Communications Law

Professor Harpaz

Final Examination

December 19, 1989

Question I

(Suggested time: 60 minutes) (40 points out of 120 total exam points)

Senator Ernest Hollings, a South Carolina Democrat, and Senator John Danforth, a Missouri Republican, have recently introduced a bill entitled the Clean Campaign Act of 1989. The purpose of the legislation is to discourage the kind of negative campaigning that has characterized recent political campaigns. It focuses on so-called attack advertisements, advertisements which criticize a political opponent. It seeks to eliminate the practice of such ads using an anonymous announcer as the source of attacks on an opponent instead of the candidate doing the attacking directly. In discussing the bill, Senator Danforth has stated, "If a candidate wants to sling mud at his opponent, the public should be able to see the candidate's dirty hands." The bill takes the form of an amendment to Section 315 of the Communications Act of 1934 (see The First Amendment and the Fifth Estate, Appendix B, pages 712-713). The following provisions would be added to Section 315 as subsection (b) and current subsections (b), (c) and (d) would be re-designated as subsections (c), (d) and (e), respectively:

(b) (1) If any legally qualified candidate for any Federal elective office who utilizes rights of access and conditions of access under the provisions of this Act uses a broadcasting station to refer, directly or indirectly, to another legally qualified candidate for that office, such reference shall be made in person by such legally qualified candidate.

(2) If any licensee permits a broadcasting station to be used in a manner not in accordance with the requirements of paragraph (1) of this subsection, such licensee shall provide, within a reasonable period of time, to the candidate to whom reference was made, the opportunity to use, without charge, the same amount of time on such broadcasting station, during the same period of the day, as was used by the legally qualified candidate.

You are a staff attorney for the Federal Communications Commission. You have been asked to write a report evaluating the Clean Campaign Act of 1989. Your report should discuss the relationship of the Act to the current provisions of Section 315 as well as the relationship of the Act to other provisions of law that regulate political speech over broadcast stations. In addition, you have been asked to discuss any first amendment issues that are raised by the provisions of the Act.

Question II

(Suggested time: 75 minutes) (50 points out of 120 total exam points)

Mutually exclusive applications for authority to construct and operate a new FM commercial radio station on Channel 250A in Selbyville, Delaware have been filed. All of the communities within the service area of Channel 250A currently receive at least five full-time commercial radio stations. Three applicants, each of whom meets the basic requirements for a broadcast licensee, are competing for the license to operate Channel 250A: Anchor Broadcasting, Galaxy Communications and Susan Bechtel.

Anchor Broadcasting proposes serving an area with a population of 39,000 people. Anchor is a Delaware limited partnership with one general partner, Dr. Herman Stamps, who has a 25 percent ownership interest and three limited partners, Dr. Tom Bennett, Dr. Kenneth Mundy and Dr. Frank Smith, who each have a 25 percent ownership interest. Dr. Stamps, a black male, is a retired dentist. The limited partners, three white males, are all practicing physicians. Their medical practices are located in Washington, D.C. While Anchor Broadcasting owns no other interest in any medium of mass communications, Dr. Tom Bennett, one of the limited partners, also is a limited partner with a 25 percent ownership interest in Yeary Broadcasting. Yeary Broadcasting operates an FM commercial radio station in Poughkeepsie, New York.

Dr. Stamps, Anchor's sole general partner, holds B.S. and D.D.S. degrees from Howard University in Washington, D.C. He was on the Howard University Dental School faculty for over 20 years until his recent retirement. Dr. Stamps will be the full-time General Manager of Anchor's proposed station in Selbyville, Delaware. He will devote a minimum of forty hours per week to his duties as General Manager. Dr. Stamps purchased a home in Selbyville in 1987, but has not been involved in any civic activities in Selbyville since moving there several years ago.

Dr. Stamps has limited broadcast experience. While he was serving as Director of Clinical Dentistry at Howard University Dental School, he supervised the construction and operation of a television studio and visual aid laboratory which was utilized to train dental students. In addition, since he retired, he has been serving as the moderator of a weekly local television program which features discussions of issues of particular interest to the African-American community.

Galaxy Communications proposes serving an area with a population of 30,000. Galaxy is a Delaware Corporation with one class of voting stock. All of the stock is owned by Lewis Alexander who is also President and Chairman of the Board. Mr. Alexander is a white male who has a high school education. Galaxy has no other mass media interests. Mr. Alexander currently owns the Alexander & Son Insurance Agency in Chevy Chase, Maryland. He has been in the insurance business for 35 years. If granted the license, Mr. Alexander intends to retire from his insurance agency, leaving its operation to his son. He will serve as the full-time General Manager of Galaxy’s proposed station in Selbyville, Delaware. Mr. Alexander has never lived in the Selbyville area, but proposes to relocate his residence to Selbyville in the event that Galaxy’s application is granted. Mr. Alexander has no broadcast experience.

Susan Bechtel proposes serving an area with a population of 40,000. Ms. Bechtel has filed her application as an individual applicant and sole proprietor. Ms. Bechtel is a white female with a B.A. in sociology from Tulane University. Ms. Bechtel has no other mass media interests. Ms. Bechtel is currently the Operations Manager for a television station in Baltimore, Maryland. She does not intend to leave her current employment in the event that she is awarded the license for the Selbyville station. She intends to hire Barbara Carter, an experienced General Manager for a small radio station in Maryland to serve as the station’s General Manager.

Ms. Bechtel has resided in Selbyville, Delaware for 10 years. During that time she has been very active in civic affairs. She has been an active member of the Selbyville School System Parent-Teacher Organization, serving as its President from 1986-87; she was co-founder of the Selbyville Community Kitchen which serves free dinners to approximately 250 needy persons each night of the year; and she is a volunteer for the Selbyville March of Dimes.

Susan Bechtel has 17 years of broadcast experience. She has worked as a sales representative and as a copywriter for a small FM radio station in Crowley, Louisiana, an assistant operations manager for a televison station in Lafayette, Louisiana, and, for the past 10 years, has served first as an assistant operations manager and later as operations manager for her current employer.

You are a staff attorney with the Mass Media Bureau of the Federal Communications Commission. You have been asked by your supervisor to write a report evaluating the strengths and weaknesses of each of the three competing applicants according to the comparative criteria utilized by the FCC. Even though an administrative law judge ultimately will decide which applicant shall be awarded the license for Channel 250A, your report should include a brief recommendation section in which you express an opinion as to which applicant should be selected as the licensee for Channel 250A as well as an explanation for your decision.

Question III

(Suggested time: 45 minutes) (30 points out of 120 total exam points)

The Federal Communications Commission has issued a Notice of Proposed Rulemaking which proposes an amendment to the Chain Broadcasting Regulations (see The First Amendment and the Fifth Estate, pages 202-206). The FCC proposal is for an amendment which would add a new subsection to the current regulations. The subject of the new subsection would be the creation of a so-called "Family Audience Hour". The text of the proposed amendment is as follows:

(L) Effective September 8, 1990, commercial television stations owned by or affiliated with a national television network in the 50 largest television markets shall not broadcast entertainment programming inappropriate for viewing by a general family audience during the first hour of prime time network entertainment programming (8-9 p.m. Eastern Time and Pacific Time, 7-8 p.m. Central Time and Mountain Time).

You have been hired by the television networks to prepare a report responding to the FCC proposal. The networks strongly oppose the proposed "Family Audience Hour" and your report should present statutory and constitutional arguments to support the network position.

END OF EXAMINATION