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The FCC is barred by law from trying to prevent the broadcast of any point of view. The Communications Act prohibits the FCC from censoring broadcast material, in most cases, and from making any regulation that would interfere with freedom of speech. Expressions of views that do not involve a "clear and present danger of serious substantive evil" come under the protection of the Constitution, which guarantees freedom of speech and freedom of the press. The FCC cannot suppress such expressions. According to an FCC opinion on this subject, "the public interest is best served by permitting free expression of views." This principle ensures that the most diverse and opposing opinions will be expressed, even though some may be highly offensive. However, the Commission does have enforcement responsibilities in certain limited instances.

For example, the Courts have said that indecent material is protected by the First Amendment to the Constitution and cannot be banned entirely. It may be restricted, however, in order to avoid its broadcast when there is a reasonable risk that children may be in the audience. Between 6 am and 10 pm - when there is the greatest likelihood that children may be watching - indecent material is prohibited by FCC rules. Broadcasters are required to schedule their programming accordingly or face enforcement action. Similarly, the Commission has stated that profane material is prohibited between 6 AM - 10 PM

Additionally, the Courts have said that obscene material is not protected by the First Amendment and cannot be broadcast at any time.

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There is expression, either spoken or portrayed, which is offensive to some but is not within the constitutional standards of unprotected obscenity. Nudity portrayed in films or stills cannot be presumed obscene 58 nor can offensive language ordinarily be punished simply because it offends someone. 59 Nonetheless, govern ment may regulate sexually explicit but non-obscene expression in a variety of ways. Legitimate governmental interests may be furthered by appropriately narrow regulation, and the Court's view of how narrow regulation must be is apparently influenced not only by its view of the strength of the government's interest in regulation, but also by its view of the importance of the expression itself. In other words, sexually explicit expression does not receive the same degree of protection afforded purely political speech. 60

Government has a ''compelling'' interest in the protection of children from seeing or hearing indecent material, but total bans applicable to adults and children alike are constitutionally suspect. 61 Also, government may take notice of objective conditions attributable to the commercialization of sexually explicit but non- obscene materials. Thus, the Court recognized a municipality's authority to zone land to prevent deterioration of urban areas, upholding an ordinance providing that ''adult theaters'' showing motion pictures that depicted ''specified sexual activities'' or ''specified anatomical areas'' could not be located within 100 feet of any two other establishments included within the ordinance or within 500 feet of a residential area. 62 Similarly, an adult bookstore is subject to closure as a public nuisance if it is being used as a place for prostitution and illegal sexual activities, since the closure ''was directed at unlawful conduct having nothing to do with books or other expressive activity.'' 63 However, a city was held constitutionally powerless to prohibit drive-in motion picture theaters from showing films containing nudity if the screen is visible from a public street or place. 64 Also, the FCC was unable to justify a ban on transmission of ''indecent'' but not obscene telephone messages.

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In recent years, the Court's treatment of ''commercial speech'' has undergone a transformation, from total nonprotection under the First Amendment to qualified protection. The conclusion that expression proposing a commercial transaction is a different order of speech was arrived at almost casually in Val entine v. Chrestensen, 1 in which the Court upheld a city ordinance prohibiting distribution on the street of ''commercial and business advertising matter,'' as applied to an exhibitor of a submarine who distributed leaflets describing his submarine on one side and on the other side protesting the city's refusal of certain docking facilities. The doctrine was in any event limited to promotion of commercial activities; the fact that expression was disseminated for profit or through commercial channels did not expose it to any greater regulation than if it were offered for free. 2 The doctrine lasted in this form for more than twenty years.

''Commercial speech,'' the Court has held, is protected ''from unwarranted governmental regulation,'' although its nature makes such communication subject to greater limitations than can be imposed on expression not solely related to the economic interests of the speaker and its audience. 3 Overturning of this exception in free expression doctrine was accomplished within a brief span of time in which the Justices haltingly but then decisively moved to a new position. Reasserting the doctrine at first in a narrow five-to-four decision, the Court sustained the application of a city's ban on employment discrimination to bar sex-designated employment advertising in a newspaper. 4 Granting that speech does not lose its constitutional protection simply because it appears in a commercial context, Justice Powell, for the Court, found the placing of want-ads in newspapers to be ''classic examples of commercial speech,'' devoid of expressions of opinions with respect to issues of social policy; the ad ''did no more than propose a commercial transaction.'' But the Justice also noted that employment discrimination, which was facilitated by the advertisements, was itself illegal.

