The federal government's oversight of broadcasting has had two general goals: to foster the commercial development of the industry and to ensure that broadcasting serves the educational and informational needs of Americans. In many respects, the two goals have been quite complementary, as seen in the development of network news operations, and in the variety of cultural, educational and public affairs programming that has been aired over the years.

In other respects, however, Congress and the FCC have sometimes concluded that the broadcast marketplace by itself is not adequately serving public needs. Accordingly, there have been numerous efforts over the past seventy years to formally encourage or require programming or airtime to enhance the electoral process, governance, political discourse, local community affairs, and education. Some initiatives have sought to help underserved audience-constituencies such as children, minorities and the disabled.

In essence, the public interest standard in broadcasting has attempted to invigorate the political life and democratic culture of our nation. Commercial broadcasting has often performed this task superbly. But when it has fallen short, Congress and the FCC have developed new policy tools that try to achieve those goals. Specific policies try to foster diversity of programming, assure candidate access to the airwaves, provide diverse views on public issues, encourage news and public affairs programming, promote localism, develop quality programming for children, and sustain a separate realm of high-quality, noncommercial television programming.

It has been an ambitious enterprise, imperfectly realized. Part of the challenge has been to use public policy, with all its strengths and limitations, to integrate vital public goals into a commercial milieu. This challenge has been complicated in recent years by rapid and far-reaching changes in technology and market structures, not to mention evolving public needs. As competition in the telecommunications marketplace becomes more acute and as the competitive dynamics of TV broadcasting change, the capacities of the free marketplace to serve public ends is being tested as never before.

Before presenting the Committee's recommendations for how the public interest standard in broadcast television should evolve in the digital era, it is important to understand the historical forces that have shaped the public interest standard in the past. Section A discusses the origins and development of the public interest standard, with special attention to the role of spectrum scarcity and government licensing in creating the "public trustee" model of broadcast regulation. Section B examines six primary realms of public interest concern in broadcast television: programming diversity, political discourse, localism, children's educational programming, access for persons with disabilities, and equal employment opportunity.


1. Spectrum Scarcity and the Public Trustee Model

A recurring challenge facing Congress and the FCC has been how to reconcile the competitive commercial pressures of broadcasting with the needs of a democratic polity when the two seem to be in conflict. This struggle was, in fact, at the heart of the controversy that led to enactment of the Radio Act of 1927 and the Communications Act of 1934.

Under the antiquated Radio Act of 1912, the Secretary of Commerce and Labor was authorized to issue radio licenses to citizens upon request. Because broadcast spectrum was so plentiful relative to demand, it was not considered necessary to empower the Secretary to deny radio licenses. By the 1920s, however, unregulated broadcasting was causing a cacophony of signal interference, which Commerce Secretary Hoover was powerless to address. The lack of a legal framework for regulating broadcasting not only prevented reliable communication with mass audiences, it thwarted the commercial development of broadcasting.

Thus began an extended debate over how to allocate a limited amount of broadcast frequencies in a responsible manner. A prime consideration was how to assure the free speech rights of the diverse constituencies vying for licensure. Some groups -- especially politicians, educators, labor activists and religious groups -- feared that, under a system of broadcast licensing, their free speech interests might be crowded out by inhospitable licensees, particularly commercial interests. They therefore sought (among other policy remedies) a regime of common carriage. A common carrier system would have required broadcasters to allow anyone to buy airtime, ensuring nondiscriminatory access.

Existing broadcasters, for their part, sought to maintain editorial control and to develop the commercial potential of forging individual stations into national networks. They wanted Congress to grant them full free speech rights in the broadcast medium and not be treated as common carriers.

This basic conflict was provisionally resolved by passage of the Radio Act of 1927, and seven years later, by the Communications Act of 1934. The 1934 Act, which continues to be the charter for broadcast television, ratified a fundamental compromise by adopting two related provisions: a ban on "common carrier" regulation (sought by broadcasters) and a general requirement that broadcast licensees operate in the "public interest, convenience and necessity" (supported by Congress and various civic, educational and religious groups).(1) The phrase was given no particular definition; some considered it necessary in order for the government's licensing powers to be considered constitutional.(2)

By prohibiting a common carriage regime, Congress essentially prohibited non-licensees from having free speech rights in the broadcast medium except as authorized by "public interest" requirements. Only government-sanctioned licensees would, as a rule, have free speech rights in broadcasting. While the limited number of licensees was in one respect dictated by the physics of the electromagnetic spectrum (only so many stations could operate without chaos resulting), the "scarcity" was also dictated by the government licensing scheme, which banned a regime of common carriage. The scarcity of access to the airwaves is, in this sense, a creature of government licensure.

The government's exclusionary licensing arrangement was justified by requiring that broadcasters act as public fiduciaries. Their primary duty would be to serve the "public interest, convenience and necessity," as expressed in both the 1927 and 1934 Acts. The Federal Radio Commission that was created by the 1927 Act described the "public trustee" model in this manner:

[Despite the fact that] the conscience and judgment of a station's management are necessarily personal....the station itself must be operated as if owned by the public....It is as if people of a community should own a station and turn it over to the best man in sight with this injunction: "Manage this station in our interest..." The standing of every station is determined by that conception.(3)

To give substance to the public interest standard, Congress has from time to time enacted its own requirements for what constitutes the public interest in broadcasting. But Congress also gave the FCC broad discretion to formulate and revise the meaning of broadcasters' public interest obligations as circumstances changed.

The FCC's authority, while extensive, is constrained by traditional First Amendment principles. Government may not censor broadcasters (under Section 326 of the Act), for example, nor may it regulate content except in the most general fashion, such as favoring broad categories of programming such as public affairs and local programming. The FCC can intervene to correct perceived inadequacies in overall industry performance, but it cannot trample on the broad editorial discretion of licensees.

As the foregoing history suggests, the fundamental legal framework that governs the broadcast industry sets it apart from other media. In broadcasting the federal government grants exclusive free speech rights to licensees, while denying such freedom to others. To justify this privileged treatment, Congress and the courts have mandated that licensees serve as "public trustees" of the airwaves.

