Which of the following media forms is the Federal Communications Commission able to regulate content?

1 This article treats of issues arising from American media control in general and official programming regulatory policies in particular. Emphasis is placed on broadcast media and it is proposed that disparities in policymaking correspond to differences in media type. To this end, certain points will require a brief review, such as the need for regulation in the first instance?arising from issues relevant to programming content according to a) metrics of social acceptability (violence, obscenity, etc.) and b) political content?as well as an historical analysis of the extent and limits of regulation in this field. Upon close inspection, there emerges a pattern of regulatory inconsistencies which were used to justify a trend towards deregulation in some areas in the 1980s, but which have recently evolved into a tightening of government media control in others. The suggestion is raised that there exists a logic to these seemingly conflicting rulings, consistent with media analyst Harold Innis? observations dating from the dawn of the television era demonstrating parallels between the psychological impact of writing and that of electronic visual media. [1] This paper proposes, accordingly, that disparities in regulation, as well as erratic policy changes in regulatory extent, tend to allow visual media?with the understanding that this refers to the institution of the press as well'greater freedom than other forms of expression.

2 The need for electronic broadcast regulation originally arose for almost purely technical reasons. Problems stemming from the interference of simultaneous broadcast emissions, for instance, were resolved by assigning specific broadcast frequencies to radio and television transmitters in order to reduce signal noise and poor reception quality.

3 In 1934, the Communications Act created the Federal Communications Commission (FCC), an agency empowered to regulate interstate and foreign communications by wire and radio ?in the public interest??which is to say, the public?s interest in clear signal reception, with FCC regulations chiefly designed to impose order on the use of broadcasting frequencies. The FCC was given additional regulatory jurisdiction under the provisions of the Communications Satellite Act of 1962, and, at present, the scope of its powers includes radio and television broadcasting, as well as telephone, telegraph, and cable television operation, two-way radio and radio operators, satellite communication and the Internet.

4 But technical reasons apart, a need for regulation was perceived in programming content as well. In the area of American television ?family viewing?, for example, in steady growth since the mid-fifties, content came to be noted for particular patterns of violence which, according to some analysts, seemed to mask an ideological subtext. Using personality differential scales to identify the key differences between violent and non-violent characters, between heroes and villains, and between killers and killed, George Gerbner stated: ?Crude as they are, these patterns begin to lay bare some assumptions cultivated in these message systems.? [2] Among the underlying assumptions Gerbner found was a direct correlation between violence and efficiency:

Violence does not mar, nor non-violence improve, the attractiveness of the hero [?] Cool efficiency, and, to a lesser extent, manliness and youth, appear to be the chief correlates of success and virtue in a fairly impersonal, self-seeking and specialized structure of violent action. [3]

5 With reference to television?s effects on children, certain of Gerbner?s findings were particularly disturbing. In a later TV-effects study, he demonstrated that schoolchildren who watch more television are also more likely to exhibit violence-related fears. In his words, they are: ??more likely to mistrust people and believe that others ?mostly just look out for themselves.?? He adds that one correlate of television viewing is ?a heightened and unequal sense of danger and risk in a mean and selfish world.? [4]

6 In terms of such ?social messaging?, media analysts concerned with television?s effects on the viewer began raising questions with regard to the medium?s subtle cultural and perceptual effects. ?The TV image,? concluded Marshall McLuhan in Understanding Media: The Extensions of Man, ?is an extension of the sense of touch.? [5] As a consequence, he argued, the viewer is drawn by the medium?s immediacy into a total involvement in its contents. Hence, regardless of programming quality?which is to say, regardless of the socio-cultural status or acceptability of the message conveyed?viewers become totally immersed in the TV viewing experience: ?This change of attitude has nothing to do with programming in any way, and would be the same if the programs consisted entirely of the highest cultural content.? [6] Implicit in the argument that attitude change invariably ?would be the same?, however, was the understanding that programs have tended not to consist ?entirely of the highest cultural content.?

