Gale Encyclopedia Of American Law 3Rd Edition Volume 6 P51 pot

however, he had become deeply alienated by the result. Although he came from a slaveholding state, Mason opposed slavery on both moral and economic grounds. He sought an end to the slave trade and the manumission of all slaves. Instead, the Constitution allowed the slave trade to continue for 20 years, and it said nothing about the institution of slavery. Mason also objected to the lack of provision for individual rights, believing that the Consti- tution gave too much power to the federal government. His criticism contributed to the enactment and ratification of the BILL OF RIGHTS in 1791, portions of which were modeled on Mason’s Declaration of Rights. Mason died on October 7, 1792, at his estate in Fairf ax County, Virginia. FURTHER READINGS Broadwater, Jeff. 2006. George Mason, Forgotten Founder. Chapel Hill: Univ. of North Carolina Press. Pacheco, Josephine F., ed. 1983. The Legacy of George Mason. Fairfax, VA: George Mason Univ. Press. Rutland, Robert A. 1980. George Mason: Reluctant States- man. Baton Rouge: Louisiana State Univ. Press. v MASON, JOHN YOUNG John Young Mason served as a U.S. attorney general under President JAMES POLK. He was secretary of the Navy during the Mexican War, chair of the House committee on foreign affairs, and an ambassador to France. While serving as ambassador, Mason was one of three U.S. ministers to sign the Ostend Manifesto, a written proposal to buy or seize Cuba from Spain that was later dismissed as an effort to extend SLAVERY in the United States. Mason was born in Greensville County, Virginia, on April 18, 1799. His father was Edmunds Mason, and his mother was Frances Ann Young Mason. His grandfather was Captain James Mason of the Fifteenth Virginia Line. Mason graduated from the University of North Carolina in 1816 and attended the law school at Litchfield, Connecticut, for three years. In 1819 he was admitted to the Virginia bar and began practice at Hicksford in Greens- ville County. In 1822 Mason moved to Southampton County, Virginia, and began a law practice that quickly became lucrative. In 1823 he was elected as a Democrat to the Virginia General Assem- bly, where he served until 1827. He served in the Virginia Senate from 1827 to 1831. Mason was also a member of the 1829 state constitu- tional convention. In 1831 Mason was elected to the U .S. House of Representatives. While serving as a representative, Mason supported most of President Andrew Jackson’s measures. He refusedtovotetorechartertheNational Bank, even when the Virginia General Assembly pressed him to do so. As chair of the House committee on foreign affairs, Mason introduced a bill recognizing independence for Texas. He also supported naval preparedness during a time of adversarial relations between the United States and France. Mason served in the House until 1837, when he accepted a position as judge of the U.S. district for Virginia. President JOHN TYLER appointed Mason secretary of the Navy in March 1844, and President Polk appointed Mason attorney general in 1845. Mason was the only member John Young Mason 1799–1859 ▼▼ ▼▼ 18001800 18751875 18501850 18251825 ❖ ◆◆ 1837 Appointed to judgeship on U.S. district court for Va. 1799 Born, Greensville County, Va. 1829 Participated in Va. state constitutional convention 1827–31 Served in Va. Senate 1816 Graduated from University of North Carolina 1819 Admitted to Va. bar 1823–27 Served in Va. General Assembly 1831–37 Served in U.S. House 1844–45 Served as secretary of the Navy under Tyler 1845–46 Served as U.S. attorney general under Tyler and Polk 1846–48 Mexican War 1846–49 Served as secretary of the Navy under Polk 1853–59 Served as U.S. minister to France under Pierce and Buchanan 1859 Died, Paris, France 1861–65 U.S. Civil War ❖ ◆ ◆ GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 488 MASON, JOHN YOUNG of Tyler’s cabinet to be retained by the new president. He served as attorney general until 1846 when Polk reappointed him as secretary of the Navy. He served in that position until 1849. Mason was secretary o f the Navy during the years of the Mexican War. Although he was an expansionist, he opposed incorporating Mexico into the United States and supported U.S. acceptance of the treaty signed with Mexico. At the end of the Polk administration, Mason returned to his law practice in Rich- mond. He was elected president of the James River and Kanawha Company in 1849 and became an active advocate of efforts to rapidly extend the canal system in Virginia. In the 1852 presidential campaign, Mason publicly sup- ported FRANKLIN PIERCE. In 1853 President Pierce appointed Mason U.S. minister to France. In 185 4, at the request of Secretary of State William L. Marcy, Mason met with JAMES BUCHANAN,U.S.ministerto Great Britain, and Pierre Soulé, U.S. minister to Spain, in Ostend, Belgium, to discuss the issue of Cuban uprisings. During this period U.S. leaders were bitterly debating the circum- stances under which slavery should or shou ld not be extended into new states. On Oc tober 18, 1854, Mason, Buchanan, and Soulé— who were pro-slavery—signed the Ostend Manifesto, a secret document proclaiming that Spain should sell Cuba to the United States and that, if it refused to do so, the United States had the right to t ake the island by force. The press publis hed the docu ment an d ridic- uled it as a clumsy plot to add new slave territory to the United States. Marcy subse- quently dismissed the document on behalf o f the Pierce administration. Mason was reappointed U.S. minister to France when Buchanan became president, and he remained in that position, living abroad, until his death in Paris on October 18, 1859. FURTHER READINGS Charles Scribner Sons. 1997. Concise Dictionary of Ameri- can Biography. 