The Myth of Specialness
The Myth of Specialness:
Why Broadcasting Is Entitled to Full First Amendment Protection
Paul Riismandel
Institute of Communications Research
University of Illinois at Urbana-Champaign
Mailing Address: 607 W. Springfield Ave. Apt. 9
Champaign, IL 61820
Phone: 217-351-5785
e-mail: [log in to unmask]
The Myth of Specialness:
Why Broadcasting Is Entitled to Full First Amendment Protection
Introduction
Perhaps the most contradictory element of modern First Amendment law is the
treatment of broadcasting as compared to the print press. For the better part
of the 20th century, government has been held at bay when it comes to regulating
the print press. The Supreme Court has made it very clear that the most logical
interpretation of the First Amendment for the print press is
laissez-faire-government hands off. Yet the much younger entity, the broadcast
press, does not enjoy such broad protection. The Court has ruled that
government regulations that control use of and access to the broadcast press are
constitutional. In order to find such regulation constitutional the Court has
had to find some crucial distinction between print and broadcast, lest the
restricted First Amendment of broadcast be then applicable to print, or the
Court be caught in a contradiction.
In essence, the Court has found broadcast to be a special case. This is based
upon the reasoning that because broadcasting relies upon the scarce resource of
spectrum to exist, and because it has unusual powers, broadcasting cannot be
left unregulated. To leave it alone would mean that access to this powerful
medium would lie only with those lucky enough to own stations. It is supposed
that these broadcaster's actions and programming might fail to serve-if not
present a significant threat-to the public's health and welfare, and even
representative democracy, if the immense power of broadcasting as a medium were
left unchecked in private hands.
Their durability and currency suggests that these are powerful arguments. One
might suppose their power is somewhat due to their being commensurate with
conventional wisdom. But this does not mean they are correct. In fact, when
these two arguments are analyzed with their assumptions laid bare, one finds
that they have very little basis in fact. Indeed, it becomes clear that the
spectrum is, a priori, no more scarce than any other resource, and that the
notion of the power of broadcast is an attractive, but essentially unproven
assumption, not a truth. Rather than facts, these arguments are more like
myths, passed on from Court to court, justice to justice, reinforced with every
retelling. Yet these myths justify the second-class citizen status of
broadcasters, compared to print; they justify the violation of broadcasters'
First Amendment rights.
However, this is not to say that the contemporary broadcast media industry is
ideal, or will become ideal if only government would take its hands off. The
modern broadcast industry is the creation of its regulatory environment as much
as it is a product of the American social and economic system. Problems of
access and of media content are real, and do potentially impact our social and
political lives. There are those who use these facts as justification for
regulating not only the broadcast, but also the print press, using government
power to improve inadequate access to the press. However, at best, these are
only band-aid solutions-pragmatic repairs to a flawed system.
Instead, what is necessary is for the government to not be itself an impediment
to access to the airwaves. As primary regulator of broadcasting since the
1920s, it has been government that has fundamentally restricted access. That it
has done so in collusion with industry and political aims should be no surprise.
But that can hardly be a recommendation for more regulation.
This paper will examine and deconstruct the myth of the specialness of
broadcast, demonstrating the emptiness of the rationales of scarcity and power
that support this myth. Two broader rationales for regulating the press for the
purpose of democratic goals also will be explored and critiqued. These analyses
lead to the conclusion that in the realm of content and access regulation full
laissez-faire First Amendment protection should be afforded both the print and
broadcast press. Practical, but principled recommendations for how such might
be realized will be sketched and offered.
Like the paper and ink used to produce a newspaper, the electromagnetic
spectrum is the raw ingredient, the medium and foundation, for broadcasting.
Paper and ink are tangible commodities; they may be warehoused, created and
destroyed. Spectrum is not subject to any of these manipulations; it is
intangible and ethereal. Still, like any material commodity, spectrum may be
allocated and utilized, but such management and use changes nothing about the
spectrum. If one broadcasts a radio signal for an hour on a segment of
spectrum-a particular frequency or range of frequencies-after that broadcast has
concluded that segment still exists, essentially unaltered from its state before
the broadcast. Someone else can easily come along and use that same piece of
spectrum to make another broadcast, and the spectrum will bear no wear for the
use. No such thing can be done with paper and ink without significant
additional processing and labor.
The only inherent limit on the broadcast use of a frequency in the spectrum
that resembles the limits of material commodities is that, by and large, use at
any given point in time, within some area of geographical space, must be
exclusive. If broadcasts are to be receivable and coherent, only one
broadcaster can use a given frequency at a given time. The addition of one more
broadcaster to a frequency already in use renders both broadcasts useless.
Thus, it should be obvious that a method for dividing up the electromagnetic
spectrum and assigning it to particular uses and users is necessary in order to
guarantee that broadcasts are useful and the spectrum does not devolve into
"chaos," created by "permitting anyone to use any frequency at whatever power
level he [wishes]."[1]
Nearly one hundred years after the discovery of radio, there is a great deal
known about the nature of the electromagnetic spectrum, including its useful
size, and what it can be used for. Yet, the contemporary judicial conception of
the spectrum undergirding its rationale for the regulation of broadcast content
is almost sixty years old. In 1943 the Supreme Court said, in NBC v. U.S., that
it was constitutional for the Federal Communications Commission (FCC) to
regulate the content of radio broadcasts based upon the standard of the "public
interest, convenience and necessity." The constitutionality of such regulation
that is held unconstitutional for the print press hinges upon the notion that
the broadcast spectrum is a scarce commodity:
Unlike other modes of expression, radio inherently is not available to all.
That is its unique characteristic, and that is why, unlike other modes of
expression, it is subject to governmental regulation.[2]
While we can question the true scarcity of broadcast frequencies available in
1943, it is more useful to note the changes in availability-an obvious
prerequisite for evaluating scarcity-since that time. When Congress passed the
Radio Act of 1927, approximately half of the usable spectrum was allocated for
broadcast use, which at the time was limited to AM radio. Now, sixty-two years
later, only about two percent of the usable spectrum is allocated for broadcast
use, which currently includes AM and FM radio along with VHF and UHF
television.[3] For the sake of comparison it is important to understand that
one television channel-of which there are currently seventy-uses six times the
spectrum space of the entire AM band.[4]
Obviously a great deal more broadcast spectrum has become available since the
Court advanced the scarcity rationale.[5] Yet this rationale stills stands. As
recently as 1969, in Red Lion v. FCC Justice White elaborated and updated the
scarcity rationale:
Scarcity is not a thing of the past. Advances in technology_ have led to more
efficient utilization of the frequency spectrum, but uses for that spectrum have
also grown apace_. [such that] the radio spectrum has become so congested that
at times it has been necessary to suspend new applications."[6]
This reasoning has since been carried forth substantially unquestioned by the
Court in CBS v. DNC in 1973[7] and FCC v. League of Women Voters in 1984.[8]
Quite clearly, scarcity is a very powerful concept. The term conjures up images
of bread lines filled with hungry masses waiting to get just a morsel of food.
But what does it mean for spectrum to be scarce? Although he did not address
the concept directly, Justice White gave a simple definition when he stated that
an "unabridgeable right to broadcast" fails to exist when "there are
substantially more individuals who want to broadcast than there are frequencies
to allocate."[9] Put more succinctly: spectrum scarcity exists when demand
outpaces supply.[10] While it is difficult to argue with this definition, its
simplicity makes it difficult to relate the use of the term with respect to
broadcast spectrum to its use in describing other commodities. It is probably
reasonable to say that while there are millions of automobiles in the United
States there are probably more individuals who want to drive one than there are
cars to allocate them. By Justice White's reasoning this would make autos
scarce, providing the rationale for their allocation to be governmentally
regulated.
