1. Broadcasters are public trustees. As public trustees, broadcasters have public interest obligations, most of which are met voluntarily, not as a result of governmental mandate. Many of these obligations are simply good business. Some of them may or may not be good for business; they are followed because of the important democratic, economic, cultural, and civic functions of those who provide television programming for the American public.
The Federal Government also imposes some public interest obligations on broadcasters, and throughout the history of broadcasting, it has seriously considered imposing additional obligations. It has restrained itself partly because of its understanding of free speech principles and partly because of its belief that broadcasters are voluntarily doing what should be done.
2. Most broadcasters take their public interest obligations seriously, going well beyond the requirements of law.(1) Whether or not it is profitable to do so, they offer public service announcements; provide educational programming for children and take account of their particular needs; offer many community services; cover substantive issues in a serious way; serve the diverse social groups that represent the full community of viewers; avoid exploitation and sensationalism; offer programming for those who are deaf and hard-of-hearing and others with disabilities; help promote both accountability and deliberation; and give detailed and serious attention to important public issues, public debates, and elections.
3. The purpose of a code is to reflect an explicit and voluntary commitment to certain basic principles and aspirations, and to help ensure that broadcasters generally act as public trustees, and are not penalized in the marketplace for doing what public trustees should do. A code helps to ensure that broadcasters promote the educational, civic, cultural, and democratic goals of television, to counteract the short-term pressures that sometimes threaten to compromise those goals, and to reflect good practices on which there is a broad industry and public consensus.
4. In a period of remarkable innovation with respect to communications technologies, it is especially important that those who provide television programming continue to promote the democratic, educational, and other goals historically associated with broadcasting. Broadcasters should use the extraordinary opportunities provided by these new technologies to carry out these time-honored goals, with particular reference to providing educational and democratic services, and to serving the diverse range of people, and the diverse range of social groups, who enjoy and learn from television.
RESPONSIBILITY TOWARD CHILDREN
1. Broadcasters have an obligation to serve children. Educational programming can serve as a supplement to schooling and to good parenting; harmful programming can undermine the efforts of parents and schools alike. Sometimes parents have a hard time monitoring the viewing habits of their children, and broadcasters should help them. Broadcasters have an obligation to provide beneficial and educational programming for children.
2. Broadcasters should attempt to ensure that children are not exposed to excessively violent programming or programming that is otherwise harmful to or inappropriate for children. Broadcasters should avoid programming that encourages criminal or self-destructive behavior; they should also be sensitive in presenting sexual material that children might encounter.
3. Programs designed primarily for children should take into account the range of interests and needs of children of various ages, from instructional and cultural material to a wide variety of entertainment material. In their totality, programs should contribute to the sound, balanced development of children to help them achieve a sense of the world at large and make informed adjustments to their society. In seeking balance, broadcasters should attempt to provide programming for children of diverse ages, recognizing that television is watched by very young children and also by near-adults.
4. Because of the potential importance of television to children's development, and to their feeling of belonging to their community, broadcasters should serve children of different religious, demographic, racial, and ethnic groups.
5. Each broadcaster should endeavor to provide a reasonable amount of educational programming for children each week. Broadcasters should also endeavor to inform viewers of whether the programs are not suitable for children of various ages.
6. Children are allowed to watch programs designed primarily for adults, and broadcasters should take this practice into account in the presentation of material in such programs when children may constitute a substantial segment of the audience.
7. Broadcasters should take care to ensure that advertising or promotional materials on programming directed toward children is appropriate for the relevant audience , and that it does not contain exploitative or excessively violent materials.
8. Television can play a significant role in preparing children for the rights and responsibilities of citizenship. Broadcasters should therefore endeavor to provide appropriate news and public affairs programming for children, including news relevant to children in the local community.
1. A well-functioning democracy depends on access to information and ideas, particularly in the context of elections. An informed citizenry is vital to a democracy that prizes both accountability and deliberation. Television should play a constructive role in promoting these values; new and emerging technologies should be harnessed to this goal.
2. Each station should devote a significant amount of time to coverage of Federal, State, and local elections, as well as initiatives and referendums, and to the substantive issues involved in the electoral process.
3. Coverage should be substantive and issue-oriented. It should not emphasize the sensational and the prurient. It should concern itself with claims and disagreements on matters of substance. Consistent with the exercise of legitimate station discretion, stations should endeavor not to give excessive or undue attention to sensational accusations or to issues of "who is ahead," at the expense of other issues.
4. Each station should provide ample opportunity for candidate-related and candidate- centered programming, focusing on races and candidates that the station believes are important and deserving of attention by its viewers. Stations may, at their discretion, use a combination of means—including debates, interviews, features, and grants of free time to candidates—to achieve this goal.