5th ed. New York: Macmillan Library Reference. Justice Department. 1985. Attorneys General of the United States, 1789–1985. Washington, D.C.: Government Printing Office. Available online at http://www.usdoj. gov/ag/attygeneraldate.html; website home page: http:// www.usdoj.gov (accessed July 8, 2009). Morris, Richard B., ed. 1996. Encyclopedia of American History. New York: Collins Reference. The National Cyclopaedia of American Biography 1898. New York: White. MASS COMMUNICATIONS LAW A body of primarily federal statutes, regulations, and judicial decisions that govern radio; broadcast, cable, and satellite television; and other means of electronic communication. Since the introduction of the radio in the early twentieth century, sophisticated technolog- ical devices have been developed to facilitate the transmission of ideas, information, and entertainment throughout the United States and the world. The federal government has taken an active role in regulating the means of communication that involve the interstate trans- mittal of information. Government regulation was needed in order to create a coherent plan for radio and television broadcasting and to ensure that these facilities are used responsibly. The passage of the Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56, however, signaled a decline in government regulation. This massive deregulation allowed companies in- volved with mass communications to compete and to combine more freely. John Mason. LIBRARY OF CONGRESS. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MASS COMMUNICATIONS LAW 489 Early History Government regulation of radio began in 1910, at a time when radio was regarded primarily as a device to bring about safe maritime operations and as a potential advancement in military technology. Persons seeking to use radio frequen- cies would register with the COMMERCE DEPARTMENT to have a frequency assigned to them. During WORLD WAR I, entrepreneurs began to recognize the commercial possibilities of radio. By the mid 1920s commercial radio stations were operating, and the secretary of commerce set aside frequencies for commercial application. The regulatory powers of the secretary were uncertain because the secretary was authorized under law only to record applications and to grant frequencies. The Federal Radio Commis- sion was created in 1927 to assign applicants designated frequencies under specific engineer- ing rules and to create and enforce standards for the broadcasters’ privilege of using the public’s airwaves. The commission later became the FEDERAL COMMUNICATIONS COMMISSION (FCC), which was established by the Communications Act of 1934 (47 U.S.C.A. §§ 151 et seq.). The 1934 act set out a regulatory structure that would govern mass communication s law for more than 60 years, with the FCC as the governing regulatory body. The law also made clear that the federal government has sole jurisdiction over modern mass communication. The FCC The FCC establishes the requirements for the licensing of stations and sets up a framework that tries to ensure some competition for licenses. It allows the free market to determine such matters as advertising costs, expenses, cost of equipment, and choice of programming by broadcasters. In addition to regulating commercial and educational broadcasting, the FCC has pervasive power to govern nonbroadcast use of commu- nications facilities, such as interstate commerce carrier systems, radio systems for truck-to-truck communication, taxicab networks, marine and ship radio, aviation frequencies, citizens band (i.e., CB) radio, international “ham” communi- cation, police and fire communications net- works, and cable and satellite television. All radio stations owned and operated by the United States, however, are exempt from regulation by the FCC. The FCC may not decide whether a particular advertising message is false or mis- leading. This subject matter is delegated by law to the FEDERAL TRADE COMMISSION (FTC). The FCC can act when a licensee continues to broadcast an advertisement that the FTC has determined to be false and misleading. The FCC does not set advertising rates or oversee ordinary and usual business practices, such as production charges, commission arrangements, and salaries of artists. Although government regulation of broad- casting appears to conflict with the First Amendment’s guarantee of FREEDOM OF SPEECH and FREEDOM OF THE PRESS, such regulation is often justified in terms of the limited number of available broadcast frequencies. Unlike the print media, which can physically coexist in the same community at the same time, broadcasting requires the government to make a choice between two or more potential broadcasters that wish to use the same broadcast space. In broadcasting, two or more radio or television stations cannot physically operate on the same frequency, because neither would be heard. Because it is important to the general public that someone be heard, the FCC must choose who that will be. The FCC is not always faced with the necessity of choice. Only one broadcaster might apply for a particular open frequency. The FCC must determine, no matter how