Category Archives: dtv

What Was the Gore Commission on Digital Television Broadcasting All About?

Note: On Friday, October 3, the Information Economy Project at George Mason University School of Law will feature a discussion about “The Gore Commission, 10 Years Later: The Public Interest Obligations of Digital TV Broadcasters in Perfect Hindsight.” It will be held at 8:30 a.m. at the National Press Club. Registration details are below.

By Drew Clark

In the United States, the regulation of broadcast radio and television has always been done under a different standard than the regulation of the print medium.

As Secretary of Commerce in the administration of President Calvin Coolidge, Herbert Hoover declared: “The ether is a public medium, and its use must be for a public benefit,” he said at the Fourth National Radio Conference, in 1925. “The dominant element for consideration in the radio field is, and always will be, the great body of the listening public, millions in number, country-wide in distribution.”

When Congress created the Federal Radio Commission in 1927, it decreed that broadcasting was to serve the “public interest, convenience and necessity,” and this standard was re-affirmed in the Communications Act of 1934. Several Supreme Court decisions — albeit decisions that have been much criticized — affirmed that broadcasting could and should be treated differently than the traditional “press.”

This differential treatment for broadcasting — versus the print medium, and also cable television — was underscored by the decisions in Red Lion Broadcasting Co. v. FCC (1969), which upheld the “Fairness Doctrine,” and also FCC v. Pacifica Foundation (1978), which upheld indecency rules for over-the-air broadcast television. The Fairness Doctrine required broadcasters to grant reply time to those who said their views were criticized.

The Fairness Doctrine upheld in Red Lion was premised on the notion that electromagnetic frequencies, being “scarce,” needed to be rationed through a government-granted license. (It took economist Ronald Coase to note that airwaves are no more scarce than pulp and printing presses.) Station owners were thus periodically licensed as “public trustees” and obligated to either air different points of view, or return their spectrum.

Hence the nascent broadcasting medium was never allowed to develop with the full panoply of First Amendment protections for opinion, commentary, and outright partisanship, as were newspapers. The Pacifica decision underscored this result, holding that George Carlin’s “Filthy Words” monologue, even though not obscene, could be banned by the Federal Communications Commission.

President Ronald Reagan took a dim view of broadcasting’s “specialness.” In the memorable words of his FCC Chairman, Mark Fowler, television is “just another appliance — it’s a toaster with pictures.” Fowler and his successor, Dennis Patrick, worked together with the D.C. Circuit Court of Appeals and finally killed the Fairness Doctrine in 1987. They argued that it chilled free speech, and the appeals court agreed that the agency was entitled to drop the doctrine. Notwithstanding two congressional pushes to overturn the FCC — vetoed by Presidents Reagan and the first President Bush — the Fairness Doctrine was never re-instituted.

But the issue of what else, specifically, broadcasters were required to do to fulfill their public interest obligations came to a head under President Clinton and FCC Chairman Reed Hundt. Hundt pushed for the imposition of a mandatory three hours a week of children’s television – a requirement contemplated by the Children’s Television Act of 1990.

The rise of digital television also complicated this inquiry. As I discussed in my blog post earlier today, “Do TV Broadcasters Have Obligations to the Public,” Congress chartered an advisory committee to consider this question. As part of the Telecom Act of 1996, Congress paved the way for a new allocation of radio-frequencies so that broadcasters could also transmit their signals digitally. But it also specifically inserted language in the act, stating:

Nothing in this section shall be construed as relieving a television broadcasting station from its obligation to serve the public interest, convenience, and necessity. In the [FCC's] review of any application for renewal of a broadcast license for a television station that provides ancillary or supplementary services, the television licensee shall establish that all of its program services on the existing or advanced television spectrum are in the public interest.

But it would take a commission — specifically, the Advisory Committee on the Public Interest Obligations of Digital Television Broadcasters (“Gore Commission”) — to sort through and analyze those specific obligations.

Next post: What Were the Gore Commission’s Findings, and How Do they Apply to the Video Future?