5. In the 30-day period before an election, each station should endeavor to provide, at minimum, 5 minutes of candidate-centered programming each night, between 5 p.m. and 11:35 p.m. Stations should choose the important races and candidates, and choose the appropriate formats, from 1-minute presentations by candidates to mini-debates to features to interviews to free airtime. The 5 minutes need not be contiguous. Consistent with station discretion and democratic goals, it is preferable to ensure that candidates provide something other than short "soundbites" (an appropriate goal is 1 minute or more of speaking time).
6. Stations are encouraged, in any election period, to give special attention to the most important elections and elections issues, whether they are Federal, State, or local. Consistent with the exercise of legitimate editorial discretion to select the most important races and themes, stations should endeavor to provide reasonable access to candidates for State and local office as well as to Federal candidates for office, and also to proponents and opponents of ballot initiatives. Stations should therefore not adopt any blanket policy of refusing to sell time to candidates for office and those seeking to express views on ballot initiatives.
7. Coverage of elections should be fair and balanced.
8. Each station should ensure that its coverage of elections, initiatives, and referendums, as well as its candidate-related and candidate-centered programming, is closed-captioned to the extent that providing such captioning does not impose an undue burden on the station.
TREATMENT OF NEWS, PUBLIC EVENTS, AND EMERGENCIES
1. A television station's news programming should be both substantive and well-balanced. Especially because they serve educational and democratic functions, stations should devote substantial attention to both local and national issues of general importance.
2. Morbid, sensationalistic, or alarming details not essential to a factual report, especially in connection with stories of crime or sex, should be avoided. News should be broadcast in such a manner as to avoid panic and unnecessary alarm. News programming should attempt to avoid prurience, sensationalism, and gossip.
3. News reporting should be factual, fair, and without bias.
4. A television broadcaster should exercise particular discrimination in the acceptance, placement, and presentation of advertising in news programs so that such advertising should be clearly distinguishable from the news content.
5. Commentary and analysis should be clearly identified as such.
6. Pictorial material should be chosen with care and not presented in a misleading, sensationalistic, or prurient manner.
7. All news interview programs should be governed by accepted standards of ethical journalism, under which the interviewer selects the questions to be asked. Where there is advance agreement materially restricting an important or newsworthy area of questioning, the interviewer should state on the program that such limitation has been agreed on. Such disclosure should be made if the person being interviewed requires that questions be submitted in advance or participates in editing a recording of the interview prior to its use on the air.
8. Stations should make an effort to devote enough time to public issues to permit genuine understanding of problems and disagreements.
1. A television broadcaster has an affirmative responsibility to be informed of important public events and to inform the public of these events, in order to provide coverage consonant with the ends of an informed and enlightened citizenry.
2. The treatment of such events by a television broadcaster should provide adequate, substantive, and informed coverage of relevant issues, including issues of local concern.
1. Broadcasters should provide accurate and timely coverage of emergencies and disasters, sufficient to inform members of the public about the relevant problem and how to avoid danger to themselves and others. Coverage of emergencies and disasters should avoid undue alarmism and sensationalism.
2. Broadcasters should endeavor to provide textual presentations of all emergency programming in real time and ensure that such presentations incorporate substantially the entire text of the audio portion of such programming.
1. Television broadcasters and their staffs occupy positions of unique responsibility in their communities and should conscientiously endeavor to be acquainted fully with the community's needs and characteristics in order to better serve the welfare of its citizens.
2. Requests for time for the placement of public service announcements or programs should be carefully reviewed with respect to the character and reputation of the group, campaign, or organization involved; the public interest content of the message; and the manner of its presentation.
3. Public service announcements should not be relegated to off-hours, such as late night and early morning, but should be distributed throughout the broadcast day and during primetime.
4. Stations should devote substantial time to the provision of public service announcements. Typically, broadcasters have provided well over 75 public service "spots" per week;(2) they should endeavor to continue this practice, as community needs dictate.
5. Broadcasters are encouraged to engage in various public service activities such as telethons, blood drives, and related activities in order to give assistance to charitable causes locally and nationally.
6. In accordance with the educational and democratic functions of broadcasting, stations should provide reasonable access to those members of the local community who wish to use the airwaves to discuss issues of local concern. Broadcasters should therefore provide appropriate coverage of topics of particular concern to the local community.
7. Broadcasters should offer programming that serves the needs of diverse members of the local community, including traditionally underserved and disadvantaged groups. Broadcasters should be sensitive to the diversity of the communities that they serve and attempt to fulfill their responsibility to the full range of relevant groups, including but not limited to religious, demographic, racial, and ethnic groups.
