Laurence H. Winer

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

At its March 2, 1998, meeting in Los Angeles, the presidential Advisory Committee on Public Interest Obligations of Digital Television Broadcasters (the Gore Commission) heard testimony from several panels and then began its public deliberations in the afternoon session. In beginning the deliberations, Commission co-chair Norman Ornstein described a paper that had been submitted to the Commission and publicly distributed by the Aspen Institute Working Group on Digital Broadcasting and the Public Interest.¹ This paper features a "matrix" with four "alternative models for determining and implementing the public interest obligations of digital television," and lists how each would address designated public interest goals.² The background of this Aspen submission to the Gore Commission appears to be the following.

The Aspen Institute is "an international nonprofit educational institution dedicated to enhancing the quality of leadership through informed dialogue" that seeks to "relate timeless ideas and values to the foremost challenges facing societies, organizations, and individuals."³ The goal of the Institute’s Communications and Society Program is "to promote integrated, thoughtful, values-based decision making in the communications and information policy fields."⁴ Reed Hundt, former chairman of the Federal Communications Commission, last fall became chairman of the Program’s Forum on Communications and Society.⁵

With support from The Markle Foundation, the Communications and Society Program is convening a series of meetings "to examine the public interest in the nation’s communications system."⁶ Gore Commission co-chair Ornstein attended the first of these meetings in January 1998. The "Aspen Matrix" paper subsequently submitted to the Commission is a preliminary report of that meeting prepared by Angela Campbell of the Georgetown University Law Center. Given his background and the role even this preliminary report played in the discussions at the March 2 meeting of the Gore Commission, the efforts of this Working Group on Digital Broadcasting and the Public Interest formed by the Aspen Institute’s Communications and Society Program is likely to have considerable influence with the Commission. In reviewing the Aspen Matrix, therefore, The Media Institute’s Public Interest Council (PIC) is concerned to note a number of deficiencies in the regulatory models discussed.⁷ First, each of the four models set forth — public trustee, spectrum fee, pay plus access, pay or play — assumes a significant, continued level of government regulation of broadcasting. No consideration is given to a deregulatory model, or indeed a model of essentially no governmentally mandated public interest obligations for broadcasters. Second, and related to this first point, the Aspen Matrix is solely about broadcasting and the obligations to be imposed on broadcasters regardless of the modern context of a truly new era of ever-expanding forms of digital electronic media.

Third, there is no recognition of the considerable "public interest" services broadcasting already provides within a free, universal marketplace of ideas without any governmental interference. Congress’s ultimate purpose in giving broadcasters additional spectrum for digital use was to allow them to continue providing the system of free, independent, universal over-the-air television that has served us so well for so long. Preservation of such a system alone ought to be a prominent "public interest" goal featured in the Matrix. And, finally, part of the Aspen Matrix seeks to perpetuate the fiction, increasingly relied on recently, that intrusive government regulation of broadcasters really isn’t regulation at all so long as it can be imposed in the guise of what purports to be the broadcasters’ "voluntary" choice. This is not only somewhat disingenuous, but also runs headlong into the doctrine of unconstitutional conditions. As with our earlier submissions to the Gore Commission, PIC urges the Aspen Institute Working Group, and the Commission itself to the extent it relies on the Working Group, to fully address each of these highly interrelated issues as discussed in more detail below.

I. The Deregulatory Model

Perhaps the most disappointing aspect of the Aspen Matrix, as well as the proceedings to date of the Gore Commission, is the failure to fairly acknowledge, let alone appropriately address, what has to be the central question of the entire enterprise. As PIC has previously asked: "Why should broadcasters in the 21st century be subject to any public interest obligations mandated by the federal government?" If the Gore Commission is simply a means of devising some proposals to provide free television air time for political candidates, which is clearly President Clinton’s agenda,⁸ then the straightforward approach would be to announce this and try to form a consensus. The debate then can concentrate on this important and contentious issue.⁹ On the other hand, if the Commission truly wants to give full and proper consideration to the ultimate, overriding issue — the role of broadcasting in a digital 21st century full of many competing forms of electronic media (an issue that has not been fully aired at a governmental level since the scheme for radio broadcasting was established in 1927 and 1934) — then the central question stated above is both logically the place to start and represents the default position demanded by the First Amendment. Instead, the Aspen Matrix begins with the outmoded, nebulous, and constitutionally dubious "public trustee" model.