More pertinently, Justice White's definition of scarcity would seem to be easily
applicable to the print press. In order to evaluate this, the question to ask
is: Are there more persons who wish to be published in a newspaper than there
are newspapers? In 1985 there were 1750 daily newspapers serving a population
of almost 250 million persons in the U.S., [11] making for a ratio of
approximately one newspaper for every 142,000 persons. Even assuming that as
few as a half or a quarter of the 142,000 will desire to be seen in print, this
ratio reasonably seems to qualify as scarce. For comparison, in 1985 there were
1220 television stations and 9871 radio stations in operation. [12] When these
totals are combined, we find that there was approximately one broadcast station
for every 22,500 persons-roughly six times the availability of newspapers. By
the numbers, 1:22,500 certainly doesn't define an abundant commodity, however
neither does 1:142,000. Yet only one of these ratios-the smaller one-is defined
as scarce by the Supreme Court.
Obviously, then, pure numerical availability, as defined by supply and demand,
cannot be all that constructs the crucial notion of scarcity, otherwise the
daily newspaper should certainly qualify for government content regulation. In
Miami Herald Publishing Co. v. Tornillo (1974), the Court clearly acknowledged
that the supply of daily newspapers was shrinking.
The elimination of competing newspapers in most of our large cities, and the
concentration of control of media that results from the only newspaper's being
owned by the same interests which own a television station and a radio station,
are important components of this trend toward concentration of control of
outlets to inform the public. The result of these vast changes has been to place
in a few hands the power to inform the American people and shape public
opinion.[13]
But that Court found that such a dwindling supply did not justify enforcing a
right of access to the print press. Noting that a right of access requires
either voluntary consent or governmental coercion in order to be enforced, the
Court states that
[i]f it is governmental coercion, this at once brings about a confrontation with
the express provisions of the First Amendment and the judicial gloss on that
Amendment developed over the years_. The clear implication has been that any
such a compulsion to publish that which "'reason' tells them should not be
published" is unconstitutional.[14]
Although written only five years after Red Lion, the Tornillo decision appears
to embrace a different treatment for scarcity. Or, perhaps scarcity is not at
issue in Tornillo. In this decision the Court does not ever conclude that
newspapers are indeed scarce. In fact, the term scarce or any of its variants
are actually nowhere to be found in this decision. It would seem, then, that
the Court does not view the print press or any of its vital components,
material-paper, ink, presses-or otherwise-writers, editors, capital-to be
commodities, or at least not commodities that are subject to scarcity.
Certainly, scarce is not a term one would use to describe the availability of
ink or paper; they are not free, but neither are they especially expensive.
Even the Court acknowledges that economic forces other than the price of ink and
paper have made newspapers expensive to produce and access to them relatively
unavailable.[15] It certainly stands to argue that these same economic forces
apply to broadcast stations, and are also somewhat accountable for their
numbers. Yet broadcast stations are called scarce and newspapers are not. The
only component of a broadcast station that substantially differentiates a
broadcast station from a newspaper that makes any difference is that it uses
spectrum-that is the only commodity which can be called scarce.
In the economic sense, scarcity of commodities is a nearly universal condition
regardless of arena,[16] but apparently it is of constitutional concern only
when it applies to something as intangible and ethereal as the electromagnetic
spectrum. This perception is most likely due to a lack of understanding of the
nature of the spectrum and how it becomes scarce. Scarcity is not a natural
condition of the electromagnetic spectrum any more than it is a condition of
trees used for paper. In fact, it is less so, since spectrum does not have to
be cultivated to be created, nor recycled to be reused. But, like any
commodity, the spectrum must be managed in order to be used efficiently and
effectively. If land is not allocated for growing trees, there is no guarantee
it will be available to do so, and thus there might be no paper. If spectrum is
not allocated for broadcast, there is no guarantee that it will not be used
some other way, leaving it unusable for broadcast. Just as allocation of trees
dictates the eventual availability of paper, it is in this act of allocation
that the greatest control over the state of the spectrum exists for its use for
any given purpose. It is in allocation where scarcity can be effectively
created or destroyed.
Since the Radio Act of 1927 it has been the duty of the FCC (then known as the
Federal Radio Commission) to allocate the electromagnetic spectrum. Therefore,
if there is scarcity of spectrum, it is either due to a natural condition of the
spectrum or due to the allocations made by the FCC. As aforementioned,
broadcast has gone from comprising half the useful spectrum in the 1920s to two
percent of it presently,[17] while the size of the broadcast spectrum has itself
grown by a factor of several thousand.[18] These figures already indicate that
quite a bit more spectrum has been allocated for broadcast, and that there might
be even more suitable to be allocated additionally. However, beyond these
simple calculations, there is an analysis that shows that the FCC has not
effectively apportioned amongst the various broadcast services the spectrum
already allocated for broadcast. Due to conservatism, broadcast industry
pressure, and plain myopia the FCC has allowed vast amounts of broadcast
spectrum to go underutilized, while other bands were overcrowded or nearly full.
Indeed, broadcast spectrum scarcity is a government agency creation, and not an
a priori condition. Everyone cannot broadcast because "the government will not
allow it,"[19] not because it is somehow fundamentally impossible.
When the FRC (FCC) was created in 1927, the broadcast band was limited to AM
radio, which provides for a total of 107 channels in the band. This is not the
total number of possible stations in the country; that number is dictated by how
stations' signals propagate-partially defined by the spacing of stations
geographically with respect to one another-and the extent to which stations
placed adjacently on the dial interfere with each other. High powered AM
stations can generally broadcast over large distances-so-called "clear channel"
stations can cover most of the continent-and any AM stations adjacent to one
another on the dial can interfere easily. Thus, the actual number of stations
possible in a given area is less than 107, while several thousand stations
conceivably can broadcast nationwide.[20] Obviously, at the time of NBC there
were clear technological constraints to broadcast spectrum availability.
As soon as 1935, however, FM radio broadcasting technology had been patented,
offering several advantages over AM: better fidelity, a static-free signal,
minimized inter-station interference, not to mention the potential to have more
stations. [21] However, the broadcast industry leader, RCA, refused to support
this new technology because it posed significant threats to the dominance of AM,
RCA's own patents, and its hopes for the allocation of television spectrum.[22]
As a result, the FCC ignored FM until the end of the decade when commercial
interests began to experiment with FM transmitters and request spectrum space.