Resources:

Conference Program:

A mini-conference • Friday, October 3, 2008, 8:30 a.m.The Gore Commission, 10 Years Later:
The Public Interest Obligations of Digital TV Broadcasters
in Perfect Hindsight

A mini-conference • Friday, October 3, 2008, 8:30 a.m.
National Press Club, 529 14th St. NW, 13th Floor, Washington, DC

On December 18, 1998, the Advisory Committee on Public Interest Obligations of Digital Television Broadcasters, commonly referred to as the “Gore Commission,” released its final report, recommending:

  • Disclosure of “public interest activities” by commercial broadcasters
  • A voluntary standard of conduct crafted by the industry
  • A minimum standard of public interest requirements set by the FCC
  • A trust fund for public broadcasters to be established by Congress; and
  • Five minutes airtime per night for “candidate-centered discourse in the 30 days before an election,” set to commence Sunday, October 5, 2008

Have the recommendations been implemented? Has the approach worked? Are the standards and regulations advocated relevant in today’s media marketplace? What has experience taught us about broadcast regulation and public interest obligations?

8:30 am: Welcome THOMAS HAZLETT
Professor of Law and Economics, George Mason University School of Law
Director, Information Economy Project

8:45 am: GIGI SOHN
President, Public Knowledge
Member of the Advisory Committee on Public Interest Obligations of Digital Television Broadcasters (“Gore Commission”)

9:30 am: NORMAN ORNSTEIN
Resident Scholar, American Enterprise Institute
Co-Chair, Gore Commission

10:15 am: HENRY GELLER
Retired General Counsel, Federal Communications Commission, 1964-70
Assistant to FCC Chairman Dean Burch, 1970-1974
Administrator of the National Telecommunications and Information Administration, 1978-1981

11:00 am Adjourn

When: Friday, October 3, 2008, 8:30 a.m. – 11 a.m.
Where: National Press Club, 529 14th St. NW, 13th Floor, Washington, DC

Admission is free, but seating is limited. See IEP Web page: http://iep.gmu.edu.
To reserve your spot, please email Drew Clark: iep.gmu@gmail.com.

About the Information Economy Project:
The Information Economy Project at George Mason University sits at the intersection of academic research and public policy, producing peer-reviewed scholarly research, as well as hosting conferences and lectures with prominent thinkers in the Information Economy. The project brings the discipline of law and economics to telecommunications policy. More information about the project is available at http://iep.gmu.edu.

Do TV Broadcasters Have Obligations to the Public? Forum TOMORROW, 10/3

Note: On Friday, October 3, the Information Economy Project at George Mason University School of Law will feature a discussion about “The Gore Commission, 10 Years Later: The Public Interest Obligations of Digital TV Broadcasters in Perfect Hindsight.” It will be held at 8:30 a.m. at the National Press Club. Registration details are below.

By Drew Clark

If all goes according to plan, on February 17, 2009, television broadcasters will power down their analog transmitters. They will be broadcasting their signal only digitally.

After more than 20 years in the long transition to digital television, this might be considered progress. Now, millions of Americans are collecting vouchers from the Commerce Department to subsidize their purchase of converter boxes. These are the electronic devices that take the digital signals — and convert them back to analog — so that viewers without high-definition televisions can watch broadcast TV on their old sets.

What about the bigger questions? Is there any benefit to the public, or to consumers, from the transition to digital television? What about the vaunted visions of hundreds of broadcast channels, through multi-casting? What would be the new public-interest obligations, if any, of broadcasters? This question has definitely not been resolved.

It may come back to this question: what was the point of making this move to digital and high-definition television? I recounted some of this history in “Spectrum Wars,” a 2005 article in National Journal magazine:

[The National Association of Broadcasters] seized upon a new technology out of Japan called high-definition TV. Compared with the 45-year-old U.S. standard, the sharper, high-resolution images used twice as many lines on a television screen, and broadcasting a program required two television channels instead of one. For broadcasters, that was just the point: High-definition gave them a way to fend off the FCC’s effort to grab frequencies back and turn them over to other uses. The broadcasters lobbied the agency to postpone the spectrum reallocation [currently being considered for cellular telephones] and to study the new technology.

