A Primer on the Public Interest Obligations of Television
United States Department of Commerce
National Telecommunications and Information Administration
Public Interest Obligations of Digital Television Broadcasters (PIAC)
October 22, 1997
TABLE OF CONTENTS
A Primer on the Public Interest Obligations of Television Broadcasters
Part I - The Principal Public Interest Obligations of Television Broadcasters Today
 Programs Responsive to Community Needs - Generally
[2A] Educational and Informational Programming by Commercial Television Licensees
[2B] Educational and Informational Programming by Noncommercial Television Licensees
 Parental Choice in Television Programming Television Program Ratings
[3A] Television Program Ratings
[3B] V-Chip: blocking of video programming based on program ratings
 Indecency and Obscenity
 Television Advertising
 Access to Broadcast Facilities by Candidates for Elected Political Office
 Personal Attack Rule
 Fair Break Doctrine  Video Programming Accessibility: Closed Captioning & Video Description
 Main Studio Location and Local Public Inspection File
Part II. Historical Evolution and Constitutional Basis for Public Interest Regulation of the Broadcast Medium
A Primer on the Public Interest Obligations of Television Broadcasters
In exchange for the exclusive right to use the public's scarce electromagnetic
spectrum, broadcasters are obliged to serve the public interest.(1)
A broadcast licensee serves as a trustee of the public's airwaves with
a fiduciary responsibility to use the spectrum not just for private gain,
but also for the public interest. While most of the provisions discussed
herein pertain to radio as well as television broadcasters, this primer
focuses upon television.(2)
Since the inception of commercial television broadcasting in 1941, the
parameters of public interest obligations have periodically been altered
in response to re-evaluations of the public interest by the Federal Communications
Commission (Commission, FCC), statutory measures taken by Congress and
rulings by the federal judiciary.(3) In
some instances, the Commission's re-evaluation of public interest obligations
has been prompted by persistent features of the television landscape that
required policy attention such as insufficient children's educational programming.(4)
On other occasions re-evaluations of the public interest responsibilities
have been spurred by a recognition of economic and technological changes
in the media environment. This includes assessments of the impact of cable,
video cassette recorders (VCRs), direct broadcast satellite (DBS) and other
new technologies for the delivery of video programming services to consumers.
Sometimes Congress acts through statute to specify particular broadcasting
obligations or to prohibit certain conduct. These statutory initiatives
remove a degree of discretion from the Commission in determining the ambit
of public interest obligations. The ban on tobacco advertising,(5)
access provisions for political candidates(6)
and a statutory effort to increase the amount of educational and informational
television programming for children(7) exemplify
particularized Congressional efforts in the area of public interest obligations.
Most recently, the Telecommunications Act of 1996, which amends the 1934
Act, adopted the public interest principle as the touchstone for the assignment
and operation of the digital television broadcast spectrum.(8)
Today, many policy makers -- led by the President of the United States
-- believe that the emergence of digital television (DTV) is cause for
reconsidering the dimensions of television broadcasters' public interest
obligations.(9) The novel technological
features of DTV give cause to re-examine the public interest responsibilities
of television broadcasters to determine whether the public interest lies
in the retention, repeal or addition to these obligations.
While the statutory and regulatory broadcasting measures in the public
interest include both structural restrictions and programming obligations,
the scope of public interest obligations given consideration in this primer
are only those that are exclusively oriented towards the content that the
licensee can broadcast and the conditions upon which the licensee can do
so.(10) This set of obligations is the
focus of the Executive Order and President Clinton's public statements
pertaining to the purpose of the Advisory Committee on Public Interest
Obligations of Digital Television Broadcasters (PIAC).(11)
The public interest obligations presented in this primer apply to commercial
and noncommercial educational (NCE) television broadcasters, unless otherwise
indicated.(12) Part I of this primer provides
an annotated enumeration of the most significant public interest obligations
that apply to television broadcasters. Part II discusses the Constitutional
basis for public interest regulation of the broadcast medium drawing upon
key judicial interpretation of the Constitution as applied to statutory
and regulatory actions.
