Radio Controlled: A Media Activist's Guide to the Federal Communications Commission
Pete Tridish

Who decides how the United States media are owned, operated, and controlled? The policy that our government uses to regulate media is often portrayed as an obscure topic that just a few lawyers and engineers in Washington DC care about. In the past few years though, millions of Americans have made their views known on media issues by commenting at Federal Communications Communication's (FCC) proceedings and lobbying Congress against media monopolies. This short primer is intended to help interested citizen's understand the way that the backroom deals that govern our media are made, and to give you a can opener with which you can let loose the worms of public outrage that the big business lobbyists have been trying to keep in the can.

What the FCC is going on?

The Federal Communications Commission is an independent United States government agency, with a direct responsibility to Congress. The FCC was established by the Communications Act of 1934. They are charged with regulating interstate and international communications by radio, television, wire, satellite, and cable. Herbert Hoover, the Secretary of Commerce in the 1920s, said that radio was the first industry he ever saw that practically 'begged to be regulated.' The industry begged for regulation because the key players of the industry wanted the government to keep out any challengers to their oligopoly position in their markets. Their attitude was, 'We got here first, now protect us from anyone else that wants to set up shop.' This was all done, of course, under the rubric of 'protecting the radio dial from interference.'

Telecommunications Act of 1934: A public interest bargain with one side kept

The Telecommunications Act of 1934 essentially cut a deal with the existing broadcasters. The government would keep order on the airwaves and create a stable business environment. In exchange, since broadcasters get a special privilege to broadcast that other citizens do not, they must operate 'in the public's interest, convenience, and necessity.' At times, this has meant that they must do certain forms of public service broadcasting, present different views on issues of public importance, meet certain equal opportunity hiring rules, maintain publicly accessible files, and so on.

Unfortunately, most of the 'public service rules' have been whittled away by the broadcasters' legal challenges in the courts. Broadcasters won many of these legal battles based on the claim that the 'public service rules' infringed upon their First Amendment rights. These broadcasters argued that being forced to broadcast things that they did not desire was a violation of their first amendment right to freedom of speech. There are still a few things that are required of broadcasters, but they are relatively minimal. For example, broadcasters are still required to participate in the emergency alert system, which allows the government to take over the stations in times of emergency and extreme weather conditions.

What the FCC does and does not do

- The FCC is in charge of spectrum management.
- They do not pass laws (or statutes), they write regulations that are administrative and technical in nature.
- They do not set broad policy goals. Their policy is directed by laws passed by Congress. The FCC administers these laws.
- They distribute licenses to broadcast TV and radio. They regulate the cable industry, telephones, wireless communications, satellite broadcasting, and any devices which may create interference to radio communications.
- They auction spectrum, collecting usage fees for the US treasury. They study policy questions and emerging technologies.
- The FCC is an enforcer of its regulations.

Quick! Turn off the transmitter. Here comes the FCC! Some words about FCC enforcement.

The FCC enforcement agents do not have guns and cannot arrest people. Generally, they enforce first by gentle persuasion and gradually escalate through their various authorities. When someone or some company violates an FCC regulation, first the FCC gives a warning and asks the violator to comply with the law. Next they can impose fines (up to $11,000). If that does not cause the violator to comply with the law, the FCC asks the federal courts for an injunction, which is administered by federal marshals. If you violate a court injunction, you can go to jail, usually for about a year.

The FCC has a very mixed history of the effectiveness of its enforcement efforts. This is due to an enormous history of case law from the courts, where broadcasters and others have challenged the constitutionality of many FCC regulations. It is also due to limited enforcement budgets, which force the FCC to overlook many minor infractions while they pursue the most egregious violations.

