United States Federal Communications Commission, created by an act
of Congress on 19 June 1934, merged the administrative responsibilities
for regulating broadcasting and wired communications under the rubric
of one agency. Created during "The New Deal" with the blessings
of President Franklin D. Roosevelt, the commission was given broad
latitude to establish "a rapid, efficient, Nation-wide, and world-wide
wire and radio communication service." On 11 July 1934 seven commissioners
and 233 federal employees began the task of merging rules and procedures
from the Federal Radio Commission, the Interstate Commerce Commission
and the Postmaster General into one agency. The agency was organized
into three divisions: Broadcast, Telegraph, and Telephone. Today,
the agency employs approximately 1900 people and has extensive oversight
responsibilities in new communications technologies such as satellite,
microwave, and private radio communications.
Act of 1934 and Organization of the FCC
The Federal Communications Commission is an independent regulatory
government agency. It derives its powers to regulate various segments
of the communications industries through the Communications Act
of 1934. Congress appropriates money to fund the agency and its
activities, though recently the FCC raised revenues through an auction
process for non-broadcast frequency spectrum. The Act enumerates
the powers and responsibilities of the agency and its commissioners.
Government radio stations are exempt from FCC jurisdiction. The
Communications Act is divided into titles and sections which describe
various powers and concerns of the commission.
I describes the administration, formation, and powers of the Federal
Communications Commission. The 1934 Act called for a commission
consisting of seven members, reduced to five in 1983, appointed
by the President and approved by Senate. The President designates
one member to serve as chairman. The chairman sets the agenda for
the agency and appoints bureau and department heads. Commissioners
serve for a period of five years. The President cannot appoint more
than three members of one political party to the commission. Title
I empowers the commission to create divisions or bureaus responsible
for various specific work assigned.
II concerns common carrier regulation. Common carriers are communication
companies that provide facilities for transmission but do not originate
messages, such as telephone and microwave providers. The Act limits
FCC regulation to interstate and international common carriers,
Title III of the Act deals with broadcast station requirements.
Many determinations regarding broadcasting regulations were made
prior to 1934 by the Federal Radio commission, and most provisions
of the Radio Act of 1927 were subsumed into Title III of the 1934
Communications Act. Sections 303-307 define many of the powers given
to the commission with respect to broadcasting. Other sections define
limitations placed upon the commission. For example, section 326
within Title III prevents the commission from exercising censorship
over broadcast stations. Provisions in the U.S. code also link to
the Communications Act; for example, 18 U.S.C. 464 bars individuals
from uttering obscene or indecent language over a broadcast station.
And, section 315, the Equal Time Rule, requires broadcasters to
afford equal opportunity to candidates seeking political office,
and formally included provisions for rebuttal of controversial viewpoints
under the contested Fairness Doctrine.
IV and V deal with judicial review and enforcement of the Act. Title
VI describes miscellaneous provisions of the Act including amendments
to the Act, and the emergency war powers of the President. Title
VI extends FCC power to regulate cable television.
1934 Act has been considerably ammended since its passage. Many
of the alterations have been in response to the numerous technical
changes in communications that have taken place during the FCC's
history, including the introduction of television, satellite and
microwave communications, cable television, cellular telephone,
and PCS (personal communications) services. As a result of these
and other developments, new responsibilities have been added to
the commissions charge. The Communications Satellite Act of 1962,
for example, gave the FCC new authority for satellite regulation
and the recent passage of the Cable Act of 1992 required similar
revisions to the 1934 Act. But the flexibility incorporated into
the general provisions has allowed the agency to survived for sixty
years. Though the FCC responsibilities have broadened to include
supervision of these new technologies, it now shares regulatory
power with other federal, executive and judicial agencies.
FCC does have broad oversight over all broadcasting regulation.