many appli- cants, whether a potential broadcaster has the proper qualifications and whether it will operate “in the public interest” before the applicant will be permitted to broadcast. Licensing Congress has devised a procedure by which broadcasters are granted an exclusive right or license to broadcast over a particular frequency for a statutory maximum number of years. Under the Telecommunications Act of 1996, new licenses and renewals are granted for eight years. The FCC classifies different types of stations and the particular services they provide, and it assigns the band of frequencies for each individual station. The three sets of broadcast frequencies are the AM band, the FM band, and a third set used for television. Licenses are issued only on a showing that public conve- nience, interest, and necessity will be served and GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 490 MASS COMMUNICATIONS LAW that an applicant satisfies certain requirements, such as citizenship, character, financial capabil- ity, and technical expertise. Citizenship A noncitizen, foreign government, or corporation of which any officer or director is an alien, or where more than one-fifth of the stock is owned by ALIENS or representatives of foreign governments, may not receive a broad- casting license. These restrictions are mandatory, and the FCC may not waive them. Only Congress may pass legislation making an exception to the citizenship rule. There are no similar restrictions on foreign ownership of CABLE TELEVISION systems. Character Applicants must poss ess the essen- tial character qualifications of honesty and candor. However, the FCC evaluates the appli - cant based on information that the applicant provides. The FCC relies on the honesty of applicants because it has neither the staff nor the budget to verify the representations made by license applicants or its licensees. Any inten- tional MISREPRESENTATION by an applicant will seriously jeopardize the license application, regardless of the signif icance of the matter. A license may be denied for violations of CRIMINAL LAW, but disqualification does not auto- matically occur for minor offenses. An applicant that has been convicted of violating federal regulatory laws in a business not involving communications might have a license application denied because the conviction indicates an intentional disregard for government regulations. When faced with a choice between an applicant against whom no character question is raised, and one who has violated a law, but not one that results in an automatic denial, the FCC is most likely, all other considerations being equal, to grant the license to the non-lawbreaker. Financial Qualifications An applicant must demonstrate the financial capability to construct and operate the proposed facility for one year. If the person intends to rely on anticipated revenue, he or she must file evidence that these revenues will, in fact, be earned. Such evidence may include affidavits from prospective adver- tisers indicating their plan to contract with the station for advertising time. An applicant who wants to buy an existing profit-making station need only show the financial ability to maintain operations without revenues for the first three months. A station that has earned profits in the past is considered to be likely to continue to earn profits in the future. Where a station that is already in financial difficulty is being sold, the applicant- purchaser must demonstrate a capability to produce a profit in the first year of operation. Technical Expertise A broadcaster must com- ply with all of the technical requirements imposed by the FCC, such as the use of transmitting equipment that is the type ap- proved by the FCC and the operation of broadcast facilities during the hours appropriate for the frequency sought. Ownership of More Than One Station Be- fore 1996, the FCC enforced its “multiple- ownership rule,” which restricted persons or entities from acquiring excessive power through ownership of a number of radio and television facilities. The rule was based on the assumption that if one person or company owned most or all of the media outlets in an area, the diversity of information and programming on these stations would be restricted. The rule meant that a single entity could not own more than one station in the same market, such as two AM stations in the same community, or in adjacent communities when the stations’ signals would overlap to a certain designated extent. In addition, the FCC restricted the total number of licenses that one entity could own to 12 AM, 12 FM, and seven television stations anywh ere in the United States. The Telecommunications Act of 1996 eliminated the restrictions limiting the number of AM and FM stations that one entity may own nationally. The FCC was directed to reduce the restrictions on locally owned AM and FM stations as well. The act eliminated the restric- tion on the number of television stations that an entity may own directly or indirectly and increased the ceiling on permissible national audience reach from 25 percent to 35 percent. The FCC was directed to permit entities to have cross-ownership in network and cable systems. The act also removed the prohibition on cable operators from owning or controlling local television broadcast systems. The FCC went one step further in 2007 when it implemented new regulations that allow broadcasters in the 20 largest U.S. cities to also own a