The public trustee model has given rise to a distinct genre of First Amendment jurisprudence. Unlike newspapers and magazines, broadcasters have affirmative statutory and regulatory obligations to serve the public in specific ways. Despite the philosophical complications and political tensions that this arrangement entails, the U.S. Supreme Court has repeatedly upheld the public trustee basis of broadcast regulation as constitutional.(4)

The reason that broadcasters have substantial, but not complete, First Amendment protection, said the Court, is the scarcity of broadcasting frequencies and the government licensing that is necessary:

When there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write or publish....A license permits broadcasting, but the licensee has no constitutional right to be the one who holds the license or to monopolize a radio frequency to the exclusion of his fellow citizens.(5)

Therefore, the Government may require a licensee "to share his frequency with others and to conduct himself as a proxy or fiduciary with obligations to present those views and voices which are representative of his community and which would otherwise, by necessity, be barred from the airwaves."

While the reasoning of the Red Lion case has been challenged by many commentators, it stands as the prevailing ruling in this area. (6) Much of the criticism focuses on how the "scarcity rationale" has been invalidated by the proliferation of new media outlets. Many broadcasters and others also argue that scarcity is a basic economic fact of life affecting all media, so why should it justify broadcast regulation?(7) Defenders of Red Lion assert that there are still more applicants for broadcast licenses than licenses available ­ a basic definition of scarcity -- and that government selection of one licensee over another justifies the continuing application of the public interest standard.

2. Broadcast Television and Democratic Deliberation

The licensing arrangements that gave rise to public interest obligations were an attempt to reconcile the prerogatives of commercial interests on the one hand with the needs of the democratic polity on the other. Yet they also introduced tensions in First Amendment jurisprudence and gave rise to different visions of free speech.

One vision, often associated with Justice Oliver Wendell Holmes, sees the First Amendment as a guarantor of the "free marketplace of ideas" against government encroachment. Under this familiar metaphor, a "free trade in ideas" in a pluralistic society will yield the most freedom, the closest approximations to truth, and the greatest common good.

An overlapping perspective with a different emphasis is associated with James Madison, the great champion of free speech during the framing of the Constitution and Bill of Rights. For Madison, the First Amendment was important as a way to assure political equality, especially in the face of economic inequalities, and to foster free and open political deliberation.(8) This conception of the First Amendment sees free speech as servicing the civic needs of a democratic polity. Free speech, in Madison's view, expresses the sovereignty of the people. Justice Louis Brandeis, also associated with this vision of the First Amendment, emphasizes the vital role of citizens in coming together as political equals to engage in rational political discussion.(9) In Brandeis' view, free speech is not just an end unto itself, or simply a freedom from government meddling; it is a necessary means for democratic self-governance.

The philosophical distinction between the free marketplace of ideas metaphor and the Madisonian notion of a deliberative democracy is not academic. It lies at the heart of the public interest standard in broadcasting. From the beginning, broadcast regulation in the public interest has sought to foster certain basic needs of American politics and culture, over and above what the marketplace may or may not provide. It has sought to cultivate a more informed citizenry, greater democratic dialogue, diversity of expression, a more educated population, and more robust, culturally inclusive communities.

The Madisonian concept of free speech helps clarify, then, why public interest obligations have been seen as vital to broadcast television ­ and why a marketplace conception of free speech may meet many, but not all, needs of our democratic polity. As a number of constitutional scholars have noted, the famous "marketplace of ideas" metaphor associated with Justice Holmes presumes that diverse ideas have the ability to compete for public acceptance.

Some scholars say the marketplace metaphor obscures the extent to which political outcomes require active deliberation and debate. This requires public fora that can give serious, sustained attention to different perspectives. These public fora must be open and accessible to divergent viewpoints, and they must be able to facilitate citizen participation in matters of democratic concern.(10) The marketplace may or may not serve these needs well. When Congress and the FCC have determined that public policy is needed to fulfill conditions that Madison saw as primary to the First Amendment, they have developed new applications of the public interest standard.

Another view of the First Amendment, propounded by many broadcasters and others, is that the marketplace alone is the best guarantor of diversity of expression. Government's role is likely to be intrusive and inimical to diverse expression, according to this perspective; only a robust, free marketplace can duly honor the free speech rights of speaker and listener. As one commentator from this perspective writes:

The question of whether or not an unregulated marketplace produces "enough" valuable speech, or conversely, "too much" worthless or harmful speech, assumes an ability to determine the optimal amount separate from the voluntary choices of speakers and listeners. It presumes that the "public interest" should outweigh traditional First Amendment concepts of speaker and listener autonomy.(11)

By this view, any government policy that presumes to affect the content of broadcasting (such as limitations on advertising, guidelines for public affairs programming or requirements for children's educational programming) represents an abridgement of broadcasters' First Amendment rights.

The philosophical disagreements between the marketplace and Madisonian interpretations of the First Amendment have ebbed and flowed over time. But in general, when the public interest standard has been applied by Congress or the FCC, they have cited the need to help the American democratic polity to function more effectively and to help civic culture thrive. While some applications of the public interest standard have been highly controversial, others have gained wider acceptance and proven quite durable.

We turn, then, to six major arenas in which the public interest standard has most often been applied: diversity of programming; political discourse; localism; children's educational programming; access to persons with disabilities, and equal employment opportunity.



1. Encouraging Diversity of Programming

If broadcasters are meant to act as trustees for the public interest, then a corollary is that they must affirmatively present a wide diversity of perspectives. This is clearly a central role of the First Amendment, and the reason why the federal government from the beginning of broadcasting has sought to encourage programming diversity.

The first major initiative in this regard was a set of guidelines known as Great Lakes Broadcasting Co., issued by the Federal Radio Commission in 1929. To assess the performance of licensees under the public interest standard, the FRC declared that a station should meet the

tastes, needs and desires of all substantial groups among the listening some fair proportion, by a well-rounded program, in which entertainment, consisting of music of both classical and lighter grades, religion, education and instruction, important public events, discussions of public questions, weather, market reports, and news, and matters of interest to all members of the family, find a place.(12)

The FRC held that programming along these lines would be considered part of a station's public interest obligation at the time of license renewal. Apart from pushing "propaganda stations" off the air, the FCC did not flex its muscle significantly to affect programming during the 1930s and 1940s.(13)

The Supreme Court in 1943 affirmed the FCC's broad powers over the broadcasting industry ­ including its authority over programming content -- in its landmark ruling, National Broadcasting Co. v. United States.(14) This decision declared that the public interest standard is the touchstone of FCC authority; that the standard is not unconstitutionally vague; that the scarcity rationale justifies the public interest standard as well as content regulation; and that FCC license revocations and nonrenewals do not violate the First Amendment rights of broadcasters.

