Federal Communications Commission

The Federal Communications Commission (FCC) is the independent regulatory agency of the United States government that controls most forms of electronic communication in the United States, including radio and television broadcasting, telecommunications, satellite communications, cable television, and new technologies such as direct broadcast satellite service. Created by Congress pursuant to the Communications Act of 1934 (the “1934 Act”), the FCC consists of five commissioners who are appointed by the president and confirmed by the Senate for five-year, staggered terms. The president selects one commissioner to act as chair, and he or she sets the FCC's agenda and presides over agency deliberations. Congress monitors the FCC's activities and controls its budget, and agency rulings are subject to judicial review.

Originally, the FCC was known as the Federal Radio Commission under the Radio Act of 1927. The Radio Act introduced two key concepts that were retained in the 1934 Act and that continue to provide the justification for government regulation of broadcasting: (1) that the broadcast airwaves are owned by the public; and (2) that broadcasters are entrusted to use those airwaves for the purpose of serving “the public convenience, interest, or necessity” (Section 4, Radio Act of 1927, incorporated into Section 303 of the 1934 Act). The 1934 Act, as amended, remains the primary statute under which the FCC operates today. The Telecommunications Act of 1996 revised the 1934 Act in several important ways, most notably with respect to the relaxation of restrictions on the number of broadcasting stations that may be owned by any one entity.

As guardian of the broadcast spectrum, the FCC has played an important role in determining whether individuals or organizations are entitled to use the broadcast media to publicize their viewpoints on [Page 321]matters of public interest. Almost from its beginning, the FCC evidenced concern that broadcasters be fair with respect to their coverage of public issues. For fear that station operators would use their frequencies to advance their own causes or candidates, the FCC ruled in 1941 that radio stations were prohibited from editorializing. In 1949, the commission relaxed this ban and allowed broadcasters to editorialize as long as they also made air time available to persons holding divergent opinions. In its report entitled “In the Matter of Editorializing by Broadcasting Licensees” (13 FCC 1246), the FCC articulated what became known as the “Fairness Doctrine,” stating that the public has a right to hear balanced presentations of “all responsible viewpoints on particular issues” and that broadcasters have an affirmative duty to “preserv[e] for the public generally radio as a medium of free expression and fair presentation.” Section 315(a) of the 1934 Act was amended in 1959 to include a statement requiring broadcasters to “afford reasonable opportunity for the discussion of conflicting views on issues of public importance.” As part of the Fairness Doctrine, the FCC also required broadcasters to notify those who had been subject to on-air personal attacks, and to offer them a right of reply.

Broadcasters subjected the Fairness Doctrine to legal challenge in the 1960s on the grounds that it violated broadcasters' First Amendment rights to control the content of their programming. In the landmark case Red Lion Broadcasting v. FCC (395 U.S. 367 [1969]), the U.S. Supreme Court upheld the Fairness Doctrine, reasoning that because broadcast frequencies are a scarce commodity, broadcasters can be required to provide a diversity of views. The Court noted that it considered “the right of the public to receive suitable access to social, political, esthetic, moral and other ideas and experiences” paramount to any First Amendment rights belonging to the broadcasters.

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