The FCC can license operators of various services and has recently
used auctions as a means of determining who would be awarded licenses
for personal communications services. The commission enforces various
requirements for wire and wireless communication through the promulgation
of rules and regulations. Major issues can come before the entire
commission at monthly meetings; less important issues are "circulated"
among commissioners for action. Individuals or parties of interest
can challenge the legitimacy of the regulations without affecting
the validity or constitutionality of the act itself. The language
of the act is general enough to serve as a framework for the commission
to promulgate new rules and regulations related to a wide variety
of technologies and services. Though the agency has broad discretion
to determine areas of interest and regulatory concern, the court,
in Quincy Cable TV, Inc. v. FCC, reminded the FCC of its
requirements to issue rules based on supportable facts and knowledge
more efficiently carry out all its tasks, the commission is divided
into several branches and divisions. The Mass Media Bureau oversees
licensing and regulation of broadcasting services. Common Carrier
Bureau handles interstate communications service providers. The
Cable Bureau oversees rates and competition provisions of the cable
act of 1992. The Private Radio Bureau regulates microwave and land
mobile services. Several offices within the FCC support the four
bureaus. The Field Operations Bureau carries out enforcement, engineering
and public outreach programs for the commission. The Office of Engineering
and Technology provides engineering expertise and knowledge to the
commission and tests equipment for compliance with FCC standards.
The Office of Plans and Policy acts like the commission think tank.
The Fcc and Broadcasting
differ on whether the FCC has used its powers to enforce provisions
of the Communications Act wisely. Among the broad responsibilities
placed with the FCC under section 303 are the power to classify
stations and prescribe services, assign frequencies and power, approve
equipment and mandate standards for levels of interference, make
regulations for stations with network affiliations, prescribe qualifications
for station owners and operators, levy fines and forfeitures, and
issue cease and desist orders.
most important powers granted to the commission are powers to license,
short-license, withhold, fine, revoke or renew broadcast licenses
and construction permits. These powers are based on the commission's
own evaluation of whether the station has served in the public interest.
Much of the debate over the FCC's wisdom, then, has focused on the
determination of what constitutes fulfillment of a broadcast licensee's
responsibilities under the "public interest, convenience and necessity"
standard. Definitions and applications of this standard have varied
considerably depending upon the composition of the commission and
the mandates given by Congress. Though the FCC can wield the life-or-death
sword of license revocation as a means of enforcing the standard,
the commission has rarely used this power in its 60 year history.
critics of the Federal Communications Commission argue that it has
been too friendly and eager to serve the needs of large broadcast
interests. Early FCC proceedings, for example, illustrate a pattern
of favoring business over educational or community interests in
license proceedings. But other scholars point to FCC actions against
big broadcast interests by promulgating Duopoly, Prime-Time Access
Rules (PTARs), and Syndication and Financial Interest Rules, all
aimed at reducing the influence of large multiple license owners.
commission has restated the public interest requirements numerous
times over its sixty year history. The Blue Book, The 1960 Programming
Policy Statement, and Policy Statement Concerning Comparative Hearing
were examples of FCC attempts to provide licensees with guidance
as to what constituted adequate public service. Today, the FCC's
reliance on "marketplace forces" to create competitive programming
options for viewers and listeners reflects beliefs that economic
competition is preferable to behavioral regulation in the broadcast
over its sixty year history, FCC decision making is generally seen
as ad hoc. Frequent reversals of policymaking can be seen
in commission decisions as the economic and technical conditions
warranted changes in regulatory policy. Before the present era of
deregulation, the FCC had promulgated extremely complex and detailed
technical and operating rules and regulations for broadcasters,
but it also gave licensees great latitude to determine what constituted
service in the public interest based on local needs under its Ascertainment
Policy. Once a station was licensed, the operator was required to
monitor the technical, operational and programming aspects of the
station. Files on all aspects of station operations had to be kept
for several years. Today, under the general guidance of the "market,"
filing and renewal requirements for broadcasters are greatly reduced.
