Laurence H. Winer

Professor of Law
Arizona State University College of Law
Tempe, Arizona

This panacea, however, is misguided. Infringing on the First Amendment freedoms of broadcasters and their audiences should be a very last resort, if permissible at all _ not the first alternative simply because it seems easy to do and free of cost. In fact neither is the case, and, as The Media Institute's Public Interest Council (PIC) will address in future comments, proposals for government-mandated free air time are of dubious practicality and even more dubious constitutionality. Moreover, any such radical restructuring of broadcasting and political campaigns is a matter initially for Congress to propose and ultimately the courts to review. It is not the province even of an administrative agency,⁴ and the role of an executive advisory committee ought to be limited to giving objective advice.

Beyond this one issue, in his keynote address at the Commission's first meeting, Vice President Gore stated that he did not want to "pre-judge or pre-ordain" the outcome of the Commission's deliberations. He expected the Commission's work to be "broad" and urged that the discussion 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."⁵

Here the Gore Commission could render a true public service by taking the vice president at his word and seriously examining the most central first principle: Why should broadcasters in the 21st century be subject to any public interest obligations mandated by the federal government? That is, why should we perpetuate, and even exacerbate, the second-class constitutional status of broadcasters rather than decrease if not eliminate all public interest obligations imposed on broadcasters by government?

After all, the most basic and important public interest in broadcasting must be the maintenance of full First Amendment freedoms. As the Supreme Court has noted, "the `public interest' standard necessarily invites reference to First Amendment principles."⁶ And this involves not only the interests of broadcasters as speakers but also the public's interest in a free and unfettered press, not one managed by a government agency even for ostensibly good purposes. "Serving the public interest" is not synonymous with government-mandated content controls and compelled speech.

Our system of a highly regulated broadcast medium originated early in this century as an overreaction to the chaos of a medium emerging without an effective means of ensuring necessary property rights in use of the spectrum. At the time, the new technology was poorly understood _ Congress was regulating the "ether" _ and its potential vastly under-appreciated. Moreover, First Amendment jurisprudence was in its infancy. All this has changed dramatically. The digital information age of the 21st century, with a mature notion of the importance of a free press, bears little resemblance to a nostalgic view of a bygone "golden age of television." The Commission will forfeit a singular opportunity if it simply relies on wax museum arguments to perpetuate a regulatory system that has outlived any purpose it once may have served.

Notions of the public interest in broadcasting necessarily change over time, especially as this concept has never been defined with any precision. Not long ago the FCC's fairness doctrine was "`the single most important requirement of operation in the public interest _ the `sine qua non' for grant of a renewal of license.'"⁷ A decade later a forward looking, deregulation-oriented Commission reevaluated the doctrine in light of modern media conditions and courageously eliminated it as both unnecessary and inimical to First Amendment values.⁸

The Gore Commission now faces a similar challenge to re-examine the concept of government-mandated public interest obligations of broadcasters from first principles. We believe that a compelling approach in this regard was suggested some years ago by a former FCC chairman: namely, hold current or proposed public interest regulation of broadcasters next to the print media _ newspapers, periodicals, books, and the like.⁹ We have no Federal Newspaper Commission for good reason _ much of this regulation would be anathema and clearly unconstitutional for the print media. What, then, justifies it for broadcasters, especially in the context of an exploding world of electronic media of various sorts?

This is a substantial challenge for the Gore Commission, one that is quite demanding for sustaining regulation in most instances. At a minimum it requires that each individual aspect of public interest regulation be tied convincingly to specific justifications based empirically, practically, and logically on special, real, and unique characteristics of broadcasting. And, arguments for such a nexus must survive First Amendment scrutiny at the heightened level the Supreme Court is likely to apply rather than its previous, relatively relaxed standard of review. Indeed, in its first must-carry opinion in Turner Broadcasting, the Court somewhat surprisingly characterized as minimal the current level of government regulation of broadcasting, but indicated it must be so for the system of regulation to survive constitutional scrutiny.¹⁰ In fact, a bare majority in Turner Broadcasting ultimately was able to uphold the must-carry rules only because it managed to construe them as not content-based.¹¹ So, in attempting to meet its heavy burden, the Gore Commission must address at least the following questions.

