Local television stations have now rallied against the key elements of the Federal Communications Commission’s media transparency proposal, which would require broadcasters to move their “public inspection files” out of their filing cabinets and onto the Internet.
I described these proposals in detail here and here, but the surprising hostility from TV stations—news organizations—to this transparency plan raises a broader question: Do broadcasters believe that they even have “public interest obligations” anymore? Judging from some of the unintentionally hilarious comments they submitted to the FCC docket (more on that shortly), they enthusiastically embrace the concept as long as it remains completely devoid of meaning.
But first, to understand how we got here and why it matters, let’s review the history. When the FCC gave broadcasters the rights to use the spectrum, starting in the 1930s, it offered a simple compact: taxpayers will allow you to use the public’s airwaves—for free—and in exchange you have to serve the community, beyond simply airing the most popular programming.
For a while, the FCC gave stations detailed guidance on how to fulfill these “public interest obligations”—for instance, by having a minimum number of hours of public affairs programming. If the stations didn’t meet the requirements, they would, in theory, lose their licenses. Broadcasters endorsed the compact. As the National Association of Broadcasters testified recently: “Broadcasters have and will continue to take seriously their responsibility as broadcast licensees to serve the public interest.”
Recently, I led an effort at the FCC that evaluated this system. Our report, called “Information Needs of Communities: The Changing Media Landsape in a Broadband Age,” concluded:
Over time, court rulings, constitutional concerns, and FCC decisions have left a system that is unclear and ineffective. The current system of public interest obligations for broadcasters is broken: TV stations are required to maintain programming records and other such paperwork, which FCC staff and members of the public rarely read.
(Some provide detailed descriptions of substantive news programming; others list the sponsorship of an America’s Next Top Model tryout as fulfilling the obligation to provide issue-responsive programming.)
Licenses are routinely renewed, regardless of whether a station is investing huge sums in local reporting or doing no local programming at all. Over the FCC’s 75-year existence, it has renewed more than 100,000 licenses. It has denied only four renewal applications due to the licensee’s failure to meet its public interest programming obligation. No license renewals have been denied on those grounds in past 30 years.
The current system operates neither as a free market nor as an effectively regulated one; and it does not achieve the public interest goals set out by Congress or the FCC. [fcc.gov/infoneedsreport]
But if the system is broken, what should be done instead? As we considered what recommendations this report should make to the FCC, I saw four possible paths.
1) Require the stations to once again do a minimum amount of public affairs programming.
2) Charge the broadcasters a fee for use of the spectrum.
3) Adopt a pure free market system.
4) Emphasize disclosure.
The first option was favored by one of the commissioners, Michael Copps, and some public interest groups. I decided against recommending this because it would necessitate the FCC deciding which stations had done legitimate public affairs programming and which hadn’t. (Does Oprah count? What about weather? Judge Judy?). Broadcasters—appropriately, in my view—opposed this approach.
Alternatively, one could consider more free market solutions—such as imposing a “spectrum fee.” Instead of paying for the use of spectrum by providing “public affairs programming,” broadcasters could give taxpayers cold hard cash. The money might be used to create an endowment for public broadcasting (obviating the need for annual congressional appropriations once and for all)—an approach endorsed by President Reagan’s conservative FCC chairman Mark Fowler, and, more recently, by several prominent liberals. I like this approach in the abstract but concluded that, in the off-chance Congress approved such a fee, the funds would evaporate into the general Treasury rather than helping struggling local media or public broadcasting.
In any event, broadcasters oppose this free market approach, too.
A more radically pure free market system would be to allow the licenses to lapse at the end of their eight-year term and hold auctions for use of the reclaimed spectrum. Broadcasters could pay taxpayers for long-term use of the spectrum and then air whatever programming they wanted. But this would require them to pay substantial amounts of money to secure ongoing use of the spectrum, so they would strongly oppose that free market idea.