1
Chapter 16: Telecommunications Regulation
Chapter 16
Telecommunications Regulation
The tension in Chapter 16 is between telling the story of what was and telling the story of what
is. In other areas of the law, when precedent becomes outdated and when the law is changed by a
court or legislature, the old rules are set aside and are not part of the textbook. But the law has
changed so fast in the area of telecommunications (for example, today the Federal
Communications Commission (FCC) is focused on broadband and network neutrality as much as
it is focused on regulating the ownership of TV stations) and in ways the authors know that
although some of you find it distasteful, there remains a need, the authors suspect, to at least
make a nod to the past. This is what it used to be, and this is what it is.
The authors don’t think any area of the law changed as much in the three-plus decades since the
first edition of Mass Media Law was published. But that is because most of the regulations of
telecommunications are generated by a single federal regulatory body and the U.S. Congress.
Courts play a smaller role. Both administrative agencies and legislatures are far more sensitive to
the changing winds of public opinion and storm surges of politics than the federal courts or the
common law.
This chapter of the book has new cases and controversies scattered throughout, making it up to
date in all areas. Some highlights of new content for the twentieth edition of the textbook are as
follows:
1. New discussion of the 2016 appellate court ruling in Prometheus Radio Project v. FCC
regarding ownership restrictions
2. New content about the U.S. Supreme Court’s 2014 ruling against Aereo in ABC, Inc. v.
Aereo
3. Updated discussion of the FCC’s regulation of broadcast indecency, including a new gray-
shaded textbox describing the FCC’s fine of 325,000 dollars against the Roanoke TV
station in 2015
What’s the Big Picture for Chapter 16?
Whether you choose to cover this chapter or not may depend upon whether your college or your
school offers an introductory level course in telecommunications regulation. Such a course
would, most likely, cover many of the same issues discussed in this chapter involving the FCC’s
rules governing both ownership and content.
The chapter can be divided into two lecture periods: one lecture period focusing on ownership
2
Chapter 16: Telecommunications Regulation
and licensing rules and the other lecture period addressing content-based regulations like the
FCC’s regulation of “indecent” content and its requirements related to educational program for
children.
You can keep up to date in this area by visiting the FCC’s website at http://www.fcc.gov. It
includes specific links for topics such as follows:
• General information about the FCC: http://www.fcc.gov/what-we-do
• Regulation of obscenity, indecency, and profanity:
http://www.fcc.gov/encyclopedia/regulation-obscenity-indecency-and-profanity
• Children’s educational television: http://www.fcc.gov/guides/childrens-educational-
television
These links were operational on July 18, 2017; the URLs may have changed since that time. The
key for teaching this content is to visit the FCC’s website as it has a wealth of current
information that you can use both in teaching Chapter 16 and in providing in-class handouts if so
desired.
What Appeals in This Chapter to Students’ Interests?
The section on “Obscene, Indecent and Profane Material” is particularly appealing to the current
generation of college students who are weaned on increasingly profane song lyrics and
increasingly sexualized material on television. This section can easily stand alone as a discussion
topic and, in fact, it can take an entire 60-minute lecture period to cover, depending upon how
much depth you want to go into it. Easily testable material on the topic includes the following:
• How does the FCC define indecency?
• What are the three factors that the FCC typically considers in determining whether a
material is patently offensive or not before rendering its indecency decisions?
• What is the safe-harbor time period during which both indecent and profane language may
be broadcasted?
• What are the three things that a listener or viewer must submit when filing an indecency
complaint with the FCC?
Students who are public relations majors may find the material in the section titled “Video News
Releases, Sponsorship Identification and the FCC” interesting as public relations (PR)
practitioners may be involved in creating video news releases (VNRs).
Students who are journalism majors may find the brief section titled “News and Public Affairs”
interesting and particularly relevant, including its focus on news distortion and complaints about
broadcast journalism (you might visit the FCC’s link on this topic at
http://www.fcc.gov/guides/broadcast-journalism-complaints for more information and to be up-
3
Chapter 16: Telecommunications Regulation
to-date with it). Obviously, this area also lends itself to ethical analysis as well as legal analysis.