Finally, in 1940 the FCC allocated 42-50 Mhz.-with 42-43 Mhz. allocated for
educational non-profit use-for FM broadcasting as a supplementary, rather than
replacement, service to AM. FM stations were limited in their broadcast power
in an effort to promote localism, and avoid the perceived threat of national
networks prevalent on the AM band.[23]
FM was not left alone for very long, however. World War II military experiments
expanded the usable spectrum, although the military largely held the newfound
frequencies for itself.[24] The FCC then found itself in a battle with the
Interdepartmental Radio Advisory Committee, which had completed a post-war
spectrum allocation table without consulting the Commission. In defense, the
FCC convened its own allocation hearings, during which the issue of allocations
for television was raised.[25] As a result of these hearings, in 1945 the FCC
moved the FM band to its current home: 87.9 - 107.9 Mhz. This move endangered
the economic viability of FM by forcing existing broadcasters to update
transmitters and by rendering a half a million radio receivers obsolete. The
FCC claimed that the original FM band was susceptible to interference from
sunspot activity, but the real reason was that the most entrenched broadcasters
had their interests in AM radio and were much more interested in the allocation
of the former FM band spectrum for television-sunspots and all.[26] Although it
did not fully squash the potential of FM, the established broadcast industry
showed its obvious lack of concern for alleviating scarcity while the FCC paid
lip-service to the notion of fostering diversity as it catered to the whims of
the industry. Consequently, AM broadcasters, originally denied FM licenses,
were allowed entry into FM in order stimulate its use, and the band became
largely a secondary service for these broadcasters, simply duplicating their AM
programming with a more static-free signal.[27]
The allocation of television spectrum provides an even more vivid picture of
engineered scarcity that all but guaranteed the creation of a three-network
television oligopoly.[28] In 1952 frequencies for television were allocated in
both the VHF and UHF bands, market by market. Of the two types of stations, VHF
is more desirable because it requires one tenth the power to reach the same
audience as a UHF station. But the FCC tended to allot no more than three VHF
stations to all but the largest markets in the nations, allowing the three major
television networks to program nearly exclusively using VHF stations, especially
in the largest, most lucrative markets. As a result, by 1960 only 15% of all
commercial television stations were UHF despite the fact that UHF comprised 70%
of the frequencies allocated for television. [29] During the latter part of the
1950s the FCC forwarded a plan to "de-intermix" frequencies in seven major
markets, making these markets either all VHF or all UHF, so that UHF stations
would not be at a disadvantage in their markets. The industry, dominated by the
three major networks, actively resisted this plan, thus it was never
enacted.[30] In an effort to save the viability of the UHF band and to placate
VHF interests, Congress passed the All Channel Receiver Act of 1962 requiring
all televisions shipped through interstate commerce to be equipped to receive
UHF as well as VHF television channels. The act marked the end of any FCC
efforts to de-intermix television.[31]
Due to the network domination of VHF, the higher costs associated with UHF
transmitting and the head start VHF had in the receiver market, the UHF band
still remained underutilized into the 1970s. This prompted the FCC to
reallocate the upper part of the band, channels 70-83, to land-mobile (cellular
telephone) use.[32] Although it is understandable that the Commission would not
want to leave large segments of the broadcast spectrum unused, it did a
disservice to promoting diversity and relieving scarcity. The Commission
effectively wrote off any potential that it could be used, by allocating it for
non-broadcast use. That this use was for a service like cellular telephones
gives the impression that the FCC was more interested in serving cellular
telephone profits than broadcast diversity.
The FCC attempted to better utilize the UHF band in 1982, when the Commission
approved the creation of Low-Power Television stations (LPTV), allowing for as
many as 4000 new stations nationwide on the UHF and VHF bands. These more
inexpensive stations are licensed to operate at power levels lower than
previously allowed, and are designed to cover small areas of 10-15 miles.
Contrary to the FCC's previous first-come, first-served and competitive hearing
licensing structure, LPTV licenses were assigned on a lottery basis. This turned
out to be a very successful move by the Commission, resulting in 1500
applications by September 1983. After an application freeze that ended in 1987,
another 1000 applications were received by the Commission in 1988.[33] As of
September, 1998 there were 2101 LPTV stations on the air: 1545 UHF and 556
VHF.[34]
Despite the success of LPTV to foster better use of the UHF television band, the
future of this service remains unclear in the wake of high-definition television
(HDTV), also known as digital television (DTV). The new HDTV service, approved
by Congress in the Telecommunications Act of 1996, creates the ability for
broadcasters to transmit a single high-quality digital picture signal, or as
many as four or five standard definition digital signals simultaneously, but
also requires the adoption by broadcasters of expensive new equipment, as well
as the purchase of new receiving equipment by the public. The move to HDTV also
requires the reallocation of spectrum, especially crucial for a transition
period, during which broadcasters will be transmitting both their
standard-definition analog signal along with their new HDTV signal.[35]
However, in order to make room for broadcasters to provide two different
signals, existing LPTV stations may need to be moved from their current channel
assignments or eliminated altogether. In the process of accommodating HDTV, UHF
channels 60-69 will be reassigned to both HDTV and cellular telephone use,
bringing about a total 28% reduction of the UHF band since its inception. The
FCC estimates that 35-45% of all LPTV stations may have to cease operation in
order to make room for HDTV.[36]
What makes the loss of LPTV stations to make way for HDTV all the more
remarkable is that established full-power broadcasters have been granted their
new spectrum space, which permits them to broadcast up to five times as many
channels of programming, for free. When former Senate Majority Leader Bob Dole
attempted to require that broadcasters have to pay for the additional spectrum
space, they "wrapped themselves in the public trustee mantle"[37] and actively
resisted such a move, reportedly spending almost seven million dollars to lobby
congress to provide the spectrum space for free. The former FCC chairman, Reed
Hundt, who opposed the spectrum giveaway, characterized the move as "the largest
single grant of public property to a single industry in this generation," due to
estimates that had the spectrum been allocated by auction it could have netted
nearly seventy millions dollars from broadcasters. [38] The sacrifice of LPTV
operators for the benefit of large media conglomerates like Westinghouse (CBS),
Disney (ABC) and General Electric (NBC) is all the more alarming when one notes
most LPTV stations are operated by non-profit or educational organizations, or
by small businesses.[39]
The fact that the FCC has been able to reallocate 28% of the UHF band for other
uses since 1952 makes obvious that scarcity, at least as far as open available
channels are concerned, has never been an issue for UHF. Assuming one had the
available capital to start and operate a broadcast station, odds were good that
an available UHF channel could be found in almost any market. In 1980-prior to
the allocation of LPTV-there were a total of 176 usable vacant UHF channels in
the top 200 largest, and most congested, broadcast markets, and a total of 640
vacancies nationwide.[40] At present the nationwide vacancy number is still
416, including 89 commercial and 327 non-commercial channels.[41] Clearly,
then, scarcity should still not be much of an issue today. That is, of course,
if it were not for the fact that these vacancies, along with existing LPTV
stations, will be filled up by existing broadcasters' HDTV channels.
Still, if one notes the fact that each of these new HDTV channels potentially
allows for five standard quality channels rather than one snazzy high-definition
channel, then this move creates to potential for as much as a five-fold increase
in the number of broadcast channels available to the public. But this does not
equal a five-fold increase in the availability of broadcast channels; all of
these new channels will remain under the ownership and control of current
existing full-power broadcasters. Absolutely no new opportunities for entry are
created, while many existing ones are destroyed. Thus we have the creation of
scarcity, where there was little before.
