Two recent decisions, the most high profile being the renewal of the Fox television stations in the New York City area, demonstrate the analysis that the FCC goes through in deciding if a station has operated in the public interest and if its license deserves to be renewed.  In the Fox case, the focus was on the public service record of the station, and in particular whether the station had adequately addressed the issues of importance to the residents of New Jersey, the state to which one of its TV stations is licensed.  In a second recent case, that of a California radio station, the issue was much more specific – whether the station had promoted illegal drug use, and whether one of the station’s on-air program hosts had been abusive to callers.  In both cases, recognizing the First Amendmentconcerns posed by second guessing a broadcaster’s programming decisions, the FCC granted the license renewals.

In the Fox case, the issues were broader in nature.  The Fox station WWOR was licensed to New Jersey – in fact receiving a special license renewal when its then-owner, RKO General, was fighting the loss of its other broadcast licenses for issues involving purported lack of candor with the FCC.  The WWOR renewal was granted when Congress passed very specific legislation agreeing to grant the license of any TV station that moved to a state with no VHF television service (which, at that time, was the superior transmission service for TV).  RKO agreed to move WOR from New York City to Secaucus, NJ and received a license renewal as NJ had no VHF stations at that time.  The renewal was granted with the expectation that, as a NJ station, its public interest programming would focus on NJ.  Whether the service provided by current licensee Fox to NJ was the issue that the FCC addressed in the license renewal challenge.

The challenge had been brought by a number of public interest groups, and resulted in a public hearing held by the FCC in NJ to receive citizen input into the renewal (a hearing we wrote about here) – a very unusual occurrence in the license renewal process.  While the petitioners challenged the adequacy of the station’s coverage of NJ news and its choice of what issues facing the state were covered, the FCC found that “the choice of what is or is not to be covered in the presentation of broadcast news is a matter committed to the licensee’s good faith discretion.”  The FCC “does not substitute its own editorial judgment for that of the licensee” and second guess the licensee’s programming choices.  All the Commission will review is whether the station is “acting to ascertain issue of concern to its community and to respond to those issues.”  Looking at its programming as a whole, as reflected on its Quarterly Issues Programs Lists and as provided in other evidence, the FCC found that the station had met its obligations to broadcast programming responsive to the public interest.    

Similar concerns about overstepping the First Amendment bounds of programming review arose in the California radio license renewal. There, the objecting party suggested that the station had advocated the use of illegal drugs and “engaged in anti-social behavior on the air,” allegedly bullying callers and guests on station programs.  As in the Fox case, the FCC stated that the FCC has no right of censorship over broadcasters and won’t interfere with their rights of free speech.  These First Amendment rights are embodied in Section 326 of the Communications Act, which says that the FCC has no right of prior censorship over broadcast content.  Broad claims of an abuse of licensee discretion over programming cannot result in FCC action consistent with this First Amendment oversight. 

These cases make clear that the FCC is very limited in its power to second guess how licensees serve the public interest.  While there have been, from time to time, proposals to quantify the amount of public affairs or other public interest programming carried by a broadcaster (see, for instance, our story here), the FCC has never proposed to judge the quality or subject matter of that programming, and it probably cannot do so within the limits of the First Amendment. And, while some listeners and viewers may not like what they see on a particular station, just as they may not like what they read in a particular book or magazine, they always have the freedom to change the channel.  And that choice is no doubt better than the government substituting its judgment as to what constitutes “good” programming.