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 *Pages 1--145 from  n:\utility\503800267\5006314422\5006314422.pdf*
 In  the  Matter  of 
 Before  the 
 Federal  Comnunications  Commission  Washington,  DC  20554 

 Public  Interest  Obligations 
 Of  TV  Broadcast  Licensees 

 )  ) 
 )  MM  Docket  No.  99-  360  > 
 1 

 COMMENTS  OF  TJ3E 
 NATIONAL  ASSOCIATION  OF  BROADCASTERS 

 NATIONAL  ASSOCIATION  OF 
 BROADCASTERS 
 1771  N  Street,  NW 
 Washington,  DC  20036 
 (202)  429-  5430 

 Henry  L.  Baumann 
 Jack  N.  Goodman 
 Jerianne  Timmerman 

 Kelly  T.  Williams 
 NAB  Science  and  Technol 

 March  27,200O 
 mY 
1
 TABLE  OF  CONTENTS 
 Executive  Summary  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 
 I.  THE  COMMISSIONS  CONSIDERATION  OF  THE  PUBLIC 
 INTEREST  OBLIGATIONS  OF  TELEVISION  BROADCASTERS 
 IN  THE  DIGITAL  AGE  SHOULD  REFLECT  SEVERAL 
 GENERAL  PRECEPTS  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 

 A. 

 B. 

 C. 
 D. 
 E. 

 F. 
 G. 

 The  Premature  Imposition  of  Public  Interest  Obligations  on 
 Undeveloped  Digital  Services  Should  Be  Avoided  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 

 The  Transition  to  Digital  Transmission  Technology  Does  Not 
 Automatically  Justify  the  Imposition  of  New  Public  Interest 
 Duties,  Particularly  Those  Not  Reasonably  Germane  to 
 Digital  Broadcasting  or  Technology  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 

 Convergence  in  Telecommunications  Technology  Should  Be 
 Accompanied  by  Convergence  in  Regulatory  Treatment  .  .  .  .  .  .  .  .  .  . 

 Extracting  Additional  Public  Interest  Concessions  from  DTV 
 Broadcasters  on  the  Basis  of  a  Quid  Pro  Quo  is  Unjustified  .  .  .  .  .  .  . 

 Additional  Public  Interest  Duties  on  Broadcasters  Cannot  Be 
 Justified  Unless  the  Evidence  Demonstrates  that  the  Existing 
 Public  Interest  Standards  Are  Inadequate  and  that  the 
 Benefits  of  New  Obligations  Clearly  Outweigh  their  Costs..  .  .  .  .  .  . 

 In  Considering  Any  Public  Interest  Obligations  for  DTV 
 Broadcasters,  the  Commission  Should  Eschew  Inflexible 
 Regulation  and  Rely  Primarily  on  Marketplace  Forces  .  .  .  .  .  .  .  .  .  .  .  . 

 Given  the  Deficiencies  of  the  Scarcity  Doctrine,  the 
 Constitutional  Implications  of  Any  Proposed  Public  Interest 
 Obligations  Must  Be  Carefully  Considered  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  ..*........ 

 i 
 2 
 2 

 4 
 5 
 6 

 9 
 10 
 11 
2
 II.  A  NUMBER  OF  THE  SPECIFIC  PROPOSALS  SET  FORTH  IN 
 THE  NOZZCE  ARE  PREMATURE,  UNRELATED  TO  DIGITAL 
 BROADCASTING,  UNDULY  BURDENSOME,  LACKING  IN 
 EVIDENTIARY  SUPPORT  OR  CONSTITUTIONALLY 
 SUSPECT  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 

 A. 

 B. 
 C. 

 D. 
 E. 
 F. 

 G. 

 H. 
 I. 

 The  Imposition  of  Public  Interest  Rules  Pertaining  to 
 Multicasting  Would  Be  Premature  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 

 The  Current  Television  Ratings  System  Is  Voluntary  and 
 Should  Remain  Unchanged  in  the  Digital  Environment  .  .  .  .  .  .  .  .  .  .  . 

 Ancillary  and  Supplementary  Services  Offered  by  DTV 
 Broadcasters  Should  Be  Subject  to  the  Same  Public 
 Interest  Requirements  as  Comparable  Services  Offered 
 by  Non-  Broadcasters  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 

 The  Existing  Disclosure  Obligations  of  Broadcasters  Are  in 
 No  Way  Inadequate  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 

 Nothing  Inherent  in  Digital  Technology  Necessitates  Changes 
 to  the  Current  Emergency  Alert  System  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 

 Mandatory  Minimum  Public  Interest  Obligations  Are 
 Unnecessary  and  Would  Improperly  Infringe  on  Broadcasters 
 Editorial  Discretion  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 

 The  Use  of  Digital  Technology  to  Enhance  the  Access  to 
 Broadcast  Programming  for  Persons  with  Disabilities  Has 
 Been  Specifically  Addressed  in  Other  Commission 
 Proceedings  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 

 The  Promotion  of  Diversity  in  Broadcasting  Appears  Largely 
 Unrelated  to  Digital  Technology  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 

 Efforts  to  Enhance  Political  Discourse  Are  Unrelated  to  Digital 
 Technology,  Appear  Unnecessary,  and  Raise  Serious  Statutory 
 and  First  Amendment  Concerns  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 

 1.  Whether  Voluntary  or  Mandatory,  Free  Air  Time 
 Proposals  Have  No  Connection  to  Digital  Broadcasting, 
 Are  Unlikely  to  be  Effective  in  Improving  Political 
 Discourse,  and  Are  Not  Needed  to  Ensure  the  Broadcast 
 of  Campaign  Information  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 

 14 
 14 
 17 

 19 
 23 
 30 

 32 

 38 
 43 

 47 

 47 

 ____  -.  _...-- 
3
 2.  Requiring  Broadcast  Licensees  to  Provide  Free  Air  Time 
 to  Candidates  Would  Exceed  the  Commissions  Statutory 
 Authority  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  53 

 3.  Requiring  Broadcast  Licensees  to  Provide  Free  Air  Time 
 to  Candidates  Would  Be  Contrary  to  the  First 
 Amendment  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  57 

 III.  CONCLUSION  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  65 
 Appendices 
4
 Executive  Summary 
 The  National  Association  of  Broadcasters  (  NAB)  submits  these  comments  in  response 
 to  the  Commissions  Notice  ofhquiry  (  Notice)  seeking  comment  on  the  public  interest 
 obligations  of  television  broadcasters  as  they  transition  to  digital  transmission  technology.  The 
 Notice  requested  comment  on  four  broad  categories  of  issues:  (1)  the  application  of  television 
 stations  public  interest  obligations  to  the  new  capabilities  of  digital  television  (  DTV),  such  as 
 multiple  channel  transmission;  (2)  how  television  stations  could  serve  their  communities  by 
 providing  viewers  with  information  on  their  public  interest  activities,  and  using  digital 
 technology  to  provide  emergency  information  in  new  ways;  (3)  how  DTV  broadcasters  could 
 increase  access  to  television  programming  by  people  with  disabilities,  and  further  diversity;  and 
 (4)  whether  digital  broadcasters  could  enhance  the  quality  of  political  discourse  through  uses  of 
 the  airwaves  for  political  issues  and  debates. 
 Broadcasters  are  proud  of  their  record  of  public  service.  Local  stations  are  the  primary 
 source  of  news,  election  information,  disaster  warnings  and  other  emergency  information,  and 
 information  about  community  affairs  for  the  overwhelming  majority  of  Americans.  The 
 Presidents  Advisory  Committee  on  the  Public  Interest  Obligations  of  Digital  Television 
 Broadcasters  did  not  identify  any  area  in  which  the  public  believed  that  broadcasters  provided 
 inadequate  public  service.  NABs  1998  study,  cited  by  the  Commission,  revealed  that 
 broadcasters  provided  $6.85  billion  in  public  service  activities  in  1996.  Thus,  there  is  no 
 predicate  for  determining  that  new  public  service  requirements  are  needed. 
 In  addressing  the  various  issues  raised  in  the  Notice,  NAB  first  identifies  a  number  of 

 general  themes  that  should  inform  the  Commissions  approach  as  it  seeks  to  define  the  public 
 interest  obligations  of  television  broadcasters  in  a  digital  environment: 

 -    _  _  i_  .__..  --._-- 
5
 n  The  Commission  should  refrain  from  prematurely  establishing  public  interest 
 obligations  for  digital  services  that  have  yet  to  be  developed. 

 n  The  mere  use  of  digital,  as  opposed  to  analog,  transmission  technology  does  not 
 warrant  the  adoption  of  new  and  expanded  public  interest  obligations.  In  particular,  the 
 transition  to  DTV  does  not  justify  the  imposition  of  expanded  public  interest  duties  that  are  not 
 reasonably  germane  to  digital  broadcasting  or  technology. 

 n  As  recognized  by  Congress  in  the  Telecommunications  Act  of  1996  (  1996  Act), 
 convergence  in  telecommunications  technology  should  be  accompanied  by  convergence  in 
 regulatory  treatment.  Thus,  the  Commission  should  not  impose  unequal  burdens  on  different 
 types  of  licensees,  if  they  are  competing  in  the  same  markets  by  offering  the  same  services. 

 n  The  extraction  of  additional  public  interest  concessions  from  DTV  broadcasters  on  the 
 basis  of  a  q&  pro  quo  is  unjustified.  There  is  no  basis  for  imposing  new  and  expansive  public 
 interest  obligations  as  a  form  of  payment  for  the  mere  temporary  loan  of  additional  spectrum 
 during  the  digital  conversion,  especially  in  light  of  Congress  intent  in  the  1996  Act  to  preserve 
 free  television  and  promote  the  competitiveness  of  over-  the-  air  broadcast  stations. 

 n  In  light  of  the  significant  public  interest  obligations  already  imposed  on  broadcasters, 
 additional  public  interest  duties  can  be  justified  only  if  the  evidence  demonstrates  that  the 
 existing  standards  are  inadequate,  and  that  the  benefits  of  any  new  obligations  outweigh  their 
 costs. 

 n  In  an  era  of  tremendous  growth  in  the  number  and  variety  of  media  outlets,  the 
 Commission  should  avoid  inflexible  regulation  and  rely  primarily  on  marketplace  forces  when 
 considering  any  new  public  interest  obligations  for  DTV  broadcasters. 

 n  The  scarcity  doctrine  that  has  traditionally  been  used  to  justify  affording  lesser 
 constitutional  protection  to  the  broadcast  media  is  now  regarded  by  many  jurists  and  legal 
 scholars  as  logically  and  factually  deficient.  The  Commission  must  therefore  be  cautious  in 
 imposing  new  public  interest  obligations  on  broadcasters  that  implicate  the  First  Amendment,  as 
 the  Commission  may  be  unable  to  rely  on  the  traditional  basis  for  establishing  the 
 constitutionality  of  any  such  obligations. 

 With  these  general  precepts  in  mind,  NAB  argues  that  a  number  of  the  specific  proposals  in  the 
 Notice  are  premature,  unrelated  to  digital  broadcasting,  unduly  burdensome,  lacking  in 
 evidentiary  support  or  constitutionally  suspect. 

 In  considering  how  public  interest  programming  duties  should  apply  to  a  multicasting 
 broadcaster,  NAB  asserts  that  it  would  be  inappropriate  to  impose  the  full  panoply  of  public 

 interest  obligations  on  all  of  the  program  streams  that  a  multicasting  broadcaster  might  offer 

 ii 
 -  _  .-  ...  --.--  - 
6
 (particularly  if  such  program  streams  are  highly  specialized,  rather  than  general  interest).  But 
 NAB  points  out  that  DTV  broadcasters  may  ultimately  choose  not  to  multicast  at  all,  but  instead 
 decide  to  broadcast  primarily  one  high  definition  television  signal,  in  which  case  broadcasters 
 existing  programming-  related  public  interest  duties  should  not  be  altered.  Given  the  entirely 
 speculative  nature  of  any  multicasting  services  at  this  time,  NAB  advises  the  Commission  to 
 refrain  from  adopting  special  public  interest  obligations  on  multicasting,  until  such  services 
 actually  develop. 
 In  addition  to  multicasting,  DTV  broadcasters  may  also  provide  ancillary  or 
 supplementary  services  (such  as  Internet  access  or  datacasting)  that  are  not  free  over-  the-  air 
 services.  Because  Congress  generally  intended  to  end  the  differentiated  legal  treatment  of 
 converging  technologies  in  the  1996  Act,  NAB  believes  that  any  ancillary  or  supplementary 
 services  offered  by  DTV  broadcasters  should  be  subject  to  the  same  public  interest  obligations  as 
 comparable  services  offered  by  non-  broadcasters.  Thus,  if  a  DTV  broadcaster  were  to  offer  an 
 Internet  access  service,  the  public  interest  obligations  applicable  to  that  service  should  be 
 comparable  to  those  applied  to  any  other  licensees  Internet  access  service,  even  if  a  non- 
 broadcaster.  The  terms  of  Section  336  of  the  Communications  Act  clearly  support  this  position. 
 With  regard  to  proposals  for  requiring  additional  disclosures  in  DTV  stations  public  files 
 or  requiring  the  posting  of  public  files  on  the  Internet,  NAB  sees  no  logical  connection  between 
 broadcasters  disclosure  obligations  and  their  transmission  of  a  digital,  rather  than  an  analog, 
 signal.  The  Notice  also  cited  no  evidence  tending  to  show  that  the  existing  disclosure  obligations 
 of  television  broadcasters  are  in  any  way  inadequate  or  ineffective.  The  suggestion  in  the  Notice 

 to  require  DTV  broadcasters  to  ascertain  their  community  needs  by  certain  specified  means 

 .  .  111 
7
 should  not  be  considered  for  the  same  reasons  that  the  Commission  previously  eliminated  similar 
 ascertainment  requirements  in  the  1980s. 
 Other  proposals  set  forth  in  the  Notice  (including  access  to  broadcast  programming  for 
 persons  with  disabilities,  the  promotion  of  diversity  in  broadcasting,  and  the  provision  of 
 enhanced  disaster  warnings)  are  either  unrelated  to  digital  technology  or  more  appropriately 
 addressed  in  other  Commission  proceedings.  NAB  further  emphasizes  that  implementation  of 
 suggestions  in  the  Notice  concerning  disability  access  and  enhanced  emergency  warnings  will 
 depend  on  the  manufacture  of  DTV  receivers  that  can  receive  and  decode  the  additional 
 information  that  broadcasters  might  send  in  their  DTV  signals. 
 In  addressing  suggestions  that  the  Commission  should  establish  detailed  public  interest 
 standards  with  numerical  quotas,  NAB  contends  that  such  proposals  reflect  an  outdated  model  of 
 regulation  that  is  particularly  inappropriate  for  the  digital  age.  Given  the  competitive  nature  of 
 the  video  programming  marketplace  and  the  available  evidence  regarding  broadcaster 
 performance,  inflexible  numerical  public  interest  requirements  are  clearly  unnecessary.  Public 
 interest  standards  with  numerical  quotas  also  improperly  encroach  on  the  editorial  discretion  of 
 licensees. 
 The  Notice  additionally  discussed  ways  the  Commission  could  promote  voluntary  efforts 
 by  television  broadcasters  to  enhance  the  political  debate,  and  offered  proposals  to  encourage  or 
 require  broadcast  licensees  to  provide  free  air  time  to  candidates.  NAB  contends  that,  whether 
 voluntary  or  mandatory,  free  air  time  proposals  have  no  connection  to  digital  broadcasting,  are 
 unlikely  to  be  effective  in  improving  the  quality  of  political  discourse,  and  are  not  needed  to 
 ensure  the  broadcast  of  fully  sufficient  amounts  of  political  and  campaign-  related  information. 
 In  light  of  the  detailed  statutory  provisions  establishing  a  system  of  political  broadcasting  based 

 iv 
8
 on  the  purchase  by  candidates  of  air  time  at  discounted  rates,  the  Commission  lacks  the  authority 
 to  adopt  inconsistent  rules  requiring  the  provision  of  free  time  by  DTV  broadcasters.  Given  the 
 logical  and  empirical  deficiencies  of  the  scarcity  doctrine,  a  requirement  for  broadcast  licensees 
 to  provide  free  air  time  to  candidates  would  also  be  contrary  to  the  First  Amendment.  Indeed, 
 even  under  case  law  affording  broadcasters  a  lesser  degree  of  constitutional  protection  due  to  the 
 presumed  scarcity  of  spectrum,  NAB  believes  that  a  free  time  mandate  would  be  found 
 unconstitutional,  as  treading  unnecessarily  on  the  editorial  discretion  of  broadcast  licensees. 
 In  sum,  nothing  inherent  in  digital  technology  requires  a  different  or  more  expansive 
 public  interest  analysis  than  that  currently  applied  to  analog  television  broadcasters.  NAB 
 accordingly  believes  that  DTV  broadcasters  should  be  afforded  the  discretion  to  develop  and 
 offer  innovative  programming  and  other  services  they  believe  will  best  meet  the  needs  of  the 
 communities  they  serve. 

 V 
 -_.  _-  -_.  I.  .,  ..----~  .----  -.-~~  -. 
9
 Before  the 
 Federal  Communications  Commission 
 Washington,  D.  C. 

 In  the  Matter  of 
 Public  Interest  Obligations 
 of  TV  Broadcast  Licensees 

 >  ) 
 >  >  MM  Docket  No.  99-  360 
 > 
 TO:  The  Commission 

 COMMENTS  OF 
 THE  NATIONAL  ASSOCIATION  OF  BROADCASTERS 

 The  National  Association  of  Broadcasters  (  NAB)    submits  these  comments  in  response 
 to  the  Commissions  Notice  ofInquiry  in  this  proceeding.  2  The  Notice  sought  comment  on  the 
 public  interest  obligations  of  television  broadcasters  as  they  transition  to  digital  transmission 
 technology.  In  adopting  the  Notice,  the  Commission  emphasized  that  it  was  not  proposing  new 
 rules  or  policies,  but  rather  creating  a  forum  for  public  debate  on  how  broadcasters  can  best  serve 
 the  public  interest  during  and  after  the  digital  transition.  Specifically,  the  Commission  asked  for 
 comment  on  four  broad  categories  of  issues: 
 (1)  the  application  of  television  stations  public  interest  obligations  to  the 
 new  capabilities  of  digital  television  (  DTV),  such  as  multiple  channel  transmission; 
 (2)  how  television  stations  could  serve  their  communities  by  providing  viewers 
 with  information  on  their  public  interest  activities,  and  using  digital  technology  to  provide 
 emergency  information  in  new  ways; 

 I  NAB  is  a  nonprofit,  incorporated  association  of  television  and  radio  stations  and  broadcast 
 networks  which  serves  and  represents  the  American  broadcast  industry. 

 *Notice  ofInquiry  in  MM  Docket  No.  99-  360,  FCC  99-  390  (rel.  Dec.  20,  1999)  (  Notice). 

 -.  _(. 
 _~-..  _-.-.  .-...-------.--.- 
10
 (3)  how  DTV  broadcasters  could  increase  access  to  television  programming  by 
 people  with  disabilities,  and  further  diversity;  and 
 (4)  whether  digital  broadcasters  could  enhance  the  quality  of  political  discourse  through 
 uses  of  the  airwaves  for  political  issues  and  debate. 
 In  addressing  these  various  issues,  NAB  first  identifies  a  number  of  general  themes  that 
 should  inform  the  Commissions  approach  as  it  seeks  to  define  the  public  interest  obligations  of 
 television  broadcasters  in  a  digital  environment.  With  these  general  precepts  in  mind,  NAB  then 
 addresses  the  specific  categories  of  issues  raised  by  the  Commission. 

 I.  THE  COMMISSIONS  CONSIDERATION  OF  THE  PUBLIC  INTEREST 
 OBLIGATIONS  OF  TELEVISION  BROADCASTERS  IN  THE  DIGITAL  AGE 
 SHOULD  REFLECT  SEVERAL  GENERAL  PRECEPTS. 

 A.  The  Premature  Imposition  of  Public  Interest  Obligations  on  Undeveloped  Digital 
 Services  Should  Be  Avoided. 

 While  digital  technology  will  undoubtedly  bring  both  new  opportunities  and  challenges 
 to  television  broadcasters,  NAB  emphasizes  that  the  broadcast  industry  is  only  at  the  preliminary 
 stage  of  the  digital  transition.  It  remains  unclear  how  broadcasters  will  actually  use  their  digital 
 channels,  and  the  choices  are  many.  Digital  broadcasters  must  decide  whether  to  transmit  high 
 definition  television  (  HDTV)  programming,  multicast,  datacast,  or  to  offer  some  combination 
 of  these.  Given  the  basic  uncertainties  as  to  the  form  that  the  new  digital  services  will  take,  NAB 
 believes  it  would  be  premature  to  establish  public  interest  obligations  for  services  that  have  yet 
 to  develop.  Indeed,  rules  based  only  on  speculative  assumptions  about  the  possible  uses  of  DTV 

 channels  could,  in  the  end,  be  completely  inappropriate  for  the  digital  services  that  eventually 
 emerge  in  the  marketplace. 

 2 
 _.  .  -.  _.  .-----  ^.._  __-_  l.  l--__.-  l.  l.-.----  ___  I. 
11
 For  these  reasons,  NAB  strongly  believes  that  rules  pertaining  to  the  public  interest 
 obligations  of  DTV  broadcasters  should  not  be  adopted  until  digital  services  have  been  allowed 
 to  develop  more  fully.  Rather  than  prematurely  adopting  such  rules,  the  Commission  should  at 
 this  time  be  more  concerned  with  insuring  a  successful  and  expeditious  digital  transition.  As 
 NAB  has  previously  argued,  the  Commission  can  significantly  contribute  to  the  success  and 
 speed  of  the  DTV  transition  by  acting  promptly  on  other  matters  relating  to  DTV.  In  particular, 
 the  Commission  must  act  to  adopt  must  carry  regulations  for  DTV  signals.  The  Commission 
 can  additionally  encourage  the  transition  to  digital  broadcasting  by  implementing  technical 
 standards  for  making  digital  televisions  compatible  with  cable  systems.  4  Without  Commission 
 action  on  these  two  vital  issues,  the  transition  to  DTV  will  be  significantly  impeded,  and  such 
 delay  will  not  serve  the  public  interest.  5  Thus,  NAB  reminds  the  Commission  that,  before 
 television  broadcasters  can  fulfill  any  public  interest  obligations  on  their  DTV  channels,  digital 
 services  must  in  fact  have  been  given  an  opportunity  to  develop  and  flourish  in  the  marketplace.  6 

 3  As  NAB  explained  in  response  to  the  Commissions  Notice  of  Proposed  R&  making  on  digital 
 must  carry,  a  timely  and  successful  DTV  transition  cannot  be  achieved  without  the  adoption  of 
 must  carry  rules  insuring  consumer  access  to  all  DTV  broadcasts.  See  Comments  of  NAB  in  CS 
 Docket  No.  98-  120  at  9-  24  (filed  Oct.  13,  1998). 

 4  NAB  has  continually  expressed  its  frustration  with  the  inability  of  the  cable  industry  and 
 receiver  manufacturers  to  reach  agreement  on  interoperability  issues.  See  Letter  re  CS  Docket 
 No.  98-  120  from  NAB,  MSTV  and  ALTV  to  Chairman  Kennard  (Feb.  22,200O).  The 
 Commission  recently  sought  comment  on  a  number  of  issues  pertaining  to  the  DTV  transition, 
 including  cable  compatibility  and  DTV  receiver  standards.  See  Notice  of  Proposed  Rulemaking 
 in  MM  Docket  No.  00-  39,  FCC  00-  83  (rel.  March  8,  2000). 

 j  See  Fifh  Report  and  Order  in  MM  Docket  No.  87-  268,  12  FCC  Red  12809,  12812  (1997)  (  it  is  desirable  to  encourage  broadcasters  to  offer  digital  television  as  soon  as  possible,  given  the 
 intense  competition  in  video  programming). 
 6  As  NAB  noted  in  another  proceeding,  delay  in  the  DTV  transition  will  also  frustrate  the 
 development  of  new  wireless  services  on  spectrum  located  in  the  700  MHz  bands  (i.  e., 
 reallocated  television  channels  60-  69).  See  NAB  Petition  for  Partial  Reconsideration  in  WT 
 Docket  No.  99-  168  (filed  Feb.  22,  2000). 

 3 
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 B.  The  Transition  to  Digital  Transmission  Technology  Does  Not  Automatically 
 Justify  the  Imposition  of  New  Public  Interest  Duties,  Particularly  Those  Not 
 Reasonably  Germane  to  Digital  Broadcasting  or  Technology. 

 NAB  also  questions  whether  a  shift  in  technology  justifies  the  imposition  of  altered  or 
 new  public  interest  duties  generally.  We  do  not  believe,  as  the  Notice  seems  to  imply,  that  the 
 mere  use  of  digital  transmission  technology  warrants  the  adoption  of  new  and  expanded  public 
 interest  obligations.  Other  communications  services  have  converted  to  digital  technology 
 without  having  to  accept  new  public  service  obligations  (or  return  spectrum  or  pay  fees.)   
 Moreover,  DTV  could  ultimately  resemble  television  today,  with  most  broadcasters  providing 
 viewers  with  one  HDTV  signal.  If  so,  there  would  be  no  basis  for  altering  broadcasters  existing 
 public  interest  duties,  which  are  currently  based  on  the  delivery  of  a  single,  free  over-  the-  air 
 television  signal.  Even  the  Advisory  Committee  on  Public  Interest  Obligations  of  Digital 
 Television  Broadcasters  (  Advisory  Committee)  agreed  that,  if  broadcasters  used  their  digital 
 spectrum  primarily  for  a  single  HDTV  signal,  the  rationale  for  increased  public  interest 
 obligations  would  be  diminished.   
 More  particularly,  NAB  asserts  that  the  transition  to  DTV  does  not  justify  the  imposition 
 of  any  revised  or  new  public  interest  duties  for  DTV  that  are  not  reasonably  germane  to  digital 
 broadcasting  or  technology.    As  discussed  in  detail  below,  a  number  of  the  proposals  in  the 

   For  example,  cellular  telephone  licensees,  many  of  whose  channels  were  originally  assigned  by 
 lottery  rather  than  competitive  bidding,  are  converting  (or  have  already  converted)  from  analog 
 to  digital  technology.  Although  this  conversion  will  result  in  up  to  an  eight-  fold  increase  in 
 system  capacity,  these  cellular  licensees  will  not  pay  any  fees,  return  any  spectrum,  or  incur  any 
 other  obligations  due  to  their  digital  conversion. 

 8  Advisory  Committee  on  Public  Interest  Obligations  of  Digital  Television  Broadcasters,  Final 
 Report  at  54  (Dec.  1998)  (  Advisory  Committee  Report). 

 9  After  all,  any  Commission  rule  must  bear  some  logical  relationship  to  the  underlying  regulatory 
 issue  the  rule  purports  to  address.  See,  e.  g.,  ALLTEL  Corporation  v.  FCC,  838  F.  2d  551,  559 

 4 
13
 Notice  lack  a  reasonably  direct  relationship  to  DTV.  Indeed,  some  of  the  proposals  only 
 incidentally  relate  to  broadcasting  in  any  form,  but  are  in  essence  efforts  to  commandeer 
 broadcasters  to  address  perceived  societal  problems.  NAB  generally  objects  to  the  placement  of 
 burdens  on  broadcasters  to  pursue  goals  not  directly  related  to  broadcasting,  and,  in  the  context 
 of  this  proceeding,  specifically  objects  to  the  imposition  of  new  public  interest  obligations  for 
 DTV  broadcasters  that  lack  a  direct  relationship  to  digital  broadcasting. 
 C.  Convergence  in  Telecommunications  Technology  Should  Be  Accompanied  by 
 Convergence  in  Regulatory  Treatment. 

 For  the  past  several  years,  communication  technologies  and  services  that  were  once 
 regarded  as  separate  have  gradually  converged.  The  implementation  of  digital  technology  will 
 only  hasten  this  convergence,  as,  for  example,  it  will  allow  broadcasters  to  transmit  data,  offer 
 Internet  access,  and/  or  provide  a  multichannel  video  service.  Convergence  therefore  promises 
 increased  competition  between  traditionally  distinct  service  providers. 
 This  technological  convergence  was,  moreover,  the  impetus  behind  the 
 Telecommunications  Act  of  1996  (  1996  Act),  which  Congress  primarily  designed  to  end  the 
 legal  barriers  between  various  communications  technologies  and  industries.  Because  Congress 

 (D.  C.  Cir.  1988)  (court  found  a  Commission  rule  affecting  the  determination  of  certain  costs  of 
 local  exchange  carriers  to  be  arbitrary  and  capricious,  because  Commissions  decision  had  no 
 relationship  to  the  underlying  regulatory  problem). 

 lo  Convergence  has  been  defined  as  the  combination  of  both  new  and  existing  media  -  e.  g., 
 broadcasting,  cable,  fiber  optics,  satellites  -  into  one  integrated  system  for  delivery  of  video, 
 voice,  and  data.  Meyerson,  Ideas  of  the  Marketplace:  A  Guide  to  The  1996 
 Telecommunications  Act,  49  Fed.  Corn.  L.  J.  25  1,252  (1997),  quoting  Botein,  Antitrust  Issues  in 
 the  Telecommunications  and  SofhYare  Industries,  25  SW.  U.  L.  Rev.  569,569  (1996). 

   For  example,  the  1996  Act  lifted  the  legal  barriers  both  to  telephone  company  provision  of 
 cable  and  other  video  programming,  and  cable  entry  into  the  local  telephone  market.  While  local 
 telephone  companies  were  also  permitted  into  the  long  distance  telephone  business,  they  were 
 forced  to  open  their  markets  for  local  service. 

 5 
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 intended  in  the  1996  Act  to  end  the  legal  balkanization  that  stood  in  the  path  of  technological 
 convergence,  *  the  Commissions  regulatory  treatment  of  formerly  disparate  communications 
 technologies  should  also  converge  as  the  technologies  converge. 
 In  particular,  NAB  believes  that  the  Commission  should  not  impose  unequal  burdens  on 
 different  types  of  licensees,  especially  if  they  are  competing  in  the  same  markets  by  offering  the 
 same  services.  The  type  of  service  offered  by  a  licensee  should  determine  the  level  of  public 
 interest  obligations  imposed,  rather  than  the  identity  of  the  licensee.  Thus,  as  discussed  in 
 greater  detail  below,  if  a  broadcaster  were  to  offer  a  data  service,  the  public  interest  duties 
 imposed  on  that  broadcasters  service  should  be  comparable  to  the  obligations  imposed  on  any 
 other  licensees  data  service.  The  mere  fact  that  a  licensee  may  be  a  broadcaster  does  not 
 automatically  justify  the  imposition  of  greater  public  interest  duties  than  those  imposed  on  a  non- 
 broadcast  licensee,  if  both  licensees  are  providing  similar  services. 
 D.  Extracting  Additional  Public  Interest  Concessions  from  DTV  Broadcasters  on 
 the  Basis  of  a  Quid  Pro  Quo  Is  Unjustified. 

 A  number  of  the  proposals  in  the  Notice  appear  based  on  the  erroneous  assumption  that 
 broadcasters  were  given  valuable  spectrum  for  free  and  that,  in  return,  they  should  be  made  to 
 pay  in  the  form  of  new  public  interest  obligations.  NAB  contends  that  the  extraction  of 
 additional  public  interest  concessions  from  DTV  broadcasters  cannot  be  justified  on  this  quid  pro 
 quo  theory. 
 As  an  initial  matter,  imposing  payment  for  the  digital  channels  in  the  form  of  expanded 
 public  interest  duties  seems  contrary  to  the  intent  of  Congress.  In  the  1996  Act,  Congress  had 

 I2  Krattenmaker  The  Telecommunications  Act  of  1996,49  Fed.  Corn.  L.  J.  1,9  (1996).  See  also 
 Meyer-  son,  Idea;  of  the  Marketplace  at  252-  53  (1996  Act  envisioned  a  flexible,  competitive  and 
 diverse  telecommunications  marketplace,  which  was  to  be  made  possible  by  convergence  of 
 technology). 

 6 
15
 the  option  of  requiring  broadcasters  to  pay  for  digital  spectrum  but  declined  to  do  so,  evidently  to 
 preserve  and  to  promote  the  competitiveness  of  over-  the-  air  broadcast  stations.  13  Given  this 
 Congressional  intent,  the  Commission  should  refrain  from  extracting  payment  under  the  guise  of 
 new  and  expansive  public  interest  obligations. 
 In  any  event,  NAB  disputes  the  supposition  that  the  grant  of  digital  spectrum  to 
 broadcasters  represents  a  windfall  for  which  broadcasters  must  be  made  to  pay  in  one  form  or 
 another.  As  explained  in  detail  below,  digital  television  will  not  benefit  broadcasters  to  such  a 
 greater  extent  than  their  analog  channels  that  some  additional  recompense  should  be  required. 
 First,  DTV  channels  have  not  been  awarded  to  broadcasters  in  perpetuity,  but  have 
 merely  been  loaned  for  the  length  of  the  publics  transition  from  analog  to  digital  reception.  As 
 consumers  adopt  digital  technology,  broadcasters  will  return  one  channel,  leaving  them  with  the 
 same  six  MHz  assignment  they  now  possess.  I4  No  other  communications  service  that  has 
 adopted  digital  technology  has  returned  even  one  MHz  of  spectrum. 
 Beyond  returning  valuable  spectrum  to  the  government,  broadcasters  will  invest 
 approximately  $lO-$  15  billion  (about  $8-$  12  million  per  station)  in  the  equipment  needed  to 
 convert  their  commercial  stations  to  digital.  Additional  amounts  will  be  needed  to  similarly 
 convert  noncommercial  stations.  And  broadcasters  will  be  required  to  invest  these  large  sums, 
 even  though  the  additional  revenue  potential  to  be  derived  from  digital  broadcasting  remains 

 l3  H.  R.  Rep.  No.  204,  104th  Cong.,  2d  Sess.  48  (1995)  (House  Commerce  Committee  report  on 
 the  1996  Act). 

 l4  See  47  U.  S.  C.  $5  336(  c);  309(  j)(  14).  Moreover,  defining  the  core  DTV  spectrum  as 
 including  channels  2-  5  1  will,  at  the  end  of  the  digital  transition,  permit  recovery  by  the  government  of  108  MHz  of  spectrum  -  more  than  one  fourth  of  the  total  spectrum  used  for 

 broadcast  television  today.  This  spectrum  will  ultimately  be  auctioned  and  used  by  other 
 services.  Memorandum  Opinion  and  Order  on  Reconsideration  of  the  Sixth  Report  and  Order  in 
 MM  Docket  No.  87-  268,  13  FCC  Red  7418  at  I[  45  (1998). 

