Public Broadcasting a report and Analysis

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Mississippi Authority for Educational Television, 71 F.C.C.2d at 1308. The FCC issued no opinion on the legality of the statutory ban on certain programming, describing the issue as an “inchoate conflict.” Id. at 1308-09. See also KQED, Inc., 57 F.C.C.2d 264, 266 (1975) (“Petitioner has failed to demonstrate with any degree of specificity that KQED has in fact ignored Blacks or females.”).

97/ Georgia State Board of Education, 70 F.C.C.2d 948 (1979).

98/ Id. at 962.

99/ Id., quoting Columbus Broadcasting Coalition v. FCC, 505 F.2d 320 (D.C. Cir. 1974).

100/ See Revision of Programming Policies and Reporting Requirements Related to Public Broadcasting Licensees, 87 F.C.C.2d 716, 731 (1981).

101/ Id. The Commission more recently reemphasized its “limited role” in determining public broadcasting content. Letter to Henry Goldberg, 12 FCC Rcd. 15,242 (1997) (rejecting objections regarding transfer of a noncommercial radio license to C-SPAN).

102/ Revision of Programming Policies and Reporting Requirements Related to Public Broadcasting Licensees, 87 F.C.C.2d at 732.

103/ Id. at 734. The Commission proposed eliminating regulatory policies “not specifically traced to substantive provisions of the Communications Act” or that are “an integral part of national public policy.” Id. It suggested that “[f]reedom from government regulation may provide a tremendous liberating force. On the one hand it may free the service from the conforming and confining oversight of a central authority; on the other it may allow the system to be more directly responsible and responsive to the people and institutions that constitute it.” Id. at 735.

104/ Report and Order, Revision of Programming Policies and Reporting Requirements Related to Public Broadcasting Licensees, 98 F.C.C.2d 746 (1984). Detailed logging requirements were replaced by a quarterly issues/programs list which described the five to ten issues licensees addressed with responsive programming during the preceding three months. Id. at 755-756.

105/ Id. at 755.

106/ Standardized and Enhanced Disclosure Requirements for Television Broadcast Licensee Public Interest Obligations, 15 FCC Rcd. 19,816, 19,817 (2000).

107/ Id. at 19,824 (2000). Licensees also would be required to make the standardized information available both in their public files and on the Internet. Id. at 19,825.

108/ Id. at 19842 (Separate Statement of Commissioner Powell). Commissioner Furchtgott-Roth wrote to highlight “the clear and present First Amendment problems posed by the concept of breaking out categories of programming on broadcasters’ FCC forms.” Id. at 19,840 (Separate Statement of Commissioner Furtchgott-Roth, concurring in part and dissenting in part).

109/ Section 310(d) of the Communications Act prohibits the transfer of control of a broadcast station license, or any rights thereunder, without prior Commission consent. 47 U.S.C. § 310(d).

110/ The Trustees of the University of Pennsylvania Radio Station WXPN(FM), Philadelphia, Pennsylvania, 69 F.C.C.2d 1394 (1978), recon. denied, 71 F.C.C.2d 416 (1979).

111/ WXPN(FM), 69 F.C.C.2d at 1409.

112/ Id. at 1397, quoting WCHS-AM-TV Corp.,8 F.C.C.2d 608, 609 (1967).

113/ Id. at 1398.

114/ Id., quoting 1960 En Banc Programming Policy Statement, 44 F.C.C. 2303, 2313-14 (1960).

115/ Id., quoting NBC, Inc. v. United States, 319 U.S. 190, 206-207 (1943).

116/ Id., quoting Broadcast Licenses and Public Agreement, 57 F.C.C.2d 42, 47-48 (1975).

117/ WXPN(FM) Reconsideration Order, 71 F.C.C.2d at ¶ 5. The Commission has stressed that the obligation to maintain editorial control is the same for both commercial and noncommercial licensees. WXPN(FM), 69 F.C.C.2d at 1399-1400.

118/ Southwest Texas Public Broadcasting Council, 85 F.C.C.2d 713, 715 (1981), quoting Lorain Journal Co. v. FCC, 351 F.2d 824 (D.C. Cir. 1965), cert. denied, 383 U.S. 967 (1966).

119/ Alabama Educational Television Commission, 33 F.C.C.2d at 508.

120/ Southwest Texas Public Broadcasting Council, 85 F.C.C.2d at 716. The Commission noted that it would represent an unauthorized transfer of control if it had been demonstrated that the university, rather than the licensee, exercised control over the broadcast stations.

121/ In renewing the license of WGTB-FM, licensed to Georgetown University, the FCC affirmed the right of a public broadcast licensee to make format decisions after becoming aware of indecency complaints and to assert their “personal and religious views when making program decisions.” Georgetown University, 66 F.C.C.2d 944, 951 (1977).