To be fair, it is important to note that the FCC has not always operated against
the interest of creating opportunity and diversity and for the interest of the
established broadcast industry. It has simply failed to consistently act in
favor of opportunity and diversity. Under the Carter-appointed FCC, LPTV was
created, and the Reagan-appointed FCC created 689 new "drop-in" channels in the
FM band, mostly in the southeastern U.S. Preference in licensing these new FM
channels was given to existing daytime-only AM broadcasters and to minority
applicants. However, this same Reagan FCC was otherwise overwhelming
pro-industry, rejecting proposals to create new VHF television stations and
significantly hampering the introduction of stereo AM. Further, this Commission
rejected proposals to allocate the additional AM band space gained from an
international treaty in 1979. [42] The expanded AM band was finally allocated
by the FCC in the mid-1990s. However, in the name of reducing congestion, all
spots in the new band went to existing broadcasters-primarily daytime-only
stations-who are to abandon their original frequencies, which will remain
vacant. In contrast to the minority preferences given for the FM "drop-in"
expansion, in 1994 the FCC rejected a proposal made by an NAACP-led coalition to
create incentives for broadcasters who move to the AM expanded band to sell
their old frequencies and equipment to minority owners. The coalition premised
this proposal with the claim that the expanded band move would do little to
relieve congestion-logic that the FCC rejected.[43] Again, it is obvious that
the relief of scarcity and the promotion of diversity in the broadcast bands are
not necessarily high priorities of the Commission, and are easily overwhelmed by
the interests of existing broadcasters.
A final example of such an action is the elimination of low-powered FM radio
stations by the FCC in 1978, bowing to pressure from the National Association of
Broadcasters along with full-power public stations under the guidance of the
Corporation for Public Broadcasting. These overwhelmingly volunteer-operated
stations owned by schools, small two- and four-year colleges as well as other
community organizations provided both access and training to individuals
outside the broadcast industry. Due to their low-power and small coverage areas
these stations were cheap and easy to operate, but nonetheless constituted a
threat-albeit small-to larger broadcasters fighting for audience.[44]
Overall, it is clear that the FCC rarely took opportunities to manage the
existing broadcast spectrum in a way that increased spectrum availability, while
it also created scarcity, largely as a result of siding with powerful broadcast
industry interests. These results should not be surprising; as Horwitz notes,
the FCC's "discretionary adjudication usually reflected short-run pragmatic
aims, [and] hence were often inconsistent."[45] Too frequently the "short-run
pragmatic aims" are heavily influenced and sometimes dictated by the
established broadcasting industry. So long as they can maintain their licenses
and markets, the broadcasters show little concern for scarcity, except for the
fact that lack of it means there is opportunity for diversity in the broadcast
bands. But, "while the concept of diversity lies at the core of the First
Amendment, broadcasters were not much interested in diversity, for it is
tantamount to increased competition."[46]
Given the ups and downs of spectrum allocation, it is difficult to say
definitively whether or not scarcity in the spectrum exists or not.[47]
However, what is clear is that scarcity has been more or less existent at
different times, and the FCC has had many opportunities to relieve scarcity;
some of which it has taken, only to curtail the opportunities created later.
All of which causes one to question the power of the FCC in creating or
destroying opportunities to broadcast when the myth of spectrum scarcity is a
fundamental element of the rationale for giving the Commission this power. In
many respects the FCC apparently has the power to mitigate the very conditions
that justify its broad powers. In a footnote in League of Women Voters, Justice
Brennan noted
The prevailing rationale for broadcast regulation based on spectrum scarcity has
come under increasing criticism in recent years. Critics, including the
incumbent Chairman of the FCC, charge that with the advent of cable TV
technology, communities now have access to such a wide variety of stations that
the scarcity doctrine is obsolete_. We are not prepared, however, to reconsider
our longstanding approach w/o some signal from Congress or the FCC that
technological developments have advanced so far that some revision of the system
of broadcast regulation may be required.[48]
It isn't unreasonable to suggest that -despite the opinion of then-commissioner
Fowler-the FCC ultimately has no interest in sending a signal that spectrum
scarcity can be relieved or that the revision of broadcast regulation is
required. To do so would could easily make entire segments of the FCC seem
useless or obsolete, and thus threaten the present need for the Commission in
the eyes of Congress.
Aside from the scarcity rationale, the other strong premise upon which
government regulation of broadcast content is founded in the Court's opinion
that
it is the right of the viewers and listeners, not the right of the broadcasters,
which is paramount. _ It is the purpose of the First Amendment to preserve an
uninhibited marketplace of ideas in which truth will ultimately prevail. ...It
is the right of the public to receive suitable access to social, political,
esthetic, moral, and other ideas and experiences which is crucial here. _ Nor
can we say that it is inconsistent with the First Amendment goal of producing an
informed public_ to require a broadcaster to permit answers to personal attacks_
or to require that the political opponents of those endorsed by the station be
given a chance to communicate with the public.[49]
Thus, content regulation, in the form of the equal-time provision, the Zapple
Doctrine and the repealed Fairness Doctrine[50], may be necessary in order to
guarantee access to diverse information-diversity, it must be noted, that is
held at bay by unnecessarily created spectrum scarcity. Even if this premise is
accepted on its face-that the monopolization of the airwaves by broadcasters
otherwise keeps certain voices out-there is evidence to question the ability of
government regulation, and especially the ability of the FCC, to use such
regulation as it was intended, for purely First Amendment purposes.
Before exploring examples of the problems with enforcement of content
regulation, it is again necessary to point out that the FCC does indeed work
very closely with the broadcast industry, and has a habit of viewing and
attacking problems in its terms.[51] While the broadcast industry may have an
interest in avoiding content controls, this aim is only ancillary to their
ultimate goal of profit. Therefore, efforts to champion the First Amendment and
battle content controls will be seen only through the prism of profit potential:
what is the cost of compliance? What is the cost of appealing? As Horwitz
noted:
Publicly the industry may have complained bitterly and constantly of regulatory
interference, delay, stupidity or cupidity. But privately the industry found
that any rules were often better than none, especially since the rules were
nearly always circumspect of industry discretion and profit-making.[52]
In fact, at the 1924 National Radio Conference the industry came to agreement
that they should self-censor, in order to avoid the intrusion of governement.
At the time, so-called "private censorship" by the broadcasters themselves was
common, generally compelled by the need to satisfy advertisers.[53]
Perhaps more odious than the collusion of the industry with the FCC is the
exploitation of the FCC's licensing and content control powers for political
ends. Powe has detailed many instances where during the Eisenhower
administration the Republican party used the power of the FCC to delay or deny
television licenses to applicants-generally newspaper owners-who were supporters
of the Democrats. Of the nine newspaper applicants that won competitive
hearings for VHF licenses, none had supported Democrat Adlai Stevenson in the
1952 presidential race; two of the losers supported Eisenhower, but they lost
out to Eisenhower supporters. Thus, Eisenhower's "friends were brought to the
public trough and given both an outlet to the voters and an opportunity for
enormous profits."[54]
The Nixon administration also attempted to use the FCC for its own purposes. In
addition to having the FCC Commissioner request transcripts of commentaries made
after a speech by Vice president Agnew, friends of the Nixon administration
filed challenges to the VHF station licenses owned by the Washington Post, which
had broken the Watergate story. The FCC also ruled that under the Fairness
Doctrine the Republicans should get a opportunity for response to the Democratic
response aired to Nixon speeches on Viet Nam aired in 1969 and 1970. The D.C.
