Issues
Promoting Civic Discourse and Protecting Free Speech in Broadcast Media
Overview
Media, particularly broadcast media, presents a significant opportunity to educate this country's citizens about important issues of the day. Broadcasters are obligated under the law to do so, and other opportunities exist to create new paradigms. While the government has an important role to promote such speech, it should not suppress the wide range of free expression in the media.
Media Access Project works to ensure that broadcasters
and cable operators advance the democratic process. There
are many aspects of this fight that have captured national attention,
such as proposals for free airtime for political candidates,
sponsorship identification, or the debate over the funding of
public TV. Other aspects may be less well-known, but are no less
important.
Free Time for Candidates
MAP's President serves
on the advisory committee to the Free TV for Straight Talk Coalition.
The Coalition, headed by former Washington Post writer
Paul Taylor, was organized for the purpose of convincing the TV
networks to give free time to Presidential candidates during
this past election season. The largest cost for most campaigns
is TV airtime, and the coalition believes that without this cost,
candidates will be freed from sound-bite and attack ad campaigns,
and freed from the influence of special interest contributors.
In the summer before the 1996
elections, several networks did come forward with proposals to
provide some amounts of time to presidential candidates, and
MAP's president was invited to speak at a special FCC
hearing held to evaluate these proposals. (View the Comments
from that hearing.) While the Coalition did not accomplish its
core goal of having the Presidential candidates appear, one after
the other, on the night before the election, it has raised the
profile of this issue, and one network did give substantial amounts
of free time to the candidates. MAP has continued to advise the
Coalition on FCC matters and the ongoing debate on digital
television.
Additional resources on Free Time
- Comments of MAP's President Andrew
Jay Schwartzman on broadcaster's proposals to provide free time
in the 1996 presidential campaign. (Summary
of those comments.)
-
Letter
by Free TV for Straight Talk coalition requesting hearing to
evaluate proposals.
-
Proposal and request for waiver
by Fox Network.
Reasonable Access to the Airwaves
The "reasonable
access" and "equal time" laws give political candidates
a legal right to use the broadcast airwaves, so they may speak
to their fellow citizens and ask for their vote. More importantly,
they ensure that members of the public have unfettered access
to candidate speech so that they can make intelligent choices
at the ballot box. (These principles are written into law at
title 47, sections 312
and 315
of the United States Code.)
In 1996, MAP won its challenge
to an FCC decision
which had allowed broadcasters to refuse to carry advertising
by candidates for federal office at times of the candidate's
choosing. Under this decision, broadcasters only needed to show
that, in their judgement, the ad might be harmful to children.
The United States Court of Appeals for the District of
Columbia Circuit agreed with MAP that the equal time and reasonable
access laws, and a properly functioning democracy, prohibit such
a result. The court recently denied the FCC's request to reconsider
its decision.
In a related matter, MAP has
asked the FCC to reconsider its determination that broadcasters need only sell time to candidates in the same
lengths that they sell to commercial advertisers. Longer
form candidate advertisements would combat sound-bite negative
advertisements.
Sponsorship Identification
MAP has long sought to
improve enforcement of legal requirements for specific identification
of those who seek to influence public opinion through advertising.
Its most recent victory in this area, in late 1996, involved
representation of the Committee to Support the Oregon Health
Plan. The Committee obtained an FCC
ruling that directed that radio and television advertisements
opposing Oregon's tobacco tax initiative, Measure 44, be identified
as "Paid For by the Tobacco Institute."
These commercials had originally
been labelled as paid for by "Fairness Matters to Oregonians
Committee." Campaign finance documents, however, revealed
that the Tobacco Institute, the lobbying arm for many of the
largest tobacco companies, had contributed all but $20 of the
Committee's multimillion dollar budget. The resulting publicity
from this decision, and the disclosure to the public of the Tobacco
Institute's involvement, were important factors in the eventual
passage of the ballot initiative.
Additional resources on Sponsorship
ID
The Fairness Doctrine
MAP continues its longstanding
effrort to establish, once and for all, the future of broadcasters'
obligations to provide coverage of diverse viewpoints under the
"fairness doctrine." The doctrine presents broadcasters
(and, arguably, cable programmers) with two simple requests:
to cover issues of public importance, and to do so fairly.
(It also ensures reply time for political candidates and
others where the equal time laws do not — for example, to
independent expenditure attack ads, personal attacks and broadcast
appearances by supporters of a candidate.)
For fifty years, the fairness
doctrine advanced the public's First
Amendment right to receive information on important issues.
The fairness doctrine arises from the principle, reaffirmed
by Congress and the United States Supreme Court, that broadcasters
have special public trustee obligations, which they voluntarily
incur in exchange for the exclusive use of scarce public airwaves.
In 1987, the FCC stopped enforcing
most applications of the fairness doctrine. It relied upon a
controversial opinion of the U.S. Court of Appeals for the D.C.
Circuit, written by Judge Bork and then-Judge Scalia, that characterized
the doctrine as discretionary, rather than mandatory. The
decision contravened 25 years of FCC holdings that the doctrine
had been put into law in 1959. In late 1991, the FCC extended
its policy and ceased enforcing the doctrine as to ballot issues
as well.
MAP has repeatedly asked the
FCC to reconsider this decision. Most recently, in August 1994,
MAP filed a petition asking the FCC to reinstate the doctrine
on the basis that it is required by the 1959 amendments to the
Communications Act. The agency has thus far refused to act on
the petition.
Additional Resources on the Fairness Doctrine:
The Public Trustee Obligations
of Free, Over-the-Air Broadcasting
MAP is the leading public
advocate in the battle over the soul of the public interest standard
of the Communications Act of 1934. While the Federal Communications
Commission is mandated by law to ensure that broadcasters serve
the "public interest, convenience and necessity," its
decisions over the past decade have stripped the standard of
almost all meaning.
