American businesses pour billions of dollars each year into marketing their services and products on television. Transmitted to viewers through electromagnetic airwaves, satellite feeds, optical fibers, and cable lines, television programming often transcends state lines. The interstate character of this commercial activity brings regulation of television within the purview of the Commerce Clause of the U. S. Constitution. U.S.C.A. Const. Art. I, section 8, cl. 3. Under the Commerce Clause, federal courts have ruled that Congress has the power to regulate “radio communications,” including the power to control the number, location, and activities of broadcasting stations around the country.
Pursuant to this power Congress passed the Communications Act of 1934, which expanded the definition of “radio communication” to include “signs, signals, pictures, and sounds of all kinds, including all instrumentalities, facilities, apparatus, and services … incidental to such transmission.”. With the advent of television in the late 1930s and its growth in popularity during the 1940s and 1950s, “radio communication” was eventually interpreted to encompass television broadcasts as well.
The rapid growth of telecommunications also prompted Congress to create the Federal Communications Commission (FCC), an executive branch agency charged with overseeing the telecommunications industry in the United States. The FCC has exclusive jurisdiction to grant, deny, review, and terminate television broadcast licenses. The FCC is also responsible for establishing guidelines, promulgating regulations, and resolving disputes involving various broadcast media. The FCC does not, however, typically oversee the selection of programming that is broadcast. There are exceptions for this general rule, including limits on indecent programming, the number of commercials aired during children’s programming, and rules involving candidates for public office. Five commissioners, appointed by the president and confirmed by the Senate, direct the FCC. Commissioners are appointed for five-year terms; no more than three may be from one political party. Within the FCC, the Media Bureau develops, recommends and administers the policy and licensing programs relating to electronic media, including cable and broadcast television in the United States and its territories.
The FCC enacts and enforces regulations addressing competition among cable and satellite companies and other entities that offer video programming services to the general public. This jurisdiction includes issues such as:
* Mandatory carriage of television broadcast signals
* Commercial leased access
* Program access
* Over-the-air reception devices
* Commercial availability of set-top boxes
* Accessibility of closed captioning and video description on television programming
In 1978 Congress established the National Telecommunications and Information Administration (NTIA) to serve as the policy arm for federal regulation of telecommunications. Together with the FCC, the NTIA formulates and presents official White House positions on a variety of domestic and international telecommunication-related issues.
Federal regulation of television broadcasting preempts any conflicting state or local regulation. However, the federal government’s power to regulate television is not absolute. In regulating television, both Congress and the FCC must do so to advance the public interest. Congress and the FCC also must be sensitive to First Amendment concerns. Television broadcast companies are entitled to exercise robust journalistic freedom that is consistent with the right of the public to participate in a diverse marketplace of ideas, a marketplace that itself is tempered by appropriate social, political, esthetic, moral, and cultural values.
