Different Rules For Some Media

Question 1

fairness doctrine

Answer 1

 fairness doctrine (no longer enforced by FCC because access has greatly changed since the ‘60s): requires holders of broadcast licenses to air both sides of public interest issues (Red Lion v FCC)
• so basically allows gov’t interference with editorial control on matters of public interest to ensure that the public received the full range of views on that subject

Question 2

equal time rule

Answer 2

 equal time rule: requires that the station that makes time available to one candidate to offer an “equal opportunity” to all other candidates for the same office (§ 315(a) of FCA)
• applies to all candidates for public office
• what it actually requires is an equal opportunity to persuade voters, not necessarily quantitative parity
• the station may not censor the reply, and cannot be held liable if the reply defames someone
• **triggered by a candidate’s “use” of airtime – occurs when the candidate’s name or likeness is aired (candidate does not need to appear)

Question 3

news events exception to the equal time rule

Answer 3

• news events exception: rule does not apply to candidate appearances in bona fide newscasts, new interviews, or news documentaries if the appearance is incidental to the subject, or on-the-spot coverage of news events, including political conventions and presidential news conferences
o factors to consider if the exception applies:
 whether the series is regularly scheduled
 whether producers retain control over format, content and participants
 whether programming choices are made based on newsworthiness rather than a desire to advance a particular candidate

Question 4

debate exception to the equal time rule

Answer 4

• debate exception: broadcasters may sponsor debates among major candidates without incurring obligations under Section 325(a)

Question 5

no censorship provision

Answer 5

• no censorship provision: prohibits broadcaster censorship and requires that candidates be given “equal opportunities” to use a broadcaster’s facilities – broadcaster must make available period of approximately equal audience potential to competing candidates to the extent possible

Question 6

reasonable access rule

Answer 6

 reasonable access rule: requires licensees to give federal candidates “reasonable access” to the airways (§ 312(a)(7) of FCA)
• **limited right based on good faith access
• “reasonable access” determined on case-by-case basis
• applies only to candidates for Congress/Presidency
• calls for delicate balance of gov’t preserving the public interest in airways as a “resource,” while also allowing journalistic freedom
• policy rationale: it is of particular importance that candidates have the…opportunity to make their views known so that the electorate may intelligently evaluate the candidates’ personal qualities and their positions on vital public issues before choosing among them on election day

Question 7

rule for regulating indecency of broadcast media

Answer 7

• rule: the govt has greater latitude in regulating broadcast media to prevent exposure of children to indecent material (unwilling captive audience) (FCC v Pacifica)

Question 8

regulation of cable access

Answer 8

 rule: the govt is allowed more leeway to control cable TV than newspapers because a cable network essentially has “gatekeeper control” over access to its medium, whereas a newspaper hardly has the power to obstruct reader access to competing publications (Turner Broadcasting)

Question 9

must carry rules for cable (and what state interests justify them)

Answer 9

 must-carry rules: require cable television systems to devote a portion of their channels to the transmission of local broadcast television stations
• justified by these state interests:
o preserving the benefits of free, over-the-air local broadcast television
o promoting the widespread dissemination of information from a multiplicity of sources
o promoting fair competition in the market for television programming

Question 10

guidelines from CBS v FCC regarding application of the “reasonable access” rule (5 key points)

Answer 10

o (1) broadcasters are free to deny the sale of airtime prior to the commencement of a campaign, but once a campaign has begun, they must give reasonable and good faith attention to access requests from legally qualified candidates
 the FCC gets to decide when a campaign is said to have “begun”
o (2) such requests must be considered on an individualized basis, and broadcasters are required to tailor their responses to accommodate, as much as reasonably possible, a candidate’s stated purposes in seeking airtime
o (3) to justify a negative response, broadcaster must show a realistic danger of substantial program disruption (ex – insufficient notice or excessive number of equal time requests)
o (4) broadcasters must explain their reasons for refusing time/making a more limited counteroffer
o (5) if broadcasters take the appropriate factors into account and act reasonably and in good faith, their decisions will be entitled to deference even if the Commission’s analysis would have differed in the first instance