The NAB worked its magic on Capitol Hill, inviting Japanese broadcaster NHK to Washington and rolling big-screen Sony TVs into a hearing in the Senate Caucus Room. Fear of Japanese competition was at fever pitch in Washington. Congress was stunned by the picture quality and frenzied at the prospect that the Japanese would outflank American manufacturers of televisions, just as they had done to the makers of videocassette recorders. Rep. Ed Markey, D-Mass., then-chairman of the House Commerce Telecommunications Subcommittee, took up their cause, and Congress pressured the FCC to leave the spectrum assignments alone on the condition that broadcasters develop HDTV.

[…]

But there was still a problem. Existing TV broadcasting equipment could not send digital signals, and existing analog television sets couldn’t receive digital signals. Broadcasters would have to invest in new television cameras and towers for digital signals, and consumers would have to spend thousands of dollars apiece on new sets. During the transitional period, each broadcaster would need two channels, one for analog and one for digital.

Broadcasters turned to Congress, now in Republican hands, and lobbied for a new compact: We’ll give you HDTV if you give us a second channel, for free, until Americans have made the switch. “It was understood that the channels would be loaned for a period of years to prevent consumers from losing television,” said Robert Seidel, vice president of engineering for CBS Broadcasting.

Congress initially approved a transition to digital in 1997, setting year-end 2006 as the target transition date. But a loophole rendered the 2006 irrelevant until congress revisited the issue and, on February 1, 2006, fixed February 2009 as the end-date for the transition.

In the intervening decade, the question of broadcasters’ public interest obligations has been intermittently revived. Most significantly, as a result of the 1996 Telecommunications Act, an Advisory Committee on Public Interest Obligations of Digital Television Broadcasters was created. It became popularly known as the “Gore Commission.”

Unlike other modes of communications, broadcasters are regulated as a “public trustee.” This means that they must meet certain obligations — by airing children’s television, or by including coverage of civic and political events, for example — that are not required of their counterparts on cable or the print medium.

At the time of the Gore Commission, one voice in the debate was Henry Geller, a former FCC general counsel who has continued to work on broadband matters as a private citizen. He was an FCC attorney before rising to general counsel in 1964-1970, later serving as an assistant to FCC Chairman Dean Burch, from 1970-1974, and then becoming the head of the National Telecommunications and Information Administration under President Carter, from 1978-1981.

In a 2000 hearing on the subject before Congress, Geller suggested the following (reprinted in Current magazine):

I urge you to consider the following: Scrap the public trustee content scheme, and treat broadcasting like its main rival, cable, which pays up to 5 percent of gross revenues for use of the public streets for cable rights-of-way (significantly, the public makes little or no distinction between cable and broadcast channels).

By taking some modest fee from commercial broadcasters for their use of the public spectrum in lieu of the public trustee obligation, noncommercial television could be adequately funded to deliver high-quality public service programming. The objective is to obtain such programming, but since the government soundly cannot review for quality, we are dependent upon the broadcaster to present the high-quality public service programs. The noncommercial system has demonstrated that it will strive to do so; the commercial system, under fierce and growing competition, has no such history or incentive.

Geller instead suggested a 1 percent spectrum fee on gross advertising revenues, netting about $250 million at the time, and going to fund educational programming on public television

Geller also argued, with respect to political content:

There is one other recommendation to Congress—affording free time to candidates as an important part of campaign finance reform. The details of such an effort are of course to be fashioned by Congress. Since it would obligate broadcasters to allocate a relatively large amount of air time every two years (or perhaps issue vouchers for purchase of that air time), the free time provision, along with the above 1 percent figure in the educational field, would constitute the full broadcaster contribution in lieu of its present public trustee obligation. This would be a meritorious conclusion, because an educated and informed electorate is so vital to the proper functioning of our democracy.

