On whose air?

Monday will be the 50th anniversary of the “vast wasteland” speech Federal Communications Commission chairman Newton Minow gave to the National Association of Broadcasters. (Which must have been like criticizing the Pope for the homily at a Catholic church’s Sunday Mass.)

“The people own the air,” said Minow. “For every hour that the people give you, you owe them something. And I intend to see that your debt is paid with service.”

It is first helpful to point out to those who decry the electronic media today that their complaints are not unique in the 10-decade history of broadcasting. The Federal Radio Commission was created in the 1920s, and then supplanted by the Federal Communications Commission in the 1930s, because the airwaves are licensed by “the public” to owners of radio and TV stations.

The former FCC general counsel Erwin Krasnow thinks the model created well before World War II doesn’t and shouldn’t apply today in a country that takes the First Amendment seriously and a world of 21st-century technology. Krasnow wrote for the Media Institute:

The public-airwaves concept, particularly as it concerns the authority and mission of the Federal Communications Commission, has led to much misunderstanding and confusion. It is a mischievous notion that has been misused as a rationalization for government regulation.

Indeed, the public-ownership notion is the main reason for broadcasting’s second-class status under the First Amendment. According to the late Supreme Court Justice William O. Douglas, the argument that the government can control broadcasters because their channels are “in the public domain” — because they use air space — could be applied to regulate speech in parks, since they are also in the public domain. “Yet people who speak there do not come under government censorship.”

The radio frequency spectrum cannot be seen, touched, or heard. It has existed longer than man, and like air, sunlight, or wind, cannot be owned by anyone. Does a person who uses a windmill to grind grain or pump water owe the “public” for the use of the wind? What about the sunlight used by those who grow wheat, corn, or other crops? And what about the use of the “public’s air space” by aircraft? The list could go on and on, and in each case it can be said that someone is engaging in a business enterprise by using a “public resource.”  …

The spectrum is there whether it is used or not; only when it is enhanced by the use of broadcasters and others does it have any value at all to the public. The talent, technical knowledge, and financial resources of broadcasters have added to the value of the spectrum. Without a signal supplied by the broadcaster, the spectrum is just so much empty space.

Closely related to the public-airwaves concept is the notion of scarcity. The combination of public ownership of the airwaves and scarcity has been used as the underlying raison d’etre for applying the public interest standard to regulate the programming practices of broadcasters. …

… [T] he world of media communications was analog, consisting primarily of paper, ink, and airwaves. The Internet, satellite technology, digital broadcasting, and wireless broadband have revolutionized the way Americans communicate. … There is no blinking from the fact that technological developments have advanced so far that the time has come for both Congress and the FCC to revisit and to renounce the notion of scarcity in today’s digital world.

The time has come for the FCC to take the following actions: Renounce the discredited concept of public ownership of the airwaves, bury the scarcity rationale, and adopt the approach advocated by former FCC chairman Mark Fowler, by applying a public-interest standard based on minimally regulated marketplace forces rather than content regulation. Fowler once said that whether you call the public-trusteeship model of regulating broadcasters “paternalism” or “nannyism,” it is “Big Brother,” and it must cease. Amen.

The FCC was created to first to serve as the organizer of the airwaves. Take a look at the history of most terrestrial radio stations of long standing, and you’ll find that they now operate on different frequencies and with different call letters than when they were created. The FCC stepped in to prevent, for instance, one radio station’s signals from leaking into another’s. The same applies to TV; WTMJ-TV (channel 4) in Milwaukee, the state’s first commercial TV station, started as WMJT-TV (the letters stood for “Milwaukee Journal Television”) on channel 3.

The FCC hearkens back to the days when there was only one kind of radio, AM. Then, sort of simultaneously, came FM and TV. Many radio stations were started by newspapers (such as WGN radio in Chicago, whose call letters mean “World’s Greatest Newspaper,” or so thought WGN’s parent, the Chicago Tribune), and many TV stations were started by radio station owners. (Technically, since Journal Communications purchased the Milwaukee Sentinel in 1962, Journal could be said to have started two TV stations, since the Sentinel started WISN radio and TV.) Such newspaper–radio–TV arrangements were banned by the FCC in 1975, but existing operations, such as the WTMJs, were grandfathered in. (Not many people know that the Post Corp., former owner of The Post~Crescent in Appleton, used to own WLUK-TV (channel 11), originally in Marinette but now in Green Bay.)

