In what can only be characterized as a warning shot, FCC Commissioner Robert McDowell gave an interesting luncheon speech this week to the Media Institute on the history of the so-called ‘Fairness Doctrine’ and its possible revival. There’s a natural suspicion that triumphalist Democrats will try to revive it in one form or the other to squelch conservative talk radio.
As McDowell rightly observes, the Doctrine was always based on a purely technological rationale: spectrum scarcity. If the radio spectrum is limited and a broadcast license is both scarce and a privilege then the license holder presumably owes some ‘public duty’ to air all political viewpoints.
And as history shows, the doctrine has been used by both right and left to harass political opponents. While the Supreme Court tentatively upheld the doctrine in the Red Lion case, it explicilty based its decision on spectrum scarcity and the technology of 1969 and opined that should technology change, the doctrine would be neither necessary nor desirable.
Well, technology has changed – with a vengeance. And the FCC abolished the doctrine in 1987 as unconstitutional.
In the meantime, let’s rewind the tape for a minute to the Red Lion case. There, the Court explicitly recognized that the spectrum scarcity rationale depended on “the present state of commercially acceptable technology as of 1969” – and, therefore, could be rendered invalid by technological developments. And over the last 30 years, an impressive array of “new” media that would have been considered outrageous science fiction in 1969 has become an established fact in modern American life: cable and satellite television (with its hundreds of channels); satellite radio (with its hundreds of channels); and, of course, the Internet (with its millions of low-cost or free outlets for speech). Add on top of that a plethora of new delivery platforms, such as over 271 million wireless handsets through which Americans can – and are – accessing more and more audio and video content. After just a short while, it becomes obvious that we are awash in not only more sources of information, but more conduits to deliver that data than ever before.
But those numbers don’t even begin to capture the explosion of new competition within traditional media itself since the Red Lion decision. The number of full-power broadcast stations has more than doubled since 1969 – growing from 6,197 radio stations and 851 TV stations back then, to 14,124 radio and 1,758 TV stations in 2008. These stations also now have access to “multicasting” technology, which allows each TV and radio station to broadcast multiple programming channels at the same time. And let’s not overlook low-power broadcast stations. Since 1969, we should add another 851 LPFM radio, 550 Class A TV and 2,272 LPTV stations. That takes total broadcast facility numbers up to 19,555, nearly a three-fold increase since 1969. And it’s a more than 30-fold increase over the 623 radio stations on the air in 1935, when the
Doctrine was emerging. Furthermore, if one takes into account the fact that our spectral efficiency doubles every two and a half years and that, as a result, we are one trillion times more spectrally efficient than when radio was first invented, it becomes obvious that the concept of “spectrum scarcity” is an anachronism.
But the larger point that McDowell makes is one that will not please modern proponents of the doctrine’s revival: that any attempt to revive it – in whatever form – will likely backfire because spectrum scarcity is no longer a concern:
Actually, in a string of media cases stretching back over more than 20 years, various judges on the D.C. Circuit – both Democratic and Republican appointees – have suggested that it is time for the Supreme Court to rethink the concept of spectrum scarcity as a justification for limiting broadcasters’ First Amendment rights. A revived Doctrine would provide a big, bright bulls-eye for those who wish to make that happen. That development would have implications far beyond the Doctrine itself. Much of our content regulation of broadcasters – including most of the FCC’s existing localism rules and the regulations requiring three hours a week of children’s programming – rest on the spectrum scarcity rationale. If that rationale is invalidated, serious legal challenges to all those other content rules may follow.
So, bring it on, all haters of free speech. Perhaps it’s time for a showdown over the broadcast media – and a vindication of free speech.
No related posts.
Twitter
Facebook
RSS
LinkedIn