A. Public Broadcasting in the Scheme of Federal Regulation
The Communications Act of 1934, as amended, confers broad powers on the FCC to regulate “interstate and foreign commerce in communication by wire and radio so as to make available . . . to all the people of the United States a rapid, efficient, Nation-wide, and world-wide wire and radio communication service.” 1/ Federal regulation of broadcasting is comprehensive. The Communications Act grants to the FCC the sole power to determine who should receive broadcast licenses,2/ a power that includes determining where a station may be located, what frequency it can use, when it can broadcast, and what area it can serve.3/ The FCC also exerts authority over broadcast programming through its political broadcasting regulations,4/ children’s programming requirements,5/ programming accessibility rules,6/ and its restrictions against “indecent” broadcasts.7/ As a general matter, broadcast licenses are conditioned on the licensee’s ability and willingness to serve the “public interest, convenience and necessity.” 8/ This includes the power to ensure that both commercial and noncommercial broadcast licensees operate in the public interest. 9/
Non-commercial broadcasting has been part of this scheme since the beginning of radio. Some of the first radio stations in the United States were established by physics and engineering departments of colleges and universities. As radio developed in the early 1920s, these same institutions maintained their stations and licensed them under the terms of the Radio Act of 1927. However, the Act made no distinction between commercial and non-commercial broadcasting.
The Communications Act of 1934 required the Commission to report to Congress on a proposal create a nationwide cultural or educational broadcast service and “to allocate fixed percentages of radio broadcasting facilities to particular kinds of non-profit radio programs, or persons identified with particular types of non-profit activities.” 10/ In 1935, the Commission reported that existing stations were producing programs with enough diversity and cultural content that the special allocation would be unnecessary. 11/
The FCC established a class of non-commercial educational radio stations in the late 1930s and in 1940 reserved five of the forty channels in the new high-frequency band for such stations. In 1952, the FCC reserved 250 television channels for noncommercial educational use. 12/ Congress ratified that decision in 1962, through passage of the Educational Television Facilities Act, which provided funding for educational stations. 13/ These set-asides have continued to exist for both television and FM services. 14/ Because the AM band was established and populated prior to these reservations, there are no special provisions for non-commercial broadcasters in that service. In addition to frequency set-asides, various institutions were established to facilitate public broadcasting. In 1967 the Carnegie Commission on Educational Television issued its initial report proposing federal aid and an extension of educational TV to be known as “public television.” 15/ This prompted Congress to pass the Public Broadcasting Act of 1967. 16/
The goal of the Public Broadcasting Act is to “encourage the development of programming that involves creative risks and that addresses the needs of unserved and underserved audiences.” 17/ Within this framework, the overall federal policy toward public broadcasting is to promote freedom of expression. Federal policies underlying the promotion of public broadcasting include maximizing diversity by promoting “freedom, imagination and initiative on both local and national levels,” 18/ serving as “a source of alternative telecommunications services for all the citizens of the Nation,” 19/ and insulating programming decisions from political control. 20/
To implement these goals the Public Broadcasting Act created the Corporation for Public Broadcasting. CPB is a private, non-profit corporation that partially funds the activities of public broadcasting through programming grants and funding for station operations. 21/ To obtain CPB funding, non-commercial stations must establish a community advisory board, conduct open meetings of the governing body and maintain open financial records. 22/ The community advisory board reviews the programming goals of the station, the station’s policy decisions, and whether the programming has met the “specialized educational and cultural needs” of the community. 23/ However, the role of the board is “advisory in nature” and does not include “control over the daily management of the station.” 24/
Among other things, CPB was given a mandate of facilitating the production of “programs of high quality, diversity, creativity, excellence, and innovation, . . . with strict adherence to objectivity and balance in all programs . . . of a controversial nature.” 25/ However, CPB may neither engage in broadcasting itself nor produce programming, and is required to remain a strictly non-political and non-profit organization. 26/ Instead, CPB created the Public Broadcasting Service and National Public Radio to distribute programming to member radio and television stations. Most CPB-funded television programs are distributed through PBS, and CPB-funded radio programs are distributed primarily through NPR and Public Radio International (“PRI”).
PBS is a private, nonprofit corporation established in 1969. It provides quality TV programming and related services to 171 noncommercial, educational licensees which operate the 356 member stations. 27/ Programs distributed to member stations are not produced by PBS, but are drawn from many sources, including public television stations, independent producers, and other distributors. NPR provides a similar programming service for non-commercial radio stations. NPR produces, acquires and distributes programming to member stations. Formed in 1972, NPR distributes programming to more than 620 public radio stations. PRI was founded in 1983 to develop distinctive radio programs and to diversify the public radio offerings. It distributes more than 400 hours of weekly programming to its 694 affiliate stations.
Public broadcast stations are licensed to various types of private and governmental entities. Nonprofit community organizations or state government agencies operate a large proportion of public television stations, while many public radio stations are licensed to universities. State government stations are typically linked into multi-station networks that air a common program schedule statewide. Of the public television stations funded by CPB, approximately 38 percent are licensed to state and local governments, and another 24 percent are licensed to universities. The remaining 38 percent are licensed to nonprofit community organizations. Of public radio stations funded by CPB, approximately 15 percent are licensed to state and local governments, and another 55 percent are licensed to universities. The remaining stations are licensed to nonprofit community organizations. 28/
Funding for public broadcasting also comes from a combination of public and private sources. Less than half of the funding for public broadcasting comes from tax-based sources such as federal, state, and local governments. Sixty-one percent of the income is from private sources such as businesses and memberships. In 1999, the revenue breakdown of funding sources was as follows: membership (25.6%); business (14.7%); state governments (13.9%); CPB appropriation (11.6%); state colleges (8%); foundations (5.7%); local governments (2.7%); federal grants and contracts (2.4%); private colleges (1.5%); other public colleges (0.8%); auction (0.8%); all other sources (12.3%). 29/