Part I - The Principal Public Interest Obligations of Television
 Programs Responsive to Community Needs - Generally: Each broadcaster has an
obligation to provide programming that is responsive to the needs of the community of
license. Toward this end, the FCC requires that the licensee file quarterly reports which
enumerate a list of programs that have provided the station's most significant treatment of
community issues during the preceding three month period. This list must be accom-
panied with a brief narrative describing what issues were given significant treatment and
the programming that provided this treatment. Air date, day part, as well as
program length and title must be included in the report to the Commission;
[2A] Educational and Informational Programming
by Commercial Television Licensees:
A licensee must provide a minimum of three hours per week of educational
and informational programs which "furthers the positive development"
of children 16 years of age and younger if the television licensee wants
expedited license renewal approval of its children's television programming
obligations. In order to qualify the licensee must provide educational
or informational programming that (a) airs between 7:00 a.m. and 10:00
p.m.; (b) is part of a regular weekly schedule; (c) ensures that each episode
is at least 30 minutes in length; (d) identifies each educational and informational
program at the beginning of each episode; and (e) supplies publishers of
television program guides information about which forthcoming program broadcasts
are educational and informational for children, including the age group
for which the program is intended.
Licensees must also file a quarterly Children's Television Programming
Report describing efforts made in previous quarter and plans made for the
forthcoming quarter to fulfill educational and information programming
obligations for children
[2B] Educational and Informational Programming by Noncommercial Television
Noncommercial television licensees must serve the educational and informational
needs of children 16 years of age and younger through overall programming including
that designed specifically for children's informational and educational edification.
Obligations may be met, in part, through non-broadcast efforts or effort to support such
programming at other television stations.
 Parental Choice in Television Programming Television
In order to give parents greater control over the television programs viewed by their children, the Telecommunications Act of 1996 included provisions for: (1) the
design of a rating system in tandem with (2) technology built into television sets that
would enable parents to screen out programs containing sexual, violent, or other indecent
material. The "Parental Choice in Television Programming" provision of the 1996 Act
(Section 551) encourages the television content providers and distributors to develop a
voluntary rating system, and directs the FCC to oversee the television receiver industry's
development of technical standards for blocking technology. This technology is to
function in conjunction with the rating system.
[3A] Television Program Ratings:
For programs designed only for children
TV-Y: Program appropriate for children of all ages.
TV-Y7: Program appropriate for children ages 7 and older.
For programs designed for the entire audience
TV-G: (General Audience) Most parents would find this suitable for all ages.
Little or no violence, No strong language, no sexual dialogue or situations.
TV-PG: (Parental Guidance Suggested) This program contains material that
parents may find unsuitable for younger children. Theme itself may be cause for
parent guidance and/or the program contains one or more of the following:
moderate violence (V), sexual situations (S), infrequent coarse language (L), or
some suggestive dialogue (D).
TV-14: (Parents Strongly Cautioned) Program contains some material that many
parents would find unsuitable for children under 14 years of age. Includes one or
more of the following: intense violence (V), intense sexual situations (S), strong
coarse language (L), or intensely suggestive dialogue (D).
TV-MA: (Mature Audience Only) Program is specifically designed to be viewed
by adults, and therefore, may be unsuitable for children under 17. Contains one or
more of the following: graphic violence (V), explicit sexual activity (S), or crude
indecent language (L).
* Industry proposes that icons and associated content symbols appear for 15
seconds at the beginning of all rated programming, and that the icon
size will be enlarged.
U.S.C. §303(w), (x)); see also, Federal Communications Com'n, Public Notice,
CS Docket No. 97-55, FCC 97-34 (February 7, 1997).
[3B] V-Chip: blocking of video programming based
on program ratings
 Indecency and Obscenity:
 Television Advertising: Since the inception of broadcasting the federal government has
regulated the business of selling time to sponsors of programming and purchases of
advertising time. This section of the television public interest obligations primer
discusses the requirement to provide sponsor identification to the television audience, the
freedom to refuse to sell time (with the exception of candidates for federal political
office), as well as limits on the amount of advertising during programs directed
principally to children, the prohibition on tobacco advertising and the recent discuss
over whether to regulate alcohol advertisements beyond the general restriction enforced
by the Federal Trade Commission that, like all advertisements, they not be false or
 Access to Broadcast Facilities by Candidates
for Elected Political Office:
Through statute and regulations promulgated by the FCC, broadcast licensees
have obligations to provides access to candidates for federal office, and to provide a right
of reply if the licensee endorses an opposing candidate or provides discriminatory access
to its facilities. Licensees are also subject to price regulations for the sale of time to
candidates for elected political office.
