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- The Federal Communications Commission
has a dirty little secret -- it's living a lie. The federal agency that
asserts government control over radio and television no longer has a constitutional
reason to exist.
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- The FCC has been allowed to regulate
the electromagnetic spectrum, even though such activities are a glaring
exception to the First Amendment's guarantee of freedom of the press and
speech, because courts have supported the contention that the bandwidth
is scare, and radio and television are unique and pervasive. But with the
burgeoning alternative technologies of cable, satellite transmissions and
the Internet, and with the more efficient use of the spectrum, the government's
rationale for this exception no longer holds any water. It is time to free
broadcast of its FCC-imposed constraints and allow a more market-based
approach to the medium.
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- The sinking of the Titanic did more than
create the opportunity for a major motion picture phenomenon 85 years hence;
it prompted the government to regulate the airwaves for the first time.
The investigation following the Titanic disaster discerned that the ship's
distress call was heard by the Marconi Co. wireless telegraph station in
Newfoundland, but because the airwaves were jammed with amateur radio operators
asking questions and spreading rumors, rescue efforts were hampered.
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- The Radio Act of 1912 divvied up the
ether, making room for the exclusive use of certain portions for the military
and requiring a license to broadcast. Later, on the theory that the airwaves
were a scarce and unique commodity, the government enacted rules clarifying
that it owned them, and started regulating the content of radio and then
television to ensure the use of the spectrum furthered the "public
interest."
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- This vague public interest standard has
allowed the FCC and its predecessor agency to impose fines on radio shock
jock Howard Stern for his indecent language, win a Supreme Court battle
in the 1970s against a Pacifica radio network radio station in New York's
airing of comedian George Carlin's "seven dirty words" routine
and, in the early days of radio, deny license renewal to radio stations
broadcasting "propaganda."
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- Constitutional freedom of speech and
press protections prevent the hand of government from deciding if a newspaper
publisher has fulfilled his "public interest" duties that year
so that he may continue to publish the next. There is no governmental regulatory
body that can enact rules requiring that newspapers provide their readers
with educational children's sections, public service announcements and
the opportunity for rebuttal. But broadcast licenses can and do come with
such conditions.
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- This broad regulatory authority was upheld
by the U.S. Supreme Court in the 1969 Red Lion Broadcasting case because
broadcasting was unique and scarce. The court in that case upheld the now
defunct Fairness Doctrine, which required that stations air all sides of
controversial public issues and that all opposing political candidates
be given an equal opportunity to use the broadcast station.
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- But the technology is vastly different
today. Broadcast is no longer the only game in town. With the proliferation
of other modes of sending audio and moving pictures into American homes,
any assertion of singularity by broadcast has been negated. In fact cable,
satellite transmissions and the Internet offer far more programming potential
than traditional broadcast. And with digital convergence on the horizon,
broadcasting and computer transmissions will be indistinguishable. Television
will be computer and vice versa.
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- Nor can it be reasonably argued that
broadcast is any scarcer than many other forms of media or other natural
resource, like paper for newsprint. Today, there are more than 13,000 broadcasters
in this country. Compare that to the 1,520 daily newspapers still publishing.
And the FCC is holding spectrum back. According to J. Gregory Sidak, a
fellow in law and economics at the American Enterprise Institute, the FCC
is functioning like "OPEC, limiting the aggregate supply to prop up
the value" of the licenses already held. Moreover, modern technologies
have allowed much more economical use of bandwidth, allowing for more to
be broadcast on less, and the coming compression technology will wring
even more from the spectrum.
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- All this means that the scarcity theory
no longer holds validity. But don't expect it to be abandoned anytime soon.
That's because government needs to cling to some rationale that allows
it to continue to assert control over this powerful medium.
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- In fact, only one FCC commissioner, Michael
Powell, son of Colin Powell, is expressing concerns about the obsolete
justifications underlying the mandate of the agency. In an April speech
before the Media Institute, Powell openly questioned the continued validity
of the agency's regulatory powers.
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- "With scarcity and the uniqueness
of broadcasting such demonstrably faulty premises for broadcast regulation,
one is left with the undeniable conclusion that the government has been
engaged for too long in willful denial in order to subvert the Constitution
so that it can impose its speech preferences on the public -- exactly the
sort of infringement of individual freedom the Constitution was masterfully
designed to prevent," he said.
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- Both Congress and the Supreme Court should
re-evaluate the powers granted the FCC and its proper role. Economist Sidak
suggests that the FCC become little more than a ministerial agency recording
ownership of the bandwidth the way a title clerk records who holds title
to property. But whatever it becomes, it's time to tell the truth about
what it is.
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- Robyn Blumner is an editorial writer
and columnist at The St. Petersburg Time. She can be reached at <mailto:blumner@sptimes.comblumner@sptimes.com.
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