Broadcasting license

“ Territorial exclusivity.-No license shall be granted to a standard broadcast station having any contract, arrangement, or understanding, express or implied, with a network organization which prevents or hinders another station serving substantially the same area from broadcasting the network's programs not taken by the former station, or which prevents or hinders another station serving a substantially different area from broadcasting any program of the network organization. ”

“ Thus, it is highly significant that although investment in broadcasting stations may be large, a license may not be issued for more than three years; and in deciding whether to renew the license, just as in deciding whether to issue it in the first place, the Commission must judge by the standard of 'public convenience, interest, or necessity.' The Communications Act is not designed primarily as a new code for the adjustment of conflicting private rights through adjudication. ”

“ The Commission is given no supervisory control of the programs, of business management or of policy. In short, the broadcasting field is open to anyone, provided there be an available frequency over which he can broadcast without interference to others, if he shows his competency, the adequacy of his equipment, and financial ability to make good use of the assigned channel.
The policy of the Act is clear that no person is to have anything in the nature of a property right as a result of the granting of a license. ”

“ With respect to its jurisdiction over matters relating to radio broadcasting, the Communications Commission is essentially a licensing agency. Its regulatory power over the industry is derived, for the most part, from its authority to grant and withhold station licenses. Under § 309 of the Communications Act of 1934 the Commission is required to examine each application for a station license and to determine in each case whether a grant would serve public interest, convenience, or necessity. ”

“ We do not think the suggestion is sound. Congress has enabled the Commission to regulate the use of broadcasting channels through a licensing power. It is in connection with this power that § 303 (r) is to be interpreted. The Commission may impose on an applicant conditions which it must meet before it will be granted a license, but the imposition of the conditions cannot directly affect the applicant's responsibilities to a third party dealing with the applicant. ”

“ We hold that resulting economic injury to a rival station is not in and of itself, and apart from considerations of public convenience, interest, or necessity, an element the petitioner must weigh and as to which it must make findings in passing on an application for a broadcasting license. ”

“ As the bill alleges, station licenses have been renewable by the Commission annually, [2] whereas appellant's contracts are for five year periods and many of them will survive the expiration of the existing licenses to the affiliated stations. Under Regulations 3.101, 3.102, 3.103 and 3.104, each affiliate must repudiate his contract or be denied the renewal of his license. In either case this would deprive appellant of the station's participation in its network, for which its contracts call. ”

“ A public broadcasting entity is defined as a non-profit “licensee or permittee” of a noncommercial educational broadcast station as well as other nonprofit institutions such as, for example, independent non-profit production companies which have produced a program for distribution and broadcast by noncommercial educational broadcast stations. The compulsory license does not apply to commercial station broadcast of television or radio programs produced or distributed by public broadcasting entities. ”

“ Section 307 (b) , note 1, supra, empowers the Commission to allow licenses so as to provide a fair distribution among communities. Fairness to communities is furthered by a recognition of local needs for a community radio mouthpiece. The distribution of a second license to a community in order to secure local competition for originating and broadcasting programs of local interest appears to us to be likewise within the allowable area of discretion. There are other instances of Commission use of community allocation of licenses to secure local means of expression. ”

“ Nonminority firms are free to compete for the vast remainder of license opportunities available in a market that contains over 11,000 broadcast properties. Nonminorities can apply for a new station, buy an existing station, file a competing application against a renewal application of an existing station, or seek financial participation in enterprises that qualify for distress sale treatment. ”

“ Even for troubled licensees, distress sales are relatively rare phenomena; most stations presented with the possibility of license revocation opt not to utilize the distress sale policy. Many seek and are granted special relief from the FCC enabling them to transfer the license to another concern as part of a negotiated settlement with the Commission, see Coalition for the Preservation of Hispanic Broadcasting v. ”

“ The communications broadcasted are no less complete and effective, nor any the less effected by appellant, because it does not own or command the apparatus by which they are received. The essential purpose and indispensable effect of all broadcasting is the transmission of intelligence from the broadcasting station to distant listeners. It is that for which the customer pays. By its very nature broadcasting transcends state lines and is national in its scope and importance-characteristics which bring it within the purpose and protection, and subject it to the control, of the commerce clause. ”

“ Assuming that the transmission meets the other conditions of the provisions, it makes no difference what type of public transmission the organization is making: commercial radio and television broadcasts, public television broadcasts not exempted by section 110 (2) , pay-TV, closed circuit, background music, and so forth. However, to come within the scope of subsection (a) , the organization must have the right to make the transmission “under a license or transfer of the copyright or under the limitations on exclusive rights in sound recordings specified by section 114 (a) .” ”

“ Licensees who regard the regulations as invalid are free to continue their existing contracts and at the same time challenge the regulations in the orderly manner provided by the Act-and without any danger of losing their right to continue broadcasting. Similarly, the interests of the networks may be protected through intervention in renewal proceedings. ”