 7 
16
 unclear.  i5  Despite  incurring  these  additional  costs,  with  no  promise  of  commensurate  additional 
 revenues,  broadcasters  are  required  to  provide  on  their  digital  channel  free,  over-  the-  air 
 television  service,  an  obligation  that  is  not  now  placed  on  analog  television  stations.  16  Given 
 these  factors,  it  is  not  surprising  that  an  independent  market  research  firm  has  concluded  that,  at 
 the  conclusion  of  the  digital  transition,  broadcasters  will  have  invested  billions  and  lost  market 
 share  from  their  present  position.  17  Rather  than  expecting  to  receive  a  windfall  from  digital 
 television,  broadcasters  in  fact  feel  they  must  convert  to  digital  technology  to  merely  remain 
 competitive  in  a  video  marketplace  where  all  of  their  competitors  will  be  digital. 
 Thus,  no  evidence  exists  that  the  grant  of  digital  channels  to  broadcasters  represents  a 
 giveaway  or  any  form  of  unjust  enrichment.  Accordingly,  there  is  no  basis  for  imposing  new  and 
 expansive  public  interest  obligations  as  a  quid  pro  quo  for  the  temporary  receipt  of  additional 
 spectrum  during  the  digital  conversion,  especially  in  light  of  Congress  intent  to  preserve  free 
 television  and  to  promote  the  competitiveness  of  over-  the-  air  broadcast  stations.  H.  R.  Rep. 
 No.  204,  104th  Cong.,  2d  Sess.  48  (1995). 

 I5  There  is  certainly  no  reason  to  expect  advertisers  to  pay  more  for  advertisements  on  a  digital  or 
 HDTV  signal,  simply  because  it  is  not  analog.  In  addition,  advertiser-  supported  multicasting 
 might  only  divide  (rather  than  increase)  a  stations  audience,  thus  providing  no  additional 
 revenues.  See  discussion  in  Section  1I.  A.  below. 

 I6  Specifically,  broadcasters  must  provide  a  free  digital  video  programming  service  the 
 resolution  of  which  is  comparable  to  or  better  than  that  of  todays  service  and  aired  during  the 
 same  time  periods  that  their  analog  channel  is  broadcasting.  Fifth  Report  and  Order,  12  FCC 
 Red  at  12820.  If  broadcasters  do  choose  to  provide  subscription  ancillary  or  supplementary 
 services  in  addition  to  a  free,  over-  the-  air  television  signal,  then  they  must  pay  significant  fees. 
 See  47  U.  S.  C.  3  336(  e)  and  the  discussion  in  Section  1I.  C.  below. 

   See  Testimony  of  Josh  Bemoff,  Principal  Analyst  at  For-  rester  Research,  to  Advisory 
 Committee  (Jan.  16,  1998). 

 8 
 ,__  ._  .  ..,.  ..  .-  e--  m-..-  -. 
17
 E.  Additional  Public  Interest  Duties  on  Broadcasters  Cannot  Be  Justified  Unless  the 
 Evidence  Demonstrates  that  the  Existing  Public  Interest  Standards  Are  Inadequate 
 and  that  the  Benefits  of  New  Obligations  Clearly  Outweigh  their  Costs. 

 It  is  axiomatic  that  any  Commission  regulation  must  be  supported  by  an  adequate  factual 
 basis.  18  In  light  of  the  significant  public  interest  obligations  already  imposed  on  broadcasters, 
 additional  public  interest  duties  on  analog  or  digital  broadcasters  can  be  justified  only  if  the 
 evidence  demonstrates  that  these  existing  standards  are  inadequate  and  that  the  new  duties  would 
 address  these  inadequacies.  As  discussed  in  more  detail  below,  the  Notice  makes  numerous 
 suggestions  for  revising  or  increasing  the  public  interest  duties  of  DTV  broadcasters,  but  it 
 contains  scant  evidence  that  the  existing  public  interest  standards  are  inadequate  or  that 
 broadcasters  are  currently  failing  to  serve  the  public  interest.  Rather,  the  evidence  shows  that 
 broadcasters  take  their  public  service  obligations  very  seriously  indeed,  and  provide  literally 
 billions  of  dollars  in  community  service.  As  set  forth  in  NABs  1998  report,  the  nations 
 broadcasters  provided  $6.85  billion  in  community  service  in  1996.*   
 Beyond  needing  to  establish  an  evidentiary  basis  of  the  inadequacies  of  existing  public 
 interest  standards,  the  Commission  must  also,  to  justify  the  adoption  of  increased  obligations, 

 *  See,  e.  g.,  Cincinnati  Bell  Telephone  Co.  v.  FCC,  69  F.  3d  752,763  (6th  Cir.  1995)  (court  concluded  that  rules  restricting  cellular  providers  from  participating  in  certain  spectrum  auctions 
 were  arbitrary,  because  Commission  had  no  factual  support  for  them). 
 I9  See,  e.  g.,  ALLTEL  Corp.,  838  F.  2d  at  560  (FCCs  facially  plausible  claim  that  its  rule  on  the  costs  of  local  exchange  carriers  prevented  certain  abuses  ultimately  failed  to  justify  the  rule 

 because  there  was  no  showing  that  such  abuse  did  in  fact  exist  and  no  showing  that  the  rule 
 target[  ed]  companies  engaged  in  such  abuse). 

 2o  This  figure  included  $4.6  billion  in  donated  air  time  for  public  service  announcements,  $2.1 
 billion  raised  for  charities  and  causes  by  stations,  and  $148.4  million  in  free  air  time  donated  for 
 candidate  debates  and  forums.  See  NAB,  Broadcasters,  Bringing  Community  Service  Home:  A 
 National  Report  on  the  Broadcast  Industrys  Community  Service  at  2  (April  1998)  (  NAB  Report).  The  Notice  (at  9[  8)  cites  the  NAB  Report,  acknowledging  that  many  broadcasters 

 have  served  the  public  interest  in  numerous  ways  over  the  years. 

 9 
 _.  ..,.~  ___--.    .  ..-~.---.^-..  .~__..-.-  _____---.---- 
18
 demonstrate  that  the  benefits  of  any  new  public  interest  duties  outweigh  the  costs.  While  the 
 Notice  contains  a  veritable  laundry  list  of  obligations  that  conceivably  could  be  required  of 
 broadcasters,*    the  Notice  often  fails  to  recognize  that  imposition  of  these  proposals  would  entail 
 very  significant  costs  on  broadcasters.  As  an  initial  matter,  NAB  does  not  believe  that 
 broadcasters  should  be  required  to  bear  the  costs  of  funding  such  a  wide  variety  of  general  public 
 benefits,  particularly  (as  discussed  above)  those  relating  to  goals  only  tangentially  connected  to 
 broadcasting.  At  the  very  least,  the  Commission  should  realistically  assess  the  relative  costs  and 
 benefits  of  its  public  interest  proposals.  And  unless  the  Commission  can  show  that  the  benefits 
 generated  by  its  proposals  are  sufficient  to  justify  the  costs  imposed  on  broadcasters,  then  the 
 Commission  must  refrain  from  imposing  these  additional  public  interest  obligations. 
 F.  In  Considering  Any  Public  Interest  Obligations  for  DTV  Broadcasters,  the 
 Commission  Should  Eschew  Inflexible  Regulation  and  Rely  Primarily  on 
 Marketplace  Forces. 

 NAB  observes  that  several  proposals  in  the  Notice  reflect  an  outmoded  regulatory 
 mindset.  Indeed,  certain  proposals  appear  to  suggest  the  virtual  reinstatement  of  specific  past 
 policies,  such  as  ascertainment,  that  the  Commission  has  previously  found  unjustifiable  and 
 consequently  eliminated. 
 NAB  believes  the  Commission  should  resist  calls  to  return  to  outdated  regulatory  models 
 and  policies.  Such  traditional  approaches  generally  tend  to  rely  on  inflexible  government 
 regulations,  and  can  prevent  licensees  from  adapting  to  future  marketplace  developments  or  even 

 *  For  example,  broadcasters  might  be  forced  to  provide  datacasting  to  schools  and  libraries: 
 increase  the  types  of  information  included  in  their  public  files;  use  the  Internet  to  interact  with  the  public  and  discuss  their  programming  with  members  of  the  public;  bear  mandatory  minimum 

 public  interest  requirements;  and  provide  free  time  to  political  candidates. 

 10 
19
 generate  counterproductive  incentives  for  broadcasters.**  Moreover,  a  return  to  old-  fashioned 
 regulatory  policies  would  be  contrary  to  the  Commissions  general  approach  for  more  than  two 
 decades  of  reducing  regulatory  burdens  no  longer  appropriate  to  changing  broadcast  marketplace 
 conditions,  and  relying  more  on  market  incentives  to  accomplish  regulatory  goals.  23  Particularly 
 in  an  era  of  tremendous  growth  in  the  number  and  variety  of  media  outlets,  24  NAB  sees  no 
 basis  for  rejecting  a  general  market-  based  regulatory  approach  and  returning  to  less  flexible  and 
 anachronistic  regulatory  policies. 
 G.  Given  the  Deficiencies  of  the  Scarcity  Doctrine,  the  Constitutional  Implications 
 of  Any  Proposed  Public  Interest  Obligations  Must  Be  Carefully  Considered. 

 The  disparate  treatment  of  the  print  and  electronic  media  under  federal  regulation  and  the 
 First  Amendment  has  traditionally  been  justified  on  the  grounds  that  broadcast  frequencies  are 
 uniquely  scarce.  Specifically,  the  scarcity  doctrine  has  been  utilized  to  justify  greater 
 governmental  control  over,  and  the  imposition  of  regulations  on,  broadcasters  than  could 
 constitutionally  be  asserted  over  newspapers  and  other  print  media.  25  Along  with  a  great  many 

 22  See,  e.  g.,  Hazlett,  Physical  Scarcity,  Rent  Seeking,  and  the  First  Amendment,  97  Colum.  L. 
 Rev.  905,  938  (1997);  Hazlett  and  Sosa,  Was  the  Fairness  Doctrine  a  Chilling  EfSect?,  26  J. 
 Legal  Stud.  279,292-  99  (1997)  (the  supply  of  informational  programming  formats  (news,  talk, 
 news/  talk,  and  public  affairs)  in  the  AM  and  FM  radio  markets  exploded  both  absolutely,  and  as 
 a  proportion  of  all  formats,  after  abolishment  of  the  Fairness  Doctrine  in  1987,  thereby  indicating 
 that  the  doctrine  had  acted  as  a  disincentive  to  the  airing  of  potentially  controversial  speech). 

 23  The  Commission  began  to  reform  many  of  its  programming  related  broadcast  regulations  well 
 over  twenty  years  ago.  See,  e.  g.,  Further  Notice  of  Inquiry  and  Notice  of  Proposed  Rulemaking 
 in  Docket  No.  19715,53  FCC  2d  3  (1975)  (establishing  experimental  exemption  from  formal 
 ascertainment  requirements  for  small  market  radio  and  television  license  renewal  applicants); 
 Notice  of  Znquiry  and  Proposed  Rulemaking  in  BC  Docket  No.  79-  219,73  FCC  2d  457  (1979)  (setting  forth  various  proposals  for  substantially  deregulating  commercial  radio  industry). 

 24  Report  and  Order  in  MM  Docket  Nos.  91-  221  and  87-  8,  FCC  99-  209  at  p  1  (1999). 
 25  See,  e.  g.,  Red  Lion  Broadcasting  Co.,  Inc.  v.  FCC,  395  U.  S.  367  (1969)  (upholding  constitutionality  of  Fairness  Doctrine). 

 11 
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 jurists  and  scholars,  NAB  believes  that  this  scarcity  doctrine  is  illogical  and  factually 
 unsupportable,  and  therefore  deficient  as  a  legal  basis  for  depriving  broadcasters  of  full  First 
 Amendment  protection.  Thus,  the  Commission  must  be  cautious  in  imposing  new  public  interest 
 obligations  on  broadcasters  that  implicate  the  First  Amendment,  as  the  Commission  may  be 
 unable  to  rely  on  the  traditional  basis  for  establishing  the  constitutionality  of  any  such 
 obligations. 
 As  numerous  jurists  and  commentators  have  pointed  out,  broadcast  frequencies  are  not 
 uniquely  scarce.  26  All  economic  goods  are  scarce,  including  the  materials  necessary  for  the 
 production  of  newspapers.  Yet  the  print  media,  unlike  broadcasters,  have  not  been  subject  to 
 regulatory  schemes  that  intrude  into  First  Amendment  territory.  Since  scarcity  is  a  universal 
 fact,  it  cannot  be  the  basis  for  justifying  regulation  in  one  context  but  not  in  another.  As  the 
 Commission  itself  has  recognized: 
 All  goods,  however,  are  ultimately  scarce,  and  there  must  be  a  system  through 
 which  to  allocate  their  use.  .  .  .  Whatever  the  method  of  allocation,  there  is  not 
 any  logical  connection  between  the  method  of  allocation  for  a  particular  good 
 and  the  level  of  constitutional  protection  afforded  to  the  uses  of  that  good.  27 

 Even  beyond  the  illogic  of  the  scarcity  argument  in  the  economic  sense,  it  is  clear  that 
 broadcast  and  other  media  outlets  are  much  less  scarce  in  a  numerical  sense  today  than  in  1969 
 when  the  Supreme  Court  gave  definition  to  the  scarcity  doctrine  in  Red  Lion.  Not  only  has  the 

 26  See,  e.  g.,  Telecommunications  Research  and  Action  Center  v.  FCC,  801  F.  2d  501,508-  9  (D.  C.  Cir.  1986),  cert.  denied,  482  U.  S.  919  (1987);  Time  Warner  Entertainment  Co.  v.  FCC,  105  F.  3d 
 723,728  n.  2  (1997)  (Williams,  J.,  dissenting  from  denial  of  rehearing  en  bane);  Actionfor 
 Childrens  Television  v.  FCC,  58  F.  3d  654,  675  (D.  C.  Cir.  1995)  (Edwards,  C.  J.,  dissenting),  cert.  denied,  516  U.  S.  1043  (1996);  Hazlett,  Physical  Scarcity  at  910. 

   In  r-  e  Syracuse  Peace  Cow&,  2  FCC  Red  5043,  5055  (1987)  (concluding  that  Fairness 
 Doctrine  violated  First  Amendment  and  did  not  serve  the  public  interest),  afirmed,  Syracuse 
 Peace  Council  v.  FCC,  867  F.  2d  654,683  (D.  C.  Cir.  1989)  (Starr,  J.  concurring),  cert.  denied,  493  U.  S.  1019  (1990)  (  spectrum  scarcity,  without  more,  does  not  necessarily  justify  regulatory 

 schemes  which  intrude  into  First  Amendment  territory). 

 12 
21
 number  of  broadcast  facilities  exploded,  28  but  the  vast  increase  in  the  number  and  variety  of 
 nonbroadcast  outlets  (including  cable,  Direct  Broadcast  Satellite  and  the  Internet)  makes  the  idea 
 of  scarcity  of  media  voices  seem  almost  quaint.  This  expansion  in  the  number  and  variety  of 
 media  outlets  should  increase  further  as  technology  continues  to  improve,  which  will  permit 
 more  efficient  use  of  spectrum.  Indeed,  the  transition  to  digital  broadcasting  should  lead  to  even 
 greater  abundance  of  broadcast  channels  and  program  options.  Thus,  NAB  agrees  with  the 
 Commission  when  it  previously  concluded  that  there  is  no  longer  a  scarcity  in  the  number  of 
 broadcast  outlets  available  to  the  public.  29 
 If,  as  the  Commission  explicitly  recognized  in  Syracuse  Peace  Council,  the  scarcity 
 doctrine  is  no  longer  logically  or  empirically  valid,  then  the  Commission  must  be  cautious  in 
 relying  on  Red  Lion  and  its  jurisprudential  progeny  to  justify  the  imposition  of  any  new  public 
 interest  obligations  that  implicate  the  First  Amendment.  Red  Lions  factual  predicate  is  clearly 
 the  scarcity  of  broadcast  frequencies.  See  395  U.  S.  at  390,  398-  99  n.  25,  n.  26,  400.30  In  the 
 absence  of  such  a  predicate,  the  rationale  for  upholding  government  regulations  implicating  the 

 28  The  number  of  television,  AM,  and  FM  stations  has  increased  by  85%  since  1970.  See  Report 
 and  Order  in  MM  Docket  Nos.  91-  221  and  87-  8,  FCC  99-  209  at    29  (1999). 

 *  Syracuse  Peace  Council,  2  FCC  Red  at  5054.  Numerous  jurists  and  scholars  have  also 
 expressed  agreement  with  this  assessment.  See,  e.  g.,  Tribune  Co.  v.  FCC,  133  F.  3d  61,68  (D.  C. 
 Cir.  1998);  Arkansas  AFL-  CIO  v.  FCC,  I1  F.  3d  1430,  1443  (8th  Cir.  1993)  (concurring  opinion); 
 Telecommunications  Research  and  Action  Center,  801  F.  2d  at  508  n.  4;  Hazlett,  PhysicaZ  Scarcity  at  911;  Robinson,  The  Electronic  First  Amendment:  An  Essay  for  the  New  Age,  47  Duke  L.  J. 

 899,904(  1998). 
 3o  See  also  FCC  v.  League  of  Women  Voters  of  California,  468  U.  S.  364,377  (1984);  Columbia  Broadcasting  System,  Inc.  v.  Democratic  National  Committee,  412  U.  S.  94,  101  (1973)  (cases 
 similarly  relying  on  spectrum  scarcity  as  the  basis  for  less  First  Amendment  protection  of 
 broadcasting). 

 13 
 .-  -  .  .._  . 
22
 First  Amendment  rights  of  broadcasters  becomes  at  best  unclear.  3  Given  this  questionable 
 status  of  the  traditional  approach  for  evaluating  the  constitutional  implications  of  broadcast 
 regulations,  the  Commission  should  exercise  restraint  in  adopting  new  public  interest  obligations 
 that  raise  clear  First  Amendment  concerns. 

 II.  A  NUMBER  OF  THE  SPECIFIC  PROPOSALS  SET  FORTH  IN  THE  NOTICE 
 ARE  PREMATURE,  UNRELATED  TO  DIGITAL  BROADCASTING,  UNDULY 
 BURDENSOME,  LACKING  IN  EVIDENTIARY  SUPPORT  OR 
 CONSTITUTIONALLY  SUSPECT. 

 A.  The  Imposition  of  Public  Interest  Rules  Pertaining  to  Multicasting  Would  Be 
 Premature. 

 In  establishing  the  statutory  framework  for  the  transition  to  DTV,  Congress  made  clear  in 
 Section  336  of  the  Communications  Act  that  television  broadcast  stations  in  the  digital 
 environment  remain  obligated  to  serve  the  public  interest,  convenience,  and  necessity.  47 
 U.  S.  C.  9  336(  d).  In  implementing  Section  336,  the  Commission  put  broadcast  licensees  on 
 notice  that  existing  public  interest  requirements  continue  to  apply  to  them.  32  These  public 
 interest  requirements  have  traditionally  been  applied  to  broadcasters  providing  a  single  analog 
 signal  carrying  one  video  program.  It  remains  unclear  how  these  public  interest  programming 
 duties  should  apply  in  a  digital  environment,  where  broadcasters  will  have  the  ability  to  multicast 

 3  Indeed,  the  Supreme  Court  has  clearly  suggested  that  it  might  reconsider  its  longstanding 
 approach  to  evaluating  the  constitutionality  of  broadcast  regulations,  if  Congress  or  the 
 Commission  signal[  ed]  .  .  .  that  technological  developments  have  advanced  so  far  that  some  revision  of  the  system  of  broadcast  regulation  may  be  required. 
 League  of  Women  Voters,  468 

 U.  S.  at  376  n.  11. 

 32  Fifth  Report  and  Order,  12  FCC  Red  at  12830.  Thus,  DTV  broadcasters  must,  for  example,  air  programming  responsive  to  their  communities  of  license,  comply  with  the  statutory 

 requirements  concerning  political  advertising  and  candidate  access,  and  provide  childrens 
 educational  programming. 

 14 
23
 (i.  e.,  broadcast  several  video  programming  streams  on  a  single  digital  channel).  The  Notice  (at  jj 
 11)  requested  comment  on  this  issue. 
 The  basic  question  with  regard  to  multicasting  is  whether  a  licensees  public  interest 
 obligations  attach  to  the  DTV  channel  as  a  whole,  or  instead  to  each  program  stream  offered  by 
 the  licensee.  See  Notice  at    11.  NAB  thinks  it  would  be  inappropriate  to  impose  the  full 
 panoply  of  public  interest  obligations  on  all  of  the  program  streams  that  a  multicasting 
 broadcaster  might  offer.  In  particular,  the  full  range  of  generalized  public  interest  obligations 
 should  not  be  required  on  the  specialized  program  streams  that  a  broadcaster  might  offer.  33  NAB 
 realizes,  however,  that  the  Commission  may  be  reluctant  to  allow  all  public  interest  related 
 programming  to  be  placed  on  a  single  stream  of  a  multicasting  broadcaster,  especially  if  the 
 broadcaster  is  offering  several  general  interest  programming  streams. 
 In  considering  these  various  factors,  the  Commission  should  recognize  that,  if 
 multicasting  does  increase  the  total  number  of  programming  options  available  to  viewers,  then  it 
 becomes  less  necessary  for  each  programming  stream  to  carry  all  types  of  public  interest 
 programming.  In  a  diverse  multicasting  environment,  viewers  will  benefit  from  the  increased 
 number  and  variety  of  programming  offerings  across  the  market,  and  the  Commission  should  be 
 less  concerned  with  insuring  that  every  single  programming  stream  offers  every  category  of 
 programming.  34  Due  to  the  increase  in  diversity  of  program  offerings  in  a  multicasting 

 33  For  example,  it  would  make  little  sense  to  require  a  broadcaster  to  air  childrens  programming 
 on  a  specialized  stream  devoted  to  business  news.  Conversely,  if  a  broadcaster  were  to  offer  a 
 specialized  childrens  programming  stream,  then  that  broadcaster  should  not  be  required  to  carry 

 childrens  programming  on  all  of  its  other  programming  streams. 

 34  In  previously  eliminating  quantitative  programming  guidelines  for  both  television  and  radio 
 stations,  the  Commission  similarly  recognized  that  audiences  benefited  by  an  increased  diversity 
 of  program  offerings  across  the  market  and  that  individual  stations  did  not  necessarily  need  to 
 present  programming  of  all  types.  See  Report  and  Order  in  MM  Docket  No.  83-  670,98  FCC  2d 

 15 

 _  _....  _.^_,_  ~,. 
24
 environment,  regulations  requiring  every  programming  stream  of  a  broadcaster  to  carry  all  types 
 of  public  interest  programs  would  appear  unnecessary.  Indeed,  such  inflexible  regulations  could 
 discourage  broadcasters  from  engaging  in  innovative  multicasting  services.  35 
 With  regard  to  Section  336(  d),  about  which  the  Commission  specifically  inquired,  NAB 
 is  not  persuaded  that  this  language  directly  pertains  to  multicasting.  Rather,  this  language 
 applies  on  its  face  to  licensees  providing  ancillary  or  supplementary  services.  Such  a  licensee 
 seeking  renewal  needs  to  establish  that  its  program  services  are  in  the  public  interest,  and  that  its 
 non-  program  ancillary  and  supplementary  services  are  conducted  in  accordance  with  the  rules 
 applicable  to  those  services.  Thus,  this  section  most  directly  addresses  DTV  broadcasters  who 
 offer  both  program  services  and  non-  program  ancillary  services,  and  does  not  provide  any  clear 
 guidance  as  to  how  existing  program-  related  public  interest  obligations  should  be  applied  to 
 licensees  who  multicast  multiple  program  services. 
 In  any  event,  this  discussion  of  the  application  of  public  interest  duties  to  multicast 
 programs  remains  entirely  theoretical  at  this  time.  Broadcasters  may  ultimately  choose  not  to 
 multicast  at  all,  but  instead  decide  to  broadcast  primarily  one  HDTV  signal,  in  which  case 
 broadcasters  existing  public  interest  duties  should  not  be  altered.  See  Section  I.  B.  above. 

 1076,  1087-  88  (1984);  O&  e  of  C  ommunication  of  the  United  Church  of  Christ  v.  FCC,  707 
 F.  2d  1413,1434  (D.  C.  Cir.  1983). 

 35  For  example,  a  broadcaster  considering  whether  to  engage  in  multicasting  (or  whether  to  use  its 
 digital  spectrum  in  some  other  manner)  might  be  reluctant  to  offer  three,  four  or  five 
 programming  streams,  if  that  tripled,  quadrupled  or  quintupled  its  public  interest  programming 
 requirements. 

 36  The  language  at  issue  provides:  In  the  Commissions  review  of  any  application  for  renewal  of 
 a  broadcast  license  for  a  television  station  that  provides  ancillary  or  supplementary  services,  the 
 television  licensee  shall  establish  that  all  of  its  program  services  on  the  existing  or  advanced 
 television  spectrum  are  in  the  public  interest.  Any  violation  of  the  Commission  rules  applicable 
 to  ancillary  or  supplementary  services  shall  reflect  upon  the  licensees  qualifications  for  renewal 
 of  its  license.  47  U.  S.  C.  9  336(  d)  (emphasis  added). 

 16 
 _..  -  -  ,_  ,__.  _  ___--,-___  __,_  --__  ------.  _  .  .  ..__  -.-._.-. 
25
 Broadcasters  might  also  choose  to  multicast  multiple  standard  definition  program  streams  during 
 only  part  of  the  day  and  broadcast  a  single  HDTV  signal  at  other  times  (such  as  prime  time). 
 NAB  believes  that  the  Commission  would  be  better  able  to  formulate  appropriate  public  interest 
 rules  for  multicasting  if  such  rules  reflected  the  actual  services  offered  by  broadcasters.  Indeed, 
 it  as  yet  remains  unknown  whether  multicasting  will  be  viable  commercially.  Multicasting  might 
 in  fact  only  divide  a  stations  existing  audience,  rather  than  increase  it,  in  which  case  advertiser- 
 supported  multicasting  would  have  no  additional  revenue  producing  potential.  37  Moreover, 
 multicasting  could  substantially  increase  a  broadcasters  programming  costs.  Given  the 
 speculative  nature  of  any  multicasting  service  at  this  time,  NAB  advises  the  Commission  to 
 refrain  from  adopting  rules  imposing  special  public  interest  obligations  (including  with  regard  to 
 childrens  programming)  on  multicasting,  until  such  services  actually  develop.  38 
 B.  The  Current  Television  Ratings  System  Is  Voluntary  and  Should  Remain 
 Unchanged  in  the  Digital  Environment. 

 The  Notice  (at  3  12)  suggests  that  the  current  voluntary  television  ratings  system  could  be 
 improved  by  adding  new  and/  or  different  information  in  the  digital  environment.  Because  the 
 existing  V-  Chip  technical  standards  for  the  ATSC  DTV  system  were  crafted  at  a  time  when  only 
 the  current  television  ratings  system  had  been  approved  by  the  Commission,  those  V-  Chip 
 standards  were  written  to  support  only  that  ratings  system  in  the  United  States.  Thus,  NAB 

 37  See  Advisory  Committee  Report  at  54  (  it  is  conceivable  that  broadcasters  who  apply 
 multiplexing  will  simply  cannibalize  their  single  signal,  achieving  no  additional  revenues  or 
 perhaps  merely  stabilizing  current  market  share). 

 38  The  Commission  should  not  be  overly  concerned  that  some  broadcasters  might  start  to  offer 
 multicasting  services  prior  to  the  adoption  of  special  public  interest  obligations  concerning  such 
 services.  After  all,  DTV  broadcasters  will  remain  subject  to  the  existing  public  interest 
 programming  obligations. 

 17 
 ._  -- 
26
 believes  that  the  suggestion  to  alter  the  current  voluntary  ratings  system  would  only  serve  to 
 delay  needlessly  the  introduction  of  digital  televisions  with  V-  Chip  technology. 
 Specifically,  the  existing  DTV  V-  Chip  technology  has  two  components:  a  Ratings 
 Region  Table  (  RR,)  and  a  Content  Advisory  Descriptor  (  CAD)  packet.  The  RRT  contains  a 
 description  of  the  rating  system  used  in  a  specific  country.  RRTs  are  broadcast  relatively 
 infrequently,  and  they  tell  DTV  receivers  about  the  entire  set  of  ratings  that  can  be  applied  to  a 
 program.  In  the  United  States,  for  example,  RRTs  will  contain  a  description  of  the  existing 
 Television  Parental  Guidelines  as  voluntarily  adopted  by  the  television  industry  and  approved  by 
 the  Commission.  The  CAD  packet  carries  the  actual  rating  assigned  to  a  specific  program. 
 When  a  DTV  set  receives  a  CAD,  it  will  check  its  contents  against  the  RRT  to  ensure  that  the 
 rating  is  valid.  The  DTV  receiver  will  then  react  to  the  program  based  on  how  the  consumer  has 
 programmed  the  television  set  (e.  g.,  block  the  program  if  it  has  a  certain  rating). 
 The  manufacturers  of  DTV  sets  are  just  now  beginning  to  include  in  their  products  V- 
 Chips  that  function  as  described  above.  39  If  the  V-  Chip  standard  were  to  be  changed  to  include 
 the  carriage  of  more  or  different  types  of  information  (as  the  Notice  suggests),  then  DTV 
 receivers  would  likely  have  to  be  re-  engineered  to  support  the  altered  digital  V-  Chip  standard. 
 This  process  of  both  setting  a  new  digital  V-  Chip  standard  and  then  producing  DTV  receivers  in 
 accordance  with  the  revised  standard  would  doubtless  consume  considerable  time.  As  a  result, 
 the  alteration  of  the  current  ratings  system  would  serve  only  to  stall  the  current  installation  of  V- 
 Chips  in  DTV  sets  and  delay  the  overall  introduction  of  V-  Chips  in  the  digital  marketplace. 

 39  See  Expedited  Petition  for  Rulemaking  in  ET  Docket  No.  97-  206  filed  by  the  Consumer 
 Electronics  Association  (Jan.  12,200O)  (asking  the  Commission  to  incorporate  into  its  rules  the 
 existing  DTV  V-  Chip  standard,  EIA-  766). 

 18 
27
 In  any  event,  NAB  notes  the  inherent  contradictions  of  proposals  suggesting  any 
 required  changes  to  a  voluntary  ratings  system.  NAB  submits  that  the  Commission  lacks  the 
 authority  to  specify  changes  to  the  current  voluntary  system  and  to  force  broadcasters  to  institute 
 those  changes.  Under  Section  551  of  the  1996  Act,  the  Commissions  role  was  only  to  determine 
 whether  an  industry-  adopted  ratings  system  was  satisfactory.  Once  it  did  so,  its  role  in  the 
 development  of  the  ratings  system  was  at  an  end,  and  Congress  gave  no  hint  that  it  intended  the 
 Commission  to  have  any  continuing  role  in  the  operation  of  the  ratings  system.  We  particularly 
 object  to  the  suggestion  that  the  Commission  could  impose  limits  on  commercial  speech  in 
 relation  to  the  voluntary  ratings  system.  See  Notice  at  91  12.  Specifically,  an  attempt  to  prevent 
 broadcasters  from  running  advertisements  for  television  programs  that  have  ratings  different 
 from  the  rating  of  the  program  during  which  the  advertisements  run  would  constitute  a  content- 
 based  speech  restriction.  Under  current  commercial  speech  doctrine,  any  such  restrictions  on  the 
 advertising  of  television  programming  implicates  serious  First  Amendment  concems.  40 
 C.  Ancillary  and  Supplementary  Services  Offered  by  DTV  Broadcasters  Should  Be 
 Subject  to  the  Same  Public  Interest  Requirements  as  Comparable  Services  Offered 
 by  Non-  Broadcasters. 

 In  implementing  Section  336,  the  Commission  determined  to  allow  broadcasters 
 flexibility  to  respond  to  the  demands  of  their  audience  by  providing  ancillary  and  supplementary 
 services.  4  The  Notice  (at  J  13)  requested  comment  on  whether  public  interest  obligations 
 should  apply  to  ancillary  and  supplementary  services,  and  if  so,  how. 

 40  See,  e.  g.,  Greater  New  Orleans  Broadcasting  Association,  Inc.  v.  U.  S.,  119  S.  Ct.  1923  (1999)  (finding  that  federal  statute  and  implementing  FCC  regulation  prohibiting  broadcasters  from 
 carrying  advertisements  about  privately  operated  commercial  casino  gambling  violated  First 
 Amendment). 

