Radical Thought

Sometimes it works out this way: as I cobble together our weekly newsletter, the same topic ends up being addressed from different angles in different articles. (Around our office, we call that the “accidental topic of the week.”)

That’s exactly what happened this week, as two broadcasting luminaries took issue with two separate topics that define broadcast free speech—and free speech in general—in America.

I have posted them here as guest blogs:

• The Unfairness Doctrine by Bill O'Shaughnessy
• Are the Airwaves Really Public? by Erwin Krasnow

I read with great interest Erwin Krasnow’s article, because I have long advanced his argument; I have scoured the Radio Act of 1927 and subsequent legislation, and I have never been able to find any mention of the fact that the airwaves belong to the public. Now we have validation from a prominent communications attorney, complete with lawyerly citations to back up his argument.

And then there’s our good friend Bill O’Shaughnessy, who rails against the Fairness Doctrine, arguing that this, too, is a suppression of our Constitutional right to free speech.

Both gentlemen make the same compelling argument—I’m paraphrasing here—that our government has hijacked our rights, not just as business operators, but as citizens of this land.

The governmental environment in which we operate presents far too many immediate threats for us to engage in frivolous philosophical discourse. But what Erwin and Bill are saying is far too important for us to ignore.

I am enough of a realist to realize that sudden change is impractical, to say the least. But I do urge the leaders in our industry, as they wend their way through the halls of power, winning and losing skirmishes along the way, never to lose sight of the free-speech freedoms Constitutionally guaranteed to all Americans—and to find a way to reclaim them in the long run.

Virtually all the leaders in our industry to whom I’ve talked are resigned to a tightening regulatory environment, regardless of which party takes the White House in November. But both candidates are preaching change. I can think of no better way to demonstrate the sincerity of that sermon than to make right a great wrong that has plagued our industry—and the public—for far too long.

Memo to Messrs. Rehr, Haley, Newberry et. al.: As we stay on message, speaking in One Voice for Radio, let’s make restoration of free speech a central part of the message.

Guest Blog: The Unfairness Doctrine

By William O’Shaughnessy

An influential communications blog recently called for the re-imposition of the so-called Fairness Doctrine, suggesting that House Speaker Nancy Pelosi might favor the effort. “It will not surprise us if the Fairness Doctrine returns and we wouldn’t get all that upset about it. Speaker Nancy Pelosi wants it back on the books. It could be good for broadcasting.”

I’m absolutely opposed to this and just to make myself clear, we’ll refer to it henceforth as the Unfairness Doctrine.

The misnamed doctrine was struck down on August 4, 1987 by an enlightened FCC of its day. And although the darn thing sometimes resembles Lazarus in the Bible in that it keeps jumping up again and again, I hope we won’t associate ourselves with any recurring assault on the First Amendment rights of broadcasters, no matter how agreeable and deceptively named.

It’s very simple and very fundamental: The Federal Communications Commission and the Congress should not be allowed to dictate our agenda or shape our priorities. Our opposition to any Unfairness Doctrine is based, in every season, on the bedrock, fundamental wisdom of the Founders: “Congress shall make no law. . .” You know the rest.

The bloggers may have Nancy Pelosi on their side. I’m afraid I only have James Madison.

In our best moments we are electronic journalists at the People’s business. And clearly, it (any doctrine by government fiat or decree) would be an impermissible intrusion into the editorial process and an inhibitor rather than promoter of controversial expression. It would unquestionably inhibit the presentation of controversy. So much for “balance.”

I don’t think we want to be among those who would intensify the chill an Unfairness Doctrine would induce. We either believe in the principle that broadcasting is entitled to the full freedom of the press that the First Amendment guarantees. . .or we do not.

Governor Mario Cuomo instructs us:

“You can’t get at bad taste and destructive communication through regulation. That’s just substituting one evil for another. The ceding of authority, on a basic principle, has to come back to haunt us.”

The great Cuomo (whom the Boston Globe calls “the preeminent philosopher-statesman of the American nation”) is saying that maybe this generation of broadcasters, buffeted by new technology and competition (and consolidation), can survive by what I’ve called our “obsequious acquiescence” and by pulling our punches on free speech and content issues like an Unfairness Doctrine, but our kids won’t—the people we leave our businesses to.

BARGAINING CHIP. I’m afraid broadcasters are not united in pushing for our long-overdue independence from content regulation. In every season, it seems, structural, so-called “pocketbook” issues take precedence among the speculators and investors, and even some broadcasters—those “market managers” who operate out of airport lounges with their PalmPilots and Blackberries, beholden to corporate masters a whole continent away. They’ll beat their breasts about ownership caps, newspaper-broadcast cross-ownership, multicast-must carry, dual-carriage, retransmission consent, a la carte pricing, fin-sin rules, performance taxes, the DTV spectrum and those white spaces in the DTV band, low power FM, satellite radio, SOARS repeaters, copyright royalties, main studio location, competition from telcos and iPods, etc.

But the broadcasting establishment and the NAB Board, sadly, have always viewed the First Amendment as a stepchild among our priorities and even, occasionally, as a bargaining chip.

So before anyone attempts to bestow their imprimatur, it would be wise to give this some thought lest a lot of owners, people who make profits in this business (again, read: profession), will sell freedom for fees or accommodation on structural, competitive issues. They will make deals with Speaker Pelosi and Congress. They will accept regulation we shouldn’t be accepting—all in exchange for an opportunity to make more money, thus adding their weight to a destructive principle.