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Several Court holdings do firmly point to the conclusion that the press clause does not confer on the press the power to compel government to furnish information or to give the press access to information that the public generally does not have. 34 Nor in many respects is the press entitled to treatment different in kind than the treatment any other member of the public may be subjected to. 35 ''Generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects.'' 36 Yet, it does seem clear that to some extent the press, because of the role it plays in keeping the public informed and in the dissemination of news and information, is entitled to particular if not special deference that others are not similarly entitled to, that its role constitutionally entitles it to governmental ''sensitivity,'' to use Justice Stewart's word. 37 What difference such a recognized ''sensitivity'' might make in deciding cases is difficult to say.

The most interesting possibility lies in the area of First Amendment protection of good faith defamation. 38 Justice Stewart argued that the Sullivan privilege is exclusively a free press right, denying that the ''constitutional theory of free speech gives an individual any immunity from liability for libel or slander.'' 39 To be sure, in all the cases to date that the Supreme Court has resolved, the defendant has been, in some manner, of the press, 40 but the Court's decision that corporations are entitled to assert First Amendment speech guarantees against federal and, through the Fourteenth Amendment, state regulations causes the evaporation of the supposed ''conflict'' between speech clause protection of individuals only and of press clause protection of press corporations as well as of press individuals. 41 The issue, the Court wrote, was not what constitutional rights corporations have but whether the speech which is being restricted is expression that the First Amendment protects because of its societal significance. Because the speech concerned the enunciation of views on the conduct of governmental affairs, it was protected regardless of its source; while the First Amendment protects and fosters individual self- expression as a worthy goal, it also and as important affords the public access to discussion, debate, and the dissemination of information and ideas. Despite Bellotti's emphasis upon the nature of the contested speech being political, it is clear that the same principle, the right of the public to receive information, governs nonpolitical, corporate speech.

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Access to Station Facilities. Stations are not required to broadcast everything that is offered or suggested to them. Except as required by the Communications Act and our rules concerning personal attacks, political editorials, and the use of stations by candidates for public office (which are discussed later in this manual), stations have no obligation to have any particular person participate in a broadcast or to present that person's remarks. Further, no federal law or rule requires stations to broadcast "public service announcements" of any kind.

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Children's Television Programming. Throughout its license term, every TV station must serve the educational and informational needs of children both through its overall programming, and through programming that is specifically designed to serve those needs.

* Educational and Informational. We consider programming to be educational and informational if it in any respect furthers 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 educational and information needs of children" if: (1) that is its significant purpose; (2) it is aired between the hours of 7:00 a.m. and 10:00 p.m.; (3) it is a regularly scheduled weekly program; and (4) it is at least 30 minutes in length.

Commercial TV stations must identify programs specifically designed to educate and inform children at the beginning of the program, in a form left to their discretion, and must provide information identifying such programs to publishers of program guides. Additionally, in 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.

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FCC Regulation of Broadcast Radio and Television. The FCC allocates new stations based both on the relative needs of communities for additional broadcast outlets and on engineering standards that prevent interference between stations. Whenever we look at an application -- whether to build, modify, renew or sell a station -- we must determine if granting it would serve the public interest. This is required by the Communications Act. We expect stations to be aware of the important problems or issues in their communities and to foster public understanding by presenting some programs and/or announcements about local issues. However, broadcasters -- not the FCC or any other government agency -- are responsible for selecting all the material they air. The Communications Act prohibits us from censoring broadcast matter and, therefore, our role in overseeing the content of programming is very limited. We are authorized to fine a station or revoke its license if it has, among other things, aired obscene language, broadcast indecent language when children are likely to be in the audience, broadcast some types of lottery information, or solicited money under false pretenses.

Broadcast television stations and other types of TV channels (such as cable TV) are very different. Cable TV channels are available only by subscription and cannot be received over the air, and they are subject to different FCC rules than broadcast stations. Generally, this manual relates only to broadcast TV and radio stations. Please keep in mind that even if you can get a broadcast TV station on your cable system, it is still regulated as a broadcast station.

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Posts: 26071 | Registered: Oct 2003  |  IP: Logged |