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October 11, 2017

Trump's "Threat" About NBC's Broadcast License May Be "Dangerous," But It's Rooted in the Public Interest Requirement for Broadcast Licenses

David Harsanyi criticizes Trump's tweet about NBC's "#FakeNews" and whether or not it should have a broadcast license:

Harsanyi argues that it's a dangerous road to go down, threatening to deny someone's free speech rights, even if they are putting out "#FakeNews," as NBC allegedly did here.

But there's an aspect of this he entirely omits, which makes me wonder if he even knows about it. (This is so important that I imagine he'd mention if, if only to explain why it doesn't matter, if he knew about it.)

The broadcast spectrum is not infinite. It is a scarce resource. So who gets to broadcast on the TV bands? Why can't I just put up a tower and start broadcasting Ace TV on the bandwidth reserved for NBC TV?

The answer is that the government grants -- which they don't have to do -- the right to broadcast on a specific electromagnetic band and also specifically forbids others from broadcasting on that band, so that you don't interfere with the license-holder's signal. (This is why, I think, you are only allowed certain wattages of broadcast power -- you may broadcast on a certain frequency in one area, but only up to 50,000 watts or whatever so that someone 100 miles away (or whatever) can also broadcast on that frequency, without you both interfering with each other).

The government grant of bandwidth broadcast rights is not unconditional: Because this is not just a matter of free speech, as publishing a newspaper is (your newspaper doesn't stop me from publishing a newspaper), but also a matter of allocating a scare resource (broadcast bandwidth) to a large number of people who would like that bandwidth, but cannot all be accommodated, the government imposes requirements that the license-holder "serve the public interest" by, among other things, improving democratic governance.

The public trustee model has given rise to a distinct genre of First Amendment jurisprudence. Unlike newspapers and magazines, broadcasters have affirmative statutory and regulatory obligations to serve the public in specific ways. Despite the philosophical complications and political tensions that this arrangement entails, the U.S. Supreme Court has repeatedly upheld the public trustee basis of broadcast regulation as constitutional.(4)

The reason that broadcasters have substantial, but not complete, First Amendment protection, said the Court, is the scarcity of broadcasting frequencies and the government licensing that is necessary:

When there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write or publish....A license permits broadcasting, but the licensee has no constitutional right to be the one who holds the license or to monopolize a radio frequency to the exclusion of his fellow citizens.(5)

Therefore, the Government may require a licensee "to share his frequency with others and to conduct himself as a proxy or fiduciary with obligations to present those views and voices which are representative of his community and which would otherwise, by necessity, be barred from the airwaves."

The 1934 Communications Act dismissed the idea that everyone had free speech rights to broadcast in any spectrum they liked, but did so by declaring that those licensed to broadcast must do so while serving the public interest:

The 1934 Act, which continues to be the charter for broadcast television, ratified a fundamental compromise by adopting two related provisions: a ban on "common carrier" regulation (sought by broadcasters) and a general requirement that broadcast licensees operate in the "public interest, convenience and necessity" (supported by Congress and various civic, educational and religious groups).(1) The phrase was given no particular definition; some considered it necessary in order for the government's licensing powers to be considered constitutional.(2)

By prohibiting a common carriage regime, Congress essentially prohibited non-licensees from having free speech rights in the broadcast medium except as authorized by "public interest" requirements. Only government-sanctioned licensees would, as a rule, have free speech rights in broadcasting. While the limited number of licensees was in one respect dictated by the physics of the electromagnetic spectrum (only so many stations could operate without chaos resulting), the "scarcity" was also dictated by the government licensing scheme, which banned a regime of common carriage. The scarcity of access to the airwaves is, in this sense, a creature of government licensure.

The government's exclusionary licensing arrangement was justified by requiring that broadcasters act as public fiduciaries. Their primary duty would be to serve the "public interest, convenience and necessity," as expressed in both the 1927 and 1934 Acts. The Federal Radio Commission that was created by the 1927 Act described the "public trustee" model in this manner:

[Despite the fact that] the conscience and judgment of a station's management are necessarily personal....the station itself must be operated as if owned by the public....It is as if people of a community should own a station and turn it over to the best man in sight with this injunction: "Manage this station in our interest..." The standing of every station is determined by that conception.(3)

To give substance to the public interest standard, Congress has from time to time enacted its own requirements for what constitutes the public interest in broadcasting. But Congress also gave the FCC broad discretion to formulate and revise the meaning of broadcasters' public interest obligations as circumstances changed.

You know those community and minority affairs shows you see broacast at like 5am on Sundays? Like the ones Tim Meadows parodied on SNL (when it was actually funny)?

Yeah, those are FCC mandated, as being part of the "public interest."