And what’s more (and worse), they will flee from any controversial or meaningful programming and throw Radio back to its “jukebox era.”

That is the real danger. And I don’t think you want to encourage that.

UNITED EFFORT. Why not instead use our resources and energy to revive our own flagging spirits and lack of attention to these fundamental issues? All elements of today’s modern media would be better served by a united effort by broadcasters, podcasters, bloggers, Internet entrepreneurs, cable operators et. al.—all those now firmly fixed, and those just entering, the Information Age—to develop a consolidated, joint resolve against government intrusion into content and free expression.

Fairness? Balance? No matter how comforting it would be for the Congress and the Commission to wrap themselves around “fairness,” a concept not explicitly or penumbrally protected by the Constitution as free speech and free press expressly are, I am confident the Supreme Court will one day be compelled to concentrate on the clear, certain, elegant, unvarnished language in the First Amendment of the Bill of Rights should we ever again be confronted by the siren song of “fairness” by government fiat, decree or doctrine.

No one disputes what has been called the “coarsening” of our culture. And yet the quest for “fairness” and “balance,” while understandable, and even commendable, is every much a fool’s errand as the crusade to install “decency” on the nation’s airwaves. And perhaps even more dangerous.

Bill O’Shaughnessy is president & CEO of Whitney Radio and editorial director of WVOX, New Rochelle, NY. He can be reached via cindy@wvox.com.

Guest Blog: Are the Airwaves Really Public?

By Erwin Krasnow

Commissioners Michael Copps and Jonathan Adelstein, as well as citizen group advocates, frequently proclaim that the airwaves belong to the people. Indeed, the concept of “public airwaves” is the foundation for the return to heavy-handed regulation proposed by Chairman Kevin Martin and his colleagues in the localism proceeding.

In April the FCC released a revised edition of a manual entitled “The Public and Broadcasting: How to Get the Most Service from Your Local Station,” which broadcast stations are required to provide to any member of the public who requests a copy. The manual asserts, without any citation to legal authority, that station licensees are trustees of the public’s airwaves.

The concept of public ownership of the airwaves is repeated over and over, without a close examination as to whether the notion has any legal basis or makes any sense. As Franklin Delano Roosevelt once said, repetition does not transform a lie into the truth.

If you review the record, it is clear that Congress never intended the public to control the airwaves. Here, for example, is Sen. Clarence Dill, one of the coauthors of the Radio Act of 1927, on the subject of ownership of the airwaves: “The government does not own the frequencies, as we call them, or the use of the frequencies. It only possesses the right to regulate the apparatus. We might declare that we own all the channels, but we do not.”

Or take the late Supreme Court Justice William O. Douglas. He debunked the argument that the government can control broadcasters because their channels use air space by comparing broadcasters to people who speak in public parks—like the airwaves, also in the public domain. “Yet people who speak there do not come under government censorship,” he said.

Even the Congressional Research Service, which conducted a study of the problems raised by proposals to assess fees from broadcasters for use of the spectrum, concluded that “the notion that the public or the government owns the airwaves is without precedent. We find no case that so holds. Furthermore, when enacting the Radio Act of 1927, the Congress specifically deleted a House-passed declaration of ownership.”

But if these arguments are not persuasive, think of the utter impossibility of anyone owning the airwaves. The radio frequency spectrum cannot be seen, touched, or heard. Like sunlight and the wind, it has existed since the beginning of time—long before any person was around to claim it as their own. The spectrum—actually pulses of energy at different frequencies—cannot be contained, or divided, or held in any way. So how can anyone own or control it? The very idea is preposterous.

How, then, has the government been able to regulate broadcasting? Actually, the FCC’s paternalistic control of radio and television slipped in the back door as an unwanted byproduct of a regulation that is, in fact, necessary for orderly use of the electro-magnetic spectrum. (Yes, even those of us who advocate a hands-off approach to FCC regulation of broadcasters agree there is a place for some government supervision.) Without the FCC’s rules on who can use what part of the spectrum, chaos would reign—signals would crash into each other, and clear communications could be impossible.

The late Harvard Law School Professor Louis Jaffe hit the nail squarely when he said, “The popular cliché that the broadcaster is using the public’s airwaves is a vague, indeterminate concept. I think we would have heard little of it had not the existing technology required regulation of broadcasting to avoid interference. For, in one way or another, we all use air and space. To speak of owning such resources is a solecism.”

Originally created to be the traffic cop of the airwaves, the FCC has taken on the role of a morals and vice squad. In the process, the electronic media, one of the most important voices in our society today, have been deprived of a basic constitutional right to freedom of speech.

None of this denies that the spectrum does have a special character, or that broadcasters have a special responsibility to use it in a way that is beneficial to society. In any event, the public still has recourse to stop a broadcaster who is doing a poor job. For one thing, there’s that dial. Every time you change the channel, you are, in effect, voting for or against a station’s programming. The public can also file petitions to deny a broadcaster’s license at the FCC.

But the public does not own the airwaves. The spectrum is there, whether it is used or not. Only when it is enhanced by broadcasters, who fill the airwaves with information and entertainment, does it have any value at all to the public. With their talent, technical knowledge and financial resources, broadcasters have increased the value of the spectrum for everyone. And without a signal, supplied by your local broadcast station, the airwaves would be so much empty space.

Erwin G. Krasnow is a partner with Garvey Schubert Barer, Washington, DC and former general counsel of the National Association of Broadcasters. This article first appeared in, and is printed with permission of, Broadcasting & Cable, copyright 2008.