7 Efforts have been made, meanwhile, at controlling media content and, by extension, the potential for audience manipulation, but they have been haphazard at best. Apart from issues of violence and attendant psycho-sociological messaging, there is the problem of the excessive commercialization of children?s television programming and here, FCC regulation policy has been largely ineffectual. In the 1970s, Action for Children?s Television (ACT) and other activist groups?in the wake of the widespread social engagements which marked the sixties?prodded the FCC to assume a committed interventionist role with regard to children?s issues in general. Adopting a policy statement in 1974 emphasizing, ?Broadcasters have a special obligation to serve children,? the FCC took steps against programming violence and advertising which targeted the heightened purchasing power of children born to the newly-affluent generation of baby boomers. The Commission

began a process of pressuring the industry to adopt codes regulating some of the worst excesses of children?s advertising, to tone down the ?violence? of the cartoons, and to introduce throughout the week a greater variety of educational and informational programs directed at specific age groups rather than vague masses of children two to eleven years old. [7]

8 It should be noted, however, that these events took place during the politically liberal Carter administration which ended in 1979. Since FCC commissioners are, with approval from the Senate, appointed by the President and predictably follow a particular administration?s policies, the networks did not wait for FCC decisions to begin officially corresponding to President Ronald Reagan?s conservative political agenda. As soon as the direction of the FCC became clear under Reagan appointee Mark Fowler, they began getting rid of children?s programs. [9] An FCC study showed that from 1979 to 1983 the average time commercial stations allotted to children?s programming dropped from 11.3 to 4.4 hours a week, and the after-school time slot was left without a single regularly scheduled network children?s series. And by the end of 1983, under President Reagan?s deregulation efforts, the FCC had lifted its children?s policy guidelines from 1974. In 1984, TV stations were given permission to air as many commercial minutes in a given time period as they chose to, a ruling which, in effect, sanctioned the program-length commercial (?cartoon series? featuring such characters as Ronald McDonald and various Nintendo figures).

9 More recently, the political pendulum has swung again in the opposite direction and a major attempt has been made to put restrictions on violence content back in place. In section 551(a) of the Telecommunications Act of 1996, otherwise known as the Communications Decency Act (CDA)?signed into law by politically liberal President Clinton in February 1996 only to be declared unconstitutional for reasons of ?vagueness? by the Reagan-Bush appointed conservative Supreme Court majority in June 1997?congressional findings corroborated links between the child?s exposure to violent video programming and ?aggressive behavior later in life.? [10] Under the CDA, the burden was to be put on both the program distributor and the television manufacturer to further protect viewers from material which may be offensive by requiring that a device be installed in television sets which blocks such programming. [11] This blocking feature is commonly known as the ?V-chip? (the ?V? stands for ?violence?) and would function by pre-screening a rating which will be programmed into the show?s video signal. In this instance, at least in principle, it is a coalition of distributors of programs and modern technology and not a coercive centralized group of censors which would alert parents to the potential harm to younger viewers. The choice now being that of the parents as to whether or not to allow their children to watch. It should be noted that a program classification system, similar to that of the motion picture industry, would be imposed by the FCC should the National Broadcasters Association not do so within three years?effectively diminishing the need for the V-chip by placing the screening burden on TV producers.

10 The possibility of informed individual viewer choice becomes radically curtailed, one should add, with reference to the more subtle commercial aspects of programming. It is difficult to argue, for example, that the nature of the links between the selling of a product and viewer response is necessarily harmful. Particularly where certain benefits associated with aggressive economic policies are in evidence. Hence, in accordance with the dictates of ?Reaganomics?, FCC policy restrictions were lifted in the area of the abusive use of media for product merchandising more than a decade ago?a situation which remains unchanged to this day. America, as television audience ranging from child to adult, has thus come to be redefined from a community of individuals with shared values to a ?market? comprising people whose shared characteristic is that they are all ?consumers? of television output. And from this standpoint, children, however relatively large their purchasing power, represent a smaller market than adults.

