Laurence H. Winer

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

In its previous submissions to the Gore Commission, The Media Institute's Public Interest Council (PIC) urged the Commission to focus, first, on the fundamental issue of why there should be any government-mandated public interest obligations on broadcasters in the digital age. What rationales support continued regulation, how does any specific regulation follow from the asserted rationales, and how do these arguments comport with the most basic command of the First Amendment for a free press?

In particular, PIC criticized the Commission for apparently relying on four regulatory models proposed by the Working Group on Digital Broadcasting and the Public Interest formed by the Aspen Institute's Communications and Society Program, each of which simply assumes a substantial, continued level of government regulation of broadcasting. No thought was given to deregulating the broadcast industry in light of the 21st-century digital age of technological convergence among the media and rapidly expanding choices for both transmitters and receivers of information. It seems that a majority of the Commission will not be deterred from their pre-determined approach of shackling broadcasters with their own notions of the "good" in the name of the "public interest."

This reluctance to think outside the regulatory box is all the more unfortunate as the Commission has been presented with one creative and innovative idea that, if properly implemented, has the potential for making a positive contribution to the status and role of broadcasting by advancing a sensible concept of the public interest while also freeing commercial broadcasters of much intrusive and stifling government regulation. This idea, the "Decherd proposal," is to allow one public broadcast station (or another appropriate entity) in each market to retain the 6MHz of analog spectrum now in use and slated to be relinquished when broadcasters' conversion to digital is complete. This spectrum would be devoted to educational and perhaps other public interest programming beyond that already available on PBS stations. As originally proposed, this substantial increase in such programming would relieve commercial broadcasters of much of their current public interest obligations and allow them to join the ranks the truly free press. Pragmatically this idea would have broad consensus support, albeit as a compromise for some.

The Decherd proposal was first discussed at the Gore Commission's April 1998 meeting, to widespread acclaim. At the next meeting in June, however, instead of focusing on this proposal and addressing the many intricate details its proper implementation would entail, the Commission once again could not resist the regulatory urge. Following the direction of co-chair Norman Ornstein, who had prepared an outline of "core recommendations," the Commission went far beyond the Decherd proposal. Rather than being the vehicle for freeing commercial broadcasters of comprehensive and intrusive government regulation while at the same time heeding the call of those who seek an expanded accommodation of what they consider the public interest in broadcasting, the proposal became just one of a series of new government mandates for broadcasting, both public and commercial. The most prominent of these new mandates include a "voluntary" code of conduct for broadcasters drafted in excruciating detail by the Commission, the obligation of digital broadcasters who multiplex (that is, broadcast several digital channels) to devote one additional channel to public interest programming, and increased commitments by broadcasters for coverage of "political discourse."

From both a policy and a constitutional perspective, each of these new mandates qua mandate is bad enough in itself. They cannot be sanitized by disingenuously deeming them "voluntary" or a meaningful "choice" by broadcasters between acceding to governmentally required programming or paying a tax or penalty; only Humpty Dumpty gets to use words this way to mean only whatever he wants them to mean. In some respects, however, the worst aspect of these mandates is that the bad is likely to drive out the potentially good. Instead of developing the Decherd proposal, despite its inherent difficulties, to achieve consensus on something both palatable to most interests and with the potential for making an important contribution, the Commission is more likely to promote disarray and dissent with its additional, highly contentious mandatory proposals. It now seems apparent that the Commission will default on its primary obligation to critically re-examine, in a new era of media abundance, the concept of government regulation of digital broadcasting from the standpoint of constitutional first principles. Thus, PIC now urges the Commission more pragmatically to limit its horizons to suggesting a workable version of the Decherd proposal as an alternative to most other "public interest" regulation of commercial broadcasting.

I. The Decherd Proposal

Commission member Robert W. Decherd is chairman of the board, president, and CEO of Texas-based A.H. Belo Corporation, which owns 17 network-affiliated television stations, three local or regional cable news channels, and six daily newspapers.² At the Gore Commission's April meeting, Mr. Decherd presented "two possible frameworks for regulation of the television broadcasting industry in the digital age."³ The first of these, "Deregulation of the Television Industry," demonstrated that broadcasters already provide substantial public interest programming and argued that ever-increasing competition in the information marketplace will force broadcasters to continue their traditional role in serving the public interest.⁴ This deregulatory model⁵ was accompanied by "Broadcasting in the Public Interest: A Proposal for Expanded Educational Programming in the Digital Age,"⁶ which emerged from the panel of educators that appeared before the Commission at its January meeting.