Geller, together with two officials involved in the Gore Commission — Norman Ornstein and Gigi Sohn — will present their reflections at a forum TOMORROW, on Friday, October 3: “The Gore Commission, 10 Years Later: The Public Interest Obligations of Digital TV Broadcasters in Perfect Hindsight.” The event, to be held beginning at 8:30 a.m. at the National Press Club, will feature is sponsored by the Information Economy Project at George Mason University School of Law, of which I am the assistant director. The full program is available at http://iep.gmu.edu. Admission to the event is free and open to the public. To reserve your spot, please email Drew Clark at: iep.gmu@gmail.com.

Later today, I’ll be returning to this theme with two more blog entries in this spot:

  • What Did the Gore Commission Accomplish?
  • How Do the Gore Commission’s Finding Apply to Our Video Future?

Conference Program:

A mini-conference • Friday, October 3, 2008, 8:30 a.m.The Gore Commission, 10 Years Later:
The Public Interest Obligations of Digital TV Broadcasters
in Perfect Hindsight

A mini-conference • Friday, October 3, 2008, 8:30 a.m.
National Press Club, 529 14th St. NW, 13th Floor, Washington, DC

On December 18, 1998, the Advisory Committee on Public Interest Obligations of Digital Television Broadcasters, commonly referred to as the “Gore Commission,” released its final report, recommending:

  • Disclosure of “public interest activities” by commercial broadcasters
  • A voluntary standard of conduct crafted by the industry
  • A minimum standard of public interest requirements set by the FCC
  • A trust fund for public broadcasters to be established by Congress; and
  • Five minutes airtime per night for “candidate-centered discourse in the 30 days before an election,” set to commence Sunday, October 5, 2008

Have the recommendations been implemented? Has the approach worked? Are the standards and regulations advocated relevant in today’s media marketplace? What has experience taught us about broadcast regulation and public interest obligations?

8:30 am: Welcome THOMAS HAZLETT
Professor of Law and Economics, George Mason University School of Law
Director, Information Economy Project

8:45 am: GIGI SOHN
President, Public Knowledge
Member of the Advisory Committee on Public Interest Obligations of Digital Television Broadcasters (“Gore Commission”)

9:30 am: NORMAN ORNSTEIN
Resident Scholar, American Enterprise Institute
Co-Chair, Gore Commission

10:15 am: HENRY GELLER
Retired General Counsel, Federal Communications Commission, 1964-70
Assistant to FCC Chairman Dean Burch, 1970-1974
Administrator of the National Telecommunications and Information Administration, 1978-1981

11:00 am Adjourn

When: Friday, October 3, 2008, 8:30 a.m. – 11 a.m.
Where: National Press Club, 529 14th St. NW, 13th Floor, Washington, DC

Admission is free, but seating is limited. See IEP Web page: http://iep.gmu.edu.
To reserve your spot, please email Drew Clark: iep.gmu@gmail.com.

About the Information Economy Project:
The Information Economy Project at George Mason University sits at the intersection of academic research and public policy, producing peer-reviewed scholarly research, as well as hosting conferences and lectures with prominent thinkers in the Information Economy. The project brings the discipline of law and economics to telecommunications policy. More information about the project is available at http://iep.gmu.edu.

Google, the NAB, and a Third Way in ‘White Spaces’ Debate

By Drew Clark

Google co-founder Larry Page came to Washington last week to take on the National Association of Broadcasters (NAB), the lobbying group that represents over-the-air television stations. It’s a whole new adversary for the beleaguered broadcasters, who have been fighting cable and satellite television for years.

The Federal Communications Commission is currently considering a proposal, by Google and other tech players. It would allow tech companies to build electronic devices that transmit wireless internet signals over the “white spaces,” or the vacant holes in the broadcast television band.

“We have an ambitious goal called pervasive connectivity through ubiquitous broadband networks,” said Page, who is currently co-president of Web search giant Google, and the world’s 43rd richest man, according to Forbes. “To realize that vision, we need to change the way we allocate and manage the nation’s airwaves.”

Basically, Google wants the right to broadcast where the broadcasters aren’t doing so right now. And there are a lot of vacant channels to take advantage of, potentially offering a boon to the broadband-hungry technology industry.

Is the Radio Frequency Cop Missing in Action?

