59 Fed. Comm. L.J. [i] (2006-2007)

handle is hein.journals/fedcom59 and id is 1 raw text is: Federal
Communications
Law Journal
FORMERLY
FEDERAL COMMUNICATIONS BAR JOURNAL
VOLUME 59                   DECEMBER 2006                     NUMBER 1
Articles
Broadcast Technology as Diversity Opportunity: Exchanging
Market Power for Multiplexed Signal Set-Asides
By  M ichael M . Epstein  ............................................................................. 1
This Article proposes an access system based on a theory of quid pro
quo: a bargained.for-exchange in which broadcasters would trade media
access for market power. Under this quid pro quo approach, the FCC
would administer a scaled metric whereby the greater a media company's
audience reach, the more access that company must provide to citizens
with  diverse  and  local content. Since  digital technology  permits
broadcasters to  multiplex  their television  signal bandwidth into
multiple signal programming streams, an opportunity exists for the
government to require   public access to  one  or more    of these
programming  streams  in  return  for  relaxing  caps  on  broadcast
ownerships that currently prevent a company from owning stations that
reach more than 39% of the national television audience.
You Said What? The Perils of Content-Based Regulation of Public
Broadcast Underwriting Acknowledgments
By  Andrew  D . Cotlar .........................................................................  47
Public broadcast stations in the United States are forbidden to air
promotional announcements in exchange for payment from commercial
entities. However, these stations must acknowledge any financial contribution
from donors that support particular programs without promoting the goods and
services offered by those donors. While the FCC has attempted to maintain the
conceptual  distinction  between  promotional  and   nonpromotional
information, it has struggled to apply this distinction within the context
of an evolution in advertising practice.
As a result, many noncommercial educational licensees find it difficult to
apply the FCC's rules. A careful analysis of how the FCC underwriting
determinations yields the unmistakable conclusion that the entire process
has become a clear lesson in the perils of content-based regulation. The FCC
enforcement process is inconsistent and opaque and subjects nonprofit
entities to potentially economically crippling fines while impinging on the
editorial integrity that is the hallmark of their First Amendment liberties.
This Article concludes that Congress should revise the prohibition on

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