The key elements of this plan rely on the two 6 MHz channels, one analog and one digital, that public television stations, like all broadcasters, will operate during the transition to digital transmission. Once the transition to digital is complete, broadcasters will have to relinquish the analog channel. The plan, however, would allow one PBS station in each market to retain (and presumably digitize) this second channel to devote to educational and instructional purposes appropriately defined, perhaps in cooperation with state and local school authorities, and perhaps on an interactive basis. It is not clear just what would comprise such educational programming or how localized or targeted to currently underserved audiences it should be. But this programming clearly would be different from and complementary to that already available on PBS stations. This second 6 MHz of spectrum, especially if eventually multiplexed, also could be used for public access by independent program producers, local community public access, free air time for political candidates, and other non-entertainment public interest purposes.

The attraction of this scheme is that it seems to offer great promise at little immediate cost; foregoing the recapture of one additional 6 MHz channel per market seems easy for the government to bear. But the plan is hardly free from difficulties. Just prior to the June meeting, Commission member Frank H. Cruz, vice chairman of the board of directors of the Corporation for Public Broadcasting (CPB), capitalized on this idea in his submission "Strengthening Public Television for the Digital Age" presented on behalf of CPB, PBS, and the Association of Public Television Stations.⁷ Mr. Cruz made a persuasive case as to why "[b]y strengthening public broadcasting, the Advisory Committee can achieve bold, tangible progress in service to the public interest - without the difficulties of attempting to coerce commercial broadcasters into assuming obligations they may vigorously resist."⁸ But he endorsed the Decherd proposal only if "there is some guarantee of content protection consistent with First Amendment principles, and with the assurance of an adequate, secure and permanent source of funding to program and operate a second channel."⁹

Some government related entity necessarily would be responsible for apportioning the additional spectrum among applications for it based, presumably, on the programming such applicants would propose to present. Existing PBS stations might be given some preference in this regard, with some choice necessary in those markets with more than one PBS station. Some members of the Commission have suggested that, to maintain competition and keep such stations from viewing the additional channel as an entitlement regardless of how well they use it, entities such as universities, libraries, or other noncommercial media providers might be invited to submit bids for the spectrum, again based on programming. The Corporation for Public Broadcasting might be the natural choice (in coordination with the FCC) for implementing this plan. But, PBS hardly has been free from controversy from all points along the political spectrum,¹⁰ and the necessary content-based choices and subsidy decisions would remain problematic and subject to popular and political pressures.

Assuming these content and programming issues can be adequately and sensitively addressed, the real issue beyond the allocation of spectrum is funding for the kind of programming desired to fill that spectrum. Without adequate programming, and therefore the assured funding to develop and support that programming, the proposal collapses. Here some imaginative ideas include earmarking for this purpose the revenues raised from fees digital commercial broadcasters are to pay for ancillary and supplementary uses of their new digital spectrum and from the anticipated auctions of reclaimed and repackaged analog spectrum.¹¹ If enough money is raised in this fashion, some portion might be made available for willing commercial broadcasters/programmers to support programming that otherwise would not be commercially viable. Currently, however, no one can predict with any accuracy what such revenues will amount to; they may be quite inadequate to fund the proposal. And the burden of establishing the public benefit of an expanded public broadcasting system should be spread among the public at large and not disproportionately imposed on commercial broadcasters.¹²

To make the plan viable, therefore, Congress most likely will have to assure proper financing¹³ in a way that will both maintain the editorial independence of the stations while holding them accountable for their use of taxpayer dollars. If current PBS stations and the proposed additional stations truly serve the public interest, and not just some bureaucratic (and perhaps elitist) notion of the public interest, then the idea should be popular enough that Congress is willing to adequately fund both current PBS operations and the proposed new channels. Willingness to pay is a good measure of perceived worth; the "public interest" should not have to depend on a seemingly costless appropriation from commercial broadcasters. These are neither inconsequential nor insurmountable problems, and the Gore Commission should devote its energies to developing a feasible approach that addresses many of the troubling details so that the Commission can propose a coherent plan that actually can be enacted.

