Essay about Regulation Of Program Content

NOTES
REGULATION OF PROGRAM GONTENT
BY THE FGG
The Federal Radio Commission was created in 1927 as a reaction to the chaotic situation engendered by judicial rulings ^ that the Department of Commerce had no statutory authority to allocate radio frequencies among persons desiring to broadcast. Since the problem was technical in nature — interference and overlapping in the use of frequencies — it has been argued that the FRC and its successor, the Federal
Communications Commission, should do no more than is necessary to ensure technical peace on the airwaves.^ Yet from its inception the
FRC directed attention to program content, and the FCC has followed suit. For example, the first renewal form issued in 1927 required licensees to report the average amounts of time they devoted to various categories of programs.^ The use of recorded music was originally discouraged, and weighed heavily in the revocation of at least one license.* This tj^e of regulation was apparently envisioned by Congress in 1927,^ and some examination of program content has long been accepted as part of the regulatory process by the Supreme Court ® and, in practice, the broadcasting industry.^
The FCC's authority to regulate program content derives in part from certain explicit statutory provisions. The Communications Act forbade the broadcasting of "any obscene, indecent, or profane language," ® and although this provision is now part of the Criminal
Code,^ the FCC has continued to apply it in license proceedings.^" The congressional prohibitions against broadcasting lotteries ^^ and gambling information ^^ have been amplified by FCC rules.^^ The Commission has also acted against broadcasters of spurious public contests,^* although not until Congress explicitly outlawed deceptive quiz programs ^^ was the FCC confident of its authority in that
' E.g., United States v. Zenith Radio Corp., 12 F.2d 614 (N.D. 111. 1926); see
Davis, The Radio Act of 1(127, 13 VA. L . REV. 611 (1927).
'See, e.g., FCC v. Sanders Bros. Radio Station, 309 U.S. 470, 474-75 (1940)
(dictum).
^ FCC, PUBLIC SERVICE RESPONSIBILITY OP BROADCAST LICENSEES IO (1946).

" See 1928 FRC ANN. REP. 155-56.
° See 67 CONG. REC. 5479 (1926) (remarks of Representative White).
^ E.g., National Broadcasting Co. v. United States, 319 U.S. 190, 215-22 (1943).
'See SMEAD, FREEDOM OF SPEECH BY RADIO AND TELEVISION 108-09 (i959)-

^48 Stat. 1091 (1934).
»i8 U.S.C. § 1464 (1958).
^° See Warren j . Currence, 34 F.C.C. 761 (1963).
" 18U.S.C. § 1304 (1958).
»" 18 U.S.C. § 1084 (Supp. IV, 1963).
'"Proposed Amendments, i RADIO REG. 53 (FCC 1961).
*^KWK Radio, Inc., 34 F.C.C. 1039 (1963); Eleven Ten Broadcasting Corp.,
33 F.C.C. 92 (1962).
" 74 Stat. 897 (i960), 47 U.S.C. § 509 (Supp. IV, 1963).
'® See Hearings on Television Quiz Shows Before a Subcommittee of the
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[Vol. 77:701

Far more important than these explicit provisions is the Commission's broad mandate to allocate frequencies on the basis of the "puhlic convenience, interest, or necessity." " The lion's share of FCC regulation of content is derived from this broad delegation, and the vagueness of the standard has perhaps contributed to the great rancor that most
FCC attempts to regulate content have encountered from representatives of the broadcasting industry. This Note will examine the methods, problems, and limitations of content regulation under the public-interest standard. I.

METHODS OF REGULATION

The initial grant of broadcasting licenses provides what is perhaps the most significant avenue of FCC content regulation. Even when there is only one applicant for a particular frequency who has satisfied the minimum technical requirements, the FCC may refuse to grant him a license if it finds his program proposals unsatisfactory.^* When there is more than one applicant for an open channel, the Commission conducts a comparative hearing to evaluate the relative merits of the various extensive proposals submitted to it. While

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