Rewriting the Broadcast Regulation Rules

OVER THE air broadcast regulation now violates the spirit of the First Amendment's defense of freedom of the press.

Broadcast regulation is still rationalized under an outdated assumption that the radio spectrum and channels are scarce resources, but new communications technologies — cable TV, VCRs, DVD-ROMs, digital recorders, direct satellite broadcasting, PCs and the Internet, cellular phones, multicasting via digital compression of channels, Wi-Fi, Wi-Max, HD radio, and using white space and spectrum hopping technology, smart antennas that electronically focus radio toward their intended targets for high speed broadband connectivity — have successfully undermined all the old assumptions about scarcity.

If broadcasting is to continue to be regulated, a common carrier model like the one used for the Postal Service or transportation would allow the radio frequencies or airwaves to be made available to anyone on a first-come, first-serve basis and without censorship of content.

The scarcity rationale is a relic of the early 20th century that allows government to censor broadcasting by grants of exclusive licenses to some, but not to all. We now live in a world of channel or portal abundance, if not super-abundance. This is why it is increasingly difficult for traditional media to aggregate a huge mass audience.

There is actually no more or less spectrum now than ever before or will be in the future. Since the beginnings of the 20th century, no new spectrum has been added or subtracted from the universe. What has occurred since that time is that human beings have invented better communication technology, resulting in the more efficient and effective use of available spectrum to transmit interactive sound, data, text, and full-motion video.

Particularly during the past 20 years, the convergence or blending of traditionally different media, such as print, telephony (telephones regulated as common carriers) and broadcasting, has broken the boundaries and regulatory regimes that developed before the digital revolution arrived.

Common carrier regulation is generally associated with the Postal Service, public transportation, and such public utilities as water and electricity. Historically, this type of regulation has been applied to local monopolies in order to protect consumers from arbitrary pricing and substandard service. Government utility commissions would allow a fixed rate of return for the guarantee of universal service on a nondiscriminatory basis.

The Postal Service, for example charges everyone the same rate for a first-class mailing. Moreover, it does not censor the content of mail, except in extreme cases based on just cause.

Cable access TV services operate as common carriers. They provide access to community members on a first-come, first-serve basis and do not censor content. Moreover, different classes of users are expected to provide different types of programming content, e.g., public, educational and government programming.

In a like manner, all over-the-air broadcasting could legally be regulated as common carriers, sharing their facilities with others. The 1969 decision by the Supreme Court in Red Lion v. FCC made clear that no one has a First Amendment right to be a broadcaster and that the First Amendment rights of the viewers and listeners are paramount over broadcasters. Moreover, there is no property right in the broadcast license. Therefore, common carriage regulation of television could be phased in when current license terms expire after eight years.

On the other hand, Congress could amend the Communications Act to require the FCC to allocate spectrum now used by TV stations to "unlicensed broadband," thus creating the opportunity for the rapid deployment of ubiquitous wireless, high-speed broadband. This approach is more attuned to First Amendment principles, and, it would go a long way in spurring the economy, closing the digital divide, delivering better e-government and e-citizen services, better healthcare and emergency services, lifelong learning opportunities, and promoting national security.

Public policy and communication law simply have not kept up with rapidly changing and evolving technology. This has led to a situation where the old rationales for broadcasting regulation fail to pass muster on First Amendment grounds. If Congress does not see this First Amendment elephant in the room now, then when will it, if ever?

Nolan Bowie, a guest columnist, is an adjunct lecturer in public policy and a senior fellow at the John F. Kennedy School of Government.