Broadcast Regulation, Obscenity, Telecom Regualtions and Antitrust
From Media & Entertainment Law Wypadkis
Contents |
Background on FCC
FCC
- a five member board
- an independent agency
- no more than three members can be from the same political party
- each has a five year term
Call letters:
- all call letters which are assigned now = west of Mississippi get a K and east get a W (four letter assignment)
- stations have to give a legal ID as close as possible to the top of the hour
Context is Key:
- FCC staff must analyze
- what was actually aired
- the meaning of what was aired
- the context in which it was aired
Payola – you have to disclose what was paid for and by whom
Obscenity
A) Whether the average person applying contemporary community standards (jury unless civil case) would find that the work, taken as a whole, appeals to the prurient interest; B) Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and C) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. A work cannot be held obscene unless each element of the test has been evaluated independently and all three have been met. Luke Records. A statute can’t include non-obscene protected speech with obscene speech. Purpose- Lacks any serious literary, artistic, political or scientific value, and, therefore, makes no contribution to the marketplace of ideas or the political process it is not entitled to 1st Amendment protection.
Luke Records v. Navarro
(11th Cir. 1992)
- the Sheriff pushed that record stores not sell, As Nasty as They Wanna Be
- 2 Live Crew filed an action to enjoin the sheriff from interfering with the sale of the recording
- the DC found the recording obscene under the Miller test
Appellate Court reverses Test for Obscenity – Miller v. CA
- this applies to the music and lyrics as a whole
- the burden is on the person alleging obscenity
- Whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest
- Whether the work depicts or describes, in a patently offensive way, sexual conduct, specifically defined by the applicable state law
- Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value
- this is not a community standard but a national, global standard
only the plaintiffs put on evidence on the factors and the judge relied on his own opinion of what is obscene there was no expert testimony by the sheriff the sheriff had the burden to prove obscenity
Broadcasts
Can’t edit the proposed broadcast in advance and to excise material considered inappropriate for airwaves. The prohibition, however, has never been construed to deny the Commission the power to review the content of completed broadcasts in the performance of its regulatory duties. Out of all the mediums, broadcasting has received the most limited First Amendment protection. FCC Power- The FCC does not merely have control over obscenity, but indecent or profane broadcasting as well Pacifica. Reason for Limited Protection- Because the broadcast audience is constantly tuning in and out, prior warnings cannot completely protect the listener or viewer from unexpected program content. To say that one may avoid further offense by turning off the radio when he hears indecent language is like saying that the remedy for an assault is to run away after the first blow. Also broadcasting is accessible to children, even those too young to read. A broadcast can enlarge a child’s vocabulary in an instant. Violations- The FCC may revoke a station license, impose a monetary forfeiture, or issue a warning if a station airs obscene, indecent, or profane material.
Indecency
The FCC has defined broadcast indecency as “language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities.”
- Indecent programming contains patently offensive sexual or excretory material that does not rise to the level of obscenity.
Indecent does not require prurient interests, but merely nonconformance with accepted standards of morality.
Hours Prohibited- 6:00 a.m. and 10:00 p.m. (almost all networks have stricter standards for indecency and profanity)
Factors the FCC Applies to Determine Indecency 1) Explicitness or graphic nature of the material 2) Dwelling on them and repeating 3) Pander, titillate, or use shock value.
Profanity
The FCC has defined profanity as “including language so grossly offensive to members of the public who actually hear it as to amount to a nuisance.”
Like indecency, profane speech is prohibited on broadcast radio and television between the hours of 6 a.m. and 10 p.m.
FCC Payroll Broadcast Rules
Federal Communications Act, including the (FCC) rules, requires that employees of broadcast stations, program producers, program suppliers and others who have accepted or agreed to receive payments, services, or other valuable consideration for airing material must disclose this fact. Disclosure provides broadcasters the information they need to let their audiences know if material was paid for, and by whom. LAW- The Communications Act and the FCC’s rules require that:
Social Regulation
Luke Records, Inc. v. Navarro
FACTS: Plaintiffs appeal declaratory judgment that their music is obscene after winning injunction against Broward County Sheriff's Office from taking action to prevent the sale of their album within the county
DISCUSSION: Sheriff failed to provide any evidence other than the recording itself and judge relied on own experience within community without demonstrating that he has sufficient artistic or literary knowledge or skills which satisfy the last Miller Test prong - judge can only make determination as to prurient interest applying community standards and patent offensiveness as defined by state law
- Miller Test
- Whether average person, taken as a whole, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest
- Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law
- Whether the work, taken as a whole, lacks serious literary artistic, political, or scientific value
- Work only obscene when each element evaluated independently and all are met
- Very hard to ban material based on obscenity argument
FCC v. Pacifica
FACTS: Defendant radio station aired monologue which contained several profane words at 2pm on a weekday; FCC issued declaratory order that Pacifica could be subject to administrative sanctions, finding the language as “patently offensive”; later declaratory ruling indicated that FCC was not prohibiting the broadcast but wanted to limit it to certain times of the day
ISSUES:
- Whether scope of judicial review encompasses more than FCC’s determination of indecent
- Whether FCC’s order was form of censorship forbidden by § 326
- Whether broadcast was indecent within the meaning of § 1464
- Whether order violated First Amendment
DISCUSSION: FCC is not limited from imposing sanctions on licensees engaging in obscene, indecent or profane broadcasting; there is no basis for disagreeing with FCC that broadcast contained indecent language; constitutional analysis determines that FCC's exercise of power is appropriate in this matter and consistent with line of caselaw (certain types of speech in certain situations may be regulated – content and context are critical); Content of speech not entitled to absolute constitutional protection under all circumstances
- Special distinctions for radio broadcasts:
- Audience constantly tuning in and out so prior warnings do not provide complete protection from content
- Accessibility to children
Regulated by FCC
- Obscenity: never allowed on AM/FM radio and broadcast television
- Miller standard
- Hard-core porn
- Profanity: allowed during “safe harbor” time of 10 p.m. and 6 a.m.
- Language only (swear words)
- Indecency: allowed during “safe harbor” time of 10 p.m. and 6 a.m.
- Sexual content, excretory organs/activities
- Standard is that of average broadcast viewer, not that of any individual complainant
- Factors (FCC internal guidelines on pursuing complaints):
- Explicitness/graphic nature of material
- Dwelling and repeating – more said, longer time
- Pander, titillate, or use shock value
- NOTE: depiction of gay activities and oral activities more often found indecent by FCC
Reasons FCC regulation is required
- Scarcity of spectrum
- Intrusion into the home
- Accessible to the public
Theories for protecting stories
- Idea can be property
- Express contract
- Implied in-fact contract
- Implied in-law contract/unjust enrichment/quasi-contract
- Parties weren’t aware that they had a contract
- Tort
- Breach of confidence/breach of confidential relationship