I. Peculiar Characteristics _ Scarcity

Are there still any "unique characteristics" of broadcasting¹² that can justify its differential regulation, especially the imposition of public interest obligations? Historically, such differential regulation was based on the supposed physical scarcity of broadcast frequencies.¹³ This has always been highly problematic with respect to: (1) the empirical nature and extent of any such scarcity; (2) why this asserted scarcity, even if physical in nature, should be a predicate for regulation since scarcity in some form is the basic economic fact of life affecting all media and as such cannot justify selective regulation; and (3) even if broadcasting suffers some special form of scarcity, specifically how does this justify each particular aspect of regulation, especially that which is content based?

Whatever the case in past decades, isn't broadcast scarcity now dead as a viable concept for regulation, as some members of the Commission already have suggested? In a digital age offering a plethora of electronic media from broadcast to cable to satellite to microwave to the Internet, the mere mention of "scarcity" seems oddly anachronistic. Those who would continue to rely on a concept of scarcity first must carefully define the concept they would invoke _ for example, is it allocational scarcity, numerical scarcity,¹⁴ or some other concept? Next they must demonstrate that it exists to a significant and unique degree in those media they would regulate. Then they must establish a close nexus between the condition and the regulation it supposedly supports. This is a daunting task, especially as the Supreme Court has expressed increasing doubts about scarcity as the basis for its broadcasting jurisprudence.¹⁵

II. Other Peculiar Characteristics

If not scarcity, what now continues to distinguish broadcasting? Is it some notion of broadcasting's power, importance, pervasiveness, or the like? This seems very hard to maintain in an era of proliferating, competing media and the noticeable decline in broadcasting's market share and once-dominant place in American society. Cable penetration is now about 70 percent of television households, satellite television is beginning to make significant inroads, and both soon may be eclipsed by the amazing power of the Internet. Or are all such mass media now to be subject to government public interest regulation simply because some government agencies perceive an opportunity to do some "good," and substantially discount the historically demonstrated opportunity for real harm in allowing such regulation?¹⁶

Such an approach would eviscerate the First Amendment. Indeed, any argument that uses the effectiveness of a medium of communication as a basis to justify government regulation of the medium stands the First Amendment on its head.¹⁷ Any government regulation should stem first from a real condition of the media creating an actual problem that can be addressed effectively by government intervention without creating even greater problems. Regulation should not proceed simply from a well-meaning perception that a little interference can "improve" the system, "so let's see if we can develop a rationale for imposing it." At a minimum, if some public interest obligations or similar regulations are to be imposed, perhaps with variations, on some media but not others, there must be careful and substantial justification at each step along the way for such differential treatment.

III. Public Ownership of the Airwaves / Public Trusteeship

Does the public own the electromagnetic spectrum, and does this justify government public interest regulation of broadcasters' use of the spectrum? Well, surely the very concept of spectrum ownership per se, public or private, is meaningless and cannot by itself justify anything. The spectrum is not subject to ownership any more than is gravity; public ownership here is simply a way of stating the pre-determined conclusion in favor of government regulation, a conclusion that needs other independent support. No one would assert government ownership of gravity as a justification for regulation _ say, to support a federal excise tax on automobiles for the privilege of keeping a car "on" the road. This is not to say that such an excise tax or traffic control regulation could not be otherwise justified. But the mere shibboleth of public ownership of the airwaves _ with the corollary notion of broadcasters as public trustees of the frequencies they are allowed to use _ adds nothing to the debate which must proceed on other bases.

