NORTH CAROLINA JOURNAL OF INTERNATIONAL LAW Volume 12 Number 1 Article 5 Winter 1987 Private International Broadcasting from the United States: Toward an Understanding of a Content Standard Laura J. Holland Follow this and additional works at: https://scholarship.law.unc.edu/ncilj Part of the Commercial Law Commons, and the International Law Commons Recommended Citation Laura J. Holland, Private International Broadcasting from the United States: Toward an Understanding of a Content Standard, 12 N.C. J. INT'L L. 105 (1987). Available at: https://scholarship.law.unc.edu/ncilj/vol12/iss1/5 This Note is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Journal of International Law by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact [email protected]. NOTES Private International Broadcasting From the United States: Toward an Understanding of a Content Standard "The theory of freedom of expression.... It does not come naturally to the ordinary citizen but needs to be learned. It must be restated and reiteratednot only for each generation, but for each new situation." International radio broadcasting from the United States began prior to 19121 and continues today, albeit in a much more sophisti- cated manner. 2 The U.S. Department of State sponsors the majority 3 of international broadcasts through the Voice of America (VOA). In addition, a growing number of private individuals broadcast inter- nationally. 4 Although these private broadcasts are regulated by the * T. Emerson, Toward A General Theory of the First Amendment, 72 YALE L.J. 877, 894 (1963). 1 See generally E. BARNOUW, A TOWER IN BABEL, A HISTORY OF BROADCASTING IN THE UNITED STATES (1966) . 2 Early international radio communications were merely signals in Morse code. As time passed, the human voice was transmitted and eventually messages were broadcast in the native language of the receiving country. See generally D. BROWNE, INTERNATIONAL RA- DIO BROADCASTING, THE LIMITLESS MEDIUM (1982). 3 VOA was created pursuant to the United States Information and Educational Ex- change Act of 1948, Pub. L. No. 80-402, 62 Stat. 6 (codified as amended at 22 U.S.C. §§ 1431-1480 (1982)) [hereinafter Smith-Mundt Act]. The objectives of the Smith-Mundt Act were "to enable the Government of the United States to promote a better understand- ing of the United States in other countries, and to increase mutual understanding between the people of the United States and the people of other countries." Id. § 2. These objec- tives were to be achieved by creating "an information service to disseminate abroad infor- mation about the United States, its people, and policies promulgated by the Congress, the President, the Secretary of State, and other responsible officials of Government having to do with matters affecting foreign affairs . I..."Id. § 2(1). 4 Currently there are nine private stations in operation. They include: KNLS in Anchor Point, Alaska; KYOI in Agingan Point, Saipan, Northern Marianna Islands; WRNO in New Orleans, Louisiana; KGEI in Redwood City, California; KFBS in Marpi, Saipan, Northern Marianna Islands; WYFR in Okeechokee, Florida; KTWR in Agana, Guam; WINB in Red Lion, Pennsylvania; and KCBI in Denton, Texas. In addition, there are nine new stations under construction. Two have construction permits on file with the Federal Communications Commission (FCC), and four have submitted requirements for future planned stations. Federal Communications Commission, Unofficial List of Mailing Ad- dresses of FCC Licensed High Frequency Broadcast Stations (Oct. 1985) (unpublished document); Personal interview with Charlie Breig, Supervisory Engineer for High Fre- quency Broadcasting at the FCC (Oct. 22, 1985) [hereinafter Breig interview]. If all 15 N.C.J. INT'L L. & COM. REG. [VOL. 12 Federal Communications Commission (FCC), 5 VOA is not. The private broadcaster has the unique power to directly impart information to a foreign country. Therefore, a balance must be struck between his or her first amendment right to free speech6 and potential applicants are licensed, there will be 24 privately owned stations in the United States. 5 47 C.F.R. §§ 73.701- .788 (1985). 6 See U.S. CONST. amend. I. When the United States entered World War 11 the Of- fice of Censorship issued broadcasting guidelines for international radio operators. The preface to these guidelines provides an example of the attempt to balance national security concerns and free speech protection: American short wave stations bear a particular responsibility in the ap- plication of censorship to the radio broadcasting industry. The fact that their broadcasts reach-and are intended to reach--every part of the world makes it doubly necessary that they continue to exercise the utmost caution and the most expert judgment as to the character of the material they transmit. Their special task is to see that, while acting as an unofficial but indispensable arm of the Government in keeping their world-wide audience truthfully in- formed, no information be divulged that might conceivably be of value to the enemy. It is of prime importance that all who have any part in short wave broad- casting keep constantly in mind that the fact that news or other material ap- pears on the news agency wires or in the newspapers or other periodicals does not automatically make it appropriate for short wave broadcast. A con- siderable volume of such news is not appropriate for transmission abroad. When in doubt as to this, short wave stations are asked to consult a represen- tative of the Office of Censorship. Memo to Short Wave Station Managers from the Office of Censorship, Code of Wartime Practices for American Short Wave Broadcasters, (Feb. 3, 1942) (unpublished document). The perceived power of private broadcasters to effect national security is best illustrated by noting some of the information the Office of Censorship prohibited the licensees from broadcasting: for example, No material should be broadcast which divulges any information, di- rectly or indirectly, concerning the following subjects unless such informa- tion is specifically released for short wave by a competent federal authority: (a) Meteorological data, including weather forecasts, temperature readings, barometric pressure, wind direction and all other data relating to weather conditions; (b) The assembly, movement, composition, disposition, employment, equip- ment or personnel of U.S. or allied armed forces at home or abroad; (c) The location, arrival and departure, concentration, movement, cargo, employment or identity of all naval or merchant vessels or aircraft in interna- tional traffic, and their personnel; instructions regarding guides to navigation and the location of lights and buoys; the number, size, type, and location of naval and merchant ships under construction and advance information con- cerning dates upon which launchings are to be staged or vessels put in com- mission, and the specific location of the launchings; the number, size, character, and location of any floating drydocks in service or under construction; (d) The laying of mines or mine fields; (e) The location, employment, protection, and strength of any harbor de- fense or other fortifications, naval bases or military establishments wherever located; (0 The disposition, movement, composition, employment, equipment, per- formance, and personnel of Army and Navy aircraft units; (g) The fact or the result of experiments with war equipment and materials, particularly new inventions; (h) Specific information about war contracts, such as the exact type of pro- duction, production schedules, dates of delivery, or progress of production; estimated supplies of strategic and critical materials available; or Nation-wide 1987] PRIVATE INTERNATIONAL BROADCASTING the general concern for national security. 7 The FCC attempts to achieve this balance by imposing a programming content standard on the international broadcaster.8 The language of the current stan- dard, however, is vague9 and the FCC has not provided any guidance in defining the standard.' 0 Hence, it is questionable that free speech or national security are protected, and even more uncertain as to whether the content standard is a constitutionally permissible regula- tion by the FCC. This Comment examines the radio programming content stan- dard imposed on private international broadcasters in the United States. Generally, the history of private broadcasting" will be ex- "round-ups" of locally published procurement data except when such com- posite information is officially approved for publication. Specific information about the location of, or other information about, sites and factories already in existence, which would aid saboteurs in gaining access to them, disclosing the location of sites and factories yet to be established, or the nature of their production. Any information about new or secret military designs, or new factory designs for war production. (i) The movements of the President of the United States, high-ranking naval, military, or diplomatic officials of the United States and its allies; (j) Actual or attempted sabotage, or treason; (k) Matters which, in the best judgment of the managements of the broad- casting stations, might prejudice the conduct of the foreign relations of the United States. Id. at 2-3. 7 "National security" as used herein refers to the ability of a nation to avoid harmful interferences