Circuit court over-ruled this decision on appeal, but, nonetheless, afterwards
the FCC pursued some similar Fairness Doctrine requests by both parties, while
letting others go. According to Powe, the Commission could justify the seeming
lack of consistency because the Fairness Doctrine is "elastic," a quality that
makes it
attractive to any who desire to challenge what is aired and allows leeway for
the commissioners to lean toward their favorites. With a little imagination,
almost anything-or nothing-can be a fairness violation.[55]
Delving further into content, in the 1960s and 1970s the Commission used
licensing to send warnings to broadcasters who aired culturally or
socially-rather than strictly politically-controversial programming. Pacifica
foundation's non-commercial California stations-KPFK, Los Angeles, and KPFA,
Berkeley-were given shortened license renewal periods for airing frank programs
on subjects like homosexuality and the issue of academic freedom. Seattle
community radio station KRAB was given a limited one-year renewal based on a
single complaint for broadcasting an "autobiographical novel for tape" by a
local Unitarian minister. In its first foray into identifying "indecent
language," the Commission tried to charge Eastern Educational Radio in
Philadelphia with a criminal code violation for a 1970 broadcast of an interview
with Jerry Garcia, then leader of the countercultural rock band the Greatful
Dead, in which Garcia liberally used many variants of the words "shit" and
"fuck." Interestingly enough, the Commission received no complaints about the
broadcast, and ended up settling for a $100 fine in order to avoid appeals.
The FCC's loudest shots against the 1970s counterculture were a notice released
by the Commission in 1971 to look out for "drug related" music, followed up by a
notice listing songs known to contain drug references. Although there was no
declaration that such songs were banned, the implication of the notices was
clear: if you play these songs, you might lose your license. [56] In these
actions, the FCC's commissioners were not always unanimous. One, commissioner
Johnson, understood fully well what his colleagues were up to. In his
dissention to the Eastern Educational Radio case he wrote,
[w]hat the commission condemns today is not words, but a culture-a life-style it
fears but does not understand. _ What the Commission decides, after all, is that
the swear words of the lily white middle class may be broadcast, but those of
the young, the poor, or the blacks may not.[57]
The issue of the Commission's ability to regulate indecent language-like the
words favored by Garcia-was tackled in 1978 by the Court in FCC v. Pacifica
Foundation. What is interesting about this case is that it marks the Court's
sole departure from the scarcity rationale, instead focusing on the nature and
power of the broadcast media.[58] In deciding that the FCC may restrict the
broadcast of indecent language, the Court relied upon two supposed facts of
broadcasting. First, the Court says that "the broadcast media have established
a uniquely pervasive presence in the lives of all Americans (emphasis added). _
Second, broadcasting is uniquely accessible to children, even those too young to
read." The first point-broadcasting's uniquely pervasive presence-is most
important because it directly concerns the supposed power of broadcast. In this
decision the Court very clearly attributes significant, and even threatening,
power to the broadcast media, comparing the broadcaster to an "intruder" into
"the privacy of the home," or to someone who makes an "indecent phone call."
According to the Court, despite any warnings made by broadcasters about content,
when aired and encountered, indecent programming is all but inescapable: "To say
that one may avoid further offense by turning off the radio when he hears
indecent language is like saying that the remedy for an assault is to run away
after the first blow." [59]
The conception of broadcast as an intruder which overwhelms the listener or
viewer is also reflected in the Court's decision in CBS v. DNC (1973), in which
they are characterized as a "captive audience."[60] In making this case,
Justice Burger quotes a decision by the D.C. Circuit on the impact of cigarette
advertising:
Written messages are not communicated unless they are read, and reading requires
an affirmative act. Broadcast messages, in contrast, 'are in the air.' In an
age of omnipresent radio, there scarcely breathes a citizen who does not know
some part of a leading cigarette jingle by heart. Similarly, an ordinary
habitual television watcher can avoid these commercials only by frequently
leaving the room, changing the channel, or doing some other such affirmative
act. It is difficult to calculate the subliminal impact of this pervasive
propaganda, which may be heard even if not listened to, but it may reasonably be
thought greater than the impact of the written word.[61]
Probably the most telling element of this quote is the last statement: that
broadcast may have greater impact than print. This view bears similarity to the
dissent of Justice Murphy in NBC v. U.S. in which he says that radio "has
assumed a position of commanding importance, rivaling the press and the pulpit."
In light of the spread of fascism in 1940s Europe, Justice Murphy gives warning
that "radio may readily be a weapon of authority and misrepresentation_ . It
may even be an instrument of oppression."[62] Oppression is a strong word
indeed, and certainly conjures up notions of forces that cannot avoided or
eluded-even actively.
What is interesting about all of these arguments for the power of broadcast is
the fact that they all assert the need to actively resist a broadcast message if
one desires not to be exposed to its content. More alarming, however, is the
indication that even the active resistance may not be defense enough once the
audience is hit with-in the terms of Pacifica-the "first blow." If broadcast
media is so powerful as to overwhelm an individual's own cognitive defenses, one
wonders why it is allowed into the hands of private citizens in the first place.
However, the more important questions to ask are: if broadcast media is so
powerfully intrusive and coercive, how are these justices able to avoid its
influence and objectively see it for what it is? What special powers do the
justices have than the average American fails to possess? Certainly the
justices of the Supreme and Circuit Courts should possess above average
intelligence and reasoning, in combination with accrued legal wisdom-but have
they cornered the market?
The answer is, most reasonably, no. The justices have not cornered the market
on reason and wisdom, nor do they necessarily possess heightened cognitive
potential compared to the average American. Instead, it would appear that these
justices all fall prey to the same assumptions that also assails many academic
media researchers: "that gullible others, but not one's own canny self, are
slaves to the media."[63] W. Phillips Davison calls this the "third-person
effect" in communication. In his analyses of the mass media and the culture
within the mass media, Shudson has found this assumption to be
so widespread that the actions based on it may be one of the mass media's most
powerful creations. _ That is to say, the media's political appeal lies less in
its ability to bend minds than in its ability to convince elites that the
popular mind can be bent.[64]
Without a doubt the commercial broadcast media relies upon this assumption to
make its living. If a broadcaster could not reasonably convince an advertiser
that somehow a thirty-second commercial on her station might influence a viewer
or listener to buy the advertiser's product, then that broadcaster would go out
of business. On the other hand, it would be similarly unreasonable to say that
cigarette advertising on television had absolutely no effect upon the smoking
habits of the American people. But acknowledging some effect-perhaps intangible
and difficult to isolate-is a much less potent claim than the alarms sounded by
Justices Bazelon, Burger and Stevens.
One reason for the strength of the third-person effect is that it arises from a
fundamental lack of understanding about the broadcast media and of human
cognition. Note that none of these opinions gives a detailed description of how
the mass media is able to invade the psyche of the audience, nor does any
provide a model of cognition explaining human beings' special susceptibility to
broadcast mediated messages. This is simply because little is known about these
things. Common sensibly, Powe points out that such lack of understanding is
what fuels fear of the media.[65]
In order for the power of the broadcast media to be used as a reasonable
justification for its regulation, the nature of this power must be more fully
defined and demonstrable. More importantly, this power must be demonstrably
more potent than that demonstrable for the print press; for that is the
implication of broadcast power rationale. Although research exists that
demonstrates the effects of broadcast media on opinion formation,[66] no one has
yet to prove that the broadcast media out-and-out cause anything to happen any
more than a newspaper or a book. Thus, the claim of broadcast media's power as
uniquely more pervasive than any other media is simply an unproved assumption
based on supposition and the third-party effect, more than any fact.
Yet, even if one accepts this assumption on its face, an opposite conclusion can
be made. Consider the opinion of the D.C. Circuit court in Telecommunications
Research and Action Center v. FCC (1986): "We are unwilling to endorse an
argument that makes the very effectiveness of speech the justification for
according it less First Amendment protection."[67] Nonetheless, such an
unproven assumption cannot be the rational basis for or against regulation of
any kind.