The FCC relies on the "reasonable good faith judgment of licensees
to determine what constitutes reasonable access." Broadcasters must
make available a wide array of day parts to legally qualified federal candidates,
but do not have to include advertising spot time in the course of news
programs. Licensee can only create a special class of spot time for "news
adjacency" if (a) no candidate is sold time during a news program
and (b) if the lowest unit charge is provided to candidates vis a vis commercial
buyers in that day part.
Broadcasters are required to apply the same policies to candidates with respect to access the weekend before election day that they applied to commercial advertisers during the preceding year, and licensees are prohibited from discriminating among candidates seeking access during the weekend prior to election day. Depending upon the particular facts, a licensee's ordering deadlines will have to be more flexible for candidates than commercial customers in order not to be in violation of the statutory reasonable access provision."
FCC defines "use" to be only candidate appearances that are controlled, approved or sponsored by the candidate or the candidate's authorized committee after the candidate is legally qualified. Unlike the "reasonable access" provision, the equal opportunities law covers candidates for local, state and federal office. However, statutory exemptions for broadcaster compliance have been carved out for: appearances in the context of a bona fide newscast, bona fide news interview, bona fide news interview, bona fide documentary (if the candidate's appearance is incidental), or on-the-spot coverage of bona fide news events (including but not limited to political conventions. Furthermore, the FCC has adopted a Fleeting Time Doctrine which does not deem to be a "use" candidate appearances that are de minimis in length and format. However, the Fleeting Time Doctrine does not apply to candidate spot announcements.
Independently produced programs presented by licensee may qualify for
news exemption. News classification is determined by the whether the program
reports news of some kind on current events in a manner similar to traditional
newscasts; quality and or significance of the topics and stories selected
are not considered by the FCC;
Licensees are prohibited from charging candidates more than the licensee's most favored commercial advertiser for the same classes, amounts and periods of time. For each class of time, broadcaster must charge uniform rates to all candidates seeking a particular elected office. There is an affirmative obligation for broadcasters to disclose to candidates purchasing time information about rates, terms, conditions and all value-enhancing discount privileges offered to commercial advertisers. A broadcaster does not have total discretion to designate "classes of time," FCC recognizes the following distinct classes of time (a) on-preemptible, (b) preemptible with notice, (c) immediate pre-emptible, and (d) run-of-schedule (no guarantee that advertisement will run at a fixed time, or that they will run at all), as distinct classes of time. However, a broadcaster is permitted to designate separate classes of immediately preemptible time if not based only upon price, and are contingent upon at least one demonstrable benefit of the time class such as, but not restricted to, level of protection against preemption, scheduling flexibility for the broadcaster, guaranteed time-sensitive make goods.
A candidate cannot be required to purchase time in every program or day part in order to receive a package unit rate available to commercial advertisers. Enhancements, such as, but not limited to bonus spots (including Public Service Announcements, PSAs, provided to commercial advertisers in connection with a paid schedule of time), time-sensitive "make goods" (i.e., the rescheduling of preempted advertising); preemption priorities provided to commercial advertisers must be available to political candidates on an equal basis, and must be included in the calculation of the LUC. Make goods must be honored before election day, if within the previous year the broadcaster has for commercial clients provided a time-sensitive make good for the same class of time. Licensees must disclose and make available to candidates any make good policies given to commercial advertisers.
If a licensee broadcasts an editorial that either endorses or opposes a legally qualified candidate(s) the licensee must within 24 hours of the broadcast provide (a) notification of the date and time of the editorial to all other candidates for the particular office not endorsed, or the candidate(s) opposed in the editorial, (b) a script or tape of the editorial and (c) an offer of reasonable opportunity to respond through the use of the licensee's broadcast facilities. If the licensee's editorial is broadcast within 72 hours of the election, the licensee must have taken steps to afford the alternative candidate(s) timely notice and opportunity to reply. This rule is not applicable to noncommercial broadcasters since such licensees are prohibited by statute (47 U.S.C. § 399) from either supporting or opposing a candidate for political office.