newspaper. The commission had issued a similar rule in 2003, but a federal court had struck it down. Under the 2007 regulations, the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MASS COMMUNICATIONS LAW 491 FCC also granted permanent waivers to 42 newspaper-broadcast combinations in large and small markets that had been given temporary waivers as they awaited the commission’s decision. The commission also approved new local television multiple-ownership limits that were part of the 2003 rules. In markets where there were at least five stations, a company could own two stations; a company could own three TV stations where there were 18 or more stations. Procedure for Obtaining a License A license can be granted without a hearing. Where there are substantial and material questions of fact, or the FCC does not find that the issuance of a license would be in the PUBLIC INTEREST , a hearing must be held to review the application. Other broadcast stations might intervene in the application process, particularly where a grant of a license to another applicant could affect their licenses or seriously impair their economic well-being. In cases of such intervention, a hearing is usually required. Representatives of the public can participate in the licensing process where a grant of a license would have a particular, definable effect upon them. A citizen may not participate by merely asserting a general lis tenership interest without alleging a specific injury to himself or herself. A representative group that suffers a particular injury may file a petition with the FCC to deny the application. If there is a substantial or material QUESTION OF FACT,a hearing is justified. In the context of radio licenses, a radio spectrum refers to the range of frequencies that are used by radio waves for communication. The FCC apportions these frequencies and allows parties exclusively to use frequencies with a specific geographic location. Since 1994, the FCC has held spectrum AUCTIONS, which allow competitors to bid on the assignment of licenses for an electromagnetic spectrum. The auction is open to any eligible company or individual who submits an application and upfront payment and is found to be a qualified bidder by the commission. The auction is conducted electronically over the Internet. License Renewal and Revocation A broadcasting entity must renew its license during the time set by statute to continue operating on that frequency, and no guarante e exists that such renewal is automatic. A license is revocable during its term, but the FCC must notify the licensee and give it a full opportunity to be heard prior to revocation. There must be reasonable grounds to warrant revocation of the license. The FCC decision must be embodied in written findings that contain a full explanation of its reason ing and actions. Such decisions are reviewable by the U.S. Court of Appeals for the District of Columbia. Regulation of Licensees Although the primary responsibility of the FCC is the licensing of broadcasting stations, it also regulates, to a certain extent, the manner in which stations operate. Political Broadcasts Congress has long recog- nized the potential of using various broadcast media to influence the outcom e of an election. A candidate with access to broadcasting facilities has a greater chance of reaching more voters than does a candidate who lacks such access. Congress has mandated that any licensee that permits a legally qualifi ed candidate for public office to use its facili ties to campaign must give all other candidates for that position equal opportunities to use the broadcast station. This requirement, sometimes called the “equal-time doctrine,” does not apply to news broadcasts or advertisements on behalf of the candidate in which the candidate does not appear. Equal rates must be charged to each candidate. During election campaigns, candi- dates must be given the “lowest unit charge” that is offered by the station to commercial advertisers for comparable time. The FCC is the regulatory agency that ensures licensee compli- ance with this law. Stations may not censor political advertisements, even if the candidate makes LIBELOUS or scandalous charges. Stations may not be sued, however, for libel or slander based on a candidate’s remarks. When a licensee either endorses or opposes a legally qualified cand idate in an editorial, the other candidate must be notified within 24 hours of the date and time of the editorial, must be given a script or videotape or audio tape of the editorial, and must be furnished with a reasonable opport unity to respond. If the editorial is broadcast within 72 hours of the election, the licensee must provide the material GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 492 MASS COMMUNICATIONS LAW within suf ficient time prior to the broadcast to enable candidates to have a reasonable oppor- tunity to present a reply. These requirements exist only when a station endorses a particular candidate. They do not apply to editorials on public issues, such as funding for public education. The FCC has developed a “quasi equal opportunity doctrine” that governs appearances by representatives for candidates who are not covered by the equal-time doctrine. When supporters of a candidate purchase time from a broadcaster during an election campaign, the licensee must make comparable time available to the supporters of the opponent. Fairness D octrine From 1959 to 1987 the FCC enforced the “fairness doctrine,” which required that broadcasters provide reasonable opportunity for the discussion of opposing views on controversial issues that affect the public. The doctrine proved controversial, and in 1987 the FCC rescinded it, concluding that it was a restriction on the FIRST AMENDMENT and that the growth of electronic media provided adequate means for presenting diverse opinions on issues of PUBLIC POLICY. Personal Attack Rule Although the FCC repealed the FAIRNESS DOCTRINE, it left intact the “personal attack rule,” which is an aspect of the fairness doctrine that concerns the right of a person who has been criticized in a broadcast to gain access to the broadcast facility to defend herself or himself. When, during the presenta- tion of views on a controversial issue of public importance, the hones ty, character, or integrity of an identified person or group is impugned, the licensee must, within one week after the attack, notify the subject of the attack of the date, time, and identification of the broadcast and must provide a script or videotape or audio tape of the attack and a reasonable opportunity to reply using the licensee’s facilities. This rule does not apply to attacks on foreign groups or foreign public figures, or to personal attacks made by legally qualified candidates , their authorized representatives, or persons associated with them. Attacks occurring during bona fide newscasts, news interviews, or on-the-air cover- age of bona fide news events are not covered by the personal attack rule. This rule does not cover every personal attack carried on a station—only personal attacks broadcast during the presentation of views on a controversial issue of public impor- tance. A person who is attacked at some other time will have no redress from the FCC but might have grounds to seek relief under the law governing LIBEL AND SLANDER. If the personal attack rule is applicable, the person who has been attacked has an absolute right to appear in his or her own defense, and the station may not require that a different person make the defense. Broadcasting Content Unlike print media, radio and television broadcasts may be regulated for content. Typically this practice has involved broadcasts of allegedly obscene or indecent material. The U.S. SUPREME COURT has upheld regulations banning obscene material because OBSCENITY is not protected by the First Amend- ment. It also has permitted the FCC to prohibit material that is “patently offensive,” and either “sexual” or “excretory,” from being broadcast during times when children are presumed to be in the audience (FCC v. Pacifica Foundation, 438 U.S. 726, 98 S. Ct. 3026, 57 L. Ed. 2d 1073 [1978]). The courts rejected FCC attempts to interpret the indecency standard more broadly. Congressional legislation that expanded the standard also was ruled unconstitutional. The Telecommunications Act of 1996 contained the Communications Decency Act (CDA), codified at 47 U.S.C.A. § 223 (a) to (h), which makes it a federal crime to use tele- communications to transmit “any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent, knowing that the recipient of the communica- tion is under 18 years of age, regardless of whether the maker of such communication placed the call or initiated the communication.” A three-judge panel, in American Civil Liberties Union v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996), found that the CDA was unconstitutional because it violated the First Amendment. The U.S. Supreme Court later upheld the decision in Reno v. American Civil Liberties Union, 519 U.S. 1025, 117 S. Ct. 554, 136 L. Ed. 2d 436 (1996). The FCC began to aggressively suppress obscenity on broadcast television in 2003. It had a long-standing policy against the use of indecent language, but it did not prosecute one- time occurrences. The commission rethought its position after presenters and award-winners appeared on a series of television awards shows GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MASS COMMUNICATIONS LAW 493 in 2002 and 2003. It made three significant findings in changing the policy: (1) bleeping/ delay systems technology had advanced; (2) the F-Word and the S-Word always invoke a coarse excretory or sexual image, making it irrelevant whether a word was used as an expletive or a literal description; and (3) the new policy’s “contextual” approach to indecency was better than the previous “categorical” approach, which offered broadcasters virtual IMMUNITY for the broadcast of fleeting expletives. In 2003 the FCC filed a no tice of apparent liability against the Fox network for allowing Cher to use the F-Word on a music awards show and for allow ing Nicole Richie to utter both the F- and S-Words. The network challenged the new policy, but the Supreme Court, in Federal Communications Commission v. Fox Television Station, __U.S.