Despite the FCC's reticence toward content regulation in the 1930s, the changing economies of network radio and proliferation of entertainment programming prompted the Commission in 1946 to issue another general policy statement about programming. This was the Blue Book, so-named because of its blue cover but formally known as Public Service Responsibility of Licensees. The Blue Book defined how the FCC would assess the public interest performance of licensees at renewal time. It required four basic components: live local programs, public affairs programming, limits on excessive advertising, and "sustaining" programs. (Sustaining programs were unsponsored network shows that were deliberately created to showcase high-quality programming having experimental formats or appealing to niche audiences.)

Important symbolically, the Blue Book never had legal force. The FCC neither ratified nor rejected the Blue Book guidelines. If the Commission's goals in developing the guidelines were seen by many as laudable, the idea of government mandating specific programming, even to public trustees of the airwaves, was seen as contrary to the First Amendment. The National Association of Broadcasters, which had a voluntary code of programming standards, used this occasion, nonetheless, to issue a new and stronger code in 1948.

The challenge facing the FCC, then and on other occasions since, has been to give substance to the broad public interest standard without becoming too prescriptive or intrusive. This is an inherently difficult task, since the first duty ­ to assure licensee compliance with public trustee responsibilities ­ quickly threatens to run athwart the First Amendment. After a number of scandals in the late 1950s involving rigged quiz shows and radio "payola" (the paying of bribes for radio airplay of certain songs), public confidence in broadcasting was shaken. The FCC decided that it was an appropriate moment to clarify the meaning of the public interest standard once again and articulate guidelines for programming.

The result was nineteen days of hearings and testimony from more than ninety witnesses, culminating in the FCC's 1960 report, Report and Statement of Policy re: Commission en banc Programming Inquiry. Widely known as the 1960 Programming Policy Statement, the report listed fourteen "major elements usually necessary to the public interest":

1. Opportunity for local self-expression.

2. The development and use of local talent.

3. Programs for children.

4. Religious programs.

5. Educational programs.

6. Public affairs programs.

7. Editorialization by licensees.

8. Political broadcasts.

9. Agricultural programs.

10. News programs.

11. Weather and market services.

12. Sports programs.

13. Service to minority groups.

14. Entertainment programming.The FCC noted that the categories were not intended as "a rigid mold or fixed formula for station operations," but rather were "indicia of the types and areas of service" that constitute the public obligations of broadcasters, as evaluated at license renewal time.

This general approach to defining the public interest standard prevailed for the next two decades. In the years following the Statement, the FCC adopted guidelines for minimum amounts of news, public affairs and other non-entertainment programming,(15) and prime-time access rules (to encourage non-network and local programming).(16) Without specifying actual program content, the FCC's goal was to mandate certain market parameters as an indirect means of stimulating programming of civic importance.

The FCC's vision of the public interest standard ­ and how to achieve diverse programming -- underwent a significant transformation in the 1980s. As new media industries arose and a new set of FCC Commissioners took office, the FCC made a major policy shift by adopting a marketplace approach to public interest goals. In essence, the FCC held that competition would adequately serve public needs, and that federally mandated obligations were both too vague to be enforced properly and too threatening of broadcasters' First Amendment rights.(17) Many citizen groups argued that the new policy was tantamount to abandoning the public interest mandate entirely.

Pursuant to its marketplace approach, the FCC embarked upon a sweeping program of deregulation by eliminating a number of long-standing rules designed to promote program diversity, localism, and compliance with public interest standards. These rules included requirements to maintain program logs, limit advertising time, air minimum amounts of public affairs programming, and formally ascertain community needs.(18) The license renewal process -- historically, the time at which a station's public interest performance is formally evaluated -- was shortened and made virtually automatic through a so-called "postcard renewal" process.(19) The FCC also abolished the Fairness Doctrine, which had long functioned as the centerpiece of the public interest standard.(20)

In 1996, Congress expanded the deregulatory approach of the 1980s with its enactment of the Telecommunications Act.(21) Among other things, the Act extended the length of broadcast licenses from five years to eight years, and instituted new license renewal procedures that made it more difficult for competitors to compete for an existing broadcast license. These changes affected the ability of citizens and would-be license applicants to critique (at license renewal time) a broadcaster's implementation of public interest obligations. The 1996 Act also lifted limits on the number of stations that a single company could own, a rule that historically had been used to promote greater diversity in programming.

The range of programming has expanded as the number of broadcasting stations and other media has proliferated over the past twenty years. Yet market forces have not necessarily generated the kinds of quality, non-commercial programming that Congress, the FCC and others envisioned. Hence Congress and the FCC have retained rules regarding children's educational programming, local news and public affairs, and candidate access, among other things.

2. Broadcasting as a Forum for Political Discourse

a. Candidate Access to the Airwaves. Even though Congress, in enacting the Communications Act, gave broadcasters broad editorial control of the airwaves, it did retain one common-carrier-like provision to ensure access for legally qualified candidates for federal office. The "equal opportunities" provision of the Act -- often referred to as "equal time," or Section 315 -- gives candidates the legal right to airtime if their opponents are given or buy airtime.

The equal opportunities rules were enforced without complication until 1959, when Lar Daly, a political opponent of Chicago Mayor Richard Daley, demanded free airtime from a TV station after Mayor Daley was shown on the evening news at a ceremonial event. This unexpected use of Section 315 prompted Congress to amend it, exempting the news from equal-opportunity requirements. Another complication arose in 1960 when Congress decided to suspend the rules to allow the JFK-Nixon debates to proceed without networks having to grant airtime to minor candidates. This exception for candidate debates was formalized and broadened in 1975, when the FCC exempted "bona fide news events" and other categories of news programming from Section 315.

The FCC has issued other rules governing candidate access to the airwaves. The Zapple rule requires that if a broadcaster sells airtime to one candidate, it must sell similar airtime to opposing candidates.(22) In the same vein, the FCC has mandated that candidates have a right of reply to political editorials and candidate endorsements and attacks made by licensees. If a broadcast licensee airs an editorial that either endorses or opposes a legally qualified candidate, the licensee must notify all other candidates for that particular office within 24 hours, provide them with a script or tape, and offer them a "reasonable opportunity to respond through the use of the licensee's broadcast facilities."(23)

Finally, Congress in the early 1970s determined that it was in the public interest for candidates to be able to buy airtime for their campaigns even if broadcasters did not want to sell any time. Congress guaranteed that if a broadcaster offers to sell time to political candidates (including state and local candidates), the broadcaster must charge them the "lowest unit charge of the station" for the "same class and amount of time for the same period," during the 45 days preceding a primary election and the 60 days preceding a general or special election.(24)

While candidates have guaranteed access to the airwaves under prescribed conditions, political editorial advertising (also known as "issue advertising") does not enjoy such protection. The 1973 Supreme Court ruling in CBS v. Democratic National Committee held that broadcasters have total discretion over whether to accept or reject editorial advertisements.(25) Essentially, the Court held that broadcasters, as licensees, enjoy broad editorial control to serve the public interest, and need not function as common carriers open to any paying customer. But this editorial control was justified in part, the Court noted, because the Fairness Doctrine (discussed below) and broadcast news otherwise ensure that the public can hear diverse perspectives on controversial issues.

b. Citizen Access to the Airwaves. If politicians have the equal-time provisions, the chief legal vehicle for citizens to gain direct access to the airwaves -- or hear diverse viewpoints on controversial public issues ­ was the Fairness Doctrine. The principles behind the Fairness Doctrine were first expressed by the Great Lakes Broadcasting Co. guidelines issued by the Federal Radio Commission in 1929. That statement affirmed the need for broadcasters to serve a diverse public with well-rounded programming.