Most importantly, however, an integral component of this plan must be the substantial, concomitant deregulation of commercial broadcasting. As Mr. Decherd put it in his cover letter to the Commission, "[t]he technological reality of this idea is that all of the access ever imagined for educators, public interest groups and political candidates can be accomplished without any displacement of current programming available via PBS or commercial stations" (emphasis in original).¹⁴ Indeed, as he noted, the only opposition to such concomitant deregulation would be from people who inappropriately want to "ride the audiences of commercial broadcasters."¹⁵

Unfortunately, some members of the Commission do want to pile on; they enthusiastically endorse the first part of the Decherd proposal but then immediately turn to what additional mandates they can impose on commercial broadcasters in the name of the public interest. But why aren't these additional public channels, together with traditional PBS stations and the programming many commercial broadcasters and abundant other media already willingly provide, more than sufficient to satisfy any reasonable "public interest" in broadcasting? Why not rely on willing, capable, and passionate public broadcasters rather than less well suited commercial broadcasters?¹⁶ Where is the Commission's evidence, beyond the mere whim of some of its members, that more is required?

In fact, together with the Decherd proposal, the Gore Commission should recommend recision of the recent ill-justified and constitutionally offensive requirement that all commercial broadcasters air a minimum number of hours of children's educational programming.¹⁷ To some this would be heresy, but it logically follows from the proposed substantial enhancement of public television. Indeed, the available alternatives for all sorts of public interest programming that these new public channels would represent would render the continuation of many public interest obligations on commercial broadcasters especially suspect as a constitutional matter.¹⁸

The Gore Commission has the opportunity to achieve something significant if it will do the hard work still necessary to present a viable, detailed recommendation built around the original Decherd proposal that will enjoy broad support and gain the approval of Congress and the American public. The Commission should do just this and declare victory. Instead, the Commission seems bent on continuing down an unwarranted regulatory path full of dissension and huge constitutional difficulty that likely will undermine the merit of the simpler approach. The Commission's first misguided step down this road is its resurrection of a "voluntary" code of conduct for broadcasters.

II. A "Voluntary" Code of Conduct

Gore Commission member Prof. Cass Sunstein chaired a subcommittee to propose a new code of conduct for broadcasters. As his report describes, the idea of a broadcasting code had a long history with several variations until, pursuant to a consent decree following an antitrust decision about industry standards for advertising, the National Association of Broadcasters (NAB) abandoned its code in the early 1980s.¹⁹ In the early 1990s, however, the NAB promulgated a "general and advisory" Statement of Principles regarding program content that remains in effect.²⁰ Prof. Sunstein's basic conclusion is that a new industry code of conduct addressing programming issues, but avoiding the sort of advertising restrictions that caused earlier difficulties, would not violate antitrust laws and, if necessary, Congress could specifically authorize such a code. This is the only relatively non-controversial aspect of the Gore Commission's approach to a code.

It would be one thing if a governmental body such as the Commission simply were to urge that, in the absence of any legal impediment, broadcasters should adopt their own code of conduct. The Commission might even suggest that a broadcasting code address certain matters such as education, public affairs, localism, minority interests, and the like. Public opinion and informed media critiques might increase the pressure for this sort of industry self-regulation. For broadcasters, heavily regulated by a government licensing agency not reluctant to resort to coercive "raised eyebrow" regulatory techniques,²¹ such action by the Commission would be problematic enough. But this is hardly the comparatively benign nature of what the Commission is proposing.