11 A distinction has to be made, however, between the merchandising of toys and the merchandising of ideas. Referring to this ?marketing mentality,? David McQuail says:

We do not normally regard the recipients of communication in other contexts in this way: the people we talk to are not ?consumers? of our words, children are not a market for their lessons, employees of an organization are not consumers of organizational messages, nor are voters a market for the appeals of political leaders. [12]

They?re fools, in fact. Even in their choice of pictures they betray uncertainty about what they?re really after. That?s because they don?t know what they?re after. Their product is amorphous?it has to be amorphous?because so are they. [13]

12 Thus, to the extent political personalities and viewpoints can be regarded as ?products?, product merchandising deregulation lends itself easily to heightened audience manipulation and the need for regulation in the airing of political viewpoints, despite First Amendment protections, becomes apparent. But, in terms of overt forms of political persuasion, such as campaign messaging, FCC policy has undergone curious transformations, particularly in response to Supreme Court decisions. By the 1960s, television had established itself in the American home and with it a streamlined, hence necessarily selective, form of mass information dispersal. Excesses in other areas of programming prompted chairman Newton Minow of the FCC, in specific response to the quiz show scandal of 1959 and the subsequent damage to the networks? public image, to describe television as a ?vast wasteland?a procession of game shows ? mayhem, violence, sadism, murder, and, endlessly, commercials?many screaming, cajoling and offending,? warning that the license renewal process for broadcasters would be treated more seriously. [14]

13 Despite an overt targeting of message content, which in the domain of press writing would certainly raise First Amendment issues, the need for licensing could here go fairly unquestioned?consistent with the original perception of broadcast media regulation as justifiable for reasons of transmission technicalities. The response was thus to render TV programming more ?serious? by expanding news reportage and collaterally bringing electronic media content a step closer to the constitutionally protected status the journalistic press had traditionally enjoyed. Thus, as described by Daniel Hallin, the evening news began this ?legitimization? process in September 1963 when CBS and NBC expanded their news broadcasts from fifteen minutes to half an hour with ABC following in 1967:

In this atmosphere, the expanded evening news, along with a new commitment to live public affairs programming and documentaries, gave the networks a claim to offering something more than a technological advancement for merchandising. It made them a part of the fourth estate, or as modern journalism is sometimes called, the ?fourth branch of government?. It associated them with the prestige of the state, each of the new half-hour shows inaugurated with an interview with President Kennedy. At the same time, reflecting the ambivalent political heritages of American journalism, it associated them with the tradition of the press as a defender of the public against the state, hence an institution protected by the First Amendment against government interference. [15]

14 In Red Lion Broadcasting Co. v. FCC, for example, the Supreme Court sustained the constitutionality of the ?fairness doctrine?. The Red Lion case involved a small radio station in rural Pennsylvania which in 1969 aired a number of vitriolic attacks by conservative preacher Billy Saul Hargis on journalist Fred Cook. Aided by the Democratic National Committee, Cook convinced the FCC that he was entitled to free airtime to respond. [16]

15 However, in Columbia Broadcasting System v. Democratic National Committee, a case which originated with complaints filed before the FCC in 1970 by the Democratic National Committee and an anti-war group challenging certain broadcasters? policies of refusing all editorial advertisements, the Supreme Court upheld the broadcasters? right to control the content of their programs. In this case, the broadcaster was not a small, rural radio station but the Columbia Broadcasting System?otherwise known as CBS?one of the three major national television networks. [17] In a landmark decision involving the print medium, meanwhile, the same Supreme Court again held unconstitutional Florida?s ?right of reply? law in Miami Herald v. Tornillo (1974) and rejected efforts to justify it on the basis of a First Amendment ?right of access?.