   Fifh  Report  and  Order,  12  FCC  Red  at  12821.  These  services  are  those  other  than  free,  over-  the-  air  services,  and  could  include,  but  are  not  limited  to,  Internet  access,  computer  software 

 19 
28
 Because  Congress  generally  intended  to  end  the  differentiated  legal  treatment  of 
 converging  technologies  in  the  1996  Act  (see  Section  I.  C.  above),  NAB  believes  that  any 
 ancillary  or  supplementary  services  offered  by  DTV  broadcasters  should  be  subject  to  the  same 
 public  interest  obligations  as  comparable  services  offered  by  non-  broadcasters.  It  is  the  type  of 
 service  offered  -  rather  than  the  label  attached  to  the  licensee  -  that  should  determine  the  type  of 
 public  interest  duties  that  apply.  Accordingly,  if  a  DTV  broadcaster  were  to  offer  an  Internet 
 access  service,  the  public  interest  obligations  applicable  to  that  service  should  be  comparable  to 
 those  applied  to  any  other  licensees  Internet  access  service,  even  if  a  non-  broadcaster.  The 
 terms  of  Section  336  clearly  support  NABs  position. 
 Section  336(  b)(  3)  requires  the  Commission  to  apply  to  any  ancillary  or  supplementary 
 service  such  of  the  Commissions  regulations  as  are  applicable  to  the  offering  of  analogous 
 services  by  any  other  person.  47  U.  S.  C.  $  336(  b)(  3).  Thus,  Congress  has  explicitly  directed  the 
 Commission  to  regulate  any  ancillary  or  supplementary  services  offered  by  DTV  broadcasters  in 
 the  same  manner  as  comparable  services  offered  by  non-  broadcasters.  Congress  has  additionally 
 recognized  that  traditional  programming-  related  public  interest  obligations  do  not  readily  transfer 
 to  ancillary  and  supplementary  services,  which  will  generally  be  non-  video.  Section  336(  d) 
 provides  that  a  DTV  licensee  providing  ancillary  or  supplementary  services  shall,  upon  renewal, 
 establish  that  all  of  its  pup-  am  services  on  the  existing  or  advanced  television  spectrum  are  in 
 the  public  interest.  47  U.  S.  C.  9  336(  d)  (emphasis  added).  Contrarily,  with  regard  to  non- 
 program  ancillary  or  supplementary  services,  Section  336(  d)  states  that  [  alny  violation  of  the 
 Commissions  rules  applicable  to  them  shall  reflect  upon  the  licensees  qualifications  for 

 distribution,  data  transmissions,  teletext,  interactive  services,  aural  messages,  paging  services, 
 audio  signals  or  subscription  video. 

 20 
 ._  .I_-  Ix-._  ._..  ^  .._---  ..--  -  --.----. 
29
 renewal  of  its  license.  Id.  These  sections,  taken  together,  establish  that  Congress  intended 
 broadcasters  ancillary  and  supplementary  services  to  be  subject  to  the  same  regulations 
 applicable  to  analogous  services  offered  by  other  licensees,  including  with  regard  to  public 
 interest  obligations.  This  congressional  intention  is  the  law  and  must  be  given  effect  by  the 
 Commission.  42 
 NAB  does  not  agree  that  Section  336(  a)(  2)  implies  that  the  traditional  program-  related 
 public  interest  standard  applies  to  ancillary  and  supplementary  services  offered  by  DTV 
 broadcasters.  That  section  provides  that,  if  the  Commission  determines  to  issue  licenses  for 
 advanced  television  services,  the  Commission  shall  allow  the  holders  of  such  licenses  to  offer 
 such  ancillary  or  supplementary  services  on  designated  frequencies  as  may  be  consistent  with  the 
 public  interest,  convenience,  and  necessity.  47  U.  S.  C.  6  336(  a).  NAB  does  not  believe  that  this 
 section  even  addresses  the  applicability  of  existing  public  interest  obligations  to  ancillary  and 
 supplementary  services.  Rather,  Section  336(  a)  directs  the  Commission,  if  it  issues  licenses  for 
 advanced  television  services  at  all,  to  determine  whether  allowing  DTV  licensees  to  offer 
 ancillary  or  supplementary  services  would  be  in  the  public  interest.  Section  336(  a),  then,  speaks 
 to  an  initial  determination  by  the  Commission  of  whether  DTV  licensees  should  even  be  allowed 
 to  offer  ancillary  or  supplementary  services.  Once  the  Commission  has  determined  that  allowing 
 these  licensees  to  offer  ancillary  or  supplementary  services  would  serve  the  public  interest,  43  then 
 the  entirely  separate  question  concerning  the  type  of  public  interest  duties  that  attach  to  these 
 services  arises.  And,  as  NAB  has  set  forth  above,  the  type  of  public  interest  obligations 

 *  Chevron,  U.  S.  A.,  Inc.  v.  Natural  Resources  Defense  Council,  Inc.,  467  U.  S.  837,843  and  n.  9  (1984). 
 43  The  Commission  made  this  determination  in  the  Fifrh  Report  and  Order,  12  FCC  Red  at 
 12820-  23. 

 21 
30
 applicable  to  ancillary  or  supplementary  services  offered  by  DTV  licensees  should  be  the  same 
 as  the  public  interest  standards  applicable  to  the  offering  of  analogous  services  by  any  other 
 person.  47  U.  S.  C.  3  336(  b)(  3).  44 
 NABs  position  is  also  buttressed  by  Congress  determination  to  require  DTV  licensees 
 who  offer  ancillary  or  supplementary  services  on  a  subscription  basis  to  pay  fees.  Section  336(  e) 
 directs  the  Commission  to  establish  a  program  to  assess  and  collect  fees  from  licensees  offering 
 ancillary  or  supplementary  services  to  recover  for  the  public  (1)  a  portion  of  the  value  of  the 
 public  spectrum  resource  made  available  for  commercial  use;  and  (2)  an  amount  equaling,  over 
 the  term  of  the  license,  the  amount  that  would  have  been  recovered  had  the  ancillary  and 
 supplementary  services  been  licensed  by  competitive  bidding.  47  U.  S.  C.  $  336(  e).  In 
 implementing  these  provisions,  the  Commission  has  determined  that  DTV  broadcasters  must  pay 
 fees  representing  5%  of  gross  revenues  received  from  ancillary  or  supplementary  uses  of  the 
 DTV  spectrum  for  which  broadcasters  receive  compensation  other  than  advertising  revenues 
 used  to  support  broadcasting.  Report  and  Order  in  MM  Docket  No.  97-  247,  FCC  98-  303 
 (1998).  Because  broadcasters  offering  ancillary  and  supplementary  services  will  be  obliged  to 
 make  these  fee  payments  equivalent  to  the  cost  of  acquiring  a  license  to  provide  such  service  at 
 auction,  broadcasters  should  not  be  subject  to  public  interest  obligations  more  burdensome  than 
 other  licensees  providing  comparable  services  who  may  have  received  their  licenses  by 
 auction.  45 

 44  Thus,  DTV  licensees  who  choose  to  datacast  should  not  be  required  to  transmit  information  on 
 behalf  of  schools,  libraries  or  other  community  or  public  safety  institutions  unless  similar 
 obligations  are  imposed  on  nonbroadcasters  who  offer  comparable  datacasting  services. 

 45  Consider,  for  example,  auction  winners  for  licenses  in  the  700  MHz  bands,  who  may  use  the 
 spectrum  to  provide  a  variety  of  wireless  services,  including  high  speed  Internet  access.  To 
 qualify  for  a  renewal  expectancy,  these  licensees  need  only  demonstrate  that  they  have  provided 
 substantial  service  during  the  previous  license  term  and  have  substantially  complied  with 

 22 
31
 Beyond  the  statutory  requirements  discussed  above,  regulatory  parity  between  DTV 
 broadcasters  providing  ancillary  and  supplementary  services  and  other  licensees  providing 
 similar  services  is  also  sound  policy.  The  Commission  has  previously  recognized  that  permitting 
 broadcasters  to  develop  additional  revenue  streams  from  innovative  digital  services  would  help 
 support  free  over-  the-  air  broadcast  programming.  See  Fifrh  Report  and  Order,  12  FCC  Red  at 
 12820-  21.  The  imposition  of  unequal  public  interest  obligations  on  broadcasters  ancillary  and 
 supplementary  services  will  discourage  broadcasters  from  offering  such  services  in  competition 
 with  licensees  not  subject  to  such  burdens.  Requiring  undue  public  interest  duties  -  in  addition 
 to  the  fees  already  imposed  -  will  discourage  the  emergence  of  innovative  ancillary  and 
 supplementary  services  that  could  help  broadcast  television  to  remain  a  strong  presence  in  the 
 increasingly  competitive  video  programming  market.  Failure  to  insure  regulatory  parity  will 
 thus  ultimately  undermine  the  overarching  goal  of  the  Commissions  digital  television 
 proceeding  -  to  promote  the  success  of  a  free,  local  television  service  using  digital  technology. 
 Id.  at  12820. 
 D.  The  Existing  Disclosure  Obligations  of  Broadcasters  Are  in  No  Way  Inadequate. 
 The  Commissions  rules  currently  require  commercial  television  broadcasters  to  include 
 in  their  local  public  inspection  files,  inter  alia,  citizens  agreements;  records  concerning 
 broadcasts  by  political  candidates;  annual  EEO  public  file  reports;  letters  and  e-  mails  from  the 
 public;  quarterly  issues/  programming  lists;  any  material  relating  to  a  Commission  investigation 
 or  complaint;  records  concerning  childrens  programming  commercial  limits  and  childrens 
 television  programming  reports;  and  applications  filed  with  the  Commission  and  statements 

 Commission  rules,  policies  and  the  Communications  Act  of  1934.  See  47  C.  F.  R.  5  27.14  and 
 First  Report  and  Order  in  WT  Docket  No.  99-  168,  FCC  00-  5  at    68  (rel.  Jan.  7,  2000). 

 23 
 .  .-.-  .  .-.._-  -..  .--.  .  ll 
32
 regarding  petitions  to  deny  filed  against  those  applications.  These  rules  are  intended  to  facilitate 
 citizen  monitoring  of  station  operations  and  to  foster  community  involvement  with  local  stations. 
 The  Notice  (at  11  15-  16)  sought  comment  on  suggestions  for  requiring  additional  disclosures  in 
 stations  public  files  (such  as  more  detailed  information  about  a  variety  of  types  of  programming 
 and  activities)  and  for  requiring  broadcasters  to  ascertain  community  needs  by  certain  specified 
 means. 
 As  an  initial  matter,  we  see  no  logical  connection  between  any  proposed  increases  in 
 broadcasters  disclosure  obligations  and  their  transmission  of  a  digital,  rather  than  an  analog, 
 signal.  The  transition  from  analog  to  digital  technology  bears  no  relation  to  the  type  of 
 information  that  broadcasters  should  be  required  to  disclose  or  maintain  in  their  public  files. 
 In  addition,  the  Notice  cited  no  evidence  tending  to  show  that  the  existing  disclosure 
 obligations  of  television  broadcasters  are  in  any  way  inadequate  or  ineffective.  Indeed,  less  than 
 two  years  ago  the  Commission  conducted  a  rulemaking  to,  inter  alia,  clarify  and  update  its  rules 
 pertaining  to  the  required  contents  of  broadcasters  public  files.  46  The  Commission  in  that 
 proceeding  offered  no  suggestion  that  its  current  rules  required  the  disclosure  of  an  inadequate 
 amount  of  information  or  that  different  substantive  disclosure  requirements  would  be  preferable. 
 NAB  accordingly  sees  no  basis  in  this  proceeding  for  proposals  to  increase  the  public  disclosure 
 obligations  applicable  to  television  broadcasters,  regardless  of  whether  they  transmit  a  digital  or 
 analog  signal.  With  regard  to  the  specific  suggestion  (see  Notice  at  1  16)  that  the  public  file 
 contain  information  on  what  programming  has  closed  captioning  and  video  description,  NAB 

 46  The  Commission  amended  its  rules  to  remove  out-  of-  date  references  and  to  clarify  its 
 requirements,  including  with  regard  to  the  retention  periods  for  materials  in  the  public  file.  The 
 Commission  in  fact  shortened  the  retention  periods  for  certain  materials,  including  FCC 
 applications.  See  Report  and  Order  in  MM  Docket  No.  97-  138,  13  FCC  Red  15691  (1998) 

 24 
33
 reminds  the  Commission  that  it  previously  rejected  requests  to  adopt  recordkeeping  or  reporting 
 requirements  with  respect  to  closed  captioning.  47  The  Notice  presented  no  basis  for  altering  this 
 determination. 
 NAB  also  notes  the  striking  similarity  between  certain  proposals  in  the  Notice  and 
 policies  that  the  Commission  has  previously  rejected.  In  1984,  the  Commission  eliminated  its 
 formal  ascertainment  requirements  for  commercial  television  stations.  48  These  ascertainment 
 rules  had  set  forth  specific  standards  for  broadcasters  on  consulting  with  community  leaders, 
 identifying  and  responding  to  community  needs  through  programming,  and  maintaining  records 
 on  their  ascertainment  procedures.  The  proposal  in  this  proceeding  for  broadcasters  to  ascertain 
 community  needs,  by  reaching  out  to  citizens  and  local  leaders  via  the  postal  service,  e-  mail  and 
 broadcast  announcements  (see  Notice  at    15),  should  not  be  considered  for  the  same  reasons  that 
 the  Commission  previously  eliminated  its  ascertainment  rules. 
 In  its  1984  order,  the  Commission  eliminated  formal  ascertainment  procedures  for 
 commercial  television  broadcasters  because  it  had  no  evidence  that  these  procedures  actually 
 ensured  that  licensees  discovered  the  needs  of  their  communities  and  responded  to  these  needs  in 
 their  programming  choices.  Ascertainment  and  Program  Guidelines  Order,  98  FCC  2d  at  1098. 
 The  Commission  also  found  that  market  forces  provide[  d]  adequate  incentives  for  licensees  to 

 (  Public  File  R&  O),  recon.  granted  in  part,  Memorandum  Opinion  and  Order,  FCC  99-  l  18  (1999). 
 47  See  Order  on  Reconsideration  in  MM  Docket  No.  95-  176,  13  FCC  Red  19973  at  q[  118  (1998)  (with  regard  to  its  captioning  requirements,  the  Commission  declined  to  adopt  recordkeeping  or 
 reporting  requirements  as  they  would  impose  unnecessary  administrative  burdens  on  video 
 programming  distributors  and  the  Commission). 

 48  See  Report  and  Order  in  MM  Docket  No.  83-  670,98  FCC  2d  1076  (1984),  recon.  denied,  104  FCC  2d  358  (1986),  revd  in  part,  ACT  v.  FCC,  821  F.  2d  741  (D.  C.  Cir.  1987)  (  Ascertainment 

 and  Program  Guidelines  Ordef). 

 25 
34
 remain  familiar  with  their  communities,  and  that  future  market  forces,  resulting  from  increased 
 competition,  will  continue  to  require  licensees  to  be  aware  of  the  needs  of  their  communities. 
 Id.  at  1099.  Thus,  the  Commission  concluded  that  the  benefits  of  the  ascertainment 
 requirements  did  not  justify  the  costs  of  this  procedure.  Id.  at  1100. 
 All  the  reasons  cited  by  the  Commission  for  eliminating  its  ascertainment  requirements 
 for  television  broadcasters  in  1984  still  apply  today.  Given  the  ever-  increasing  competitiveness 
 of  the  video  marketplace,  [  clommercial  necessity  dictates  that  the  broadcaster  must  remain 
 aware  of  the  issues  of  the  community  or  run  the  risk  of  losing  its  audience.  Id.  at  1098-  99. 
 Because  it  is  in  the  economic  best  interest  of  the  licensee  to  stay  informed  about  the  needs  and 
 interests  of  its  community,  id.  at  110  I,  formal  ascertainment  requirements  are  unnecessary  and, 
 in  view  of  the  burdens  they  impose  on  broadcasters,  inappropriate.  49  Moreover,  given  the  lack  of 
 evidence  presented  in  this  proceeding  (and  in  past  proceedings  pertaining  to  ascertainment)  that 
 formal  and  documented  ascertainment  procedures  actually  result  in  broadcast  programming  more 
 responsive  to  community  needs,  the  consideration  of  a  new  ascertainment  rule  for  DTV 
 broadcasters  would  be  wholly  unjustified.  50 
 The  Notice  (at    17)  also  inquired  about  the  posting  of  public  files  on  the  Internet  and  on 
 the  general  use  of  the  Internet  to  improve  the  responsiveness  of  broadcasters  to  the  needs  of  the 
 public.  With  regard  to  the  Commissions  request  for  comment  on  whether  broadcasters  should 
 be  required  to  make  their  public  files  available  on  the  Internet,  NAB  reminds  the  Commission 

 4g  Even  without  any  ascertainment  requirement  mandating  that  broadcasters  consult  with  local 
 leaders,  more  than  75%  of  broadcast  stations  say  that  they  do  consult  with  local  community 
 leaders  in  deciding  which  issues  and  causes  to  address.  Fully  85%  of  stations  say  they  involve 
 local  businesses  in  their  community  service  campaigns.  See  NAB  Report  at  3,8. 

 26 
35
 that  it  quite  recently  addressed  this  issue.  In  its  1998  proceeding  concerning  the  public  file  rules, 
 the  Commission  determined  to  give  stations  the  voluntary  option  of  maintaining  all  or  part  of 
 their  public  inspection  files  in  a  computer  database  rather  than  in  paper  files.  The  Commission 
 also  encouraged,  but  did  not  require,  stations  that  elected  this  option  to  post  their  electronic 
 public  files  on  any  World  Wide  Web  sites  they  maintained.  See  Public  File  R&  O,  13  FCC  Red 
 15691  at    53.  NAB  agrees  with  this  determination,  and  sees  no  reason  for  the  Commission  to 
 alter  this  recent  decision.  Obviously,  the  mere  fact  that  a  broadcaster  is,  or  may  soon  be, 
 transmitting  a  digital,  rather  than  analog,  signal  is  no  sound  basis  for  forcing  a  broadcaster  to 
 make  all  public  files  available  on  the  Internet. 
 Moreover,  the  burdens  associated  with  converting  a  stations  public  file  from  paper  into 
 an  electronic  format,  and  then  posting  these  electronic  files  on  a  Web  site,  could  be  considerable 
 and  would  not  be  justified  by  correspondingly  substantial  benefits.  A  stations  public  file  can 
 easily  fill  a  file  cabinet  (not  just  a  single  file  folder).  Converting  such  substantial  amounts  of 
 paper  into  an  electronic  format  for  posting  on  the  Web,  as  well  as  creating,  updating  and 
 otherwise  maintaining  the  Web  site,  will  constitute  a  not  insubstantial  burden,  especially  for 
 small  broadcasters  with  limited  personnel  resources.  These  costs  and  burdens  are  clearly  not 
 outweighed  by  the  limited  benefits  of  requiring  an  electronic  public  file  to  be  posted  on  the  Web. 
 The  most  outstanding  characteristic  of  the  World  Wide  Web  is  indeed  its  worldwide  reach. 
 However,  the  Commission  has  expressly  recognized  that  a  stations  local  public  inspection  file  is 
 intended  to  serve  the  local  viewers  and  listeners  of  each  station,  and  that  persons  outside  a 
 stations  geographic  service  area  have  a  less  compelling  interest  in  access  to  that  stations  public 

 O  See  Bechtel  v.  FCC,  10  F.  3d  875,  880  (D.  C.  Cir.  1993)  (court  found  broadcast  integration  policy  to  be  arbitrary  and  capricious,  because  Commission  had  no  evidence  to  indicate  that  the 
 policy  achieved  even  one  of  the  benefits  that  the  Commission  attribute[  d]  to  it). 

 27 

 _-._  _._,  -.  _  ..--.---  -I 
36
 file.  Thus,  posting  stations  public  files  on  the  Internet  offers  little  additional  public  benefits, 
 because  persons  outside  a  stations  service  area  have  limited  interest  in  that  stations 
 performance  and  persons  inside  a  stations  service  area  already  have  reasonable  access  to  the 
 local  public  file. 
 For  similar  reasons,  broadcasters  should  not  be  required  to  create  new,  or  maintain 
 existing,  Web  sites  for  the  express  purpose  of  interacting  directly  with  the  public,  perhaps  by 
 establishing  forums  in  which  the  public  could  post  comments  and  engage  in  an  ongoing  dialogue 
 about  the  broadcasters  programming.  Notice  at    17.  As  described  above,  the  market  provides 
 incentives  for  broadcast  licensees  to  stay  informed  about  the  needs  and  interests  of  their 
 communities.  If  broadcasters  find  that  maintaining  Web  sites  for  the  purpose  of  communicating 
 with  viewers  help  them  become  better  informed  about  their  communities,  then  broadcasters  will 
 have  the  incentive  to  voluntarily  create  Web  sites  and  use  them  for  that  purpose.  Broadcasters 
 certainly  need  not  establish  formal  forums  in  order  to  enable  the  public  to  send  comments  and 
 suggestions  to  stations  via  e-  mai1.52  NAB  fails  to  see  why  broadcasters,  as  a  matter  of  federal 

   See  Memorandum  Opinion  and  Order  in  MM  Docket  No.  97-  138,  FCC  99-  l  18  at    jl  12-  15  (1999)  (although  stations  with  main  studios  located  outside  their  communities  of  license  must 
 generally  honor  any  requests  for  public  file  documents  made  by  telephone,  the  Commission 
 expressly  limited  this  telephone  request  rule  to  require  the  mailing  of  documents  only  to 
 individuals  within  the  geographic  service  area  of  the  station;  this  limitation  was  consistent  with 
 ensuring  the  continued  access  of  ZocaE  viewers  and  listeners  of  each  station)  (emphasis  added). 
 See  also  NAB,  Petition  for  Partial  Reconsideration  and  Clarification  in  MM  Docket  No.  98-  204 
 (filed  March  162000)  (noting  Commissions  position  that  the  public  file  is  intended  to  be 
 available  for  the  public  that  the  station  serves). 

 52  In  fact,  Commission  rules  currently  require  e-  mails  from  the  public  concerning  station 
 operations  be  retained  in  stations  public  files  for  three  years.  See  47  C.  F.  R.  3  73.3526(  e)(  9). 

 28 
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37
 government  policy,  should  be  required  to  set  up  and  maintain  Internet  chat  rooms.  And  in  any 
 event,  this  proposal  raises  a  number  of  practical  and  legal  issues.  53 
 NAB  also  opposes  the  suggestion  that  broadcasters  should  be  required  to  disclose 
 information  (on  a  Web  site  or  by  other  means),  such  as  the  identity  of  the  individual  ultimately 
 responsible  for  a  programs  airing  or  content.  Notice  at  q[  17.  Of  course  stations  may  disclose 
 such  specific  personnel  information  if  they  wish,  but  NAB  believes  this  proposal  raises  potential 
 privacy  and  security  concerns,  given  the  number  of  incidents  in  which  broadcast  station 
 employees  have  been  subject  to  threats  or  even  violence.  54  And  since  the  licensee  is  responsible 
 for  all  programming,  this  proposal  would  appear  to  serve  little  purpose. 
 Finally,  NAB  finds  all  the  suggestions  in  the  Notice  as  to  broadcasters  posting 
 information  and  interacting  with  the  public  via  Web  sites  to  be  somewhat  puzzling,  given  the 
 Commissions  apparent  belief  about  the  inaccessibility  of  the  Internet  to  certain  communities.  In 
 its  very  recent  order  setting  forth  new  Equal  Employment  Opportunity  requirements,  the 
 Commission  rejected  a  proposal  to  allow  broadcasters  to  satisfy  their  employment  outreach 
 obligations  by  posting  job  vacancies  on  centralized  Web  sites.  In  rejecting  this  Internet  job  bank 
 proposal,  the  Commission  concluded  that  Web  posting  was  not  sufficient  to  ensure  wide 
 dissemination  to  all  segments  of  the  community.  Report  and  Order  in  MM  Docket  Nos.  98-  204 
 and  96-  10,  FCC  00-  20  at  186  (rel.  Feb.  2,  2000).  The  Commission  additionally  emphasized  that 

 53  For  example,  would  stations  be  required  to  respond  to  the  e-  mail  messages  through  these 
 forums?  And  would  licensees  be  expected  to  alter  their  programming  in  response  to  any 
 messages  objecting  to  certain  programs  ?  If  so,  how  would  a  broadcaster  be  expected  to  weigh 
 these  concerns,  and  how  would  its  compliance  with  such  requirements  be  measured? 

 54  For  example,  late  last  year,  the  group  Public  Citizen  issued  a  report  documenting  cases  in 
 which  mentally  ill  people  threatened  teIevision  and  radio  station  employees.  In  a  few  of  those 
 cases,  station  employees  were  killed.  Early  this  year,  police  in  Spartansburg,  South  Carolina 
 charged  a  man  with  stalking  a  television  journalist  and  sending  obscene  messages  to  several 
 anchors  at  area  television  stations.  See  Broadcasting  and  Cable  at  40  (Jan.  10,  2000). 

 29 
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 access  to  computers  is  not  universal  and  this  digital  divide  affects  minorities  and  those  living  in 
 rural  areas  to  a  greater  extent  than  other  segments  of  the  population.  Id.  If  the  Commission 
 believes  that  the  digital  divide  is  such  a  serious  problem,  then  it  should  not  consider 
 requirements  forcing  broadcasters  to  post  their  public  files  on  Web  sites  or  to  otherwise  utilize 
 the  Internet  in  communicating  with  the  public.  After  all,  the  purpose  of  the  public  inspection  file 
 is  to  facilitate  citizen  monitoring  of  station  operations  and  performance,  foster  community 
 involvement  with  local  stations,  and  ensure  that  stations  are  responsive  to  the  needs  and  interests 
 of  their  communities.  If  certain  segments  of  the  community,  such  as  minority  groups,  lack 
 reasonable  access  to  computers  and  the  Internet,  then  the  Commission  should  refrain  from 
 requiring  stations  to  utilize  the  Internet  to  interact  with  the  public,  as  such  requirements  would 
 disadvantage  the  very  groups  that  the  Commission  wants  broadcasters  to  serve  more  effectively. 
 In  sum,  therefore,  NAB  sees  no  basis  for  altering  the  existing  public  disclosure 
 obligations  of  television  broadcasters,  merely  because  of  the  transition  to  digital  technology. 
 NAB  supports  voluntary  use  of  the  Internet  by  broadcasters  to  improve  communications  with  the 
 communities  they  serve,  but  believes  that  mandatory  requirements  regarding  information  to  be 
 placed  on  Web  sites  are  inappropriate.  As  the  Internet  continues  to  develop  and  access  to  the 
 Internet  becomes  even  more  widespread,  market  forces  will  no  doubt  provide  increased 
 incentives  for  broadcasters  to  incorporate  the  Internet  in  many  of  their  basic  broadcast  and 
 business  activities,  including  community  outreach.  55 
 E.  Nothing  Inherent  in  Digital  Technology  Necessitates  Changes  to  the  Current 
 Emergency  Alert  System. 

   One  study  estimates  that  U.  S.  households  with  Internet  access  will  nearly  double  to  90  million 
 by  the  end  of  2004,  from  46.5  million  today.  See  Communications  Daily  at  10  (Feb.  9,200O) 
 (citing  prediction  from  Strategis  Group). 

 30 
 __  _...,_.  I  -._  -_  I_____-.  _- 
39
 The  Notice  (at  I  18-  19)  sought  comment  on  the  unique  capabilities  of  digital 
 technology  for  the  delivery  of  disaster-  related  information,  and  how  broadcasters  could  be 
 encouraged  to  deploy  such  technology  to  deliver  enhanced  disaster  information  (such  as 
 pinpointing  specific  neighborhoods  at  risk).  The  Notice  also  referred  to  the  recently  adopted 
 Emergency  Alert  System  (  EAS)  requirements,  and  asked  whether  the  Commission  should 
 adopt  any  different  EAS  requirements  for  DTV  broadcasters.  Overall,  NAB  questions  whether 
 the  current  transition  to  digital  broadcasting  necessitates  changes  to  the  recently  adopted  EAS 
 requirements,  and  whether  these  disaster  warning  issues  are  best  considered  in  this  general  public 
 interest  proceeding. 
 In  response  to  the  Notices  reference  to  disaster  warnings  that  identify  specific 
 neighborhoods  at  risk,  NAB  points  out  that  the  EAS,  in  its  current  form,  does  have  the  ability  to 
 provide  Specific  Area  Messaging.  That  is,  under  the  current  system,  EAS  messages  can  be 
 targeted,  if  not  to  specific  neighborhoods,  at  least  to  specific  geographical  areas  (  EAS 
 locations),  which  are  defined  by  the  National  Weather  Service  (  NW,).  If  the  Commission 
 wishes  to  change  or  enhance  this  particular  feature  of  the  EAS,  it  should  do  so  in  cooperation 
 with  the  NWS,  as  well  as  the  federal,  state  and  local  emergency  management  officials  that 
 participated  in  the  current  systems  creation. 
 Moreover,  while  it  is  true  that  DTV  signals  can  carry  considerably  more  information  than 
 NTSC  (analog)  television  signals,  there  are  no  unique  capabilities  in  the  ATSC  DTV  system 
 that  can  specifically  be  used  to  enhance  the  delivery  of  disaster-  related  information.  The 
 Commission  should  therefore  commence  a  rulemaking  proceeding  to  explore  improvements  to 

 the  EAS  only  if  there  are  improvements  that  need  to  be  made,  and  not  simply  because  DTV  (like 
 the  proverbial  mountain)  is  there.  In  considering  any  such  proceeding,  the  Commission  should 

 31 
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40
 work  with  its  EAS  National  Advisory  Committee,  the  Federal  Emergency  Management 
 Administration,  NWS,  and  state  and  local  emergency  management  agencies  to  obtain 
 recommendations  for  improvements  to  the  EAS.  This  general  inquiry  into  the  public  interest 
 obligations  of  DTV  broadcasters  would  not  appear  to  be  the  appropriate  forum  for  consideration 
 of  changes  to  the  EAS.  56 
 Finally,  NAB  points  out  that,  regardless  of  whatever  disaster-  related  information  might 
 ultimately  be  thought  desirable  for  DTV  broadcasters  to  provide,  DTV  receivers  must  be  capable 
 of  receiving  and  supporting  this  additional  information.  As  the  Advisory  Committee  recognized, 
 the  appropriate  regulatory  authorities  [must]  work  with  manufacturers  of  digital  television  sets 
 to  make  sure  that  they  are  modified  appropriately  to  handle  these  kinds  of  [emergency] 
 transmissions.  Advisory  Committee  Report  at  61.  It  would  not  serve  the  public  interest  for  the 
 Commission  to  require  broadcasters  to  send  enhanced  disaster-  related  information  in  their  DTV 
 signals,  if  the  DTV  receivers  available  on  the  market  do  not  enable  consumers  to  receive  and 
 access  this  enhanced  information. 
 F.  Mandatory  Minimum  Public  Interest  Obligations  Are  Unnecessary  and  Would 
 Improperly  Infringe  on  Broadcasters  Editorial  Discretion. 

 The  Advisory  Committee  Report  (at  47-  48)  recommended  that  the  Commission  adopt  a 
 set  of  mandatory  minimum  public  interest  requirements  for  digital  broadcasters.  These 

 56  NAB  also  questions  the  evidentiary  basis  for  the  Notices  queries  about  the  provision  of 
 enhanced  disaster  warnings  by  DTV  broadcasters.  The  sole  testimony  relating  to  disaster 
 information  before  the  Advisory  Committee  was  by  Dr.  Peter  Ward,  of  the  U.  S.  Geological 
 Survey,  Dr.  Ward  urged  the  Advisory  Committee  to  recommend  reserving  a  very  small  amount 
 of  bandwidth  for  a  stream  of  official  information  about  natural  disasters.  Interestingly,  his 
 testimony  did  not  focus  solely  on  television  broadcasters,  but  rather  emphasized  that  this 
 emergency  information  could  be  made  available  through  any  variety  of  receivers  and 
 technologies,  including,  for  example,  cellular  phone  technology.  See  Testimony  of  Dr.  Peter 
 Ward  to  Advisory  Committee  (Jan.  16,  1998). 

 32 
 _  .._  -.  ___.-.-^-.-~---- 
41
 minimum  standards  should  apply  to  areas  generally  accepted  as  important  universal 
 responsibilities  for  broadcasters,  but  the  Advisory  Committee  could  not  agree  about  what  those 
 standards  should  be,  or  what  form  they  should  take.  In  particular,  members  of  the  Advisory 
 Committee  had  sharply  different  views  about  the  specificity  of  minimum  standards,  with  some 
 members  endorsing  detailed  standards  with  defined  numerical  guidelines,  while  others  (even 
 those  who  endorsed  the  concept  of  minimum  standards)  objected  strongly  to  the  idea  of  detailed 
 standards  with  numerical  quotas.  The  Advisory  Committee  ultimately  recommended  several 
 categories  for  establishing  minimum  standards  for  digital  broadcasters.  57  The  Notice  (at  q[  20- 
 22)  sought  comment  on  the  Advisory  Committee  Reports  recommendations,  and  asked  whether 
 the  Commission  should  establish  specific  minimum  requirements  regarding  television 
 broadcasters  public  interest  obligations. 
 Overall,  NAB  believes  that  detailed  public  interest  standards  with  numerical  quotas 
 reflect  an  outdated  mode1  of  regulation  that  is  particularly  inappropriate  for  the  digital  era.  One 
 size  fits  all  numerical  quotas  will  simply  not  fit  the  diverse  character  of  DTV  stations,  which 
 will  likely  vary  widely  in  the  types  of  services  they  will  ultimately  offer.  NAB  also  believes  that 
 the  Commission  has  no  basis  upon  which  to  consider  the  adoption  of  inflexible,  numerical 
 requirements  which,  given  the  competitive  nature  of  the  video  programming  marketplace,  are 
 unnecessary  and  improperly  infringe  on  the  editorial  discretion  of  broadcast  licensees. 
 As  an  initial  matter,  NAB  notes  that  the  proposal  to  consider  specific,  numerical  public 
 interest  requirements  resembles  policies  that  the  Commission  has  either  (1)  previously  declined 
 to  adopt,  or  (2)  previously  eliminated.  For  example,  the  Commission  previously  declined  to 

   These  categories  include:  (i)  community  outreach;  (ii)  accountability;  (iii)  public  service 
 announcements;  (iv)  public  affairs  programming;  and  (v)  closed  captioning.  See  Advisory 
 Committee  Report  at  48. 

