FCC Regulation of Broadcast Media and the First Amendment

Broadcasters have First Amendment rights to exercise editorial discretion in the content they air. However, they have traditionally been subject to more regulation, even of their content, than other forms of media.

This article looks at how the First Amendment protects broadcast media, why broadcast media are regulated more closely than other media, and some ways the federal government regulates content broadcast on television and radio.

What are broadcast TV and radio stations?

Broadcast media refers to free, over-the-air stations available to the public with a radio or television antenna, unlike cable or streaming services that require subscriptions or internet access. Many of these stations are run by major networks such as CBS, NBC, ABC and Fox.

The Federal Communications Commission is the government agency responsible for regulating broadcast media. Specifically, the FCC’s authority is over individual television and radio stations, not the national networks, which have relationships with stations or online content.

How does the First Amendment apply to broadcast radio and TV?

Freedom of speech protects radio and television programming such as comedy, drama, sports, music and other entertainment, as well as commercials. Freedom of the press protects these stations’ news, information and opinion programming. As private businesses, stations can choose what to air and what not to air without violating content creators’ or viewers’ First Amendment rights — and the First Amendment protects stations from government censorship.

Congress recognized broadcast stations’ First Amendment rights when it created the FCC in 1934, noting the agency may not censor stations.

Why is regulation of broadcast media different than that of other media?

The Communications Act empowers the FCC to regulate broadcasters to ensure they operate in the public interest. This includes a limited power to regulate certain types of content in ways the First Amendment wouldn’t allow for other media. In fact, the Supreme Court has rejected attempts to regulate content of other media — like newspapers, cable TV or the internet — in the same way as the FCC regulates broadcast media.

There are two reasons for this unique regulatory power: scarcity and pervasiveness.

Scarcity

From the beginning, courts have recognized that there is an absolute limit on the number of radio and television stations that can exist.

The Supreme Court has differentiated the broadcast medium from print, observing that “broadcast frequencies are limited, and, therefore, they have been necessarily considered a public trust.”

Pervasiveness

Courts have also acknowledged that broadcast media is far-reaching and broadly accessible.

The Supreme Court has upheld the FCC’s authority to regulate indecent and other content, emphasizing the pervasive nature of broadcast signals and their easy accessibility to children.

What are some specific ways in which the FCC regulates broadcast content?

When it comes to broadcasting, the FCC’s primary mission is to ensure airwaves “serve the public interest.” This primarily involves regulating how stations operate, preventing interference among stations to ensure they can coexist.

But it can also involve regulating stations’ content. These content restrictions must be narrowly drawn, which usually occurs in one or more of these forms:

• Scope: The regulations affect only specific types of content.
• Time: The regulations apply only for a certain length of time (such as before an election) or at certain times of the day.
• Neutrality: The regulations are viewpoint-neutral, meaning they don’t target content based on its message or topic.
• Proportionality: The penalties are generally small — consisting of fines rather than suspension or loss of license — to ensure they do not overly burden freedom of speech and freedom of the press.

Below are some examples of FCC restrictions on broadcast content.

Fairness doctrine

The fairness doctrine was enacted in 1949 to ensure “the public has a reasonable opportunity to hear different opposing positions on the public issues of interest.” It required broadcasters to present opposing viewpoints on controversial issues. While critics argued it infringed editorial freedom, the Supreme Court upheld it in 1969.

In 1987, the FCC decided the rule did more to harm speech than protected it and repealed the rule — though the Supreme Court’s 1969 decision has never been overruled, meaning the rule could be reinstated at any time.

News distortion

The FCC has a policy prohibiting news distortion. A violation of this policy “must involve a significant event and not merely a minor or incidental aspect of the news report,” which often requires “deliberate distortion” rather than a mere difference of opinion.

Hoaxes

The FCC has a rule that prohibits broadcasting hoaxes. This rule is violated when:

• A station broadcasts information it knows is false.
• The false information directly causes substantial public harm.
• It was foreseeable that broadcasting false information would cause such harm.

Obscenity and indecency

Obscene speech is not protected under the First Amendment and can therefore be punished by the government, including the FCC, if obscene content is broadcast on radio or television. Content meeting the definition of obscenity is quite rare.

The FCC also has the power to fine stations that broadcast indecent material, a related but distinct category of content, between the hours of 6 a.m. and 10 p.m., times when children are likely to be in the audience. It defines indecency as content that depicts sexual or excretory organs or activities in a patently offensive way, based on community standards.

Political advertising

Stations must follow specific rules for political ads, including:

• Reasonable access: Stations must allow candidates for federal office “reasonable access” to broadcast station airtime. This means stations “must allow legally qualified federal candidates to purchase reasonable amounts of broadcast time throughout their campaigns.”
• Lowest unit charge: During election periods (45 days before a primary election and 60 days before a general election), candidates seeking advertising time cannot be charged more than the station’s lowest rate offered to other broadcasters.
• Equal opportunities: If a television or radio station gives airtime to a qualified candidate for elected office, then that station must give an equal opportunity to all the candidate’s declared opponents upon their request. This doesn’t require the exact same amount of time on the same program; it can be anything involving a similar type of program, with a similar audience, at similar hours for a similar amount of time. The equal opportunity rule is not triggered when the first candidate’s appearance is part of a bona fide newscast, news interview, news documentary or on-the-spot coverage of a bona fide news event.

Contests and lotteries

Stations must follow strict rules for contests they run or advertise, including disclosure of all terms and a requirement that they operate those contests in a fair manner.

Federal law prohibits advertising lotteries: anything that offers a prize, relies on chance to win, and involves participants paying or engaging in some meaningful act to enter. There are, however, exceptions for state-run lotteries, tribal gambling, and charitable raffles, as well as casino gambling.

Children’s television

The Children’s Television Act of 1990 requires broadcasters to:

• Air at least 156 hours per year of educational programming for children under 16.
• Limit advertising during children’s shows to 10½ minutes per hour on weekends and 12 minutes per hour on weekdays.
• Clearly label educational content with the “E/I” symbol.

Advertising by public broadcasters

Noncommercial stations, sometimes referred to as “public broadcasters,” like those carrying PBS and NPR content, face additional restrictions. They may acknowledge sponsors, known as “underwriting,” but cannot run commercials that promote products or services. For example, a sponsor’s name may be mentioned, but the station cannot use language that encourages purchases.