The outline of "core recommendations" that co-chair Ornstein distributed described the proposed code as "[v]oluntary, includes significant and direct public interest obligations" (emphasis added).²² This oxymoron immediately gives away the game. Twenty-two members of the Commission, each representing his or her own special constituency, spent a good deal of the June meeting collectively drafting in tortured detail a supposed "voluntary" code for broadcasters. This draft includes directives on responsibility toward children, election coverage, treatment of news and public events, community responsibility, controversial public issues, special program standards, and enforcement standards. True, the Commission was working from a draft Prof. Sunstein prepared based on the old NAB code with "additions and deletions."²³ But there is a world of difference between what broadcasters might draft for themselves today and what a governmental agency effectively imposes on them. Moreover, there is considerable irony in a Commission that is supposed to be focusing on the next era of digital television trying to resurrect and strengthen a defunct, decades-old code that applied in a wholly different technological and competitive media marketplace.

The Commission's draft begins by simply assuming the continued validity of the old public trustee/public interest regime without any thought of how the new cornucopia of digital electronic media affects the necessity or appropriateness of this. The sections on children and on special program standards take no account of the new (even if misguided) V-chip legislation; the greater control parents now supposedly will have might argue for greater creative freedom for broadcasters to elevate their programming above the bland, mundane, and silly even though incorporating more explicitly "mature" and, to some, offensive content. Moreover, why are there special mandates on broadcasters' responsibility toward children and not, for example, toward the elderly or some other arguably underserved group?

It's always easy to favor, and hard to oppose, anything ostensibly for the benefit of children. But, does the Commission have any idea as to which groups actually are underserved in any meaningful sense across the entire media landscape, or did these other groups simply not enjoy enough special pleading on the Commission? Subjective focus by a government entity on any particular program area is essentially arbitrary and improper. The new section on covering elections directs each station to conform to one approved method of political coverage; the provisions on the treatment of news and public events and on community responsibility are no less authoritarian. And then there are the monitoring, reporting, and enforcement provisions, all incorporated by a government commission into a "voluntary" code!

One might argue that this is too harsh an indictment of a "voluntary" code embodying many principles some broadcasters previously adhered to. But the problem is that broadcasters now operate in a dramatically different media marketplace and yet remain heavily regulated. Indeed, the great irony is that if the Gore Commission truly wants to encourage broadcasters to adopt their own code of conduct, the best way to do this would be to substantially deregulate the industry and eliminate most current public interest obligations. Otherwise, broadcasters legitimately will fear that any given provision voluntarily adopted quickly will be made mandatory at the slightest provocation. As Prof. Sunstein's historical survey notes, the FCC attempted just this with the old code and, although successfully resisted then by broadcasters, "there was a continuing pattern of interaction among regulatory proposals, legislative reaction, public concern, and self-regulation."²⁴ The challenging argument to recalcitrant broadcasters becomes: "Why do you object to this new government regulation? After all, it's no different than what you've already agreed to in your own industry code." And, how long will it take for various self-proclaimed "public interest" groups to demand participation in interpreting and applying the code, screening complaints, and monitoring compliance?

The fundamental fallacy inherent in the Commission's consideration of such a code of conduct for broadcasters is illustrated in some members' inappropriate references throughout their deliberations to "good" and "bad" broadcasters and the need to ensure that all broadcasters are at least minimally "good."²⁵ There are, to be sure, good and bad broadcasters, just as there are good and bad newspapers. But it is not the role of the state to identify the bad and to "improve" them; if the First Amendment means anything it precludes such state involvement. A free press must include room for the maverick, and even for irresponsible elements, both because this is the only way to assure true freedom for all and because occasionally those outside the mainstream make a real contribution.²⁶

The Commission seems eager to propose that something comparable to its code apply not just to broadcasters but throughout the electronic digital media.²⁷ But why not, then, to newspapers as well, especially since many papers now gather news via the spectrum and disseminate news via the Web? If we recoil at the notion of a government entity promulgating a code of conduct for newspapers, as PIC hopes even most Commission members would, then such a state-inspired code for broadcasters should be an equal anathema. Nothing about broadcasting, and certainly nothing about broadcasting in a digital age, justifies any distinction.