CONTROVERSIAL PUBLIC ISSUES
1. Television provides a valuable forum for the expression of responsible views on public issues of a controversial nature. Television broadcasters should seek out and develop with accountable individuals, groups, and organizations, programs relating to controversial public issues of importance to fellow citizens and give fair representation to opposing sides of issues that materially affect the life or welfare of a substantial segment of the public.
2. Requests by individuals, groups, or organizations for time to discuss their views on controversial public issues should be considered seriously and on the basis of their individual merits, and in the light of the contribution that the use requested would make to the public interest, and to a well-balanced program structure.
3. Broadcasts in which stations express their own opinions about issues of general public interest should be clearly identified as editorials. They should be unmistakably identified as statements of station opinion and should be appropriately distinguished from news and other program material.
4. Stations should give attention to controversial issues of distinctively local concern.
SPECIAL PROGRAM STANDARDS
1. Anti-social behavior; crime. The treatment of criminal activities should attempt to convey their social and human effects. The presentation of techniques of crime in such detail as to be instructional or invite imitation should be avoided.
2. Violent materials. Violence, psychological but especially physical, should be portrayed responsibly, and not exploitatively. Presentation of violence should avoid the excessive, the gratuitous, the humiliating, and the instructional. The use of violence for its own sake and the detailed dwelling upon brutality or physical agony, by sight or sound, should be avoided. Programs involving violence should venture to present the consequences to its victims and perpetrators. Particular care should be exercised where children may see, or be involved in, the depiction of violent behavior.
3. Sexual violence. Programs should not present rape, sexual assault, or sexual violence in an attractive or exploitative light.
4. Sexually oriented material. Obscenity is not constitutionally protected speech and is at all times unacceptable for broadcast. Where significant child audiences are expected, special care should be exercised in addressing sexual themes; in particular children, should not be depicted as sexual objects for the control and use of others. Consistent with artistic freedom, programming that involves sexuality should not be exploitative, humiliating, or demeaning. In evaluating programming involving sexuality, broadcasters should consider the composition of the audience, the context in which sensitive material is presented, and the scheduling of the relevant programming.
5. Self-destructive behavior: drugs; gambling; guns; alcohol.
- (1) The use of illegal drugs or the abuse of legal drugs should not be encouraged or shown as socially acceptable. Glamorization of addiction, drug use, and substance use should be avoided, especially when children are likely to be viewing.
- (2) The use of gambling devices or scenes necessary to the development of a plot or as appropriate background is acceptable only when presented with discretion and in moderation, and in a manner which would not excite interest in, or foster, unlawful betting, or be instructional in nature.
- (3) Consistent with artistic freedom, the use of guns as instruments of unlawful violence should not be glamorized or encouraged.
- (4) Consistent with artistic freedom, the use of liquor and the depiction of smoking in program content should not be glamorized and should generally be de-emphasized. When shown, they should be consistent with plot and character development.
6. Professional advice/diagnosis/treatment. Professional advice, diagnosis, and treatment should be presented in conformity with law and recognized professional standards.
7. Subliminal perception. Any technique whereby an attempt is made to convey information to the viewer by transmitting messages below the threshold of normal awareness is not permitted.
8. Hatred of social groups. Consistent with the commitment to robust public debate, stations should not use group-based hatred in an exploitative manner, and stations should attempt not to fuel hatred against members of any social group, or to promote racial, religious, ethnic, or sexual violence.
9. Humane treatment of animals. The use of animals, consistent with plot and character delineation, shall be in conformity with accepted standards of humane treatment.
10. Game programs; contests. Quiz and similar programs that are presented as contests of knowledge, information, skill, or luck must, in fact, be genuine contests; and the results must not be controlled by collusion with or between contestants, or by any other action which will favor one contestant against any other.
None of these provisions shall be understood or interpreted to restrict appropriate artistic freedom or the expression of diverse views on public issues.
RESPONSIBILITY TOWARD INDIVIDUALS WHO ARE DEAF AND HARD OF HEARING
1. Broadcasters should ensure that their programming is responsive to the needs of citizens with disabilities. To this end, broadcasters should ensure that programming is accessible, through the provision of closed captioning and other means, to the extent that doing so does not impose an undue burden on the broadcaster. Particular efforts should be made to provide full access to news and public affairs programming.
2. Citizens who are deaf and hard of hearing are sometimes at risk of a form of disenfranchisement or even physical danger, because steps are not taken to ensure that television broadcasting is available to them. Technological means exist to overcome this problem; these means are increasingly available and feasible.
3. To the extent that no undue burden is involved, stations should take special steps to ensure that information about disasters and emergencies are fully accessible to those who are deaf and hard of hearing, including captioning in "real" time.
4. To the extent that no undue burden is involved, stations should attempt to carry out the responsibilities described in the preceding sections in such a way as to ensure as to ensure reasonable access by those who are deaf and hard of hearing.