__, 129 S.Ct. 1800, __L.Ed.2d__ (2009), held that the policy was legitimate. The Telecommunications Act of 1996 also mandated the establishment of an advisory committee to rate video programming that contains indecent material, in order to warn parents of its content. The act also required that by 1998, all manufactured televisions with screens 13 inches or larger must be equipped with a “V-chip” to allow parents to block programs with a predesignated rating for sex and violence. Public Broadcasting Public broadcasting systems are noncommercial television and radio stations that are financed by viewer and private contributions, in addition to funding by federal, state, and local govern- ments, as an alternative to the programming aired by commercial channels. The Corporation for Public Broadcasting, a private, independent, nonprofit corporation established in 1967 by the Public Broadcasting Act (47 U.S.C.A. §§ 390 et seq.), is also involved in the creation and development of public stations. Cable Television Cable television has grown tremendously since the 1980s. By 1996 it was available to more than 96 percent of U.S. homes, and 60 percent were subscribers to cable. Cable originally served communities in mountainous regions that had difficulty receiving broadcast transmis- sions. Many communities solved this problem by erecting tall receiving towers at the highest point in the area to capture broadcast signals and retransmit them over wires running from the tower to various homes that subscribed to this service. This service is called “community antenna television system,” popularly known as “CATV,” or “cable television.” During the 1970s and 1980s, large corpora- tions installed cable systems in every large metropolitan area in the United States, as well as in rural areas. Independent programming was transmitted on cable systems by companies such as Home Box Office (HBO) and Cable News Network (CNN). The FCC adopted the first general federal regulation of cable systems, although cable television could not be categorized as broad- casting in the traditiona l sense. Local govern- ment also became involved because each municipality had to award a cable system franchise to one vendor. Cable operators negotiated system requirements and pricing with local governments. Concerns about rate regulation led Congress to enact the Cable Television CONSUMER PROTECTION and Competi- tion Act of 1992, Pub. L. No. 102-385, 106 Stat. 1460. The act gave the FCC greater control of the cable television industry, mandated im- proved customer service, and sought to improve the competitive position of broadcast stations. It also set rate struc tures to control the price of cable subscriptions. However, the Telecommu- nications Act of 1996 reversed the 1992 act by ending all rate regulation. This meant that cable operators were free to charge what they wished. Congress deregulated cable television rates in part because of increased interest by telephone companies to enter the cable market by sending programming through existing phone lines. The 1996 act permits phone companies to provide video programming directly to subscribers in their service areas. Congress believed that competition between phone companies and cable operators would improve service and hold down subscription rates. New Technology The development of satellite, direct broadcast television, broadband Internet access, and wireless technologies, along with the continued development of other Internet technologies, has demonstrated the continued vitality of electron- ic communications technologies. The 1996 act GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 494 MASS COMMUNICATIONS LAW moved toward deregulati on and competition as ways of explo ring the new and emerging vehicles of mass communications. The FCC has continued to revise its regulations in order to ensure that they remain applicable to these new technologies. The new millennium saw a rise in the use of digital subscriber lines (DSL) and cable to provide broadband Internet access. However, cable and DSL have been somewhat limited to larger geographic areas. In smaller, rural areas, some providers have sought to provide broadband access through wireless technologies. In 2002 the FCC relaxed its regulations relating to the frequencies used by these wireless technologies. The regulations were designed to add flexibility for these wireless broadband providers to further develop these technologies. FURTHER READINGS Carter, T. Barton. 2006. Mass Communication Law in a Nutshell. 6th ed. St. Paul, MN.: Thomson West. Lively, Donald E. 1997. Communications Law: Media, Entertainment, and Regulation. Cincinnati: Anderson Pub. Zarkin, Kimberly and Zarkin, Michael. 2006. The Federal Communications Commission. New York: Greenwood Press. CROSS REFERENCES Election Campaign Financing; Entertainment Law; Federal Election Commission; Movie Rating; Music Publishing; Telecommunications. Cable TV and the “ Must Carry” Law S B ince the 1970s the Federal Communications Commission (FCC) has required cable televi- sion systems to dedicate some of t heir channels to local broadcasting stations. F or many years cable operators did not challenge the constitutionality of these “must carry” provisions, believing that compliance w as necessary to obtain operating licenses. With the dramatic growth in the cable industry, however, cable operators argued that they should be able to use these channels for more profitable programming. In the late 1980s, as a result of challenge s by cable operators, the courts struck down must carry rules as a violation of the First Amendment. Congress replied in the Cable Television Con- sumer Protection and Competition Act of 1992 (47 U.S.C.A. § 151 et seq.), providing t hat cable systems with twelve or fewer channels must carry at least three local broadcast signals and that larger systems must carry all local signals up to a maximum of one-third of the system’s total number of channels. Turner Broadcasting System, a leading cable operator, filed suit, claiming that the must carry law violated the First