The FCC's Little Secret -
No Longer Any Reason For It
By Robyn Blumner, Columnist <>
The St. Petersburg Times
From Michael Feeney <>
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.
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.
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.
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."
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."
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.
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.
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.
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.
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.
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.
"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.
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.
Robyn Blumner is an editorial writer and columnist at The St. Petersburg Time. She can be reached at <

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