REVISIONS AND ENFORCEMENT AUTHORITY
1. There shall be a continuing committee entitled the Television Code Board to be composed of not more than nine members, all of whom shall be from subscribers to the Television Code. These members shall be appointed by the President of the National Association of Broadcasters, ensuring reasonable participation by each network and by an appropriately diverse range of subscribers.
2. The Television Code Board shall meet twice each year.
3. The Television Code Board is authorized and directed:
- (1) To consider and recommend amendments to the television Code;
- (2) To provide special recognition of those stations that have provided excellent public service in the preceding year;
- (3) To consider claims and charges made by the Code Authority General Manager about noncompliance with the Code;
- (4) To withdraw the NAB seal from any station for continuing or egregious violations, in accordance with the provisions below; and
- (5) To compile detailed information about compliance with the Code and public service activities by television broadcasters, and to make such information available to the public.
4. There shall be a position designated as the Code Authority General Manager. The Code Authority General Manager is authorized and directed:
- (1) To maintain a continuing review of all programming material presented over television;
- (2) To receive, screen, and clear complaints about television programming , compliance with this Code, or amendments to this Code;
- (3) To define and interpret words and phrases in this Code;
- (4) To develop and maintain appropriate liaison with relevant and appropriate private and public institutions;
- (5) To inform, promptly and responsibly, any station of complaints and commendations;
- (6) To make recommendations about amendments to this Code;
- (7) To provide recommendations for special recognition for excellent public service in the preceding year;
- (8) To make public all relevant information about compliance and noncompliance with this Code and about public services and public interest activities of broadcasters.
Compliance with this Code is voluntary, and not mandatory, on the part of all stations. Compliance and noncompliance will be treated in the following way:
1. A seal of approval will be given to those who are shown to comply with its provisions.
2. Special public recognition may be given to those stations that have compiled an excellent public service record in the past year. Such recognition may be awarded for, among other things:
- (1) Meeting the needs of children in a sustained and creative way,
- (2) Offering substantive and extended coverage of elections, including interviews, free air time, and debates.
- (3) Offering substantive and extended coverage of public issues,
- (4) Providing outstanding news programming,
- (5) Providing opportunities for discussion of problems facing the local community,
- (6) Charitable activities.
3. At the time of license renewal, a notation will be given to the FCC that there has been compliance or continuing or egregious noncompliance with the Code. This notation will lack any legal force or effect.
4. The Television Code Board shall monitor compliance and report to the public the names of complying, noncomplying , and specially commended stations.
5. The Television Code Board should report continuing or egregious violations of the code to Congress, the public, and FCC on an ongoing basis. These reports will lack legal force and effect.
A BRIEF HISTORY OF BROADCASTING CODES
The purpose of this section is to provide some background information about the history of the idea of a broadcasting code.(3)
Origins and Precursors: The Spectrum and Roosevelt
The idea of a broadcasting "code" has a long history; cooperative agreements, designed to promote the public interest or shared financial goals, are nothing new. The National Association of Broadcasters (NAB) was founded in 1923, and it first attempted to produce a degree of self-regulation in 1926, as a response to the "chaos" widely perceived to have been produced by interference and piracy. Some progress was made, but ultimately the agreement broke down; hence, legislation was necessary, in the form of the Radio Act of 1927.
The initial NAB Code was produced in 1928. It included some content guidance, but it was quite vague and also lacked an enforcement mechanism. Just 1 year later the NAB adopted a new Code, involving ethics and standards of commercial practice. For example, the Code banned "fraudulent, deceptive or obscene" material, "false, deceptive, or grossly" exaggerated advertising claims, and "offensive" material. But the continuing imprecision of this code, together with the lack of an effective enforcement mechanism, made it something of limited usefulness.
The next major step resulted from President Roosevelt's National Recovery Administrative Codes in 1933. The NAB submitted a code of fair practices to the NRA, and on November 27, 1933, President Roosevelt signed it and gave it the force of law. The result included a seven-person Broadcaster Code Authority, designed to supervise compliance. But the National Recovery Act was struck down in 1935 by the Supreme Court, and the Code Authority was eliminated along with the "law" that President Roosevelt had signed.
After the New Deal, and Increased Content Control
Soon thereafter the NAB produced a new voluntary code, which was largely ignored. But in 1938 the NAB produced another, more specific code and also an explicit enforcement authority, the NAB Code Committee. Part of the reason for the new development was the increasing willingness of the FCC to regulate both structure and content and a specific warning, by the Chairman of the FCC (after the broadcast of War of the Worlds), that without industry self-policing, Government involvement was likely.