However, when two or more applicants compete for the same license
or when a Petition to Deny challenge is mounted, the commission
makes a determination as to which of the competing applicants is
best qualified to own and operate the broadcasting facility. Hearings
follow strict procedures to ensure that the applicants' rights under
the law are fully protected, and as a result the adjudicative process
can be lengthy and cost applicants thousands of dollars in legal
on "the marketplace rationale" began under Chairman Charles D. Ferris
(1977-81), when the FCC embraced a new perspective on regulation
and began licensing thousands of new stations in an effort to replace
behavioral regulation with the forces of competition. Chairman Mark
Fowler (1981-1987) endorsed the marketplace model even more willingly
than his predecessor. Yet, despite the flood of new stations, the
Scarcity Rationale, based on limitations of the electromagnetic
spectrum, remains a primary premise for government regulation over
licensees do not enjoy the same First Amendment rights as other
forms of mass media. Critics charge that entry regulation--either
through utilizing the concept of "natural monopoly" or severely
limiting the number of potential licenses available--effectively
uses the coercive power of government to restrict the number of
parties who benefit from involvement in telecommunications. Breyer
and Stewart note that, "Commissions operate in hostile environments,
and their regulatory policies become conditional upon the acceptance
of regulation by the regulated groups. In the long run, a commission
is forced to come to terms with the regulated groups as a condition
of survival." Critics say both the FRC and the FCC became victims
of client politics as these two regulatory agencies were captured
by the industries they were created to regulate.
Regulation and FCC Policy Decisions
Throughout its history, a primary goal of the Federal Communications
Commission has been to regulate the relationship between affiliated
stations and broadcast networks, because the Communications Act
does not grant specific powers to regulate networks. When the Commission
issued Chain Broadcasting Regulations the networks challenged
the commission's authority to promulgate such rules, and sued in
National Broadcasting Co., Inc. et al. v. United States. The
Supreme Court upheld the constitutionality of the 1934 Act and the
FCC's rules related to business alliances, noting the broad and
elastic powers legislated by Congress. The FCC has used The Network
Case as a precedent to ratify its broad discretionary powers
in numerous other rulings.
On another front, at various times the commission has promulgated
rules to promote diversity of ownership and opinion in markets and
geographical areas. The Seven Station Rule limited the number of
stations that could be owned by a single corporate entity. Multiple-Ownership
and Cross-Ownership restrictions dealt with similar problems and
monitored multiple ownership of media outlets--newspapers, radio
stations, television stations--in regions and locations. Rules restricting
multiple ownership of cable and broadcast television were also applied
in specific situations. However, as more radio and television stations
were licensed, restrictions limiting owners to few stations, a limitation
originally meant to protect diversity of viewpoint in the local
market, made less sense to the commission. In 1985, recognizing
greater market competition, the commission relaxed ownership rules.
In the years that followed, restrictions on Ascertainment, Limits
on Commercials, Ownership, Anti-Trafficking, Duopoly and Syndication
and Financial Interest Rules were also eased.
Still, it is the issue of First Amendment rights of broadcasters
that has generated more public controversy in the sixty year history
of the Communications Act of 1934 than any other aspect of communication
law. Since the earliest days, the FRC and then the FCC insisted
that because of "scarcity," a licensee must operate a broadcast
station in the public trust rather than promote only his or her
point of view. The constitutionality of the Fairness Doctrine and
section 315 was upheld by the Court in Red Lion Broadcasting v.
FCC. Broadcasters complained that the doctrine produced a "chilling
effect" on speech and cited the possibility of fighting protracted
legal battles in Fairness Doctrine challenges. Generally, though,
the FCC determined station "fairness" based on the overall programming
record of the licensee. The Court reaffirmed the notion that licensees
were not obligated to sell or give time to specific opposing groups
to meet Fairness Doctrine requirements as long as the licensee met
its public trustee obligations. But, as Commissioners embraced deregulation,
they began looking for ways to eliminate the Fairness Doctrine.