Consider in this regard the story of the Fairness Doctrine. What, one reasonably might ask, is wrong with broadcasters - or any journalists for that matter - being committed to covering controversial issues of public importance to their communities and, in doing so, adequately and fairly presenting significant contrasting views? The answer is: nothing, as a journalistic matter. Indeed, this is just what any mainstream, responsible journalist would aspire to. A huge problem, however, replete with constitutional and other difficulties of the first magnitude, arises when a government agency imposes such a requirement on any segment of the press and seeks to interpret and enforce it. This is the sad history of the Fairness Doctrine.²⁸

The same mindset that favors the Gore Commission's current approach to a code would favor resurrection of the Fairness Doctrine, and indeed the doctrine is effectively restated in the section of the proposed code on controversial public issues.²⁹ Advocates of a new FCC- or legislatively imposed rule no doubt would seize upon this language. Conversely, if we have learned the lesson of the inappropriateness of the Fairness Doctrine as a government mandate, then imposition of such a code also must be seen as misguided.

But, it will be objected, the code will be "voluntary." This is a chimera. One need only listen to the commissioners' deliberations and their talk of reporting requirements, disclosure requirements, mandatory NAB membership, enforcement mechanisms, legal teeth in the code, use of code non-compliance in license renewal, processing guidelines, and the like, coupled with the members repeatedly trying to reassure themselves that nonetheless the code will be "voluntary," to realize just the opposite. "Voluntary" here is just a euphemism for government regulation. Indeed, the enforcement section specifies that ongoing reports of code violations will be made "to Congress, the public, and FCC," yet immediately contradicts any point of such reports by proclaiming with bravado (and a suppressed wink) that "[t]hese reports will lack legal force and effect."³⁰

The Gore Commission's real view of its recommended code is further revealed by the attempts to make it an alternate repository for more explicitly mandatory provisions. Commission member James F. Goodmon, president and CEO of Capitol Broadcasting Company, Inc., presented the June meeting with a "specific minimum set of requirements for use of the digital spectrum by broadcast stations."³¹ This long list includes everything from ascertainment requirements to public service announcements and public affairs programming according to set quotas and schedules, free air time for candidates and restrictions on political advertising, and obligations based on multicasting, among others.³²

Perhaps Mr. Goodmon and his company are to be lauded for being willing to assume these obligations, but this is no reason for the government to require other broadcasters to follow his lead. Indeed, in the Commission's discussion of his proposals, while some thought they did not go far enough, it became clear that there would be no consensus among the other broadcasters for adopting these provisions as explicit mandates. Instead, others suggested somehow incorporating the provisions into the "voluntary" code of conduct, further indicating the true nature of that document.³³

If the Commission recommends a detailed code, especially one supported by some of the broadcaster members, clearly the NAB will be expected to adopt it. Broadcasters will have the burden of explaining any deviations from the Commission's own language and will be expected to adhere to all its specifics. Any reluctance will be met with pressure from the Administration, the specter of FCC retaliation at license renewal, and threats of legislation from Congress. This is the history of broadcast regulation, and this Administration knows well how to coerce broadcasters; witness the recent, effective arm-twisting over children's educational programming and V-chip ratings.³⁴ This is why in the current regulatory climate the Gore Commission's proposed recommendation of a code actually undermines the prospect of truly voluntary self-regulation by the industry.

III. Multiplexing

When their conversion to digital technology is complete, broadcasters will exchange their current 6 MHz analog spectrum for 6 MHz of digital spectrum. Since 6 MHz is 6 MHz, what is the rationale for imposing additional public interest obligations on digital broadcasters? There is none if they simply use the new digital spectrum for one high-definition channel. But, the argument goes, if for some portion of the broadcast day broadcasters instead use the digital technology to broadcast multiple standard definition channels (up to five, say, with current compression technology), then there should be a public interest "payback" for this alleged windfall.

This payback could be in the form of setting aside the fourth such channel for "robust" noncommercial public interest programming or paying someone else to provide such fare. That is, if broadcasters go beyond two multiplexed channels they also would have to dedicate one such "public interest" channel or buy their way out of this obligation. Or, the heightened public interest obligations proposed by the Commission might apply to all multiplexed channels proportional to the time they are on the air.