“ Long experience in broadcasting, confirmed habits of listeners and viewers, network affiliation, and other advantages in program procurement give existing broadcasters a substantial advantage over new entrants, even where new entry is technologically possible. These advantages are the fruit of a preferred position conferred by the Government. Some present possibility for new entry by competing stations is not enough, in itself, to render unconstitutional the Government's effort to assure that a broadcaster's programming ranges widely enough to serve the public interest. ”

“ The licensee has the duty of determining what programs shall be broadcast over his station's facilities, and cannot lawfully delegate this duty or transfer the control of his station directly to the network or indirectly to an advertising agency. He cannot lawfully bind himself to accept programs in every case where he cannot sustain the burden of proof that he has a better program. The licensee is obliged to reserve to himself the final decision as to what programs will best serve the public interest. ”

“ As we have said, the First Amendment confers no right on licensees to prevent others from broadcasting on 'their' frequencies and no right to an unconditional monopoly of a scarce resource which the Government has denied others the right to use. ”

“ The committee process is now complete and the committee has presented a bill which gives cable a compulsory license to intercept and re-transmit (secondarily transmit) television and radio broadcasts. It recognizes the passive, “antenna”, role of cable in secondary transmissions within the local market area, and imposes no liability to pay copyright royalties for those “local” transmissions. ”

“ To construe the licensing sections (§§ 307, 308, 309, 310) as granting authority to require fundamental and revolutionary changes in the business methods of the broadcasting networks-methods which have been in existence for several years and which have not been adjudged unlawful-would inflate and distort their true meaning and extend them beyond the limited purposes which they were intended to serve. ”

“ In other words, where a broadcaster has the privilege of performing or displaying a work either because he is licensed or because the performance or display is exempted under the statute, the question is whether he should be given the additional privilege of recording the performance or display to facilitate its transmission. The need for a limited exemption in these cases because of the practical exigencies of broadcasting has been generally recognized, but the scope of the exemption has been a controversial issue. ”

“ Again I do not question the need of regulation in this field, or the authority of the Congress to enact legislation that would vest in the Commission such power as it requires to deal with the problem, which it has defined and analyzed in its report with admirable lucidity. It is possible that the remedy indicated by the proposed regulations is the appropriate one, whatever its effect may be on the sustaining programs, advertising contracts, and other characteristics of chain broadcasting as it is now conducted in this country. ”

“ With respect to any secondary transmission that is made by a satellite carrier of a performance or display of a work embodied in a primary transmission and is actionable as an act of infringement under section 122, a television broadcast station holding a copyright or other license to transmit or perform the same version of that work shall, for purposes of subsection (b) of this section, be treated as a legal or beneficial owner if such secondary transmission occurs within the local market of that station. ”

“ In the case of radio broadcasting, however, where physical limitations make it impossible for everyone to utilize the medium of communication, the Court has thus far sanctioned a power of selective licensing ”

“ The rights of broadcasting organisations shall expire 50 years after the first transmission of a broadcast, whether this broadcast is transmitted by wire or over the air, including by cable or satellite. ”

“ Offence of providing decoders and reception equipment for television programme service on subscription basis without licence
(1) Subject to subsection (2) , a person shall not, in the course of trade or business, import, export, manufacture, sell, offer for sale or let for hire any decoder for use by a Television Receive Only System to receive a broadcasting service which is not licensed on a subscription basis. ”

“ Plainly it is not the purpose of the Act to protect a licensee against competition but to protect the public. Congress intended to leave competition in the business of broadcasting where it found it, to permit a licensee who was not interfering electrically with other broadcasters to survive or succumb according to his ability to make his programs attractive to the public. ”

“ Broadcasting organizations shall have the following exclusive rights:
(a) fix and record their broadcasts and to authorize direct or indirect
reproduction of the fixations of their broadcasts
(b) rebroadcast their programs by wireless means and transmit them to the
public.
7. Broadcasting organizations shall enjoy an exclusive right to exploit their
programs for a period of 50 years calculated from the date on which the program
was broadcast for the first time. ”

“ A licensee who is in a dominant position is deemed to have abused its position if, in the opinion of the Broadcasting Authority, the licensee has engaged in conduct which has the purpose or effect of preventing, distorting or substantially restricting competition in a television programme service market. ”

“ Since the number of channels is limited and the number of persons desiring to broadcast is far greater than can be accommodated, the commission must determine from among the applicants before it which of them will, if licensed, best serve the public. ”

“ The problem presented There is now no doubt, under a line of court decisions, that a radio or television broadcast of a copyrighted work is a public performance. The courts have had more difficulty with the further question of whether the reception of a broadcast by means of a receiving set in a public place, such as a hotel or restaurant, is a separate public performance for which the copyright owner may require a license. ”