For example, hypothetically, the Congress could pass a law mandating that the president can have an hour per week on all TV and radio stations to address the nation. The FCC would open a rulemaking and figure out how to technically implement the presidential broadcast and then write rules and regulations about the procedures that broadcasters would use to make the broadcasts work. The FCC would also be in charge of fining or suspending the licenses of broadcasters who failed to comply with these rules. A broadcaster who did not like either the statute passed by Congress or the rules and regulations passed by the FCC could go to the courts, and the courts could hear arguments and decide whether the statutes, rules or regulations were constitutional.

Who are these people, and what do they do with themselves all day?

The FCC has five Commissioners. The Commissioners are appointed by the president and must be approved by the Senate. The Senate rarely seriously challenges an appointment, unless there are unusually strong partisan considerations. Their terms are five years, though they rarely stay that long. Serving as a FCC Commissioner is usually a stepping-stone to some higher political office.

The Commissioners are always split three to two, in favor of the party of the current president of the United States. The Chairman of the Commission is always from the party of the President. If a new President is elected, the Chairman will offer his or her resignation to the President. If he or she is of the same party, the president usually keeps the chairman. If he or she is from a different party, then the Chairman is replaced, altering the balance of power.

Commissioners are picked from a field of candidates who are executives in the communications industry, influential staffers for Congress, or party operatives from the Democrats or Republicans, and sometimes up through the ranks of the FCC. They are almost always lawyers, and almost never engineers.

There is a large permanent civil service staff, numbering in the thousands. They revolve in and out of the FCC from the industry. The staff rises and falls in power in the agency, depending on which party holds the presidency. Usually, everyone keeps his or her job gets reshuffled with each new administration. The staff advises the Commissioners and writes proposals, which the Commissioners decide upon. Often the Commissioners do not particularly know very much about the technologies and economics involved in intricate policy decisions, so they are very dependent on staff recommendations.

Popular myths about the FCC (which are mostly true)

They control what you hear in the media. The FCC controls who gets a broadcast license or a cable franchise. They also make certain limitations on broadcasters, like the ' no obscenity ' rules or the rules against advertising on non-commercial TV and radio channels. The FCC does not, however, decide who gets a radio station based on whether they are anarchists, anabaptists, or aardvark anatomists. They base ownership on who submits a license application that meets certain technical standards and minimal character qualifications (no felony convictions, applicant must be a US citizen, etcetera). The FCC is in fact very scared of any form of content regulation. Over the years they have been sued into blithering submission by the broadcast industry. Also, every time that anyone in the history of the FCC has attempted to go beyond even the most meager of rules about what can and cannot be said on the air, they have been slapped down by Congress.

They have a lot of power. Well they do, but the system is designed for precedent, stability, and inertia. The FCC has a lot of power to do exactly what it is supposed to do, like give out radio licenses. But Congress can always pass a law that trumps the FCC, though it is almost unheard of for either Congress or the courts to overrule the FCC on technical matters. The courts and Congress generally defer to the expertise of the FCC on any matters that involve engineering. The only exception in recent years is the low power FM issue, and that just barely slipped through as a rider to a 'must-pass' appropriations bill. On the other hand, it is common for Congress to pass a law telling the FCC that it has to change its procedures on legal matters. For example, the FCC used to have regulations capping the number of radio stations that one company could own nationally. One company could own no more than seven FM stations and seven AM stations in the entire country. Under Reagan, those limits were raised to twenty FM and twenty AM stations. Finally. Congress passed the Telecommunications Act of 1996, and the caps were eliminated. From that point, the FCC had to allow corporations to buy up as many radio licenses as they wanted, which has allowed Clear Channel to accumulate over twelve hundred stations across the country.

The FCC does not care about you. Commissioners need to be concerned with public opinion. They usually have interests in climbing the political ladder to higher public offices. Therefore, they like to use their position to grandstand and get their names in the press or to position themselves to be executives at communications corporations. Most of the public does not know much about what the FCC does, but if there is a hot issue, Commissioners often want to talk about it. For example, when a Commissioner is about to leave the job and run for public office, he or she will often ask the staff to crack down on obscenity on the airwaves, since that issue can win votes from the 'family values' crowd.