Why has the FCC, arguably the cop over both the broadcasting and broadband beats, allowed TV broadcasters to waste the nation’s choicest electromagnetic frequencies? Answering that question would take a detour in the spectrum politics of your grandfather’s generation. Broadcast television frequencies were allocated in 1952, under technological conditions far different than today.

Fears of interference kept stations far, far, apart on the television dial. That’s why even today, if you live in Washington, DC, no more than four of the 21 channels between 30 and 50 are occupied: 32, 45, 47 and 50. That leaves 17 available as white spaces. The channel numbers vary from city to city, and will likely change with the transition to digital television (DTV). Still, a lot of unused real estate is and will remain vacant in the sky.

Google’s solution: the FCC should give the industry permission to build smart electronic devices that will observe their own geographic location, and then offer connections to the Internet only when such transmissions would not interfere with television broadcasts.

Doing this “makes a lot of sense,” and would put the nation on “a path where we are using 99 percent of our spectrum, rather than three percent,” Page said at the event, titled “Google Unwired” and hosted by the New America Foundation, which has strong ties to Google.

It is a technologically trivial task to make a device with a global positioning system (GPS), or that senses its radio-frequency environment before transmitting. These devices would guard against interference better than wireless microphones currently do, he said.

Can the White Spaces Genie Be Put Back in the Bottle?

For their part, broadcasters say that white spaces transmissions will interfere with your grandmother’s television reception. “At least three times, the tests that have been submitted by the proponents of wireless devices have either failed or malfunctioned,” said Dennis Wharton, executive vice president of the NAB. “Failure is not an option when we are talking about the future of DTV.”

Further, Wharton said, “once you have introduced hundreds of thousands, or even millions of devices and they fail, or start causing interference, how do you put the genie back in the bottle?”

As the lobbying battle has heated up, both the manufacturers of professional wireless microphones – like Shure – and the major sports leagues have joined with the NAB to try to stop the smart devices.

Page calls the broadcasters’ engineering claims “very much an imaged and created fiction.” He added, “The NAB has also, in the past, complained about satellite broadcasting causing interference. People pay attention to [the NAB, but] that doesn’t mean that it is true.”

The big problem at the heart of the white spaces debate is political: broadcasters have long been reputed to be a major lobbying force in Washington. But their alleged prowess didn’t stop Congress from wresting a quarter of the broadcasters’ frequencies away from them in Spectrum War I.

Why Are Broadcasting and Wireless Services Treated So Differently?

This brings us to another side – a Third Way, if you will – in the white spaces debate. Instead of turning the white spaces into yet another political football between competing lobbyists, why doesn’t the government put these frequencies up for sale? It’s the kind of idea that you would think a warm-hearted capitalist company like Google would love.

Television spectrum is indeed a very valuable resource – for certain purposes. Broadcasters currently occupy 402 Megahertz (MHz) of it, at frequencies ranging from 54 MHz to 806 MHz. That means that NAB members are sitting on about 40 percent of the choicest frequencies below 1 Gigahertz (1 GHz). These are the frequencies that are powerful enough to pass through walls, trees and high-rise buildings. (They are giving up 108 of those Megahertz in the transition to DTV, and earlier this year the FCC auctioned off 60 of those Megahertz for $19.5 billion. Most of the rest is being devoted for public safety communications.)

Broadcasters obtained the right to use all these frequencies for free in the pre-Eisenhower era. Cellular telephone companies, arriving in the Reagan through Clinton eras, paid good money at government auctions to buy and reuse other, less desirable frequencies in the 1.8 GHz range. And somewhere along the way to the 21st Century, geeks and techies deploying new-fangled devices like low-powered wireless fidelity (Wi-Fi) transmitters got FCC permission, on a free or unlicensed basis, to use the frequencies at 2.4 GHz at 5.8 GHz.

Broadcasters may be spectrum-rich, but they make very poor use of their frequencies. Less than 13 percent of American households watch television over-the-air; the vast bulk instead choose to subscribe to cable or satellite television instead. Wireless companies, by contrast, constantly use and reuse their frequencies. Wi-Fi presents a mixed bag: anyone who transmits at low power may use it, but overcrowding and other constraints can cause service to be spotty.