In pursuit of the utmost even-handedness, the FCC held in the Mayflower ruling in 1940 that a broadcast station could never editorialize because it would flout the public interest mandate that all sides of a controversial issue be fairly presented. Licensees, the FCC said, must present "all sides of important public questions fairly, objectively and without bias."(26)

By 1949, in its Report on Editorializing by Broadcast Licensees, the Commission reversed its Mayflower ruling that editorializing was inconsistent with the public interest. But the FCC reaffirmed its holding that licensees must not use their stations "for the private interest, whims or caprices [of licensees], but in a manner which will serve the community generally."(27) To achieve this goal, the FCC promulgated the "Fairness Doctrine" to ensure that "all sides of important public questions [are presented] fairly."

For decades, the Fairness Doctrine was seen as a primary feature of the public interest standard. It consisted of two prongs: that broadcasters devote a reasonable amount of time to cover controversial issues of public importance, and that they provide a reasonable opportunity for the presentation of contrasting viewpoints. A licensee's compliance with the Fairness Doctrine was considered a major performance criterion at renewal time.

In the 1960s the procedures for enforcing the Fairness Doctrine were fortified. Complaints about one-sided coverage were adjudicated not just at license renewal time as part of a station's overall performance, but on a case-by-case basis. This change increased the gravity of complaints, instigated long procedural reviews, and encouraged greater FCC involvement with broadcast content.

In addition, the substantive scope of the Fairness Doctrine was expanded to include advertising, news coverage and personal attacks. The FCC decided in 1963 that the presentation of only one side of an issue during a sponsored program (such as an attack on the proposed Nuclear Test Ban Treaty) required free airtime for opposing views -- a rule known as the Cullman Doctrine.(28) Cigarette advertising, and later, controversial advertising in general, became subject to the Fairness Doctrine.(29) In 1967 the Commission issued the "personal attack rule," which required licensees to notify any individuals or groups who are attacked during broadcasts about controversial issues, and to give them a reasonable opportunity to respond.(30)

Broadcasters, objecting to the "chilling effects" of the Fairness Doctrine on their free speech, eventually challenged the constitutionality of the Fairness Doctrine. The case that came before the U.S. Supreme Court involved Red Lion Broadcasting of Red Lion, Pennsylvania, which had refused to give writer Fred J. Cook an opportunity to reply to a personal attack on him during a paid program. Cook sued, citing the Fairness Doctrine, and prevailed in the Supreme Court.

The landmark Red Lion Broadcasting v. FCC decision in 1969 upheld the constitutionality of the public interest standard in general and the Fairness Doctrine in particular.(31) One of the oft-quoted principles of the decision echoes Herbert Hoover and the Federal Radio Commission: "It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount," the Supreme Court stated.

Since the legal contours of the Fairness Doctrine had changed over the course of more than two decades (e.g., its applicability to advertising had been rescinded(32)), the FCC in 1974 issued The Handling of Public Issues Under the Fairness Doctrine and the Public Interest Standard of the Communications Act, Fairness Report to guide broadcasters and the public.(33) This was the heyday of the Fairness Doctrine, in which citizen groups and others periodically complained about one-sided coverage and negotiated airtime to respond. Broadcasters complained that the rule had a "chilling effect" on their free speech by discouraging them from airing programming on controversial issues.

In 1985, the FCC agreed, and formally determined that the Fairness Doctrine was incompatible with the public interest. But because of legal contention over whether the doctrine was a statutory or regulatory creation (and thus over who had the authority to revoke it), the FCC invited either Congress or the courts to make a determination. The D.C. Circuit obliged by declaring that the FCC had the authority to rescind the Fairness Doctrine.(34) During this time, Congress failed in its attempt to codify the doctrine through legislation (because of a presidential veto). Pursuant to the Circuit Court ruling, the FCC then rescinded the Fairness Doctrine in 1987.(35)

3. Broadcasting as a Force for Localism

Another long-standing tradition in broadcast regulation has been the affirmative need of stations to serve their local communities. The principle was a part of the 1927 Radio Act and 1934 Communications Act, and it has been periodically cited by the FCC as an important component of programming and the license renewal process.

Two of the four programming requirements cited by the Blue Book in 1946 were "local live programs" and "programming devoted to discussion of local public issues." The 1960 Program Policy Statement gave a similar emphasis, citing "opportunity for local self-expression" and "the development and use of local talent" as the first two of fourteen programming priorities. This statement also declared that the "principal ingredient" of the public interest standard "consists of a diligent, positive and continuing effort by the licensee to discover and fulfill the tastes, needs and desires of his service area. If he has accomplished this, he has met this public responsibility."

This concept of seeking out the needs of the local audience, known as "ascertainment," is a procedure that a great many broadcasters follow as a simple matter of good business practice. But others have been less conscientious. Deficiencies in local engagement prompted the FCC to issue a formal Ascertainment Primer in 1971 to "aid broadcasters in being more responsive to the problems of their communities" and to "add more certainty to their efforts in meeting Commission standards."(36) The primer advises broadcasters to consult with community leaders and members of the general public, in order to help stations develop suitable local programming and public service announcements.

While some TV stations have criticized ascertainment procedures as an empty and costly formalism, many community leaders have seen it as a useful requirement that can lead to responsive local programming. In any case, the FCC struck ascertainment requirements from its books in 1987 as part of its new deregulatory approach. The FCC now relies upon broadcasters and the marketplace to meet their general obligation to serve their local communities.

