BROADCAST PROGRAMMING: BASIC LAW AND POLICY
The FCC and Freedom of Speech. The First Amendment, as well as Section 326 of the Communications Act, prohibits the Commission from censoring broadcast material and from interfering with freedom of expression in broadcasting. The Constitution’s protection of free speech includes that of programming that may be objectionable to many viewer or listeners. Thus, the FCC cannot prevent the broadcast of any particular point of view. In this regard, the Commission has observed that “the public interest is best served by permitting free expression of views.” However, the right to broadcast material is not absolute. There are some restrictions on the material that a licensee can broadcast. We discuss these restrictions below.
Licensee Discretion. Because the Commission cannot dictate to licensees what programming they may air, each individual radio and TV station licensee generally has discretion to select what its station broadcasts and to otherwise determine how it can best serve its community of license. Licensees are responsible for selecting their entertainment programming, as well as programs concerning local issues, news, public affairs, religion, sports events, and other subjects. As discussed at page 29 of this Manual, broadcast licensees must periodically make available detailed information about the programming that they air to meet the needs and problems of their communities, which can be found in each station public file. They also decide how their programs will be structured and whether to edit or reschedule material for broadcasting. In light of the First Amendment and Section 326 of the Communications Act, we do not substitute our judgment for that of the licensee, nor do we advise stations on artistic standards, format, grammar, or the quality of their programming. Licensees also have broad discretion regarding commercials, with the exception of those for political candidates during an election and the limitations on advertisements aired during children’s programming (we discuss these respective requirements at pages 13-14, and 17 of this Manual).
Criticism, Ridicule, and Humor Concerning Individuals, Groups, and Institutions. The First Amendment's guarantee of freedom of speech similarly protects programming that stereotypes or may otherwise offend people with regard to their religion, race, national background, gender, or other characteristics. It also protects broadcasts that criticize or ridicule established customs and institutions, including the government and its officials. The Commission recognizes that, under our Constitution, people must be free to say things that the majority may abhor, not only what most people may find tolerable or congenial. However, if you are offended by a station’s programming, we urge you to make your concerns known to the station licensee, in writing.
Programming Access. In light of their discretion to formulate their programming, station licensees are not required to broadcast everything that is offered or otherwise suggested to them. Except as required by the Communications Act, including the use of stations by candidates for public office (discussed at pages 13-14 of this Manual), licensees have no obligation to allow any particular person or group to participate in a broadcast or to present that person or group’s remarks.
BROADCAST PROGRAMMING: LAW AND POLICY ON SPECIFIC KINDS OF PROGRAMMING
Broadcast Journalism
Introduction. As noted above, in light of the fundamental importance of the free flow of information to our democracy, the First Amendment and the Communications Act bar the FCC from telling station licensees how to select material for news programs, or prohibiting the broadcast of an opinion on any subject. We also do not review anyone’s qualifications to gather, edit, announce, or comment on the news; these decisions are the station licensee’s responsibility. Nevertheless, there are two issues related to broadcast journalism that are subject to Commission regulation: hoaxes and news distortion.
Hoaxes. The broadcast by a station of false information concerning a crime or catastrophe violates the FCC's rules 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.
In this context, a “crime” is an act or omission that makes the offender subject to criminal punishment by law, and a “catastrophe” is a disaster or an imminent disaster involving violent or sudden events affecting the public. The broadcast must cause direct and actual damage to property or to the health or safety of the general public, or diversion of law enforcement or other public health and safety authorities from their duties, and the public harm must begin immediately. If a station airs a disclaimer before the broadcast that clearly characterizes the program as fiction and the disclaimer is presented in a reasonable manner under the circumstances, the program is presumed not to pose foreseeable public harm. Additional information about the hoax rule can be found on the FCC’s website at http://www.fcc.gov/cgb/consumerfacts/falsebroadcast.html
News Distortion. The Commission often receives complaints concerning broadcast journalism, such as allegations that stations have aired inaccurate or one-sided news reports or comments, covered stories inadequately, or overly dramatized the events that they cover. For the reasons noted above, the Commission generally will not intervene in such cases because it would be inconsistent with the First Amendment to replace the journalistic judgment of licensees with our own. However, as public trustees, broadcast licensees may not intentionally distort the news: the FCC has stated that “rigging or slanting the news is a most heinous act against the public interest.” The Commission will investigate a station for news distortion if it receives documented evidence of such rigging or slanting, such as testimony or other documentation, from individuals with direct personal knowledge that a licensee or its management engaged in the intentional falsification of the news. Of particular concern would be evidence of the direction to employees from station management to falsify the news. However, absent such a compelling showing, the Commission will not intervene. For additional information about news distortion, see http://www.fcc.gov/cgb/consumerfacts/journalism.html.