In the 1985 Fairness Report, the FCC concluded that scarcity was
no longer a valid argument and the Fairness Doctrine inhibited broadcasters
from airing more controversial material. Two cases gave the commission
the power to eliminate the Doctrine; in TRAC v. FCC, the court ruled
that the Doctrine was not codified as part of the 1959 Amendment
to the Communications Act as previously assumed. Secondly, the FCC
applied the Fairness Doctrine to a Syracuse television station after
it ran editorials supporting the building of a nuclear power plant
(Meredith Corp. v. FCC, 809 F. 2d. 863 (1987); Syracuse Peace
Council 3 FCCR 2035 (1987)). Meredith Corporation challenged
the Doctrine and cited the 1985 FCC Report calling for the Doctrine's
repeal. The courts remanded the case back to the commission to determine
whether the Doctrine was constitutional and in the public interest.
In 1987, the FCC repealed the Doctrine, with the exception of the
personal attack and political editorializing rules which still remain
Chair Reed E. Hundt
Commissioner Susan Ness
Commissioner Rochelle Chong
Commissioner James H. Quello
First Amendment problems facing the commission include enforcing
rules against indecent or obscene broadcasts (FCC v. Pacifica).
After Pacifica, the FCC enforced a ruling preventing broadcasters
from using the "seven dirty words" enumerated in comedian George
Carlin's "Filthy Words" monologue on the air. However, "shock jocks"
(radio disk jockeys who routinely test the boundaries of language
use) and increasingly suggestive musical lyrics moved the FCC to
take action against several licensees in 1987. In a formal Public
Notice, the FCC restated a generic definition of indecency which
was upheld by the U.S. Court of Appeals. Spurred by Congress, the
commission stepped up efforts to limit the broadcast of indecent
programming material, including the graphic depiction of aborted
fetuses in political advertising. Various enforcement rules, including
a "24 Hour Ban" and a "safe harbor" period from midnight to 6:00
A.M. have met with court challenges.
perennial areas of concern for the commission include television
violence, the numbers of commercials broadcast in given time periods,
the general banality of programming, and many issues related to
children's television. Several FCC Chairmen and commissioners have
been successful in using the "raised eyebrow" as an informal means
of drawing attention to problems in industry practices. Calling
television "a vast wasteland," a phrase adopted by many critics
of television, Chairman Newton Minnow (1961-63) challenged broadcasters
to raise programming standards. In 1974, under Richard Wiley (1972-77),
the commission issued the Children's Television Programming and
Advertising Practices policy statement starting a review of industry
practices. And, Alfred Sikes (1989-92) called for "a commitment
to the public trust" when he criticized television news coverage.
Interest in children's television was further renewed in 1990 by
the passage of the Children's Television Act which reinstated limits
on the amount of commercial time broadcast during children's programming
and requires the FCC to consider programming for children by individual
stations at license renewal. The commission, under Chairman Reed
Hundt (1993), adopted a new Notice of Inquiry on compliance in this
area. Congress has become increasingly interested in reducing the
amount of violence on television. Industry representatives have
issued a Statement of Principles concerning the depiction of violence
in an effort to stave off FCC rulemaking.
the FCC has many critics who feel that the agency is unnecessary
and the Communications Act of 1934 outdated. Calls to move communication
policymaking into the Executive Branch at the National Telecommunications
and Information Administration (NTIA) or to reform the FCC have
been heard from both industry and government leaders. Congress has
grappled with FCC reform through the legislative process in its
most recent sessions. Convergence of telephone and broadcasting
technologies could make the separate service requirements under
Titles II and III difficult to reform. Whether the commission will
be substantially changed in the future is uncertain, but rapid changes
in communications technology are placing new burdens on the commission's
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and Television; Communications
Act of 1934; Deregulation;
Rule; Financial Interest
and Syndication Rules; Hennock,
Frieda B.; License;
Processes and Television;
PTAR (Prime Time Access Rule); Public
Interest, Convenience, and Necessity; Stations
and Station Groups; Telecommunications
Act of 1996; Telcos