Localism was one reason that Congress enacted the "all-channel" law in 1962 requiring television receivers to be capable of receiving both VHF and UHF signals. The idea, according to a House committee report, was to "permit all communities of appreciable size to have at least one television station as an outlet for local self-expression."(37) With varying degrees of success, the FCC has also sought to promote locally originated programming through the Prime Time Access Rule (which limits networks to three hours of programming during prime time) and through policy statements that mention local news and public affairs programming as inherent to the public interest standard.

The bond between broadcasters and their local communities was given a new and stronger dimension in the 1960s as a result of United Church of Christ v. FCC. After the station owner of WLBT in Jackson, Mississippi, aired a program urging racial segregation while consistently refusing to air the views of civil rights activists or even to meet with them, the United Church of Christ and others in 1964 petitioned for legal standing to challenge the renewal of WLBT's broadcast license. A circuit court ruling in 1966 held that citizens do have the right to participate in the FCC license renewal process.(38) This ruling opened the door to active citizen participation with local broadcasting and the FCC, a major development that gave greater substance to the principle that broadcast licensees must serve their local communities.

Localism has been such a central feature of broadcast television that Congress in 1992 declared: "A primary objective and benefit of our Nation's system of regulation of television broadcasting is the local origination of programming. There is a substantial governmental interest in ensuring its continuation."(39) Pursuant to this and other goals, Congress enacted the Cable Television Consumer Protection and Competitive Act of 1992 to assure that local broadcast programming would be available to the millions of Americans who cannot afford cable TV or do not have access to free local programming. The so-called "must-carry" rules that resulted require cable operators to distribute broadcast television programming over their systems. While the cable industry challenged the constitutionality of the must-carry rules, the Supreme Court in Turner Broadcasting v. FCC recognized Congress' rationale for the must-carry rules and upheld them as consistent with the First Amendment.(40)

As the must-carry and other regulations illustrate, policymakers view broadcast television primarily as a local service. Community programming and service are public interest responsibilities that distinguish broadcasting from most other electronic media.

4. The Public Interest in Children's Educational Programming

The public interest standard did not explicitly mention the needs of children until 1960, when the FCC's Program Policy Statement cited children's programming as one of the fourteen components "usually necessary to meet the public interest, needs and desires of the community." That commitment has been unevenly fulfilled, given the commercial pressures on broadcasters to expand the number of advertising minutes per hour. It is also difficult to define "quality" programming in an enforceable way.

The essential debate over children's television has revolved around specific ways in which children's programming could or could not be exempted from the customary workings of the marketplace in order to produce "better" programming. The earliest, most ambitious attempt to develop extra-market standards for children's television was initiated by Action for Children's Television. The group sought fourteen hours of children's programming per week per station; age-appropriate programming for different groups of children; bans on performers promoting products during programs; and the clustering of commercials at the beginning and end of programs. (In the meantime, on a separate front, a new genre of noncommercial children's programming, exemplified by Sesame Street, arose, largely insulated from customary commercial pressures.)

The FCC initiated a rulemaking in 1970, and what ultimately resulted, in 1973, were a number of voluntary changes to the National Association of Broadcasters' code. The NAB agreed to separate commercials from programming and ban host selling; to forbid ads for vitamins and drugs during children's shows; and to reduce the number of ads per hour from 16 minutes to 12 minutes during weekdays, and to 9-1/2 minutes during the weekend.

After the NAB adopted its voluntary industry code, the FCC chose not to exercise its authority and issue new requirements for children's programming. The Commission did, however, issue a 1974 Policy Statement declaring that "broadcasters have a special obligation to serve children."(41) The statement had no specific mandates, opting instead for a general, ad hoc approach to the problems documented. Still, the authority of the FCC to require programming to meet the needs of children was later upheld by the D.C. Circuit Court in ACT v. FCC, which wrote: "It seems to us that the use of television to further the educational and cultural development of America's children bears a direct relationship to the licensee's obligations under the Communications Act to operate in the 'public interest.'"(42)

Reporting rules for children's programming were tightened in 1975,(43) and the guidelines reaffirmed in the 1978 Children's Television Report, which determined that self-regulation was not working. A 1979 report showed continued shortcomings,(44) and proposed somewhat more prescriptive rules.(45)

This initiative never came to fruition, however, as a new set of commissioners took office in the early 1980s and a new chairman, Mark Fowler, decided in 1984 that the marketplace could sufficiently meet children's needs and serve the public interest.(46) On this basis, the FCC repealed the 1974 Policy Statement that stations should air "education and informational programming" for children. Critics charged that the amount of children's programming dramatically declined as a result, and that the toy merchandising tie-ins to programming increased.(47) The Reagan Justice Department, meanwhile, challenged the provision in the NAB's voluntary code limiting advertising on children's programming as a violation of antitrust law. After this effort succeeded in 1982, the NAB decided to eliminate the remainder of its code.

Disturbed at the failure of a deregulated marketplace to generate adequate educational programming for children and to curb over-commercialization, Congress in 1990 enacted the Children's Television Act of 1990.(48) It mandated that broadcasters air three hours of educational children's programming per week which "furthers the positive development" of children 16 years and younger. Advertising on children's programming would be limited to 12 minutes per hour during weekdays, and 10.5 minutes during weekends. The Act also declared that the "educational and informational needs of children" would be a criterion for assessing a broadcaster's public interest performance at license renewal time.

The FCC under Chairman Hundt developed processing guidelines that assured automatic license renewals for those stations that aired three hours of children's educational programming, but full Commission review for those stations that did not. It also issued more specific definitions of what constitutes educational and informational programming for children.(49)

The public interest in affirmatively serving children has had a number of other expressions. Broadcasters are forbidden from transmitting any obscene, indecent or profane language over the airwaves from 6 a.m. to 10 p.m.(50) The Telecommunications Act of 1996 also encouraged the TV industry to develop a voluntary ratings system, which allows parents to assess the suitability of programming for their children. This measure is designed to be used in conjunction with a so-called V-chip in television sets, which will enable parents to block objectionable programming.

5. Access for Persons with Disabilities

Just as Congress has expanded choices for children and parents through federal mandates, it has done the same for the deaf and hard-of-hearing through legislation that promotes closed captioning on television programming. Closed captioning is a technology that uses the "vertical blanking interval" in analog television signals to transmit captions on TV screens that display the words being spoken on programming. Since captioning services were first begun in 1980 through a cooperative agreement among several major networks, closed captioning has grown, and become widely used among the 28 million Americans with hearing disabilities.