The FCC determined that whether a licensee was acting in the public interest depended on whether or not it was serving these needs:

1. Opportunity for local self-expression.

2. The development and use of local talent.

3. Programs for children.

4. Religious programs.

5. Educational programs.

6. Public affairs programs.

7. Editorialization by licensees.

8. Political broadcasts.

9. Agricultural programs.

10. News programs.

11. Weather and market services.

12. Sports programs.

13. Service to minority groups.

14. Entertainment programming.The FCC noted that the categories were not intended as "a rigid mold or fixed formula for station operations," but rather were "indicia of the types and areas of service" that constitute the public obligations of broadcasters, as evaluated at license renewal time.

I'm not going to look this up right now, but I've always understood the entire institution of a nightly newscast on TV channels was a mandate to satisfy the FCC's public interest requirement.

Note that there was a lot of deregulation of the airwaves in the 80s and then again in 1996. Most of the evaluation process as to whether or not a station was serving the public interest was dispensed with:

The FCC's vision of the public interest standard and how to achieve diverse programming -- underwent a significant transformation in the 1980s. As new media industries arose and a new set of FCC Commissioners took office, the FCC made a major policy shift by adopting a marketplace approach to public interest goals. In essence, the FCC held that competition would adequately serve public needs, and that federally mandated obligations were both too vague to be enforced properly and too threatening of broadcasters' First Amendment rights.(17) Many citizen groups argued that the new policy was tantamount to abandoning the public interest mandate entirely.

Pursuant to its marketplace approach, the FCC embarked upon a sweeping program of deregulation by eliminating a number of long-standing rules designed to promote program diversity, localism, and compliance with public interest standards. These rules included requirements to maintain program logs, limit advertising time, air minimum amounts of public affairs programming, and formally ascertain community needs.(18) The license renewal process -- historically, the time at which a station's public interest performance is formally evaluated -- was shortened and made virtually automatic through a so-called "postcard renewal" process.(19) The FCC also abolished the Fairness Doctrine, which had long functioned as the centerpiece of the public interest standard.(20)

In 1996, Congress expanded the deregulatory approach of the 1980s with its enactment of the Telecommunications Act.(21) Among other things, the Act extended the length of broadcast licenses from five years to eight years, and instituted new license renewal procedures that made it more difficult for competitors to compete for an existing broadcast license. These changes affected the ability of citizens and would-be license applicants to critique (at license renewal time) a broadcaster's implementation of public interest obligations. The 1996 Act also lifted limits on the number of stations that a single company could own, a rule that historically had been used to promote greater diversity in programming.

But while the "public interest" requirement has been loosened a lot, it is still part of the requirement for allocating a bandwidth to one particular company when many other competitors would want it themselves.

Broadcasters don't have a right to this spectrum. They apply for exclusive use of part of the spectrum, with the government granting them this spectrum subject to its oversight and, deregulation aside, still "serving the public interest."

Many people have proposed auctioning the broadcast spectrum rather than simply giving it to the networks free. Why should the government give away a valuable commodity to cronies and Legacy Broadcasters instead of letting/making companies pay for the rights?

Also, by the way: the entire rationale for the 1980s deregulation is that market forces alone would result in the diversity of opinion and service of the community that the older, more-detailed rules tried to push.

But has that actually happened? Do you see a diversity of opinion on the networks? Or is it all just the party line? Do you see that all groups within the local broadcast monopoly have their news needs satisfied, or just White Gentry Liberals?

It should be noted that in the 1930s, the "public interest" rule was used to "push propaganda stations" off the air.

I agree with Harsanyi's general worry about the government getting involved in a station's editorial decision-making. (Which, by the way, no version of the various communictions acts have permitted; the acts have dictated broad rules, but courts have found that while broadcasters do not have full free speech rights, they still have significant parts of free speech rights, and that includes most questions of editorial control.)

Yet it must still be remembered:

1. Per the law, you have the right to speak, but you do not have the right to have exclusive use of a scare spectrum of broadcast bandwidth. You either pay for this (as cell phone carriers do) or you "serve the public interest" to get a free grant of the bandwidth.

2. Even post-deregulation, the idea was still that "market forces" would achieve what the previous laws' more persnickety rules intended to achieve. If that has not actually come to pass -- and it has not -- the rules can be changed.

3. There is precedent for pushing "propaganda stations" off the air.

Is all of this dangerous? Yes it is. One man's propaganda is another man's truth, and vice versa. And there is no doubt that liberals attempt to use these same "public interest" requirements to deny licenses to Fox TV and get Rush Limbaugh taken off the air.

But the left is already doing these things. Why can't the right call the left's propaganda for what it is and demand that they, too, "serve the public interest," the whole public's, and not just White Gentry Liberals' interests?

I don't think I actually want to go down this road, but I'm not sure I object to the networks being reminded that their broadcast licenses are granted by the government -- but they don't have to be.

Exit Question: The networks have abandoned all pretense of being nonpartisan in their reportage. If they go even further, and become even more overt shills for the Democrat Party -- are we all ready to collectively say "Yes, giving the networks a scarce commodity for free in order to act as a federally-subsidized branch of the DNC is in the public interest, and a good use of a scarce, federally-regulated resource?"

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posted by Ace at 06:24 PM

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