So what is the best model for deploying spectrum? There is currently a lively debate going on in academic circles about just this subject at the Information Economy Project at George Mason University School of Law. In the debate, Professor Thomas Hazlett of George Mason favors a property rights approach, while Professors Phil Weiser and Dale Hatfield, of the University of Colorado, reject the analogy of radio spectrum to land. (Disclosure: I serve as Assistant Director of the Information Economy Project, where I work with Law & Economics Professor Thomas Hazlett, who directs the project.)

While the spectrum-as-property-rights debate has implications for the white spaces debate, both sides agree that broadcasters under-utilize their spectrum. That was one part of the message conveyed by Page at the New America Foundation event.

Can a Third Way Satisfy Google and the NAB?

So does that mean that Google is right, and that vacant broadcast channels should yield to broadband? It’s important to consider an alternative – auctioning off at least a portion of the white space. The effort to do this has been promoted by CTIA, the wireless association, in March 2008. FCC Chairman Kevin Martin may be open to it.

I first heard about a variant of this proposal more than a year ago, from Tom Hazlett, at the May 2007 Aspen Institute Roundtable on Spectrum Policy, in Queenstown, Maryland. A long-time critic of broadcasters, Hazlett proposed dividing up the remaining 294 Megahertz – after the DTV transition – into six segments of roughly 50 Megahertz a piece. Each slice could be auctioned off, or, as an alternative, cleared for use by unlicensed Wi-Fi style devices. The nut of the proposal is that auction buyers must bargain with incumbent broadcasters to entice them to either exit their broadcasting business, or to keep from interfering with existing broadcasts. (I lay out the spectrum math in this sidebar.)

I was surprised, though, by the reaction that I witnessed to this proposal in Queenstown. Rather than skepticism, a wide variety of the attendees at the Aspen event – the country’s telecom elite – were simultaneously intrigued and even tentatively supportive of what is, after all, a very radical idea: potentially clearing broadcasters entirely off the airwaves.

In an interview, Wharton dismissed the proposal as unrealistic. “Why would we want to exit a business that we think has served the American people quite well?” Further, Wharton said, broadcasters “like being broadcasters, and serving communities, and being a part of communities. We have a broadcast system based on localism and service to community that is the envy of the world.”

However, to my surprise, Wharton was quite open to the CTIA proposal. He said that a licensing system “certainly makes a whole lot more sense than having these devices put into the market without protection.”

More to the point, however, is what Google itself thinks of selling off the white spaces. At the New America event, I asked Page what he thought about clearing broadcasters and auctioning the band. To my surprise, he replied: “I would be open to any of those things. We have proposed some things like that.”

Speaking specifically about auctioning off big blocks of radio frequencies, Page said: “Having a band manager that bought some spectrum, and then wholesale auctioned it would be a very positive thing. That would be a wonderful thing to have happen.” The tougher point, he agreed, would be enticing broadcasters to make changes.

Concluding Questions

Let me conclude this article with a series of questions about these proposals, each aimed at driving the public policy debate on this subject forward:

  1. What would be, in an ideal world, the optimal amount of spectrum to be set aside for public and unlicensed wireless transmission? Should none, one, two or more of the six 50 Megahertz bands be allocated to unlicensed use?
  2. Are there any broadcasters out there who would, if given a legal opportunity, exit the business of over-the-air broadcasting, and turn themselves into, effectively, cable-, satellite-, and Internet-only “broadcasters?”
  3. The value of the broadcasters’ right that cable operators “must carry” broadcasting signals over cable systems is a big subject that has to be addressed. Does the cable industry need to be enticed into a deal, as well? How much is the “must carry” right worth, and how does that stack up against the goal of liberating the broadcast bands for other, and more productive uses?

Don’t forget to read the sidebar on the spectrum math!

Drew Clark is Executive Director of BroadbandCensus.com, a FREE web service with news and information about competition, speeds and prices offered by high-speed internet providers. He can be reached via e-mail: drew at drewclark.com.