MAP has also fought to preserve
the system of free, universal, over-the-air broadcasting from
attacks by its fee-supported competitors. Since late 1993,
MAP has represented viewer-intervenors in the U.S. Supreme Court
in a case which will determine the constitutionality of the so-called
"must-carry" provisions of the 1992 cable TV law. These
provisions require cable systems to carry local over-the-air
broadcast stations on their systems. "Must-carry" is
essential to the viability of local over-the-air broadcasting,
especially smaller stations, which tend to be disproportionately
minority- and female-owned. It also ensures that all members
of the public, including the 40% who do not get cable, will continue
to be able to enjoy the free, over-the-air broadcast TV system.
MAP accomplished some of its
objectives in June 1994, when the Supreme Court issued its first
decision, Turner
Broadcasting System, Inc. v. Federal Communications Commission.
The Court adopted a good part of MAP's argument by expressly
recognizing the public's need for a viable system of local over-the-air
broadcasting, and by placing those needs above those of cable
operators.
But the Court also returned the
case to a lower court to determine whether, in fact, broadcasters
would be harmed without "must-carry." The lower
court again upheld the "must carry" scheme, and the
Supreme Court heard argument in October, 1996, as to whether
the broadcast industry showed that it would be harmed without
compulsory cable carriage. The Court's decision in March,
1997, Turner
Broadcasting System, Inc. v. Federal Communications System (Turner
II), once again underscored the importance of free, over-the-air
television as an essential, universally available source of information.
The Court found that it had been reasonable for Congress to conclude
that the prospect of cable operators dropping local TV stations
was a threat to the health of small broadcasters and the diversity
of broadcast media.
Additional Resources on "Must Carry":
- The most recent, November, 1994,
order
by the FCC to implement must-carry.
- Must-carry FAQs,
written for cable subscribers by the FCC.
Competition and Access
MAP won an important
victory this summer after the United States Court of Appeals
for the District of Columbia Circuit rejected a constitutional
challenge to provisions of the 1992 Cable Act that lower cable
television rates and increase competition to the powerful cable
monopoly. MAP filed a friend-of-the-court brief in that
case on behalf of independent programmers, church, consumer and
other public interest groups. Among the most significant
provisions the Court upheld are those that require cable operators
to sell programming on fair terms to competitors; that require
cable systems to set aside channel capacity for use by unaffiliated
programmers; and that require direct broadcast satellite systems
to set aside capacity for use by noncommercial, educational and
informational programmers.
The case is not over, however.
The direct broadcast satellite providers have asked the
Court to reconsider its decision to uphold the channel set-aside
and the court has asked the FCC to comment on the issue. Should
the court grant the reconsideration request, MAP will participate
in any further proceedings.
Public Broadcasting
Public broadcasting was designed to provide an opportunity for experimentation and innovation — an outlet for alternative viewpoints and perspectives
that are underrepresented in the commercial television marketplace.
But reduced funding for public broadcasting and several ill-
advised policy changes threaten to commercialize and de-localize
this precious resource.
Local Noncommerical Radio
The effects of the changes in public
broadcasting funding and policy became painfully clear during
MAP's recent successful effort to prevent the sale of a radio
station which would have permitted, for the first time, a commercial
broadcaster to also own a non-commercial station.
Because of the fiscal crisis
in the nation's capitol, the University of the District of Columbia
auctioned the right to buy its noncommercial, all-jazz station
(WDCU-FM). WDCU-FM was known nationwide not only for its increasingly
rare format, but also for its excellent local programming and
large (4th in the nation for public stations) African- American
listenership. The winning bidder was a so-called "non-profit"
subsidiary of Salem Broadcasting, the largest commercial religious
radio broadcaster in the United States. Salem bid $13 million
for the station, an unheard of price for a noncommercial license.
Representing a listener's group
that sought to preserve WDCU's jazz format, MAP worked with National
Public Radio and the Corporation for Public Broadcasting to scrutinize
the sale of the station to Salem. MAP was the first to raise
the concern that the "non-profit" subsidiary was a
mere shell for the for-profit entity. MAP advocated its position
through the trade and mainstream press. The pressure MAP wrought
caused Salem to forego its attempt to buy the station. The station
was later bought by C-SPAN, a bona fide non-profit.
While MAP was unable to ensure
that the station continued as a beacon for the local African-American
community, that result was rendered nearly impossible by Reagan-era
FCC decisions that permit entities with no ties to a local community
to hold noncommercial radio licenses. MAP will work with the
FCC to attempt to close this critical loophole.
Preserving the Noncommercial
Character of Public Television in the Digital Age
Digital television presents all broadcasters — private and public TV alike — with new opportunities to profit. But it also holds great potential
for increased educational and community based programming. MAP
has already met with several public TV leaders to discuss their
plans for the digital future.
One plan proposed by some public
broadcasters is causing MAP great concern, however. The Association
of Public Television Stations and the Public Broadcasting Service
have asked the FCC to give them permission to provide advertiser-supported
programming on their excess digital television capacity. They
argue that as long as they provide one free, noncommercial
service, they should be free to do what they wish with the remainder
of their capacity. MAP has officially opposed this request at
the FCC on the basis that noncommercial licenses are granted
for one purpose — noncommercial service, and that the plain language
of the Communications Act prohibits the public broadcasters'
plan.
Free Speech in Electronic Media
While much of MAP's work concentrates
on the rights of viewers to receive information, MAP's attorneys
are also respected authorities on the rights of speakers to speak
over the electronic media. MAP opposes content-based government
restrictions on speech over broadcast stations, cable television,
and the Internet.
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