Political Broadcasting: Candidates for Public Office. In recognition of the particular importance of the free flow of information to the public during the electoral process, the Communications Act and the Commission’s rules impose specific obligations on broadcasters regarding political speech.
· Reasonable Access. The Communications Act requires that broadcast stations provide “reasonable access” to candidates for federal elective office. Such access must be made available during all of a station’s normal broadcast schedule, including television prime time and radio drive time. In addition, federal candidates are entitled to purchase all classes of time offered by stations to commercial advertisers, such as preemptible and non-preemptible time. The only exception to the access requirement is for bona fide news programming (as defined below), during which broadcasters may choose not to sell airtime to federal candidates. Broadcast stations have discretion as to whether to sell time to candidates in state and local elections.
· Equal Opportunities. The Communications Act requires that, when a station provides airtime to a legally qualified candidate for any public office (federal, state, or local), the station must “afford equal opportunities to all other such candidates for that office.” The equal opportunities provision of the Communications Act also provides that the station “shall have no power of censorship over the material broadcast” by the candidate. The law exempts from the equal opportunities requirement appearances by candidates during bona fide news programming, defined as an appearance by a legally qualified candidate on a bona fide newscast, interview, or documentary (if the appearance of the candidate is incidental to the presentation of the subject covered by the documentary) or on–the–spot coverage of a bona fide news event (including debates, political conventions and related incidental activities).
In addition, a station must sell political advertising time to certain candidates during specified periods before a primary or general election at the lowest rate charged for the station’s most favored commercial advertiser. Stations must maintain and make available for public inspection, in their public inspection files, a political file containing certain documents and information, discussed at page 28 of this Manual. For additional information about the political rules, see http://www.fcc.gov/mb/policy/political
Objectionable Programming
Programming Inciting “Imminent Lawless Action.” The Supreme Court has held that the government may curtail speech if it is both: (1) intended to incite or produce “imminent lawless action;” and (2) likely to “incite or produce such action.” Even when this legal test is met, any review that might lead to a curtailment of speech is generally performed by the appropriate criminal law enforcement authorities, not by the FCC.
Obscene, Indecent, or Profane Programming. Although, for the reasons discussed earlier, the Commission is generally prohibited from regulating broadcast content, the courts have held that the FCC’s regulation of obscene and indecent programming is constitutional, because of the compelling societal interests in protecting children from potentially harmful programming and supporting parents’ ability to determine the programming to which their children will be exposed at home.
Obscene material is not protected by the First Amendment and cannot be broadcast at any time. To be obscene, the material must have all of the following three characteristics:
Indecent material is protected by the First Amendment, so its broadcast cannot constitutionally be prohibited at all times. However, the courts have upheld Congress' prohibition of the broadcast of indecent material during times of the day in which there is a reasonable risk that children may be in the audience, which the Commission has determined to be between the hours of 6 a.m. and 10 p.m. Indecent programming is defined as “language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities.” Broadcasts that fall within this definition and are aired between 6 a.m. and 10 p.m. may be subject to enforcement action by the FCC.
Profane material also is protected by the First Amendment, so its broadcast cannot be outlawed entirely. The Commission has defined such program matter to include language that is both “so grossly offensive to members of the public who actually hear it as to amount to a nuisance” and is sexual or excretory in nature or derived from such terms. Such material may be the subject of possible Commission enforcement action if it is broadcast within the same time period applicable to indecent programming: between 6 a.m. and 10 p.m.
How to File an Obscenity, Indecency, or Profanity Complaint: In order to allow its staff to make a determination of whether complained-of material is actionable, the Commission requires that complainants provide certain information: (1) the date and time of the alleged broadcast; (2) the call sign, channel or frequency of the station involved; and (3) the details of what was actually said (or depicted) during the alleged indecent, profane, or obscene broadcast. Submission of an audio or video tape, CD, DVD or other recording or transcript of the complained-of material is not required but is helpful, as is specification of the name of the program, the on-air personality, song, or film, and the city and state in which the complainant saw or heard the broadcast.
The fastest and easiest way to file a complaint containing this information is to use the FCC’s electronic complaint form, Form 475B, which is available on the FCC’s website at
http://fjallfoss.fcc.gov/cgb/fcc475B.cfm .
You also may file a complaint about objectionable programming by mailing it to:
Federal Communications Commission
Consumer & Governmental Affairs Bureau
Consumer Inquiries and Complaints Division
445 12th Street, S.W.
Washington, D.C. 20554.