The 1938 Code included a number of important provisions. Among other things, it (a) required broadcasters to allot time fairly for discussion of controversial views; (b) banned the sale of time for the airing of controversial views; (c) asked broadcasters to cooperate with educational groups for the airing of educational programming; (d) required fair and accurate news programs; and (e) regulated commercials by limiting the time and length of advertisements. There were also prohibitions on hard liquor advertising. A code committee would enforce the Code by determining whether a station was in compliance. Notably, the head of the FCC publicly approved the Code, and the ACLU described it as "a great step forward in formulating a policy in the public interest."
All of these steps involved radio, but the 1938 code was the unmistakable precursor of the eventual television code. In its first period, television witnessed a pattern that generally characterized the past debates over radio and late twentieth century debates over television: legislative concern, proposed legislation, steps toward self-regulation, and little or no legislation or regulation.
In 1951, members of Congress proposed a National Citizens Advisory Board for Radio and Television, to oversee programming content. At about the same time, the NAB began to draft its first television code in 1952, apparently in direct response to a congressional threat of legislation.(4) The new Code had a broad reach, emphasizing in particular educational and cultural programming. It also contained content restrictions on display of violent action and sexual material.
Compliance with the Code was voluntary. (Note also that station operators who were not members of the NAB were eligible to subscribe.) Its enforcement provisions were quite modest. The basic mechanism came in the form of a clearinghouse for complaints. In addition, subscribers could display a Code seal (the NAB "Seal of Good Practice"), and permission to display the seal would be withdrawn for "continuing, willful, or gross" violations. Thus the only formal sanction was that the noncomplying station owner could not display the seal. But there were informal pressures too. Stations who sought license renewal were likely to have prompt FCC processing if they adhered to the Code. Moreover, some people believe that subscription to the Code was appealing to those who bought advertising time, because the Code contained limits on the length and frequency of commercials, which would enhance the prominence of the announcement. Some stations in the United States did not adhere to the Code, but the vast majority chose to do so.
In 1962, the FCC proposed to make parts of the Code into a legal mandate. The industry successfully resisted this step. But there was a continuing pattern of interaction among regulatory proposals, legislative reaction, public concern, and self-regulation. Of these the most important involved 1970s concerns about violence on television. The industry responded through the "family viewing policy," saying that inappropriate entertainment programming would not be shown between 7 p.m. and 9 p.m. eastern standard time. This was a distinctive form of self-regulation. But the Writers Guild of America challenged the policy on first amendment grounds (see below), arguing that the policy was not voluntary self-regulation but was in fact a product of government coercion.
In a controversial decision, the trial court accepted the challenge, and barred the NAB from enforcing the policy.(5) The court of appeals overturned the decision on the ground that the district court was not the right forum to resolve these issues in the first instance.(6) The Court of Appeals said that the issue should first be resolved by the FCC. Although the decision of the Court of Appeals was jurisdictional, that court suggested considerable doubt about the district court's judgment: "It simply is not true that the First Amendment bars all limitations of the power of the individual licensee to determine what he will transmit to the listening and viewing public."(7)
The FCC ruled in 1983 that there had been no Government coercion and that the NAB had adopted the family viewing policy voluntarily. In its key passage the FCC wrote, "voluntary industry action is often preferable to governmental solutions, and an industry frequently addresses a problem in order to forestall regulation by the Government; conversely, it is not unusual for a regulatory body to forego enacting rules when the regulated industry voluntarily adopts standards which deal with a perceived problem."(8) In June 1979, however, the Justice Department filed the antitrust suit described in detail below, resulting in the demise of the television code.
In the 1980s, continuing congressional concern about televised violence led to a new law exempting from the antitrust law networks, broadcasters, cable operators and programmers, and trade association, in order to permit them to generate standards to reduce the amount of violence on television.(9) But there was considerable doubt about whether an explicit exemption was necessary; a 1993 opinion from the Department of Justice said that the industry could cooperate to reduce television violence without offense to the law of antitrust.(10) In June 1990 the NAB issued new "voluntary programming principles" to cover violence, indecency and obscenity, drugs and substance abuse, and violence. The new standards were reaffirmed in June 1991, and in 1992, ABC, NBC, and CBS issued and agreed to adhere to a set of new standards. Thus in the 1990s self-regulation can be found in various places: the advance parental advisory system, joint advisory guidelines issued by the four networks, NAB principles, and an annual public assessment, by the four networks, of television violence.
A Note on the First Amendment
It is possible to argue, as some have, that a code of the sort suggested here would create serious first amendment problems. But this is a mistake. The first amendment applies to government, not to private industries. By itself, a code is a private set of guidelines, and private guidelines by themselves raise no first amendment issue. If a private group decides to impose restrictions on the speech of its members, and government is not involved, the first amendment is entirely irrelevant. We therefore believe that a voluntary form of self-regulation, of the kind suggested here, creates no first amendment problem.(11)
For first amendment purposes, there is no difference between a system in which individual broadcasters decide what programming to offer, and a system in which the industry as a whole engages in self-regulation with the help of a code. In neither case is a government mandate involved, and hence the first amendment is irrelevant.