122/ See Citicasters Co., 16 FCC Rcd. 3415 (Enforcement Bureau 2001) (state court injunction enforcing provisions of time brokerage agreement is an unauthorized transfer of control).

123/ Pub.L. 90-129, Title II, § 201(8), 81 Stat. 368.

124/ Section 1229, Omnibus Budget Reconciliation Act of 1981, Pub. L. 97-35, 95 Stat. 730. 97th Cong, 1st Sess. (1981).

125/ House Rpt. No. 572, 1967 U.S. Code Cong. & Admin. News 1772,1810.

126/ Id.

127/ Section 399(b) provided that “Each licensee which receives assistance under sections 390 to 399 of this title after August 6, 1973, shall retain an audio recording of each of its broadcasts of any program in which any issue of public importance is discussed.” Pub. L. 93-84, § 2, 87 Stat. 219.

128/ Report and Order, Docket No. 19861, 57 F.C.C.2d 19, 21 & n.11 (1975).

129/ See Public Broadcasting Hearings on S. 1090 Before the Subcomm. on Communications of the Senate Comm. on Commerce, 93d Cong., 1st Sess. 113-114 (1973) (Comments of Senator Griffin) (“To avoid any kind of Government censorship, you should make programs broadcast over-the-air available to the public as is the case with material that is printed in the newspaper.”).

130/ See FCC v. League of Women Voters of California, 468 U.S. 364, 371 (1984).

131/ 593 F.2d 1102, 1116 (D.C. Cir. 1978) (en banc).

132/ Id. at 1110 (plurality op.).

133/ Id. at 1105.

134/ Id. at 1116 (plurality op.).

135/ Id. A panel of the D.C. Circuit recently cited Community-Service Broadcasting of Mid-America for the proposition that “raised eyebrow” regulation can impose impermissible burdens on broadcasters. MD/DC/DE Broadcasters Ass’n v. FCC, 236 F.3d 13, 19 (D.C. Cir. 2001), cert. denied sub nom. Minority Media and Telecom. Council v. MD/DC/DE Broadcasters Ass’n, 122 S.Ct. (2002).

136/ Community-Service Broadcasting of Mid-America, 593 F.2d at 1110 (Plurality op.); see id. at 1122 (applying stricter Equal Protection analysis because “fundamental rights are involved”).

137/ Noting that the case involved a statute “involving First Amendment rights,” the majority applied an “equal protection standard . . . closely related to the O’Brien First Amendment tests.” Id. In subsequent cases, the Supreme Court noted the connection between First and Fifth Amendment issues in the public broadcasting context. In Turner Broadcasting System v. FCC, 512 U.S. 662 (1994), the Court confirmed that noncommercial stations “are subject to no more intrusive content regulation than their commercial counterparts.” Id. at 650. “‘The FCC itself has recognized that ‘a more rigorous standard for public stations would come unnecessarily close to impinging on First Amendment rights and would run the collateral risk of stifling the creativity and innovative potential of these stations.’” Id. at 651 (quoting Public Broadcasting., 98 F.C.C.2d 746, 751 (1984)).

138/ 468 U.S. at 375-376.

139/ Id. at 376-381, 392-399.

140/ Id. at 376 n.11.

141/ Although noting that at least two thirds of the public television stations in operation were licensed to state broadcasting authorities, state universities or educational commissions, or local school boards or municipal authorities, the Court found that Section 399 prohibited a wide range of speech by wholly private stations. As a consequence, it reserved for another day the question whether a restriction focusing only on state and local governmental licensees would survive constitutional scrutiny.  Id. at 394-395.

142/ The more narrow category of public forum claims involving political debates sponsored by noncommercial broadcasters is covered in the next section.

143/ Muir v. Alabama Educ. Television Comm’n, 688 F.2d 1033, 1037 (5th Cir. 1982) (en banc), cert. denied, 460 U.S. 1023 (1983). It was also suggested that the university cancelled the program because it was believed to be “in bad taste,” because of concerns about the “docudrama” format, because the school had a previous contract with the Saudi royal family to tutor a particular princess, and – perhaps most tellingly – because a significant percentage of the university’s private funding came from oil companies and related individuals. Id. at n.5.

144/ Barnstone v. University of Houston, 514 F. Supp. 670, 688-689 (S.D. Tex. 1980). On emergency appeal, the United States Court of Appeals for the Fifth Circuit vacated the mandate to air Death of a Princess on KUHT-TV, and the Supreme Court denied a request to vacate the Fifth Circuit order. Barnstone v. University of Houston, 446 U.S. 1318 (1980).

145/ See Muir v. Alabama Educ. Television Comm’n, 656 F.2d 1012, 1014-15, 1017, 1021 (5th Cir. 1981) (describing district court ruling).

146/ Id. at 1026.

147/ Barnstone v. University of Houston, 660 F.2d 137 (5th Cir. 1981).

