The Public's Airwaves

by Chris Witteman

People for Better TV, 1999


The National Association of Broadcasters is coming to town this week. Willie Brown and Colin Powell will speak, Lynyrd Skynyrd and Three Dog Night will entertain, and the hospitality suites will be running at full tilt.

And celebrate they should. Congress just gave existing broadcasters $80 billion worth of new digital spectrum ­ for free! ­ and has over the last 50 years steadily reduced the price tag on the existing airwaves.

In 1934 Congress declared that the airwaves belonged to the people, but the NAB has opposed every attempt to hold broadcasters accountable to the public. It has fought against the obligation of broadcasting licensees to ascertain community needs, has opposed their responsibility to respond with a certain amount of news and public affairs programming, and has opposed the Fairness Doctrine, which required coverage of issues of public importance with equal time to both sides.

Such public obligations get in the way of a very profitable business. The broadcasters this election year stand to make more than $600 million in profit from political ads alone, renting the public's airwaves back to the public's representatives at a tidy profit. No wonder that both Al Gore and George W. Bush will spend 48 cents of every campaign dollar on political ads. The American political system is choking on money, and the broadcasters are the beneficiaries.

Of course, this favored position costs money. Since 1996 the NAB and other media groups have spent more than $112 million in campaign contributions and lobbying money to persuade government officials that they should get the public's airwaves for free, $11 million of which was spent on the NAB's successful effort to kill recent campaign reform bills mandating free air time for political candidates.

The broadcasters argue that if government just gets out of the way, the commercial marketplace will produce a marketplace of ideas. Reality is not so simple or so kind. The marketplace does not create a broad spectrum of opinion. Instead, it endlessly replicates the same narrow, dumbed-down, shock-jock programs that guarantee eyeballs and eardrums to advertisers.

Nowhere on commercial radio is there the kind of dialogue of ideas found on public radio, on Michael Krasny's Forum for example, or occasionally on KPFA.

The NAB has succeeded in eliminating barriers to multiple ownership of broadcasting outlets, so ABC/Disney/Cap Cities will soon own five San Francisco radio outlets, and your radio programming will be nationally prepackaged and preselected just like your Starbucks coffee and the books you buy at Barnes and Noble. Local reporting and robust peer-to-peer discourse of differing political views will not exist in the NAB's world.

If, however, democracy depends on just such discourse, then government has a duty and a need to create the public spaces where open dialogue can occur. Public broadcasting, the Fairness Doctrine, and public educational and governmental cable access channels, as well as government-mandated open architecture, open access, and open code on the Internet, are all strategies that the government can employ to create and preserve public fora, an electronic version of the town square.

In upholding the Fairness Doctrine against the broadcasters' challenges of 30 years ago, the U.S. Supreme Court held (in the now almost forgotten Red Lion case) that the First Amendment not only protected the station owner's right to speak, but also the rights of citizens to have access to a broad spectrum of opinion and information. This free-speech guarantee is interpreted more broadly in other Western democracies, where it is found to create a constitutional duty on the part of government to guarantee such access. Funding for public broadcasting in these countries is many times what it is here, and broadcasters are still seen to occupy positions of public trust.

In the United States broadcasters serve the interests of their advertisers first and foremost. But the First Amendment should not be so much about the right to sell product, as the NAB would have it, but about what the Supreme Court called the "uninhibited marketplace of ideas."


Chris Witteman is a telecommunications attorney in San Francisco.

People for Better TV, 1999

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