Of course the issue would have to be analyzed differently if a code were a product of government threat, and were effectively required by government , In that case, the first amendment would come into play.(12) There can be no question that a governmentally mandated code, not voluntary but taking the form that we have outlined, would raise legitimate constitutional problems. This does not necessarily mean that the first amendment would be violated; the question would be whether any content regulation in the code could survive constitutional scrutiny, and to answer that question, each code provision would have to be investigated separately. The key point is that if government mandated a code, or even used compliance or noncompliance with a code for its own regulatory purposes, any such governmental action would have to be tested for compliance with first amendment principles, including the serious constitutional limits on content regulation.
Hence, it is extremely important that we are arguing on behalf of a code as a simple recommendation to private organizations, above all the NAB, and not as a proposed mandate from the government, either the FCC or Congress. (The point is fortified by the fact that this Committee is a body consisting of private citizens appointed for advisory purposes, rather than as a coercive act from a governmental body.) Indeed, this Committee has no coercive powers. Thus our attitude to the code is very much in the spirit of the NAB's own report on community service -- as a suggestion about non-governmental ways for the broadcasting industry to fulfill its public responsibilities.
In this section we offer a brief analysis of the antitrust issues raised by the proposed code. This is not an exhaustive discussion of an issue that is, in some of the details, quite complex. It is meant instead as a supplement to the analysis provided by the United States Department of Justice, which, we believe, is likely to be accepted by a court confronted with a challenge to any code. The discussion is necessarily a bit technical in parts.
A. Brief conclusion: The provisions that we are discussing are not likely to violate the antitrust laws. This is because (1) they would not have a significant anticompetitive effect, and without such an effect, there can be no violation of the antitrust laws; (2) it is unclear if any plaintiff could show an antitrust injury, and there is no violation of the antitrust laws without such an injury; and (3) the provisions would probably survive the "rule of reason," because any adverse effects on competition would be justified by the distinctive nature of the broadcasting media, which has been understood, historically, as an industry with a special obligation to the public interest.
There is considerable legal authority on behalf of our general conclusion. The United States Department of Justice has analyzed the issues in such a way as to give significant support to the legality of what we are discussing. (See Letter from Sheila Anthony, Assistant Attorney General for Legislative Affairs, attached as Exhibit A.) Notably, two district courts have upheld important aspects of prior codes. The leading district court ruling that might be thought to point the other way—often taken to be fatal to a code—was actually quite narrow. Thus there is no obvious legal authority against the kind of proposal that we are discussing here.
The best judgment is that courts would uphold a code that does not amount to price-fixing, or to a form of self-regulation designed in some way to increase broadcaster profits or to exclude new entrants. Of course the safest course would be for Congress to enact a law specifically authorizing codes of this kind, though we believe that this is not necessary.
B. Two favorable precedents. In two important cases, aspects of the Code were upheld against private antitrust attack. A district court refused to issue an injunction against code standards forbidding cigarette advertising, despite a claim that these standards were incon- sistent with the antitrust laws.(13) The court concluded that the plaintiff was not likely to prevail on the merits. The court referred in particular to the dangers posed by cigarette smoking and claimed that the standards and guidelines in the code serve the "public interest."(14)
A lower court also upheld the provisions involving standards for advertising for children.(15) The rule at issue there said that children's program hosts or primary cartoon characters "shall not be utilized to deliver commercial messages within or adjacent to the programs which feature such hosts or cartoon characters." The provision applied as well "to lead-ins to commercials when such lead-ins contain sell copy or imply endorsement of the product by program host or primary cartoon character." The plaintiff attacked the restrictions, claiming that it restricted the ability of hosts and actors to obtain free employment for delivery of commercials.
The court said, "There is not the slightest indication of any anti-competitive purpose in the creation of the rule," especially since there was no evidence of a motive "to benefit one class of performers competitively over another class of performers."(16) The court found it relevant that the rule "resulted from a bona fide concern on the part of various groups, and the FCC, regarding fair and ethical methods to be used in television advertising directed to children."(17) This was "a reasonable rule of conduct regarding good practice by its members in the public interest and is not in violation of the antitrust laws."(18)
In these cases, the court basically concluded that the restrictions were reasonable and in the public interest. This was a sufficient justification for the restriction.
C. An apparently unfavorable (but extremely narrow) precedent. Ultimately the Code met its demise as a result of an antitrust action brought by the Justice Department in 1979, based on an allegation that certain provisions of the Code violated the Sherman Act. We discuss this case in some detail, because it is often used as authority against the legality of any broadcasting code. This was actually a very narrow ruling that should not result in a successful legal challenge to a code of the kind that we are endorsing.