The underlying principle of a public interest "payback" for the supposed multiplexing windfall for broadcasters is fundamentally misguided, as one broadcaster on the Commission tried to point out simply to be thanked for his "dissenting voice."³⁵ But first consider some practical issues. The premise appears to be that the payback is for broadcasters' additional revenue streams. But additional revenue streams hardly means additional revenues, let alone profits. Nobody has any real idea of the financial future of digital broadcasting, multiplexed or not. Networks are precipitously losing market share (and their once-cherished pre-eminence), and broadcasting is struggling to compete in a greatly expanded video marketplace.³⁶

The best evidence before the Commission, which it has totally ignored, is that this trend will continue and that, after investing billions in the transition to digital, broadcasters will be worse off financially than they are now.³⁷ There are only so many sets of eyes among the American public, and the video audience already is highly fractured among proliferating broadcast networks, multichannel cable and satellite systems, VCRs, and the Internet. So additional broadcast channels do not mean additional viewers - where will they come from? It is not enough for the Commission to say that its proposals will take effect only if the future of broadcasting is more sanguine, because the disincentives their proposals will create may well preclude that possibility.

Moreover, just what is this "robust" public interest programming that the Commission insists the public wants or needs to see? We're never really told. Is there any evidence that more outlets for such programming are needed, especially with the advent of the second public interest channels for PBS under the Decherd proposal and the wide availability of other expanding media?³⁸ And where will such programming come from who will fund it and who will produce it? Most importantly, who will watch it in any numbers sufficient to justify such intrusive, counterproductive government regulation?³⁹ It is safe to say the Commission has no idea about any of this and is proceeding largely according to the mere whim of some of its members.

Beyond these concerns there are two related, fundamental flaws with the Commission's approach to multiplexing; indeed, these fallacies pervade most of the Commission's deliberations. First is the rather arrogant and elitist idea that the Commission, or any bureaucracy, should and constitutionally can determine through mandates what programming is available to the American people. If digital broadcasters in fact are successful in operating several multiplexed commercial channels it will be because they are offering programming that a segment of the public - not the Commission or any other government entity - actually wants to watch. This may be niche programming - news, sports, soap opera channels, and the like - or more choices of the same current genre of programming, or imaginative new approaches that broadcasting entrepreneurs devise. But attracting and appealing to this audience in and of itself is a wholly sufficient "payback" to the public for the additional spectrum being loaned to current analog broadcasters for their conversion to digital.⁴⁰

Similarly, the Commission's other mistake is to inadequately appreciate the contribution of broadcast television, perhaps because they do not value it as does the majority of the American public. Why did Congress, under considerable political pressure, structure as it did the transition to digital by relying on current broadcasters? Congress surely wanted to encourage high-definition television, but it also did not preclude other uses of the digital spectrum, including multiplexing. For some such uses - the ancillary and supplementary services that might include subscription television, pay-per-view, data transmission, and the like - broadcasters will be assessed fees from the subscription revenues generated. With multiplexed channels, broadcasters enjoy only advertising revenues but still have to compete with multichannel cable and satellite operators who enjoy both advertising and subscription revenue streams. A major priority of Congress long has been the preservation of free, local, universally available, over-the-air television. This was the key basis for the must-carry rules and the Supreme Court's approval of them.⁴¹

Congress thus perhaps realizes what the Commission refuses to: Broadcast television as we know it may be a dinosaur. If digital broadcasters multiplex it will be to compete and survive in a highly dynamic and competitive video media marketplace.⁴² There is no gift to broadcasters that justifies an additional payback. The "payback" already exists in the form of free, universally available channels that will exist because they serve the public interest as best and most appropriately measured in the media marketplace - not by a government commission representing a series of special interests.

A free press does not buy its freedom through content-based "paybacks" mandated by the government. Newspapers make no such payments for their use of spectrum to gather and disseminate news, for their use of public roads or sidewalks for distribution of papers, or for the environmental burdens of newsprint. The "payback" is serving the needs and interests of readers by earning success in the market. There is no reason to treat broadcasters any differently - certainly the Commission has offered none - and the Constitution demands no less.

IV. Political Discourse

The Gore Commission had its genesis in the Administration's desire to craft a scheme to provide free air time for political candidates as part of a perceived broader need to reform campaign financing.⁴³ This is somewhat ironic because, while the need for campaign finance reform may be real, this problem has absolutely nothing to do with broadcasters' conversion to digital, unlike some other issues the Commission is considering. So, the only rationale for imposing new obligations now on broadcasters is that some people think it a good idea and, as usual, broadcasters are an easy target. But a good idea is not sufficient justification for controlling the editorial discretion of broadcasters.