The FCC is on top of things. Really, the agency is in constant chaos. Every new Chairman proves that he or she is 'against big government and bureaucracy' with some silly new 'streamlining initiative' making new offices, consolidating two old bureaus under one manager who only knows about one of the fields, shifting desks around, etcetera, and nothing gets done for months. The FCC probably has more 'efficiency effectiveness experts' than real communications engineers. Everyone in the FCC freely admits that their small agency has no real way of keeping up with the massive technological changes going on in the private sector, where billions are spent compared to the FCC's hundreds of thousands for research.

Information is hard to get from the FCC. Actually they have an amazing website. Most of what you need to know is right there. It is, however, in a language that is nearly impossible to understand until you get used to it. The staffers are just like anyone else you might meet. Some are really crabby and act as if any contact with the non-engineer or lawyer public is a big imposition. Others are generous with their time and very, very nice. Some get really excited that anyone actually cares what they are doing!

You thought the voting in Florida was weird? How a bill becomes a law, FCC style

Someone - maybe the public or the corporations, or one of the FCC Commissioners - puts in a request for a rulemaking. If the Commissioners don't care about the request, it is ignored. Some requests have been sitting at the FCC since before the Commissioners were born. If the Commissioners are interested, then a notice of Inquiry (NOI) is adopted, and the issue is opened to public comment. In most matters, some big corporations, a few small businesses, and one or two citizen advocates or policy nuts write comments. All the comments that go to the FCC go up on the FCC website to the amazing Electronic Comment Filing system (e-government at its best). Anyone can therefore see the comments of any other party. Then, there is a shorter period for reply comments, during which commenters can reply to the comments of others. The staff looks over all the comments and makes a recommendation to the Commissioners, who approve the rule, send it back for changes, or ignore it. Strangely, they never vote anything down. They just forget about it. Decisions are always negotiated before the actual vote. If there are not enough 'yes' votes for the proposal to pass, it is not voted upon.

It is important to remember: rules are made by a tiny elite in-crowd, and you are not it. Most of them have a financial interest in the proceedings, and money usually talks. It means the FCC will pay attention to you. Of course, there are exceptions. Many of the staffers who stick it out working for the government (even though they could make two or three times as much working in the corporate sector) can be affected if they see that ordinary citizens really care about an issue. It is not uncommon for these staffers to go to bat for the 'public interest,' and it can make a real difference. There are a number of elements of comments that Prometheus Radio Project and our ally organizations have made that have ended up being incorporated into federal regulations. However, in the end, no one at the FCC is truly empowered to make the sorts of fundamental changes to the system that are needed - even if the FCC staff or Commissioners wanted to.

In recent years, activists have jumped into the normally collegial rulemaking process. This process was intended for highbrow legal and technical discussion between industry stakeholders and the FCC. But now these rulemakings are being filled with zillions of comments on proposed FCC rules coming from ordinary people. Unlike ordinary citizen letters to the FCC, the staff has to read these comments. And while the FCC is not compelled to take your advice, they are compelled to address all unique arguments raised in comments and say why they did or did not adopt the suggestions. If they do not address the substance of the concern, the commenter has standing to sue the FCC. While not a panacea, this tactic of mass filing of formal comments has pushed the agency towards more responsiveness to the concerns of regular people.

Last word

The communications policy process is complicated but actually squares pretty well with what you learned in high school government class. The part you probably didn't learn in school was the inordinate influence of the corporations on the process. Citizen groups have had greater success in recent year than they have had in many years since the late seventies. Bureaucrats in all parts of government and industry will try to tell you that they don't have the power to address your concern, and it is the responsibility of some other party. Hopefully this guide has helped you identify the correct part of the bureaucracy to target for the change you want to make, and will aid you in holding these people accountable when they try to pass the buck of to some other agency. Happy lobbying!