Political File: All licensees must maintain and permit public
inspection of a complete and orderly record of all requests for time made
by or on behalf of a candidate for public office, information about the
disposition of the request, and the amount charged, if any, for access;
whether and when free time was provided. Records must be maintained for
(i) between January 1, 2000, and December 31, 2001, video programming distributors shall provide at least 450 hours of captioned video programming, or if the video programming distributor provides less than 450 hours of new nonexempt video programming, then 95% of its new nonexempt video programming must be provided with captions;
(ii) between January 1, 2002, and December 31, 2003, video programming distributors shall provide at least 900 hours of captioned video programming, or if the video programming distributor provides less than 900 hours of new nonexempt video programming, then 95% of its new nonexempt video programming must be provided with captions;
(iii) between January 1, 2004, and December 31, 2005, video programming distributors shall provide at least an average of 1350 hours of captioned video programming, or if the video programming distributor provides less than 1350 hours of new nonexempt video programming, then 95% of its new nonexempt video programming must be provided with captions; and (iv) as of January 1, 2006, and thereafter, 95% of the programming distributor's new nonexempt video programming must be provided with captions.
 Main Studio Location and Local Public
Obligations of Broadcasters
Congressional authority to regulate the allocation and assignment of
licenses for the use of the electromagnetic spectrum for broadcasting and
a myriad of other uses derives from its authority under the Commerce Clause
of the U.S. Constitution.(13) Beyond articulating
a licensing regime for the portion of the spectrum allocated for broadcasting
by non-governmental entities, the 1934 Act explicitly states that a broadcaster
does not have any ownership in his or his assigned channel position on
the spectrum.(14) On the basis of this
policy decision the United States Supreme Court (Court) has observed that
"the  Act is clear that no person is to have anything in the
nature of a property right as a result of the granting of a license."(15)
Furthermore, the Supreme Court (Court) has asserted that "[t]he
right of free speech does not include, however, the right to use the facilities
of radio without a license."(16) According
to the Court, "each medium of expression . . . may present its own
special [First Amendment] problems."(17)
In the case of broadcasting, "with everybody on the air, nobody could
be heard" due to the physical limits of the spectrum.(18)
"[T]he inherent physical limitation on the number of speakers who
may use the broadcast medium has been thought to require some adjustment
in traditional First Amendment analysis to permit the Government to place
limited content restraints, and impose certain affirmative obligations,
on broadcast licensees."(19) In discharging
it obligation to regulate in the public interest, the Court has explained
that "[w]here there are substantially more individuals who want to
broadcast than there are frequencies to allocate, it is idle to posit an
unbridgeable First Amendment right of every individual to speak, right,
Nevertheless, the physical limits of the broadcast spectrum does not
mean that the Congress and the Commission can ignore the First Amendment.
Indeed, the 1934 Act forbids the Commission from engaging in "censorship"
or to otherwise "interfere with the right of free speech by means
of radio communication"(21) Through
the use of public interest criteria, the Commission "must oversee
without censoring."(22) The Court
has pointed out that "[t]he FCC's oversight responsibilities do not
grant it the power to ordain any particular type of programming that must
be offered by broadcast stations; for although the Commission may inquire
of licensees what they have done to determine the needs of the community
they propose to serve, the Commission may not impose upon them its private
notions of what the public ought to hear."(23)
The tension between regulation in the public interest of a limited public
resource used for speech and the First Amendment proviso that the "Congress
shall make no law . . . abridging the freedom of speech, or of the press"(24)
lies in the fact that what constitutes interference with First Amendment
rights in the context of broadcast communication is a function of the technological
characteristics of the medium used to communicate. According to the Court,
"[a] broadcaster has a large measure of journalistic freedom but not
as large as that exercise by a newspaper. A licensee must balance what
it might prefer to do as a private entrepreneur with what it is required
to do as a public trustee."(25)
The statutory doctrine that broadcast licenses be allocated and used
consistent with the "public interest, convenience and necessity"
has endured since the codification of the Radio Act of 1927 (1927 Act).(26)
The public trustee model emerged from policy deliberations over the best
allocation regime for avoiding signal interference caused by too many broadcasters
seeking to operate on an inadequate amount of spectrum. The 1912 Act gave
the government the right to allocate frequencies but did not empower it
to avoid signal congestion by denying license applications or even regulating
signal strength or hours of operation among licensees.(27)
The 1927 Act eliminated this problem by giving the federal government the
authority to grant licenses for exclusive use of designated portions of
the radio spectrum so long as the government did so in the public interest.
