Its Time to End Licensing of Broadcast Media
Television and Radio have always had a very different regulatory regime than any other type of media. Unlike, say, newspapers or cable TV companies or satellite providers, television and radio companies have to get and continue to renew licenses and are expected operate in the public interest, whatever the heck that is. TV and radio stations get access to what has become very valuable bandwidth for free, the only cost being that they have to give regulators what amounts to a veto over their content. Because of this regulatory structure, you get goofy stuff like this:
The Federal Communications Commission's enforcement bureau has asked NBC for tapes of the opening ceremony of the Summer Olympics, apparently in response to one or more indecency complaints.
Its fun to laugh at this stuff, and it drives me crazy, but at the end of the day the problem is not the FCC or Bush or red states or fundamentalists. The problem is the first-amendment defying concept that the Feds should have any say in media content. Period. The FCC is actually in a difficult spot - by law, they have to enforce decency standards, but when they do so, they look like moralistic thugs.
I do not know the history here, but for some reason the US government, perhaps because it was in the throws of the socialist/fascist New Deal era, abandoned all of its traditional and successful models for allocating a newly discovered or accessible resource (in this case, parts of the spectrum) in favor of this public service liscencing approach. I can think of at least three different models that the US government has used in similar circumstances and that have all worked much better:
- The Homestead Act: This established the principal of being the first to stake out and improve a resource (in this case parcels of land) in allocating government lands in the west. Perhaps the best piece of legislation in the history of the country. Could have easily followed this principle in the broadcast spectrum - an individual or company would have to broadcast continuously on a certain frequency for 2 years to gain permanent ownership
- Mining Law: In some ways similar to the Homestead act, again it grants ownership of a resource to people who add value to it (in the case of mining, to the people who prospected for it and discovered it).
- Outright Sales: The government does this all the time, including land sales, mineral lease sales (e.g. offshore oil) and more recently cell phone spectrum sales.
Lets end this regulatory structure now:
- Grant all current licensees ownership of the spectrum they are currently using. Drop all content-related regulation.
- There are many non-licensed outlaw low-power stations operating. Create a set of homestead requirements that they can get access to their bandwidth if they meet certain requirements within a certain time frame
- Acknowledge that technology today allows more of the spectrum to be used than channel spacing of the 1950's allowed. Open up more of the holes in the spectrum for use.
- Sell the newly available spectrum
NF:
The problem with applying the homestead model and Mining Law is that you're not talking about something physical. When you talk about limiting stations to broadcast spectrums, you are promising that 1) they can broadcast at unlimited strength on that frequency, and 2) no one in the area can broadcast on that spectrum, thus creating interference that disrupts both broadcasts. There is also much more to the broadcast spectrum than just television, with some spectra set aside for non-media commercial use, medical device frequencied, public non-commercial use, international use, military use, airplane navigational use (This is bigger than you might expect, as there are navigational transmitters across thecountry that were the only means of cross-country navigation for aircrafts until GPS, which also has its own spectrum.)
As far as outright selling full rights to a spectrum, there is a great potential for corruption, and we are already seeing some where a cell-phone company actually encroached on a public spectrum, and the government agreed to sell them the spectrum they illegally encroached on for bargain-basement prices, given that it was a continuous range over a relatively broad spectrum traded for a bunch of non-continuous spectra. I also think there would be spectrum-squatting similar to what you see with internet domain name sales, with companies buying up many spectra and then just holding on to them to sell back for many times the price they bought it for.
I think the real problem is that the FCCs mandate over "decency" on broadcast television and radio is overly broad, and they should be opened up to judicial review to decide whether the fine is unusual or if the stations are within their first amendment rights. I'm not sure, but I think the way it is now legal recourse of a decision by the FCC is very difficult.
December 14, 2004, 2:24 pm