A prominent conservative think tank says the government needs to rethink the philosophy behind American broadcasters’s public interest obligations, criticizing the current rules as outdated and incompatible with current media technologies. The author even doubts the validity of using the “scarce spectrum” as a valid argument.
In a blog post “The FCC’s Public Interest Notice Is a House of Cards,” the Cato Institute's David Inserra says the commission’s recent revival of invoking “public interest” obligations when criticizing late night comedians like Stephen Colbert and Jimmy Kimmel threaten broadcasters’ freedom of speech and ignore the current media landscape.
“The FCC can cite decades-old laws and precedents and pretend that its public-interest standard is necessary because broadcast spectrum is technically scarce,” Inserra writes. “But that argument ignores the radically abundant media options available to modern consumers.”
Inserra says the commission’s insistence of requiring broadcasters to provide equal time to opposing political candidates—as illustrated by its recent battle with CBS’s Late Night Host Stephen Colbert over a planned interview with a Texas Democratic politician—highlighted the current dilemma facing broadcasters when it comes to free speech.
“This has resulted in frankly ridiculous outcomes, such as when Stephen Colbert was unable to air his interview with Democratic Senate candidate James Talarico because of concerns over the FCC’s equal-time rule,” Inserra wrote. “This rule generally requires broadcasters that provide airtime to one legally qualified candidate to give opposing candidates for the same office an equal opportunity to seek comparable airtime.
“In response, Colbert told viewers that he had posted the interview to his YouTube channel, where it received over 5.3 million views in less than 48 hours, about double the 2.7 million viewers who tuned in on average to his show on CBS,” Inserra continued. “FCC regulations are now the butt of jokes, with comedians mocking how antiquated and censorious they are.”
Inserra doesn’t buy the argument over spectrum either, citing the famous 1969 Red Lion Broadcasting Co. v. FCC, in which the Supreme Court affirmed that FCC regulation was justified by spectrum scarcity,
“Just because a resource is finite and geographically limited does not mean that markets cannot operate; real estate is the most obvious counterexample,” he wrote. “Second, the Court was blind to the broader media landscape. Newspapers, theaters, movies, and other forms of communication were not subject to the same technical constraints as broadcast spectrum, but they were substitutes.”
Inserra suggests that steps be taken to restrict or better define broadcasters' public interest obligations including ending rules on news distortion and equal time.
“The FCC does not need to micromanage spectrum, and it certainly does not need to use spectrum licenses as a lever for editorial control,” Inserra writes. “With the FCC’s control over licenses removed, broadcast speech would be far freer from government manipulation and jawboning.”