After all, newspapers (as well as cable operators) also use public rights-of-way _ the streets and sidewalks _ to distribute their messages. Newspapers also use the spectrum in the form of satellite transmissions to gather the news and sometimes for transmission of page layouts to distant printing plants. News trucks burden the streets, news racks and kiosks burden the sidewalks, and newsprint and newspaper litter burden the environment. Yet no one suggests that any of this provides a basis for content regulation of newspapers, even though in some sense such regulation might "improve" the papers and render a public service. Again, why should broadcasters, or other electronic media, be subject to content regulation any more than newspapers? There may be some limited, partial answers to this long-standing question, but if so now is the time for the Commission to give the problem its utmost, careful consideration and attempt to provide detailed, specific, and convincing arguments.

IV. Digital Conversion

What, if anything, about broadcasters' pending conversion from analog to digital occasions consideration of increasing their public interest obligations? Indeed, one might more naturally think that the advent of digital broadcasting, with the likelihood of current broadcasters each airing multiple signals for at least a portion of the day, would add diversity to broadcasting. This would further obliterate any remnant of scarcity and argue for reducing if not eliminating public interest obligations. As broadcasters become multicasters, they approach the narrowcasting strategy of cable operators. Rather than programming one channel largely with bland programming to attract a large common-denominator audience, digital broadcasters will be able to appeal to different audiences on different channels. Thus even with common ownership, a multicaster should add considerable diversity to the airwaves in response to market forces, not governmental edict.

Moreover, if digital broadcasting is truly a new medium of communication, why start from the default position of saddling these new broadcasters with the "old public interest obligations"? Indeed, in last year's Internet indecency case the Supreme Court strongly indicated that the presumption for new media is full First Amendment freedom of expression protected by strict scrutiny.¹⁸ So, proponents of public interest obligations for digital broadcasters should not assume that they can start with the current system of regulation and automatically extend it into the digital era. Rather, they well may have the substantial burden of starting ab initio and developing a difficult and convincing case that can survive constitutional review.

V. Is There Any Quid Pro Quo?

Some argue that the way in which the government awarded digital spectrum pursuant to the 1996 Telecommunications Act is now a basis for imposing public interest obligations on digital broadcasters. Under the Act, only current analog broadcasters were eligible to receive the additional MHz of spectrum awarded each of them for digital television, conditioned only on the future surrender of their analog license.¹⁹ Some might consider this a "giveaway" in return for which the government now can extract public interest obligations. But it is far from clear that there is either any "quid" or any "quo" in this argument.

First, what have broadcasters actually gained? The conflicting views the Commission already has heard on this point indicate that it probably is far too early to assess the commercial and economic impact on broadcasters of their conversion to digital. Conversion to digital is a very expensive proposition for broadcasters, and there is no guarantee they will be able adequately to recover this expense in the new television marketplace, even with the prospect of multicasting. There may be no more dynamic market harder to predict than that involving telecommunications and electronic media. Just consider recent fluctuations in telephone company interest in the video marketplace, the still-uncertain potential of satellite television, and the overnight sensation of the Web. With increasing convergence among digital-age media, broadcasting as we now know it may not even survive.

Rather than promulgating an unjustified giveaway now somehow to be balanced by intrusive regulation, Congress may have known exactly what it was doing. If digital broadcasters use some of their new spectrum for ancillary or supplementary services for which they receive subscription fees or other compensation, they must return a portion of that revenue to the public.²⁰ Beyond this, however, Congress with good reason may have been concerned about the economic viability of free, over-the-air television in an increasingly competitive video marketplace. Indeed, concern for preserving free, over-the-air television was a crucial component of the congressional rationale for the must-carry rules that the Supreme Court heavily relied on in barely sustaining the constitutionality of those rules.²¹

Another way of expressing the same underlying idea is that Congress may have realized that broadcasters, both currently in analog format and soon in digital format, already provide the American public with a substantial "quid" in return for their licenses _ namely free, universal over-the-air television service. In many countries this service is not free, and Congress, wishing to preserve our long-standing and highly successful system, may have "given" broadcasters digital spectrum to induce them to undertake the expensive conversion without further jeopardizing their ability to compete and survive in the new, fiercely competitive media marketplace.