 33 
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 adopt  quantitative  program  standards  for  television  broadcasters  involved  in  comparative 
 renewal  proceedings.  See  Report  and  Order  in  Docket  No.  19154,66  FCC  2d  419  (1977) 
 (  Comparative  Renewal  R&  O).  The  Commission  in  that  proceeding  concluded  that  quantitative 
 programming  standards  were  a  simplistic,  superficial  approach  to  a  complex  problem,  and  that 
 adoption  of  such  standards  would  not  improve  the  quality  or  efficiency  of  the  comparative 
 renewal  process.  Id.  at  429.58  In  addition,  the  Commission  in  1984  eliminated  its  non- 
 entertainment  programming  guidelines  for  commercial  television  stations.  See  Ascertainment 
 and  Program  Guidelines  Order,  98  FCC  2d  1076.59  The  Commission  concluded  that  these 
 guidelines  imposed  burdensome  compliance  costs,  infringed  on  the  editorial  discretion  of 
 broadcasters,  and  were  unnecessary,  given  marketplace  incentives  for  licensees  to  offer  non- 
 entertainment  programming.  Id.  at  1080-  90.  For  similar  reasons,  the  Commission  had  earlier 
 eliminated  the  non-  entertainment  programming  guidelines  for  AM  and  FM  stations.  60 

 58  The  Commissions  decision  in  1977  that  quantitative  programming  standards  were  inherently 
 deficient  and  would  not  improve  the  comparative  renewal  process  (66  FCC  2d  at  428)  should  be 
 relevant  in  considering  the  question  raised  in  the  Notice  (at  1[  22)  as  to  whether  specific  minimum 
 public  interest  requirements  would  improve  the  license  renewal  process.  See  also  Report  and 
 Order  in  Docket  No.  80-  253,49  RR  2d  740  (1981)  (Commission  decided  that  requiring  radio  and  television  renewal  applicants  to  submit  extensive  programming  information  was  unnecessary 

 and  unduly  burdensome). 
 59  These  programming  guidelines  were  limited  in  scope.  Essentially,  they  provided  that  the  full 
 Commission  would  have  to  act  on  any  commercial  television  station  renewal  application 
 reflecting  less  than  5%  local  programming,  5%  informational  programming  (news  and  public 
 affairs),  or  10%  total  non-  entertainment  programming.  Renewal  applicants  satisfying  these 

 guidelines  could  have  their  renewal  applications  routinely  acted  upon  by  staff.  These  guidelines 
 did  not  mean  that  a  station  offering  less  non-  entertainment  programming  would  be  barred  from 
 renewal  of  its  license. 

 60  See  Report  and  Order  in  BC  Docket  No.  79-  219,  84  FCC  2d  968  (1981).  Those  guidelines  had  called  for  AM  stations  to  offer  8%  non-  entertainment  programming  and  for  FM  stations  to  offer 

 6%  non-  entertainment  programming. 

 34 
43
 NAB  believes  that  the  Commission  would  have  no  basis  in  this  proceeding  to  reverse 
 these  long-  standing  decisions  disfavoring  numerical  public  interest  standards.  The  evidence  does 
 not  suggest  that  formal  numerical  quotas  are  needed  because  broadcasters  are  failing  to  provide 
 non-  entertainment  programming  that  serves  the  public  interest.  Indeed,  the  available  evidence  is 
 clearly  to  the  contrary.  For  example,  a  study  submitted  to  the  Advisory  Committee  of  the  non- 
 entertainment  programming  by  stations  affiliated  with  the  four  major  networks  in  17  markets 
 across  the  country  showed  that  the  average  amount  of  non-  entertainment  programming  offered 
 by  these  stations  in  each  of  those  markets  was  more  than  double  the  10%  benchmark  that  the 
 Commission  had  previously  specified.  This  recent  study  is  entirely  consistent  with  the  studies 
 relied  upon  by  the  Commission  in  eliminating  the  non-  entertainment  programming  guidelines  for 
 television  stations  in  1984.6  Furthermore,  with  regard  to  public  service  announcements 
 (  PSAs),  which  were  of  particular  concern  to  the  Advisory  Committee,  broadcasters  donated 
 $4.6  billion  in  air  time  for  PSAs  in  1996,  and  approximately  60%  of  those  PSAs  were  either 
 locally  produced  or  dealt  with  local  issues.  See  NAB  Report  at  2,  7.62 
 As  the  available  evidence  indicates,  marketplace  incentives  are  clearly  sufficient  to  insure 
 the  provision  of  very  substantial  amounts  of  both  non-  entertainment  programming  and  PSAs. 
 Numerical  program  quotas  are  accordingly  unnecessary  and  reflect  an  outmoded  regulatory 

 6*  In  reviewing  those  studies,  the  Commission  concluded  that  existing  marketplace  forces,  rather 
 than  its  guidelines,  were  the  primary  determinants  of  the  levels  of  non-  entertainment 
 programming  provided  on  commercial  television.  Moreover,  the  Commission  found  that  these 
 forces  had  consistently  elicited  a  level  of  such  programming  well  above  the  amounts  arbitrarily 
 set  by  our  processing  criteria.  Ascertainment  and  Program  Guidelines  Order,  98  FCC  2d  at 
 1085. 

 62  Paxson  Communications  announced  this  month  a  donation  of  one  million  dollars  in  air  time  on 
 its  television  stations  for  PSAs  concerning  Parkinsons  disease. 

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 mentality.  Given  the  85%  increase  in  the  number  of  broadcast  stations  since  197063  and  the 
 recent  explosion  of  non-  broadcast  media  including  cable,  Direct  Broadcast  Satellite  and  the 
 Internet,  there  is  no  need  for  each  broadcast  outlet  to  be  all  things  to  all  people.  Thus,  even 
 assuming  that  there  may  be  individual  stations  that  do  not  offer  certain  types  of  non- 
 entertainment  programming,  the  Commission  has  recognized  that  such  an  occurrence  is  not 
 inconsistent  with  the  public  interest,  since  the  evidence  demonstrates  that  on  average,  stations 
 are  performing  well  above  any  expected  minimum  and  that  the  overall  market  performance 
 will  insure  the  availability  of  all  types  of  programming  on  a  market  basis.  Ascertainment  and 
 Program  Guidelines  Order,  98  FCC  2d  at  1087-  88.  Since  the  Commission  felt  comfortable  in 
 eliminating  non-  entertainment  programming  guidelines  given  the  marketplace  conditions  in 
 1984,  NAB  believes  there  is  no  reason  to  adopt  any  similar  programming  quotas  today. 
 Particularly  in  light  of  the  digital  transition,  which  promises  an  increase  in  the  number  of 
 programming  and  other  service  options  through  multicasting  and/  or  the  development  of 
 innovative  ancillary  and  supplementary  services,  a  return  to  the  regulatory  policies  of  two 
 decades  ago  appears  wholly  unjustified. 
 Finally,  NAB  opposes  detailed  public  interest  standards  with  defined  numerical  quotas  as 
 improperly  infringing  on  the  editorial  discretion  of  licensees  and  implicating  First  Amendment 
 concerns.  As  the  Commission  has  previously  recognized,  the  government  should  not  impose  on 
 broadcasters  a  national  standard  of  performance  in  place  of  independent  programming  decisions 
 attuned  to  the  particular  needs  of  the  communities  served.  Comparative  Renewal  R&  O,  66  FCC 
 2d  at  428-  29.  Specific  quantitative  standards  cannot  be  regarded  as  other  than  an  encroachment 
 on  the  broad  discretion  of  licensees  to  broadcast  the  programs  they  believe  best  serve  their 

 63  See  Report  and  Order  in  MM  Docket  Nos.  91-  221  and  87-  8,  FCC  99-  209  at    29  (1999). 
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 audiences.  Id.  at  427.  This  encroachment  is  clearly  unjustified  for  DTV  broadcasters,  given 
 that  programming  quotas  are  not  needed  to  insure  the  provision  of  substantial  amounts  of  non- 
 entertainment  programming  and  PSAs  to  viewers.  64 
 The  adoption  of  detailed  programming  quotas  would  also  raise  First  Amendment 
 concerns,  particularly  if  the  Commission  were  to  require  licensees  to  provide  set  amounts  of  very 
 specific  categories  of  programming.  65  Requiring  broadcasters  to  provide  specific  categories  of 
 programming  would  not  only  interfere  with  the  editorial  independence  of  broadcasters,  but 
 would  also  effectively  reduce  or  eliminate  broadcast  time  for  other,  less  favored  program 
 categories.  Religious  broadcasters,  for  example,  have  opposed  on  First  Amendment  grounds 
 previous  proposals  to  adopt  quantitative  programming  quotas  because  they  would  disfavor  the 
 types  of  programs  (such  as  religious)  for  which  quotas  were  not  set.  66  These  First  Amendment 
 concerns,  as  the  Commission  previously  recognized,  are  only  exacerbated  by  the  lack  of  a  direct 
 nexus  between  a  quantitative  approach  and  licensee  performance.  Ascertainment  and  Program 
 Guidelines  Order,  98  FCC  2d  at  1089  (citing  cases  noting  that  an  increased  quantity  of 
 programming  does  not  guarantee  improved  or  more  responsive  service).  Because  establishing 
 numerical  guidelines  requiring  the  provision  of  defined  amounts  of  non-  entertainment 

 62  See,  e.  g.,  Columbia  Broadcasting  System,  412  U.  S.  at  110  (  Congress  intended  to  permit  private  broadcasting  to  develop  with  the  widest  journalistic  freedom  consistent  with  its  public 
 obligations). 
 65  See  Turner  Broadcasting  System,  Inc.  v.  FCC,  512  U.  S.  622,650  (1994)  (  FCCs  oversight  responsibilities  do  not  grant  it  the  power  to  ordain  any  particular  type  of  programming  that  must 

 be  offered  by  broadcast  stations). 
 66  See  Comparative  Renewal  R&  O,  66  FCC  2d  at  426.  Requiring  programming  in  a  variety  of  defined  categories  could  also  cause  difficulties  with  determining  whether  particular  programs 
 broadcast  by  licensees  fit  into  these  categories  and  therefore  satisfied  the  requirements.  NAB 
 doubts  whether  the  Commission  should  be  involved  in  making  such  judgments  about  the 
 programming  presented  by  broadcasters. 

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 programming  is  unnecessary  in  light  of  current  competitive  market  conditions,  is  unjustified  by 
 the  available  evidence  regarding  broadcaster  performance,  and  improperly  encroaches  on  the 
 editorial  discretion  of  licensees,  the  Commission  should  not  consider  further  the  adoption  of 
 minimum  public  interest  programming  requirements.  7 
 G.  The  Use  of  Digital  Technology  to  Enhance  the  Access  to  Broadcast 
 Programming  for  Persons  with  Disabilities  Has  Been  Specifically  Addressed  in 
 Other  Commission  Proceedings. 

 As  discussed  in  the  Notice  (at  q[  24-  28),  digital  technology  promises  to  make  video 
 programming  more  accessible  to  persons  with  disabilities.  In  particular,  digital  technology  may 
 offer  viewers  more  options  with  regard  to  changing  various  features  of  closed  captions  (such  as 
 font,  color  and  screen  position),  and  may  make  the  provision  of  video  description  easier  and  less 
 costly.  Addressing  these  issues  in  this  proceeding  appears  largely  redundant,  however,  as 
 proceedings  specifically  concerning  closed  captioning  and  video  description  have  been 
 conducted  or  are  currently  pending  at  the  Commission. 
 With  regard  to  closed  captioning,  the  Commission  has  already  adopted  rules  requiring 
 television  broadcasters  to  provide  very  extensive  amounts  of  captioned  video  programming  (both 
 analog  and  digital)  in  accordance  with  a  strict  schedule.  68  NAB  generally  sees  no  need  to  reopen 
 the  decisions  made  by  the  Commission  with  regard  to  the  captioning  of  analog  and  digital 

 67  See,  e.  g.,  Lutheran  Church-  Missouri  Synod  v.  FCC,  141  F.  3d  344,354  (D.  C.  Cir.  1998)  (any  Commission  attempt  to  establish  a  real  content-  based  definition  of  the  term  diverse 
 programming    may  well  give  rise  to  enormous  tensions  with  the  First  Amendment);  Ofice  of 
 Communication  ofthe  United  Church  of  Christ,  707  F.  2d  at  1430-  32  (Commission  requirement  mandating  particular  program  categories  could  raise  serious  First  Amendment  questions); 

 National  Black  Media  Coalition  v.  FCC,  589  F.  2d  578,581  (D.  C.  Cir.  1978)  (Commission  adoption  of  quantitative  programming  standards  in  comparative  renewal  context  would  do  more 
 to  subvert  the  editorial  independence  of  broadcasters  and  impose  greater  restrictions  on 
 broadcasting  than  any  duties  or  guidelines  presently  imposed  by  the  Commission). 

 68  See  Report  and  Order  in  MM  Docket  No.  95-  176,  13  FCC  Red  3272  (1997),  recon.  granted  in  part,  Order  on  Reconsideration,  13  FCC  Red  19973  (1998). 

 38 
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 programming  only  two  years  ago.  No  suggestion  has  been  made  that  the  Commissions 
 decisions  were  in  error  or  that  video  programming  distributors  are  failing  in  any  way  to  fulfill 
 their  obligations  under  the  existing  closed  captioning  rules.  Indeed,  broadcasters  voluntarily 
 captioned  large  amounts  of  programming  even  before  the  Commission  adopted  its  rules.  69 
 More  particularly,  NAB  objects  to  the  suggestion  in  the  Notice  (at    25)  that  broadcasters 
 should  be  required  to  provide  closed  captioning  (and/  or  video  description)  for  public  service 
 announcements.  In  its  closed  captioning  rules,  the  Commission  specifically  exempted  public 
 service  announcements  of  less  than  10  minutes  duration  from  the  closed  captioning 
 requirements.  47  C.  F.  R.  5  79.1(  d)(  6).  In  doing  so,  the  Commission  expressly  noted  that  PSAs 
 are  without  an  independent  source  of  financial  support  and  frequently  are  created  with 
 donated  production  resources.  As  a  result,  the  additional  cost  of  captioning  could  interfere 
 with  the  PSA  creation  and  distribution  process.  Report  and  Order,  13  FCC  Red  3272  at    15  1. 
 Nothing  has  changed  that  would  warrant  the  Commission  altering  its  decision  with  regard  to 
 PSAs,  whether  in  the  analog  or  digital  environment.  Indeed,  requiring  the  closed  captioning  or 
 video  description  of  PSAs  could  discourage  broadcasters  from  airing  PSAs  by,  in  addition  to 
 running  the  PSAs  for  free,  forcing  broadcasters  to  also  pay  to  caption  or  describe  them.  NAB 
 does  not  believe  that  the  public  interest  would  be  served  by  requirements  that  would  create 
 disincentives  for  the  airing  of  PSAs  by  broadcast  stations. 
 NAB  also  opposes  any  suggestion  that  broadcasters  should  be  required  to  provide  closed 

 captioning  (or  video  description)  of  political  advertisements.  In  its  closed  captioning  rules,  the 
 Commission  correctly  decided  that  broadcasters  should  not  be  required  to  provide  closed 

 69  For  example,  even  prior  to  the  adoption  of  mandatory  closed  captioning  rules,  virtually  all 
 prime  time  programming  distributed  by  six  national  commercial  broadcast  networks  (ABC,  CBS, 
 NBC,  Fox,  WB  and  UPN)  was  closed  captioned. 

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 captioning  for  video  programming  that  is  by  law  not  subject  to  their  editorial  control,  including 
 programming  involving  candidates  for  public  office  covered  by  Sections  315  and  312  of  the 
 Communications  Act.  47  C.  F.  R.  8  79.1(  e)(  9).  Ag  ain,  NAB  believes  the  Commissions  original 
 determination  with  respect  to  political  advertisements  was  correct,  and  sees  no  reason  to 
 reconsider  this  recent  decision  here.  Broadcasters  have  no  editorial  control  over  the  content  of 
 political  candidates  advertisements  and,  indeed,  under  certain  circumstances,  are  forbidden  even 
 from  declining  to  air  such  advertisements.  70  It  would  also  be  burdensome  for  broadcasters  to 
 provide  captioning  (or  description)  of  political  advertisements  because  campaigns  frequently 
 provide  their  advertisements  to  broadcasters  very  shortly  before  air  time.  With  regard  to  the 
 proposal  that  broadcasters  expand  captioning  of  public  affairs  and  political  programming  other 
 than  advertisements  (see  Notice  at  25),  NAB  observes  that  these  categories  of  programs  are  not 
 exempt  from  existing  captioning  requirements  and  will  therefore  be  captioned  in  accordance  with 
 the  rules  set  forth  for  new  nonexempt  video  programming.  See  47  C.  F.  R.  8  79.1  (b). 
 Moreover,  with  respect  to  closed  captioning,  the  Commission  has  pending  a  proceeding 
 specifically  addressing  technical  proposals  for  the  display  of  closed  captions  on  DTV  receivers 
 and  for  the  inclusion  of  closed  captioning  decoder  circuitry  in  DTV  receivers.  71  NAB  therefore 
 sees  little  reason  to  discuss  here  the  issues  specifically  addressed  in  detail  in  that  proceeding. 
 However,  given  the  request  for  comment  on  technical  issues  to  ensure  the  most  efficient  and 

 O  See  47  U.  S.  C.  9  315(  a)  (broadcast  licensee  has  no  power  of  censorship  over  the  material 
 broadcast  by  candidates  for  public  office).  Thus,  broadcasters  would  certainly  be  prohibited 
 from  providing  video  description  of  political  advertisements,  as  that  would  entail  adding  an 
 entirely  new  narration  to  describe  the  visual  elements  of  the  advertisements. 

   See  Notice  of  Proposed  Rulemaking  in  ET  Docket  No.  99-  254,  FCC  99-  180  (rel.  July  15,  1999).  Comments  and  reply  comments  in  this  proceeding  were  filed  on  October  18  and 
 November  15,  1999,  respectively. 

 40 
 ~_._  -  -.  .-  -------  ___  .---_.___ 
49
 inexpensive  capabilities  for  disability  access,  NAB  reemphasizes  that,  for  the  digital  closed 
 captioning  system  to  function  properly,  DTV  receivers  and  set-  top  converter  boxes  must  meet 
 certain  technical  standards.  In  particular,  digital  set-  top  boxes  must  be  able  to  pass  through, 
 unaltered,  all  of  the  analog  captioning  data  contained  in  DTV  programs  to  the  devices  (e.  g., 
 television  sets  and  VCRs)  connected  to  the  analog  output  of  the  set-  top  boxes.  DTV  receivers 
 must  also  be  able  to  receive  and  process  the  data  contained  in  the  Program  and  System 
 Information  Protocol  (a  data  stream  containing  program  captioning  and  program  rating 
 information  that  is  carried  in  the  DTV  signal).  These  technical  requirements  will  ensure  that 
 current  captioning  capabilities  available  to  consumers  will  not  be  lost  during  the  transition  to 
 digital  broadcasting,  and  that  consumers  have  consistent  access  to  all  the  caption  services  (such 
 as  foreign  language  captions)  that  may  be  associated  with  video  programming.  See  Comments 
 of  NAB  in  ET  Docket  No.  99-  254  (filed  Oct.  18,  1999). 
 With  regard  to  video  description,  the  Commission  has  pending  a  proceeding  proposing  to 
 require  the  introduction  of  video  description  in  the  programming  of  certain  broadcasters 
 (specifically,  network  affiliates  in  the  25  largest  television  markets).*  In  the  Notice  of  Proposed 
 Rulemaking  in  that  proceeding,  the  Commission  expressly  stated  that  it  was  not  inclined  to 
 adopt  a  specific  timetable  to  apply  to  digital  broadcasters  with  regard  to  video  description,  but 
 would  address  such  specifics  in  a  future  proceeding  when  it  could  craft  rules  based  upon  the 
 experience  we  have  gained  as  a  result  of  analog  broadcasters  implementation  of  our  initial 
 requirements.  Id.  at  j  22  (emphasis  added).  The  Commission  has  obviously  not  yet  gained  any 
 experience  as  a  result  of  the  implementation  of  analog  video  description  rules,  as  the  comment 

 72  See  Notice  of  Proposed  Rulemaking  in  MM  Docket  No.  99-  339,  FCC  99-  353  (rel.  Nov.  18,  1999).  Comments  and  reply  comments  in  this  proceeding  were  due  on  February  23  and  March 
 24,2000,  respectively. 

 41 
50
 period  in  that  proceeding  ended  only  last  week,  and  no  such  rules  have  been  adopted,  let  alone 
 implemented.  Thus,  it  seems  wildly  premature  for  the  Commission  to  consider  digital  video 
 description  requirements  in  this  general  public  interest  proceeding. 
 However,  to  the  extent  that  the  Commission  can  take  useful  action  now  with  regard  to 
 digital  video  description,  NAB  urges  the  Commission  to  focus  on  promoting  the  development  of 
 digital  equipment  that  will  fully  accommodate  video  description.  There  is  no  assurance  that, 
 even  though  the  ATSC  DTV  system  provides  for  multiple  audio  services  (as  needed  for  the 
 provision  of  video  description),  DTV  receiver  manufactures  will  actually  implement  this  feature 
 so  that  all  digital  televisions  fully  support  multiple  audio  channels.  Given  this  uncertainty,  the 
 Commission  should  concentrate  its  efforts  with  regard  to  video  description  on  promoting  the 
 manufacture  of  DTV  receivers  that  will  be  able  to  support  video  description,  now  and  in  the 
 future.  See  Comments  of  NAB  in  MM  Docket  No.  99-  339  at  21-  33  (filed  Feb.  23,200O). 
 Similarly,  NAB  believes  it  is  premature  to  consider  rules  pertaining  to  the  accessibility  of 
 ancillary  and  supplementary  services  that  DTV  broadcasters  might  offer.  At  this  time,  it  remains 
 unknown  what  types  of  ancillary  services  will  eventually  be  offered  (if,  indeed,  any  are  offered). 
 Because  the  types  of  ancillary  services  that  could  be  offered  vary  widely  (e.  g.,  from  Internet 
 access  to  audio  signals),  any  discussion  of  how  to  make  these  services  accessible  to  visual  or 
 hearing  impaired  persons  would  be  more  theoretical  than  real.  74 

 73  A  number  of  commenters  in  that  proceeding  moreover  questioned  the  statutory  authority  of  the 
 Commission  to  even  adopt  rules  mandating  the  provision  of  described  programming.  See,  e.  g., 
 Comments  of  NAB  in  MM  Docket  No.  99-  339  at  2-  10  (filed  Feb.  23,200O). 

 74  The  Advisory  Committee  Report  specifically  suggested  that  any  DTV  broadcaster  who 
 provides  ancillary  and  supplementary  services  not  impinge  on  the  9600  baud  bandwidth 
 currently  set  aside  for  closed  captioning.  See  Notice  at    25.  NAB  sees  no  problem  in  this 
 regard,  as  the  ATSC  DTV  standard,  as  adopted  by  reference  by  the  Commission,  mandates  that 
 the  9600  baud  bandwidth  always  be  reserved. 

 42 
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 Moreover,  NAB  wishes  to  emphasize  that  it  would  be  pointless  to  require  broadcasters  to 
 make  ancillary  or  supplementary  services  accessible  to  visual  or  hearing  impaired  persons,  if 
 DTV  receivers  on  the  market  are  unable  to  receive  and  support  the  information  in  the  DTV 
 signal  allowing  for  such  accessibility.  As  a  general  matter,  the  ATSC  DTV  system  is  technically 
 extremely  complex,  and,  unlike  the  much  simpler  NTSC  system,  the  data  needed  to  support  extra 
 services  (such  as  those  for  the  hearing  or  visually  impaired)  can  be  encoded  in  DTV  signals  in 
 any  number  of  places  and  in  any  number  of  ways.  For  any  DTV-  based  services  to  be  fully 
 available  to  the  public,  however,  DTV  receivers  must  have  the  capability  to  receive  and  decode 
 the  relevant  information  in  the  DTV  signal,  as  well  as  the  flexibility  to  allow  consumers  to  easily 
 access  the  services.  Implementing  the  suggestions  of  the  Advisory  Committee  with  regard  to 
 disability  access  will  consequently  require  cooperation  and  coordination  between  broadcasters, 
 broadcast  equipment  manufacturers,  and  receiver  manufacturers.  The  Commission  therefore 
 cannot  simply  require  broadcasters  to  provide  new  DTV-  based  services  for  the  disabled 
 community  (or  to  consumers  generally),  without  also  considering  DTV  receiver  issues.  Indeed, 
 to  ensure  that  members  of  the  disabled  community  have  access  to  all  types  of  DTV  programs  and 
 services,  the  Commission  will  likely  be  forced  to  establish  DTV  receiver  specifications,  just  as 
 the  Commission  previously  required  the  inclusion  of  closed  captioning  decoders  in  analog 
 television  sets.  75 
 H.  The  Promotion  of  Diversity  in  Broadcasting  Appears  Largely  Unrelated  to 
 Digital  Technology. 

 The  Notice  (at  g[  q[  29-  33)  discussed  at  some  length  the  Commissions  traditional  goal  of 

 promoting  diversity  of  ownership,  employment  and  viewpoint  in  broadcasting.  The  Commission 

 75  NAB  has  consistently  argued  that  the  Commission  should  act  to  define  receiver  standards 
 generally,  as  part  of  an  effort  to  encourage  the  overall  DTV  transition.  See,  e.  g.,  Comments  of 

 43 
52
 then  specifically  asked  how  it  could  encourage  diversity  in  broadcasting,  consistent  with  relevant 
 constitutional  standards,  and  sought  comment  on  ways  unique  to  DTV  that  the  Commission 
 could  use  to  encourage  diversity  in  the  digital  era.  Id.  at  4[  33.  NAB  is  hard  pressed  to  suggest 
 ways  unique  to  DTV  for  promoting  diversity  of  ownership  or  employment,  given  the  lack  of 
 any  connection  between  these  aspects  of  diversity  and  either  digital  technology  or  broadcasters 
 programming-  related  public  interest  obligations. 
 Digital  broadcasting  could,  however,  enhance  the  diversity  of  programming  formats  or 
 content,  especially  if  multicasting  proves  commercially  viable.  As  discussed  in  Section  ILA., 
 multicasting  could  increase  the  number  and  variety  of  programming  options  available  to  viewers. 
 Multicasting  could  also  allow  broadcasters  to  provide  more  specialized  programming  options 
 that  appeal  to  more  narrow  or  specific  audiences,  such  as  minorities.  In  addition,  multicasting 
 should  increase  the  need  of  stations  for  programming,  thereby  producing  new  opportunities  for 
 program  producers,  including  members  of  minority  groups  or  women.  76 
 Although  multicasting  should  increase  the  total  number  and  variety  of  programming 
 options  for  viewers,  NAB  does  not  believe  that  the  Commission  can  act  effectively  to  promote 
 program  diversity  in  this  regard.  It  is  the  marketplace  that  will  determine  whether  multicasting 
 succeeds  or  fails,  not  the  Commission.  If  multicasting  ultimately  proves  to  be  commercially 
 viable,  then  an  increase  in  the  total  number  and  types  of  programs  offered  will  follow.  In  this 
 regard,  the  Commission  need  only  refrain  from  taking  actions  that  inhibit  the  development  of 

 NAB  in  CS  Docket  No.  98-  120  at  Appendix  G  (filed  Oct.  13,  1998). 
 76  Obviously,  if  a  broadcaster  offers  three,  four  or  five  programming  streams  for  even  part  of  the 
 broadcast  day,  that  broadcaster  will  have  an  increased  need  for  programming  of  various  types. 

 As  previously  described,  multicasting  might  not  increase  a  stations  existing  audience  and 
 therefore  might  not  have  additional  revenue  producing  potential. 

 44 
 .._  ----.  .  .  .  .  _I  .._  -  __  c__- 
53
 innovative  multicasting  services  (such  as  by  prematurely  imposing  expansive  public  interest 
 obligations  on  multicasting  broadcasters  or  by  denying  must  carry  status  to  multicast 
 programming).  See  discussion  in  Section  1I.  A.  above.  78 
 Moreover,  NAB  notes  that  the  digital  transition  will  ultimately  produce  additional 
 opportunities  for  new  DTV  stations,  in  a  way  unrelated  to  the  public  interest  obligations  of 
 existing  broadcasters.  In  expanding  the  DTV  core  spectrum  to  include  channels  2-  51,  the 
 Commission  added  approximately  175  additional  channels,  many  of  them  in  major  markets.  79 
 These  new  channels  will  be  licensed  through  competitive  bidding  procedures  in  which  the 
 Commission  will  presumably  offer  bidding  credits  or  other  special  measures  to  new  entrants  and, 
 if  constitutionally  permitted,  to  members  of  minority  groups  or  women.  Thus,  in  this  manner, 
 the  digital  transition  should  produce  a  more  competitive  broadcasting  environment,  with  new 
 owners  and  new  programming  options. 

   The  Commission  must  certainly  refrain  from  trying  to  mandate  the  provision  of  certain  types  of 
 programs  by  multicasting  broadcasters.  Any  misguided  effort  to  promote  diversity  of 
 programming  by  mandating  the  content  of  programming  will  improperly  infringe  on  the  editorial 
 discretion  of  licensees  and  implicate  serious  First  Amendment  concerns.  See  Lutheran  Church, 
 141  F.  3d  at  354  (in  discussing  the  Commissions  interest  in  fostering  diverse  programming, 
 the  court  stated  that  any  real  content-  based  definition  of  the  term  diverse  programming  may 
 well  give  rise  to  enormous  tensions  with  the  First  Amendment). 

 79  See  Memorandum  Opinion  and  Order  on  Reconsideration  of  the  Sixth  Report  and  Order  in  MM  Docket  No.  87-  268,  13  FCC  Red  7418  at  45  (1998). 

 *  Under  Adarand  Constructors,  Inc.  v.  Pena,  5  15  U.  S.  200  (1995),  any  governmental  action 
 based  on  race  will  be  subjected  to  strict  judicial  scrutiny.  NAB  notes  that  the  Commission  has 
 for  some  time  been  attempting  to  complete  evidentiary  studies  concerning  the  barriers 
 encountered  by  small,  minority-  and  women-  owned  businesses  in  the  telecommunications 
 markets  and  the  auctions  process.  It  remains  to  be  seen  whether  these  studies,  when  completed, 
 will  provide  the  type  of  evidentiary  record  required  to  support  the  adoption  of  special  measures 
 for  minorities  or  women  under  Adarand  or  United  States  v.  Virginia,  et  al.,  518  U.  S.  515  (1996). 

 45 
54
 Given  the  constitutional  difficulties  experienced  by  some  of  the  Commissions  previous 
 efforts  to  promote  diversity  in  broadcasting,  NAB  finally  notes  that  the  most  effective  methods 
 to  promote  diversity  in  ownership  and  employment  may  include  voluntary  industry  efforts  or 
 incentive  programs  requiring  congressional  action.  For  example,  the  broadcast  industry  has 
 voluntarily  created  an  investment  fund,  which  will  provide  up  to  $1  billion  in  buying  power  to 
 media  businesses  owned  by  minorities  and  women.  Broadcast  groups  and  NAB  also  administer 
 education  and  mentoring  programs  to  bring  minorities  and  women  into  the  broadcast  business 
 and  to  help  them  move  ahead  in  their  broadcasting  careers.  In  addition,  NAB  supports 
 legislation  that  would  give  companies  tax  credits  if  they  sold  broadcast  properties  to  minorities 
 or  women.** 
 In  sum,  NAB  respectfully  disagrees  with  the  supposition  that  the  utilization  of  digital 
 technology  by  broadcasters  is  germane  to  most  efforts  to  enhance  diversity  in  broadcasting. 
 Moreover,  attempts  to  tie  broadcasters  program-  related  public  interest  obligations  to  the 
 promotion  of  diversity  will  be  unavailing  in  so  far  as  these  duties  have  no  connection  to  the 
 ownership  or  number  of  broadcast  facilities  or  to  the  recruitment  of  employees  for  those  stations. 
 NAB  and  the  broadcast  industry  do  reiterate  their  support  for  voluntary  efforts  to  promote  all 
 aspects  of  diversity  in  broadcasting  and  reemphasize  their  commitment  to  these  efforts  in  the 
 digital  era.  83 

 81  See,  e.  g.,  Lumprecht  v.  FCC,  958  F.  2d  382  (D.  C.  Cir.  1992)  (preference  for  women  in  comparative  broadcast  licensing  proceedings  held  to  violate  constitutional  equal  protection 
 principles). 
 82  Such  legislation  would  reinstate  in  somewhat  altered  form  the  Commissions  previous  tax 
 certificate  program,  which  NAB  regards  as  one  of  the  more  effective  policies  in  promoting 
 minority  ownership  of  broadcast  outlets. 