The public interest model was retained in the broadcasting section of the
successor statute to the 1927 Act, the Communications Act of 1934.(28)
The public trustee model is but one possible policy solution to the
problem of signal interference. During the formulation of the Radio Act
of 1927 a deliberate choice was made to select the public trustee model
over approaches such as a "first in time, first in right" property-based
regime(29) or to regulate broadcasting
as a common carrier.(30) Nearly seventy
years later, the Telecommunications Act of 1996 explicitly affirmed and
retained the public trustee model for the assignment of digital television
spectrum to incumbent broadcasters.(31)
This decision was made amid full realization of a multichannel universe
that did not exist when the public trustee concept was first adopted by
the Radio Act of 1927 and later incorporated into the 1934 Act. Congress
continued to recognize that the intrinsic physical scarcity of broadcast
spectrum still abides. Furthermore, the Supreme Court recently declined
to question the "continuing validity" of the "scarcity rationale"
which undergirds broadcast regulation.(32)
It is through the regulatory actions of the Commission, an independent
federal agency, that the details of television public interest obligations
have taken shape. While the Commission's public interest rules for broadcasters
have from time to time been litigated in the courts or been given more
definite direction and definition through statutory measures, the Commission
by and large has had ample lee way to determine the parameters of the public
interest obligations for commercial and non-commercial broadcasters. The
Court has observed that the public interest standard is a "supple
instrument for the exercise of discretion by the expert body which Congress
has charged to carry out its legislative policy."(33)
However, as a countervailing consideration the Court has also pointed out
that since the Radio Act of 1927 the Congress has deliberately chosen to
leave the broadcast of public issue discussions to the "broad journalistic
discretion" of the licensee.(34) The
task of balancing public interest obligations with First Amendment rights
has been and will continue to be the joint, if not always harmonious, efforts
of the Commission, the courts and the Congress.
1. Title III of the Communications Act of 1934, as
amended, (1934 Act) confers upon the Federal Communications Commission
the authority to issue, review, or approve the assignment of a broadcast
license upon a finding that to do so would be in the "public interest,
convenience or necessity." See, e.g., 47 U.S.C. §§ 307(a),
It is essential to recognize that the courts have upheld the imposition of public interest obligations upon physical scarcity of the public airwaves, not economic scarcity. Compare, Red Lion Broadcasting Co. v. Federal Communications Comm'n, 395 U.S. 367 (1969) (the particular public interest obligations found in the Commission's "fairness doctrine" held consistent with the First Amendment given the physical scarcity of the public's broadcast spectrum). Miami Herald v. Tornillo, 418 U.S. 241 (1974)(rejecting an economic scarcity argument and holding that the First Amendment protects newspaper publishers from being required to print the replies of those whom are criticized in its pages). Furthermore, as a matter of First Amendment jurisprudence and legislative history it would be erroneous to characterize public trustee obligations as a condition for obtaining a license free of financial or other valuable consideration remitted to the federal government.
2. By the time that the Commission approved of the
first commercial television assignments on July 1, 1941 and adopted its
first comprehensive table of national television assignments on November
28, 1945, the public interest obligations for radio broadcasters was already
a well developed statutory and regulatory area with a jurisprudential record.
See, House Comm. on Interstate and Foreign Commerce, Network Broadcasting,
H.R. Rep. No. 1297, 85th Cong., 2nd Sess.18-20 (1958). For Commission decisions
and policies pertaining to public interest obligations of broadcasters
as well as pertinent judicial rulings extant at the time of the emergence
of commercial television, see, e.g., National Broadcasting Co., Inc, v.
