Communications Act of 1934

Enacted: June 19, 1934

Place: United States (national)

Significance: This law broadened the federal government’s regulatory powers beyond radio broadcasting to encompass all areas of telecommunications

Through passage of this law in 1934 the U.S. Congress replaced the seven-year-old Federal Radio Commission with the Federal Communications Commission (FCC). The new law was predicated on the belief that the broadcast spectrum was a public resource that must be owned and retained by the people. This theory held that the broadcast industry must be regulated by the federal government to ensure that a diversity of viewpoints are aired. The act broadened the government’s authority beyond radio, giving it the power to regulate all telecommunications.

Regulation or Censorship?

Section 326 of the Communications Act specifically prohibited censorship by stating that nothing in the law should “be understood or construed to give the commission the power of censorship” over radio broadcasting and that no regulations or conditions should be promulgated that would “interfere with the right of free speech by means of radio communication.” Although the law forbade the FCC from forcing stations to air—or to stop airing—specific programs, the law simultaneously directed the commission to regulate broadcasting so that it would be “in the public interest.” This directive gave the FCC the power to revoke, or not renew, broadcast licenses in cases of flagrant disregard of broadcasters’ responsibility.

Under the act, the FCC could determine who should broadcast, on which wavelengths, with what power, and when. Since the FCC was authorized to grant broadcast licenses for limited numbers of years at a time, license renewal proceedings gave the FCC the power to influence station policies, ranging from their advertising techniques to the amounts of time they devoted to news and public service programming. However, the FCC rarely used this power to cancel or refuse renewal of licenses. Instead, it has typically used indirect pressure to influence the content of broadcasts.

Equal Time Rule

There has been widespread disagreement on how far the FCC should go in forcing licensees to serve the public interest. Section 315 of the Communications Act required broadcasters providing news coverage of political campaigns to cover candidates of every party seeking the same political offices equally. Some people have argued that this “equal time rule” amounts to a form of reverse censorship that violates broadcasters’ First Amendment rights.

In 1959 the equal time rule was tested when members of the FCC voted 4-3 that a Chicago television station had to offer a candidate twenty-two seconds on its news program in order to balance the time it had devoted to showing Mayor Richard Daly greeting a foreign official. Both men were candidates in the Chicago mayoral election. Congress responded by amending the law to exempt noncampaign news coverage of an incumbent.

The following year Congress temporarily suspended section 315 to allow television networks to broadcast the debates between presidential candidates John F. Kennedy and Richard M. Nixon without having to include third-party candidates. In 1975 the FCC made this exception a permanent rule by declaring that stations could carry debates among pairs of major party candidates without the participation of minor party candidates.

The equal time rule required that stations offering broadcast time outside of their regular news programs to political candidates must offer equal time to the candidates’ opponents. However, the rule also permitted stations to cover news events in which candidates appear without having to offer equal time to their opponents. The equal time rule does not apply to appearances of candidates on regular “bona fide” newscasts, news interviews, and news documentaries in which candidates appear incidentally. The difficulty for broadcasters has lain in deciding what constitutes “bona fide” news.

Political Advertising

Section 315 of the Communications Act has been most often applied to situations involving political advertising. The equal time rule states that if a licensee permits a legally qualified candidate for public office to use its station, it also must “afford equal opportunity to all other such candidates for that office.” Broadcast stations that sell advertising time to political candidates thus cannot refuse to sell equal numbers of spots in the same time periods—and at the same prices—to candidates of other parties seeking the same offices.

The FCC has refined its rules on political advertising in order fully to implement section 315’s requirements. These guarantee access to broadcast advertising for all candidates for federal office, ensure equal broadcast advertising opportunities to rival candidates for public office, require the lowest-unit rate charges for political advertising, and forbid censorship of the content of political advertisements—even if such content violates other FCC regulations, such as those pertaining to indecent language or broadcasts.

Fairness Questions

Some of the problems of adhering to the equal time principle in political news coverage disappeared after Congress’ 1959 ruling. However, the root issue of ensuring “fairness” in access to the airwaves and in presenting various sides of controversial issues remained. The FCC’s so-called fairness doctrine, which was enforced until 1985, was based on the argument that because the airwaves are public property the FCC should direct licensed broadcasters to operate “in the public interest, convenience, and necessity.” The belief is that the public interest is best served when the airwaves are accessible to differing viewpoints.

