Program Content―a Criterion of Public Interest in Fcc Licensing
| Published date | 01 September 1949 |
| Author | Herbert H. Rosenberg |
| Date | 01 September 1949 |
| DOI | 10.1177/106591294900200306 |
| Subject Matter | Articles |
375
PROGRAM
CONTENT—A
CRITERION
OF
PUBLIC
INTEREST
IN
FCC
LICENSING
HERBERT H.
ROSENBERG
University
of
Chicago
THE
PROBLEM
OF
PROGRAM
CONTENT
IN
THE FRAMEWORK
OF
ADMINISTRATIVE
DISCRETION
F
THE
three
major
media
of
mass
communication,
only
radio
is
0
subject
to
comprehensive
regulation.
Whereas
one
has
a
consti,
tutional
right
to
publish
a
newspaper
or
produce
motion
pictures,
no
one
has
a
constitutional
right
to
operate
a
radio
broadcasting
station.
The
press
and
the
film
industry
are
inhibited
only
by
the
dictates
of
taste
.
and
legal
liability;
a
radio
broadcast
licensee
must
operate
in
the
&dquo;public
interest.&dquo;
In
view
of
the
crucial
role
which
radio
plays
in
the
American
system
of
communication
and
its
regulated
status
in
contradistinction
to
the
other
mass
media,
an
analysis
of
the
criteria
for
determining
whether
a
radio
station
is
or
is
not
being
operated
in
the
public
interest
seems
to
be
an
area
of
challenging
inquiry.
’
Congress
delegated
authority
to
the
Federal
Communications
Com-
mission
to
grant
radio
station
licenses
&dquo;if
the
public
interest,
convenience
or
necessity
will
be
served
thereby.&dquo;
1
In
passing
on
the
legality
of
the
Chain
Broadcasting
Regulations,
the
Supreme
Court,
with
the
eyes
of
the
radio
world
focused
upon
it,
ruled
that
the
public
interest
is
the
&dquo;interest
of
the
listening
public
in
the
larger
and
more
effective
use
of
radio.&dquo;
2
It
was
in
this
case
that
Justice
Frankfurter’s
opinion
shattered
the
contention
of
the
radio
networks
that
the
area
of
FCC
discretion
did
not
extend
into
the
field
of
program
content. The
Court
held:
The
Act
itself
establishes
that
the
Commission’s
powers
are
not
limited
to
the
engineering
and
technical
aspects
of
regulation
of
radio
communication.
The
Act
does
not
restrict
the
Commission
merely
to
supervision
of
the
traffic.
It
puts
upon
the
Com-
mission
the
burden
of
determining
the
composition
of
that
traf~c.3
It
is
apparent,
then,
that
the
crucial
test
of
whether
an
applicant
will
operate
or
a
licensee
is
operating
in
the
public
interest
is
the
nature
of
the
program
service
rendered.
Consequently,
the
FCC
has
been
faced
with
the
problem
of
developing
criteria
for
evaluating
program
content
in
terms
of
the
public
interest
without
such
criteria
being:
1.
So
vague
as
to
be
meaningless,
2.
So
specific
as
to
border
on
the
verge
of
censorship,
3.
So
arbitrary
as
to
stifle
creativeness.
148
U. S.
Statutes
1064,
47
U. S.
Code
(1946),
chap.
5,
subchap.
III,
sec.
307a.
2 NBC
v.
U.
S.,
319
U. S.
190
at
216
(1943).
3
Ibid.
376
The
purpose
of
this
discussion
is
to
analyze
the
evolution
of
program
content
as
a
criterion
of
public
interest
in
FCC
licensing
and
to
explore
the
issues
which
have
emerged
as
a
result.
There
have
been
two
distinct
phases
in
the
evolution
of
this
criterion.
The
first
was
primarily
devoted
to
the
development
of
negative
standards
and
consisted
of
FCC
decisions
and
court
rulings
which
served
to
inform
the
radio
stations
as
to
what
conduct
or
program
content
was
not
in
the
public
interest.
Needless
to
say,
this
approach
was
open
to
the
criticism
that
it
failed
to
provide
a
yardstick
to
measure
the
adequacy
or
inadequacy
of
proposed
program
service.
In
the
second
phase,
the
FCC
has
endeavored
to
develop
specific
positive
standards
reflecting
program
content
in
harmony
with
the
public
interest
and
to
apprise
all
concerned
of
these
standards.
That
the
need
for
standards
is
indigenous
to
the
proper
exercise
of
administrative
dis-
cretion4
has
been
aptly
epitomized
as
follows:
The
exercise
of
adequate
discretion
for
dealing
with
the
problems
of
a
complex
society
and
the
simultaneous
provision
of
sufficient
safeguards
against
the
abuse
of
dis-
cretion
are
the
two
clearest
needs
of
modern
democratic
government.’
’
Normally,
substantive
standards
are
considered
safeguards
against
the
abuse
of
discretion.
However,
in
regulating
a
means
of
expression
such
as
radio
broadcasting,
the
question
arises
as
to
whether
standards
may
not
serve
an
opposite
purpose
by
imposing
administrative
censorship
in
conflict
with
the
right
of
freedom
of
expression
guaranteed
by
the
First
Amendment.
Before
treating
the
problem
of
program
content
itself,
it
is
essential
to
sketch
briefly
the
legislative,
administrative,
and
judicial
frame
of
. reference.
The
purpose
of
the
Federal
Communications
Act
of
1934
was:
To
maintain
the
control
of
the
United
States
over
all
channels
of
interstate
and
foreign
radio
transmission;
and
to
provide
for
the
use
of
such
channels,
but
not
the
ownership
thereof,
by
persons
for
limited
periods
of
time,
under
licenses
granted
by
Federal
authority,
and
no
such
license
shall
be
construed
to
create
any
right
beyond
the
terms,
conditions
and
periods
of
the
license.’
To
effect
this
purpose,
the
FCC
was
given
powers
to
prescribe
the
nature
of
the
service
to
be
rendered
encourage
larger
and
more
effective
use
of
radio
in
the
public
interest,8
make
special
regulations
applicable
to
4
See:
Ernst
Freund,
Administrative
Powers
over
Persons
and
Property
(Chicago:
University
of
Chicago
Press,
1928).
E.
Freund,
"The
Substitution
of
Rule
for
Discretion
in
Public
Law,"
American
Political
Science
Review,
IX
(November,
1915),
666.
Harold
J.
Laski,
"The Growth
of
Adminis-
trative
Discretion,"
Selected
Essays
on
Constitutional
Law,
IV
(1938),
219.
Ralph
Fuchs,
"Concepts
and
Policies
in
Anglo-American
Administrative
Law
Theory,"
47
Yale
Law
Journal
538
(1938).
R.
Fuchs,
"Procedure
in
Administrative
Rule-Making,"
52
Harvard
Law
Review
259
(1938).
John
Dickinson,
Administrative
Justice
and
the
Supremacy
of
Law
(Cambridge:
Harvard
University
Press,
1927).
5
Ralph
Fuchs,
"An
Approach
to
Administrative
Law,"
18
North
Carolina
Law
Review
194
(1940).
6
48
U. S.
Statutes
1064,
47
U. S.
Code
(1946),
chap.
5,
subchap.
III,
sec.
301.
7
Ibid.,
sec.
303
(b).
8
Ibid.,
sec.
303
(g).
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