Juan Monroy — Media Policy and Regulation

Regulations
- policies
  - public frameworks for structuring and regulating media so they contribute to public good
- laws
  - binding rules passed by legislatures, enforced by the executive power, and adjudicated by courts
- standards
  - agreements about technical characteristics of communication systems
- self-regulation
  - codes and practices, developed by the communication industry, to monitor and control the media’s performance
Communication Policies
- free speech
- privacy
- intellectual property
- competition
- diversity
- access
- spectrum allocation
- technical standards
Freedom of Speech
- US Constitution as the basis for federal law
- First Amendment to the Constitution
  - guarantees freedom of speech and the press
  - content free from government restriction
  - preserves a marketplace of ideas
- there are many exceptions to freedom of speech…
Defamation
- untrue declarations about private citizens
  - slander: spoken
  - libel: written
- damages reputation of person being defamed
- actual malice must be proven against public figures
- law balances to ensure watchdog role of the press
- allow criticism of public figures
Political Speech
- US print does not have to offer “right of reply”
- paid political speech can be exploited by wealthy candidates
- broadcasting has to offer equal access
- Fairness Doctrine
  - broadcasters must schedule programming on controversial issues
  - broadcasters must ensure the expression of opposing views
  - affirmed by Red Lion Broadcasting v. FCC (1969)
  - struck down by Supreme Court (1987)
Obscenity
- material where the dominant theme taken as a whole appeals to prurient interest
- defined by contemporary community standards as regarded by the average person as prurient
  - Roth v. United States (1957)
- the work must lack a serious literary, artistic, political or scientific value
  - Miller v. California (1974)
- child pornography is not protected speech due to exploitation of children, who cannot grant consent
Indecency
- graphic language that pertains to sexual or excretory organs or activities
- pertains specifically to broadcasting
- applies only when children are likely to be in the audience
- safe harbor for “unfettered speech,” usually 10:00 PM to 6:00 AM
Censorship
- formal restriction of media or speech content by government, political, or religious authorities
- First Amendment prohibits government prior-restraint in terms of censorship
- FCC and federal authorities can only respond after the fact
Self-Censorship
- YouTube “screens” submissions and removes pornography
- Facebook bans nudity
- Television violence governed by V-Chip and TV ratings
Commercial Speech
- less protected than noncommercial speech
  - not for misleading commercial speech
  - not for commercial speech that proposes illegal action
- Federal Trade Commission intervenes if…
  - message is likely to mislead the consumer
  - consumer is acting reasonably
  - omission, falsehood, representation is likely to affect purchasing decision
Privacy
- the right to avoid unwanted intrusions or disclosure
- government snooping
- commercial snooping
Government Snooping
- governed by Fourth Amendment
  - “right of the people to be secure in their persons, houses, papers, and effects against unwarranted search and seizures”
- Electronic Communications Privacy Act, 1986
  - wiretap protections to email, teleconferences, and other new media
- USA PATRIOT Act, 2001
  - reduced standard for probable cause
  - judge’s decision that provisional evidence of criminal violation or national security danger justifies a wiretap
- National Security Agency engaged in massive global snooping
  - collecting telephone logs, social media posts, private telephone conversations
Commercial Snooping
- private companies gather and sell information about individuals
- credit bureaus gather credit information
- data brokers compile and resell credit card transaction data for market research
- data is often used by political campaigns to target likely voters
- regulation attempts
  - Data Quality Act: scrutiny of government data for accuracy
  - Health Insurance Portability and Accountability Act: transmission of health data
- Internet
  - behavioral tracking and Do Not Track
  - Facebook functions as if “users have no privacy”
Intellectual Property
- a creative work of art, writing, film, or software that belongs to a legally protected owner
- patent
  - exclusive right, granted to an inventor, to make, use, sell an invention for 20 years
  - protects against reverse engineering
- copyright
  - legal right to control intellectual property
  - legal privilege to use, sell, or license creative works
  - “promote the Progress of Science and useful Arts” (1791)
  - Copyright Term Extension Act extended copyright to life of the author plus 70 years
  - digital technologies make it easy to duplicate copyrighted material
Fair Use
- users of creative works are entitled reasonable access to the works
- permits users limited copying of copyrighted works for academic, artistic, or personal use
- Home Recording Act, 1991
  - permits consumers to copy records or tapes for noncommercial use
  - does not apply to computer software
  - does not apply to Internet file sharing
Competition and Ownership