United States, 319 U.S. 190, 216 (1942); Federal Radio Comm'n v. Nelson
Bros. Bond & Mortgage Co., 289 U.S. 266, 282 (1933); Federal Communications
Comm'n, Public Service Responsibility of Broadcast Licensees: Report by
the Federal Communications Comm'n (a/k/a Blue Book) (1946) (summarizes
key rulings dating from the operation of the predecessor Federal Radio
Commission and articulates current policies).
Where applicable the public interest regulatory provisions already in place for radio were applied to television broadcasters. Even today there remains substantial regulatory overlap. For example, the Code of Federal Regulations has subparts devoted exclusively to AM broadcast stations, FM broadcast stations, noncommercial educational broadcast stations, respectively, as well as a separate subpart concerning "rules applicable to all broadcast stations." See, Code of Federal Regulations Title 47, Parts 70 to 79, (Revised as of October 1, 1996) at 5-9. Regulations pertaining to public interest obligations are among those found in the latter subpart.
4. In 1996, the Commission revised its regulations implementing the Children's Television Act of 1990 (CTA) to require that a minimum of three hours of educational and informational programming be broadcaster by every full power television station each week in order to qualify for expedited approval of its educational television obligations during the license renewal process. This was prompted by an assessment that its prevailing regulations did not satisfactorily accomplish the intent of Congress expressed in the CTA. See, Policies and Rules Concerning Children's Television Programming, Revision of Programming Policies for Television Broadcast Stations, Report and Order, MM Docket No. 93-48, 11 FCC Rcd 10660 (1996).
5. See, 15 U.S.C. § 1335 (prohibiting the advertisement of cigarettes and little cigars on any medium of electronic communications regulated by the Commission); 15 U.S.C. § 4402(f) (prohibiting the advertisement of smokeless tobacco on any medium of electronic communications regulated by the Commission.
8. 47 U.S.C. § 336(d) This provision reads, in pertinent part, that "[n]othing in this section shall be construed as relieving a television broadcasting station from its obligation to serve the public interest, convenience, and necessity.... [T]he television licensee shall establish that all of its program services on the existing or advanced television spectrum are in the public interest."
10. See, esp., Section 202 of the Telecommunications Act of 1996, P.L. 104-104, 110 Stat. 56, 110-112 (Feb. 8, 1996) (modifying various broadcast ownership regulations at 47 C.F.R. §§ 73.658(g), 73.3555, 73.3613, 76.501); Limitations on holding and transfer of licenses, 47 U.S.C. § 310; Affiliation agreements, 47 C.F.R. § 73.658.
11. See, e.g., Executive Order 13038, supra n.11; Remarks by the President in address to the Conference on Free TV and Political Reform, Office of the Press Secretary, The White House, (March 11, 1997); Radio Address of The President to the Nation; Office of the Press Secretary, The White House, (June 28, 1997).
12. Only NCE organizations are eligible to receive a license to broadcast on the reserved noncommercial broadcast television spectrum. In addition, eligibility must be demonstrated through a "showing that the proposed stations will be used primarily to serve the educational needs of the community; for the advancement of educational programs; and to furnish a nonprofit and noncommercial television broadcast service." Noncommercial station "may transmit educational, cultural and entertainment programs, and programs designed for use by schools and school systems in connection with regular school course...." See, 47 C.F.R. § 73.621.
13. U.S. Const. art. I, § 8, cl. 3. The Court has repeated this point in several mass media decisions. See, e.g., Federal Communications Comm'n v. League of Woman Voters of Cal., 468 U.S. 364, 376 (1984)(providing that "we have long recognized that Congress, acting pursuant to the Commerce Clause, has power to regulate the use of this scarce and valuable national resource"); "The licensing system established by Congress in the Communications Act of 1934 was a proper exercise of its power over commerce." National Broadcasting Co., Inc. 319 U.S. at 227; "Unless Congress had exercised its power over interstate commerce to bring allocation of available frequencies . . . the result would have been impairment of the effective use of these facilities by anyone." Federal Communications Comm'n v. Sanders Bros. Radio Station, 309 U.S. 470, 474 (1939).