 83  For  example,  earlier  this  year  NAB  pledged  $1.25  million  for  two  new  diversity  funds.  The 
 Gateway  Fund  will  provide  a  50%  match  to  help  cover  the  cost  of  providing  training  for  entry- 

 46 
55
 I.  Efforts  to  Enhance  Political  Discourse  Are  Unrelated  to  Digital  Technology, 
 Appear  Unnecessary,  and  Raise  Serious  Statutory  and  First  Amendment  Concerns. 

 In  its  final  paragraphs,  the  Notice  asked  for  comment  on  how  broadcasters  public 
 interest  obligations  can  be  refined  to  promote  democracy  and  better  educate  the  voting  public. 
 Id.  at  I[  34.  The  Notice  (at  g[  q[  35-  38)  discussed  ways  that  the  Commission  could  promote 
 voluntary  efforts  by  television  broadcasters  to  enhance  the  political  debate,  and  offered  proposals 
 to  encourage  or  require  broadcast  licensees  to  provide  free  air  time  to  candidates. 
 1.  Whether  Voluntary  or  Mandatory,  Free  Air  Time  Proposals  Have  No 
 Connection  to  Digital  Broadcasting,  Are  Unlikely  to  he  Effective  in 
 Improving  Political  Discourse,  and  Are  Not  Needed  to  Ensure  the  Broadcast 
 of  Campaign  Information. 

 In  addressing  these  various  free  time  and  other  proposals  relating  to  political  discourse, 
 NAB  notes  that  they  aim  at  promoting  goals  unrelated  to  digital  television  or  even  to 
 broadcasting  generally.  Rather,  these  proposals  address  perceived  problems  with  the  current 
 election  system  and  the  supposedly  pernicious  influence  of  money  on  politics.  NAB  objects  to 
 this  effort  to  use  broadcasters  to  achieve  an  end  (however  worthy  such  political  reform  may  be) 
 when  broadcasters  are  only  tangentially  related  to  the  problem  being  addressed.  As  even  the 
 Advisory  Committee  recognized,  no  reasonable  campaign  finance  reform  can  focus  on 
 television  alone,  or  put  the  central  burden  for  improving  our  political  system  on  the  backs  of 
 broadcasters.  Advisory  Committee  Report  at  56.84 

 level  broadcast  industry  employees,  with  employers  covering  the  other  half  of  the  expenses.  The 
 Broadcast  Leadership  Training  Program  will  provide  training  for  members  of  groups  that  are 
 under-  represented  in  the  ranks  of  broadcast  ownership. 

   See  also  Reed  Hundt,  FCC  Chairman,  The  Hard  Road  Ahead-  An  Agenda  for  the  FCC  in  1997 
 (Dec.  26,  1996)  (  broadcasters  should  not  be  required  to  shoulder  the  financial  burden  of 
 political  time  themselves,  but  the  [  plrovision  of  time  should  be  combined  with  other 
 innovations  to  make  up  for  the  expense  to  broadcasters). 

 47 
 _  _  ._..  -_...  --..  .  .  .,..  . 
56
 NAB  particularly  objects  to  singling  out  broadcasters  to  bear  the  burden  of  general 
 political  reform  when  such  efforts  are  unlikely  to  succeed.  If  the  goal  is  to  truly  reform  the 
 current  election  system  -  with  its  lack  of  restrictions  on  soft  money  and  the  activities  of 
 independent  campaign  committees  -  then  merely  increasing  the  television  air  time  of 
 candidates  will  be  hopelessly  inadequate.  Without  comprehensive  campaign  finance  reform, 
 encouraging  or  requiring  broadcasters  to  provide  more  free  time  to  political  candidates  will  have 
 little  effect  on  the  conduct  of  campaigns.  85  NAB  additionally  believes  that  the  effectiveness  of 
 any  free  time  proposals  could  be  impeded  by  practical  difficulties  in  implementation  and 
 administration.@ 
 NAB  also  challenges  the  assumption  underlying  the  various  free  air  time  proposals  that 
 more  automatically  means  better.  The  Notice  sought  comment  on  ways  that  candidate 
 access  to  television  and  thus  the  quaEity  of  political  discourse  might  be  improved.  Id.  at  q[  34 
 (emphasis  added).  But  even  if  broadcasters  were  required  to  provide  free  time  -  in  addition  to 
 the  considerable  amounts  of  both  paid  and  free  air  time  candidates  currently  have  -  the  quality 

 85  For  example,  even  if  broadcasters  provide  additional  free  time  to  candidates,  this  will  not 
 reduce  the  incentives  for  candidates  to  raise  money  to  buy  even  more  air  time  or  for  a  myriad  of 
 other  purposes.  The  role  of  soft  money  (funds  contributed  to  parties  that  is  used  to  finance 
 individual  campaigns)  and  political  action  committees  will  also  remain  unchanged.  Because  the 
 provision  of  some  additional  free  air  time  will  not  lessen  the  need  of  candidates  to  raise  as  much 
 money  as  possible,  the  public  perception  of  the  corrupting  influence  of  money  and  large 
 campaign  donors  will  not  be  reduced. 

 86  Other  countries  that  mandate  free  time  are  generally  parliamentary  democracies.  By  contrast, 
 the  U.  S.  system  has  far  more  political  races  (e.  g.,  national,  state  and  local),  our  campaigns  last 
 for  months  instead  of  a  few  weeks,  and  our  candidates  are  under  far  less  party  control.  These 
 differences  raise  a  number  of  difficult  practical  questions  regarding  implementation  of  any  free 
 time  requirement.  For  example,  would  a  requirement  apply  to  all  candidates  in  all  races  (federal, 
 state  and  local)  and  for  all  candidates  (even  fringe  parties)?  If  so,  would  this  place  an  unfair 
 burden  on  broadcasters,  especially  those  with  geographically  large  markets  covering  a  number  of 
 congressional  districts  and  parts  of  several  states  (all  of  which  would  have  separate 
 federal  and  state  races)? 

 48 
 __  .  _  ._--._..-.l  ..--  lllll.  l.  .-t  -I  -..-..  -.._____-.. 
 -._-.  - 
57
 of  political  discourse  might  not  improve.  Indeed,  if  a  free  time  requirement  resulted  in  an 
 increase  in  the  amount  of  air  time  devoted  to  various  forms  of  negative  campaigning,  then  the 
 quality  of  political  discourse  could  actually  decline.  As  the  Commission  has  recognized  in  other 
 contexts,  quantity  does  not  necessarily  guarantee  quality.  87 
 In  any  event,  NAB  questions  the  assumptions  that  there  is  a  lack  of  political  coverage  in 
 this  country,  and  that  simply  more  coverage  is  needed  (questions  of  quality  aside).  For  example, 
 broadcasters  donated  over  $148  million  in  free  air  time  for  campaigns  and  candidate  coverage  in 
 1996.  See  NAB  Report  at  10.  Significantly,  stations  report  that  many  offers  of  free  time  are 
 turned  down  by  candidates  -  as  much  as  $15.1  million  worth  of  air  time  in  1996,  based  on  the 
 average  air  time  values  of  events  that  were  actually  held.  Id.  The  fact  that  candidates  not 
 infrequently  decline  offers  of  free  time  indicates  that  candidate  access  to  television  and  radio  is 
 adequate. 
 For  the  2000  election  cycle,  broadcasters  have  continued  to  provide  substantial  amounts 
 of  free  time  for  candidates,  in  addition  to  news  and  other  coverage  of  campaigns.  88  Moreover, 

   See,  e.  g.,  Comparative  Renewal  R&  O,  66  FCC  2d  at  427  (increasing  amount  of  certain  categories  of  programming  would  not  necessarily  improve  the  service  a  station  provides  its 
 audience);  Report  and  Order  in  BC  Docket  No.  79-  219,84  FCC  2d  968,991  (1981)  (the  focus 
 of  any  allegation  that  a  station  is  doing  very  little,  or  nothing,  to  address  through  its 
 programming  issues  facing  the  community  should  not  be  on  the  mere  amount  of  programming; 
 a  station  with  less  non-  entertainment  programming  may  be  doing  a  superior  job  compared  to  a 
 station  airing  more  non-  entertainment  programming,  depending  on  the  quality  of  the 
 programming  and  the  issues  addressed). 

 *8  For  example,  Hearst-  Argyle  Television,  Inc.  has  launched  Commitment  2000.  This  initiative 
 involves  Hearsts  24  television  stations  and  its  four  news  radio  stations,  and  will  include:  targeted  web  sites;  extensive  daily  campaign  reports,  debates,  forums  and  town  meetings;  voter 

 registration  announcements;  and  one-  hour  per  week  minimum  candidate  round  tables  with  local,  state  and  federal  candidates  hosted  by  station  personnel.  E.  W.  Scripps,  as  part  of  its  Democracy 
 2000  initiative,  will  make  five  minutes  of  free  time  available  to  candidates  on  its  nine  stations 
 during  evening  newscasts  each  of  30  days  before  local  primary  and  national  elections.  In 
 response  to  low  voter  turnout  in  recent  elections,  the  New  Hampshire  Association  of 
 Broadcasters  is  spearheading  Project  Vote  2000,  a  public  service  campaign  of  television  and 

 49 
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 available  evidence  indicates  that  voters  believe  broadcaster  campaign  coverage  is  more  than 
 sufficient.  For  example,  in  a  February  1,  2000  poll  of  New  Hampshire  voters  conducted  by 
 Wirthlin  Worldwide,  50%  of  voters  felt  that  local  broadcasters  provided  about  the  right  amount 
 of  time  covering  the  states  presidential  primary  and  37%  believed  local  stations  devoted  too 
 much  time.  Only  6%  of  those  polled  believed  that  local  broadcasters  gave  too  little  time  to 
 covering  the  primary.  In  another  poll  conducted  by  Wirthlin  Worldwide,  over  85%  of  polled 
 voters  from  five  states  participating  in  the  Super  Tuesday  primaries  on  March  7,2000,  said 
 that  local  broadcasters  had  provided  the  right  amount  or  too  much  coverage  of  the 
 presidential  primaries.  Only  7%  of  voters  surveyed  said  that  not  enough  time  was  devoted  to  the 
 campaigns.  Perhaps  this  extensive  coverage  explains  why  candidates  continue  to  decline  offers 
 of  free  air  time  from  broadcasters.  89 
 Thus,  based  on  available  evidence,  NAB  disputes  the  Notices  underlying  assumptions 
 that  political  candidates  lack  access  to  the  nations  airwaves,  that  there  is  too  little  political 
 coverage  by  broadcasters,  and  that  the  public  desires  more  coverage  of  campaigns  and  elections. 
 The  Notice  (at    36)  cites  figures  purporting  to  show  that  a  number  of  television  broadcasters 
 provide  scant  coverage  of  local  public  affairs  and  that  some  stations  provide  no  local  news  at  all. 
 These  figures  do  not,  however,  demonstrate  that  local  news  and  public  affairs  (including 
 political)  coverage  are  not  available  to  viewers  on  a  market  basis.  NAB  sees  no  cause  for  alarm 
 if,  for  example,  the  sixth-  rated  television  station  in  a  market  does  not  provide  local  news 

 radio  spots  that  urge  people  to  vote.  Participating  stations  intend  to  donate  $1  million  in  airtime 
 by  this  September. 

 89  For  instance,  prior  to  the  California  presidential  primary  this  year,  the  California  Broadcasters 
 Association  offered  a  go-  minute  prime-  time  live  debate  to  the  McCain  and  Bush  campaigns  and 
 to  the  Gore  and  Bradley  campaigns.  The  offer  included  free  uplinks  to  all  television  and  radio 
 stations  in  America  that  wanted  to  run  the  debates.  All  four  candidates  declined  this  offer. 

 50 
 _.  .  .  .  .  _  I  .,_  ___._  I-__.--~-.  l...- 
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 programming,  assuming  the  top  five  television  stations  in  a  market  do  so,  particularly  since 
 lower-  ranked  stations  often  lack  the  economic  resources  to  provide  significant  local  news 
 programming.  The  fact  that  some  individual  television  stations  do  not  provide  extensive  local 
 news  or  public  affairs  programming  does  not,  however,  imply  that  the  public  suffers  from  a  lack 
 of  political  coverage  that  a  free  time  requirement  would  solve.  Viewers  are  able  to  obtain 
 campaign  and  candidate  information  from  a  plethora  of  broadcast  outlets,  numerous  cable 
 channels  (e.  g.,  CNN,  CSPAN,  MSNBC  and  local  access),  many  newspapers  and  magazines,  and, 
 of  course,  the  Internet.  Given  this  myriad  of  resources  available,  NAB  respectfully  submits 
 that  there  is  no  lack  of  political  news  and  information  available  for  persons  who  have  any  interest 
 in  obtaining  such  information.  Thus,  a  voluntary  or  mandatory  requirement  for  broadcasters  to 
 offer  additional  free  time  for  political  candidates  is  unnecessary. 
 NAB  also  wishes  to  express  its  reservations  about  the  concept  of  a  voluntary  free  time 
 commitment.  Of  course  NAB  supports  its  members  and  all  broadcasters  who  have  in  the  past 
 and  continue  today  to  provide  free  time  to  candidates  on  a  truly  voluntary  basis.  However,  if  the 
 Commission  were  to  establish  any  sort  of  recommendation  or  guideline  for  broadcasters  to 

 90  The  Commission  has  specifically  recognized  that  lower-  rated  television  stations  with  limited 
 financial  and  other  resources  often  do  not  have  significant  local  news  programming,  given  the 
 costs  involved.  Report  and  Order  in  MM  Docket  Nos.  91-  221  and  87-  8,  FCC  99-  209  at    66 
 (1999). 

 9  Indeed,  the  Internets  role  in  elections,  for  both  candidates  and  the  public,  is  steadily  growing. 
 See,  e.  g.,  Washington  Post,  at  A19  (March  12,  2000)  (record  turnout  reported  in  Arizonas 
 Democratic  presidential  primary,  which  was  the  first  binding  election  for  public  office  allowing 
 voters  to  use  the  Internet  to  cast  ballots  from  their  homes);  Los  Angeles  Times,  Part  B  at  1 
 (March  6,200O)  (Internet,  by  offering  cheap  access  to  voters,  has  opened  political  arena  for  third 
 parties  and  alternative  candidates,  whose  numbers  have  increased);  Los  Angeles  Times,  Part  A  at 
 20  (Feb.  10,200O)  (Internet  now  used  by  campaigns  to  recruit  volunteers,  spread  candidates 
 messages,  get  voters  to  the  polls  and  to  solicit  contributions);  New  York  Times,  Section  A  at  19 
 (March  17,  1999)  (Steve  Forbes  became  first  presidential  candidate  to  formally  announce 
 candidacy  on  Internet). 

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 provide  a  certain  amount  of  free  air  time,  then  such  provision  of  free  air  time  will  no  longer  be 
 truly  voluntary.  For  example,  several  public  interest  groups  have  filed  an  informal  objection 
 against  the  pending  CBS/  Viacom  merger.  See  Feb.  2,  2000  Letter  from  Alliance  for  Better 
 Campaigns,  et  al.  to  Chairman  Kennard.  This  letter  refers  to  the  recommendation  by  the 
 Advisory  Committee  that  television  stations  voluntarily  provide  five  minutes  a  night  of 
 candidate-  centered  discourse  prior  to  primary  and  general  elections.  However,  the  letter  then 
 charges  that  CBS  has  not  honored  its  commitment  in  this  regard,  and  that,  as  a  result,  the 
 Commission  should  find  that  the  CBS/  Viacom  merger  would  not  serve  the  public  interest.  92 
 Thus,  a  mere  reconzmendation  from  the  Advisory  Committee  -  one  that  the  Commission  has  not 
 even  adopted  -  for  broadcasters  to  voluntarily  provide  free  air  time  to  candidates  has  become  the 
 basis  of  an  objection  filed  against  a  multi-  billion  dollar  merger. 
 NAB  believes  that  any  similar  recommendation  or  guideline  adopted  by  the 
 Commission  would  inevitably  become  a  de  facto  requirement  because  a  broadcasters  alleged 
 failure  to  meet  the  so-  called  voluntary  guideline  would  come  under  the  Commissions  scrutiny 
 during  renewals  and  station  transfers  and  would  result  in  complaints  and  petitions  being  filed 
 against  the  broadcaster.  In  this  way,  a  voluntary  standard  adopted  by  the  Commission  with 
 regard  to  broadcasters  providing  free  air  time  would  be  about  as  voluntary  as  the  requirement  for 
 young  men  to  register  with  the  Selective  Service.  As  a  practical  matter,  moreover,  NAB  doubts 

 92  Indeed,  the  letter  goes  on  to  say  that  Commission  approval  of  all  applications  for  broadcast 
 license  renewals  and  station  transfers  should  in  the  future  be  conditioned  on  the  record  of 
 licensees  in  providing  a  minimum  amount  of  air  time  to  candidates. 

 52 
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 that  the  Commission  wants  to  engage  in  a  dispute  over  the  voluntary  or  involuntary  nature  of  a 
 free  air  time  guideline.  93 
 There  is,  however,  one  step  that  the  Commission  could  take  to  encourage  broadcasters  to 
 provide  the  nightly  five  minutes  of  candidate-  centered  discourse  recommended  by  the 
 Advisory  Committee.  Specifically,  NAB  urges  the  Commission  to  rule  that  these  five  minute 
 broadcasts  qualify  as  on-  the-  spot  coverage  of  bona  fide  news  events  under  Section  3  15  of  the 
 Communications  Act.  Thus,  broadcasters  who  voluntarily  provide  this  time  would  be  exempt 
 from  equal  opportunity  requirements.  Such  an  exemption  would  allow  broadcasters  greater 
 flexibility  in  selecting  formats  and  would  permit  broadcasters  to  continue  to  provide  candidate- 
 centered  discourse  even  if  one  of  the  candidates  in  a  race  declined  to  participate. 
 2.  Requiring  Broadcast  Licensees  to  Provide  Free  Air  Time  to  Candidates 
 Would  Exceed  the  Commissions  Statutory  Authority. 

 The  Notice  (at    38)  asks  for  comment  on  the  Commissions  authority  to  require 
 broadcasters  to  provide  free  air  time  to  political  candidates.  The  Commission  cites  no  specific 
 provisions  of  the  Communications  Act  that  would  grant  it  the  authority  to  impose  free  political 
 time  requirements.  NAB  presumes  that  the  Commission  intends  to  rely  on  its  general  public 
 interest  authority.  94  NAB  does  not  believe  that  this  general  authority  permits  the  Commission  to 

 93  As  history  has  shown,  the  Commission  must  be  cautious  in  any  attempt  to  persuade 
 broadcasters  to  voluntarily  take  particular  actions  regarding  their  programming.  See  Writers 
 Guild  ofAmerica,  West,  Inc.  v.  FCC,  423  F.  Supp.  1064  (C.  D.  Cal.  1976)  (district  court  found  that,  inter  ah,  the  Commission  violated  the  First  Amendment  by  recommending,  through 

 informal  influence  and  pressure,  that  broadcasters  adopt  the  family  viewing  policy).  Although 
 this  decision  was  vacated  on  procedural  grounds  on  appeal,  609  F.  2d  355  (9th  Cir.  1979),  this 
 case  illustrates  the  dangers  inherent  in  attempting  to  influence  programming  by  voluntary 
 guidelines  or  standards. 

 94  See,  e.  g.,  47  U.  S.  C.  Q  309(  a),  307(  c)(  l)  (Commission  shall  determine  whether  grant  of 
 applications  for  new  station  licenses  or  for  renewal  of  licenses  would  serve  the  public  interest, 
 convenience,  and  necessity). 

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 adopt  rules  requiring  free  political  air  time  because  Congress  has  already  set  clear  rules  in  the 
 area  of  political  broadcasting  that  the  Commission  is  not  free  to  change. 
 NAB  agrees  that  in  many  areas  the  Commission  enjoys  wide  discretionary  authority, 
 especially  in  situations  where  Congress  has  not  expressly  spoken  and  the  Commission  is  writing 
 on  a  clean  slate.  In  this  case,  however,  Congress  has  set  forth  detailed  political  broadcastjng 
 mandates.  Specifically,  the  Communications  Act  mandates  that,  with  respect  to  candidate 
 appearances  on  broadcast  stations,  the  Commission  must  require  broadcasters  to  provide 
 candidates  with  equal  opportunities,  must  ensure  that  political  messages  are  not  censored,  and 
 must  require  stations  to  provide  reasonable  access  to  federal  candidates.  Most  significantly, 
 the  Communications  Act  provides  that  when  candidates  buy  time,  they  will  be  accorded  stations 
 lowest  unit  charge  for  the  same  class  and  amount  of  time.  47  U.  S.  C.  $5  312(  a)(  7);  315(  a)-(  b). 
 Congress  inclusion  of  these  specific  provisions  demonstrates  that  in  the  area  of  political 
 broadcasting  (and  particularly  with  regard  to  the  rate  charged  for  political  advertising),  the 
 Commission  lacks  the  power  to  impose  a  different  and  fundamentally  inconsistent  regulatory 
 regime.  Not  only  does  the  lowest  unit  charge  provision  plainly  signify  Congress  contemplation 
 that  political  advertising  time  would  not  be  provided  for  free,  the  reasonable  access 
 requirement  in  Section  3  12(  a)(  7)  of  the  Communications  Act  also  specifies  that  broadcasters  can 
 meet  their  obligations  by  permitting  the  purchase  of  reasonable  amounts  of  time.  (emphasis 
 added).  Congress,  therefore,  provided  in  the  Communications  Act  for  a  system  of  political 
 broadcasting  based  on  the  purchase  by  candidates  of  time  at  a  discount  from  ordinary  rates. 

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 Congress  most  clearly  did  not  establish  a  regime  of  political  broadcasting  based  on  the  provision 
 of  free  time  by  broadcasters.  95 
 This  inclusion  by  Congress  of  statutory  provisions  establishing  a  system  based  on  the 
 purchase  of  air  time  at  specified  rates  implies,  under  the  elementary  maxim  of  expressio  unius  est 
 exclusio  alterius,  that  Congress  denied  the  Commission  authority  to  adopt  other,  inconsistent 
 rules.  96  Indeed,  the  circumstances  of  this  inquiry  carry  us  beyond  the  rule  of  expressio  unius  est 
 exclusio  alterius  .  .  .  and  into  the  domain  of  inconsistency  of  purpose.  97  Mandating  free  air  time 
 for  political  candidates  would  simply  disregard  the  specific  statutory  regime  adopted  by 
 Congress.  The  Commissions  general  public  interest  authority  should  not,  moreover,  be 

 95  See  47  U.  S.  C.  9  315(  b)  (setting  forth  the  exact  number  of  days  before  primaries  and  general 
 elections  during  which  the  lowest  unit  charge  applies  and  the  charges  that  apply  to  candidates 
 at  any  other  time). 

 %  See,  e.  g.,  Leathennan  v.  Tarrant  County  Narcotics  Zntelligence  and  Coordination  Unit,  507  U.  S.  163,  168  (1993)  (because  a  federal  rule  of  civil  procedure  did  not  include  among  its 

 enumerated  actions  any  reference  to  complaints  alleging  municipal  liability,  then,  under  the 
 doctrine  of  expressio  unius  est  exclusio  alterius,  such  complaints  are  excluded);  NutionaZ 
 Railroad  Passenger  Corp.  v.  National  Association  of  Railroad  Passengers,  414  U.  S.  453,458  (1974)  (the  ancient  maxim  of  expressio  unius  est  exclusio  alterius  means  that,  [  wlhen  a 

 statute  limits  a  thing  to  be  done  in  a  particular  mode,  it  includes  the  negative  of  any  other 
 mode)  (quoting  Botany  Worsted  Mills  v.  U.  S.,  278  U.  S.  282,  289  (1929));  Halverson  v.  SZater, 
 129  F.  3d  180,  185  (D.  C.  Cir.  1997)  (under  the  statutory  construction  principle  of  expressio  unius 
 est  exclusio  alterius,  the  mention  of  one  thing  implies  the  exclusion  of  another  thing);  American  Methyl  Corp.  v.  EPA,  749  F.  2d  826,  835-  36  (D.  C.  Cir.  1984)  (in  interpreting  authority 

 of  EPA  under  a  statutory  provision,  court  relied  on  expressio  unius  est  exclusio  alterius,  a 
 maxim  frequently  invoked  by  the  Supreme  Court  in  construing  statutes);  Boudette  v.  Bamette, 
 923  F.  2d  754,756-  57  (9th  Cir.  1991)  (the  doctrine  of  expressio  unius  est  excZusio  alterius  as 
 applied  to  statutory  interpretation  creates  a  presumption  that  when  a  statute  designates  certain 
 persons,  things,  or  manners  of  operation,  all  omissions  should  be  understood  as  exclusions). 

 97  Continental  CusuaZty  Co.  v.  U.  S.,  314  U.  S.  527,  533  (1942)  ([  glenerally  speaking  a  legislative  affirmative  description  implies  denial  of  the  nondescribed  powers). 

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 interpreted  to  authorize  the  adoption  of  free  air  time  requirements  because  such  an  interpretation 
 would  render  the  statutory  provisions  in  Sections  3  12(  a)(  7)  and  315  entirely  superfluous9* 
 Furthermore,  because  requiring  broadcast  stations  to  provide  candidates  with  free  air  time 
 implicates  serious  First  Amendment  concerns,  the  Communications  Act  cannot  be  construed  to 
 include  such  power,  at  least  absent  a  clear  congressional  statement  affirmatively  authorizing  it. 
 The  Supreme  Court  has  made  clear  that  it  will  construe  grants  of  administrative  authority 
 narrowly  to  bar  actions  in  tension  with  the  First  Amendment  unless  the  agencys  action  is  plainly 
 required  by  its  governing  statute.  In  DeBartolo  Corp.  v.  Florida  Gulf  Coast  Building  and 
 Construction  Trades  Council,  485  U.  S.  568,575  (1988),  the  Court  held:  where  an  otherwise 
 acceptable  construction  of  a  statute  would  raise  serious  constitutional  problems,  the  Court  will 
 construe  the  statute  to  avoid  such  problems  unless  such  construction  is  plainly  contrary  to  the 
 intent  of  Congress.  99 
 In  this  situation,  not  only  is  there  no  evidence  of  an  affirmative  intent  of  Congress  to 
 require  free  time,  the  plain  language  of  the  Communications  Act  shows  that  Congress  adopted  an 
 entirely  different  approach  to  political  broadcasting  regulation.  The  Commission,  therefore,  does 

 98See,  e.  g.,  Hahn  v.  U.  S.,  118  S.  Ct.  1969,  1976  (1998);  Kawaauhau  v.  Geiger,  118  S.  Ct.  974,977  (1998)  (stating  reluctance  to  adopt  a  construction  of  a  statute  making  another  statutory  provision 
 superfluous). 
 99  See  also  NLRB  v.  Catholic  Bishop  of  Chicago,  440  U.  S.  490,501  (1979)  (where  an  agencys  exercise  of  its  jurisdiction  .  .  .  would  give  rise  to  serious  constitutional  questions  .  .  .  we  must 
 first  identify  the  affirmative  intention  of  the  Congress  clearly  expressed  before  concluding  that 
 the  Act  grants  jurisdiction)  (quoting  McCulZoch  v.  Sociedad  National  de  Marineros  de 
 Honduras,  372  U.  S.  10,21-  22  (1963)). 

 56 
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 not  have  the  authority  to  rewrite  the  Communications  Act  and  impose  a  free  political  time 
 requirement  contrary  to  Congress  specification  of  public  policy  is  this  regard.   
 3.  Requiring  Broadcast  Licensees  to  Provide  Free  Air  Time  to  Candidates 
 Would  Be  Contrary  to  the  First  Amendment. 

 As  described  in  detail  above  (see  Section  I.  G.),  the  scarcity  doctrine  has  been  the  factual 
 predicate  for  upholding  the  governments  imposition  of  regulations  on  broadcasters  that  could 
 not  constitutionally  be  applied  to  other  media.  Because  the  scarcity  doctrine  can  no  longer  be 
 regarded  as  logically  or  empirically  sound,  the  legal  rationale  for  upholding  regulations  that 
 intrude  on  the  First  Amendment  rights  of  broadcasters  has  lost  its  traditional  moorings.  If  the 
 deficiencies  of  the  scarcity  doctrine  have  in  fact  removed  the  justification  for  affording 
 broadcasters  less  than  full  First  Amendment  protection,  then  a  free  air  time  requirement  would 
 clearly  be  found  unconstitutional.  But  even  if  Red  Lion  and  its  progeny  were  still  regarded  as 
 fully  applicable  for  evaluating  the  constitutionality  of  broadcast  regulations,  then  NAB  believes 
 that  a  free  time  requirement  would  nonetheless  be  found  invalid. 
 Assuming  that,  given  the  logical  and  empirical  shortcomings  of  the  scarcity  doctrine,  the 
 full  level  of  constitutional  protection  applies  to  broadcasters,  then  any  free  air  time  mandate 
 would  be  subject  to  strict  First  Amendment  scrutiny  and  struck  down  by  the  courts.  lo1  For 
 example,  in  Miami  Herald  Publishing  Co.  v.  TomiEZo,  418  U.  S.  241  (1974),  the  Supreme  Court 
 held  that  a  state  statute,  which  required  newspapers  assailing  the  character  of  a  political 
 candidate  to  afford  free  space  to  the  candidate  for  reply,  violated  the  First  Amendment.  The 
 Court  unequivocally  stated  that  any  compulsion  by  the  government  on  newspapers  requiring 

 O  See  Chevron,  467  U.  S.  at  843  (an  agency  must  given  effect  to  the  unambiguously  expressed  intent  of  Congress). 
 lo1  Strict  scrutiny  requires  the  government  to  prove  a  compelling  interest,  directly  advanced  by 
 the  least  restrictive  regulatory  means.  See,  e.  g.,  Reno  v.  ACLU,  521  U.  S.  844  (1997). 

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 them  to  publish  that  which  reason  tells  them  should  not  be  published  is  unconstitutional.  Id.  at 
 256,  The  Court  also  added  that,  even  if  a  newspaper  would  incur  no  additional  costs  to  comply 
 with  a  compulsory  access  law  and  would  not  be  forced  to  forgo  publication  of  other  news  by  the 
 inclusion  of  a  reply,  the  state  statute  failed  to  clear  the  barriers  of  the  First  Amendment  because 
 of  its  intrusion  into  the  function  of  editors.  Id.  at  258.  Any  free  air  time  requirement  would 
 similarly  constitute  a  compulsion  by  the  government  on  broadcasters  to  air  that  which  reason 
 tells  them  should  not  be  aired,  and  would  intrude  into  the  editorial  function  of  broadcast 
 journalists.  Thus,  under  a  strict  First  Amendment  analysis  as  applied  to  print  media,  any 
 requirement  forcing  broadcasters  to  provide  free  air  time  would  be  held  unconstitutional. 
 If,  however,  despite  the  infirmities  of  the  scarcity  doctrine,  a  reviewing  court  were  to 
 afford  lesser  scrutiny  to  a  free  air  mandate  imposed  on  broadcasters,  such  a  requirement  would 
 still  be  found  unconstitutional.  Even  under  so-  called  intermediate  scrutiny,  the  government  must 
 still  prove  that  its  regulation  directly  and  materially  advances  a  substantial  governmental  interest 
 by  means  no  more  extensive  than  necessary.*  Assuming  that  the  government  could 
 demonstrate  a  substantial  interest  in  reforming  the  current  system  of  elections  and  campaign 
 finance,  a  free  air  time  requirement  could  not  be  shown  to  directly  and  materially  advance  that 
 interest. 
 As  previously  discussed  in  this  section,  a  free  air  time  mandate  would  not  directly  and 
 materially  advance  the  general  goal  of  reforming  the  current  campaign  system  and  ending  the 
 perceived  pernicious  influence  of  money  on  politics.  Indeed,  as  explained  above,  requiring 
 broadcasters  to  provide  free  time  would  have  Iittle  effect  on  the  conduct  of  campaigns  or  on  the 

 lo2  See,  e.  g.,  Turner  Broadcasting  System,  Inc.  v.  FCC,  512  U.  S.  622,662-  64  (1994). 
 58 
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 need  of  candidates  to  raise  money.  There  is  also  no  reason  to  believe  that  the  quality  of 
 political  discourse  would  be  better  on  air  time  forcibly  appropriated  from  broadcasters  than  on 
 air  time  purchased  by  candidates  or  voluntarily  donated  by  broadcasters.  Thus,  with  regard  to  a 
 free  air  time  requirement,  the  government  will  be  unable  to  prove  that  the  recited  harms  are  real, 
 not  merely  conjectural,  and  that  the  regulation  will  in  fact  alleviate  these  harms  in  a  direct  and 
 material  way.  Turner  Broadcasting,  512  U.  S.  at  664.  Certainly  a  free  time  requirement  will  not 
 advance  the  asserted  state  interests  [in  political  reform]  sufficiently  to  justify  its  abridgement 
 of  broadcasters  First  Amendment  rights.  City  of  Los  Angeles  v.  Preferred  Communications, 
 Inc.,  476  U.  S.  488,496  (  1986).  03 
 Furthermore,  a  free  air  time  mandate  would  fail  intermediate  scrutiny  because  of  its 
 complete  lack  of  tailoring  to  the  governments  asserted  interest  in  improving  the  campaign  and 
 election  system.  Various  other  means  exist  for  the  government  to  pursue  its  goal  of  reforming 
 the  election  process  that  do  not  infringe  on  the  First  Amendment  rights  of  broadcasters.  For 
 example,  Congress  could  decide  to  publicly  finance  election  campaigns  and  condition  the 
 acceptance  of  public  funds  on  an  agreement  by  candidates  to  abide  by  specified  expenditure 
 limitations.  Alternatively,  Congress  could  enact  stricter  limits  on  contributions  to  political 
 campaigns,  including  additional  restrictions  on  contributions  from  political  action  committees 
 and  soft  money.  lo4  In  sum,  NAB  believes  that  broadcasters  cannot  be  constitutionally 
 compelled  to  finance  political  campaigns,  given  these  other,  much  more  direct  means  that  may 
 be  used  to  advance  the  governments  interest  in  improving  the  election  process  without 

 lo3  See  also  BeVier,  Is  Free  TV  for  Federal  Candidates  Constitutional?  at  47-  49  (AH  1998)  (challenging  the  assumption  b;  proponents  that  free  time  would  in  fact  help  solve  various 
 perceived  ills  in  the  political  system)  (attached  as  Appendix  A). 
 04  The  Supreme  Court  has  upheld  the  constitutionality  of  limits  on  campaign  contributions. 
 Buckley  v.  Valeo,  424  U.  S.  1  (1976). 