Congress has recognized the public interest of extending television to the deaf and hearing impaired through two key legislative acts. The Television Decoder Circuitry Act of 1990 requires all new TV sets to have special decoder chips to display closed captioned television transmissions. To rectify a market failure, the Telecommunications Act of 1996 sets forth extensive requirements for the provision of closed captions on television. An FCC rulemaking in 1997 established a series of deadlines that will make 95 percent of all new programming captioned over an eight-year period that began January 1, 1998.(51)

6. Equal Employment Opportunity

Another important component of the public interest standard in broadcasting is the assurance of equal employment opportunities at the workplaces of broadcast licensees. Equal employment opportunity is, of course, a well-established national policy, first mandated by Section VII of the Civil Rights Act of 1964, and overseen by the Equal Employment Opportunities Commission and the Department of Justice. The FCC has also required that broadcast licensees provide equal employment opportunities (EEO) in order to meet the public interest standard. This authority is exercised as part of the Commission's expansive powers to assure that licensees serve the "public interest, convenience and necessity," as specified in the Communications Act.(52) The FCC is obliged to ensure that licensees act as responsible public trustees, and that requires an attentiveness to the concerns of minorities and women in a number of areas.(53)

For example, the character qualifications of broadcast licensees is one factor that the FCC must consider in granting licenses, a principle that may entail practices that affect minorities and women.(54) Serious questions about the character of a licensee would be raised if a broadcaster consistently discriminated in its employment practices. Similarly, the FCC, in implementing the public interest standard, has long sought to assure that diverse viewpoints, including those of minorities, are expressed in programming and included in programming decisions.(55) One important way of fulfilling this mandate, the FCC has determined, is through the recruitment and employment of a reasonable number of minorities and women.

Historically, the public interest standard has required licensees to ascertain community needs as part of their public trustee function, in order to help make programming more responsive to local communities. A licensee who discriminates in employment policies or practices is not likely to fulfill the ascertainment function well. As the FCC noted in 1968, the existence of discriminatory employment practices "immediately raises the question of whether [the licensee] is consulting in good faith with Negro community leaders concerning programming to serve the area's needs and interests. Indeed, the very fact of discriminatory hiring policies may effectively cut the licensee off from success in such efforts."(56)

As these examples suggest, the FCC's policymaking in equal employment opportunities, while supportive of a general national policy, is based on the distinctive character of broadcasting as a unique mass medium and by the specific statutory mandate of the Communications Act and its administrative implementation.

The FCC first issued EEO rules in 1969 when it prohibited discrimination among licensees and required them to review their employment policies and practices to identify any barriers to equal opportunities.(57) The FCC's policies and enforcement have evolved over the years to take account of other, more specific needs. Broadly speaking, FCC rules prohibit broadcasters from overt discrimination on the basis of race, color, national origin, religion and gender.(58) They also require broadcasters to show that they have made systematic efforts to recruit, hire and promote minorities and women.(59)

In addition, the rules require annual reporting of data showing the results of those efforts. Starting in 1973, the Commission began to review this employment data in considering broadcasters' license renewal applications; it required broadcasters whose results fell below certain benchmarks to demonstrate that they had in fact sought to recruit minorities and women. Since the FCC adopted its EEO rules, broadcast industry employment at all levels, including management, has improved more rapidly than in the rest of the American workforce.(60)

The specific regulatory approaches for promoting equal employment opportunity in broadcasting have changed over time, and are likely to continue to evolve. But the FCC's basic commitment to promoting equal employment opportunity in broadcasting and diversity of programming and viewpoints remains unchanged.

One modification to the FCC's EEO policy occurred in 1998 when the U.S. Court of Appeals declared the FCC's recruitment rules unconstitutional.(61) The Court left in place the FCC's reporting requirements and anti-discrimination provisions. It is unclear to some parties whether the ruling struck down the FCC's processing guidelines only, or the FCC's broader authority even to issue EEO recruitment rules. As of November 1998 the FCC and Department of Justice were still deciding whether to seek Supreme Court review of the D.C. Circuit's decision. In any case, many broadcast entities have made voluntary commitments to comply with the FCC's EEO principles, including recruitment of minorities and women, regardless of the rule's constitutional fate.

Shifts in the regulatory implementation of EEO goals over time are inevitable. But the FCC's authority to advance equal employment opportunities remains intact, and is an important component of the public interest standard.


Although some of its specific applications have been controversial, the public interest standard has become widely accepted as integral to broadcasting. The standard has provided the legal basis for promoting greater diversity in programming, more robust political discussion, candidate access to the airwaves, programming that serves local communities, children's educational programming, access to programming for Americans with sight disabilities, and equal employment opportunities within broadcasting.

As the new era of digital television arrives, the times demand a thoughtful re-engagement with the meaning of the public interest standard. Many existing principles of public interest performance are likely to need new interpretations in light of the new technology, market conditions and cultural needs. In this spirit, we turn now to some imaginative, flexible and effective strategies that the Committee believes will help assure that the traditional public purposes of broadcast television will continue to be met in the digital era.



See, e.g., Max D. Paglin, editor, A Legislative History of the Communications Act of 1934 (New York: Oxford University Press, 1989); the legislative history of the Act recounted in CBS v. DNC, 412 U.S. 94, 103-110; and Tracy Westen, "Government-Created Scarcity: Thinking About Broadcast Regulation and the First Amendment," in Digital Broadcasting and the Public Interest, Charles M. Firestone and Amy Korzick Garmer, editors (Queenstown, Md: The Aspen Institute, 1998).


2 See Louis G. Caldwell, "The Standard of Public Interest, Convenience or Necessity, as Used in the Radio Act of 1927," Air Law Review 1, July 1930, pp. 295-330., and William D. Rowland, Jr., "The Meaning of 'The Public Interest' in Communications Policy ­ Part I: Its Origins in State and Federal Regulation," paper presented to International Communications Association, 1989 Annual Meeting, San Francisco, CA, cited in Robert W. McChesney, Telecommunications, Mass Media and Democracy: The Battle for Control of U.S. Broadcasting, 1928-1935, p. 18.

3. 3 See The Federal Radio Commission and the Public Service Responsibility of Broadcast Licensees 11 Fed. Com. B.J. 514 (1950), quoted in Freedom, Technology and the First Amendment, at p. 176. The Committee is grateful to attorney Erwin G. Krasnow for his briefing paper "The 'Public Interest' Standard: The Elusive Search for the Holy Grail," presented to the Committee on October 22, 1997, from which this and several other citations are taken.


4 Red Lion Broadcasting Company v. FCC, 395 U.S. 367 (1969).

5. 5 Op. cit., 388.