148/ Muir, 688 F.2d at 1041-42.

149/ Id. at 1042.

150/ Id. at 1043.

151/ Muir, 656 F.2d at 1020, 1026 (panel).

152/ Muir, 688 F.2d 1041, 1044 (en banc).

153/ See Knights of the Ku Klux Klan v. Curators of the University of Missouri, 203 F.3d 1085, 1093-94 (8th Cir.), cert. denied, 531 U.S. 814 (2000) (enhanced underwriting announcements on a public broadcast station are not a public forum).

154/ The following announcement was submitted to the station: “The Knights of the Ku Klux Klan, a White Christian organization, standing up for rights and values of White Christian America since 1865. For more information[,] please contact the Knights of the Ku Klux Klan, at P.O. Box 525[,] Imperial, Missouri[,] 63052. Let your voice be heard!” Id. at 1089.

155/ Id. at 1093-94.

156/ 917 F.2d 486 (11th Cir. 1990), cert. denied, 502 U.S. 816 (1991).

157/ Id. at 488 (quoting Ga. Code Ann. § 20-13-5(a)).

158/ Id. at 489.

159/ Id. at 490.

160/ 898 F.2d 628 (8th Cir. 1990).

161/ Id. at 633 (quoting Estiverne v. Louisiana State Bar Ass’n, 863 F.2d 371, 379 (5th Cir. 1989)).

162/ 22 F.3d 1423 (8th Cir.) (en banc), cert. denied, 513 U.S. 995 (1994).

163/ Id. at 1428-29.

164/ Forbes v. Arkansas Educational Television Comm’n, 93 F.3d 497, 504 (8th Cir. 1996) (en banc) (“Forbes II”).

165/ Id. The court later modified its ruling to exclude access by write-in candidates, and clarified that access need not be provided to debates “organized by people or groups other than [the public licensee].”

166/ Id. at 505.

167/ Arkansas Educational Television Comm’n v. Forbes, 523 U.S. 666 (1998).

168/ Id. at 673.

169/ Id. at 676.

170/ Id. at 675.

171/ Id. at 680.

172/ Id. at 681.

173/ Marcus v. Iowa Public Television, 150 F.3d 924 (8th Cir. 1998) (en banc).

174/ A Mississippi statute adopted in the 1970s and which is still on the books provides that: “No [Sex Education and Information Council of the United States (‘SEICUS’)] (or any of its subsidiaries or connections known by other name whatsoever) programming whatsoever shall be carried by any educational television station in the State of Mississippi.” Miss. Code § 37-63-15. See Mississippi Authority for Educational Television, 71 F.C.C.2d 1296 (1979).

175/ The restriction was invalidated in State v. University of Maine, 266 A.2d 863 (Me. 1970).

176/ The New Jersey requirement was upheld by a divided vote in McGlynn v. New Jersey Public Broadcasting Authority, 439 A.2d 54 (N.J. 1981).

177/ For a detailed account of this controversy, see Bornstein & Associates, Governance Options for Idaho Public Television (January 2001) (“Idaho Public Television Report”).

178/ See Steve Behrens, Idaho Likely to Ban Programs That “Support” Lawbreaking, Current, April 3, 2000.

179/ 2000 Idaho Sessions Laws Ch. 475 (H.B. 768).

180/ Tiffany Ellis and Brian Connolly, UM Faces Further Budget Cuts, Digital Missourian (, April 4, 2002.

181/ Nicholas P. Miller, Legal Summary of Cases and Opinions, Public Broadcasting Governance and Management Handbook, Appendix 1B (1986).

182/ Muir, 688 F.2d at 1041, 1044 (en banc).

183/ Randall P. Bezanson and William G. Buss, The Many Faces of Government Speech, 86 Iowa L. Rev. 1377, 1381 (2001) (“Bezanson & Buss”).

184/ See, e.g., Block v. Meese, 793 F.2d 1303, 1313 (D.C. Cir.) (quoting New York Times v. Sullivan, 376 U.S. 254, 270 (1964)), cert. denied, 478 U.S. 1021 (1986). See also Meese v. Keene, 481 U.S. 465, 480-482 (1987) (Congress may label foreign films as “political propaganda”); Penthouse Int’l, Ltd. v. Meese, 939 F.2d 1011, 1015-16 (D.C. Cir. 1991) (“We do not see why government officials may not vigorously criticize a publication for any reason they wish”), cert. denied, 503 U.S. 950 (1992).

185/ United States v. Frame, 885 F.2d 1119, 1131 (3d Cir. 1989), cert. denied, 493 U.S. 1094 (1990).

186/ Muir, 688 F.2d at 1050 (Rubin, J., concurring) (citation omitted).