Thus far the specialness of the broadcast media has been analyzed and its
foundational myths exposed: spectrum scarcity is a regulatory creation rather
than an a priori condition, and the power of broadcast is a widespread, but
baseless assumption. Because specialness is a myth, aside from basic material
differences-such as the fact that print uses paper and broadcast uses no
physical medium-there is no difference between the print or broadcast press,
especially none that justifies differential treatment under the First Amendment.
Moreover, it has been shown how regulatory methods used to further the "public
interest"-such as comparative hearings, licensing and the fairness doctrine-are
equally susceptible to abuse by those in power; in fact, they have been abused.
It is important that this susceptibility should not be overlooked or dismissed,
because it strikes at the heart of the First Amendment: "Congress shall make no
law_ abridging the freedom of speech, or of the press." This simple sentence
has been widely understood to embody a certain suspicion towards government
intervention, and is normally interpreted to mean that the individual and the
press enjoy a freedom from government intrusion, not a right to it. It appears
quite obvious that the type of government manipulation of licensing and content
regulation that Powe demonstrates is precisely what the First Amendment serves
to prevent.
Admittedly, this interpretation requires a more literal reading of the text.
Justifications for broadcast content control generally rely upon more elaborated
readings in which "it is the right of the viewers and listeners, not the right
of the broadcasters, which is paramount."[68] To keep such reasoning from also
making paramount the right of the reader over that of the print press, one must
rely upon the specialness myths already exposed. However other arguments have
been forwarded in favor of content regulation that acknowledge the inherent
problems with the scarcity and power rationales. These arguments fall into two
categories, both of which rely upon a supposed public interest incentive in the
First Amendment. The first premises regulation upon the fiduciary
responsibilities of broadcasters in exchange for spectrum grants. The second
actually hinges less upon a press-broadcast distinction, instead advocating
fuller regulation of access to the press as a whole.
In the first mode, Logan forwards two theories regarding "why broadcast
regulation is consistent with the First Amendment and can be seen to further its
values."[69] Taking a cue from Sunstein[70] and Barron (the latter of whom will
be dealt with momentarily), he contends that the First Amendment finds its
purpose in democratic self-governance, thus requiring the government to play an
active role in "ensuring open and robust discourse." This role is especially
important in countering the "failure of the market" to create this discourse.
The second theory is premised on the "preferential treatment broadcasters have
received in the allocation of resources." This premise distinguishes broadcast
from newspapers, which do not receive preferential allocation of resources, and
provides a quid pro quo justification for regulations that seek to promote
public interest goals. Under this justification, a broadcaster's public
interest obligation-quid-must be proportionate to the grant of exclusive
spectrum use rights-quo.[71] Logan notes that the Court recognized the quid pro
quo rationale in Red Lion.
Especially in light of the HDTV giveaway, the quid pro quo argument would seem
to have some merit. While obtaining a broadcast license is far from a free
process, its cost is largely in engineering, lawyers, public relations, and
other necessities of the process. None of this money is paid to the government
or public. Especially true in the 1920s and the 1930s was the fact that any
given license to broadcast cost no more than another. This was a disincentive
for promoting technological improvements-since broadcasters like NBC were owned
by radio receiver companies (RCA)-or for expanding the broadcast band and
bringing more competitors to the dial.[72] It is also undeniable that the most
powerful broadcasting companies are also amongst some of the largest companies
in the country and the world. In many ways that free license from the
government to broadcast is all but a license to print money. Thus it should not
seem unreasonable to expect that the government, and the public, receive
something in return. But is the sacrifice of First Amendment rights a proper
quo?
Under this logic, broadcasters essentially are given a license that has a
potential market value in exchange for a service. According to the
Communications Act,
the Commission, if public convenience, interest, or necessity will be served
thereby, subject to the limitations of this Act, shall grant to any applicant
therefor a station license provided for by this Act.[73]
But what service does the "public convenience, interest or necessity" imply?
The equal time provision[74] and Fairness Doctrines are two examples defining
what constitutes the "public convenience, interest or necessity," in providing
access to broadcast stations as a right of reply and to political candidates.
But, aside from the codified right of access and the requirement to channel
indecent broadcasts away from the time when children are likely to be in the
audience[75], very little else of regard to broadcast content is concretely
required of a broadcaster. In fact, it seems that
the language of the Communications Act of 1934 does not define Congressional
intent for the regulation of broadcasting. The Act of 1934 would be described
more accurately as a general legislative "charter" than as a clear statement of
congressional conscience.[76]
This is reflected in the words "public interest, convenience and necessity" that
in themselves have so little content as to provide wide discretion to the FCC to
interpret what they mean.[77]
Depending on one's vantage point it would appear that the contract implied in
the granting of a license is not particularly good for either party in the
transaction. In this contract the public/government has the ability to seek its
own interest, which at this time-given the repeal of the Fairness
Doctrine-apparently is roughly limited to some right of reply for political
candidates. In turn, the broadcaster must serve this interest, and any other
future obligation that might be levied upon him under this standard. If a
contract this vague were instead a lease on a house or an employment contract,
it would certainly be unwise to recommend anyone sign it.
Realistically, under this implied contract the government simply gives away
resources in the vain hope that broadcasters will return some of the value in
service. The government can certainly try to enforce provision of service, but
anything much stronger than a slight push can result in litigation and appeal-a
strong disincentive for expecting too much of licensed broadcasters. This is a
pretty rotten deal for the government, but given the market value of a broadcast
license, it's a windfall for the broadcaster, even considering the First
Amendment curtailments.
An obvious problem with the quid pro quo rationale is the simple fact that it
does not work-at least not when quo is some type of public interest service.
Yet it is very difficult to see how greater access and content controls would
make the situation better. The most likely effect would be an increase in FCC
bureaucracy and cost of enforcement. If history is any indication, significant
cooperation from broadcasters would be superficial and minimal at best. Another
obvious problem lies with the Communications Act itself-aside from the equal
time provision, it does not really provide much basis for a quid pro quo
rationale, either explicitly or implicitly. Section 307(a) supra is as close as
it gets, and that is not very close. Especially given the fact that the Act was
last overhauled two years ago, there is no good reason to believe that the
legislature intends any such arrangement in broadcast.[78] If there is a
reasonable quo to expect for the quid granted to the broadcaster, it is probably
rent; and that opportunity has already been lost in the case of the HDTV
spectrum.
The second argument for regulation that does not rely upon the specialness of
broadcast is the one first advanced by Jerome A. Barron, in his 1967 Harvard Law
Review article, "Access to the Press: A New First Amendment Right."[79] In this
article Barron contends that the modern conception of the First Amendment is
"romantic" in its belief that "that the 'marketplace of ideas' is freely
accessible." As it stands, all of the mass media is well protected by First
Amendment case law. What is missing is protection for "those whose ideas are
too unacceptable to secure access to the media."[80] As a result "our
constitutional law has been singularly indifferent to the reality and
implications of non-governmental obstructions to the spread of political truth"
that arise especially in the commercial media. Barron claims that the failure of
the existing media to "convey unorthodox, unpopular and new ideas" is evident in
the development of new media that do so." What is necessary is to get beyond
the romantic view because,
the marketplace of ideas view has rested on the assumption that protecting the
right of expression is equivalent to providing for it. But changes in the
communication industry have destroyed the equilibrium in the marketplace.[81]
Barron forwards a "realistic" view that recognizes that a right of expression is
thin if it can only be exercised at "the sufferance of the managers of mass
communications." In order to tip the balance he endorses a right of access that
would entail a right to be heard along with a right of reply.[82] Thus "the
public interest in expression of divergent viewpoints should be weighted as
heavily when the mass media invoke the First Amendment to shield restrictions on
access."[83] Access should thus be guranteed through judicial intervention or
legislation such that it is denied only on rational, rather than arbitrary
grounds.[84]
Although this plan applies to all media, whether broadcast or print, Barron does
advocate a contextual approach, whereby the analysis of the First Amendment
"must be tailored to the context in which ideas are or seek to be aired." Thus
differential treatment of print and broadcast are certainly possible, and it
would seem necessary, but Barron does not detail how this would be delineated,
although he does note that the right of reply should be given in the same medium
in which the original statement was given, so as to reach the same audience.[85]
The problem with Logan's and Barron's arguments is that they are essentially
pragmatic; they attempt to create principle where there is none. An elaborated
approach to the First Amendment thus fundamentally requires filling in and
adorning, using whatever arguments can be cobbled together. Even appeals to the
supposed intent of the constitution's framers are tricky; a different reading of
the same or other framers can yield different intents. The debate that results
ends up being more like literary criticism than law (if the two can be seen as
indeed different).