 59 
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 implicating  First  Amendment  concerns.  Merely  because  placing  the  burden  of  campaign  reform 
 on  broadcasters  might  be  the  most  politically  palatable  alternative  does  not  lend  it  any 
 constitutional  respectability.  io5 
 NAB  would  also  like  to  point  out  that,  even  in  the  unlikely  event  that  a  court  would  still 
 find  Red  Lion  fully  applicable  today,  that  cases  holding  was  actually  quite  limited  and  would  not 
 support  the  imposition  of  free  time  requirements.  In  fact,  Red  Lion  provides  that  regulations, 
 such  as  the  Fairness  Doctrine,  are  constitutionally  permissible  only  where,  in  the  absence  of 
 regulation,  certain  voices  and  views  would  by  necessity,  be  barred  from  the  airwaves.  Red 
 Lion,  395  U.  S.  at  389.  The  Commission  cannot  seriously  contend  that  political  candidates  and 
 their  messages  are  barred  from  the  airwaves.  On  the  contrary,  broadcasters  cover  political 
 campaigns  and  candidates  in  their  news  broadcasts  and  voluntarily  provide  significant  amounts 
 of  free  air  time  to  candidates.  As  discussed  above,  federal  candidates  have  a  statutory  right  to 
 reasonable  access  to  the  airwaves,  and,  when  candidates  (federal  or  state)  buy  time,  they  must 
 by  statute  be  accorded  special  rates.  And  candidates  of  course  may  utilize  other  media  to  reach 
 voters  and  inform  the  public,  including  newspapers  and  magazines,  cable  and  the  Intemet.  lM 

 lo5  In  fact,  free  air  time  mandates  might  also  raise  the  constitutional  problem  of  forced  speech. 
 The  Supreme  Court  has  explicitly  held  that  the  First  Amendment  is  implicated  when  the 
 government  attempts  to  compel  expression.  See,  e.  g.,  Wooley  v.  Maynard,  430  U.  S.  705,714 
 (1977)  (rights  protected  by  First  Amendment  include  both  the  right  to  speak  freely  and  the  right 
 to  refrain  from  speaking  at  all).  Given  that  the  Supreme  Court  has  found  that  compelling  the 
 addition  of  the  authors  name  to  anonymous  campaign  literature  violates  the  First  Amendment,  it 
 would  seem  that  compelling  broadcasters  to  provide  air  time  and  broadcast  facilities  to 
 candidates  they  do  not  wish  to  support  also  raises  First  Amendment  concerns.  See  McZntyre  v. 
 Ohio  Elections  Commission,  5  14  US.  334  (1995). 

 lo6  With  regard  to  the  Internet,  the  Supreme  Court  has  explicitly  stated  that  it  cannot  be 
 considered  a  scarce  expressive  commodity,  as  it  provides  reIatively  unlimited,  low-  cost  capacity 
 for  communication  of  all  kinds.  Reno,  521  U.  S.  at  870.  Thus,  the  Internet  receives  the  full 
 level  of  First  Amendment  protection  applicable  to  the  print  media. 

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 Because  political  candidates  and  their  messages  are  not  in  any  way  barred  from  the  airwaves, 
 and  the  public  can  easily  receive  political  information  through  an  ever-  increasing  variety  of 
 media,  Red  Lion  cannot  properly  be  regarded  as  providing  a  justification  for  regulations  (such  as 
 free  air  time  requirements)  intruding  on  the  editorial  discretion  and  First  Amendment  rights  of 
 broadcasters.  See  id.  at  389-  90. 
 Indeed,  NAB  also  wishes  to  emphasize  that  the  Supreme  Court  (even  in  cases  affording 
 broadcasters  a  lesser  degree  of  constitutional  protection  due  to  the  presumed  scarcity  of 
 spectrum)  has  overturned  regulatory  schemes  that  tread  unnecessarily  on  the  editorial  discretion 
 of  broadcasters.  07  The  Supreme  Courts  upholding  of  Section  312(  a)(  7)  of  the  Communications 
 Act  concerning  access  of  federal  candidates  to  broadcasting  facilities  does  not,  moreover,  imply 
 that  a  free  time  mandate  would  be  similarly  approved.  The  Courts  opinion  in  CBS,  Inc.  v.  FCC, 
 453  U.  S.  367  (1981)  relied  heavily  on  the  Red  Lion  scarcity  doctrine  which,  as  shown  above,  is 
 subject  to  increasing  doubt  as  authority  for  any  content  regulation.  In  addition,  the  Court 
 stressed  the  discretion  that  licensees  retained  under  the  reasonable  access  provision,  and  it 
 upheld  Section  3  12(  a)(  7)  against  a  First  Amendment  challenge  only  because  it  found  that  the 
 statutory  right  of  access  had  properly  balance[  d]  the  First  Amendment  rights  of  federal 
 candidates,  the  public,  and  broadcasters.  Id.  at  397  (emphasis  added).   

 lo7  See,  e.  g.,  League  of  Women  Voters,  468  U.  S.  at  378  (statute  forbidding  noncommercial 
 educational  broadcast  stations  that  receive  grants  from  the  Corporation  for  Public  Broadcasting 
 from  engaging  in  editorializing  was  found  unconstitutional,  as  it  unjustifiably  abridged  important 
 journalistic  freedoms);  Columbia  Broadcasting  System,  412  U.  S.  at  110-  126  (Court  affirmed 
 Commissions  refusal  to  require  broadcast  licensees  to  accept  all  paid  editorial  advertisements, 
 as  such  requirement  would  intrude  unnecessarily  on  editorial  discretion  of  broadcasters  and  risk 
 an  enlargement  of  government  control  over  broadcast  content). 

 lo*  A  reviewing  court  might  well  take  a  less  favorable  view  of  the  Commission,  without  explicit 
 statutory  direction  from  Congress,  attempting  to  go  further  and  instituting  a  free  air  time 
 proposal. 

 61 
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 CBS  v.  FCC  further  involved  paid  time  and  access  rights  that  were  limited  both  in  terms 
 of  the  number  of  candidates  and  by  the  limitation  to  access  that  was  reasonable  in  light  of  the 
 needs  of  candidates  and  broadcasters.  Id.  at  396  (emphasizing  that  Section  312(  a)(  7)  created  a 
 limited  right  to  reasonable  access).  Free  time  proposals  would  radically  alter  that  balance. 
 Rather  than  having  to  choose  candidate  paid  spots  over  commercial  paid  spots,  broadcasters 
 would  be  forced  to  subsidize  political  campaigns.  Particularly  for  stations  whose  service  areas 
 may  include  several  states,  the  amount  of  free  time  that  candidates  could  demand  might  be  far 
 greater  than  now  required  under  the  reasonable  access  provision.  This  case  therefore  provides 
 little  support  for  assuming  that  a  Commission  rule  (especially  as  opposed  to  a  congressional 
 statute)  requiring  free  time  would  be  upheld. 
 Finally,  NAB  wants  to  address  briefly  other  theories  that  might  be  advanced  to  justify  a 
 free  time  mandate.  First,  it  may  be  asserted  that  broadcasters  acceptance  of  governmental 
 regulation  (even  of  content)  is  a  fair  exchange  (or  quid  pro  quo)  for  their  ability  to  use  the 
 airwaves.  The  Commission  has  previously  explicitly  rejected  this  argument,  [  t]  o  the  extent  .  .  . 
 that  such  an  exchange  allows  the  government  to  engage  in  activity  that  would  be  proscribed  by  a 
 traditional  First  Amendment  analysis.  Syracuse  Peace  Council,  2  FCC  Red  at  5055.  As  the 
 Commission  explained,  [  i]  t  is  well  established  that  government  may  not  condition  the  receipt  of 
 a  public  benefit  on  the  relinquishment  of  a  constitutional  right.    Thus,  even  assuming  that 
 broadcasters  have  in  fact  received  a  public  benefit  by  the  temporary  loan  of  an  additional  six 
 MHz  of  spectrum  for  the  digital  transition  (which,  as  explained  in  Section  I.  D.  above,  is 

 lo9  Syracuse  Peace  Council,  2  FCC  Red  at  5055,  5068  (citing  Perry  Sinderman,  408  U.  S.  v.  593 
 (1972);  Sherbert  v.  Vemer,  374  U.  S.  398  (1963);  and  Shapiro  v.  Thompson,  394  U.  S.  618 
 (1969)). 

 62 
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71
 doubtful),  the  receipt  of  this  loaned  spectrum  in  no  way  justifies  the  relinquishment  of  their  First 
 Amendment  rights.]   
 It  may  also  be  contended  that  broadcasters  have  limited  First  Amendment  protections  that 
 would  not  be  infringed  by  a  free  time  mandate  because  they  have  few  rights  with  regard  to 
 licensed  spectrum,  which  is  owned  by  the  public.  From  this  supposed  public  ownership  of 
 spectrum,  proponents  of  broadcast  regulation  attempt  to  imply  that  the  government,  like  any 
 other  property  owner,  is  essentially  unconstrained  by  the  constitution  in  its  control  over  the 
 spectrum.  As  explained  in  detail  in  the  monograph  attached  as  Appendix  A,  this  public 
 ownership  assertion  is  practically  and  legally  hollow.  BeVier,  Free  TV  at  3.  Indeed,  this 
 ownership  assertion  is  no  more  persuasive,  factually,  than  would  be  an  argument  that  because 
 newspaper  newsracks  are  almost  always  on  public  property  --  and  are  as  essential  to  newspaper 
 distribution  as  is  spectrum  to  the  broadcasters  -  the  newspapers  thereby  give  up  editorial  control 
 to  some  form  of  government  regulation.    But  even  assuming  that  broadcast  spectrum  could  or 
 should  be  regarded  as  public  domain,  the  Supreme  Court  has  specifically  held  that  this  fact 
 does  not  resolve  the  sensitive  constitutional  issues  inherent  in  deciding  whether  a  particular 

 lo  See  Smolla,  Free  Airtime  for  Candidates  and  the  First  Amendment  at  l-  4  (The  Media  Institute 
 1998)  (attached  as  Appendix  B),  for  a  further  discussion  of  unconstitutional  conditions. 

 l  DeVore,  The  Unconstitutionality  of  Federally  Mandated  Free  Air  Time  at  3  n.  5  (presented 
 at  Advisory  Committee  meeting  on  March  2,  1998)  (attached  as  Appendix  C).  See  also 
 Robinson,  Electronic  First  Amendment  at  911-  12  (  The  reference  to  public  ownership  of  the 
 spectrum  is  a  common  locution,  but  it  has  generally  been  used  as  simply  another  way  of 
 articulating  the  scarcity  argument  -  the  notion  being  that  because  the  frequencies  were  scarce,  their  use  had  to  be  licensed  and  the  licensing  power  was  tantamount  to  public  ownership  of 

 public  property.  As  a  mere  trope  for  regulatory  power,  the  reference  to  public  property  is 
 innocuous:  but  if  it  is  allowed  to  float  off  by  itself  as  an  independent  ground  of  regulation,  it 
 becomes  a  mischievous  confusion.);  Time  Warner  Entertainment,  105  F.  3d  at  727  (Williams,  J., 
 dissenting  from  denial  of  rehearing  en  bane)  (  There  is,  perhaps,  good  reason  for  the  [Supreme] 
 Court  to  have  hesitated  to  give  great  weight  to  the  governments  property  interest  in  the 
 spectrum.). 

 63 
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72
 licensee  action  is  subject  to  First  Amendment  restraints.  Columbia  Broadcasting  System,  412 
 U.  S.  at  115.  Accordingly,  the  mere  claim  that  the  public  owns  broadcast  spectrum  clearly 
 cannot  be  regarded  as  stripping  broadcasters  of  their  First  Amendment  rights  or  otherwise 
 justifying  the  imposition  of  content  regulations  on  broadcasters.  12 
 In  evaluating  the  First  Amendment  standards  that  should  be  applied  to  the  broadcast 
 media,  NAB  agrees  with  the  Commissions  earlier  conclusion  that  such  evaluation 
 should  not  focus  on  the  physical  difirences  between  the  electronic  press  and  the 
 printed  press,  but  on  thefinctional  similarities  between  these  two  media  and  upon 
 the  underlying  values  and  goals  of  the  First  Amendment.  We  believe  that  the  function 
 of  the  electronic  press  in  a  free  society  is  identical  to  that  of  the  printed  press  and  that, 
 therefore,  the  constitutional  analysis  of  government  control  of  content  should  be  no 
 different. 

 Syracuse  Peace  Council,  2  FCC  Red  at  5055.  The  Supreme  Court  has  similarly  emphasized  the 
 crucial  societal  role  of  news  broadcasters  and  publishers,  in  a  case  addressing  an  exemption  for 
 media  corporations  from  a  generally  applicable  regime  of  political  campaign  reform.  13  Given 
 the  similar  functions  of  all  media  in  a  democratic  political  system,  and  the  deficiencies  of  the 
 scarcity  doctrine  traditionally  utilized  to  justify  lesser  constitutional  protections  for  only  the 
 electronic  media,  NAB  believes  that  a  free  air  time  requirement  should  be  regarded  as  a  violation 
 of  broadcasters  First  Amendment  rights. 

 I2  Even  in  a  case  involving  a  state-  owned  public  television  station,  the  Supreme  Court  has  held 
 that  a  broadcaster  has  the  journalistic  discretion  to  exclude  an  independent  political  candidate 
 from  a  candidate  debate.  Arkansas  Educational  Television  Commission  v.  Forbes,  523  U.  S.  666 
 (1998). 

 I3  In  Austin  v.  Michigan  Chamber  of  Commerce,  494  U.  S.  652,668  (1990),  the  Supreme  Court  examined  a  Michigan  law  restricting  the  use  of  corporate  funds  for  expenditures  in  support  of  or 
 in  opposition  to  candidates  in  elections  for  state  office.  Media  corporations  were  specifically 
 exempted  from  this  law.  The  Supreme  Court  not  only  determined  that  this  exemption  was 
 allowable,  but  appeared  to  indicate  that  the  law  would  not  have  been  upheld  had  it  been  applied 
 to  the  media.  This  case  stressed  the  unique  societal  role  of  the  press,  explaining  that  the  media 

 64 
 __..-._  _.  -...  _-_-.-.~  I  ._,._  --  .._  ---  ..-----.  I  _I..  -  -II-  - 
73
 III.  CONCLUSION 
 After  carefully  examining  the  array  of  new  or  expanded  public  interest  duties  suggested 
 in  the  Notice  for  DTV  broadcasters,  NAB  concludes  that  these  additional  obligations  are 
 generally  not  justified,  for  two  primary  reasons.  First,  nothing  inherent  in  digital  technology 
 requires  a  different  or  more  expansive  public  interest  analysis  than  that  currently  applied  to 
 analog  television  broadcasters.  Second,  digital  television  will  not  benefit  broadcasters  to  such  a 
 greater  extent  than  their  analog  channels  that  some  additional  recompense  in  the  form  of 
 increased  public  interest  duties  should  be  imposed.  Moreover,  while  many  of  the  specific  goals 
 identified  in  the  Notice,  such  as  encouraging  diversity  or  promoting  democracy  (see  id.  at  g[  q[  33- 
 34)  might  be  worthy,  they  are  essentially  unrelated  to  digital  broadcasting.  Expanding  the  public 
 interest  obligations  of  DTV  broadcasters  will  therefore  not  materially  advance  those  goals, 
 particularly  in  a  cost  effective  manner.    I4  NAB  also  contends  that  the  formulation  of 
 appropriately  tailored  and  cost  effective  public  interest  requirements  is  unlikely  to  be 
 accomplished  during  the  current,  preliminary  stage  of  the  digital  transition. 
 In  addition,  many  of  the  proposals  in  the  Notice  appear  contrary  to  the  Commissions 
 evolving  interpretation  of  the  public  interest  standard,  which  shows  a  clear  pattern  of  decreasing 
 regulation  as  the  number  of  information  sources  increases.  For  example,  following  the  vast 
 increase  in  the  number  of  radio  and  television  stations  in  the  1960s  and  1970s,  the  Commission 
 in  the  1980s  eliminated  much  of  its  detailed  broadcasting  rules  (such  as  ascertainment  and 

 serves  and  was  designed  to  serve  as  a  powerful  antidote  to  any  abuses  of  power  by 
 governmental  officials. 

 14  [  I]  t  is  not  sufficient  for  a  regulation  to  articulate  desirable  goals.  The  regulation  must 
 promise  to  materially  advance  those  goals,  and  whatever  costs  it  imposes  must  be  outweighed  by 
 the  benefits  the  regulation  creates;  furthermore,  if  the  goals  could  be  achieved  in  a  less  costly 
 manner,  then  the  latter  should  be  the  approach  selected.  T.  Krattenmaker  and  L.  Powe, 
 Regulating  Broadcast  Programming  at  309  (1994). 

 65 
74
 numerical  guidelines  for  non-  entertainment  programming).  Given  the  explosion  of  non- 
 broadcast  media  in  recent  years  (including  various  multichannel  video  programming  providers 
 and  the  Internet),  NAB  posits  that  there  is  less  need  than  ever  for  the  Commission  to  increase  its 
 regulation  of  the  media  marketplace.  In  particular,  the  transition  to  digital  broadcasting  -with 
 its  potential  for  increasing  programming  and  other  service  options  -would  appear  to  justify  a 
 further  decrease  in  Commission  regulation,  rather  than  new  and  intrusive  public  interest 
 requirements.  In  sum,  in  an  era  of  digital  abundance,  NAB  believes  that  the  Commission  should 
 rely  to  a  greater  extent  on  the  discretion  of  broadcasters  and  the  increasingly  competitive  media 
 marketplace  to  insure  service  to  the  public. 
 Finally,  NAB  reemphasizes  that  convergence  in  telecommunications  technology  has 
 made  regulatory  distinctions  between  various  media  less  precise,  thereby  undermining  the 
 rationale  for  the  continued  distinct  treatment  of  broadcasting.  Given  the  lessening  distinctions 
 between  various  types  of  media  and  the  increasing  competition  between  traditionally  distinct 
 service  providers,  the  Commission  should  refrain  from  imposing  expansive  new  public  interest 
 requirements  on  DTV  broadcasters  that  are  not  applicable  to  other  service  providers  against 
 whom  broadcasters  will  be  competing,  now  and  in  the  future.  Not  only  should  the  Commission 
 refrain  from  subjecting  broadcasters  to  unequal  and  burdensome  public  interest  obligations  as  a 
 matter  of  policy,  but  NAB  reminds  the  Commission  that  the  constitutional  basis  for  expanding 
 content-  related  public  interest  obligations  is  uncertain  at  best.  Thus,  based  on  the  policy  and 
 legal  grounds  discussed  in  detail  in  these  comments,  DTV  broadcasters  should  be  accorded  the 

 66 
 -.._---___  -  -.--.-  -- 
75
 discretion  to  develop  and  offer  innovative  programming  and  other  services  they  believe  will  best 
 meet  the  needs  of  the  communities  they  serve. 

 Respectfully  submitted, 
 NATIONAL  ASSOCIATION  OF 
 BROADCASTERS 
 1771  N  Street,  NW 
 Washington,  DC  20036 
 (202)  429-  5430 

 _  _..  /  *  ,4  c  t  x  -7L  p-  d 
 j 
 ,  /cL-  vLG~-  7+-  k=  Ly 
 Henry  L.  Baumann 
 Jack  N.  Goodman 
 Jerianne  Timmerman 

 Kelly  T.  Williams 
 NAB  Science  and  Technology 

 March  27,200O 
76
 APPENDICES 
77
 APPENDIX  A 
 .__  .  __  ._  .,.-.  -_-.  .---1  - 
 .,,.  ._  ----___  -~-. 
78
 Is  Free  TV  for  Federal  Candidates  Constitutional? 
 Lillian  R.  BeVier 

 The  AEI  Press 
 Publisher  for  the  American  Enterprise  Institute 
 WASHINGTON,  D.  C.  1998 
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 1998  by  the  American  Enterprise  Institute  for  Public  Policy  Research,  Washington,  D.  C.  All  rights  reserved.  No 
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 Is.  Free  TV  for  Federal 
 Candidates  Constitutional? 

 Lillian  R.  BeVier 

 IN  THE  MONTHS  following  the  1996  election  campaign, 
 calls  for  reform  have  filled  the  air.  A  spate  of  ambitious  new  schemes  to  regulate  campaign  finance  practices  have 

 been  advanced.  Those  schemes  often  include  a  provision  that  would  reqiire  broadcasters  to  provide  free  TV  time  to 
 candidates  for  federal  office.  Proponents  of  free  TV  be- 
 moan  the  high  cost  of  political  campaigns  in  general,  and 
 of  television  advertising  in  particular.  They  express  dismay 
 about  negative  campaigning;  they  worry  about  citizens 
 losing  confidence  in  the  political  process  and  in  elected 
 officials;  they  think  that  the  electorate  is  hungry  for  straightforward  information  and  that  this  hunger  can  be 

 satisfied  by  giving  candidates  opportunities  to  appear  on 
 television  in  prime  time.  This  monograph  offers  a  critique  of  the  free  TV  propos- 

 als.  It  discusses  their  constitutionality  and  their  wisdom  as 
 policy.  The  proposals  have  come  in  a  variety  of  regulatory 
 packages,  all  of  which  are  based  on  a  common  rationale 
 and  pursue  common  strategies.  Thus,  the  analysis  that  fol- 
 lows  focuses  on  the  following  generic  conceptual  outline  of 
 the  free  TV  proposals: 

 l  Broadcasters  must  donate  a  certain  number  of  prime- 
 time  hours  to  be  used  by  candidates  for  federal  office 
 during  each  election  cycle. 

 l  Candidates  accepting  the  free  time  must  agree  to  certain 
 conditions  with  regard  to  their  use  of  the  time:  they 
80
 2  Is  Free  TV  Constitutional? 
 must,  for  example,  appear  in  person;  or  they  must 
 directly  face  the  camera;  or  they  must  appear  for  a  specified  amount  of  time;  or  they  must  agree  to  limit 

 their  own  campaign  spending  or  raise  money  for  their  campaigns  from  particular  kinds  of  citizens. 

 Thus,  the  essence  of  free  TV  proposals  consists  of  two 
 features:  broadcasters  provide  time  without  being  compen- 
 sated,  and  the  candidates  who  use  it  conform  their  use  of  it  to  a  prescribed  format. 

 Assessing  the  constitutionality  of  proposals  with  features  such  as  those  is  far  from  a  straightforward  task  of  doctrinal 
 analysis.  Assessing  their  wisdom  as  a  policy  matter  is  also  somewhat  an  exercise  in  speculation  about  imponderables. 
 For,  despite  having  superficial  similarities  to  measures  that 
 have  been  on  the  books  for  years,    the  free  TV  proposals 
 embody  a  strategy  that  differs  in  kind  from  anything  that 
 has  been  tried  before.  A  brief  road  map  will  help  the  read- 
 er  chart  a  course  through  the  analysis  that  follows. 
 As  far  as  the  Constitution  is  concerned,  the  free  TV 
 proposals  do  not  fit  perfectly  into  a  single  doctrinal  catego- 
 ry.  It  is  not  even  obvious  whether  the  First  or  the  Fifth  Amendment  presents  the  greater  challenge  to  the  proposals 

 supporters.  And  with  regard  to  the  First  Amendment,  no  one  rule  provides  a  complete  answer,  nor  does  one  method- 
 ology  chart  the  obviously  correct  analytical  path.  Thus,  the 
 constitutional  analysis  will  have  something  of  a  two-  steps- 

 I.  For  example,  section  315  of  the  Communications  Act  of  1934  pro- 
 vides  that  broadcasters  must  provide  candidates  equal  opportunities  to  gain 
 airtime.  And  section  312(  a)(  7),  held  constitutional  in  CBS  v.  FCC,  453 
 U.  S.  367  (1983),  grants  candidates  the  right  IO  purchase  airtime  at  the 
 broadcasters  lowest  unit  charge.  For  a  brief  discussion  of  the  history  of 
 political  broadcast  regulation,  see  THOMAS  G.  KRA~  NMAKER  &  LUCAS 
 A.  POWE,  JR..  REGULATING  BROADCAST  PROGRAMMING  66-  69  (MIT 
 Press  &  AEI  Press  1994). 

 Lillian  R.  BeVier  3 
 forward-  one-  step-  back  quality.  It  will  assess  the  proposals 
 in  terms  of  the  several  apparently  relevant  doctrinal  catego-  ries,  noting  the  aspects  of  free  TVs  fundamental  regulatory 

 strategy  that  render  so  many  of  the  precedents  an  imperfect 
 fit.  This  monograph  begins  by  asking,  Whose  Property  Is 

 This?  Proponents  of  broadcast  content  regulation  in  gen- 
 eral,  and  of  the  free  TV  proposals  in  particular,  gain  con-  siderable  rhetorical  momentum  from  the  explicit  claim  that 

 the  public  owns  the  broadcast  spectrum.  From  public  ownership,  they  imply,  follows  the  conclusion  that  the 
 governments  regulatory  hand  is  for  all  practical  purposes  free  from  constitutional  constraints:  the  government  as 
 owner  is  as  free  as  any  other  owner  would  be  to  decide 
 how  to  use  its  property.  First,  I  critically  examine  the 
 public  ownership  assertion,  finding  it  conceptually  hollow. 
 Then  I  evaluate  the  bcoadcasters  competing  claim  that  broadcast  licensees  have  the  functional  equivalent  of  prop- 

 erty  rights  in  their  licenses  and  that  the  free  TV  mandates 
 accordingly  should  be  held  to  be  the  constitutional  equiva- 
 lent  of  a  taking  of  those  rights  for  public  use,  for  which 
 compensation  should  be  paid.  Next,  I  consider  the  First  Amendment  issues  that  are 

 implicated  in  free  TVs  attempt  to  control  Political  Speech 
 and  the  Television  Set.  The  analysis  critically  examines 
 the  current  constitutional  regime,  which  entails  a  different 
 set  of  First  Amendment  constraints  on  the  regulation  of  the 
 broadcast  media  from  those  that  obtain  for  the  rest  of  the 
 population,  including  the  print  media.  In  addition,  the 
 analysis  evaluates  the  free  TV  proposals  in  terms  of  the 
 precedents  conventionally  thought  to  be  relevant  in  the 
 particular  context  of  broadcast  regulation.  I  then  analyze 
 the  proposals  on  the  assumption  that  broadcast  regulation 
 does  not  represent  a  unique  First  Amendment  context.  I 
 assume  that  the  First  Amendment  rights  of  broadcasters  are  the  same  as  those  of  other  citizens,  and  I  evaluate  free 
81
 4  Is  Free  TV  Constitutional? 
 TVs  conformity  with  the  main  body  of  First  Amendment 
 jurisprudence. 
 The  monograph  then  briefly  summarizes  several  promi- 
 nent  free  TV  proposals.  I  assess  their  constitutionality  and 
 evaluate  their  policy  agenda.  I  conclude  by  expressing  the 
 judgment  that  the  proposals  are  constitutionally  problemat-  ic,  that  they  would  pursue  illegitimate  aims,  that  they 

 would  in  any  event  be  ineffectual,  and,  most  important, 
 that  their  adoption  would  run  counter  to  deeply  embedded  American  values. 

 Whose  Property  Is  This? 
 An  Empty  Theme  and  Its  Variations.  Broadcast  regulator 
 wannabes  have  found  the  metaphor  of  public  ownership  of 
 the  airwaves*  fertile  ground  for  their  claims  to  regulatory  legitimacy.  The  metaphor  of  public  ownership  has  yielded 

 a  number  of  variations,  each  of  which  comes  with  its  own  more  or  less  promising  doctrinal  apparatus.  The  public 
 trust  variation  embodies  the  idea  that  the  public  is  the 
 beneficial  owner  for  whom  the  licensee  acts  as  trustee  of 
 the  spectrum  rights.  In  the  specific  First  Amendment  con-  text,  which  I  shall  subsequently  consider,  there  is  the  pub- 

 lic  forum  variation,  which  embodies  the  notion  that  the 
 public  remains  the  owner  of  the  property  that  the  broad- 
 cast  license  represents.  Finally,  there  is  the  license  as  conditional  grant  theory,  which  embodies  the  notion  that 

 the  government  as  owner  may  condition  the  transfer  of 
 its  property  on  the  grantees  agreement  to  fulfill  certain 
 government-  imposed  obligations.  None  of  those  theories  provides  convincing  support  for  the  regulators  claims. 

 Each  nevertheless  has  sufficient  superficial  plausibility  to  warrant  examination  here. 
 In  evaluating  the  theories,  it  is  important  to  keep  in 

 2.  47  U.  S.  C.  $  301  (1982). 

 Lillian  R.  BeVier  5 
 mind  that  regulators,  politicians,  broadcasters,  and  scholars 
 have  become  accustomed  to  the  existence  of  a  broadcast 
 content  regulatory  regime  in  principle.  Two  of  the  most 
 astute  and  skeptical  commentators  on  the  regime  have  even  suggested  that  [  i]  t  is  too  late  to  argue  that  the  govern- 

 ments  claim  to  own  the  airwaves  is  invalid.  3  According- 
 ly,  a  skeptic  of  the  regime  confronts  an  exceedingly  low 
 threshold  of  plausibility  with  respect  to  arguments  prof- 
 fered  in  its  defense.  The  regulators  arguments,  especially 
 those  grounded  on  public  ownership,  are  like  clouds.  From  a  distance  they  seem  solid  and  impenetrable.  Up  close  they 

 turn  out  to  be  no  more  substantial  than  dense  fog,  vaporous 
 yet  still  capable  of  hopelessly  obscuring  ones  vision. 
 Also  note  that  the  metaphor  of  public  ownership  serves 
 regulators  on  more  fronts  than  the  strictly  analytical.  In  the 
 first  place,  it  serves  the  significant  rhetorical  function  of 
 suppressing  knowledge  of  what  is  really  going  on  and  changing  the  nature  and  content  of  the  debate.  As  Professor 

 Glen  0.  Robinson  has  aptly  put  it, 
 the  public  ownership  claim  here  is  a  trope,  a  way  of  reifying  the  governments  claim  to  regulatory 
 authority.  The  spectrum  itself  is  simply  a  phenome-  non  produced  by  the  transmission  of  electromag- 
 netic  energy  through  space.  .  .  .  [T]  o  say  that  [the  government]  owns  the  airwaves  is  merely  to  give 
 a  property  label  10  its  regulatory  powers.  .  .  .  In  common  discourse  the  assertion  of  ownership  is  the 
 assertion  of  a  power  that  demands  no  further  expla- 
 nation.  When  it  is  said  that  the  government  (or  the  individual)  can  do  something  with  its  property 

 because  it  owns  it,  it  is  said  by  way  of  ending  a 
 conversation  about  the  source  of  power  and  the  reasons  for  acting. 

 3.  KRATTENMAKER  &  POWE,  sup  note  I.  at  227. 
 4.  Glen  0.  Robinson,  Specrrurn  Property  Law  101.  41  J.  L.  &  &TON. 
82
 6  Is  Free  TV  Constitutional? 
 In  the  second  place,  the  public  ownership  metaphor  serves  to  derail,  before  they  leave  the  station,  the  broad- 

 casters  claims  that  the  free  TV  proposals  would  amount  to 
 a  taking  of  their  property  for  which  they  would  be  enti- 
 tled  to  compensation.  s  The  broadcasters  takings  cIaim,  constitutionally  independent  of  any  First  Amendment  argu- 

 ments,  is  not  grounded  on  the  assertion  of  a  right  to  be 
 editorially  free  from  government  regulation  of  content. 
 Rather,  the  takings  claim  rests  on  the  assertion  that  the  free 
 TV  requirement  would  constitute  a  coerced  and  uncompen- 
 sated  trmsfer  from  the  broadcasters  to  the  candidates  of  a 
 valuable  property  right.  Thus  if  the  free  TV  proponents  can 
 successfully  argue  that  the  broadcasters  do  not  in  fact 
 own  the  rights  conferred  on  them  by  their  licenses,  they 
 can  secure  a  substantial  footing  in  their  effort  to  discredit  the  broadcasters  takings  claim. 

