December 18, 1998

The main reaction of The Media Institute's Public Interest Council (PIC) to the Gore Commission's final report is one of profound disappointment.

The Gore Commission has missed perhaps the best opportunity in 70-plus years of broadcast regulation to critically examine the central first principle: Why should broadcasters in a 21st century of indisputable media abundance continue to be relegated to second-class constitutional status and regulated, extensively and intrusively, by the federal government, all in the name of the "public interest?"

The immediate impetus for creation of the Commission was to do something about campaign finance reform by requiring that broadcasters provide free television air time to candidates for political office. This idea itself is quite dubious, both pragmatically and constitutionally. But the Commission's mandate was far broader, encompassing all public interest obligations for digital broadcasters.

In his keynote address at the Commission's first meeting, Vice President Gore emphasized the broad scope of the Commission's work and urged that the discussion begin with "first principles." In particular, 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." Instead of focusing on this obligation, the Commission has relied on wax museum arguments to perpetuate a regulatory system that has outlived any purpose it once may have served. The Commission's report on digital broadcasting in the 21st century is trapped in mid-20th century thinking.

In a sense one can understand the Gore Commission's failure in this regard -- it is a very difficult task of considerable intellectual complexity to develop a logically, empirically, and constitutionally sound rationale for continued government regulation of digital broadcasting in the next century. As many on the Commission realized, the historical justification premised on the supposed scarcity of the broadcast spectrum is seriously outmoded in a digital era of burgeoning, and technologically convergent, forms of electronic mass media. Whatever legitimacy scarcity as a regulatory basis once might have had, courts increasingly are indicating that this old rationale is suspect. And it is far from clear what justifications if any can replace it to sustain broadcast regulation in the 21st century under what likely will be a heightened level of judicial review.

Moreover, the Gore Commission was ill suited to this fundamental task, comprised as it was largely of representatives of a broad array of special interests -- a "Noah's Ark" theory of representation according to one member -- each with his or her own stake in some form of continued government regulation of broadcasting. The Commission included no economist, no technology expert, and no journalist with a strong news management background. The only academic and constitutional scholar on the panel advocates 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. His idiosyncratic views were not balanced by a more mainstream approach to First Amendment jurisprudence.

Shortly after the Commission's first meeting, PIC urged President Clinton to rectify these deficiencies to no avail. And the Commission lacked the resources and professional staff to otherwise supplement the efforts of its members. Most glaringly, the Commission lacked any strong voice for deregulation of broadcasting and greater First Amendment freedom for broadcasters more on a par with that of print media.

The Gore Commission's report reflects this imbalance in its membership. A majority of the Commission never met a broadcast regulation it didn't like. The report includes 10 specific recommendations for increased regulation of broadcasting but not a single suggestion of where regulation could be reduced or eliminated. Given the technological explosion in new forms of mass media, it is astonishing that the Commission couldn't find, in the plethora of existing broadcast regulations, a single example of regulation that goes too far, is too invasive of fundamental principles of a free press, and therefore should be eliminated. The Commission acknowledges that "the television medium ... [is becoming] more versatile, flexible, and abundant," but then ignores the import of this basic fact that undermines the need for, and appropriateness of, government regulation. Instead, the Commission began with the false premise that all current broadcast regulation must apply in the digital era and that its only task was to consider what additional public interest obligations should be imposed. This bias improperly skewed the Commission's deliberations and its final report.

It is worth highlighting a few of the more troubling aspects of the Commission's report that will be addressed in more detail in PIC's forthcoming response.

1. First, the Commission is advancing its recommendations in the name of the "public interest," the basic statutory touchstone for broadcast regulation since the Radio Act of 1927. But the Commission made no attempt to define this notion in the context of such regulation or to meaningfully justify any of its recommendations. Instead, the Commission proceeded essentially by whim of its members, forming a consensus around whatever fit a majority's concept of the "good" in broadcasting according to their own subjective and somewhat arbitrary tastes and values.

Thus educational programming for children and public affairsŒ programming are so "good" they need to be mandated in quantity on broadcast television, but sports programming and drama can be left to the marketplace and broadcasters' discretion. Moreover, the American public must share the commissioners' tastes and values as completely and intensely as they do, and all broadcasters must be minimally "good" as specified in the Commission's proposed minimum public interest requirements. This is bureaucratic elitism bordering on authoritarianism and fundamentally inimical to the First Amendment's vision of a free press; otherwise we may as well reform the supermarket tabloids while we're at it.

2. The Commission purports to eschew "command-and-control" regulation in favor of flexibility and "voluntary self-regulation," such as the "voluntary" code of conduct it proposes for broadcasters and broadcasters' "voluntary" provision of air time for "candidate-centered discourse" each night in the 30 days before an election. But as FCC Commissioner Harold Furchtgott-Roth recently acknowledged, when it comes to broadcast regulation, the term "voluntary standards" often is a euphemism for coerced behavior and such standards "provide a dangerous mechanism for the evasion of statutory limits on [the FCC's] delegated authority." Moreover, neither minimum public interest standards nor a code of conduct have any relation to the transition to digital broadcasting, so there is no reason for the Gore Commission to propose them other than the regulatory zeal of many of its members.