The airwaves are theoretically not as regulated as they used to be. (But judge for yourself.) The odious Fairness Doctrine, which required broadcast outlets to (theoretically) broadcast opposing views when covering controversial topics, went away in 1987, and has stayed away despite Democratic efforts to bring it back on the grounds that they don’t like Rush Limbaugh, Sean Hannity, Charlie Sykes, et al. The FCC also now evaluates newspaper/broadcast ownership combinations on a case-by-case basis, allows broadcast companies to own more than one AM/FM combination in a market, and allows broadcast companies to own more than one TV station in a market as long as both aren’t in the top four of that market. (The owner of WLUK-TV also owns WIWB-TV.)

Notice I typed “theoretically.” The FCC fined CBS-TV for the infamous Super Bowl Janet Jackson “Nipplegate,” which has led broadcast outlets to such dumb lengths as using seven-second delays on sporting events lest the broadcaster gets fined for a player’s opining that that last referee’s call was “Bullshit!” (Watch a UW football game on TV, and notice how you can’t hear parts of the student section serenading each other in R-rated terms when you could hear them clearly were you sitting in the stands.) The FCC mandated the V-chip (“V” standing for “Lazy Parent Substitute”) and requires TV stations to carry somewhat dubiously defined “children’s programming,” while allowing rather violent videogame advertising during TV sports that children might be watching. And yet, says the FCC:

The First Amendment, as well as Section 326 of the Communications Act, prohibits the Commission from censoring broadcast material and from interfering with freedom of expression in broadcasting.  The Constitution’s protection of free speech includes that of programming that maybe objectionable to many viewer or listeners.

Maybe it’s just me, but one of those two paragraphs is not like the other. The FCC doesn’t require that stations carry news programming, but it does require that they carry children’s programming as well as the Emergency Alert System, which allows cable TV systems to interrupt broadcast station programming of, say, weather bulletins with weather bulletins for areas that may not apply to you. (That has happened several times in Ripon.)

There remains a fundamental inconsistency between how the print media is treated and how the electronic media is treated by the federal government. My friend the Ripon newspaper owner (who, disclosure requires, uses some media geek as a blogger) needs no government permits (other than follow the usual business and workplace regulations) to publish his newspaper, and he shouldn’t have to. That is a concept that goes as far back as my favorite Founding Father, Poor Richard’s Almanack publisher Ben Franklin. (For that matter, I needed no government permit for Marketplace’s three blogs, nor did I need a permit to start this blog. Nor should I need one.)

But if the publisher wanted to get into radio (there is no question which of Ripon’s two media outlets has superior ownership), he might not be able to in Ripon because he owns the newspaper, even though the public would arguably be served better. (And Ripon’s radio station at least does news; many don’t at all, or don’t do any news that could really be described as “local.”) The FCC ultimately decides who gets to own which broadcast stations on the grounds that the radio spectrum is “scarce,” a concept Krasnow debunks.

Only anti-corporate activists care about which company owns which TV or radio station. The consumer judges with his or her channel-flipper or tuning control which TV or radio station meets his or her broadcast interests. Those who complain the loudest about programming, I suspect, (1) opponents of free enterprise, and/or (2) don’t like the fact that the public’s viewing habits don’t match their own viewing habits as measured by ratings, which is to say they don’t like markets because markets make choices with which they may not agree. (The week of April 18 I watched, respectively, one and none of the top 10 over-the-air and cable TV shows as Nielsen measured.)

Moreover, thanks to the Internet, the lines between traditional forms of media are blurring anyway. All it took to figure this out was to see a candidate for a daily newspaper job shooting video for the newspaper’s website. TV station websites now can have longer-form stories, and newspaper websites can have audio and video. I think within my lifetime we will see newspapers and broadcast outlets merge to where the news consumer will be able to choose the form of news presentation — some combination of print, audio and video, accessible via whatever form PCs take in those days or mobile device.

Neither the FCC nor Congress has figured any of this out. They also have not figured out that the concept of “broadcasting” has been going away for some time, thanks to the increasing diversity of our country (demographically, ideologically and otherwise), and is not coming back. (Note that the highest rated TV show of nearly every season is the Super Bowl; sports is close to becoming the last appointment television we have anymore.) Ultimately, as has always been the case, the media that best serve their audience — whether a geographic, demographic or interest audience — will survive. The FCC should get out of the way of electronic media outlets’ serving their audiences, and the federal government should get out of the way of media outlets’ serving their audiences, period.

3 thoughts on “On whose air?

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