Posted February 7, 2008 by Meredith McGehee
Broadcasters Should Accept "Wise Use" Option 
The following ran today as a guest observer piece in TVNewsday.
In his Jan. 25 column (“FCC’s Rereg Push is Big Test for the Rehr NAB”) TVNEWSDAY Editor Harry Jessell condemns the new enhanced disclosure rules and local programming obligations from the FCC as “regulatory handicaps” and a setback for the television broadcasters’ “decades-long struggle to obtain full First Amendment rights.”
In Jessell’s estimation it is a failure of the NAB to have not derailed the proposals before they saw the light of day. The comment speaks volumes about what lapdogs the regulators, and even Congress, have become.
The notion that broadcasters are in a struggle to obtain their “full First Amendment rights” would be laughable on its face, if it hadn’t paved the way for so many victories for business interests over the last decade.
Yes, broadcasters have First Amendment rights, and the Congress and the FCC must respect those rights. But federal law makes clear that broadcasters must “pay back” the public for their use of the public spectrum by fulfilling specific statutory public interest obligations.
There must be an ongoing effort to calibrate the balance between fulfillment of these public interest obligations and the free flow of information while avoiding the heavy-hand of government-dictated content.
This should not be an all-or-nothing proposition. But since the 1980s, that balance has been out of whack, with broadcasters reaping the benefits of their exclusive licenses while simultaneously working to eliminate the public obligations that were part of the bargain.
At least for now, the public trustee model that is the basis for the government’s allocation of broadcast license is still the law of the land.
With the Telecommunications of Act of 1996, the Congress affirmed that unique status and in some ways expanded it. Congress explicitly rejected the opportunity to auction off the rights to the spectrum space.
And the Supreme Court has repeatedly affirmed the constitutionality of the public interest obligations, noting that broadcasters have “no unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write or publish.”
Rather, the broadcasters’ First Amendment rights are constrained by their bargain with the government. As the court has said, a “licensee must balance what it might prefer to do as a private entrepreneur with what it is required to do as a ‘public trustee.’ ”
The disclosure rules issued by the FCC are just that—disclosure only. Just as the new lobbying disclosure laws passed by Congress do not ban lobbying, the new disclosure requirements do not compel certain speech or specific content. But there is a recognition that to make good public policy both the public and policymakers need good information.
And as long the FCC fails to enact meaningful public interest obligations, broadcasters (i.e., the media companies that control the local stations) will continue to do what makes the most sense for their bottom line. They will define their obligations in a way that makes them the most money.
That would be fine except these companies are using the publicly owned airwaves, and our policy makers are not assuring the American people get fair recompense for the use of that valuable public resource.
For some time now, the media companies have carried the day at the FCC and in Congress. They have successfully fought back efforts to collect the public interest “payments” using the First Amendment as political cover.
None of us wants government control of television or Big Brother dictating content. But believe it or not, there is another option—a “wise use” option that balances the public’s interest with the broadcasters’ economic interest. The beneficiary of “wise use” would be—and should be—the American viewer who can become the engaged, informed citizen necessary to sustaining a vibrant democracy.
