On Dec. 18, 1998, a presidential advisory committee issued its final report recommending 10 additional public interest obligations for digital television broadcasters but no area of proposed deregulation, even as we enter a digital era of electronic media abundance. This report may be the basis for the FCC's own proceeding on this issue in 1999.

Backgroung

   President Bill Clinton issued Executive Order 13038 on March 11, 1997, establishing an Advisory Committee on Public Interest Obligations of Digital Television Broadcasters. Comprised of individuals from the private sector, the Committee was to hold meetings as it deemed advisable, deliberate, and report to the vice president on the public interest obligations digital television broadcasters should assume. The Committee therefore became popularly known as the Gore Commission.

   The formal impetus for creation of this Advisory Committee was the provision in the Telecommunications Act of 1996 for the transition from current analog broadcast television to "advanced television services" using digital technology to take advantage of the many presumed benefits of the new technology. Congress decided to effect this transition by limiting initial digital television licenses to current analog licensees with the provision that the analog licenses would be surrendered to the Federal Communications Commission for reallocation or reassignment once the transition to digital was completed.

   As a result, current broadcasters received without payment an additional 6 MHz of spectrum to begin digital operation while they phase out and then return to the government their 6 MHz of analog spectrum. This perceived "giveaway" of spectrum to broadcasters, together with language in the Act that nothing therein should be construed as relieving broadcasters from their public interest obligations, prompted the notion that digital broadcasters should give something back to the public in terms of increased public interest obligations.

   In fact, however, the more specific impetus for creation of the Gore Commission arose from the Administration's desire to institute some form of campaign finance reform and, in particular, deal with the burgeoning costs of television advertising time for political candidates. As President Clinton made clear as he created the Commission, he expected this body to recommend, and the FCC then to implement, a program for government-mandated free television air time for candidates. Indeed, the president appointed as co-chair of the Commission Norman Ornstein, a well-known political scientist who long has been a champion of free broadcast time for candidates.

   It wasn't until the fall of 1997 that members of the Commission finally were named and able to begin work. Leslie Moonves, president of CBS Entertainment, was the other co-chair and there were several other broadcast members. The remaining members, including some of the broadcasters, represented various interests almost entirely on the regulatory side. The Commission included, for example, the founder of Action for Children's Television; the chairman and CEO of the Benton Foundation, "a leading advocate for communications in the public interest"; Newton Minow, chairman of the FCC in the Kennedy Administration; and the executive director of the Media Access Project. The sole academic and constitutional law expert on the Commission had advocated a "New Deal" for speech and considerably greater government regulation of all media, including broadcasting, in the name of promoting deliberative democracy and political equality. The Gore Commission included no strong voice for deregulation of broadcasting and greater First Amendment freedom for broadcasters more on a par with that for print media.

   In his keynote address at the Commission's first meeting, Vice President Al Gore stated that he did not want to "pre-judge or pre-ordain" the outcome of the Commission's deliberations. Rather, he expected the Commission's work to be "broad" and to begin with "first principles." Indeed, the vice president charged the Commission with the "paramount obligation ... to sustain and strengthen the First Amendment freedoms that are so critical to all media."

   From October 1997 through November 1998, the Commission held a series of eight public meetings in Washington, D.C., and two other locations, heard presentations from various individuals and organizations, and received public comments. At the same time, the Aspen Institute, with support from the Markle Foundation, created a Working Group on Digital Broadcasting and the Public Interest and convened three seminars, attended by co-chair Ornstein, to develop background for and provide input to the Commission. This unofficial effort supplemented the meager staff and research resources of the Commission itself.

   The regulatory core of the Commission's final report focuses on several key areas:

Enhanced Public Interest Obligations

   First, although the Commission expressed a preference for information disclosure, voluntary self-regulation, and economic incentives for broadcasters rather than "command-and-control" regulation, the Commission did not seriously consider deregulation of broadcasting. The Commission simply assumed that current public interest obligations should continue and in fact be enhanced for digital broadcasters. For example, although recognizing the economic and technological uncertainties of the digital future, the Commission proposes a menu of "options" for digital broadcasters who multiplex - that is, broadcast several standard-definition signals instead of one high-definition signal. After a two-year moratorium to allow exploration of marketplace options, broadcasters who receive additional revenue from multiplexing would either be subject to fee payments (to be used to enhance the public interest in broadcasting), or could choose to dedicate one multiplexed channel to public interest purposes (committed to "robust programming and access for local voices"), or could provide in-kind contributions (such as free time for political parties). A multiplexing broadcaster's "primary" channel would remain subject to all current public interest obligations.

