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?
- “Charting the Digital Broadcasting Future,” the final report of the Advisory Committee on the Public Interest Obligations of Digital Television Broadcasters” [PDF]
- “Citizen’s Guide to the Public Interest Obligations of Digital Television Broadcasters“, Benton Foundation.
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
- 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
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.