If you are submitting an audio or video tape, DVD, CD or other type of media with your complaint, you should send it to the following address to avoid mail processing damage:
Federal Communications Commission
Consumer & Governmental Affairs Bureau
Consumer Inquiries and Complaints Division
9300 East Hampton Drive
Capitol Heights, Maryland 20743.
You can also electronically file your complaint at fccinfo@fcc.gov
You may also complain by calling the Commission, toll-free, at:
1-(888)-CALL-FCC (1-(888)-225-5322) (Voice)
1-(888)-TELL-FCC (1-(888)-835-5322) (TTY)
For additional information on the complaint process for obscene, indecent or profane material, visit http://www.fcc.gov/eb/oip
Violent Programming. Many members of the public have expressed concern about violent television programming and the negative impact such broadcast material may have upon children. In response to these concerns, and at the request of 39 members of the U.S. House of Representatives, the FCC conducted a proceeding seeking public comment on violent programming. In April 2007, the Commission delivered to Congress a Report recommending that the industry voluntarily commit to reducing the amount of such programming viewed by children. The Commission also suggested that Congress consider enacting legislation that would better support parents’ efforts to safeguard their children from such objectionable programming. The Commission’s Report can be accessed at http://fjallfoss.fcc.gov/edocs_public/attachmatch/FCC-07-50A1.pdf .
The V-Chip and TV Program Ratings. In light of the widespread concern about obscene, indecent, profane, violent, or otherwise objectionable programming, in 1996, Congress passed a law to require TV sets with screens 13 inches or larger to be equipped with a “V-Chip” – a device that allows parents to program their sets to block TV programming that carries a certain rating. Since 2000, all such sets manufactured with screens 13 inches or larger must contain the V-Chip technology. This technology, which must be activated by parents, works in conjunction with a voluntary television rating system created and administered by the television industry and others, which enables parents to identify programming containing sexual, violent, or other content that they believe may be harmful to their children. All of the major broadcast networks and most of the major cable networks are encoding their programming with this ratings information to work with the V‑Chip. However, some programming, such as news and sporting events, and unedited movies aired on premium cable channels, are not rated. In 2004, the FCC expanded the V-Chip requirement to apply also to devices that do not have a display screen but are used with a TV set, such as a VCR or a digital-to-analog converter box.
For more information about this ratings program, including a description of each ratings category, please see the FCC’s V‑Chip website at http://www.fcc.gov/cgb/consumerfacts/vchip.html
Other Broadcast Content Regulation
Station Identification. Stations must air identification announcements when they sign on and off for the day. They also must broadcast these announcements every hour, as close to the start of the hour as possible, at a natural programming break. TV stations may make these announcements on-screen or by voice only. Official station identification includes the station’s call letters, followed by the community specified in its license as the station’s location. Between the call letters and its community, the station may insert the name of the licensee, the station’s channel number, and/or its frequency. It may also include any additional community or communities, as long as it first names the community to which it is licensed by the FCC. DTV stations also may identify their digital multicast programming streams separately if they wish, and, if so, must follow the format described in the FCC’s rules.
Commencing as of a date to be determined, for television stations, twice daily, the station identification will also have to include a notice of the existence, location and accessibility of the station’s public file The notice will have to state that the station’s public file is available for inspection and that members of the public can view it at the station’s main studio and on its station website. Broadcast of at least one of these announcements will be required between the hours of 6 p.m. and midnight.
Children’s Television Programming. Throughout its license term, every TV station must serve the educational and informational needs of children both by means of its overall programming and through programming that is specifically designed to serve those needs. Licensees are eligible for routine staff-level approval of the Children’s Television Act portion of their renewal applications if they air at least three hours of “core” children’s television programming, per week, or proportionally more if they provide additional free digital programming streams. Core programming is defined as follows:
· Educational and Informational. The programming must further the educational and informational needs of children 16 years old and under (this includes their intellectual/cognitive or social/emotional needs).
· Specifically Designed to Serve These Needs. A program is considered “specifically designed to serve the educational and information needs of children” if: (1) that is its significant purpose; (2) it is aired between the hours of 7 a.m. and 10 p.m.; (3) it is a regularly scheduled weekly program; and (4) it is at least 30 minutes in duration.
To ensure that parents and other interested parties are informed of the educational and informational children’s programming that their area stations offer, television licensees must identify each program specifically designed to “educate and inform” children by displaying the icon “E/I” throughout the program. In addition, commercial stations must provide information identifying such programs to the publishers of program guides.
During the broadcast of TV programs aimed at children 12 and under, advertising may not exceed 10.5 minutes an hour on weekends and 12 minutes an hour on weekdays.
