Despite Supreme Court Ruling, We Still Need Broadcast Regulations.

In a recent editorial, the New York Times lead readers to believe that due to technological advances, the Federal Communications Commission should lift free speech regulations on radio and television broadcasters. However, those readers are due some proper context, as that argument opens the door to some disastrous ideas about how to manage the public airspace.



Some background on the story behind the editorial: the Court of Appeals for the Second Circuit in New York (CASCNY) declared that the three-decade old FCC regulations on fining radio and television broadcasters for airing expletives was unconstitutional, writing: “the FCC’s policy violates the First Amendment because it is unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue here.”

With laws passed by congress and signed by President Bush, the FCC tightened regulations on content in 2006, after Janet Jackson exposed her breast to millions watching a Super Bowl halftime show, and several high-profile celebrities used profanities during televised award shows. The price of an FCC fine for indecency increased tenfold, up to $325,000 per incident. This prompted Fox Television Stations, Inc. to sue the FCC in April 2006, claiming the commission’s policies violated the First Amendment.

CASCNY agreed with Fox, and wrote in June 2007 that the FCC “must provide a reasoned basis” for the changes it makes to its policies regarding indecent language. The Department of Justice then appealed to the Supreme Court of the United States (SCOTUS), which overturned the previous ruling, writing that FCC’s decision wasn’t made arbitrarily. But SCOTUS didn’t make a decision whether the FCC’s regulations violated the First Amendment and returned the case to CASCNY to make that determination.

CASCNY made its decision July 13. While the court said the current policy was unconstitutional, it concluded that the FCC could develop a policy regulating content that did not violate the First. According to the Times story, legal experts believe the DoJ will appeal to the Supreme Court.

The Times lauded the appeals court’s decision:

“But a common-sense communications policy should not stop at indecency. The Supreme Court, if it takes up the case, should end all government regulations on the content of broadcasts.”

The Times seem to be headed for a fundamentalist interpretation of the First Amendment. But instead of justifying deregulation with absolute free speech, the Times forgo that low-hanging fruit in favor of more sophisticated reasoning. The next immediate graph plunged the argument into some murky depths:

“Technological change has undermined any justification for limiting the First Amendment rights of broadcast media outlets but not others.”

Granted, the Times only and explicitly argued the FCC stop regulating content over the airwaves -- not stop regulating the rights (licenses) to broadcast on public airwaves. Ownership regulations and other financial limits should be preserved, the Times added. But it began to formulate an argument that because of the internet and the communications revolution, it’s unjust for the FCC to exercise its regulatory authority. In a nutshell, the argument is: “anything is accessible on cable television or the internet nowadays, so it’s not fair to put rules on broadcasters.”

The Times cited Judge Clarence Thomas in an attempt to give the claim some legitimacy. Thomas made the same argument in a concurring, but separate opinion in a related case in 2009:

“… Even if this Court’s disfavored treatment of broadcasters under the First Amendment could have been justified at the time [they were enacted]…dramatic technological advances have eviscerated the factual assumptions underlying those decisions. Broadcast spectrum is significantly less scarce than it was 40 years ago.”

To buy into these ideas is to neglect the history of the FCC and why it was created. The Communications Act of 1934 created the Commission and gave it the purpose:

“…of regulating interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible, to all the people of the United States, without discrimination on the basis of race, color, religion, national origin, or sex, a rapid, efficient, Nation-wide, and world-wide wire and radio communication service with adequate facilities at reasonable charges, for the purpose of the national defense, for the purpose of promoting safety of life and property through the use of wire and radio communications…”

Note the emphasis to regulate access, “so far as possible to all the people of the United States.” One could interpret “all the people” as analogous to “public,” meaning the airspace is public property. Indeed, SCOTUS had the same interpretation of the Communications Act when it ruled in Red Lion v FCC in 1969 that because the radio spectrum was a scarce, public space, radio stations could be regulated by a “fairness doctrine,” or that “each side of those issues must be given fair coverage.”:

“Before 1927, the allocation of frequencies was left entirely to the private sector, and the result was chaos. It quickly became apparent that broadcast frequencies constituted a scarce resource whose use could be regulated and rationalized only by the Government. Without government control, the medium would be of little use because of the cacophony of competing voices, none of which could be clearly and predictably heard. Consequently, the Federal Radio Commission was established to allocate frequencies among competing applicants in a manner responsive to the public ‘convenience, interest, or necessity.’”

The phrasing here makes it clear that the decision was made not only because the spectrum was scarce, but because the spectrum belonged to the American people. And it fell upon the FCC, whose authority is vested by the United States Government, the democratic body elected by the people and for the people, to make sure that these airwaves remained the right of the American people, and therefore managed in a democratic fashion.

Instead of acknowledging this history of the FCC as a caretaker of public space, something which continues to have relevance, the Times chose to frame that regulatory body as something of a dinosaur:

“The government originally began regulating the content of broadcasts when the networks were the only game in town, watched in huge numbers by Americans in the days before cable television and the Internet.”

Broadcast is still an important medium. Strictly from an economic perspective, broadcast advertising was a $41.8 billion market in 2009, according to the Television Bureau of Advertising. Broadcast television alone outstripped all other advertising markets, including cable television, internet and newspapers. Americans still spend significantly more time with television than any other medium, according to the most recent TVB study, and reaches 90% of adults over age 18. Broadcast television, in particular, remains the dominant source for local news.

But while the digital conversion opened up the 700 MHz frequency and allowed radio and television broadcasters the ability to multicast channels, it has not suddenly created more spectrum. In actuality, the FCC mandate reduced the amount of broadcasting spectrum available to television and radio broadcasters by 25%. And the radio spectrum is still finite, even if it is used more efficiently.

But more to the point, the spectrum still belongs to the people, and should be regulated as such. As the Environmental Law Institute, an independent research and education center advocating environmental protection through law, policy, and management, reported, it is a natural resource and should be given special status considering its scarcity:

“Based on the assertions of the Court, the president, and academics, it can safely be concluded that the policy of the U.S. government is that the electromagnetic spectrum is a scarce natural (and national) resource... In spite of this highly unusual consensus throughout different layers of government and academia, the government does not treat the spectrum like other natural resources.”[2]

“If the electromagnetic spectrum is a natural resource— which most experts believe it to be—then it should be managed more like one. Instead of recognizing this resource as such, the United States and countries in Europe relegate the management and supervision of this natural resource to technocrats who deal with telecommunications and speech. Of course the spectrum as a natural resource has other crossovers that do not exist in other resources; it is a medium for communication, and the FCC’s role in supervising content may still be relevant.”[5]

Even in the Networked era, broadcast ownership remains a relevant topic. Under the pretense of tech advances, limits on the number of radio stations a single entity can own were repealed in 1996, to calamitous results. Between the deregulation of 1996 and 2003, there was a 5.9 percent increase in the number of radio stations, but a 35 percent drop in radio owners, according to an FCC report. Another FCC report in 2004 found that consolidation hurt news coverage in local markets. More recent studies showed the social toll of deregulation: the probability that a particular station is owned by a minority or a female is significantly lower in concentrated markets.

The argument that the FCC should stop regulating broadcaster’s content because of technological change has considerable danger. To say that technological advancements undermine any justification for certain regulations is to say that they undermine justification for any regulation. The appeals court decision should not be used as a precedent to undermine the FCC’s stewardship of the people’s airwaves.

Image “Visual Simile Symbol Icon Echoes - La Antena,” by Dominic Alves, is used in accordance with a Creative Commons Attribution 2.0 license.