The result of this elaboration and adornment is that rights are created that
naturally conflict. A right of access to the press, which is a positive right
requiring action on the part of government in order to guarantee it, conflicts
immediately with the negative right of First Amendment to "make no law_
abridging the freedom_ of the press," which requires that the government not do
something in order for it to be guaranteed. A literal, so-called "absolutist"
interpretation yields relatively consistent results. Although there can be
debate on what it means to "abridge" the press (or anything else), it is
extremely difficult to fathom that it means "force to provide access," no matter
how one looks at it.
One possible way out of this conundrum has been to use the idea of property
rights, which has been exploited by both sides of the regulation debate. As we
have seen, the pro-regulation side asserts that the spectrum is public property
on loan to broadcasters, while the deregulation side asserts that contemporary
usage, especially the ability to sell existing licenses on the open market,
gives spectrum the greater appearance of private property.[86] Looking to
history, the original use of the spectrum by amateur and educational
broadcasters, before intervention by the Commerce Department or the FRC/FCC,
seems to favor the interpretation that the spectrum was like frontier, claimed
as private property by pioneers, only to be later claimed (stolen) as public-or,
more precisely, government-property by the government and then redistributed,
primarily to moneyed interests.[87] In a way, this resembles a reverse Robin
Hood story. This interpretation could support the idea that the broadcast
spectrum is really the property of contemporary broadcasters, but it supports
the public property idea just about as well. Yet, the idea it appears to
support most is that the spectrum is the property of those brave pioneers who
forged its frontier-although it is difficult to see a practical purpose for
bestowing this particular property upon those from whom it was stolen sixty
years earlier.
Were this 1921 rather than 1998, the answer to this question would be much
easier: I would advocate property rights for those broadcast pioneers. But,
while broadcasters may have suffered as a result of broadcast regulation, more
often they have benefited tremendously. Thus simply turning full spectrum
property rights over to existing broadcasters now would be tantamount to
throwing away the millions-if not billions-of tax dollars spent policing the
spectrum to keep it usable and useful, not to mention rewarding a history of
collusion between broadcasters and the FCC. Yet, despite the fact that the bulk
of broadcast history and case law appears to support the proposition that the
spectrum is-at least in principle-indeed government or public property, the
contemporary reality of the broadcast market shows stations being bought and
sold-with ever decreasing intervention from the FCC-as if spectrum were the
property of station owners anyway.[88]
Ultimately, it is the tax-payers who subsidize "free" broadcast licenses worth
millions of dollars, and new entrants into the broadcast market held at bay by
created scarcity, who stand to lose the most in the current regulatory
environment-not existing broadcasters. And it is clear that the government
cannot simply give up on licensing and allocation. To do so now would likely
throw the spectrum into chaos, not to mention risk violating international
spectrum treaties.
Thus the only reasonable solution is to allow for the allocation and sale of
real property rights to the spectrum by the government. The method for pricing
and distributing these rights, such as lottery or auction, are subject to
question. However, the FCC can ultimately determine the market value of
spectrum because it holds power over supply; a reasonable price that opens up
entry to the broadcast arena can be assured if supply can reasonably meet or
outpace demand. Such spectrum property should also, then, be subject to
taxation that minimally covers the cost of the spectrum allocation and the
administration necessary to keep it useable and useful for all broadcasters. I
do not see why such tax revenue cannot be used to fund government, public or
'public-like' broadcasting, especially that which attends to the needs of
self-government and democracy, an idea advocated by McChesney.[89]
I do not mean to advocate wholesale deregulation-only the deregulation of
content and access. The allocation of spectrum, especially with regard to
purpose, must be regulated in order to accord with international treaties, and
in order to protect the public from the threat of the instantaneous obsolescence
of receivers; spectrum allocated for a particular use should be utilized for
that use and not be unilaterally reallocated by broadcasters. [90] Further, the
government should take an active role in creating new broadcast spectrum
opportunities in order to relieve the artificial scarcity of spectrum, while
also promoting competition and a diversity of voices on the airwaves. This is
something the broadcast industry has historically opposed, be it the creation of
the FM band in the 1930s[91] or the FCC's current proposal for the creation of a
low-power FM radio service,[92] and it is something that is long overdue, given
the Commission's pattern of whittling down of available broadcast spectrum since
the 1950s.
When the government endeavors to make the useful commodity of spectrum plentiful
enough to satisfy reasonable demand by a diversity of speakers, then the need
for regulation to force access to existing broadcast outlets is obviated. Only
by simultaneously allowing broadcasters the same content rights as the print
press and relieving a created scarcity of useful spectrum space can all of the
press, print and broadcast, be protected from abridgement, where the government
stands in the way of no one's right to speak.
[1] Endnotes
Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969).
[2] National Broadcasting Co v. U.S., 319 U.S. 190 (1943).
[3] Ithiel de Sola Pool. Technologies of Freedom. (Cambridge, MA: Harvard
University Press, 1983), p. 115.
[4] T. Barton Carter, Marc A. Franklin and Jay B. Wright. The First Amendment
and the Fifth Estate. (New York: The Foundation Press, 1996) p. 51.
[5] In fact, these allocations for FM and TV were made only nine years after
the NBC decision: Robert Britt Horwitz. The Irony of Regulatory Reform. (New
York: Oxford University Press, 1989) p. 174.
[6] Red Lion v. FCC.
[7] Columbia Broadcasting v. Democratic National Committee, 412 U.S. 94 (1973).
[8] FCC v. League of Women Voters of California, 468 U.S. 364 (1984).
[9] Red Lion v. FCC
[10] Christopher C. Lentz, "The Fairness in Broadcasting Doctrine and the
Constitution: Forced One-Stop Shopping in the 'Marketplace of Ideas,'"
University of Illinois Law Review (1996): p. 302.
[11] Lucas A. Powe, Jr, American Broadcasting and the First Amendment,
(Berkeley, CA: University of California Press, 1987): p. 207.
[12] Ibid.
[13] Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241.
[14] Ibid.
[15] In Tornillo, Justice White writes, "[t]he obvious solution, which was
available to dissidents at an earlier time
when entry into publishing was relatively inexpensive, today would be to have
additional newspapers. But the same economic factors which have caused the
disappearance of vast numbers of metropolitan newspapers, have made
entry into the marketplace of ideas served by the print media almost
impossible."