These rules apply to analog and digital broadcasting. As discussed at page 9 of this Manual, television stations have traditionally operated with analog technology. Television stations, however, are in the process of switching to digital broadcasting, which greatly enhances their capability to serve their communities. Among other things, digital technology permits stations to engage in multicasting, that is, to air more than one stream of programming at the same time. Digital stations that choose to air more than one stream of free, over-the-air video programming must air proportionately more children’s educational programming than stations that air only one stream of free, over-the-air video programming.
Each television licensee is required to prepare and place in the public inspection file at the station a quarterly Children’s Television Programming Report (FCC Form 398) identifying its core programming. These reports must also be filed electronically with the FCC each quarter and can be viewed on the FCC’s website, at http://www.fcc.gov/mb/engineering/kidvid. This requirement of the station’s public file is discussed at page 29 of this Manual.
The FCC has created a children’s educational television website to inform parents and other members of the public about the obligation of every television broadcast station to provide educational and informational programming for children. This website provides access to background information about these obligations, as well as information about children’s educational programs that are aired on television stations in your area and throughout the country. This website also can help TV stations comply with the children’s television requirements. You can access the children’s educational television website by going to the FCC’s main website at http://www.fcc.gov and double-clicking on the “Parents’ Place” listing under “Consumer Center” on the FCC home page. Alternatively, you can go directly to the children’s television website at http://www.fcc.gov/parents/childrenstv.html
Station-Conducted Contests. A station that broadcasts or advertises information about a contest that it conducts must fully and accurately disclose the material terms of the contest, and must conduct the contest substantially as announced or advertised. Contest descriptions may not be false, misleading, or deceptive with respect to any material term, including the factors that define the operation of the contest and affect participation, such as entry deadlines, the prizes that can be won, and how winners will be selected. Additional information about the contest rule can be found at http://www.fcc.gov/cgb/consumerfacts/contests.html
Lotteries. Federal law prohibits the broadcast of advertisements for a lottery or information concerning a lottery. A lottery is any game, contest, or promotion that contains the elements of prize, chance, and "consideration" (a legal term that means an act or promise that is made to induce someone into an agreement). For example, casino gambling is generally considered to be a “lottery” subject to the terms of the advertising restriction although, as discussed below, the prohibition is not applied to truthful advertisements for lawful casino gambling. Many types of contests, depending on their particulars, also are covered under this definition.
The statute and FCC rules list a number of exceptions to this prohibition, principally advertisements for: (1) lotteries conducted by a state acting under the authority of state law, when the advertisement or information is broadcast by a radio or TV station licensed to a location in that state or in any other state that conducts such a lottery; (2) gambling conducted by an Indian Tribe under the Indian Gaming Regulatory Act; (3) lotteries authorized or not otherwise prohibited by the state in which they are conducted, and which are conducted by a not‑for‑profit organization or a governmental organization; and (4) lotteries conducted as a promotional activity by commercial organizations that are clearly occasional and ancillary to the primary business of that organization, as long as the lotteries are authorized or not otherwise prohibited by the state in which they are conducted.
In 1999, the Supreme Court held that the prohibition on broadcasting advertisements for lawful casino gambling could not constitutionally be applied to truthful advertisements broadcast by radio or television stations licensed in states in which such gambling is legal. Relying upon the reasoning in that decision, the FCC and the United States Department of Justice later concluded that the lottery advertising prohibition may not constitutionally be applied to the broadcast of any truthful advertisements for lawful casino gambling, whether or not the state in which the broadcasting station is located permits casino gambling. Additional information about the rule concerning lotteries can be found at http://www.fcc.gov/cgb/consumerfacts/contests.html
Soliciting Funds. No federal law prohibits the broadcast by stations of requests for funds for legal purposes (including appeals by stations for contributions to meet their operating expenses), if the money or other contributions are used for the announced purposes. However, federal law prohibits fraud by wire, radio or television – including situations in which money solicited for one purpose is used for another – and doing so may lead to FCC sanctions, as well as to criminal prosecution by the U.S. Department of Justice. Additional information about fund solicitation can be found at http://www.fcc.gov/cgb/consumerfacts/contests.html
Broadcast of Telephone Conversations. Before broadcasting a telephone conversation live or recording a telephone conversation for later broadcast, a station must inform any party to the call of its intention to broadcast the conversation. However, that notification is not necessary when the other party knows that the conversation will be broadcast or such knowledge can be reasonably presumed, such as when the party is associated with the station (for example, as an employee or part-time reporter) or originates the call during a program during which the station customarily broadcasts the calls. For additional information on the rule concerning the broadcast of telephone conversations, see http://www.fcc.gov/eb/broadcast/telphon.html.