14. 47 U.S.C. § 301 (providing that "[i]t is the purpose of this Act, among other things...to provide for the use of such channels, but not the ownership thereof, by persons for limited periods of time, under licenses granted by Federal authority, and no such license shall be construed to create any right, beyond the terms, conditions, and period of the license").
15. Sanders Bros. Radio Station, 309 U.S. at 475. The Constitutional significance of this is that a licensee would not likely prevail in making a property "takings" case in response to a requirement the licensee devote portions of the program schedule to fulfilling public interest obligations. U.S. Const. amend. V ("[N]or shall private property be taken for public use, without just compensation.").
17. Reno v. ACLU, 138 L. Ed. 2d 874, 895 (1997)(quoting Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557 (1975)). In Reno, which struck down the Communications Decency Act of 1996 as violative of the First Amendment, the Court rejected the notion that speech regulations on the Internet ought to follow the principles of First Amendment jurisprudence applied to broadcasting. "[U]nlike the conditions that prevailed when Congress first authorized regulation of the broadcast spectrum, the Internet can hardly be considered a "scarce" expressive commodity....[O]ur cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium." Reno, 138 L. Ed. at 896-97. See also, Miami Herald, supra n. 1.
19. Turner Broadcasting Sys., Inc. v. Federal Communications Comm'n, 512 U.S. 622, 638 (1994), vacated and remanded, 910 F. Supp. 734 (1995), aff'd, 137 L .Ed. 369 (1997)(citing Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390).
27. When all who want to broadcast seek to do so, nobody can deliver a message because of the collision of signal traffic. The Radio Act of 1912 did not address this reality. Radio Act of 1912, 37 Stat. 302 (1912). The Radio Act of 1912 (1912 Act) required that steamships be installed with radio equipment with a 100 mile reach, obtain a radio license from the Secretary of Commerce and Labor and that the radio be attended to by a trained operator. The 1912 Act superseded the first federal regulation of radio, the Wireless Ship Act of 1910, 36 Stat. 629 (1910), which forbade any steamship carrying or licensed to carry fifty or more persons to leave any American port unless equipped with efficient apparatus for radio communication and attended to by a skilled operator. See, Hoover v. Intercity Radio, Co., Inc. 286 F. 1003 (D.C. Cir. 1923) (Radio Act of 1912 only afforded the Secretary of Commerce discretion to designate a wavelength that will minimize interference; but not to deny a license to an otherwise qualified applicant, even if interference results); United States v. Zenith Radio Corp., 12 F.2d 614 (N.D. Ill. 1926)(Radio Act did not give the Secretary of Commerce discretion to impose time sharing arrangements among licensees). See also, legal assessment of the Acting U.S. Attorney General that the Secretary of Commerce had no authority under the 1912 Act to regulate the power, frequency or hours of operation of broadcast radio stations. Federal Regulation of Radio Broadcasting, 35 Ops. Att'y. Gen. 126 (July 8, 1926).
28. See, Title III of the Communications Act of 1934 (as amended)(codified at 47 U.S.C. § 151 et. seq.). The U.S. Supreme Court has opined that "[i]n its essentials the Communications Act of 1934 derives from the Federal Radio Act of 1927. By this Act Congress, in order to protect the national interest involved in the new and far-reaching science of broadcasting, formulated a unified and comprehensive regulatory system for the industry." Federal Communications Comm'n v. Pottsville Broadcasting Co., 309 U.S. 134, 137 (1940).
30. AT&T advocated a common carrier approach is dubbed "toll broadcasting." See, e.g., Ithiel de Sola Pool, Technologies of Freedom 136-138 (1983). The 1934 Act explicitly prohibits the treatment of broadcasting as a common carrier service. 47 U.S.C. § 153(h) provides that "a person engaged in radio broadcasting shall not , insofar as such person is engaged, be deemed a common carrier."
34. Columbia Broadcasting Sys., Inc. v. Democratic Nat'l Comm., 412 U.S. 94 105 (1973). See also, Stone v. FCC, 466 F.2d 316, 328 (D.C. Cir. 1972)("[T]here is no requirement that a station devote twenty percent of its broadcast time to meet the need expressed by twenty percent of its viewing public.").