[16] Donald E. Lively, "Modern Media and the First Amendment: Rediscovering
Freedom of the Press," Washington Law Review 67 (1992): p. 603.
[17] supra note 3
[18] extrapolation based on facts in supra note 4
[19] Powe, p. 204
[20] Carter, et al, pp. 44-48.
[21] Horwitz, pp. 174-5.
[22] Ibid., fn. 61
[23] Ibid, supra note 21
[24] Ibid., p. 176
[25] Ibid., p. 180-1.
[26] Ibid., p 176-7; Richard E. Labunski, The First Amendment Under Seige
(Westport, CT: Greenwood Press, 1981): pp. 120-1.
[27] Horwitz, p. 177.
[28] Ibid., p. 174.
[29] Carter, et al., p. 52.
[30] Labunski, p. 119.
[31] Supra note 29
[32] Ibid.
[33] Ibid., p. 53-4.
[34] FCC Audio Services Division, Broadcast Station Totals, at
http://www.fcc.gov/mmb/asd/totals/bt980930.html.
[35] FCC, DTV Descirption, at http://www.fcc.gov/mmb/vsd/files/descrip.html
[36] FCC, Sixth Further Notice of Proposed Rulemaking, MM Docket No. 87-268
(Aug. 14, 1996): section IV.C.
[37] Ronald J Krotoszynski Jr., "The Inevitable Wasteland: Why the Public
Trustee Model of Broadcast Television Regulation Must Fail," Michigan Law Review
95 (May 1997): 2137.
[38] Romesh Ratnesar, "A bandwidth bonanza," Time 150 (Sept. 1 1997): p. 60.
[39] FCC, Notice of Proposed Rulemaking, ET Docket No. 97-157 (July 10, 1997):
Appendix C.
[40] Carter, et al, p. 52.
[41] Supra note 34; The allocation of LPTV channels are done on a partially ad
hoc basis, and therefore are not figured into these totals.
[42] Horwitz, p. 262.
[43] Carter, et al, pp.48-50.
[44] For a more detailed analysis of this story see Paul Riismandel, "The
Demise of the Ten-watt FM Station and the Loss of the Public in Public Radio,"
(paper presented to the Midwest Graduate Communications Conference, University
of Illinois at Urbana-Champaign, April 11, 1998); for background also see
Kenneth Creech, "An Historical and Descriptive Analysis of Low-Power Educational
Radio Broadcasting in the United States," Ph.D. Dissertation, University of
Michigan, 1978; and Ralph E. Carmode, "A Brief History of 10-watt Noncommercial
Educational FM Radio Stations," (paper presented to the Annual Fall Convention
of College Media Advisers, Washington, D.C., November, 1995), at
http://ebjourn.latech.edu/coll_res/FM-radio.html.
[45] p. 193.
[46] Labunski, p. 120.
[47] Labunski sums it up this way: "Despite a tremendous amount of data, or
because of them, it is difficult to determine whether conditions have changed to
the extent that 'scarcity' no longer accurately describes the availability of
broadcast channels and no longer justifies gov't regulation." p. 9.
[48] League of Women Voters, fn. 11.
[49] Red Lion
[50] Syracuse Peace Council v. WTVH, 2 F.C.C.R. 5043 (1987). In this case the
FCC repealed the Fairness Doctrine under the rationale that expansion of
broadcast outlets had created an environment such that the doctrine chills
speech and infringes upon the editorial discretion of broadcasters, such that
the doctrine had become unconstitutional.
[51] Labunski p. 101.
[52] Horwitz, p. 194.
[53] Pool, pp. 119-120.
[54] Powe, pp. 76-84.
[55] Ibid., pp. 121-154.
[56] Ibid., pp. 171-181.
[57] Quoted in Ibid, p. 176.
[58] Powe, p. 209
[59] FCC v. Pacifica Foundation, 438 U.S. 726 (1978).
[60] CBS v. Democratic National Committee, 412 U.S. 94 (1973).
[61] Quoted in supra; Banzhaf v. FCC. 132 U.S. App. D.C. 14 (1968).
[62] NBC v. U.S. However, it should be noted that Justice Murphy ultimately was
not a proponent of broadcast regulation.
[63] Michael Shudson, The Power of News, (Cambridge, MA: Harvard University
Press, 1995): p. 121.
[64] Ibid.
[65] Powe, p. 214.
[66] See, for example, Shanto Iyengar, Is Anyone Responsible? How Television
Frames Political Issues (Chicago: University of Chicago Press, 1991), in which
the author details quasi-experimental data that indicates that the traditional
framing of news stories on television has differential affects on viewer
opinions compared to less common alternate framing strategies.
[67] Quoted in Lentz, p. 310.
[68] Supra note 49
[69] Charles W. Logan, "Getting Beyond Scarcity: A New Paradigm for Assessing
the Constitutionality of Broadcast Regulation," California Law Review 47 (Fall
1997): p. 164.
[70] Sunstein's defense of regulation for both the broadcast and print press is
presented in his book, Democracy and the Problem of Free Speech, (New York: The
Free Press, 1993). The essence of Sunstein's argument is that the First
Amendment is primarily intended to protect speech that serves the purpose of
democratic governance and political equality, and thus regulation is necessary
and constitutional to the extent to which it serves this purpose. My arguments
against Logan and Barron address elements of Sunstein's argument, however a full
and proper treatment of Sunstein requires far greater depth and is thus beyond
the scope of this paper.
[71] Logan, pp. 153-187.
[72] Pool, p. 140.
[73] 47 U.S.C.A. 307 (a).
[74] 47 U.S.C.A. 315.
[75] As decided in Pacifica.
[76] Labunksi, p. 27.
[77] Ibid.
[78] Except that which serves its own needs, like equal time.
[79] Harvard Law Review 80 (1967): pp. 1641-1678.
[80] Ibid., p. 1641.
[81] Ibid., pp. 1643-8.
[82] Commensurately, he considers New York Times v. Sullivan to be a "lost
opportunity," p. 1656.
[83] Ibid., p. 1654.
[84] Ibid., pp. 1677-8.
[85] Ibid., p . 1653.
[86] For the basic foundations of this approach see R.H. Coase, "Evaluation of
Public Policy Relating to Radio and Television Broadcasting: Social and Economic
Issues," Land Economics 41 (1965): pp. 161-8; M. Fowler and D. Brenner, "A
Marketplace Approach to Broadcast Regulation," Texas Law Review 60 (1982): pp.
1-51, marks the Reagan-era integration of this approach into contemporary
broadcast regulation.
[87] For an excellent account of this history and the birth of American
broadcast regulation, see Robert W. McChesney, Telecommunications, Mass Media
and Democracy; the Battle for the Control of U.S. Broadcasting, 1928-1935, (New
York: Oxford University Press, 1993).
[88] A situation Coase identified as early as 1965, supra note 86.
[89] Robert W. McChesney, Corporate Media and the Threat to Democracy. (New
York: Seven Stories Press, 1997): p. 87.
[90] Acknowledging the fact that, under industry pressure, the FCC has been
agent of such obsolescence in the case of FM radio in the 1940s and the looming
introduction of digital television today.
[91] Supra note 22.
[92] Comments filed March 16, 1999 with the FCC by the executive director of
the Virginia Association of Broadcasters with regard to the low-power FM
proposal, FCC Docket MM-99-25, are indicative of the overall industry opinion:
"On behalf of the Virginia Association of Broadcasters and its radio members, I
want to voice our strong opposition to Microradio."
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