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.