One member of the Commission, Prof. Cass Sunstein, has indeed noted the absence of "complete deregulation" from the Aspen Institute report, stating that it is something "reasonable people believe in" and "should very much be among the options that we talk about."¹⁰ In discussing the mandates before the Commission and the Aspen Matrix, however, co-chair Ornstein focused on continuing and increasing broadcasters’ public interest obligations in the digital age, not reducing or eliminating them.¹¹ It is disheartening that this issue which, from a logical and constitutional as well as a true "public interest" perspective should command center stage, has to fight for appropriate attention.

True, facing this central issue would be a more challenging conceptual matter for the Commission, far more complex than the "simple," if highly charged, debate over free air time for political candidates. The latter, after all, is a corollary of the resolution of the former. That is, assuming nearly everyone would readily agree that government could not require daily newspapers to provide free space for political candidates, the necessary question becomes: "How can such a requirement be constitutionally applied to broadcasters?"

In other words, avoiding the question of why we should impose any public interest obligations on broadcasters avoids the underlying question of a meaningful, constitutionally sound rationale for the continued regulation of broadcasting. It is no easy feat to articulate such a rationale. Scarcity in its various incantations no longer will do (if it ever really did).¹² PIC is highly skeptical that any newer rationales can or should take its place. But there are thoughtful candidates, including some ideas Prof. Sunstein has advanced,¹³ and some proposals presented to the Aspen Institute. At a minimum, as with the four regulatory models the Aspen Paper does present, the pros and cons of a (full or partial) deregulatory model must be on the table, and this necessarily must include full consideration of substantial and important constitutional issues.

II. Why Just Broadcasting?

It is of course the declared mission of the Gore Commission to address the public interest obligations of broadcasters. But the scheme for broadcast regulation developed and was ensconced in an era when broadcasting — first radio and then television — was the only form of electronic mass media. With the advent of cable (now enjoying a penetration rate of television households approaching 70 percent), microwave systems, DBS, VCRs, and the Internet (with its audio and video broadcast qualities), this of course is no longer the case. Indeed, with the decline in network television audience share, even as the number of networks grows, it is hard to say that broadcasting even remains the dominant mass medium in this country as it surely was for so long.

Moreover, moving into the digital age is producing increasingly rapid convergence among voice, print, video, data, and the related means of delivering an endless and ubiquitous stream of 0s and 1s into the home.¹⁴ The old approach of asking regulatory questions medium by medium — for example, is cable more like broadcasting or more like print¹⁵ — represents an "either-or" mindset that seeks to compartmentalize the media under largely superficial and somewhat artificial distinctions and to determine constitutional status according to a corresponding, imposed hierarchy. Such an approach dies hard. It allowed the Supreme Court, for example, to give credence to the notion of a cable operator’s supposed "gatekeeper" control over video programming coming into the home by artificially confining its attention to "cable speech." Thus the Court was able to define away the issue and ignore the much more inclusive marketplace including, prominently, broadcasting.¹⁶ The parallel of this mistake would be for the Gore Commission now to discuss the public interest obligations of broadcasters, and any need for maintaining them, without full recognition of what is happening in the rest of the digital electronic world.¹⁷ Indeed, acknowledging the essential unity of the electronic media should lead to the appreciation that there is only one First Amendment that protects it, the same way the Amendment protects the print media.

Consider, for example, the recent and continuing controversy over children’s television programming, a central concern of the Gore Commission. Ignore for present purposes the preliminary issue of the wisdom of relying on television — primarily a news and entertainment medium — to rectify the educational failures of our private and public institutions (families and schools). Ignore as well the difficulties, constitutional and otherwise, of determining which television programming is appropriately "educational" for children for purposes of government mandates. Consider only the need for compromising First Amendment values by coercing all broadcast licensees into presenting a minimum amount of core educational and informational programming for children.

The FCC itself was unable to determine with any accuracy the amount of educational programming broadcasters already were providing and found only that some broadcasters were fulfilling their obligations here and some were not, hardly a compelling case for imposing content control.¹⁸ Even more inexplicably, the FCC declined to consider the overall availability of educational programming in the entire video marketplace,¹⁹ an omission that at least one new commissioner apparently would rectify.²⁰ Yet it appears that broadcasters may not be either especially good at serving, or especially important to, the children’s video market.²¹ The market dysfunction in children’s programming thought to justify government mandates on broadcasters cannot be intelligently addressed without first determining the appropriate market, and there is no reason to limit that market solely to broadcasting.