Expanded PBS Programming

   Earlier in their deliberations, most members of the Gore Commission had seemed quite excited by an innovative idea presented by one of the broadcast members. This proposal reserves spectrum from one of the current analog PBS stations in each viewing market rather than returning it to the government. This channel would be used for educational programming purposes - classroom and lifelong learning - different from the existing sort of PBS programming. The local PBS station would be encouraged to operate this additional station based on a plan it would submit to the FCC. But if this plan were found wanting, the educational channel space would be opened for bidding by others. Coupled with this proposal, the Commission strongly recommends that Congress adequately fund such new programming from various spectrum revenues and fees, with particular funding for independent producers and minority programmers. While in its original form this proposal seemed to shift many of the public interest obligations from commercial broadcasters to the expanded public broadcasting service, the PBS proposal now is just one piece of the Gore Commission's overall plan of substantially increased obligations for all broadcasters.

"Voluntary" Code of Conduct

   The Gore Commission earlier also had spent a good deal of time drafting a new, detailed "voluntary" code of conduct for broadcasters. Despite considerable controversy over such an approach, the final report urges the National Association of Broadcasters and the industry to develop self-regulatory standards, emphasizing that this should be done "without pressure, interference, or direct or indirect enforcement by the government." But the Commission offers its own draft as a model and, to make self-regulation more effective, suggests that broadcasters' public reporting requirements be augmented by enhanced quarterly disclosure of broadcasters' public interest programs and activities. This would be accomplished by "certification forms" - standardized checkoff lists - proposed by the Commission that therefore determine and define what constitutes programming in the public interest. Moreover, despite strong opposition from some broadcast members, a majority of the Commission recommends augmenting the voluntary code of conduct with a set of mandatory minimum public interest requirements. Although avoiding, as a compromise, detailed standards with defined numerical guidelines of performance, the Commission's categories for minimum standards include community outreach and accountability, public service announcements, public affairs programming, and closed captioning. The Commission also suggests support for cable must-carry of digital broadcast stations, the clear implication being that this would be a strong incentive for broadcasters to accept minimum standards.

Candidate Air Time    On the issue of political discourse that was a major factor in creation of the Commission, mandatory free air time for political candidates became too controversial to survive. Instead, the Commission recommends that broadcasters voluntarily devote five minutes per night in the 30 days before an election to "candidate-centered discourse." Stations could choose the format(s) to use and the races and candidates to focus on, and equal opportunity provisions would be waived. The Commission also urges broadcasters to support an expanded role for themselves as part of comprehensive campaign finance reform Congress might enact. This could include repeal of lowest unit rate with broadcasters providing some free air time for candidates in return for other paid time at market rates, or creation of a "broadcast bank" of money or vouchers distributed to parties and candidates to be used to purchase broadcast time.

"Pay or Play"

   Finally, in the name of maintaining broadcaster flexibility in an uncertain digital future, the Gore Commission recommends consideration of what it deems a whole new model of regulation, "pay or play." Here the central idea is that broadcasters could choose between fulfilling certain non-statutory public interest obligations, or paying a share of their revenues to bypass those obligations and receive in return an expedited license renewal process. The funds raised in this manner would be used in various ways to enhance the public interest. The Commission makes no consensus recommendations in this area as some members of the Commission, enamored with minimum standards for all broadcasters, strongly oppose a "pay or play" buyout. Others favor it as a way to advance the public interest while relieving inept or reluctant broadcasters from such obligations. In this sense, pay or play would diverge from the standard "one-size-fits-all" mode of broadcast regulation that treats each station identically.

Conclusion

   The Gore Commission prefaces the recommendations in its final report with a section describing the legal and historical background of the public interest standard in television broadcasting, relying largely on the scarcity rationale and Red Lion. The Commission made no serious attempt at the difficult but essential task of developing a logically, empirically, and constitutionally sound rationale for government regulation of digital broadcasting in a 21st century of electronic media abundance. It thus remains to be seen what influence the report will have with the FCC, and the legitimacy of its proposals on both policy and legal grounds.