A narrow complaint. The Justice Department's complaint was quite narrow. It involved not the Code in general, but three specific kinds of advertising restrictions:
- Time standards, limiting the amount of commercial material that could be broadcast in an hour;
- Program interruption standards, which imposed a limit on the maximum number of commercial announcements per program as well as on the number of consecutive announcements per interruption;
- The multiple product standards, which prohibited the advertising of two or more products or services within a single commercial if the commercial was less than 60 seconds in length.
Note that each of these restrictions could be understood as a traditional form of collusion—as an effort by broadcasters to ensure high prices for advertisements. If, as is sometimes thought, broadcasters "deliver" viewers to advertisers in return for money, these parts of the code could be seen as illegitimate efforts to increase the return to broadcasters over the price that would prevail in an entirely competitive market. This is undoubtedly the concern that underlay the Justice Department's somewhat surprising decision to initiate the suit.
The ruling in brief. Basically, the court held that the multiple product standards were per se unlawful, but that the time standards and program interruption standards could not be tested without an inquiry into the facts.(19) This was a narrow ruling because it dealt only with a small segment of the old Code, involving an apparent effort to increase profits at the expense of advertisers.
The ruling in a little detail. A little background: Antitrust law applies a "per se rule" of illegality to certain obviously anticompetitive agreements. (Price-fixing agreements are the most obvious case.) It applies a "rule of reason," calling for a balancing test, to agreements that may or may not be anticompetitive. When the rule of reason is applied, it is necessary to find out a lot of facts.
On summary judgment in the case, the key issues were, first, whether the three agreements were so obviously anticompetitive that they were unlawful per se, and second whether, if they were not illegal per se, they were invalid under the "rule of reason," which requires -- to offer a bit more detail -- an inquiry into the facts of the business, the nature of the restraint, and the justification offered on its behalf.
The district court held that the time and product interruption standards were not invalid per se. In the court's view, the distinctive characteristics of the broadcasting industry argued against a per se rule of invalidity. Because broadcast frequencies are scarce, because the whole area is subject to regulation, and because of the fact that there are only 60 minutes in an hour (!), no simple solution would be sensible.
On these two issues, the court also denied summary judgment for the government under the "rule of reason," concluding that there were material issues of fact. The legal question was whether the time standards would have the effect of raising or stabilizing the price of commercial time (this was the antitrust problem); it was possible, the court said, that any such effect would be trivial in light of the importance of other factors. If this was true, the code would not violate the Sherman Act. This is because there is no antitrust violation without a significant adverse effect on competition.(20)
By contrast, the court held that the multiproduct standard was per se unlawful. In its view, this rule was akin to a standardization agreement by which food manufacturers set a standard for the ingredients that would be used in their products. This form of standardization was per se illegitimate. Thus, the court actually invalidated only one provision of the code, on the theory that it was analytically akin to a system for price-fixing. At the same time, the court denied summary judgment for the NAB.
The aftermath. After the court's ruling, the NAB suspended enforcement of all code provisions. In public it claimed that it would seek an appeal, but a consent judgment was issued, in which the NAB agreed, for 10 years, to cease monitoring and enforcement of the three disputed code provisions. The agreement also prohibited enforcing the standards for children's programming time. Thus, the district court's narrow decision -- untested in any court of appeals -- has loomed over the debate about codes.
An antitrust challenge to a new code? The best prediction is that a code of the sort that we are discussing would not violate the antitrust laws. In its most recent analysis of the problem, the Department of Justice reached this conclusion in suggesting that networks could agree to guidelines and principles to reduce unnecessary violence on television.(21) The Department of Justice concluded that "the conduct that was at issue in the NAB case differs significantly from that covered by" an agreement on televised violence.(22) In the NAB case, the problem was raising "the price of time," to "the detriment of both advertisers and the ultimate consumers of the products promoted on the air."(23) By contrast, an agreement covering violence should "be likened to traditional industry standard-setting efforts that do not necessarily restrain competition and may have significant procompetitive benefits."(24) In the view of the Department of Justice, "efforts to develop and disseminate voluntary guidelines to reduce the negative impact of television violence should fare well under the appropriate rule-of-reason antitrust analysis."(25)
More particularly, a code of the sort we are discussing should probably be upheld for the following reasons.
(a) This is not an ordinary form of collusion. It is not as if broadcasters are saying that advertisers must pay a minimum of $X per advertisement. This is very far from the usual domain of price fixing. Hence no per se rule is likely to attach.