The difficulty of attempting to legislate “fairness” led the FCC to abandon the fairness doctrine. Broadcasters had long argued that extreme efforts to include opposing viewpoints in coverage and interpretation of controversial issues led to less, rather than better, coverage of important social issues. They argued that if stations had to seek out other viewpoints to air on every issue they wished to address, they would tend to avoid covering controversial issues. Broadcasters argued that this likelihood was increased by the fear that groups or individuals dissatisfied with a station’s coverage might have grounds to oppose the station’s license at renewal time.

Cynics claimed that broadcasters protesting the fairness doctrine really wanted to be free from pressure from minorities, women, senior citizens, and others demanding balanced coverage. This led to an unusual alliance of advocates for minority causes and big business, who had long felt discriminated against by network coverage of national issues, particularly since the social unrest of the 1960’s and the Watergate era of the early 1970’s heightened mistrust of established authority. The commission sided with broadcasters, whose voices included leading journalists usually sympathetic to minority viewpoints. Walter Cronkite and Eric Severeid, for example, argued that average citizens have so many ways to obtain differing viewpoints on social issues that it was no longer necessary to require broadcasters to seek out diverse perspectives themselves.

Although the FCC concluded that the fairness doctrine did not serve the public interest, it left intact the general licensing requirement that broadcasters present issue-responsive programming. When a station’s license renewal is challenged, this issue-responsive programming can become a major ingredient in a its ability to show that it has operated in the public interest. Thus the obligation that broadcasters provide balanced coverage of important public issues remained even though details on how they should do this were deregulated.

The Future

The strongest argument against continuing the regulations imposed by the Communications Act of 1934 has been the erosion of a central part of the philosophical basis for which the law was originally enacted. The argument that the airwaves belong to the public was based largely on their presumed scarcity—the notion that because the number of broadcast frequencies is finite, the federal government had to ensure that radio and television broadcasting was not dominated by those with the most money and power. Since the act was passed, however, there has been a steady growth in the number of licensed frequencies in the United States. By the mid-1990’s there were more than eleven thousand radio stations and more than fifteen hundred television stations. There has also been a great expansion of cable television. These and other technological advances have mitigated against the old scarcity argument.

The 1994 election of the first Republican-controlled Congress in the telemedia age prompted many advocates of deregulation to favor a major overhaul of the Communications Act of 1934. Although many deregulatory changes were instituted through the Telecommunications Act of 1996, the rules pertaining to equal time, political advertising, and balanced news coverage of controversial issues remained.

Bibliography

Erwin G. Krasnow and Lawrence D. Longley’s The Politics of Broadcast Regulation (New York: St. Martin’s Press, 1973) is an introduction to the inherent conflict between the FCC directive to regulate “in the public interest” and the section of the Communications Act that forbids censorship. Verne E. Edwards, Jr., explores examples of “reverse censorship” resulting from the equal time provision in Journalism in a Free Society (Dubuque, Iowa: William C. Brown, 1970). The theory that the broadcast spectrum should be considered public property is discussed by Lawrence W. Lichty and Malachi C. Topping in American Broadcasting: A Source Book on the History of Radio and Television (New York: Hastings House, 1975). Mitchell Stephens stresses the importance of the equal time provision for political advertising in Broadcast News: Radio Journalism and an Introduction to Television (New York: Holt, Rinehart and Winston, 1980). Edwin Emery and Michael Emery trace the evolution of the equal time rule in The Press and America: An Interpretive History of the Mass Media (5th ed. Englewood Cliffs, N.J.: Prentice-Hall, 1984), which discusses congressional actions that have allowed exceptions to a strict interpretation in favor of the broader requirement of “fairness.” The possibility of deregulation is described by Morrie Gelman in “75 Years of Pioneers: A Personalized History of the Fifth Estate from Frank Conrad to Rupert Murdoch,” Broadcasting and Cable 125, no. 45 (November 6, 1995).