ACLU Legislative Network -
The following article was written by Robyn E. Blumner, former executive
director of the ACLU of Florida.
Larry Helm Spalding
ACLU Legislative Counsel
Tallahassee, Florida
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Free broadcasting from FCC-imposed constraints
By ROBYN E. BLUMNER
St. Petersburg Times, published May 17, 1998
The Federal Communications Commission has a dirty little
secret --
it's living a lie. The federal agency that asserts government
control over radio and television no longer has a
constitutional
reason to exist.
The FCC has been allowed to regulate the electromagnetic
spectrum,
even though such activities are a glaring exception to the
First
Amendment's guarantee of freedom of the press and speech,
because
courts have supported the contention that the bandwidth is
scare,
and radio and television are unique and pervasive. But with
the
burgeoning alternative technologies of cable, satellite
transmissions and the Internet, and with the more efficient
use
of
the spectrum, the government's rationale for this exception no
longer holds any water. It is time to free broadcast of its
FCC-imposed constraints and allow a more market-based approach
to
the medium.
The sinking of the Titanic did more than create the
opportunity
for
a major motion picture phenomenon 85 years hence; it prompted
the
government to regulate the airwaves for the first time. The
investigation following the Titanic disaster discerned that
the
ship's distress call was heard by the Marconi Co. wireless
telegraph
station in Newfoundland, but because the airwaves were jammed
with
amateur radio operators asking questions and spreading rumors,
rescue efforts were hampered.
The Radio Act of 1912 divvied up the ether, making room for
the
exclusive use of certain portions for the military, and
requiring
a
license to broadcast. Later, on the theory that the airwaves
were
a
scarce and unique commodity, the government enacted rules
clarifying
that it owned them, and started regulating the content of
radio
and
then television to ensure the use of the spectrum furthered
the
"public interest."
This vague public interest standard has allowed the FCC and
its
predecessor agency to impose fines on radio shock jock Howard
Stern
for his indecent language, win a Supreme Court battle in the
1970s
against a Pacifica radio network radio station in New York's
airing
of comedian George Carlin's "seven dirty words" routine and,
in
the
early days of radio, deny license renewal to radio stations
broadcasting "propaganda."
Constitutional freedom of speech and press protections prevent
the
hand of government from deciding if a newspaper publisher has
fulfilled his "public interest" duties that year so that he
may
continue to publish the next. There is no governmental
regulatory
body that can enact rules requiring that newspapers provide
their
readers with educational children's sections, public service
announcements and the opportunity for rebuttal. But broadcast
licenses can and do come with such conditions. This broad
regulatory
authority was upheld by the U.S. Supreme Court in the 1969 Red
Lion
Broadcasting case because broadcasting was unique and scarce.
The
court in that case upheld the now defunct fairness doctrine,
which
required that stations air all sides of controversial public
issues
and that all opposing political candidates be given an equal
opportunity to use the broadcast station.
But the technology is vastly different today. Broadcast is no
longer
the only game in town. With the proliferation of other modes
of
sending audio and moving pictures into American homes, any
assertion
of singularity by broadcast has been negated. In fact cable,
satellite transmissions and the Internet offer far more
programing
potential than traditional broadcast. And with digital
convergence
on the horizon, broadcasting and computer transmissions will
be
indistinguishable. Television will be computer and vice versa.
Nor can it be reasonably argued that broadcast is any scarcer
than
many other forms of media or other natural resource, like
paper
for
newsprint.
Today, there are more than 13,000 broadcasters in this
country. Compare that to the 1,520 daily newspapers still
publishing. And the FCC is holding spectrum back. According to
J.
Gregory Sidak, a fellow in law and economics at the American
Enterprise Institute, the FCC is functioning like "OPEC,
limiting
the aggregate supply to prop up the value" of the licenses
already
held. Moreover, modern technologies have allowed much more
economical use of bandwidth, allowing for more to be broadcast
on
less, and the coming compression technology will wring even
more
from the spectrum.
All this means that the scarcity theory no longer holds
validity.
But don't expect it to be abandoned anytime soon. That's
because
government needs to cling to some rationale that allows it to
continue to assert control over this powerful medium.
In fact only one FCC commissioner, Michael Powell, son of
Colin
Powell, is expressing concerns about the obsolete
justifications
underlying the mandate of the agency. In an April speech
before
the
Media Institute, Powell openly questioned the continued
validity
of
the agency's regulatory powers. "With scarcity and the
uniqueness
of
broadcasting such demonstrably faulty premises for broadcast
regulation, one is left with the undeniable conclusion that
the
government has been engaged for too long in willful denial in
order
to subvert the Constitution so that it can impose its speech
preferences on the public -- exactly the sort of infringement
of
individual freedom the Constitution was masterfully designed
to
prevent," he said.
Both Congress and the Supreme Court should reevaluate the
powers
granted the FCC and its proper role. Economist Sidak suggest
that
the FCC become little more than a ministerial agency recording
ownership of the bandwidth the way a title clerk records who
holds
title to property. But whatever it becomes, it's time to tell
the
truth about what it is.
Paul Sholtz
pjsholtz@omix.com
Phone: 650.482.2060
FAX: 650.369.3624