Suppose, however, that Congress got it wrong. Imagine that Congress should not have limited digital broadcasting to current analog licensees and should not have given away new spectrum, but instead should have auctioned off the new digital spectrum to the highest bidders. Perhaps Congress even should have required bidders at such an auction to take the new digital spectrum subject to specified public interest obligations. This too would have posed interesting questions as to Congress's ability to impose unconstitutional conditions on the exercise of freedom of expression. Such forewarned bidders, however, at least would have been able to discount appropriately the auction value of such licenses with these limitations attached. But Congress did none of these things, and surely the Gore Commission can not now invoke quid pro quo arguments to justify belated imposition of unconstitutional conditions in the guise of public interest obligations premised upon the receipt of digital licenses.

VI. Alternatives - Public or Government Stations

Finally, before recommending continuation or expansion of the public interest obligations of commercial broadcasters, the Commission should consider less speech-intrusive alternatives. If there are particular public interest services _ free air time for candidates or children's programming, for example _ that the Commission believes commercial broadcasters are not already adequately providing, why not look primarily to public broadcasting stations to supplement the commercial offerings? The quid pro quo argument is more appropriate here, though still constitutionally suspect, given the spectrum set-asides for noncommercial, educational stations. Government might encourage additional public interest efforts, beyond the considerable services public television stations already provide, through increased subsidies paid for not just by a "tax" on broadcasters but from general government revenues. After all, taxpayers at large are the intended beneficiaries of such governmental programs and they can insist upon appropriate governmental accountability for such use of their tax dollars.

Reliance on public broadcasters would confine but not eliminate the difficulties of government regulation of television. This approach would also exacerbate already troubling issues of government maintenance of a limited public forum for speech and government control of ostensibly independent entities whose speech it subsidizes.²² So, if the perceived unfulfilled need for public interest broadcasting is great enough, a further step might be for the federal government to simply become owner and operator of its own nationwide network of television stations. Even without the need to turn a profit, such government stations would experience directly the burdens currently imposed on commercial broadcasters. This approach also raises a plethora of potential difficulties, but on the other hand government control of its own speech is usually less problematic under the First Amendment.

Reliance on either public broadcasters or government stations for public interest programming might raise the objection: "Who will watch these stations?" But this is just the point that exposes the fundamental fallacy underlying government imposition of public interest obligations on broadcasters. The real issue is not the one usually touted, of access to the programming side of television. Rather, government intervenes here to commandeer access to an audience, to coerce people to watch what the state thinks they ought to watch. But an audience has to be earned by someone having something to say that other people want to hear and watch. Over the years broadcasters have been rather successful at creating and developing their audiences, and there is something peculiarly inappropriate and illegitimate in government attempts to appropriate that audience in the name of the public interest.

The Media Institute's Public Interest Council has a very different approach to government regulation of broadcasting than most members of the Gore Commission who, after all, were selected for their affinity for enhancing the public interest obligations of broadcasters. We begin with the First Amendment and its command for a free press. We believe that it is finally time for this revolutionary principle to apply fully to broadcasting as well. Many members of the Gore Commission seem to begin with their own notion of a public interest that broadcasting can serve, and apparently believe that so long as they are seeking to further that notion they are free to restructure broadcasting (and perhaps other electronic media as well) to achieve a noble end. Many newspapers could be similarly "improved," but such an approach is precisely what Justice Stewart had in mind when he presciently warned of "the dangers that beset us when we lose sight of the First Amendment itself, and march forth in blind pursuit of its `values.'"²³

We note, however, that even without government intervention broadcasting will continue to serve the "public interest" just as newspapers do. Broadcasters, like newspaper publishers, are business people seeking to make a profit; like their newspaper counterparts, most broadcasters also strive to be responsible journalists. As the Supreme Court once noted in emphasizing the First Amendment freedom and responsibility of journalists: "For better or worse, editing is what editors are for."²⁴ There is a long and unhappy history of government regulation of broadcasting²⁵ which should give great pause to anyone contemplating further tinkering; the likelihood is that things will be made worse, not better. Instead, we should rely on the journalistic integrity of broadcasters, appropriately influenced by audience and marketplace forces, just as we do for the print media.

A return to first principles should remind us of this wisdom.