 All  this  having  been  said,  however,  it  is  worthwhile 
 pointing  out  that  the  claim  of  public  ownership  has  been 
 credibly  claimed  to  have  been  based  from  its  very  inception  in  the  Radio  Act  of  1927  on  a  deeply  misleading  picture  of 

 the  need  for  regulation.  Thomas  W.  Hazlett,  the  economist,  has  argued  that  in  the  mid-  1920s  government  officials  made 
 and  executed  a  conscious  decision  to  prevent  the  emergence 
 of  a  market  for  broadcast  spectrum  rights.  6  They  desired 
 chaos,  and  chaos  ensued.  Congress  responded  by  enacting 

 (forthcoming  Oct.  1998)  (emphasis  in  original). 
 5.  See,  e.  g.,  Spectrum  Management  Policy:  Hearings  Before  the  Sub- 
 conun.  on  Telecommunications.  Trade,  and  Consumer  Protection  of  the 
 House  Comm.  on  Commerce.  IOSrh  Cong.,  1st  Sess.  46  (1997)  (testimony 
 of  FCC  Chairman  Reed  E.  Hundt)  ([  TJhe  spectrum  belongs  to  the 
 people.  Those  who  characterize  public-  interest  obligations  as  encroach- 
 ments  on  licensees  rights  ignore  the  fact  that  licensees  use  precious  public 
 property  for  their  own  private  gain.)  [hereinafter  Spectrum  Management 
 Policy] 
 6.  Thomas  W.  Hazlett,  The  Rarionality  of  U.  S.  Regulation  of  the 
 Broadcost  Spectrum,  33  J.  L.  &  ECON.  133  (1990). 

 Lillian  R.  BeVier  7 
 the  comprehensive  regulatory  scheme  embodied  in  the  1927 
 act.  If  the  story  Hazlett  recounts  is  correct,  notes  J.  Grego- 
 ry  Sidak,  then  Congress  in  1927  enacted  the  most  intru- 
 sive  regulatory  controls  to  that  time  imposed  on  the  use  of 
 spectrum-  not  in  response  to  genuine  market  failure,  but  in 
 response  to  conscious  efforts  by  the  federal  government  to  prevent  a  market  from  functioning.    The  claim  of  public 

 ownership  in  the  1927  act  was  made  in  the  face  of  long- 
 standing  prior  use  of  the  spectrum  by  homesteaders, 
 some  of  whom  challenged  the  act  as  a  taking.  Although 
 their  particular  claims  lost,*  the  implications  of  the  govern- 
 ments  assertion  of  ownership  are  on  reflection  too  far- 
 reaching  to  regard  the  assertion  as  anything  other  than  an 
 exercise  of  political  muscle.  Contemplate,  for  example,  the 
 outcry  that  would  occur  if  Congress  were  to  decide  that  it 
 owns  the  air  and  proceeded  to  demand  that  all  communi- 
 cation  traveling  through  the  air  conform  to  government 
 regulations.  9 

 Public  Trustee.  In  Red  Lion  Broadcasting  Co.,  Inc.  v.  FCC,  the  Court  found  significant  conceptual  support  for 
 limiting  broadcasters  First  Amendment  rights  in  the  idea  that  broadcasters  are  not  the  beneficial  owners  of  the  rights 
 that  their  licenses  confer  upon  them.  Instead,  the  public  is 
 the  beneficial  owner:  It  is  the  right  of  the  viewers  and 
 listeners,  not  the  right  of  the  broadcasters,  which  is 

 7.  J.  GREGORY  SIDAK.  FOREIGN  INVESTMENT  IN  AMERICAN  PELC- 
 COMMUNICATIONS  60  (University  of  Chicago  Press  1997). 
 8.  White  v.  Johnson,  282  U.  S.  367  (1931);  Trinity  Methodist  Church. 
 South  V.  FRC,  62  F.  2d  850  (D.  C.  Cir.  1932).  cert.  denied,  288  U.  S.  599 
 (1933);  City  of  New  York  v.  FRC,  36  F.  2d  I  I5  (1929),  cert.  denied,  281 
 U.  S.  729  (1930);  United  States  v.  Gregg,  5  F.  Supp.  848  (S.  D  fex 
 1934). 
 9.  Cf.  SIDAK.  supra  note  7,  at  309. 
 10.  395  U.  S.  367  (1969). 
83
 8  Is  Free  TV  Constitutional?  I 
 paramount.  The  broadcasters,  on  that  theory,  are  merely  trustees  who  owe  a  duty  to  implement  this  right  of  the 

 public  to  receive  suitable  access  to  socia1,  political,  aesthet- 
 ic,  moral,  and  other  ideas  and  experiences.  12  The  trust  imagery  packs  considerable  rhetorical  punch. 

 Note,  for  example,  one  of  its  early  invocations,  in  which 
 then  D.  C.  Circuit  Judge  Warren  Burger  used  it  to  prop  up  his  courts  holding  that  conferred  standing  on  citizens  in 

 Federal  Communications  Commission  proceedings: 
 A  broadcaster  seeks  and  is  granted  the  free  and 
 exclusive  use  of  a  limited  and  valuable  part  of  the  public  domain;  when  he  accepts  that  franchise  it  is 

 burdened  by  enforceable  public  obligations.  A  newspaper  can  be  operated  at  the  whim  or  caprice 
 of  its  owners;  a  broadcast  station  cannot.  After 
 nearly  five  decades  of  operation  the  broadcast 
 industry  does  not  seem  to  have  grasped  the  simple 
 fact  that  a  broadcast  license  is  a  public  trust  subject 
 to  termination  for  breach  of  duty.) 

 Advocates  of  free  TV  for  candidates  deploy  the  public  trustee  concept  to  their  great  rhetorical  advantage.  In  view 
 of  the  fact  that  broadcast  licenses  are  extremely  valuable 
 and  in  the  past  broadcasters  have  received  them  at  a  price  of  zero,  one  can  perhaps  understand  the  intuitive  appeal  of 

 the  claim  that  they  should  be  burdened  with  enforceable  public  obligations, 
 somewhat  analogous  to  those  owed  by  a  private  trustee  to  the  beneficiaries.* 

 1  I.  Red  Lion.  395  U.  S.  at  390. 
 12.  Id. 
 13.  Office  of  Communication  of  the  United  Church  of  Christ  Y.  FCC, 
 359  F.  2d  994,  1003  (D.  C.  Cir.  1966). 
 14.  Many  commentators,  politicians,  and  supporters  of  free  TV  have  made  explicit  a  supposed  connection  between  the  claim  that  broadcasters 

 have  an  obligation  to  provide  free  TV  time  to  candidates  and  broadcasters 
 receipt  in  April  1997  of  a  second  channel  for  development  of  digital  tele- 

 Lillian  R.  BeVier  9 
 The  public  trustee  concept  has  superficial  plausibility 
 because  it  draws  on  a  well-  developed  and  relatively  famil-  iar  body  of  law  that  seems  precisely  designed  to  provide  a 

 cloak  of  justification  for  the  regtilators  plans.  The  law  of  trusts  permits  legal  and  beneficial  ownership  to  be  separat- 
 ed,  subjects  the  legal  owner  (the  trustee)  to  a  fiduciary  duty 
 to  act  solely  in  the  beneficiaries  interest,  and  penalizes  the 
 trustee  both  for  acts  that  fail  to  maximize  the  beneficiaries 
 interests  and  for  those  that  feather  his  own  nest.  The  fidu- 
 ciary  notion  appears,  as  Thomas  G.  Krattenmaker  and  Lucas  A.  Powe,  Jr.,  suggest,  to 

 fit  broadcasting  like  a  glove.  Broadcasters  were 
 granted  a  wonderful  corpus:  the  free  and  exclu- 
 sive  use  of  a  limited  and  valuable  part  of  the  public 
 domain.  The  beneficiaries  of  the  trust  were  the 
 viewers  and  listeners.  They  were  owed  duties. 
 Those  would  include  compliance  with  applicable 
 laws,  but  could  include  more.  The  broadcaster- 
 trustee  was,  after  all,  a  fiduciq  and  therefore  was 
 bound  to  act  in  the  interests  of  the  beneficiaries, 
 even  if  there  were  no  applicable  rules  on  a  specific 
 subject.  I5 

 On  more  searching  examination,  the  public  trustee  concepts  plausibility  turns  out  to  be  illusory,  its  intuitive 
 appeal  unearned.  Principally,  that  is  so  because  the  power 
 of  the  analogy  to  persuade  depends  on  similarities  between  broadcasters  and  private  trustees  that  do  not  in  fact  obtain. 

 In  the  first  place,  instead  of  a  corpus  of  property  to  which 
 a  trustees  duty  might  attach,  there  is  only  a  metaphor  of 
 spectrum  ownership.  That  objection  might  seem  overly  for-  malistic  or  beside  the  point:  a  broadcast  license  does  after 

 vision.  See,  e.  g.,  Leslie  Wayne.  Broadcasr  Lobby  Eicek  at  rhe  Wushin~- 
 ton  Power  Game,  N.  Y.  TIMES,  May  5,  1997,  at  Dl 
 15.  KRAITENMAKER  &  POWE,  supra  note  1,  at  164  (footnote  omitted). 
84
 10  Is  Free  TV  Constitutional? 
 all  embody  a  bundle  of  rights  and  thus  has  as  much 
 claim  to  be  conceived  of  as  a  trust  corpus  as  would  any  intangible  property.  I6  In  the  second  place,  though,  the  fidu- 

 ciary  duties  by  which  the  acts  of  private  trustees  are  gov-  erned  are  highly  elaborated  and,  while  perhaps  somewhat 
 indeterminate  at  the  margins,  quite  clearly  specified.  There  is,  moreover,  little  room  for  argument  about  the  nature  and 
 source  of  the  trustees  duties,  about  their  enforceability,  or 
 about  who  has  standing  to  object  to  their  breach.  Attempts 
 to  specify-  to  give  concrete  meaning  to-  the  nature  of  broadcasters  fiduciary  obligations,  by  contrast,  have  been 

 almost  completely  unsuccessful.  The  Supreme  Court  has  come  up  with  criteria  no  more  specific  than  those  loosely 
 embodied  in  the  twin  assertions  that  the  broadcaster  has 
 obligations  to  present  those  views  and  voices  which  are 
 representative  of  his  community  and  which  would  other-  wise,  by  necessity,  be  barred  from  the  airwaves  and  that 

 the  broadcasters  obligations  are  the  correlatives  of  the  right  of  the  public  to  receive  suitable  access  to  social,  poli- 
 tical,  aesthetic,  moral,  and  other  ideas  and  experiences*- 
 whatever  that  might  be  in  concrete  application! 
 The  fact  is  that,  as  with  the  claim  of  public  ownership, 
 the  public  trustee  analogy  is  merely  a  trope,  a  way  of  reifying  [and  rhetorically  legitimizing]  the  governments 

 claim  to  regulatory  authority.  19  It  was  first  deployed  as  a 
 justificatory  image  at  a  time  when  the  idea  of  content  regu- 
 lation  in  the  public  interest  was  losing  credibility.* 
 Though  the  trustee  image  has  been  used  sporadically  to 

 16.  The  argument  in  text,  of  course.  cuts  both  ways:  if  licenses  are, 
 correctly,  understood  to  convey  bundles  of  rights,  they  are  the  concep- 
 tual  and  functional  equivalent  of  property  that  the  free  TV  mandates 
 would  take  without  compensation. 
 17.  RedLion,  395  U.  S.  at  389. 
 18.  Id.  at  390. 
 19.  Robinson,  supra  note  4. 
 20.  KRATTENMAKER  &  PowE.  supra  note  1,  at  144-  74. 

 Lillian  R.  BeVier  11 
 rationalize  particular  regulatory  initiatives,  no  attempt  has 
 ever  been  made  rigorously  or  systematically  to  give  it  legal 
 substance  or  form.  Now  that  the  idea  of  regulation  in  the 
 public  interest  seems  to  have  regained  favor  at  least  in  some  quarters,  2  the  public  trustee  image  may  well  become 

 merely  a  makeweight.  Substantive  legal  relationships  will  not  be  affected  even  if  it  is  dropped  altogether  from  the 
 repertoire  of  regulatory  justifications,  however.  The  trustee  image  never  had  anything  other  than  rhetorical  force  any- 
 way,  and  it  certainly  never  did  any  real  legal  work. 
 License  as  a  Conditional  Grant  of  Government 
 Property.  Former  FCC  chairman  Reed  E.  Hundt  once 
 asserted,  Broadcasters  are  given  a  license  to  use  public 
 property,  and  it  can  be  conditioned  in  exactly  the  same  way  that  an  apartment  lease  can  be  conditioned  to  say  no 

 pets.  lrri2  He  seemed  to  be  suggesting  that  because  the  government  owns  the  spectrum,  it  can  license  the  spec- 
 trum  on  any  terms  it  chooses,  regardless  of  whether  the 
 licensees  would  be  signing  away  constitutional  rights  by 
 agreeing  to  the  governments  terms.  That  straightforward 
 formulation  of  a  rationale  for  government-  imposed  controls 
 on  broadcasting  content  is  not  the  conversation-  stopper  that 
 Mr.  Hundt  seemed  to  think  it.  It  relies  once  again  on  the 
 trope  of  public  ownership.  But  the  conditional  grant 

 21.  Id.  at  174;  see  aLro  Specrrum  Management  Policy,  supra  note  5, 
 at  46.  (  The  FCC  has  always  had  the  duty  to  grant  and  renew  broadcast 
 licenses  only  after  determining  that  the  public  interest  will  be  served.) 
 (testimony  of  Reed  E.  Hundt,  former  chairman  of  the  FCC). 
 22.  Quoted  in  Paul  Taylor,  Fat  Cat  Broadcasrers  ShouM  Help  Clean 
 Up  Polirics,  MAINICHI  DAILY  NEWS,  May  23.  1997,  at  2  [hereinafter  Far 
 Cal  Broadcusrers].  Mr.  Hundt  was  also  quoted  as  saying,  with  respect  to 
 the  free  TV  proposals:  This  is  a  nonproblematic  issue  legally.  1  dont 
 want  to  say  its  trivial,  but  its  very  close  to  trivial  as  a  constitutional  mat- 
 ter.  Airwaves  are  not  private  property.  and  no  license  has  ever  been  treat- 
 ed  as  a  private  matter.  Amy  Keller,  FCC  Gers  Ready  To  Force  Free  7V 
 Issue.  ROLL  CALL,  Apr.  17.  1997,  at  1. 
85
 I2  Is  Free  TV  Constifutional? 
 incarnation  of  the  trope  brings  into  play  one  of  the  Courts  most  incoherent  doctrines,  namely  the  unconstitutional 

 conditions  doctrine.  Mr.  Hundts  assertion  begs  the 
 broad  question  of  when,  how,  under  what  circumstances,  and  with  regard  to  securing  what  public  objectives  the 

 government  may,  by  bargaining  with  its  citizens  with  re-  spect  to  government-  controlled  resources,  achieve  regulato- 
 ry  purposes  that  would  otherwise  be  constitutionally  unob- 
 tainable.  Mr.  Hundt  wants  us  to  infer  that  the  answer  to 
 that  question  is  anytime  the  government  wants,  and  to  achieve  any  goals  it  deems  worthy,  and  thus,  if  the  gov- 

 ernment  chooses  to  mandate  free  TV  as  a  condition  of 
 licensing  its  spectrum,  it  may  certainly  do  so.  But  it  is  not  nearly  so  easy  to  resolve  the  matter  in  the 

 governments  favor.  That  the  government  has  regulatory  power  over  the  spectrum  sufficient  to  legitimize  its  defini- 
 tion  and  allocation  of  use  rights  has  long  been  settled.  That  the  government  has  considerable  discretion  to  determine 
 how  the  use  rights  should  be  defined  and  allocated  is  also  not  a  proposition  in  doubt.  Nor  is  there  any  real  question 
 that  the  government  may  choose  either  to  give  those  rights 
 away  or  to  sell  them.  But  those  facts  tell  us  nothing  about 
 the  question  in  which  we  are  currently  interested-  which  is  the  question  Mr.  Hundts  assertion  begs-  namely,  whether 

 the  Court  would  or  should  hold  that  the  governments 

 23.  Kathleen  M.  Sullivan,  Unconsfiturional  Conditions,  102  HARV.  L. 
 REV.  1413.  1415  (1989)  (unconstitutional  conditions  doctrine  holds  that 
 government  may-  not  grant  a  benefit  on  the  condition  that  the  beneficiary 
 surrender  a  constitutional  right,  even  if  the  government  may  withhold  that 
 benefit  a!  together);  Frederick  Schauer,  Too  Hurd:  Uncons:  irurional  Con- 
 ditions  and  the  Chimera  of  Constitutional  Consistency,  72  DENV.  U.  L. 
 REV.  989.  1101-  05  (1995)  (arguing  that,  given  the  diversity  of  contexts  in 
 which  courts  have  invoked  it,  no  single  rationale  can  explain  the  doctrine); 
 see  also  Richard  A.  Epstein,  The  Supreme  Court.  1987  Term-  Foreword: 
 Ckonsritutional  Conditions.  Srnre  Power.  and  rhe  Limits  of  Conrenr,  102 
 HARV.  L.  REV.  4  (1988). 

 Lillian  R.  BeVier  13 
 regulatory  power  includes  the  power  to  require  broadcast- 
 ers  to  provide  free  TV  time  to  candidates  for  federal  office. 
 The  point  of  the  preceding  analysis  is  that  a  persuasive- 
 ly  affirmative  answer  to  that  question  does  not  lie  in  any 
 variation  of  the  government  ownership  theme.  A  more  satisfying  approach  to  an  answer  will  require  the  analyst  to 

 specify  and  scrupulously  to  evaluate  both  the  broadcasters  claims  of  freedom  from  such  regulation  and  the  govern- 
 ments  claim  that  free  TV  for  candidates  would  use  a  mini- 
 mum  of  coercion  to  implement  a  genuinely  worthy  goal.  That  task  is  more  relevant  to  First  than  to  Fifth  Amend- 

 ment  analysis,  and  accordingly  I  shall  take  it  up  in  connec-  tion  with  the  First  Amendment  discussion. 

 Who  Should  Be  Paying  for  This?  The  free  TV  for  can- 
 didates  rhetoric  obscures  a  central  fact:  free  TV  is 
 decidedly  not  TV  without  cost.  To  be  sure,  the  proposals  to  have  broadcasters  provide  TV  to  candidates  would  trans- 

 fer  rights  without  charge,  but  making  the  rights  free  lo  candidates  would  not  make  the  cost  of  providing  them 
 disappear.  It  would  simply  shift  that  cost  from  the  candi- 
 dates  to  the  broadcasters,  who  would  suffer  an  immediate 
 revenue  loss  that  would  be  reflected  in  significantly  de- 
 creased  license  value.  The  broadcasters  argue  that  they 
 ought  not  to  be  forced  to  bear  the  full  cost  of  providing  the 
 supposed  public  benefits  that  free  TV  would  bring.  In 
 constitutional  terms,  they  argue  that  requiring  them  to 
 provide  free  TV  to  political  candidates  would  amount  to  a 
 taking  of  their  property  without  compensation. 
 The  Fifth  Amendment  to  the  Constitution  provides  nor  shall  private  property  be  taken  for  public  use  without  just 

 compensation  being  paid.    When  improvement  of  the 
 public  condition  requires  that  certain  privately  held  assets 
 be  used  in  particular  ways,  the  amendment  requires  that  the 
 government  buy  or  lease  the  assets  (the  private  property)  and  pay  compensation  to  the  former  owners.  Often,  howev- 
86
 14  is  Free  TV  Constitutional? 
 er,  the  government  attempts  a  kind  of  end  run  around  the  compensation  requirement.  It  attempts  to  achieve  its  goal, 

 as  in  the  free  TV  proposals,  not  by  buying  and  paying  for 
 the  use  it  desires  but  by  regulating  or  mandating  it  into  (or  out  of)  existence.  Often,  too,  as  the  free  TV  mandates 

 would  surely  do,  the  regulations  imposed  for  the  supposed 
 public  welfare  substantially  reduce  the  value  of  the  regulat-  ed  property.  When  that  happens,  the  private  owners 

 claim-  as  the  broadcasters  do  with  respect  to  the  free  TV  proposals-  that  the  regulations  amount  to  takings  and 
 that  they,  the  property  owners,  ought  to  receive  compensa-  tion  for  the  diminution  in  their  propertys  value. 
 The  jurisprudence  that  the  Court  has  developed  in  con-  sidering  those  claims  is  a  paradigm  of  doctrinal  unintel- 
 ligibility.  A  regulation  that  goes  too  far  is  a  taking,  but  the  Court  has  without  apology  eschewed  the  effort  to  artic- 
 ulate  with  anything  like  useful  specificity  the  criteria  by  which  it  will  decide  whether  a  regulation  has  gone  too 
 far.  =  With  respect  to  the  broadcasters  takings  claim, 
 however,  the  free  TV  proposaIs  may  not  at  first  blush 
 appear  to  present  an  issue  of  a  regulation  gone  too  far.  That  is  so  because  the  rhetoric  of  broadcast  regulation  has 

 been  so  insistently  (if  incoherently)  premised  on  the  claim  that  broadcasters  do  not  really  own  their  licenses.  Once 
 one  acknowledges  that  broadcasters  own-  or  perhaps  it  is 
 enough  to  acknowledge  that  they  have  the  functional  equiv- 
 alent  of  property  rights  in-  their  licenses,  the  free  TV 
 mandates  could  not  be  implemented  unless  the  broadcasters 
 were  compensated,  since  the  mandates  obviously  amount  to 
 a  coercive  transfer,  a  taking,  of  broadcasters  rights. 

 24.  Pennsylvania  Coal  Co.  v.  Mahon.  260  U.  S.  393  (1922). 
 25.  Penn  Central  Ttansp.  Co.  v.  City  of  New  York,  438  U.  S.  104. 
 124  (1978)  (The  Court,  quite  simply,  has  been  unable  to  develop  any  set 
 formula  for  determining  when  justice  and  fairness  require  that  economic 
 injuries  caused  by  public  action  be  compensated  by  the  government,  rather 
 than  remain  disproportionately  concentrated  on  a  few  persons.). 

 Lillian  R.  BeVier  15 
 Thus,  resolution  of  the  broadcasters  takings  claim  does 
 not  appear  to  require  the  delicate  and  complex  doctrinal 
 maneuverings  involved  in  determining  whether  the  free  TV 
 mandates  go  too  far.  n  Instead,  it  requires  direct  confronta- 
 tion  with  the  governments  assertion  that  it  owns  the  spec- 
 trum.  As  we  have  seen,  the  public  ownership  of  the  spec- 
 trum  metaphor  provides  effective  political  cover  for  the 
 assertion  of  regulatory  authority  of  a  scope  that  the  govern- 
 ment  might  otherwise  find  diffMt  to  justify.  In  the  forego-  ing  discussion  of  the  Fifth  Amendment  issues  raised  by  free 

 TV,  this  monograph  has  argued  that  the  governments  assertion  of  spectrum  ownership  rests  on  a  foundation  both 
 dubious  and  elusive.  Considerable  conceptual  purchase  exists  for  the  argument  that,  despite  the  public  ownership 
 rhetoric,  the  broadcasters  are  owners.  Several  further 
 points  bear  on  the  takings  question.  1 

 No  Finessing  the  Ownership  Issue  Where  a  Taking  Is  the  Claim.  First,  a  general  point:  As  I  will  describe  in 
 the  discussion  of  First  Amendment  issues,  the  Court  has  in 
 the  past  deployed  something  very  like  the  government  ownership  of  the  spectrum  argument  to  justi@  reducing  the 

 level  of  scrutiny  of  broadcast  regulations.  But  even  if  the  Court  continues  to  embrace  spectrum  ownership  for  First 
 Amendment  purposes,  it  might  well  be  persuaded  to  take  a 
 more  realistic  view  of  free  TV  for  purposes  of  Fiflh 
 Amendment  analysis.  That  is  so  because,  in  principle,  the 
 First  and  Fifth  Amendments  perform  different  functions 
 and  are  designed  to  guard  against  different  kinds  of  govern- 
 ment  overreaching.  The  Court  can  vindicate  First  Amend- 
 ment  principles  without  tackling  the  public  ownership 
 metaphor  head-  on,  but  not  so  Fifth  Amendment  principles. 
 The  First  Amendments  most  important  function  is  to  guard  against  government  attempts  to  control  the  content  of 

 political  debate.  It  appears  to  be  the  case  that  many  people  do  not  believe  that  the  kind  of  control  that  the  FCC  has 
87
 16  Is  Free  TV  Constitutionul? 
 over  the  years  exercised  over  broadcast  content  presents  a 
 systematically  worrisome  threat  to  political  freedom.  That  is  so  despite  the  fact  that  the  electronic  media  are  regulated 

 in  ways  that  would  be  appropriately  unthinkable  if  the  print  media  were  involved.  Reasons  that  do  not  now  seem  partic- 
 ularly  persuasive  provided  the  initial  rationale  for  that  sys-  tem  of  regulation.  The  Court  has  not  been  eager  to  disman- 
 tle  the  metaphor  of  public  ownership  of  a  scarce  re- 
 source  that  supports  the  regulatory  regime.  When  First 
 Amendment  challenges  are  mounted,  though,  as  we  shall  see,  the  Court  need  not  straightforwardly  abandon  the 

 public  ownership  metaphor  to  engage  on  occasion  in 
 heightened  scrutiny  of  regulators  effortsz6  and  thus  give 
 life  to  First  Amendment  principles. 
 The  Fifth  Amendment,  on  the  other  hand,  is  designed  to  prevent  unfair  and  unjust  coercive  wealth  transfers  dis- 

 guised  as  regulation.  The  only  way  that  the  Court  can  ac-  complish  that  purpose  is  to  hold  that  a  regulation  is  a  tak- 
 ing  for  which  compensation  must  be  paid.  Thus,  if  a  signif- 
 icant  defect  of  the  free  TV  mandates  is  that  they  coercively 
 transfer  wealth  from  broadcasters  to  political  candidates,  then  Fifth  Amendment  principles  would  be  at  stake.  There 

 would  be  no  way  to  vindicate  them,  however,  without 
 holding  that  the  broadcasters  properry  had  been  taken;  and  there  would  be  no  way  to  reach  that  conclusion  without  di- 

 rectly  confronting  and  dispatching  the  public  ownership  claim-  if  not  in  its  entirety,  then  at  least  in  part. 

 The  Bitter  with  the  Sweet  Will  Not  Do.  A  second 
 general  point  is  that  the  broadcasters  takings  claim  gets 
 some  support  from  a  line  of  cases  defining  property  in  a  different  Fifth  Amendment  context.  I  refer  to  the  line  of 

 cases  recognizing  statutorily  created  entitlements  as  prop- 
 erty  for  purposes  of  Fifth  Amendment  procedural  due 

 26.  See,  e.  g,  FCC  I.  League  of  Women  Voters,  468  U.  S.  364  (1984). 

 Lillian  R.  BeVier  17 
 process.  At  one  time,  the  Supreme  Court  held  that  individ- 
 uals  who  received  public  benefits,  such  as  public  employ- 
 ment  or  welfare,  had  no  right  to  procedural  protections  on 
 termination  of  their  claims.  In  Goldberg  v.  Kelly,*    the  Court  reversed  that  doctrine  and  held  that  a  welfare  recipi- 

 ents  interest  in  continued  receipt  of  welfare  benefits  was  a 
 statutory  entitlement  amounting  to  property  within  the 
 Due  Process  Clause,  and  thus  that  it  could  not  be  terminat- 
 ed  without  a  hearing.  With  respect  to  public  employees,  the  Court  flirted  with 

 a  doctrine  that  permitted  states  to  evade  Goldberg  by  statu-  torily  limiting  the  procedures  to  be  employed  in  determin- 
 ing  whether  their  employment  should  be  terminated: 
 [W]  here  the  grant  of  a  substantive  right  is  inextri-  cably  intertwined  with  the  limitations  on  the  proce- 
 dures  which  are  to  be  employed  in  determining  that  right,  a  litigant  in  the  position  of  appellee  must 
 take  the  bitter  with  the  sweet.  29 

 The  Court  ended  this  flirtation  in  Cleveland  Board  of  Edu- 
 cation  v.  LoudermilLM  when  it  unequivocally  held: 

 Property  cannot  be  defined  by  the  procedures  provided  for  its  deprivation  any  more  than  can  life 
 or  liberty.  The  right  lo  due  process  is  conferred, 
 not  by  legislative  grace.  but  by  constitutional  guar- 
 antee.  While  the  legislature  may  elect  not  to  confer 
 a  property  interest  in  [public]  employment,  it  may 
 not  constitutionally  authorize  the  deprivation  of 

 27.  See,  e.  g.,  Bailey  v.  Richardson,  182  F.  2d  46  (D.  C.  Cir.  1950). 
 affd  by  an  equally  divided  Court,  341  U.  S.  918  (1951)  (no  hearing  re- 
 quired  for  employee  dismissed  from  government  employment). 
 28.  397  U.  S.  254  (1970). 
 29.  Arnett  v.  Kennedy,  416  U.  S.  134,  153-  54  (1974). 
 30.  470  U.  S.  532  (1985). 
88
 I8  Is  Free  TV  Constitutional? 
 such  an  interest,  once  conferred,  without  appropri-  ate  procedural  safeguards.  *  I 

 Those  procedural  due  process  cases  are  relevant  to  the  broadcasters  takings  claim  because  an  implicit  bitter  with 
 the  sweet  argument  has  consistently  sustained  the  govem- 
 ments  assertion  that  its  substantially  restrained  regulatory 
 authority  over  the  behavior  of  broadcast  licensees  is  essen- 
 tially  unconstrained  by  Fifth  Amendment  limitations.  Pro- 
 ponents  of  regulation  repeatedly  point  out  that  licensees  have  gotten  a  sweet  deal,  since  they  have  received  very 

 profitable  licenses  at  a  price  of  zero.  But  the  fact  that  the  government  has  chosen  an  allocation  method  that  gives 
 licensees  a  sweet  deal  does  not  necessarily  justify  it  in 
 making  regulatory  decisions  that  are  unreviewably  bitter. 
 The  procedural  due  process  cases  suggest  at  the  very  least 
 that  the  Court  might  find  it  intolerable  that  the  govern- 
 ment  should  wield  [such  a]  degree  of  potentially  arbitrary 
 power.  *G*  If  so,  the  Court  would  have  an  opportunity  to 
 conclude  that,  for  purposes  of  takings  analysis,  the  prop- 
 erty  taken  by  the  free  TV  mandates  is  that  of  the  broad- 
 casters,  and  compensation  must  be  paid. 

 The  Economic  Realities  of  Broadcast  Licenses  Should 
 Count  for  Something.  The  Court  might  conclude,  with 
 Thomas  G.  Krattenmaker  and  Lucas  A.  Powe,  Jr.,  that  though  the  empirical  premises  are  weak  and  the  logic 

 flawed,  it  is  too  late  to  argue  that  the  governments  claim  to  own  the  airwaves  is  invalid.  33  Contrary,  perhaps,  to 
 conventional  wisdom,  such  a  conclusion  would  hardly 
 support  the  broadcasters  takings  claim.  The  reason  is  that 

 31.  Id.  at  541  (quoting  Arnett  v.  Kennedy,  416  U.  S.  134,  167  (1974)) 
 (Powell,  J.  concurring  in  part  and  concurring  in  result  in  part). 
 32.  Richard  B.  Stewan,  Tire  Reformation  of  American  Administrative 
 Low,  88  HARV.  L.  REV.  1667,  1717-  18  (1975). 
 33.  KRASTENMAKER  &  POWE,  supra  note  1.  at  227. 

