Is The FCC Even Legal?

[Neanderpaul]

Ok...

First of all, I preface this by saying I've never had any run in with the FCC on any level. I really don't have an agenda at all. I woke up this AM with the stunning revelation that the FCC might actually be an illegal entity altogether. I don't know why this came to me. Perhaps it was a repressed dream, or some mention of the upcoming SCOTUS-hears-indecency blah blah. Either way...I want to show you something and ask those that might be better educated in matters of law.

The First Amendment:


"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

The FCC:

"The Federal Communications Commission (FCC) is an independent United States government agency. The FCC was established by the Communications Act of 1934 and is charged with regulating interstate and international communications by radio, television, wire, satellite and cable. The FCC's jurisdiction covers the 50 states, the District of Columbia, and U.S. possessions."

As we look a little further...

"The Federal Communications Commission (FCC) is a United States government agency, created, directed, and empowered by Congressional statute (see 47 U.S.C. § 151 and 47 U.S.C. § 154), and with the majority of its commissioners appointed by the current president.

The FCC was established by the Communications Act of 1934 as the successor to the Federal Radio Commission and is charged with regulating all non-Federal Government use of the radio spectrum (including radio and television broadcasting), and all interstate telecommunications (wire, satellite and cable) as well as all international communications that originate or terminate in the United States. It is an important factor in US telecommunication policy. The FCC took over wire communication regulation from the Interstate Commerce Commission."

So, it appears that the original intent was to regulate actual transmission. Nowhere in either charter, nor subsequent definitions do we see regulation of content. And even were it to be part of their charter, does it not contradict the First Amendment by its very existence?

It could be argued that "Radio" as an industry is, in fact, a wing of the press. And therefore there can be no restriction of content. Also, by merely being accountable to Congress, it contradicts the text of the First Amendment completely. According to the letter of the law, the FCC may be an illegal wing of the U.S. Goverment.

I am suprised it hasn't been addressed. And if it has, can someone please point me to where it has, and the resolution?

If it hasn't...I bet it will be when the hearings actually happen. At the very least, it should be. If for no other reason than to have their authority clearly spelled out. As it stands now, the FCC does look like it's suspect in its entire existence.

 

[The Beave]

unless you have a congressman or senator who believes the same and endless supply of money. forget it..it will fall on deaf ears.

Then again I would like to see someone try it. :-\

 

[4dude]

I think the FCC is mainly concerned with people swearing,causing willfull problems over the radio.... (Like most of the people on 11 meters do with thier linears,etc)

 

[gr8oldies]

That's LEAN-e-ers to you, son. With a D104 Power mike! As far as I'm concerned the FCC should be like the FAA, just the traffic cop. Don't see any changes on the horizon though as the nanny state grows bigger and bigger.

 

[TexasTom]

Congress shall make no law [...]abridging the freedom of speech, or of the press

Seemingly simple words that allow for now exceptions, which is where your question comes from.

However, the Supreme Court has been finding exceptions for many years -- the most obvious of which are that the courts have repeatedly ruled that pornography and yelling "fire" in a crowded theater are not protected speech.

If you took the broadest possible interpretation of the first amendment, even the licensing of broadcast stations would be found unconstitutional -- by what right does the government have to favor the "free speech" of those who can afford to buy a broadcast license versus the rest of us? So throw out the licensing rules and let the highest powered transmitter win!

For that matter, how dare the government regulate the modulation system I must use to express my broadcast speech -- so let's toss out most of the technical rules while we're at it.

But it isn't going to happen, because the courts would rule that the first amendment isn't unlimited, and therefore the FCC doesn't violate it.

 

[TheBigA]

This issue will go before the Supreme Court in October. The "fleeting expletives" rule will be discussed.

FCC Chairman Kevin Martin refered to it last month when the 3rd Court of Appeals struck down his fines against the CBS TV stations in the Janet Jackson case.

Based on what I've read from the Constitutionalists on the Court, they will take the words "Congress Shall Make No Law..." literally. And it will be a huge blow to the Conservatives who thought Conservative judges meant those who would object to obsenity.

Regarding the licensing of the airwaves, the government does not actually pick who gets to own stations. That is done in the marketplace. What the government does is officiate in the transaction. However, ownership limits and other restrictions (newspaper cross-ownership) might fall into that area of judgement, which should be prohibited by the first amendment. If it comes up, and it looks like Fox wants to challenge the newspaper rules, this may also go to the Supremes.

 

[Carmine5]

Although not for the same reasons you propose, it appears that three former FCC chairmen agree with you:

"Former FCC Chairmen Say Strip Commission Of Indecency Power"

"It is time for the Court to bring its views of the electronic media into alignment with contemporary technological and social reality," they said, according to B&C. "As former regulators, we appreciate that the FCC is in an uncomfortable position, buffeted by the turbulent passions of anxious parents and threats from excited congressmen. But that is precisely why the matter must be taken out of the agency’s hands entirely."

http://www.fmqb.com/Article.asp?id=831094


C5

 

[TheBigA]

Coupled with the fact that it takes time and attention away from more important duties.

 

[The Beave]

Coupled with the fact that it takes time and attention away from more important duties.

like chasing down unlicensed operators that interfere with control tower communications

 

[TheBigA]

Coupled with the fact that it takes time and attention away from more important duties.

like chasing down unlicensed operators that interfere with control tower communications

The piracy thing has really gotten out of hand. And it doesn't help when an FCC Commissioner attends a conference where one of the topics is a seminar in starting a pirate radio station. What was he thinking? Answer: He wasn't.

 

[gr8oldies]

Taking names maybe?