187/ Board of Educ., Island Trees Union Free Sch. Dist. v. Pico, 457 U.S. 853, 869 (1982) (plurality opinion). See id. at 878 n.1 (Blackmun, J., concurring).

188/ Board of Regents v. Southworth, 529 U.S. 217 (2000); Rosenberger v. Rector & Visitors of the Univ. of Virginia, 515 U.S. 819 (1995).

189/ National Endowment for the Arts v. Finley, 524 U.S. 569 (1998).

190/ 500 U.S. 173 (1991).

191/ 412 U.S. at 139 (Stewart, J., concurring).

192/ Mark Yudof, When Government Speaks 44 (University of California Press: Berkeley 1983).

193/ Muir, 688 F.2d 1041, 1044 (en banc).

194/ 203 F.3d at 1093-94.

195/ E.g., Kincaid v. Gibson, 236 F.3d 342, 355 (6th Cir. 2001) (en banc) (confiscation of student yearbook violated the First Amendment); Stanley v. Magrath, 719 F.2d 279 (8th Cir. 1983) (cutting student newspaper’s funding because of disfavored content violates the First Amendment); Schiff v. Williams, 519 F.2d 257 (5th Cir. 1975) (college newspaper is protected by the First Amendment); Joyner v. Whiting, 477 F.2d 456 (4th Cir. 1973) (publication of college newspaper cannot be suppressed because college officials dislike its content); Antonelli v. Hammond, 308 F. Supp. 1329 (D.Mass. 1970) (prior review requirement for college newspaper violates the First Amendment).

196/ 468 U.S. at 375-376.

197/ See Rosenberger, 515 U.S. at 835.

198/ Pico, 457 U.S. at 870-871.

199/ E.g., Bezanson & Buss, supra note 183 at 1385 (“To the extent a government agency is delegated authority over a medium of communication with full editorial control, which the Supreme Court has approved and even required, the resulting communications are plainly government speech.”); Bezanson, The Government Speech Forum: Forbes and Finley and Government Speech Selection Judgments, 83 Iowa L. Rev. 953, 963 (1997-98) (“editorial judgment is but a single manifestation of a broader range of speech selection judgments that government makes in its capacity as a speaker”); Schauer, Principles, Institutions and the First Amendment, 112 Harvard L. Rev. 84, 101 (1998) (“the claim that these actions are not the speech of the state is simply false”). But see Yudof, supra note 192 at 125-135 (“Whatever else may be said about the content of noncommercial programming, the charge that public broadcasting is a propaganda arm of the federal government is simply ill-founded”).

200/ In Muir, the court distinguished public broadcasting stations from other situations in which “the government sponsors and financially supports certain facilities through the use of which others are allowed to communicate and exercise their own right of expression.” 688 F.2d at 1044. It described such things as university literary magazines and speaker’s bureaus as “public access facilities-public forums” and public television stations as the government’s “own medium of expression.” Id. at 1044-45 & n.27.

201/ See Brief for the Federal Communications Commission and the United States as Amici Curiae Supporting Petitioner, Arkansas Educational Television Commission v. Forbes, at 16 n.6 (“Petitioner ‘is an agency of the State of Arkansas’ . . . and is therefore ‘part of the Government for purposes of the First Amendment.’”) (citations omitted). See id. at 17 (“‘when the State is the speaker, it may make content-based choices’”) (quoting Rosenberger, 515 U.S. at 833).

202/ Forbes, 523 U.S. at 674-676.

203/ Id. at 675.

204/ Id. at 673. See Lilli Levy, Professionalism, Oversight, and Institution Balancing: The Supreme Court’s “Second Best” Plan for Political Debate on Television, 18 Yale J. on Reg. 315, 342 n. 102 (Summer 2001) (“The Court [in Forbes] thus rejected the full-fledged ‘government as speaker’ position.”).

205/ Yudof, supra note 192 at 125.

206/ Id.

207/ Id. at 126.

208/ Hague v. CIO, 307 U.S. 496, 515 (1939); Jamison v. Texas, 318 U.S. 413 (1943). The term “public forum” was coined by Professor Harry Kalven, Jr. in the 1960s. See Harry Kalven, Jr., The Concept of the Public Forum: Cox v. Louisiana, 1965 Supreme Court Review 1.

209/ Perry Education Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 (1983).

210/ Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 803 (1985).

211/ Lehman v. City of Shaker Heights, 418 U.S. 298, 301-302 (1974) (plurality opinion).

212/ United States Postal Serv. v. Council of Greenburgh Civic Ass’ns, 453 U.S. 114, 128-129 (1981).

213/ Lebron v. National R.R. Passenger Corp., 513 U.S. 374 (1995). In Lebron, which involved a demand for access to a prominent billboard in New York’s Grand Central Station, the Court compared Amtrak to the Corporation for Public Broadcasting, noting that the boards of directors of both entities are “controlled by Government appointees.”
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