6 The Supreme Court has either relied upon Red Lion or cited it approvingly in CBS v. DNC, 412 U.S. 92 (1973); FCC v. NCCB, 436 U.S. 775 (1978); CBS v. FCC 453 U.S. 367 (1981); FCC v. League of Women Voters, 468 U.S. 364 (1984); Turner Broadcasting v. FCC, 114 S.Ct. 2445 (1994); and Reno v. American Civil Liberties Union, 117 S.Ct. 2329 (1997). Some constitutional law scholars, however, cite language in many of these cases to suggest that the Court might be willing to reconsider Red Lion under appropriate circumstances.


7 Expressions of this viewpoint include Thomas G. Krattenmaker and Lucas A. Powe, Jr., Regulating Broadcast Programming (Cambridge, Mass.: MIT Press, 1994), pp. 204-219; and Laurence H. Winer, "Public Interest Obligations and First Principles," Issues in Broadcasting and the Public Interest, Paper No. 1, The Media Institute.


8 Cass R. Sunstein, Democracy and the Problem of Free Speech (New York: The Free Press, 1993), p. xvii.


9 A key statement of Brandeis' understanding of the First Amendment can be seen in Whitney v. California, 274 U.S. 357, 372, in which he believes that "the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government...." An illuminating review of Brandeis' views of free speech can be found in Vincent Blasi, "The First Amendment and the Ideal of Civic Courage: The Brandeis Opinion in Whitney v. California," 29 Wm. & Mary L. Rev. 653 (1988), and in John Rawls, Political Liberalism, 351-56 (Cambridge, Mass., 1993).


10 Sunstein, p. 249.


11 Robert Corn-Revere, "Self-Regulation and the Public Interest," in Digital Broadcasting and the Public Interest, Charles M. Firestone and Amy Korzick Garmer, editors (Queenstown, Md.: The Aspen Institute, 1998). For similar perspectives, see Robert Post, "Equality and Autonomy in First Amendment Jurisprudence," 95 Mich. L. Rev. 1517 (1997), and Laurence H. Winer, "Deficiencies of the 'Aspen Matrix'," Issues in Broadcasting and the Public Interest, Paper No. 3, The Media Institute, 1998.


12 Great Lakes Broadcasting Co. v. FRC, 37 F.2d 993 (1930), which was instigated by the FRC in 3 FRC Ann. Rep. 32 (1929), aff'd in part and rev'd in part, 37 F.2d 993 (D.C. Cir.), cert. dismissed, 281 U.S. 706 (1930).

13. 13 One such propaganda station, for example, featured an evangelist stridently attacking other religions; another featured a "goat-gland doctor" hawking his own dubious medicines. See Erwin G. Krasnow, "The 'Public Interest' Standard: The Elusive Search for the Holy Grail," paper submitted to the Committee, October 22, 1997, pp. 12-13.


14 319 U.S. 190 (1943).


15 FCC guidelines on non-entertainment programming, contained in delegations of authority to FCC staff, provided standards of at least 5% local programming, 5% informational programming (defined as news and public affairs) and 10% total non-entertainment programming. In general, any renewal or assignment application which fell short of the guidelines had to be sent to the full Commission for action. These guidelines, adopted in 1976, were repealed by the FCC in 1984. Amendments to Delegations of Authority, 59 FCC 2d 491, 493 (1976).


16 The Prime Time Access Rules generally limit the television networks from offering more than three hours of prime-time entertainment programming from Monday through Saturday. The rationale for the rule is to allow non-network production houses to produce programming for the vacated time periods. Amendment of Part 73 of the Commission's Rules and Regulations with Respect to Competition and Responsibility in Network Television Broadcasting, Report and Order, 23 FCC 2d 382, 385-7 (1970). See NAIPTD v. FCC, 516 F.2d 526 (2d Cir. 1975); Mt. Mansfield Television Inc. v. FCC, 442 F.2d 470 (2d Cir. 1971).


17 A leading statement of this approach to FCC regulation of broadcasters is set forth in a law review article by FCC Chairman Fowler and Daniel Brenner, his legal assistant, in "A Marketplace Approach to Broadcast Regulation," 60 Texas L. Rev. 2087 (1982).


18 These rules were all repealed in the same order, TV Program Deregulation, 98 FCC2d 1076 recon. denied, 104 FCC 2d 358 (1986), remanded, Action for Children's Television v. FCC, 821 F.2d 741 (D.C. Cir. 1987). The major litigation on deregulation and repeal of program guidelines concerned the repeal of radio rules in 1981, and was over before TV deregulation was adopted in 1984.


19 Postcard renewal was adopted in Revision of Applications for Renewals of License of Commercial and Non-Commercial AM, FM and Television Licensees, 49 RR2d 740 (1981), aff'd. sub nom. Black Citizens for A Fair Media, 719 F.2d 407 (D.C. Cir. 1981), cert. denied, 457 U.S. (1982).


20 The legal history of the Fairness Doctrine is complicated, but stated simply, the FCC stopped enforcing most applications of the Fairness Doctrine in Syracuse Peace Council, 2 FCC Rcd 5043, 5054-55 (1987), recon. denied, 3 FCC Rcd 2035 (1988), aff'd. sub nom. Syracuse Peace Council v. FCC, 867 F.2d 654 (D.C. Cir. 1989), cert denied, 493 U.S. 1019 (1990). The Commission continued to enforce several aspects of the Fairness Doctrine, including the political editorial and personal attack rules. In 1992, however, the Commission announced it would no longer apply the doctrine to ballot issues. Arkansas AFL-CIO, 7 FCC Rcd 541 (1992), aff'd. on other grounds, sub nom. Arkansas AFL-CIO v. FCC, 11 F.3d 1430 (8th Circ. 1993)(en banc).


21 Telecommunications Act of 1996, Pub. L. 104-104, 110 Stat. 56 (1996). A searchable version of the law can be found at the FCC's website,


22 Letter to Nicholas Zapple, 23 FCC 2d 707 (1970). The personal attack and political editorial rules (subsets of the Fairness Doctrine) and the so-called "quasi-equal opportunities" policy (the Zapple rule) have at all times been subject to continued enforcement, even with rescission of the Fairness Doctrine. In the summer of 1998, however, the FCC declared by a split vote of 2-2 (with Chairman Kennard recused) that it had no majority to repeal the personal attack and political editorial rules. Personal Attack and Political Editorial Rules, 13 FCC Rcd 13109 (1998). This decision is being challenged in court.


23 47 CFR 73.1930.