(b) It is possible that the restrictions under discussion would have little or no adverse effect on competition; they may even have good effects on competition.(26) Without a significant adverse effect on competition, there is no antitrust violation. Even with a code, programmers would compete over a great many things, including the kinds of programming regulated by a code. The code might in a sense be procompetitive, because it would ensure television coverage of materials in which there is a substantial public interest and which might otherwise not be provided. This is so especially in light of the fact that stations would compete for viewers with respect to the kinds of programming covered by the code.
(c) It is not entirely clear that any plaintiff would have an antitrust injury. The self-regulation that we are discussing would allow a wide range of choices and options for consumers and producers. Perhaps some producer of some marginal programming could claim that he was unable to sell his product because of (for example) free air time for candidates; but this would be an extremely speculative injury. Perhaps viewers could argue that they were deprived of certain programming that they would like; but in view of the wide range of options available to viewers, this too is speculative. Perhaps some stations or programmers could contend that a code limited their freedom; but it is not clear that this would count as an antitrust injury, especially in light of the fact that the code is voluntary.
(d) In light of the distinctive nature of the television market, a code of the sort under discussion would probably survive a "rule of reason" inquiry. The effect on competition would be quite limited, if indeed there would be any adverse effects at all. The restriction, such as it is, could be defended as a means of promoting competition,(27) and also various public interest goals, e.g., education of children, access for the handicapped, democratic and civic functions. This idea is bolstered by the line of cases analyzing restrictions by trade associations and similar entities.(28)
Our most basic conclusion is that any antitrust challenge to a code of the sort we have endorsed would be most ill-advised, and extremely unlikely to succeed.
Attachment: Letter From Office of the Assistant Attorney General
Back to Recommendation 2
1) See Broadcasters Bringing Community Service Home: A National Report on the Broadcast Industry's Community Service (National Association of Broadcasters, Wash. D.C.), April 1998.
2) Id. at 6 (noting that the typical television station runs an average of 137 public service announcements per week).
3) We draw here on a variety of sources, including Mark M. MacCarthy, Broadcast Self-Regula- tion: The NAB Codes, Family Viewing Hour, and Television Violence, 13 CARDOZO ARTS & ENT. L.J. 667 (1995).
4) See Daniel L. Brenner, Note, The Limits of Broadcast Self-Regulation Under the First Amendment, 27 STAN. L. REV. 1527, 1529 (1975).
5) Writers Guild of Am. W. v. FCC, 423 F. Supp. 1064 (C. D. Cal.1976), vacated sub nom. Writers Guild of Am. W. v. ABC, 609 F.2d 355 (9th Cir. 1979), cert. denied, 449 US 824 (1980). 6) Writers Guild of Am. W. v. ABC, supra.
7) Id. at 364.
8) 95 FCC 2d at 710.
9) See 47 U.S.C. 303c.
10) See on next page, Letter from Sheila Anthony, Assistant Attorney General for Legislative Affairs, United States Department of Justice, to Senator Paul Simon (D-Ill) (Nov. 29, 1993).
11) See Flagg Bros. v. Brooks, 436 U.S. 149 (1978) (private contract raises no first amendment issue); San Francisco Arts & Athletics, Inc. v. United States Olympic Committee, 482 U.S. 522 (1987); Rendell-Baker v. Kohn, 457 U.S. 830 (1982).
12) See Writers Guild of Am. W. v. FCC, 423 F. Supp. 1064 (C. D. Cal.1976), vacated sub nom. Writers Guild of Am. W. v. ABC, 609 F.2d 355 (9th Cir. 1979), cert. denied, 449 US 824 (1980).
13) See American Brands Inc v. NAB, 308 F. Supp. 1166 (DDC 1969).
14) Id. at 1169.
15) See American Fed'n of Television & Radio Artists v. NAB, 407 F. Supp. 900 (SDNY 1976).
16) Id. at 902. An anticompetitive effect is also sufficient to trigger antitrust scrutiny, but it is not at all clear that restrictions of the kind we are discussing would have such an effect. See below.
18) Id. at 903.
19) U.S. v. NAB, 536 F. Supp. 149 (1982).
20) See, e.g., U.S. v. Arnold, Schwinn Co., 388 U.S. 365, 375 (1967), overruled on other grounds in Continental TV v. GTE Sylvania; Neeld v. NHL, 594 F.2d 1297, 1300 (9th Cir. 1979).
21) See Letter of Sheila Anthony, Assistant Attorney General, supra note 10.
22) Id. at 3.
25) Id. at 4.
26) Compare Smith v. Pro Football, 593 F.2d 1173, 1183 (D.C. Cir 1978).
27) See Letter of Sheila Anthony, supra note 10, at 4.
28) See, e.g., NCAA v. Board of Regents, 468 US 85 (1984); Allied Tube and Conduit Corp. v. Indian Head, Inc., 486 U.S. 492 (1988).