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Origins of Broadcast Regulation

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New York Times, February 8, 1883

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internetBroadcast radioand TV

Books and newspapers

source

destination

Less regulation

More regulation

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G8 Summit, July 17, 2006

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April 15, 1912

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• Alignment of– Military interests– Commercial interests

• Huge public catalyzing event

• Result is …

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Congress acts

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When the world weeps together over a common loss .. why should not the nations clear the sea of its conflicting idioms and wisely regulate this new servant of humanity [radio]?

Speech on US Senate floor, May 28, 1912

William Alden Smith

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Radio Act of 1912• no one could broadcast without a license from the Secretary of

Commerce• Licenses “granted by the Secretary of Commerce and Labor upon

application therefor”• permissible frequencies were assigned by the Secretary of Commerce• Military

– got excellent frequencies, especially the navy• Commercial shipping and other commercial use• Amateurs

– got banned altogether from “useful” frequencies– relegated to what were called the "short wavelengths“ (above

1000KHz) which at that time considered technologically unusable

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Commercial (wireless telegraphy)

Amateur (unusable)

Military

Herbert Hoover

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This section [requiring licensing] does not give the head of that department [Commerce] discretionary power over the issue of licenses .. The license system proposed is substantially the same as that in use for the documenting upward of 25,000 merchant vessels.

-- Report of House committee that recommended passage of the Radio Act of 1912

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Commercial (wireless telegraphy)Militar

y

Herbert Hoover

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Broadcasting uses a “a great national asset,” i.e. the spectrum,

So it is “of primary public interest to say who is to do the broadcasting, under what circumstances, and with what type of material.”

Herbert Hoover, Speech to the First National Radio Conference, February 27, 1922 Herbert Hoover

1874-1964

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Voluntary Cooperation

• 10kHz bands from 550 to 1350• Most incumbents cooperate• Newcomers get jawboned• Time-sharing, etc.

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US v. Zenith

• 1925: Zenith is given a Chicago license for 930kHz only on Thursday nights 10pm-midnight, when a Denver station was not broadcasting

• Jumps to 910• Hoover fines• Zenith sues

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United States v. Zenith Radio Corp. et al.12 F.2d 614; 1926

The Secretary of Commerce is required to issue the license subject to the regulations in the [Radio Act of 1912]. The Congress has withheld from him the power to prescribe additional regulations.

and quoting the Supreme Court:“When we consider the nature and the theory of our institutions

of government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power.”

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Radio Act of 1927 • There would be no private ownership in the

spectrum– So from 1927 on, the spectrum was public property

• spectrum licensed by Federal Radio Commission: FRC• standard for licensing was public interest standard • Successor was the Communications Act of 1934.

Combined regulation for wired and wireless. FRC became the FCC (Federal Communications Commission)

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Radio Act of 1927SEC. 29. Nothing in this Act shall be understood or construed to

give the licensing authority the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the licensing authority which shall interfere with the right of free speech by means of radio communications.

No person within the jurisdiction of the United States shall utter any obscene, indecent, or profane language by means of radio communications.

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John Romulus Brinkley (1885-1941)The Goat Gland Surgeon

Radio Station KFKB (Kansas First, Kansas Best)

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KFKB Broadcasting Ass’n, Inc.,v.

Federal Radio Commission60 App. D.C. 79; 47 F.2d 670;1931

• It is apparent, we think, that the [broadcasting] business is impressed with a public interest and that, because the number of available broadcasting frequencies is limited, the commission is necessarily called upon to consider the character and quality of the service to be rendered.

• Obviously, there is no room in the broadcast band for every business or school of thought.

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National Broadcasting Co. v. U. S.,319 U.S. 190 (1943)

… the radio spectrum simply is not large enough to accommodate everybody. There is a fixed natural limitation upon the number of stations that can operate without interfering with one another.

Unlike other modes of expression, radio inherently is not available to all. That is its unique characteristic, and that is why, unlike other modes of expression, it is subject to governmental regulation. …

- Justice Felix Frankfurter

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internetBroadcast radioand TV

Books and newspapers

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destination

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National Broadcasting Co. v. U. S.,319 U.S. 190 (1943)

… the radio spectrum simply is not large enough to accommodate everybody.

There is a fixed natural limitation upon the number of stations that can operate without interfering with one another. - Justice Felix Frankfurter

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Fox v. FCC, Justice Thomas’s Concurrence

• Second, even if this Court’s disfavored treatment of broadcasters under the First Amendment could have been justified at the time of Red Lion and Pacifica, dramatic technological advances have eviscerated the factual assumptions underlying those decisions. Broadcast spectrum is significantly less scarce than it was 40 years ago.

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