At any rate, the idea of explicitly requiring free air time for candidate ads seems not to have consensus support on the Commission.⁴⁴ Instead, the Commission proposes to require that, in the 30 days prior to an election, each broadcaster provide five minutes per night of "candidate-centered discourse." Broadcasters would be free to experiment with formats and to choose the candidates to highlight, with a vague commitment to fairness but a congressional waiver of the equal opportunities provision. It is not clear what counts as this "candidate-centered discourse," but it apparently does not include debates or standard news coverage.⁴⁵ Why? Why should we focus on this particular, ill-defined form of coverage, and who will monitor broadcasters and decide what programming counts? Moreover, how much such political programming already occurs; how do we know additional government mandates are required? Once again the Commission is proceeding simply on the basis of what some members think would be a good idea without any real study or analysis. Even if we agree that we all would like to see broadcasters, and the rest of the media, do a better job of covering political issues and campaigns, this does not mean that any particular governmental intervention is appropriate or legitimate.

In addition, the Commission is considering recommending repeal of the lowest unit rate for candidate ads that supposedly is burdensome on broadcasters to implement. Such repeal would be in exchange for a one-for-two deal: for every two minutes of political advertising time sold at market rates a broadcaster would donate one minute of free, comparable time to a time bank, which time then would be divided equitably among political parties to be distributed to candidates as the party sees fit. This would apply only to state and federal general elections, not primaries, and one prime objective apparently is to strengthen the role of parties.⁴⁶

Based on estimates that lowest unit rate costs broadcasters about 30 percent of revenues they otherwise would earn, the exchange seems to be a financial wash for broadcasters. But if so, it also must be a financial wash for candidates as a whole and therefore won't reduce the overall costs of campaigns. It is not clear which candidates this scheme would aid. Perhaps some who are disadvantaged under the current system would be helped, and perhaps this would be a good idea, but certainly those candidates who lose the current discounted price for their television ads would suffer restricted access to the public.

Moreover, some broadcasters on the Commission expressed preference for the current lowest unit rate scheme.⁴⁷ Perhaps this is because lowest unit rate by itself does not require that broadcasters sell any time at all. It doesn't interfere directly with broadcasters' editorial discretion, just with their revenues, and therefore is less constitutionally troublesome. Under the proposed one-for-two deal, however, the payment a broadcaster has to make is in broadcast time, and this does compromise editorial discretion and indeed cedes control to political parties. This may be a subtle point in application, but the principle is an important one, and the purpose of the whole enterprise is quite amorphous.

A legitimate argument can be made that the media in general, and broadcasters in particular, ought to do a better job of covering campaigns and political issues. In recent years some major broadcasters have been devising some innovative approaches on their own volition and sometimes at odds with candidates themselves who would prefer a little less exposure to the electorate.⁴⁸ We ought to let this experimentation continue, unfettered with even well-intentioned directives based on political theorizing that is not the proper province of the Commission. Media coverage of politics is a matter for a variety of approaches by editors, including broadcasters, and not for edicts from a governmental commission.

* * *

Broadcast television in America has been an incredible success story but, like all media, it is far from perfect. Television could stand considerable improvement along a host of programming issues, many of them discussed by the Commission. Especially as we enter the digital age with its abundance of choices, public and private entities can critique the media and advise, encourage, cajole, and exhort broadcasters to better performance.⁴⁹ Government even may be able to carefully subsidize some components of this. But the state may not command performance even in the guise of mere "voluntary" compliance or spurious "choices" offered broadcasters.

This fundamental principle escapes the Gore Commission, probably because of our society's long history of viewing broadcasting as somehow different and subject to government control. The Commission has a wonderful opportunity to correct this misperception for the new era of digital media while at the same time making an important contribution in a minimally intrusive way. The Commission should focus on expanding and strengthening public television while finally welcoming commercial broadcasting to the ranks of a truly free press. This would be a meaningful and fitting fulfillment of the Gore Commission's mandate.