24 The lowest unit rate requirement, codified as 47 U.S.C. Section 315(b), was adopted in 1972, in Pub. L. 92-225, and somewhat modified in 1974, in Pub. L. 93-442.

25. 25 Columbia Broadcast System, Inc. v. Democratic National Committee, 412 U.S. 94 (1973).

26. 26 In the Matter of The Mayflower Broadcasting Corporation and The Yankee Network, Inc. (WAAB), 8 FCC 333 (January 16, 1941).


27 113 FCC 1246, 1248-9.


28 The Cullman Doctrine was set forth in a letter decision in 1963. Cullman Broadcasting Co., 40 FCC 576 (1963).


29 This history is complicated, but one landmark was Banzhaf v. FCC, 405 F.2d 1082 (D.C. Cir. 1968), cert denied, 396 U.S. 842 (1969), in which the Court of Appeals held that cigarette ads were subject to the Fairness Doctrine. The Commission later held that there was no longer any controversy about tobacco, so anti-smoking public service announcements did not have to be balanced with pro-smoking messages. Cigarette Advertising and Anti-Smoking Messages, 27 FCC2d 453 (1970), aff'd. sub nom. Larus & Brother, Inc. v. FCC, 477 F.2d 876 (4th Cir. 1971).


30 Like Cullman, the personal attack and political editorial rules were integral to the Fairness Doctrine from the outset. Indeed, the Red Lion case was itself a personal attack case which predated the 1967 adoption of the specific rules. In response to criticism that the application of the Fairness Doctrine in those circumstances were too vague, the FCC adopted specific rules in In re Personal Attack and Political Editorial Rules, 8 FCC 2d 721 (1967). The two rules were also upheld in the companion case which was consolidated into Red Lion by the Supreme Court.


31 Red Lion Broadcasting Company, Inc. v. FCC, 395 US 367 (1969).


32 In Friends of Earth v. FCC, 449 F.2d 1164 (D.C. Cir. 1971), the Court of Appeals extended Banzhaf to gasoline ads. The Commission responded by changing its policy to repeal application of the Fairness Doctrine to all ads. 1974 Fairness Report, 48 FCC2d 1, 24-26 (1974), aff'd. sub. Nom. NCCB v. FCC, 567 F.2d 1095 (D.C. Cir. 1977), cert. denied, 436 U.S. 926 (1978).


33 Docket No. 19260, 48 F.C.C.2d 1 (1974).


34 TRAC v. FCC 801 F.2d 501, 517 (D.C. Cir.) pet. For reh'g. en banc denied, 806 F.2d 1115 (D.C. Cir. 1986), cert. denied, 482 U.S. 919 (1987). See also, Arkansas AFL-CIO v. FCC, 11 F.3d 1430 (8th Cir. 1993)(en banc). But see, Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969), Maier v. FCC, 735 F.2d 220, 225 nn. 4-5 (7th Cir. 1984); Larus & Brother, Inc. v. FCC, 477 F.2d 876 (4th Cir. 1971); Straus Communications v. FCC, 530 F2d 1001 (D.C. Cir. 1976).


35 Syracuse Peace Council, 2 FCC Rcd 5043, 5054-55 (1987), recon. denied, 3 FCC Rcd 2035 (1988), aff'd. sub nom. Syracuse Peace Council v. FCC, 867 F.2d 654 (D.C. Cir. 1989), cert denied, 493 U.S. 1019 (1990).


36 27 FCC 2d 650, 682 (February 23, 1971), amended by 33 FCC 2d 394 (January 12, 1972).


37 Cited in Barry Cole and Mal Oettinger, Reluctant Regulators: The FCC and the Broadcast Audience (Reading, Mass.: Addison-Wesley Publishing, 1978), p. 174.


38 359 F.2d 994 (D.C. Cir., 1966).


39 106 Stat. 1461, Pub. Law 102-385.


40 Turner Broadcasting Co. v. FCC, 114 S.Ct. 2445 (1994).


41 Children's Television Report and Policy Statement, 50 FCC 2d, 1 5 (1974), aff'd sub nom. Action for Children's Television v. FCC, 564 F.2d 458 (D.C. Cir. 1977).


42 ACT v. FCC, 564 F.2d 458 (D.C. Cir. 1977).


43 Memorandum and Opinion and Order, 53 FCC2d 1344 (1975).


44 Television Programming for Children, A Report of the Children's Task Force, Vol. 1, at 3 (1979).


45 Notice of Proposed Rulemaking, 75 FCC2d 138 (1979).


46 1984 Children's TV Report and Order, 96 FCC2d 634 (1984), aff'd sub nom. ACT v. FCC, 756 F.2d 899 (D.C. Cir. 1985).


47 Newton N. Minow and Craig L. LaMay, Abandoned in the Wasteland: Children, Television and the First Amendment (New York: Hill and Wang, 1997).


48 Children's Television Act of 1990, Pub. L. 101-437, 104 Stat. 996 (1990).


49 Policy and Rules Concerning Children's Television Programming, 11 FCC Rcd 10660 (1996).


50 FCC authority to regulate obscene content is found at 18 U.S.C. Section 1464. The Commission's authority to prohibit indecency over the airwaves between 6 am and 10 p.m. was upheld by the federal courts in Action for Children's Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995), cert. denied, 116 S. Ct. 701 (1996).


51 In the Matter of Closed Captioning and Video Description of Video Programming, Implementation of Section 305 of the Telecommunications Act of 1996, Video Programming Accessibility, Report and Order, FCC 97-279, MM Dkt. No. 95-176 (August 22, 1997).


52 National Broadcasting Co. v. U.S., 319 U.S. 190, 218-19 (1943).


53 Nondiscriminiation in the Employment Policies and Practices of Broadcast Licensees, 60 FCC 2d at 229-30.


54 See, e.g., National Organization for Women v. FCC, 555 F.2d 1002 (D.C. Cir. 1977).


55 This authority was upheld by the Supreme Court in NAACP v. FPC, 425 U.S. 662, 670 (1976).


56 FCC, Nondiscrimination in Employment Practices of Broadcast Licensees, 13 FCC 2d at 770 (1968).


57 FCC, Nondiscrimination in Broadcast Employment, 18 FCC 2d 240 (1969).


58 47 CFR Section 73.2080(a).


59 Ibid.


60 See, e.g., Implementation of the Commission's Equal Opportunity Rules, 9 FCC Rcd 2047, 2049-50 (1994).


61 Lutheran Church--Missouri Synod v. FCC, 141 F.3d 344 (D.C. Cir. 1998), rehearing denied, September 15, 1998.