell the same amount to the other. This still applies to political candidates in an election cycle.
Section 315 says:
- All candidates must have access to advertising
- Federal political campaign advertising must be sold at lowest block rate
- Broadcasters are not responsible for libel or other issues in qualified campaign ads. (Farmer’s Co-op v WDAY, 1959)
CBS v. Democratic National Committee, 1973 — Aside from campaigns, broadcasters do not have to carry advertising if they don’t want to, even political advertising.
CBS v. FCC, 1981 — Court upheld FCCs authority to order stations to air federal candidate’s statements. This case had to do with a 1980 Carter campaign request to purchase a half hour of air time from all three networks. Since FCC rules state that the air time must be sold at the lowest rate available, the networks did not want to lose money.