Federal Communications Commission

The Federal Communications Commission (FCC), a Regulatory Agency established by Congress, implements Broadcast Regulation, Cable Television Regulation, and regulates telecommunications services, and common carriers under the Communications Act of 1934, the Telecommunications Act of 1996, and others.

Guided by the public interest standard, the FCC sets technical standards and operating regulations and monitors and enforces compliance. It assigns broadcast licenses for the television and radio spectrum. Decisions of the five FCC commissioners, appointed by the President, are appealed to federal courts.

FCC regulations affecting broadcast content have provoked challenges that they and the underlying laws abridge the right to free speech under the First Amendment of the U.S. Constitution (First Amendment). As confirmed in Red Lion v. FCC, the FCC preserves broadcasters’ First Amendment protections as journalists while administering laws that permissibly affect content such as the Communications Act’s requirement that broadcasters offer equal time to federal candidates. As special situations justifying the regulations change, the FCC has overturned policies such as the Fairness Doctrine, requiring balanced views in broadcast content.

While FCC regulation of indecency is permissible, as confirmed by the Supreme Court in FCC v. Pacifica, the FCC is required to regulate speech of new technologies in the face of successful challenges to underlying legislation such as the Communications Decency Act. The FCC regulates obscenity, a form of Unprotected Speech; however, the definitions and standards are the subject of continuing challenges.

The FCC’s Equal Opportunity rules, adopted in 1969 under the public interest standard, required broadcasters to hire minorities and women in proportion to the local population. Federal courts rejected the rules as unconstitutional race-based qualifications violating the equal protection clause of the Fifth Amendment of the U.S. Constitution.

A federal court in Prometheus Radio Project v FCC found that limits on cross-ownership of broadcast and cable stations in the same markets may survive First and Fifth Amendment challenges. It remanded the case to the FCC to develop permissible regulations.

Aware that improper regulation can be challenged as a government taking of property under the Fifth Amendment, the FCC has interpreted current laws narrowly as inapplicable to new media and new technologies. The FCC determined that Internet access offered by cable companies is not a regulated telecommunications service, a decision upheld by the U.S. Supreme Court in National Cable & Telecommunications Association v. Brand X Internet.

The FCC is the arbiter of first resort balancing First and Fifth Amendment rights against regulations and underlying laws in the areas of mass communications. As technologies continue to develop, the FCC will continue its pivotal role in developing Constitutional law.

KATHLEEN HAWKINS BERKOWE

References and Further Reading

• Abernathy, Kathleen Q., The Role of the Federal Communications Commission on the Path from the Vast Wasteland to the Fertile Plain, Federal Communications Law Journal 55 (2003): May:435.
• Botein, Michael, and Douglas H. Ginsburg. The Regulation of the Electronic Mass Media: Law and Policy for Radio, Television, Cable and the New Video Technologies. St. Paul, MN: West Group, 1999.
• Carter, T. Barton, Marc A. Franklin, and Jay B. Wright. The First Amendment and the Fifth Estate: Regulation of Electronic Mass Media. 2nd Ed. Westbury, NY: Foundation Press, 1989.
• Communications Law and Policy Resources, maintained by Justin Brown, Assistant Professor, College of Journalism and Communications, University of Florida, https://www.jou.ufl.edu.faculty/jbrown/lawandpolicy.htm (accessed September 1, 2005).
• Corn-Revere, Robert L., et al. Modern Communication Law, Practitioner’s Edition. St. Paul, MN: West Group, 1999.
• Creech, Kenneth C. Electronic Media Law and Regulation. Boston, MA: Focal Press, 1996.
• Einstein, Mara. Media Diversity: Economics, Ownership and the FCC. Mahwah, N.J: L. Erlbaum Associates, 2004.
• The Federal Communications Commission website. https://www.fcc.gov (accessed September 1, 2005).

Cases and Statutes Cited

• The Communications Act of 1934, Act June 19, 1934, ch. 652, 48 Stat. 1064, 47 U.S.C Sec. 151 et seq.
• The Communications Decency Act, Pub. L. 104-104, Title V, Sec. 501, Feb 8, 1996, 110 Stat. 133
• FCC v. Pacifica, 438 U.S. 726 (1978)
• FCC v. League of Women Voters of California, 468 U.S. 364 (1984)
• Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344 (D.C. Cir. 1998)
• Miller v. California, 413 U.S. 15 (1973)
• Prometheus Radio Project v. FCC, ___F. 3d ____ (3rd Cir. 2003), cert. den. June 13, 2005, 545 U.S. ______
• The Telecommunications Act of 1996, Pub. L. No. 104-104

See also Affirmative Action; Balancing Approach to Free Speech; Bill of Rights: Structure; Broadcast Regulation; Cable Television Regulation; Communications Decency Act (1996); Fairness Doctrine; FCC v. League of Women Voters, 468 U.S. 364 (1984); Government Speech; Red Lion Broadcasting v. FCC, 453 U.S. 367 (1981)