Broadcasting

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BROADCASTING

Broadcasting is the electronic transmission of sounds or images from a single transmitter to all those who have the appropriate receiving equipment. It is thus a powerful medium for communicating ideas, information, opinions, and entertainment. In many countries broadcasting has become an arm of government. In the United States, however, Congress established the Federal Radio Commission in 1927 and then the Federal Communications Commission (FCC) in 1934 to award broadcasting licenses to private parties. Although a number of licenses were also designated for "public broadcasting," most were allocated to qualified applicants who promised to serve the public interest by acting as public trustees of the airwaves.

The asserted basis for government intervention in the United States was, initially, to eliminate the interference created when many different parties broadcast over the same frequency in the same area. Yet this chaos could have been eliminated with a mere registration requirement and the application of property rights concepts, allocating broadcast licenses by deed, as land is allocated. Instead, the potential interference was used to justify a complex and comprehensive regulatory scheme, embodied in the communications act of 1934.

In 1952, the FCC established a pattern of allocating television licenses to ensure that the maximum number of local communities would be served by their own local broadcast stations, a departure from the more centralized broadcasting systems of most other countries. Although this decision has added additional voices of local news in many communities, most local television stations affiliated with national networks to share the cost of producing programs of higher technical quality. Thus, while broadcast regulation always has been premised on the primacy of these local outlets, much of it has focused on the relationship between local stations and the powerful national broadcasting networks.

Government regulation of broadcasting obviously presents dangers to the freedom of speech. Notwithstanding a statutory prohibition on censorship in the Communications Act, the existence of the licensing scheme has significantly influenced the content of programs. Holders of valuable licenses are careful not to offend the FCC, lest they jeopardize their chances of a license renewal. Raised eyebrows and stated concerns about aspects of content prevent station management from acting as freely as newspapers or magazines do. (See fairness doctrine.) Indeed, only in the last quarter-century have broadcasters come to understand the dominant role that they can play in the distribution of news and information in the United States.

Until recently, the distinct constitutional status of broadcast regulation was premised on the assumption that only a limited number of broadcasting frequencies existed and on the right of the federal government to insure that this scarce commodity was used in the public interest. But recent technological developments have belied this basis for special intervention. Clearly, policy and not physics created the scarcity of frequencies, and now that economic conditions have made alternative media practical, the FCC has begun to open the broadcasting spectrum to new entrants, such as direct broadcast satellites, low-power television, and microwave frequencies.

Nevertheless, in fcc v. pacifica foundation (1978) the Supreme Court suggested that the extraordinary impact of broadcasting on society is itself a possible basis for special rules, at least during hours when children are likely to be listening and watching. This rationale appears to be the only remaining basis for giving broadcasting special constitutional treatment. Technology is rendering obsolete all other distinctions between broadcasting and printed material. For the receiver of ideas at a home console, all manner of data—words and hard copy and soft images—will come through the atmosphere, or over cables, or both. Distinctions based on the mode of delivery of information will have less and less validity. FCC efforts to repeal broadcast regulations, however, have often met with congressional disapproval.

Monroe E. Price
(1986)