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James Lawrence Fly was the chairman of the FCC during the case National Broadcasting Co. v. United States (1943). In this case, the Supreme Court upheld Federal Communications Commission (FCC) content-based regulations on broadcast media, finding they did not violate First Amendment free speech rights. Although greatly relaxed since the day of NBC v. FCC, these regulations continue today. The ruling also served as the cornerstone for the FCC’s regulation in the areas of the fairness doctrine, equal time, and other content-based restrictions. (Image via Library of Congress, no known copyright restrictions)

In National Broadcasting Co. v. United States, 319 U.S. 190 (1943), the Supreme Court upheld Federal Communications Commission (FCC) content-based regulations on broadcast media, finding they did not violate First Amendment free speech rights.

 

NBC challenged FCC rules designed to regulate network broadcasting

 

The FCC had promulgated several rules designed to regulate “chain broadcast,” known today as network broadcasting.

 

Because the FCC could not directly regulate the radio networks, it directed its rules at the licensing of stations that participated in the activities that the FCC had determined to be contrary to the public interest. The National Broadcasting Co. (NBC) challenged the regulations on several bases, including a First Amendment challenge. The district court dismissed the complaint, and NBC appealed.

 

Court rejected challenge

 

Justice Felix Frankfurter wrote the majority opinion rejecting the challenge.

 

He reasoned, “The right of free speech does not include, however, the right to use the facilities of radio without a license. The licensing system established by Congress in the Communications Act of 1934 was a proper exercise of its power over commerce. The standard it provided for the licensing of stations was the ‘public interest, convenience, or necessity.’ Denial of a station license on that ground, if valid under the Act, is not a denial of free speech.”

 

Ruling cleared way for FCC to indirectly regulate networks

 

This ruling cleared the way for the FCC to regulate networks indirectly by banning licenses to individual stations that contract with networks engaged in practices considered detrimental to the public interest. Although greatly relaxed since the day of NBC v. FCC, these regulations continue today. The ruling also served as the cornerstone for the FCC’s regulation in the areas of the fairness doctrine, equal time, and other content-based restrictions.

 

Justice Frank W. Murphy dissented, and Justices Hugo L. Black and Wiley B. Rutledge did not participate.

 

This article was originally published in 2009. Howard Leib is an intellectual property and entertainment attorney, an educator and a consultant with his own practice in both New York City and Ithaca, NY. He offers a full range of legal services, with specialties in entertainment, corporate, trademark and copyright law, including litigation. Leib also teaches both Entertainment Law and Music Law at Cornell’s College of Law.

 

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