The new paradigm for American broadcasting – changing the content regulation regimen in the age of new media

Abstract

American radio and television broadcasting is at a crossroad, caught in the midst of a realignment of the media landscape. No longer the dominant medium, radio and television broadcasting has become a cog in a vast cornucopia of delivery systems, such as cable, satellite, Internet and wireless. Licensed to a specific radiomagnetic spectrum through the Federal Communications Commission, broadcasters were subject to greater content regulation than those in other media. In the past the courts have upheld such regulations – including those which mandated stations to provide reply time for those attacked in editorials and others which restricted communications deemed to be ‘indecent’ – have survived First Amendment attack for one or two rationales: first, that the medium is inherently scarce and second, that it is ‘pervasive’. In the last 10 years, some judges have cast doubts about this argument and in so doing, feel that American (US) broadcasting should be freed from such regulatory restrictions. This article presents the arguments in favor of treating radio and television licensees as full-fledged members of the free speech sphere. It further argues that in the broadband era, distinctions between broadcasters and other content providers are increasingly irrelevant and that radio and television are no longer as dominant.

Keywords:

• law
• broadcasting
• First Amendment
• scarcity
• indecency

Notes

C. Logan, ‘Getting Beyond Scarcity: A New Paradigm for Assessing the Constitutionality of Broadcast Regulation’, California Law Review 85 (1997): 1687–8.

K. Corbett, ‘The Rise of Private Property Rights in the Broadcast Spectrum’, Duke Law Review 46 (1996): 611–8.

See Federal Communications Commission, ‘Editorializing by Broadcast Licensees’, 13 F.C.C. 1246, 25 R.R. 1901 (1949).

The entire provision states: ‘Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both.’

See ‘In re Complaint of Syracuse Peace Council against Television Station WTVH Syracuse, New York’, 2 F.C.C. Rcd 5043 (1987).

See Miami Herald v. Tornillo, 418 U.S. 241 (1974), where the Supreme Court held that a Florida ‘right of reply’ law requiring newspapers to allow equal space to political candidates who were attacked in an editorial was a violation of the First Amendment. Despite the law's similarity to the fairness doctrine, the court did not even mention the Red Lion ruling.

See R. Coase, ‘The Federal Communications Commission’, Journal of Law and Economics 2 (1959): 1; L. Herzel, ‘Public Interest and the Market in Color Television Regulation’, University of Chicago Law Review 18 (1951): 802.

Jerome A. Barron, ‘Access to the Press – A New First Amendment Right’, Harvard Law Review 80 (1967): 1641.

See ‘In re Complaints Against Various Broadcast Licensees Regarding Their Airing of the “Golden Globe Awards” Program’, 19 F.C.C. Rcd.4975, at para 3 n.4 (2004) (‘Golden Globes Order’).

See tvguidelines.org. (accessed 1 August 2010).

See Action for Childrens' Television v. FCC, 58 F.2d 654 (D.C. Cir. 1994).

See Comcast v. FCC, 2010 U.S. App. LEXIS 7039 (D.C. Cir. Apr. 6, 2010).

See U.S. v. O'Brien, 391 U.S. 367 (1968).