A similar critique applies to the other main issue before the Gore Commission, free air time for political ads for candidates for public office. Why focus on increasing this particular form of communication between candidates and the electorate when such ads are of questionable worth and are hardly appreciated by many voters? More importantly, how can any governmental advisory commission looking toward the digital age not consider instead, for example, promoting candidates’ Web sites from which any interested voter can access complete, detailed information about any candidate and his or her position on a variety of issues most important to that voter. Indeed, through the Internet voters can interact with candidates, pose their own questions, and create their own mini-debates among competing candidates who choose to open themselves to such a forum. This and other creative uses of media technologies avoid constitutional difficulties; unlike more television ads, they offer the potential of actually improving political campaigns. Such avenues likely will develop not so much through government mandate as private initiative.

There are, to be sure, economic and demographic issues relating to the availability of various media technologies among various segments of the populace. Government subsidies might have a role to play here as, for example, in promoting the use of the Internet in schools and public libraries.²² Broadcasters, however, all too frequently have failed to receive sufficient credit for the substantial contribution they already make in providing that which they are very good at providing — news and entertainment programming — on a free, universal service basis. Recognition of this contribution is missing from the Aspen Matrix, and the Gore Commission should extend appropriate credit and not look to broadcasters to do everything in the realm of public service. Other entities may be better suited to meeting some needs and desires of the public in the marketplace.

III. Broadcasting’s Universal Service Contribution

The last point — broadcasting’s substantial promotion of the public interest by providing free, universal service throughout its history — deserves some amplification. Unlike the experience in many other countries, broadcasting developed in the United States as a private, commercial enterprise allowed to air advertising to support itself, but then made available as an otherwise free, universal public good to anyone who purchased a receiver. Later, public broadcasting came to be supported through a combination of government subsidy and corporate and individual sponsorship, but again universally available even to the free riders who resist the entreaties of the periodic public fundraisers. To avoid interference problems, broadcasters were licensed by the government, and the system that developed fit well with the uniquely American combination of First Amendment freedom of the press and a commitment to an essentially free-enterprise, market-based economy where serving the public interest is best measured by success in the marketplace rather than by satisfying governmental dictates.

There has been a natural quid pro quo built into this system of broadcasting, a system virtually compelled by our fundamental values. In return for their licenses and their ability to compete in what often has been a lucrative industry for those who successfully serve the "public interest," broadcasters have contributed a great deal to the development of this nation, helping to define the American identity and the American community during the 20th century. From fireside chats to the Kennedy assassination to Vietnam to the first man on the moon to the avuncular news anchor trusted to report the truth — and, as well, on the entertainment side, from the classics of the golden age of television to the "big" game to the latest hot sit-com — free, universal television has played a central role in each of our lives. Of course, there is both good and bad in this.

Perhaps now we are outgrowing "old-fashioned" broadcasting that served us so well up to now. As the country is becoming more diverse and heterogeneous the number of media choices is expanding almost geometrically, and viewers can focus on sources tailored to their specific interests. We no longer have to wait for the network nightly news; real-time worldwide coverage is available around the clock. If so inclined, one can have a steady diet of sports programming or old movies. Moving to the Internet, one can spend much of one’s life in virtual reality. There is good and bad in this as well.

Recognizing the rapid evolution in the electronic mass media, but reluctant to abandon the country’s commitment to broadcasting, Congress in 1992 imposed must-carry obligations on cable operators to preserve the system of free over-the-air television.²³ Perhaps Congress acted out of nostalgia for a bygone era of broadcast television, and perhaps the effort, of questionable constitutionality, should not have succeeded. But the perceived need and desirability of preserving free broadcast television was a central component of the congressional initiative and was key to the Supreme Court’s shaky, split decision upholding must-carry against a First Amendment challenge.²⁴ This concern was equally central to the new grant of spectrum to broadcasters for their conversion to digital technology.

In both instances, Congress was correct at least in recognizing the great bargain that broadcasting has provided us over many years. Broadcasters add tremendous value to the bare licenses they receive through substantial, long-term investment in developing facilities, programming, and audiences. Recognition of this is missing from the Aspen Matrix and should play a prominent role in the Gore Commission’s deliberations. We already have derived great "public interest" benefit from broadcasting. This will doubtless continue for some time. We ought not to threaten this benefit in a newer, hotly competitive video marketplace by asking broadcasters to meet additional and largely inappropriate goals (for which they are ill suited) such as educating our children and reforming our political campaigns.

Nor should we create such a threat by imposing spectrum fees on broadcasters. This model as described in the Aspen Matrix would require that broadcasters pay a fee, perhaps a percentage of gross revenues, with the money raised to be used to support public broadcasting.²⁵ Most current public interest obligations then would be shifted exclusively to public broadcasters. This latter idea might be worth considering, though it is hardly free from constitutional and other difficulties. Indeed, one "difficulty" with relying only on public broadcasting that apparently was raised at the Aspen Institute conference indicates the lengths to which some would go to implement their conception of the good as to broadcasting. Some raised the objection that not everyone watches public television and "it may be important that audiences get exposure to candidates and issues whether they want to or not" (emphasis added).²⁶ Such overtones of Big Brother truly give one pause.