 

[TheBigA]

Both Copps and Adelstein have attended and spoken at such conferences. It seems to me that a regulator should not take part in a conference where breaking the law is one of the topics.

 

[TexasTom]

Regarding the licensing of the airwaves, the government does not actually pick who gets to own stations. That is done in the marketplace. What the government does is officiate in the transaction.

That drastically underestimates the impact of what is nominally "technical" regulation by the FCC -- maximum HAAT and power, protected contour values, interference criteria, etc. All of these are a mixture of objective and subjective criteria, and they have an enormous impact on who ends up owning those stations.

Anyone want to take a stab at how the broadcast ownership would differ from what we see today if the highest powered FM stations allowed were limited to the original class A limits -- 3 kw at 91 meters? I'll bet we would see a lot more "mom and pop" operators and a lot less interest in radio by Wall Street, regardless of what the ownership rules were.

So don't kid yourself into thinking that the FCC can be a neutral officiator in transactions and technical rules without impacting ownership.

 

[TheBigA]

That drastically underestimates the impact of what is nominally "technical" regulation by the FCC -- maximum HAAT and power, protected contour values, interference criteria, etc. All of these are a mixture of objective and subjective criteria, and they have an enormous impact on who ends up owning those stations.

If you're buying an exisiting station, all that's figured out already. That's what I'm talking about. Getting a CP is a different animal.

I'll bet we would see a lot more "mom and pop" operators and a lot less interest in radio by Wall Street, regardless of what the ownership rules were.

Depends on how you define "mom & pop." If you're talking about an individual owner, I doubt it. The liability alone will kill you. Add to that the capital costs and operating expenses. No "mom & pop" I know have that kind of money hiding in their mattress.

Wall Street lost interest in radio five years ago. They briefly flirted with satellite, but that's done too. Back in the old days, lots of diversified companies included radio in their portfolio. Not any more. There's no money in towers and transmitters, and everyone knows it. The only people investing in them now are rich people with ideologies looking for a platform.

So don't kid yourself into thinking that the FCC can be a neutral officiator in transactions and technical rules without impacting ownership.

The FCC farms most of its technical work to outside contractors. I read lots of comments about how owners are running stations without employees. Guess where they got that idea? The FCC.

 

[radioboy]

Like many other organizations and agencies, the FCC's original focus has changed. The original
Federal Radio Commission was primarily concerned with preventing interference between
radio stations.

It appears now that the FCC has become more of a satellite office of the IRS than an agency whose is charged with seeing that stations "operate in the public interest."

Just over a week ago, the city of Tallahassee was flooded by rains from Tropical Storm Fay. Many roads
were closed. Homes were flooded, with residents rescued by boat.

Not a word on the radio - on ANY station - about the road conditions. Instead, I found: 4 stations off the air (power outages); brokered preachers; satellite feeds; and on FM, regular music programming.

The only source of information we had was the local newspaper's Internet site.

What about "serving the public?" It didn't happen here.

And the pirates?

The costs of even getting into the radio business are so enormous that the average citizen can no longer afford to even try. So, indirectly, the system itself practically encourages pirating because there is no legal affordable way of doing radio. Yet, petitions for legal low power AM and LPFM services languish for years
at the FCC before any action is taken. This leads me to believe that they must LIKE tracking down pirates, maybe for the fines thay can impose.

Overall, the FCC does a respectable job at what it does. It just doesn't always seem clear as to what it is SUPPOSED to do.

One tune across the radio dial is evidence enough that preventing interference must not be high up on that priority list.

 

[TheBigA]

It appears now that the FCC has become more of a satellite office of the IRS than an agency whose is charged with seeing that stations "operate in the public interest."

I think you're right. The mission, as it were, changed in the early 80s, and Reagan cut their budget and they had to seek funds from other places. So they began dropping requirements, and seeking new sources of revenue.

What about "serving the public?" It didn't happen here.

I think that phrase is often misunderstood. When the original Communications Act was written, there was no news as we know it. No real mission to serve the public interest. That idea evolved and developed over time, and some stations saw it as doing news. What has happened in the last 30 years is that the government has built its own system of information. From NOAA offering 24/7 weather information to other national and state systems, one by one, the public service functions of radio have been usurpted by the government. Not because they had to, but it was a role where the government sought to grow, in complete opposition to the spirit behind the 1934 Act.

The costs of even getting into the radio business are so enormous that the average citizen can no longer afford to even try.

I think that's why the government is so determined to expand LPFM.

This leads me to believe that they must LIKE tracking down pirates, maybe for the fines thay can impose.

Once again it's a source of revenue at a time when the government keeps cutting their budget. But at this time, there are way more pirates than agents to track them down. And the fines aren't really detering them. The same guys get caught over and over. There is a whole black market that supports pirate radio in this country and Canada, with an annual convention. I'm not kidding.

Overall, the FCC does a respectable job at what it does. It just doesn't always seem clear as to what it is SUPPOSED to do.

I think all they really need to do is read the Communications Act, and follow its direction. The Act is very clear in what the Commission is supposed to do.

 

[radioplayer]

I agree with just about everything all of you have posted so far. I said a long time ago that the FCC's become nothing more than a branch of the IRS....I see that others share the same view.

I don't think that the FCC even cares about pirate operators unless they begin to interfere w/a commercial operator who has made the complaint to the local field office. I hear pirates in-between the non-com channels who never get a knock on their door unless it's really "serious" anymore.

No, the revenue stream for our govt' nowadays is found in the auctioning of VHF TV Spectrum and other leftover pieces that the FCC thinks will fetch the most dollars to cover some other part of our govt' that's in a big red hole!