- monopoly is a single company controlling an industry
- oligopoly is a few companies dominate an industry
- Sherman Antitrust Act prohibits monopolies and the restraint of free trade
- vertical integration is when a company with the same owner controls different aspects of a business within the same industry
- horizontal integration is the concentration of ownership by acquiring companies in the same business
- cross-ownership is when one firm owns different media outlets in the same area
  - TV-newspapers cross ownership
  - local management agreements allow station owners to manage multiple stations
  - newspapers can merge business operations under a joint operating agreement to save on operating costs
Universal Service
- the principle that everyone should have access to basic telecommunication services
- guarantees access to wireline telephone service
- new challenge to making Internet service universal to close digital divide
- E-rate subsidies to fund Internet connections in schools and at libraries
- Connect American Fund extends Internet broadband access to rural areas
- FCC spur investment in Internet infrastructure and sets requirements for low-cost broadband access
Spectrum Allocation
- licenses required for electromagnetic spectrum
  - prevent interference
  - radio and television broadcasts
- government regulators awards and renews licenses, legal permission to operate a transmitter
- regulated because of scarcity: a small number of stations and the cost of entry to broadcasting is high
- FCC tries to promote localism by giving licenses to stations in cities of a variety of sizes
- with move to digital, spectrum reallocated from broadcasting to mobile communications
Technical Standards
- technical oversight for electronic media
- technological standards necessary for mass production to begin
- lack of agreement can delay technological progress
- standards bodies
  - professional associations and ratified by the government, e.g. Institute for Electrical and Electronics Engineers
  - proprietary standards, e.g. Microsoft Windows
  - FCC working groups, e.g. Advanced Television Systems Committee
  - international bodies, e.g. International Telecommunications Union
Federal Regulation and Policy Making
- laws proposed by executive branch or by Congress
  - executive branch regulatory agencies
  - congressional subcommittees
  - full House of Representatives and Senate
- proposed legislation goes up for vote
  - either defeated or passed by Congress
  - either signed or vetoed by President
- executive branch implements the laws
- judicial branch—federal district courts or Supreme Court—interprets the constitutionality of the law
Federal Communications Commission
- regulates broadcasting, satellite, cable TV, and telecommunications
- licenses and oversees operations of broadcast stations
- FCC shifted away from direct regulation towards oversight of competition
- FCC is commonly attuned to interest of the industry, captured by the industry they regulate
Department of Commerce
- established the National Telecommunications and Information Administration
- produced a national broadband map to measure level of service in local communities
- represents the United States in international bodies
- active in multilateral trade negotiations
Federal Trade Commission
- regulatory agency charged with domestic trade policy
- monitors deceptive advertising
- investigates possible cases of restraint of trade
- scrutinizes privacy policies and practices by online companies
Justice Department
- enforces general laws that apply to communications
- enforces Sherman Antitrust Act
- initiated actions that broke up AT&T
The Courts
- interprets challenges to laws written by Congress and rules made by FCC
- validates consistency with US Constitution
- Supreme Court is the ultimate court of appeals of decisions by lower courts
US Congress
- writes and rewrites communication laws of the land
- updated the 1934 Communications Act with 1996 Telecommunications Act
  - governed competition within and across media and telecommunications industries
  - relaxed ownership restrictions
  - regulated violent and sexual content on TV
State and Local Regulation
- municipalities involved in the regulation of telecommunications
- state-level public utility commissions regulate local and regional telephone companies’ rates
- most states have deregulated telecommunications
- municipal governments do not govern Internet
Lobbies
- industry and public interest groups lobby to influence proposed legislation
- companies lobby to permit more concentration of ownership and cross-ownership of local media
- top lobbyists
  - Verizon
  - AT&T
  - National Cable and Telecommunications Association
  - National Association of Broadcasters
  - big technology companies
- public interest lobbyists
  - American Association of Retired Persons
  - Benton Foundation
  - advocate for universal, low-cost “lifeline” local telephone service
Fourth Estate
- mass media report on policy-making issues of interest to general public
- journalists inform public of telecommunications issues
- trade journalists cover more esoteric issues with a pro-industry slant
- mass media might sometimes act as lobbyists
- watchdogs
  - Fairness in Accuracy in Reporting
  - Accuracy in Media