The Supreme Court announced last week that it would not review an Appeals Court ruling that instructed the FCC to come up with stronger justification for its media ownership rules. When the Third Circuit told the FCC to go back to the drawing board there was much crowing among those who favor 1950s regulation for a 21st century information landscape. This despite the fact that the Appeals Court did not actually rule on the merits of the FCC's proposals, which modestly moved parts of the old media industry into the new media environment. And in the end, by at least one possible scenario, the "anti" forces may have achieved only a pyrrhic victory. Here's my reasoning:
The Appeals Court rejected the FCC's ownership policies on a procedural issue: It ruled that the Commission did not provide solid justification for its specific limits. For example, why is 45% the correct number for a cap on national audience for any owner of television broadcast stations? In effect, why not 41.79% or 48.119%?
But that question begs the issue, and one of these days a judge or a panel of judges will understand. There is no national cap on the audience that can be reached by The Wall Street Journal, The New York Times, USA Today, Newsweek or any book published by Random House. There is no national cap on Sirius or XM satellite radio stations. There is no cap on NPR.
The proposed FCC rules say that in markets with five or more broadcast stations, one entity could own two stations but only one of those may be affiliated with one of the four largest networks. Why shouldn't this be limited to six or more stations? Or ownership of three stations? Where do these limits come from? After all, in Philadelphia there are only two daily newspapers, both owned by the same entity. There is only one newspaper in nearby Camden. One in Atlantic City. One in Wilmington. But residents in any of those cities can receive the nine Philadelphia broadcast stations, from eight owners, including two public television stations. And, assuming the Philadelphia area is like most of the country, somewhere between 85% and 90% of households have chosen to get their television via cable or satellite. Many of those viewers no longer have any idea what is a broadcast stations and what, like Bravo or The Food Channel, is "cable." So why are there no limits on newspaper ownership but even under the FCC's proposals strict limits on broadcasters?
Of course we think we know the answer. Broadcasters use the public airwaves. But even if that made sense 50 years ago it is beyond time to re-evaluate that justification. The public responsibilities imposed on commercial television broadcasters today have gone from little to almost none. Perhaps the most obvious is that broadcast television does not have the latitude for language and violence that is otherwise permissible under First Amendment standards for video that does not travel over the terrestrial airwaves within the UHF and VHF portion of the spectrum. Satellite signals, of course, come to Earth via spectrum. That it is not considered broadcasting only highlights the absurdity of the distinction of what slice of the spectrum is used. Cell phones use electromagnetic spectrum. Heaven knows there is no limit on the content -- voice or SMS or an other form of bits-- that goes between towers and handsets.
Now I suppose one could turn my reasoning around: instead of removing regulation on broadcasters we should impose more on satellite providers and anything else that uses the airwaves.
But then there's those 45 pesky words called the First Amendment. The ones that include "Congress shall make no law ... abridging the freedom of speech, or of the press."
So my scenario is this: an enlightened judge is going to be assigned the case with the next version of the FCC's ownership regulations. He or she is going to reject those, too. But the ruling will be more specific: There is no longer justification for limiting broadcasters with restrictions any greater than those imposed on any other media or other industry segment. Television is television. It can longer longer be a second class citizen under the First Amendment.
The so-called consumerists and media reformers will howl at the termerity of applying the First Amendment to this media technology. Congresspersons will grandstand. But it would be the right decision. The Supreme Court will uphold the Appeals Court.
By the way, current broadcast license holders might not like the implications of this either. First, the implication is that they, like anyone else who gets spectrum, will have to pay for it. They should have been required to bid on digital spectrum. Maybe it's not too late. Another consequence of being treated like any other video provider would be the end of the "must carry" rule. Whereas nonbroadcast cable networks must bargain with cable and satellite operators for channel space, broadcasters get a free ride. That too could end.
It could be -- and should be-- the end to one of the longest running free -- and very profitable-- lunches of all time.
(For a good discussion with a wealth of citations covering the First Amendment and media access issue, click here and go to chapter six of Adam Thierer's new book, Media Myths).