December 15, 1999
|In the Matter of Public Interest Obligations of TV Broadcast Licensees, Notice of Inquiry|
. . . I will think of the public interest standard as a sort of once-handsome thoroughbred, so abused and neglected that it has finally broken down in the middle of the track. Perhaps we can take it back to the paddock in the hope that, with care and love, it can recover - or at least produce offspring that recall the beauty of the original. If not, let us simply put the poor beast out of its misery once and for all.
Commissioner Ervin S. Duggan, 8 FCC Rcd at 5340 (1993)
This proceeding is long overdue. The public interest standard -- the bedrock obligation of those who broadcast over the public airwaves -- has fallen into an unfortunate state of disrepair over the years. It's time to put up scaffolding and get the restoration underway.
The most important aspect of the public interest standard is this: it's the law. Congress imposed the public interest standard seventy years ago and has never wavered in its insistence that it apply to every broadcast licensee. Indeed, in the Telecommunications Act of 1996, Congress expressly provided that the public interest standard will continue to apply in the digital world. Those who believe that broadcast television should be treated just like any other commodity ("a toaster with pictures") should complain to Congress, not the FCC.
The difficulty, of course, is in defining the public interest. On its face, the standard is broad and requires the Commission to exercise a great deal of discretion. But simply because the task is difficult is no excuse for shirking it. At this point, there are more questions than answers, but there are principles that should guide our deliberations:
1. The public interest standard must have some substantive meaning. It cannot not simply be "whatever interests the public." That is simply an attempt to deprive the term of any real meaning. It also assumes that Congress puts meaningless requirements in statutes. After all, if a broadcaster's private interests always served the public interest, Congress didn't have to say a word. Congress does not enact meaningless or unnecessary language - much less language that has been as scrutinized and debated over the years as much as the public interest standard.
2. The public interest requirements should be specific. While Congress gave the Commission broad and flexible authority to define the public interest as technology and the needs of the public change, the actual requirements should be as specific as possible. While some may claim that the standard's vagueness gives too much power to the Commission to impose wide-ranging requirements on licensees, just the opposite is true. The standard's vagueness has not led to a standard that means virtually anything, but to a standard that means virtually nothing.
3. The public interest standard should be a "safety net" to protect the public against those broadcasters who might be tempted to avoid their obligations in the absence of a rule. The fact that many broadcasters may be fulfilling their public interest obligations does not make the standard unnecessary. It's like laws against speeding. While most people drive at a safe speed regardless of whether there is a speed limit or not, many others drive at unsafe speeds. Once a speed limit is in effect, however, more people drive at a safe speed. And if drivers know that there's a police car in the area ticketing speeders, the incidence of speeding may fall to almost zero. The public interest standard is the speed limit on the public airwaves. Most broadcasters may voluntarily comply with these limits, even though they know that the Commission hasn't been handing out many speeding tickets lately. It's the lead-footed broadcasters who don't take their public interest obligations seriously that we should be concerned about.
4. The public interest standard should apply to every broadcast station, not to the industry as a whole. If it's the bad actors that we're concerned about, those broadcasters should not be able to piggy-back on the efforts of others.
5. The public interest standard should protect and enrich our children. Children spend far more time with television than any other medium, and the vast majority of that time is unsupervised.(1) There is no doubt that television exerts a great influence on their development and well-being. We must do what we can to protect our children from material that may harm them and to ensure that they have access to programming that meets their particular needs.
6. The public interest standard should promote diversity over the public airwaves. That includes giving all segments of the community the opportunity to participate in broadcasting, both as owners and as employees responsible for the day-to-day decision-making.
7. The public interest standard should promote an open and robust debate on issues of public concern. As the Supreme Court has said on more than one occasion, "speech concerning public affairs . . . is the essence of self-government."(2) The importance of television to the democratic process cannot be overstated. A majority of Americans still rely on television as their primary source of electoral information.(3)
8. The public interest standard does not countenance censorship. The government should not decide which views we can and cannot hear. But it is fully consistent with the First Amendment -- indeed, it promotes First Amendment values -- for the public to be exposed to a wide range of views on issues of public concern. The public is always better served when it hears different viewpoints than when it hears only one side of the story, whether that one side is the government's or the broadcaster's.
9. The public interest must be considered in the context of our other proceedings considering the relationship of broadcasting to the public. For instance, some will assert that the explosion in media outlets over the past thirty years (e.g., cable, satellite, the Internet) means that we should impose minimal, if any, public interest requirements on broadcasters. The argument is that consumers are so awash in substitutable media that it no longer makes sense to single out broadcasters for special treatment. But in other proceedings, like digital must-carry, we hear a completely different story. In digital must-carry, the argument is that broadcasting still provides a unique service, especially to the 30% of Americans who do not subscribe to cable, and that because of this special role, broadcasting is entitled to special treatment by the government. Both of these cannot be true. Either broadcasting is special and worthy of special concern or it is not.
In sum, today's proceeding is a welcome first step in reinvigorating the public interest standard. Most broadcasters do a good job of serving the public interest. But it would be nothing short of miraculous if they all did. We owe it to the public, and we owe it to those broadcasters who are carrying the full load, to better define and enforce the public interest standard.
1 Kaiser Family Foundation Report (1999) (finding that: (1) on average, children watch two hours and forty-six minutes of television a day, compared to 48 minutes spent listening to CD's or tapes, the second most popular media activity; and (2) 8-18 year-olds watch television without their parents 95% of the time, while 2-7 year-olds watch without their parents 81% of the time).
2 CBS v. FCC, 453 U.S. 367, 395 (1981), quoting Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964).
3 Arkansas Ed. Television Commission v. Forbes, 523 U.S. 666 (1998).