Broadcast radio, television, and cable are far more regulated than print or digital media. Even so, regulations must be content neutral. Viewpoint-based regulation of speech and press is usually unconstitutional.
Content-based regulation of speech is generally subject to strict scrutiny and presumptively unconstitutional. The Supreme Court considers viewpoint-based regulation of speech to be an egregious form of content discrimination.
— Constitution Annotated, US Congress
“Hometown Henry” in the newsroom of WDBJ television in Roanoke, Virginia. (Photo by Kovarik)
The authority to regulate broadcasting “in the public interest, convenience and necessity” is placed by Congress in the Federal Communications Commission. 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 very rare situations, one or two have lost their broadcast licenses.
The regulation involves both the structure and content of radio, television, telegraph, satellite and cable communication in the US and territories.
Radio and TV law contains many contradictions that are essentially holdovers from regulations of a previous era. For example, vulgar words may get “bleeped out” on some television programs and not others. This is usually because the same programs are regulated differently depending on their venue. A program on a streaming channel or cable is not regulated in the same way as those that are broadcast.
One trend in broadcast law 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, and that (supposedly) 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.
One relatively new trend is the use of federal agencies such as the FCC to punish political rivals. The Trump administration 0f 2025 is well known for engaging in highly partisan approaches to what was once relatively neutral federal regulation.
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, once codified in the “Fairness Doctrine,” is another principle. The original controversies go back to the 1920s and 30s, when the Federal Radio Commission curbed both socialist and pro-fascist broadcasting through licensing and the National Association of Broadcasters code of ethics. The Fairness Doctrine became official in 1949 and was upheld in the Red Lion v FCC case 1969, but overturned in the 1980s. Relics of the Fairness Doctrine such as the “news distortion rule” and the “equal time rule” remain in law and have become controversial in the second Trump administration.
- 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“). So, too, did the decades-long process of allowing low-power community radio over the objections of traditional broadcasters.
- 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, no matter what political party holds the White House or Congress.
High prices for telecommunications services, monopoly practices, and a lack of serious consumer privacy laws are all part of the FCC’s regulatory swamp. To that older mix of issues, add the high pressure tactics during the second Trump presidency used to steer large segments of the once – neutral broadcast media into ownership by right-wing media billionaires.
FURTHER READING
Harvard ethics center study on FCC domination by regulated media (2015)
May 4, 2017 Stephen Colbert’s supposedly obscene comedy routine on Trump’s relationship with Russian dictator Vladimir Putin.