16 Different analyses were employed to explain these disparities. Public accessibility to the print medium is allegedly easier than that afforded by the airwaves, it was argued. By extension, greater government control is essential for preventing abusive use of more restricted radio and television resources. In the Red Lion case, Justice White?s opinion for the unanimous Court maintained, ?Differences in the characteristics of news media justify differences in the First Amendment standards applied to them.? [18] Where radio and television are concerned, it appears the Court did not hesitate to use scarcity of financial and technological resources as a rationale for interpreting First Amendment ?rights? in such a way as to exclude uninhibited access?an argument which has consistently been used to justify the ?fairness doctrine?. The distinction, hence, between the rights of ?access? and ?reply? was thus resolved in terms of economic efficiency: ?Where there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish.? [19]

17 However, with reference to newspapers and other print media, advocates of facility of access underscored the concentration of power in the newspaper business and the shrinking number of newspapers. The claim is that the public has consequently lost its ability to contribute meaningfully to public debate, noting the disappearance of real opportunity to form competing newspapers by dissidents. In Miami Herald, Chief Justice Burger concurred with these views in part, citing the near impossibility of ?entry into the marketplace of ideas? due to high publishing costs:

The obvious solution, which was available to dissidents at an earlier time when entry into publishing was relatively inexpensive, today would be to have additional newspapers. But the same economic factors which have caused the disappearance of vast numbers of metropolitan newspapers, have made entry into the marketplace of ideas served by the print media almost impossible. [20]

18 Plainly, the difference in standard is problematic, particularly when the supporting claims in each case fail to correspond to one another. There exists a possible, if controversial, explanation, and it resides in a tradition of privilege and restriction of access to power in America?the Red Lion Broadcasting Company is an obscure Pennsylvania radio station, CBS is, on the other hand, a multi-billion dollar national level TV network. Still, media ?size? appears somewhat unreliable as a variable since, for example, the Pacifica Broadcasting Foundation is nationwide?with listener-supported FM radio affiliates in every major American city?whereas the Miami Herald?s circulation is fairly limited to the state of Florida. [22]

19 It may be argued that certain inequalities have been reduced to an extent due to the official revocation of the ?fairness doctrine?. It should be noted, however, that there is a distinction between the doctrine as official FCC policy and the doctrine?s de facto application by the FCC, often under a different name. With the exception of the ?equal time? provision given to major political parties during presidential campaigns, the fairness doctrine no longer exists in its original form as of 1987?both small and major broadcasters have full control over broadcast content. A diluted form of the fairness doctrine does survive, meanwhile, in the area of station ownership. Although the FCC has concluded that ?the growth of traditional broadcast facilities? and ?the development of new electronic information technologies? have rendered ?the fairness doctrine unnecessary,? [23] the FCC has not made such a finding with respect to its minority ownership policies. The FCC has, in fact, expressly noted that its decision to abrogate the fairness doctrine does not in its view call into question its ?regulations designed to prompt diversity.? [24]

20 The guarantee of access to media thus appears to have shifted from standards based on message content to standards structured around financial ability and ?ownership?. For example, the FCC?s minority ownership policy has been referred to as the ?distress sale? policy. A ?distress sale? usually means that, owing to the so-called ?distress? resulting from financial or legal pressure, someone is coerced into selling his property at a lower price than usual. In this case, the FCC allows a radio or television broadcaster whose qualifications to hold a license have come into question to ?transfer that license before the FCC resolves the matter? in a hearing, but only if the transferee ?is a minority enterprise that meets certain requirements.? [25] The FCC argued that minority ownership appears to have specific impact on the presentation of minority images in local news ?inasmuch as minority-owned stations tend to devote more news time to topics of minority interest and to avoid racial and ethnic stereotypes in portraying minorities.? [26]

21 Although this policy appears to perpetuate ?fairness? interests on its face, certain inequalities are unavoidable in practice. A ?distress sale? permits the purchase, at an attractive offer, of a broadcast facility by a minority enterprise. At least in principle. However, even at a reduced figure, the cost involved in a ?distress sale? is nevertheless still beyond the reach of most minorities in the U.S., where the number of ?minority enterprises? is disproportionately small relative to the population of, for example, Latino and African Americans. Also, as noted in Metro Broadcasting v. FCC, such sales are highly unusual:

Even for troubled licensees, distress sales are relatively rare phenomena; most stations presented with the possibility of license revocation opt not to utilize the distress sale policy. Many seek and are granted special relief from the FCC enabling them to transfer the license to another concern as part of a negotiated settlement with the Commission. [27]

22 Fairness doctrine questions appear to have resurfaced in the much more expensive medium of cable television?with rather different results?under the constitutionally-questionable new form of the so-called ?must carry? regulations. These regulations, part of the Cable Television Consumer Protection and Competition Act of 1992, require operators of cable systems to carry local broadcast stations (both commercial and non-commercial) without charge to consumers. The number of broadcast signals that cable operators are required to carry under the regulations varies, but can be up to one third of the channels offered by the cable operator. The rationale for the must-carry regulations is an effort by Congress to ?preserve the competitive viability of broadcast stations, particularly local ones, in the face of a perceived competitive advantage by cable operators, most of whom have a monopoly in their markets.? [28] The cable operators challenged the must-carry regulations on First Amendment grounds, but in the 1994 case Turner Broadcasting System, Inc. v. FCC, the Court did not make a final decision on the constitutionality of the must-carry rules. [29] In the opinion of the conservative Reagan appointee Justice Sandra J. O?Connor, the link between must-carry rules and programming content regulation is unmistakable and she concludes that they are ?an impermissible restraint on the cable operators? editorial discretion as well as on the cable programmers? speech.? [30] The tendency towards a lifting of regulations thus appears clear in this case.

23 Overall, the preceding cases illustrate how the First Amendment can be invoked with equal impunity both by deregulation and regulation advocates. The point may be raised that moves towards editorial restriction have generally taken place during Democratic administrations, blossoming during the Kennedy-Johnson era, re-surging in response to children?s programming issues chiefly during the Carter administration, and most recently the Cable Television Consumer Protection and Competition Act of 1992 and the Telecommunications Act of 1996 under Clinton. The lifting of restrictions, including the ?official' demise of the fairness doctrine occurred principally during the Reagan-Bush period. But this argument fails to explain why the Red Lion pro-regulatory decision favoring the Democratic National Committee?s position was reached during the Republican Nixon administration. Nor does it explain the politically conservative censorship movement with reference to rock music lyrics, nor Democratic Vice-President Al Gore?s wife?s campaign against violence and sexism in music-messaging, thus suggesting there must be other factors to consider beyond the lines of strict party loyalty.

24 A more consistent pattern does surface in another area. Having in principle resolved the Red Lion and Columbia Broadcasting System irregularities, the only partial termination of the fairness doctrine appears to coincide with the relationship of FCC regulations and Supreme Court decisions to a) media type, and b) content. With reference to regulations according to medium, the following correspondences emerge. The Red Lion case, which upheld restrictions on editorial freedom, involved a radio station, as did the landmark case of FCC v. Pacifica Foundation, whereas both Miami Herald and Columbia Broadcasting System, which rejected analogous requirements, and Turner Broadcasting System, which established a constitutional ?content basis? framework inimical to editorial restrictions, involve visual media. Therefore, it would appear that media which are more expensive, and by extension less accessible to the average citizen, are generally deregulated, whereas more affordable and accessible media such as radio are under stricter government control.

25 There exists yet another far more subtle distinction, this time arising from the very modality of information conveyance and its potential for influence, if not outright manipulation, on the viewing or listening audience. According to Professor Bernard J. Hibbetts of the University of Pennsylvania Law School, American society traditionally negotiates power both overtly and subliminally in terms of the written word?a predisposition which has extended itself to other visual technologies:

Contemporary America is heir to both the technology and the sensory bias of the recent past [?] the United States is still one of the most print-saturated and print-oriented nations on earth. Our continued cultural dependence on the written word undergirds our own visuality [?] that today is supported [?] by such new ?visual' technologies as motion pictures, television, and computers. [31]

26 Possible correspondences between disparities in regulations according to media type and regulations according to content emerge in the recent attempt to criminalize the use of any computer network to display ?indecent? material. On February 8, 1996, President Clinton signed into law the Communications Decency Act which targets the display of obscene material unless the content provider uses an ?effective? method to restrict access to that material to anyone under the age of 18. On June 26, 1997, the Supreme Court held that the ?vagueness? and ?overbreadth? of two provisions in the CDA, those referring to ?indecent transmission? and ?patently offensive display? abridge the ?freedom of speech? protected by the First Amendment. [33] Since there appears to be a growing counter-offensive aimed at refining some of the objectionable terms of the Act, a detailed review of some of its implications is in order.

