Nearly all the material in this textbook is applicable to the electronic media, from broadcasting to the internet. Case examples in the libel, privacy, newsgathering, and other chapters involve the electronic media as well as print. But the electronic media are treated specially in the law and thus require a separate chapter to discuss certain aspects of radio, television, cable, satellite, and internet regulation. This is still true in the 21st-century digital age. For example, the political broadcasting rules in Sections 315 and 312(a)(7) of the Communications Act of 1934 apply only to broadcasting and cable television, not to print media. The same is true of children’s programming regulations (although limits on commercial time in and around children’s programming also apply to multichannel video program distributors).

For the sixth edition, this chapter was substantially reorganized and updated to reflect the current definitions adopted by the FCC for various forms of video program distribution. In addition to tracing the history of broadcast radio and television and explaining how cable and satellite regulation differs, this chapter also discusses the FCC’s approach to regulating multichannel video program distributors and online video distributors (OVDs). Today, the FCC defines both cable and direct broadcast satellite (DBS) services as multichannel video programming distributors (MVPDs). An MVPD is an entity that makes available for purchase multiple channels of video programming. In its most recent annual assessment to Congress, the FCC noted that its data show that cable accounts for 52.8 percent, DBS accounts for 33.8 percent, and telephone accounts for 13 percent of all MVPD subscribers. Cable subscribers are declining, while DBS subscribers are holding steady and phone MVPD subscribers are increasing, with AT&T and Verizon emerging as the largest players.

According to the FCC, the major MVPDs today offer hundreds of linear television channels and thousands of non-linear video-on-demand and pay-per-view programs. In addition to delivering video programming to television sets, MVPDs deliver video programming to computer screens, tablets and mobile devices. The FCC notes that MVPDs also offer internet and phone services as core elements of their business models.

OVDs are entities that provide video programming using the internet or internet protocol-based transmission paths provided by an outside entity. Currently, the FCC groups video content distribution into three categories: broadcast television stations, MVPDs and OVDs. The FCC is seeking comment on whether to expand its MVPD definition to include OVDs, but for now, OVDs are treated as a separate category.

Consumers need a broadband connection to receive video content from OVDs. Under the FCC’s current definition, an OVD is different from an MVPD. OVDs are diverse and include a variety of types of distributors, such as movie companies that release their films online using the internet instead of distributing for viewing in a move theater. Examples of OVDs are Sling TV, Apple TV and Sony’s Playstation Vue.

The chapter highlights that the First Amendment rights of broadcasters are not equal to those enjoyed by the print media. Spectrum scarcity limits broadcasting to a select few who obtain FCC licenses. Courts say this justifies limiting broadcasters’ free speech rights. Courts also point to broadcasting’s pervasiveness and impact on audiences, particularly children. The FCC regulates broadcasting to ensure it operates in the public interest, but the FCC is not allowed to censor broadcasting content.

A federal law and FCC rules require broadcast television stations to show at least three hours per week of programming that meets children’s intellectual/cognitive and social/emotional needs. FCC rules prohibit broadcasting hoaxes. The FCC rescinded the Fairness Doctrine, requiring stations to cover all major views of important public issues.

Cable television law is complex due to bifurcated jurisdiction. Congress has adopted three major laws affecting cable television. In addition, franchising authorities may adopt cable laws. The franchising process involves difficult negotiations between a cable system operator and a franchising authority. Then cable television is subject to certain content regulation, such as must- carry and retransmission consent rules, and non-duplication rules. Students need to understand why courts consider these content-neutral regulations and thus apply intermediate scrutiny in examining these regulations.

What about the internet? The FCC has considered its role in internet regulation since 2005. Although initially the FCC took a “hands off the Internet” approach, more recently it claimed ancillary jurisdiction over broadband and this has been both upheld and rejected by courts. One “hot topic” in this area that students often want to discuss is net neutrality. Net neutrality is the principle that holds that ISPs cannot charge content providers to speed up the delivery of their goods – all Internet traffic is treated equally. In 2015, the FCC issued new net neutrality rules that change the classification of ISPs from an information service to a telecommunication service. This opened the door for the FCC to regulate broadband carriers like they regulate common carriers. The implications of this change are discussed in the MVPD, OVD and internet regulation sections of the chapter.

Outline

I. Development of Broadcast Regulation

1. Radio Regulation
2. Federal Communications Commission
3. Reasons to Regulate Broadcasting
4. The Public Interest Standard
   
   1. Fairness Doctrine

II. Broadcast Program Regulation

1. Political Broadcasting
   
   1. Legally Qualified Candidate
   2. The Use Rule
   3. Exceptions to the Use Rule
   4. Invoking Section 315
   5. Reasonable Time for Federal Candidates
   6. Candidates’ Supporters
   7. 527 Groups
2. Children’s Programming
3. Hoaxes
4. Public Broadcasting

III. Development of Cable and Satellite Regulation

IV. Multichannel Video Program Distributor Program Regulation

1. Must-Carry and Retransmission Consent
2. Public Access Channels

V. Development of Internet Regulation

1. Online Video Distributor Regulation
2. Net Neutrality
3. The Internet’s First Amendment Status