But why should commercial broadcasters alone be made to support this new form of public broadcasting? If, as suggested in the Aspen Paper, the National Endowment for the Arts is a possible model for an entity to make funding decisions for public broadcasting, why shouldn’t public broadcasting — designed to benefit the entire public — be similarly funded from general tax revenues? This spreads the burden far more equitably and, more importantly, it would make the government directly accountable for the use of public money for public broadcasting. Recent years have seen considerable controversy over the NEA as well as public television.²⁷ Aside from the merits of any particular issue, such controversy is appropriate in a democracy. The government should not seek to deflect responsibility for a new system of public broadcasting by making it appear that funding is coming from commercial broadcasters when it actually would be the result of government mandate.

IV. "Voluntary" Regulation and Unconstitutional Conditions

The Aspen Matrix includes two variations on a "pay or play" model in which "public interest obligations are quantified, and broadcasters are given the choice of either meeting the public interest obligations through their programming or of paying." In the "pollution rights" variation, adapted from the field of environmental regulation, a "broadcaster could choose to produce and air the programming required or to pay another station in the market, perhaps the public broadcasting station, to produce such programming." In the "spectrum check-off" variation "broadcasters would be charged the fair market value of the spectrum on an annual basis." Then, "[b]roadcasters could pay this fee to the government or they could ‘check-off’ up to the full value by airing programs or spots from program categories that the government determines are in the public interest" (emphasis added).²⁸ This highlighted text, and the notion of the government determining which programming is in the public interest, already indicate the substantial First Amendment difficulties with any such approach. Such decisions about program categories inevitably involve evaluations of programs themselves, and neither is the business of government. It should be abundantly clear that the government does not have "the power to ordain any particular type of programming that must be offered by broadcast stations."²⁹ On both a policy and constitutional basis, such matters are best left to journalists, editors, and the public itself asserting its will in the marketplace.

The interest in implementing some pay or play approach seems clear; it is an illusory attempt to sidestep the substantial First Amendment questions raised by many aspects of public interest obligations imposed on broadcasters. As long as no action impinging upon editorial discretion is actually required of broadcasters — as long as broadcasters are given a "choice" — it is hoped that broadcasters’ decisions can be deemed "voluntary" and the government regulation therefore will avoid First Amendment problems. This approach gains impetus from the fact that broadcasters lately are being "volunteered" to death.

The misguided "V-chip" legislation gave the television industry the "choice" of developing its own ratings system for programming or having a system developed for it by a government-appointed commission.³⁰ The one major network, NBC, that has had the courage to go its own way with ratings has been excoriated by members of Congress and threatened with sanctions.³¹ Yet, the V-chip system is touted as responsible, voluntary action by broadcasters, and we all are much the worse for it. Similarly, when Washington decided that there was not enough age-specific educational television programming for children and the FCC chairman proposed regulation, the senior member of the Commission warned of "First Amendment time bombs waiting to explode in a court of law."³² Consideration apparently was given to conditioning pending network acquisitions on pledges to increase the amount of educational children’s programming.³³ Instead, under intense political pressure, including a special White House conference, broadcasters "agreed" to a new set of requirements, again obviating immediate constitutional challenge.³⁴

These recent experiences are not a new phenomenon. There is a long and troubling history of regulation of the broadcast industry by a mere "raised eyebrow" of official disapproval³⁵ that the Gore Commission should bear strongly in mind. During the morning session of the Commission’s March 2 meeting, the panelists heard a presentation on behalf of the National Association of Broadcasters by P. Cameron DeVore, a noted First Amendment advocate, addressing the unconstitutionality of federally mandated free air time for political candidates. Co-chair Ornstein then asked Mr. DeVore whether the lowest unit rate provision governing candidate ads is unconstitutional; if not, would limiting rates to half of lowest unit rates be constitutional?³⁶ Mr. Ornstein’s idea presumably was to slide down the slippery slope to zero to demonstrate that free air time shouldn’t be unconstitutional either. But the lowest unit rate provision just governs the revenues that a broadcaster can receive once he decides to sell time; by itself the provision doesn’t require that any time be sold. Indeed, in upholding the provision that does require reasonable time to be made available to qualified federal candidates, the Supreme Court stressed that this statute is a "rule of reason" creating only a limited right to "reasonable" access for which, under the terms of the statute itself, the broadcaster is free to charge.³⁷ So, Mr. DeVore appropriately declined to step on the slide, at which point Mr. Ornstein, noting that broadcasters complain about the burden of lowest unit rate, asked why they haven’t challenged it if it is unconstitutional.³⁸