3. A good deal of the Commission's deliberations and recommendations are based on a dangerously flawed premise: namely, that the temporary grant of digital licenses to incumbent analog broadcasters is a "giveaway" and potential "windfall" for the broadcasters in return for which they should be required to give something back to the public in the form of increased public interest obligations. This is fallacious on a number of grounds, not only because, as the Commission admits, it is not at all clear that moving to digital will be a net financial benefit for broadcasters.

First, Congress relied on current broadcasters to accomplish the transition to digital television in the most efficient and non-disruptive manner. Congress wished to encourage high-definition television, but also did not preclude other uses of the digital spectrum, including multiplexing. When supplying ancillary and supplementary services, broadcasters will be assessed fees from the subscription revenues generated. If broadcasters multiplex, they still will have to compete in a highly dynamic and fiercely competitive multichannel media marketplace. If successful, they will provide the long-sought and much needed competition for cable television.

At the same time, digital broadcasters also will fulfill another major congressional priority by preserving free, local, universally available, over-the-air television, the key basis for the cable must-carry rules and the Supreme Court's approval of these rules. Such service will exist because it serves the public interest as best and most appropriately measured in the media marketplace -- not by a government commission representing a series of special interests. Meeting these needs is an entirely sufficient "payback" for the so-called "gift" of additional spectrum for the transition to digital.

4. The Commission's single-minded focus on increased regulation of broadcasting obscures and threatens the one truly positive idea to emerge from its deliberations. Robert W. Decherd, chairman, president, and CEO of A.H. Belo Corporation, proposed that in each television market the 6MHz of analog spectrum that public television stations are slated to return to the government instead be retained by the PBS station, or another suitable entity, and dedicated to educational and instructional purposes going well beyond what such stations currently offer. If programming of such stations were adequately financed -- as it should be if it is truly in the public interest --- then this, together with the programming many commercial broadcasters and abundant other media already willingly provide, should be more than sufficient to satisfy any reasonable "public interest" in broadcasting. Commercial broadcasters then should be relieved of most of the intrusive public interest obligations with which they now are saddled.

Why not rely on willing, capable, and passionate public broadcasters rather than less well suited commercial broadcasters? The Gore Commission has no reason, beyond the whim of its members, to demand more. And, 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.

The Gore Commission's final report does include a version of the Decherd proposal. But rather than making this the core of its recommendations, and thereby both expanding opportunities for public interest broadcasting and enhancing the First Amendment status of all broadcasters, the Commission has piled on additional regulations wherever one looks. This squandered opportunity will only create dissension and huge constitutional difficulty that likely will undermine the merit of the simpler approach.

5. Finally, the Gore Commission proposes another euphemism for regulation much akin to its purported reliance on voluntary self-regulation. Under its "pay-or-play" model of regulation, broadcasters could pay a fee -- a percentage of their gross revenues, say -- to buy their way out of some, but not all, public interest obligations. The money raised would be used to support an official notion of public interest programming. The Commission pretends that this scheme might be more palatable than more direct regulation because it gives broadcasters a "choice." But the "choice" really is either to run governmentally favored programming or to pay a "fine." So, "pay-or-play" is just a content-based tax on programming and suffers the same constitutional difficulties as the sort of "command-and-control" regulation the Commission says it wants to avoid.

Moreover, the pay or play proposal reveals the true nature of the public interest in broadcasting: It's all just a question of money. Yes, we would like each and every licensee to be at least a minimally "good" broadcaster, as officially defined, but we will settle for money instead that we can use to support governmentally favored programming.

But if there is a compelling case to be made that the public wants and needs certain programming and broadcast services that for some inexplicable reason the media marketplace is not already providing -- usually referred to simply as market dysfunction without explanation or analysis -- then the public through its elected representatives should be willing to adequately support this cause through general tax revenues. There is no reason for the government to avoid its appropriate accountability for this use of public funds by extracting unwarranted payments solely from broadcasters.

Despite these well-deserved criticisms of the Gore Commission, PIC does not mean to imply that its members were anything but well-meaning, hard-working, and conscientious in performing their considerable public service. Nonetheless, it is a shame that the Commission was not better constituted and more inclined to address the fundamental issues of digital broadcasting to make its final report more useful.

As it is, the report essentially is just an unsubstantiated "wish list" for digital television broadcasting from people with strong regulatory inclinations to shape broadcasting to fit their own image of what it should be. Many aspects of that image may be laudable, but this is not how a free press in America operates. If the FCC begins to study the issue of public interest obligations of digital television broadcasters, as it likely will do next year, that Commission will have to start from scratch in an entirely de novo proceeding. The Gore Commission's work unfortunately adds nothing.

The Gore Commission ignored the single most recent and salient pronouncement from the Supreme Court: "[T]he FCC's oversight responsibilities do not grant it the power to ordain any particular type of programming that must be offered by broadcast stations." Turner Broadcasting System, Inc. v. FCC, 114 S. Ct. 2445, 2463 (1994). The FCC will have to begin with this fundamental proposition which, PIC hopes, soon will be widely recognized as the First Amendment truism it is.

The Public Interest Council is a Media Institute working group of constitutional scholars and communications attorneys established to follow the activities of the Advisory Committee on Public Interest Obligations of Digital Television Broadcasters(Gore Commission). Members include Robert Corn-Revere, Esq., Prof. Robert M. O'Neil, J. Laurent Scharff, Esq., and Prof. Laurence H. Winer.