Finally, in the discussion of the regulation of new technology within Chapter 16, a section
addresses satellite radio, including Howard Stern’s move to this medium. Importantly, satellite
radio is not subject to the same indecency rules as free, over-the-air broadcast radio (also known
as terrestrial radio).
Problem Questions
1. The Canadian Cattlemen’s Association has filed a complaint with the Federal
Communications Commission alleging that news stories on the Fox News Network about
the mad-cow disease have been one-sided and that they unfairly blamed Canadian cattle
ranchers for the spread of the disease into the United States. The Association said that the
news stories have focused exclusively on the shipment of one or more diseased animals
into the United States. It has also said that it has failed to report the cattle feed that
probably caused the animals to contract the disease in Canada that likely came from the
United States. “This is distortion of the news,” they argued. Attached to the complaint were
six letters from Canadian ranchers who said that they bought their feed from U.S. sources.
None of these ranchers, however, were ever named as the source of the diseased animals.
a. Does the First Amendment protect broadcast news, or is broadcasting deprived of the
kind of freedom of the press that shields the print media?
b. What is the FCC rule on news distortion?
c. Is the Canadian cattlemen’s claim a valid one?
Answer: There is no evidence to support the notion that Fox was deliberately trying
4
Chapter 16: Telecommunications Regulation
2. Jorge Taylor believes that a program he just watched at 11:00 p.m. called “Shakin’ Your
Booty & Gettin’ Jiggy” on one of the major broadcast networks is indecent, and he wants
to file a complaint with the FCC. The program featured women in bikinis performing lap
dances on customers in a hotel lobby.
a. What information must Jorge provide to the FCC before it will consider his
complaint?
Answer: Jorge must submit three critical pieces of information to the FCC:
• The date and time of the broadcast in question
b. Will Jorge be successful in having the material declared indecent?
3. Bored with seemingly endless political campaigns, the manager of WART, a television
(TV) station, announces that his TV station will no longer accept any political advertising.
In fact, the TV station builds an entire promotional campaign around this idea: “Tired of
political posturing and empty promises? Watch WART, a politics-free zone.” Several
weeks before the November election, Jesse Horn, a candidate for the U.S. House of
Representatives, seeks to buy advertising time on WART. Mildred Smith, a candidate for
the state legislature, also seeks to buy advertising time on WART. The TV station refuses
both the requests, citing its “no politics” policy. Both candidates complain to the FCC.
a. How would the FCC respond to Horn’s complaint?
Answer: FCC would cite the Section 312(a)(7), the candidate access rule, which
states that a broadcast license can be revoked for willful and repeated failure “to
5
Chapter 16: Telecommunications Regulation
b. How would the FCC respond to Smith’s request?
Answer: Section 312(a)(7) governs only appearances by candidates for federal
office. It says nothing about candidates for other political offices. The agency has
4. Julie Martin announces on June 23 of an election year that she is a candidate for the city
council position number three. The city election is scheduled to be held on September 15.
When she announces her candidacy, no other person is running for this post. Julie is the
anchor for WART’s “News at Noon” TV show. She continues to anchor the news until
someone at the TV station figures out her candidacy and her anchor job might present a
small conflict of interest. So she is asked to take a leave of absence beginning July 5.
Bill Bright announces his candidacy for position three on July 4. On July 6, the day after
Julie leaves the air, he telephones the station and demands 4 hours and 40 minutes of free
airtime. He said that, excluding Saturdays and Sundays, Julie was on the air approximately
35 minutes each day for eight days between June 23 and July 5. Under the equal
opportunity rules, Bright says, the station owes him that much free time. The TV station
refuses. The station contends that appearances on bona fide newscasts do not count as an
appearance under the equal time rules. Bright complains to the FCC.
a. How would the FCC rule in this case?
Answer: The agency should rule that the bona fide newscast exemption does not
cover employees of the TV station. It should also rule that the bona fide newscast