27 A controversial feature of this Act is that the line between what is morally unacceptable and what is politically unacceptable is blurred. The FCC has never issued general rules describing which factors will result in material being considered ?patently offensive? or ?indecent?. At least three judges of the District of Columbia Circuit Court of Appeals believe that under the FCC?s indecency standard, ?affected speech could include programs on the AIDS epidemic, abortion, childbirth, or practically any aspect of human sexuality.? This would thus have the effect of incorporating the political agenda of anti-abortion and anti-gay lobbyists into the sphere of vulgar language use.

28 Another feature of this bill is that although obscenity and obscenity-linked political messaging would be stifled, there would occur a corresponding disincentive for responsible electronic bulletin board system (BBS) operators from screening the boards for ?hate speech? directed against religious, racial and ethnic minorities??hate speech? often generated by the same groups which favor the imposition of ?decency? regulations. House Rule 1978, also known as the Internet Freedom and Family Empowerment Act, a 1995 measure limiting FCC prosecution only to Internet broadcasters who exercise control over message content, was described by Senator Leahy during Senate arguments as exempting ?those who exercise no editorial control over content.? [34]

29 This rule was later incorporated into the Communications Decency Act. However, the issue of the disincentive to responsible screening was overlooked or ignored by the President. In light of this, one should take note of Clinton?s animosity towards right-wing radio personality Rush Limbaugh and the President?s active support of the ?Hush Rush? movement, the aim of which is to quell Limbaugh?s brand of ?hate speech??which, coincidentally, often features Hillary and Bill Clinton?s alleged involvement in sexual and business corruption scandals. Again, the medium targeted is radio.

30 In conclusion, the correspondences between regulation, content and media type thus seem to be as follows: editorial restrictions on morally unacceptable content are in place across the entire media spectrum; in the area of political messaging, controls are generally either already in place or on the rise in the more widely accessible medium of radio, whereas more economically restrictive visual media are protected from FCC interference?unless, that is, a nexus can be established between a particular moral standard and politically ?non-mainstream? viewpoints such as those favoring abortion or civil rights for gays. By extension, the narrowly defeated attempt to enforce the CDA reveals a direct relationship between general mass accessibility of media and governmental push towards regulation.

31 There is evidence, therefore, for an isomorphic correspondence between government protection of various First Amendment freedoms and visual/aural modalities of communication, but a complete explanation lies beyond the scope of a treatment as brief as this. In Professor Hibbetts? analysis, what he terms social ?survival' is hinged less on visual information transmission than on ?performance? communication?information transmitted by engaging the entire human sensory apparatus:

[?] the secret of social survival is memory. Information must be remembered by the individuals who hear, see, feel, or savor it, so that they can retell it or recreate it later, and thereby pass it on to others and to the next generation [?] every medium implicated becomes a hook from which the thread of memory can hang [?] each additional medium employed in the transmission of important cultural or legal information serves as additional insurance that the information will survive. [35]

Media that emphasize time are those that are durable in character, such as parchment, clay, and stone [?] Media that emphasize space are apt to be less durable and light in character, such as papyrus and paper [?] Materials that emphasize time favor decentralization and hierarchical types of institutions, while those that emphasize space favor centralization and systems of government less hierarchical in character. Large scale political organizations such as empires must be considered from the standpoint of two dimensions, those of time and space, and persist by overcoming the bias of media which overemphasize either dimension. [36]