Such a question misunderstands the nature and history of broadcast regulation. Broadcasters are heavily regulated by a federal agency; they try simultaneously to avoid costly regulatory and political friction, to function as members of a free press, and still to make a profit. It is not surprising that they often may choose to go along to get along. A better question to ask to measure the constitutionality of a regulatory measure is whether newspapers could be similarly regulated and whether newspapers would challenge the attempt. The Gore Commission should be mindful of the unique and rather anomalous position of broadcasters as it evaluates whether induced action is truly voluntary or just the thinly disguised effect of government mandate.

So what about pay or play, either the pollution rights model or the spectrum check-off model? To see why neither of these easily avoids significant constitutional dilemmas, one first has to realize that simply fashioning an approach in the language of choice is no panacea. Can broadcasters be told: "Air this governmentally favored programming or lose your license"? That, after all, is a choice. How about: "Air this governmentally favored programming or pay a fine"? This seems hardly less objectionable, yet how is it different from pay or play under which broadcasters either air the preferred programming or pay a fee to the government, or to a competitive station, to buy their way out of the obligation? The same sort of difficulty infects the "broadcast bank" approach for free air time for candidates favored by co-chair Ornstein, a proposal that even more directly intrudes on broadcasters’ editorial discretion about carrying candidate ads.³⁹

The problem with these regulatory approaches that derive from the desire to portray government mandate as voluntary choice is that they run headlong into the doctrine of unconstitutional conditions. This is a somewhat uncertain realm⁴⁰ already nicely outlined in Prof. Rodney Smolla’s earlier submission to the Gore Commission.⁴¹ As Prof. Kathleen Sullivan has summarized the doctrine, "government may not grant a benefit on the condition that the beneficiary surrender a constitutional right, even if the government may withhold that benefit altogether."⁴² In application this almost surely means a newspaper could not be offered a tax credit based on a promise not to run any editorial critical of the president, nor based on an agreement to run a certain amount of free political ads. A magazine’s favorable postal rates similarly could not be conditioned on such matters affecting content. The federal government is free to appropriate funds from general tax revenues and provide money to candidates to purchase political ads in accord with the editorial discretion of the media. But this does not mean the government can achieve results with similar economic consequences through other means that displace, or even appear to displace, the press’s free exercise of editorial discretion. In short, the government may not put a price on the free exercise of editorial discretion.

In FCC v. League of Women Voters⁴³ the Court struck down a provision requiring public broadcast stations that receive federal funds from the Corporation for Public Broadcasting not to "engage in editorializing." The Court first reviewed "[t]he fundamental principles that guide our evaluation of broadcast regulation" and applied a heightened, intermediate level of scrutiny. The majority then found the statute incompatible with the First Amendment, rejecting the dissent’s view that Congress could impose such a condition on the knowing receipt of public money.⁴⁴ The current administration clearly appreciates that it may not achieve even its highly desired results by creating unconstitutional conditions. In a recent letter to Congress responding to questions about proposed legislation to restrict certain tobacco product advertising, the White House noted that, even in this area of commercial speech, "restrictions [on advertising] in a federal statute that made adherence to such restrictions a condition of the receipt of certain federal benefits would continue to raise substantial constitutional questions."⁴⁵ Truly voluntary self regulation in which broadcasters retain unfettered editorial discretion as to content is one thing. Beyond this, however, it is chimerical to salve one’s First Amendment conscience by portraying intrusive government regulation as voluntary and a product of uncoerced broadcaster choice.

It bears repeating that, as Justice Stewart once noted, "[t]here is never a paucity of arguments in favor of limiting the freedom of the press."⁴⁶ For historical and other reasons, we came to accept, for most of the 20th century, the notion that broadcasting was somehow unique and that it was appropriate to treat the industry more like a regulated utility than a free and vibrant part of the press. We can no longer continue in this vein.⁴⁷ The revolutionary transformations in media and communications we are experiencing as we move into the next millennium require us to rethink our regulatory approach to broadcasting and, as PIC has argued, return to first principles. Once again Justice Stewart is being proved correct; there is a plethora of voices and rationales being advanced to hold onto an old, familiar, and, to some, comfortable system. The challenge is to address outdated assumptions with a fresh skepticism and the essential command of the First Amendment firmly in mind.