Amendment by s uppressing and burdening free speech. The Supreme Court, on a 5–4 vote, in Turner Broadcasting System v. FCC, 117 S. Ct. 1174 (1997), rejected these arguments, finding that Congress had substantial evidence to justify the must carry provisions and that the provisions advanced important go vernmental interests unre- lated to the suppre ssion o r burdening of free speech. The Court noted that the must carry provisions preserve the benefits of free, over-the-air local broadcast television, promote the widespread dissemination of information from man y sources, and advance f air competition in the television programming market. The Court wa s reluctant to abandon the law when 40 percent of U.S. house- holds still rely on over-the-air signals for television programming. The Court found that when local broadcasters are d enied cable access, audience size and advertising revenues decline, station operations are restricted, and bankruptcy may result. Conversely, the Court determined that the must carry provisions had not burdened cable operators, with the vast majority unaffected in a signific ant manner. Most systems had enough channels to accommodate local stations and their own pro- gramming. Therefore, Congress had not over- stepped the First Amendment in mandating the must carry requirement. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MASS COMMUNICATIONS LAW 495 MASSACHUSETTS CONSTITUTION OF 1780 In 1630 John Winthrop and his associates in the Massachusetts Bay Company established the Great and General Court of Massachusetts to provide a form of local government for the Puritans who had settled the Boston area. During the American Revolution, the General Court produced an initial draft of a state constitution for Massachusetts. The citizens of Massachusetts refused to accept this constitu- tion as law, however, due to their nonparticipa- tion in the process by which it was formed; instead they elected representatives to meet at a constitutional convention to determine the nature of their government. In 1779 the representatives convened in Cambridge and designated JOHN ADAMS to be the primary drafter of the constitution. This constitution was ratified in 1780. Among the terms of the Massachusetts Constitution of 1780 is the provision that empowers the governor and his or her council or the legislature to obtain ADVISORY OPINIONS from the Supreme Judicial Court on questions relating to the scope of the power of the governor or legislature of the Commonwealth. Presently Massachusetts is the only one of the thirteen original states that has retained its first constitution. The constitution has, however, been subject to numerous amendments, the most extensive of which were made by the Massachusetts Constitutional Convention that was convened from 1917 to 1919. MASSACHUSETTS TRUST A business arrangement that is used in place of a corporation or partnership in which trustees hold title to property for the advanta ge of beneficiaries for investment purposes. A Massachusetts trust is another name for a common-law trust or a BUSINESS TRUST, which offers its beneficiaries limited financial liability in transactions in which it engages. MASSIAH V. UNITED STATES In Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964), the Supreme Court held that in addition to the RIGHT TO COUNSEL at the trial stage, the SIXTH AMENDMENT also affords a defendant the right to leg al counsel in pretrial stages. The Court held that this right attaches once the accused has been indicted and that the accused is protected from deliberate elicitation of infor- mation, including face-to-face encounters with police officers and approaches by unknown government informants. Winston Massiah was a merchant sailor who was arrested, arraigned, and indicted for possession of narcotics and for conspiring to possess narcotics aboard a U.S. vessel and to import, conceal, and facilitate the sale of narcotics. Massiah retained a lawyer, pleaded not guilty, and was released on bail. One of the accused coconspirators, Jesse Colson, also retained a lawyer and pleaded not guilty. A few days later, unbeknownst to Massiah, Colson decided to cooperate with the government. Colson and Massiah met in Colson’s automo- bile where Massiah made several incriminating statements during the course of their conversa- tion. A radio trans mitter had been secretly installed under the front seat of Colson’s car, and a government agent listened to and recorded the conversation. At trial Massiah’s incriminating statements were admitted into evidence, and the jury convicted him of several narcotics offenses. The Massiah Court held that Massiah’s basic protections of the Sixth Amendment were violated when his statements were surrepti- tiously and “deliberately elicited from him after he had been indicted and in the absence of his counsel.” In essence, the Massiah doctrine activates the Sixth Amendm ent right to counsel once the criminal suspect reaches the status of accused and restricts the use of covert tactics by the government in obtaining incriminating evidence. Since announcing the Massiah doctrine, the Supreme Court has attempted to li mit its effect by requiring the accused to show that the government participated in active interrogation. The cases that follow Massiah help determine what constitutes active interrogation. The Supreme Court held that when an inmate working for the government actively prompts an accused to make incriminating statements, this involves active interrogation and is a violation of the accused’s Sixth Amendment right to counsel (United States v. Henry, 447 U.S. 264, 100 S. Ct. 2183, 65 L. Ed. 2d 115 [1980]). However, when a government agent passi vely listens to the accused’s incrimi- nating statements, there is no violation of the accused’s Sixth Amendment right to counsel (Kuhlmann v. Wilson, 477 U.S. 436, 106 S. Ct. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 496 MASSACHUSETTS CONSTITUTION OF 1780 2616, 91 L. Ed. 2d 364 [1986]). In Kuhlmann, the Court held that, to prove a violation of the Sixth Amendment, “the defendant must dem- onstrate that the police and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks.” The Massiah doctrine effectively limits the types of tactics law enforcement may use in obtaining evidence. Under this doctrine once formal charges have been initiated, the right to counsel attaches and law enforcement may not elicit information, either face-to-face, covertly, or through an undercover agent, without the presence of an attorney. FURTHER READINGS Howe, Patrick M. 1990. “Cleaning Up the Counsel Clause: Revisiting Massiah v. United States.” Univ. of San Francisco Law Review 25. Olive, Mark. “Summaries of Successful Cases Under Massia v. United States or United States v. Henry through August 2004.” CDN (Capital Defense Network). Availableonlineathttp://www.capdefnet.org/hat/ contents/constitutional_issues/jailhouse_snitch/ jailhouse_snitch.htm; websitge home page: http:// www.capdefnet.org (accessed September 6, 2009). Tomkovicz, James J. 1989. “The Massiah Right to Exclusion: Constitutional Premises and Doctrinal Implications.” North Carolina Law Review 67. CROSS REFERENCES Criminal Law; Criminal Procedure. MASTER An individual who hires employees or servants to perform services and who directs the manner in which such services are perfo rmed. A court officer appointed by a judge to perform such jobs as examining witnesses, taking testimony, computing damages, or taking oaths, affidavits, or acknow ledgments of deeds. A master makes a report of his or her findings to the judge so a decree can be formulated. A master in chancery was an officer in Chancery Court in England. In the U. S. these duties may be rendered by a court clerk, com- missioner, auditor, or referee. MASTER AND SERVANT An archaic generic legal phrase that is used to describe the relationship arising between an employer and an employee. A servant is anyone who works for another individual, the master, with or without pay. The master and servant relationship only arises when the tasks are performed by the servant under the direction and control of the master and are subject to the master’s knowledge and consent. A servant is unlike an agent, since the servant has no authority to act in his or her employer’s place. A servant is also distinguish- able from an INDEPENDENT CONTRACTOR, who is an individual entering into an agreement to perform a particular job through the exercise of his or her own methods and is not subject to the control of the individual by whom he or she was hired. The master and servant relationship arises out of an express contract; the law, however, will sometimes imply a contract when none exists if a person was led to believe there was one by the conduct of both the employer and the employee. No contract exists, however, unless both master and servant consent to it. The contract can contain whatever terms and conditions the parties agree to, provided they are legal. It is essential that the terms be sufficiently definite so as to be enforceable by a court in the event that the contract is breached. An employment contract is legally enforceable by the award of damages against either party who breaks it. No employment contract, however, can be enforced by compel- ling the employee to work, because that would constitute INVOLUNTARY SERVITUDE, which is proscribed by the U.S. Constitution. Federal and state laws regulate certain conditions of employment, such as minimum wages, maximum hours, overtime pay, time off for religious observan ces, and the safety of the work environment. Statu tes ordinarily restrict employment of children, and federal CIVIL RIGHTS laws prohibit employment discrimination based upon race, color, religion, sex, or national origin. Employment agencies are generally licensed and regulated, due to the risk that dishonest agencies might come into existence. Duties of Master and Servant The general rule is that a master may hire and fire servants; however, this is limited to a certain extent by the law. An employee cannot be discharged for a reason not permitted by his or her employment contract or the collective bargaining agreement that may govern the employment; nor can the person be fired GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MASTER AND SERVANT 497 . violation of the accused’s Sixth Amendment right to counsel (Kuhlmann v. Wilson, 477 U.S. 4 36, 1 06 S. Ct. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 4 96 MASSACHUSETTS CONSTITUTION OF 1780 261 6,. vitality of electron- ic communications technologies. The 19 96 act GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 494 MASS COMMUNICATIONS LAW moved toward deregulati on and competition as ways of. under Pierce and Buchanan 1859 Died, Paris, France 1 861 65 U.S. Civil War ❖ ◆ ◆ GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 488 MASON, JOHN YOUNG of Tyler’s cabinet to be retained by the new president.