 Lillian  R.  BeVier  19 
 it  would  not  speak  at  all  to  what  is  in  fact  the  gravamen  of  that  claim,  namely  the  nature  of  the  broadcasters  rights 
 during  the  term  of  their  licenses.  Consider  that  complying 
 with  the  free  TV  mandates  would  require  broadcasters  to  forgo  substantial  income-  as  much  as  $500  million  per 

 two-  year  election  cycle-  from  sales  of  broadcast  time 
 during  the  license  term.  The  government  has  never  con- 
 tended  that  the  income  generated  during  the  license  term 
 constitutes  government  property,  nor  has  it  ever  questioned 
 the  legitimacy  of  the  broadcasters  claims  of  entitlement  to 
 the  income.  For  their  duration,  broadcast  licenses  grant  to  licensees 

 the  functional  equivalent  of  property  rights:  exclusive  entitlement  to  and  prohibition  of  interlopers  from  trespass- 
 ing  on  their  particular  spectrum  space.  The  sanctions  to 
 which  licensees  are  subject  if  they  broadcast  outside  the 
 wavelengths  covered  by  their  licenses  serve  much  the  same 
 function  as  fences  around  the  borders  of  real  property:  they 
 prevent  encroachment  upon  assets  to  which  the  law  grants 
 others  exclusive  possession.  Another  fact  indicating  that 
 licenses  are  the  functional  equivalent  of  property  is  that,  despite  being  limited  in  duratibn,  they  are  traded  in  an 

 active  market  where  prices  clearly  reflect  buyers  expecta- 
 tions  of  uninterrupted  long-  term  enjoyment.  Moreover,  of  fundamental  significance  to  the  takings  analysis  is  the  fact 

 that  broadcasters  expectations  of  uninterrupted  income 
 streams  are  investment-  backed  and  that  broadcasters  in- 
 vestment  in  reliance  on  the  continuation  of  the  licensing  regime  is  encouraged  by  a  number  of  explicit  FCC  poli- 

 cies.  34  Regulations  that  disappoint  distinct  investment- 
 backed  expectations  have  long  aroused  the  Courts  most 
 intense  suspicion,  particularly  when  the  expectations  have  been  formed  and  the  investments  made  in  explicit  response 

 34.  E.  g.,  Central  Fla.  Enterprises,  Inc.  v.  FCC,  683  [:.  2d  503.  507 
 (D.  C.  Cir.  1982). 
89
 20  Is  Free  TV  Constitutional? 
 to  and  reliance  upon  government  policies  designed  to  en-  courage  them.  3s 
 The  more  one  contemplates  the  decline  in  the  value  of 
 the  licensees  discounted  net  revenue  stream  that  complying 
 with  free  TV  mandates  would  cause,  and  the  more  one  ponders  the  coercive  reality  of  the  wealth  transfer  that  free 

 TV  would  represent,  the  easier  it  is  to  penetrate  the  smoke- 
 screen  of  the  public  ownership  trope.  Hypothetical  analo- 
 gies  help  too.  Suppose  that  the  government  leased  a  gov- 
 ernment  building,  of  which  it  was  clearly  the  owner,  to 
 tenant  A.  Suppose  further  that  the  lease  itself  said  nothing 
 about  the  governments  retaining  a  right  to  reenter  and 
 claim  even  a  temporary  right  of  possession  on  behalf  of 
 tenant  B  (or  anyone  else).  Suppose  further  that  the  govern- 
 ment,  during  the  term  of  the  lease,  mandated  that  tenant  A  surrender  possession  of  a  certain  amount  of  its  prime 

 rental  time  (and  concomitantly  required  tenant  A  to  forfeit 
 altogether  the  income  that  the  right  to  possession  would 
 generate  during  that  time)  to  tenant  B.  Suppose  further 
 that,  in  justifying  its  mandate  that  tenant  A  surrender  tem- 
 porary  possession  to  tenant  B,  the  government  referred 
 simply  to  the  fact  that  it  owned  the  building  (implying 
 that,  despite  the  lease,  the  government  could  do  whatever  it 
 wanted  with  the  right  to  possession)  and  then  went  on  to  tout  the  great  public  benefits  that  free  occupancy  by  tenant 

 35.  Penn  Central  Transp.  Co.  Y.  City  of  New  York,  438  U.  S.  104. 
 124  (1978)  (Among  the  several  factors  of  particular  significance  in  deter- 
 mining  whether  a  taking  has  occurred  is  the  extent  to  which  the  regula- 
 tion  has  interfered  with  distinct  investment-  backed  expectations.  );  Kaiser 
 Aetna  Y.  United  States,  444  U.  S.  164  (1979);  see  O&  J  J.  GREGORY  SIDAK 
 &  DANIEL  F.  SPULBER,  DEREGULATORY  TAKINGS  AND  THE  REGULATORY 
 CONTRACT:  THE  COMPET~  IWE  TRANsFofth4AnoN  OF  NETWORK  INDUS- 
 TRIES  IN  THE  UNITED  STAT=  219-  26  (Cambridge  Universi:  y  Press  1997); 
 Frank  Michelman,  Property,  Utility.  ad  Fairness:  Commenrs  on  the  Ethi- 
 cal  Foundarions  of  /  us1  Compensarion  Law.  80  HARV.  L.  REV.  1165. 
 1223  (compensation  should  be  required  when  claimant  is  deprived  of  dis- 
 tinctly  perceived,  sharply  crystallized  investment-  backed  expectations). 

 Lillian  R.  BeHer  21 
 B  would  secure.  Can  anyone  doubt  that  such  behavior 
 would  be  held  to  be  a  taking  and  that  tenant  A  would  be  entitled  to  compensation?  By  a  parity  of  reasoning,  at  feast 

 as  to  licenses  in  effect  at  the  time  the  free  TV  mandates 
 were  imposed,  the  mandates  would  be  a  taking  and  the 
 broadcasters  entitled  to  compensation-  even  if  the  Court 
 were  to  continue  to  embrace  the  public  ownership 
 metaphor. 

 Political  Speech  and  the  Television  Set 
 A  Different  First  Amendment  for  Broadcasters?  It  is 
 well  settled  that  the  First  Amendment  has  a  special  mean- 
 ing  in  the  broadcast  context.  nM  Since  Red  Lion  Broadcart- 
 ing  Co.,  Inc.  v.  FCC  was  the  case  in  which  that  First 
 Amendment  anomaly  became  well  settled,  and  since  the 
 free  TV  proposals  are  aimed  directly  at  broadcasters,  Red  Lion  is  the  most  obvious  starting  point  for  our  First 

 Amendment  analysis. 
 Red  Lion.  in  Red  Lion,  the  Supreme  Court  sustained 
 both  the  FCC-  promulgated  fairness  doctrine3  and  the 

 36.  FCC  v.  Pacifica  Foundation,  438  U.  S.  726,  741-  42  n.  17  (1978). 
 37.  395  U.  S.  367  (1969). 
 38.  Red  Lion  was  not  the  first  case  in  which  the  First  Amendment  was 
 given  special  meaning  as  applied  to  broadcasters.  See,  e.  g.,  NBC  v.  Unit- 
 ed  States,  319  U.  S.  192  (1943)  (sustaining  Chain  Broadcasting  rules 
 against  First  Amendment  challenge).  It  was,  however,  the  first  case  in 
 which  the  Court  enthusiastically  embraced  the  concept  of  [broadcasting] 
 regulation.  It  took  the  affirmative  and  reconceived  the  fundamental  theo- 
 retical  underpinnings  .  .  of  the  relationship  between  the  press  and  gov- 
 ernment.  LEE  EOLLINGER,  IMAGES  OF  A  FREE  PREYS  72  (University  of 
 Chicago  Press  1991). 
 39.  The  fairness  doctrine  imposed  on  radio  and  television  broadcast- 
 ers  the  requirement  that  discussion  of  public  issues  be  presented  on  broad- 
 cast  stations,  and  that  each  side  of  those  issues  must  be  given  fair  cover- 
 age.  RedLion.  395  U.  S.  at  369.  In  1987.  the  FCC  repealed  the  doctrine, 
90
 22  Is  Free  TV  Constitutional? 
 personal  attack  and  political  editorial  regulations  that  the  FCC  issued  pursuant  to  that  doctrine.  The  Court  held  that 
 the  commission  had  not  exceeded  its  statutory  authority 
 and,  more  important  for  purposes  of  the  present  analysis,  that  the  regulations  enhance[  d]  rather  than  abridge[  d]  the 

 freedoms  of  speech  and  press**    and  so  did  not  violate  the  First  Amendment.  42 
 The  broadcasters  who  challenged  the  regulations  at  issue 
 in  Red  Lion  made  conventional  First  Amendment  argu-  ments  that  would  in  any  other  context-  particularly  in  the 

 context  of  a  similar  regulation  of  the  print  media-  have  easily  carried  the  day.  43  Their  claim  was  that 

 Complaint  of  Syracuse  Peace  Council,  Memorandum  Opinion  and  Order, 
 2  F.  C.  C.  Red.  5043  (1987);  the  District  of  Columbia  Circuit  Court  sus- 
 tained  the  repeal,  Syracuse  Peace  Council  Y.  FCC,  867  F.  2d  654  (D.  C. 
 Cir.  1989);  and  the  Supreme  Court  denied  certiorari,  493  U.  S.  1019 

 ww 
 40.  The  personal  attack  rules  required  broadcasters  to  provide  an  op- 

 portunity  to  respond  to  a  person  whose  honesty,  character,  integrity  or 
 like  personal  qualities  were  attacked  during  a  presentation  of  views  on  a 
 controversial  issue  of  public  importance;  the  political  editorial  rule  re- 
 quired  broadcasters  who  endorsed  a  candidate  to  offer  reasonable  opportu- 
 nity  for  the  candidates  opponent(  s)  to  respond.  Red  Lion.  395  U.  S.  at 
 373-  74. 
 41.  Id.  at  375. 
 42.  Notice  a  fact  that  the  Court  in  Red  Lion  failed  to  acknowledge: 
 the  idea  that  freedom  can  be  enhanced  by  regulation  is  in  significant  and 
 probably  irreconcilable  tension  with  the  otherwise  prevailing  view  that  the 
 First  Amendment  guarantees  freedom  from  the  exercise  of  governmental 
 power.  For  a  brief  and  useful  historical  analysis  of  Red  Lions  enhance- 
 ment  theory,  see  Lucas  A.  Powe.  Jr.,  Mass  Speech  and  the  Newer  First 
 Amendment,  1982  SUP.  CT.  REV.  243,  243-  69;  see  afso  text  accompany- 
 ing  notes  72-  73,  infru. 
 43.  Cf.,  e.  g.,  Miami  Herald  Publishing  Co.  Y.  Tomillo.  418  U.  S.  241 
 (1974)  (invalidating  a  state  law  granting  a  right  of  reply  to  candidates  at- 
 tacked  by  a  newspaper);  New  York  Times  Co.  v.  Sullivan,  376  U.  S.  254 
 (1964)  (holding  that  a  public  official  cannot  recover  damages  from  a 
 newspaper  for  false  statements  made  in  reference  to  his  ofticial  conduct 
 unless  the  false  statement  was  made  with  actual  malice,  that  is,  knowl- 

 Lillian  R.  BeWet  23 
 [n]  o  man  may  be  prevented  from  saying  or  publish- 
 ing  what  he  thinks,  or  from  refusing  in  his  speech 
 or  other  utterances  to  give  equal  weight  to  the  views  of  his  opponents.  This  right,  they  [said], 

 applies  equally  to  broadcasters  . 
 The  Court,  however,  unanimously  decided  that  broadcast-  ers  First  Amendment  rights  were  attenuated  because 
 broadcasting  was  different  from  other  media.  [  Blroadcast 
 frequencies  constitute[  ]  a  scarce  resource  whose  use  [can]  be  regulated  and  rationalized  only  by  the  Government.  45 

 Since  there  is  no  such  thing  as  a  nonscarce  resource,  the 
 Court  must  have  believed  that  there  was  something  unique 
 about  broadcast  frequencies,&  a  peculiarity  that  rendered 
 conventional  market  allocation  mechanisms  inapt  and  elimi- 
 nated  traditional  First  Amendment  barriers  to  government 
 control  of  content  .*    The  following  quotations  from  Justice 
 Whites  opinion  will  help  the  reader  to  comprehend  the 
 Courts  mind-  set. 

 l  The  government  constitutionally  may  license  broadcast- 
 ers  to  use  the  spectrum.  Licenses  to  broadcast  do  not 

 edge  of  falsity  or  reckless  disregard  of  the  truth). 
 44.  Red  Lion,  395  U.  S.  at  386. 
 45.  Id.  at  376  (emphasis  added). 
 46.  See  Turner  Broadcasting  Sys.  v.  FCC,  512  U.  S.  622,  637  (1994) 
 (Turner  f)  (observing  that  the  Courts  distinct  approach  to  broadcast  reg- 
 ulation  rests  upon  the  unique  physical  limitations  of  the  broadcast  medi- 
 um-). 
 47.  The  Court  has  never  specified  or  explained  what  it  thinks  consti- 
 tutes  the  unique  characteristic  of  broadcast  frequency  scarcity.  Com- 
 mentators  have  considered,  and  rejected,  numerous  possibilities.  See  Ron- 
 erulfy  Jonathan  Weinberg,  Broadcaring  and  Speech,  81  CALIF.  L.  REV. 
 1101  (1993);  Matthew  L.  Spitzer,  ne  Consriturionuli~  of  Licensing 
 Broadcarters,  64  N.  Y.  U.  L.  REV.  990  (1989).  For  now  it  is  enough  to 
 note  that  Red  Lion  rests  on  the  premise  that  broadcasting  is  different 
 from  other  media  and  that  the  source  of  that  perceived  difference  is  the 

 unique  scarcity  of  the  spectrum. 
91
 24  Is  Free  TV  Constitutional? 
 confer  ownership  of  designated  frequencies,  but  only  the  temporary  privilege  of  using  them.  48 

 l  No  one  has  a  First  Amendment  right  to  a  license  [and] 
 as  far  as  the  First  Amendment  is  concerned  those  who  are  licensed  stand  no  better  than  those  to  whom  licenses 

 are  refused.  n49 
 l  There  is  nothing  in  the  First  Amendment  which  pre- 
 vents  the  Government  from  requiring  a  licensee  to  share  his  frequency  with  others  and  to  conduct  himself  as  a 

 proxy  or  fiduciary  with  obligations  to  present  those 
 views  and  voices  which  are  representative  of  his  com-  munity  and  which  would  otherwise,  by  necessity,  be 

 barred  from  the  airwaves.  SO 
 l  Finally,  it  is  the  right  of  the  viewers  and  listeners,  not 
 the  right  of  the  broadcasters,  which  is  paramount. 

 From  the  time  of  its  first  articulation,  critics  have  chal- 
 lenged  the  scarcity  rationale  that  was  so  fundamental  to 
 the  Courts  thinking  in  Red  Lion.  They  have  disputed  its 
 empirical  premises,  the  logic  of  the  conclusions  it  generat- 
 ed,  and  the  validity  of  the  constitutional  principle  it  en- 
 dorsed.  The  Court  in  turn  has  acknowledged  the  criticism 
 but  so  far  has  declined  to  question  [the  rationales]  contin- 
 uing  validity  as  support  for  [its]  broadcast  jurisprudence.  52 
 The  justices  have  not  been  presented  with  !he  kind  of  direct  challenge  to  subsequent  FCC  (or  congressional)  regulations 

 premised  on  scarcity  that  would  have  required  the  Court  to 

 48.  395  U.  S.  at  394. 
 49.  Id.  at  389. 
 50.  Id. 
 51.  Id.  at  390. 

 52.  Turner  I.  512  U.  S.  at  638. 

 Lillian  R.  BeVier  25 
 confront  the  question.  But  if  any  of  the  free  TV  proposals  were  to  be  adopted  by  Congress  or  promulgated  by  the 
 FCC  on  its  own  authority,  they  surely  would  provide  an 
 opportunity  to  mount  such  a  challenge. 
 Since  Red  Lion  has  not  been  overruled,  it  must  be  con-  sidered  to  announce  the  First  Amendment  framework  gov- 

 erning  regulations  of  broadcast  content.  Its  conceptual  and  empirical  underpinnings  are  so  vulnerable,  however,  that  it 
 must  be  regarded  as  unstable  and  thus  not  necessarily 
 good  law.  Accordingly,  with  respect  to  Red  Lion,  a  study  such  as  this  must  perform  two  tasks.  First,  it  must 

 apply  Red  Lion  and  its  progeny  to  the  proposals  at  issue,  giving  consideration  to  the  very  real  possibility  that  even  if 
 Red  Lion  does  continue  to  provide  the  governing  analytical 
 framework,  the  case  does  not  necessarily  authorize  free  TV  mandates.  Second,  the  study  must  summarize  and  assess 

 scarcity,  the  conceptual  and  empirical  premise  on  which 
 Red  Lion  was  based.  1  begin  with  the  second  task. 
 On  close  scrutiny,  scarcity  reveals  itself  as  a  loosely 
 defined  concept  whose  denotation  depends  on  the  particular 
 regulatory  agenda  that  it  is  deployed  to  support.  On  even 
 closer  scrutiny,  it  does  not  support  the  broad  proposition  for  which  it  is  most  commonly  advanced,  for  whatever  the 

 meaning  of  the  statement  that  broadcast  frequencies  are 
 scarce,  it  does  not  justify  applying  a  more  lenient  First 
 Amendment  standard  to  broadcasters  than  is  applied  to 
 newspaper  publishers.  s3 
 Scarcity  is  sometimes  used  as  a  technological  concept  denoting  the  fact  that  if  everyone  broadcasts  on  the  same 

 frequency,  none  will  be  heard.  s4  The  implication  of  the 

 53.  Telecommunications  Research  &  Action  Ctr.  v.  FCC,  801  F.  2d 
 501,  508.  rehg  denied,  806  F.  2d  1115  (D.  C.  Cir.  1986).  cerr.  denied, 
 482  U.  S.  919  (1987)  (Bark.  J.)  ([  T]  he  attempt  to  use  a  universal  fact 
 [physical  scarcity]  as  a  distinguishing  principle  necessarily  leads  to  analyti- 
 cal  confusion.). 

 54.  KRAITENMAKER  Kc  POWE,  supru  note  1.  at  206. 
92
 26  Is  Free  TV  Constitutiortal?  Lillian  R.  BeVier  27 
 observation  is  that  government  must  devise  some  method  to 
 alleviate  interference,  as  indeed  it  must.  But  that  method 
 need  not  include  government  management  of  broadcast 
 content.  All  that  is  required  is  a  method  for  allocating  and 
 enforcing  rights  in  spectrum  space.  The  Court  in  Red  Lion 
 seemed  to  think  that  Congress  had  to  eschew  allocat-  ing  spectrum  frequencies  with  genuine  property  rights  in 

 favor  of  government  licensing  based  on  an  ill-  defined 
 public  trustee  .  notion  56  In  truth,  however,  once  one  realizes  that  property  rights  are  nothing  more  than  legally 

 enforceable  claims  to  exclusive  use,  possession,  and  control  of  resources,  one  recognizes  that  there  is  no  technological 
 impediment  to  using  property  rights  to  prevent  interference  with  spectrum  allocations.  Indeed,  as  my  foregoing  analysis 
 makes  clear,  the  present  regulatory  regime  grants  licensees  rights  that  are  functionally  equivalent  to  property  rights. 
 Another  meaning  of  scarcity  as  a  unique  characteristic  of  the  broadcast  spectrum  is  that  the  spectrum  is  finite: 
 whereas  more  trees  can  be  grown,  more  spectrum  cannot 
 be  created.  That  is  an  accurate  statement,  but  it  is  incom- 
 plete  and  cannot  carry  the  uspectrum  is  uniquely  scarce 
 argument:  although  more  spectrum  cannot  be  created,  additional  frequencies  have  in  the  past  and  continue  to 

 become  available  as  technology  improves.  57  A  third  possible  denotation  of  spectrum  scarcity  is 
 that  there  are  fewer  frequencies  than  there  are  people 
 who  want  them.  That  too  is  an  accurate  but  incomplete 
 statement.  The  distinction  it  implicitly  draws  between  pub- 

 55.  See  Time  Warner  Entertainment  Co.  v.  FCC,  105  F.  3d  723,  725 
 (D.  C.  Cir.  1997)  (Williams,  J..  dissenting  from  the  denial  of  rehearing  en 
 bunt)  (  Alleviation  of  interference  does  not  necessitate  government  con- 
 tent  management;  it  requires,  as  do  most  problems  of  efficient  use  of  re- 
 sources,  a  system  for  allocation  and  protection  of  exclusive  property 
 rights.  ). 
 56.  See  text  accompanying  notes  36-  45,  supra. 
 57.  KRATTENMAKER  &  POWE.  supru  note  1.  at  208. 

 lishers  and  broadcasters,  for  example,  is  the  product  of  a 
 government-  infiicted  wound  rather  than  an  artifact  of  any 
 natural,  unique  attribute  of  the  spectrurn5*  The  reason  ex- 
 cess  demand  for  publishing  rights  does  not  exist  is  that  the 
 price  that  emerges  in  the  market  for  newspapers  brings  supply  and  demand  into  equilibrium.  s9  The  regulatory 

 scheme  that  the  government  has  adopted  for  the  spectrum 
 does  not  work  in  that  way.  Instead,  the  government  impos- 
 es  barriers  to  entry  and  removes  them  only  for  its  licens-  ees,  to  whom  it  grants  the  rights  for  free.  After  that,  the  li- 

 censee  can  sell  the  license  at  whatever  price  the  market  will  bear;  meanwhile,  the  licensee  will  be  entitled  to  all  the  rev- 
 enues.  When  the  supply  of  a  revenue-  producing  asset  is 
 artificially  limited,  and  then  the  asset  is  given  away  at  a 
 price  of  zero,  there  is  bound  to  be  excess  demand.    But  that  kind  of  scarcity  is  unique  to  broadcasting  only  be- 

 cause,  with  respect  td  broadcasting  but  not  with  respect  to 
 print,  the  government  has  asserted  ownership  of  an  essen-  tial  factor  of  production,  proceeded  to  give  it  away  rather 

 than  seil  it,  and  prohibited  intruders  from  encroaching.  m 
 Finally,  broadcastings  unique  scarcity  may  denote  the 
 perception  that  broadcast  channels  are  peculiarly  rare,  j 
 in  the  sense  that  there  are  numerically  fewer,  or  compara-  tively  too  few,  of  them  as  compared  with  print  outlets. 

 The  best  answer  to  that  argument  resides  in  three  facts: 
 First,  the  number  of  available  broadcast  channels  regularly 
 increases.  Second,  technological  advances  such  as  cable  TV 
 render  broadcast  spectrum  scarcity  as  a  determinant  of  the 

 58.  Id.  at  217. 
 59.  Id.  at  2@!  9 
 60.  Judge  Stephen  F.  Williams  refers  to  that  variation  of  the  scarcity 
 rationale  as  its  generic  form  (the  idea  that  an  excess  of  demand  over  sup- 
 ply  at  a  price  of  zero  justifies  a  unique  First  Amendment  regime).  Time 
 Warner  Enferfainmenr,  105  F.  3d  at  724  (Williams,  I.,  dissenting  from 
 denial  of  rehearing  en  tic). 
 61.  Id. 
93
 28  Is  Free  TV  Constitutional? 
 number  of  available  broadcast  channels  obsolete.  Third, 
 whereas  the  number  of  broadcast  channels  has  actually 
 increased  in  recent  years,  the  numbers  of  daily  and  weekly  newspapers  has  steadily  declined.  62  One  cannot  respond  to 

 the  too  few  argument  with  mere  numbers  or  even  with 
 comparisons  of  growth  rates  of  broadcast  and  print  outlets,  because  the  assertion  that  there  are  too  few  implies  a 

 baseline  of  enough.  But  such  a  baseline  of  enough,  in 
 terms  of  which  we  could  evaluate  the  adequacy  of  what  we  currently  enjoy,  does  not  exist. 

 The  Public  Forum  as  a  First  Amendment  Variation 
 of  the  Ownership  Theme.  Analyzing  free  TV  proposals  in  terms  of  the  public  forum  doctrine  proves  to  be  yet  another 

 exercise  in  conceptual  legerdemain.  The  exercise  begins  with  the  assertion  of  government  ownership  of  the  spec- 
 trum,  which  as  we  have  seen  is  a  dubious  claim  at  best. 
 Nevertheless,  here  as  elsewhere  it  provides  a  predicate  of  sorts  upon  which  to  build  a  defense  against  broadcasters 

 First  Amendment  objections  to  controls  in  general  and  free  TV  requirements  in  particular.  In  terms  of  public  forum 
 doctrine,  the  broadcasters  First  Amendment  claim  in  resis-  tance  to  free  TV  would  be  that  public  ownership  of  the 
 spectrum  does  not  necessarily  imply  that  the  government  has  blanket  authority  to  regulate  the  content  of  what  is  said 
 over  the  airwaves.  Indeed,  the  broadcasters  might  argue 
 that  public  ownership  cuts  against  rather  than  in  favor  of  content  regulation: 

 Private  and  public  rights,  justified  by  independent  arguments,  may  often  restrict  the  manner  in  which 
 the  government  may  use  resources  that  it  owns.  This  argument  applies  with  equal  force  to  the 
 government-  owned  spectrum.  Just  because  the 

 62.  KRAITENMAKER  &  POWE,  supra  note  1.  at  216. 

 Lillian  R.  BeVier  29 
 government  owns  the  spectrum  does  not  mean  that  it  can  control  what  is  said  there.  Beyond  cer- 
 tain  traflic  rules  for  the  airwaves,  the  First  Amendment  may  preclude  governmental  control. 
 The  extent  of  the  First  Amendments  control  is  de-  fined  by  the  public  forum  doctrines.  63 

 Application  of  the  public  forum  doctrine  requires  that 
 the  government  property  in  question  be  classified  as  either 
 a  rraditional,  a  designated,  or  a  nonpublic  forum.  M  If  the 
 property  is  deemed  a  traditional  public  forum,  such  as  a 
 public  street  or  a  park  that  has  time  out  of  mind,  .  .  . 
 been  used  for  purposes  of  assembly,  communicating 
 thoughts  between  citizens,  and  discussing  public  ques- 
 tions,  6s  the  conventional  doctrinal  wisdom  is  that  any 
 regulation  of  access  based  on  content  will  be  subject  to  strict  scrutiny  and  will  not  pass  muster  unless  it  is  narrowly 

 drawn  to  serve  a  compelling  state  interest.  A  content-  neutral  regulation  of  time,  place,  and  manner  of  speech 
 will  be  sustained  if  it  is  narrowly  tailored  to  serve  a  signifi- 
 cant  government  interest  and  leaves  open  alternative  chan- 
 nels  of  communication.  66  If  the  property  is  deemed  a  desig- 
 nated  public  forum,  such  as  is  created  when  the  state  vol- 
 untarily  chooses  to  make  property  available  for  public  expression,  it  is-  so  long  as  it  is  available  for  expression  at 

 all-  subject  to  the  same  First  Amendment  standards  as  a 
 traditional  public  forum.  In  nonpublic  forums,  government 
 regulation  of  access  and  even  government  regulation  of 
 content  are  subject  to  considerably  less  rigorous  scrutiny: 
 the  state  may  reserve  such  public  assets  for  their  intended 
 purposes,  communicative  or  otherwise,  so  long  as  the 

 63.  Spiker,  supru  note  47,  at  1029. 
 64.  Perry  Educ.  Assn  v.  Perry  Local  Educators  Assn,  460  U.  S.  37 
 (1983). 
 65.  Hague  v.  CIO.  307  U.  S.  496,  515  (1939). 
 66.  Perry,  460  U.  S.  at  45. 
94
 30  Is  Free  TV  Constitutional? 
 regulation  of  speech  is  reasonable  and  not  an  effort  to 
 suppress  expression  merely  because  public  officials  oppose 
 the  speakers  view.  67 
 With  regard  to  the  constitutionality  of  free  TV,  it  is  possible  to  spin  the  public  forum  categories  and  their  atten- 

 dant  implications  so  that  they  point  in  more  than  one  con- 
 stitutional  direction.  According  to  Professor  Matthew  L. 
 Spitzer,  for  example,  the  kind  of  controls  represented  by  a 
 free  TV  requirement  might  be  constitutional  on  the  follow- 
 ing  reasoning: 

 Electromagnetic  spectrum,  which  is  neither  a  street 
 nor  a  park,  is  not  a  traditional  public  forum.  Be- 
 cause  the  governments  system  of  licensing  and 
 content  controls  predicated  thereon  precludes  any 
 inference  of  an  intent  to  open  the  airwaves  to  all  who  wish  to  participate,  the  electromagnetic  spec- 

 trum  has  not  been  designated  a  public  forum. 
 Therefore,  the  Court  might  conclude,  the  electro- 
 magnetic  spectrum  is  only  a  nonpublic  forum,  subject  to  whatever  reasonable 
 regulations  on  speech  and  access  the  government  wishes  to  pro- 

 mulgate.  Clearly,  licensing  is  a  reasonable  method  of  precluding  interference.  and  the  content  controls 
 that  are  predicated  on  licensing  are  a  reasonable  adjunct  to  licensing.  They  are  not  only  intended  to 
 provide  an  equitable  distribution  of  licenses,  but 
 also  10  guarantee  unintermpted  access  to  the  media  by  rhe  public.  Therefore,  the  existing  system  of 

 licensing  and  content  controls  [and,  by  extension,  the  proposed  free  TV  for  candidates  mandates  are] 
 constitutional,  as  long  as  broadcasters  are  not 
 precluded  from  gaining  licenses  because  of  their 
 viewpoints  about  issues  that  will  be  the  subject  of  broadcasts  .66 

 67.  Id.  at  46. 
 68.  Spitter.  supra  note  47,  at  1038-  39.  Professor  Spitzer  confesses 

 Lillian  R.  BeVier  31 
 In  other  words,  Professor  Spitzers  argument  suggests  that 
 public  forum  doctrine  might  permit  government  to  require 
 broadcasters  to  provide  free  TV:  spectrum  is  a  nonpublic  forum  owned  by  government,  merely  licensed  to  broadcast- 

 ers;  and  government  may  determine  who  has  access  and  for  what  kind  of  message. 
 According  to  Professor  William  W.  Van  Alstyne,  by 
 contrast,  it  is  possible  to  argue  that  the  First  Amendment 
 might  mandate  third  party  rights  of  access  to  a  broadcast 
 frequency,  which  is  what  free  TV  for  candidates  would  amount  to,  on  the  basis  that  the  frequency  is  public  prop- 

 erty  and  a  natural  public  forum  with  regard  to  which  the 
 government  cannot,  constitutionally,  discriminate  in  favor 
 of  licensees.  69  Professor  Cass  R.  Sunstein  has  endorsed  a 
 somewhat  similar  argument.   
 Although  each  may  have  a  superficial  credibility, 
 neither  of  those  spins  makes  a  persuasive  case  that  the  public  forum  doctrine  offers  constitutional  support  to  the 

 free  TV  proposals.  Indeed,  neither  ultimately  persuades 
 that  the  doctrine  is  genuinely  to  the  point.  But  notice  how 
 different  they  are  and,  accordingly,  how  the  source  of  their 
 weakness  varies.  The  first  theory  props  up  the  free  TV 
 proposals  by  what  is  essentially  a  prerogative-  of-  government-  ownership  argument  that  puts  all  First  Amend- 

 that  the  results  in  the  public  forum  cases  are  sufliciently  disparate  that 
 [he]  cannot  be  certain  about  how  the  public  forum  doctrines  might  be  ap- 
 plied  to  radio  spectrum.  Id.  at  1039  n.  291. 
 69.  WILLIAM  W.  VAN  ALSTYNE.  FIRST  AMENDMENT  CASES  AND  MA- 
 TERIALS  543  (Foundation  Press,  2d  ed.  1995). 
 70.  CASS  R.  SUNSTEIN.  DEU~  CRACY  AND  THE  PROBLEM  OF  FREE 
 SPEECH  103  (Free  Press  1993). 
 71.  See  Robert  M.  ONeil,  Bmadcash~  as  a  Public  Forum,  in  RA- 
 TIONAL=  AND  RATIONALIZATIONS:  Rm-  tm-  wc  THE  ELECTRONIC  MEDIA 
 125  (Robert  Corn-  Revere  ed.,  The  Media  Institute  1997)  (arguing  that 
 public  forum  doctrine  is  inapt  in  the  broadcasting  context  and  that  li- 
 censed  broadcast  outlets  and  cable  systems  cannot  properly  be  classified  as 
 public  fora  for  purposes  of  determining  access.). 
95
 32  Is  Free  TV  Constitutional? 
 ment  objections  to  government  control-  those  of  broadcast-  ers  and  of  ordinary  citizens  alike-  on  the  same  feeble 

 footing.  That  argument  founders  on  the  conceptual  empti-  ness  of  the  claim  of  government  spectrum  ownership, 
 which  provides  illusory  cover  for  what  is  in  reality  a  naked 
 assertion  of  regulatory  power.  The  second  theory  props  up  the  free  TV  proposals  by 

 using  the  utterly  different  strategy  of  implicitly  claiming 
 that  free  TV  is  required  because  it  would  vindicate  cirizens 
 First  Amendment  rights.  The  theory  is  a  variation  on  the  Red  Lion  rights  of  listeners  and  viewers  theme.  It  is 

 worth  noting  that  Red  Lion  is  the  single  exception  to  the  long  line  of  cases  unequivocally  rejecting  its  fundamental 
 premise  that  th&  First  Amendment  is  a  sword  that  gives  the 
 government  power  rather  than  a  shield  protecting  citizens 
 from  government.    In  addition,  apart  from  Red  Lion,  the  Court  has  never  itself  attempted  to  put  doctrinal  flesh  on 

 the  bare  bones  of  its  assertion  of  viewers  and  listeners 
 rights. 

 Red  Lion  Applied.  The  scarcity  argument  upon  which 
 Red  Lion  was  based  has  been  so  profoundly  discredited-  its 
 conceptual  underpinnings  so  thoroughly  undermined,  its  empirical  premises  so  utterly  annihilated-  that  it  provides 

 scant  support  indeed  for  the  current  disparity  in  First 
 Amendment  protection  enjoyed  by  broadcasters  and  the 

 72.  For  a  discussion,  and  rejection,  of  the  so-  called  affirmative  theory 
 of  the  First  Amendment,  see  Lillian  R.  BeVier.  Money  and  Politics:  A 
 Perspective  on  the  First  Amendment  and  Campaign  Finance  Reform,  13 
 CALIF.  L.  REV.  1045  (1985). 
 73.  q  Lillian  R.  BeVier.  An  Informed  Public,  An  Informing  Press: 
 Zhe  Search  for  a  Corutitutional  Principle,  68  CALIF.  L.  REV.  482  (1980) 
 (arguing  that  despite  the  fact  that  there  is  a  crucial  link  between  constitu- 
 tionally  prescribed  processes  and  the  First  Amendment,  the  idea  that  the 
 people  have  an  enforceable  right  to  know  cannot  be  sustained  as  a  mat- 
 ter  of  constitutional  principle). 

 Lillian  R.  Belier  33 
 print  media.  Nevertheless,  until  the  Supreme  Court  explic-  itly  overrules  it,  one  must  contend  with  its  doctrinal  impli- 
 cations.  But  even  if  Red  Lion  itself  is  still  good  law  in  the  sense  that  the  Court  would  adhere  to  its  underlying 
 rationale,  it  does  not  necessarily  confer  a  constitutional 
 blessing  on  free  TV  mandates.  The  Court  has  sanctioned 
 two  different  schemes  that  more  or  less  required  certain 
 content  to  be  broadcast.  In  other  cases,  it  has  both  permit- 
 ted  the  FCC  to  impose  a  more  onerous  ban  on  broadcast 
 speech  than  would  have  been  permissible  to  impose  on  print  media*  and  invalidated  a  congressionally  imposed 

 prohibition  of  certain  broadcaster  speech.  Each  of  the  two  required  content  schemes  is  distin- 
 guishable  in  important  ways  from  the  free  TV  mandates. 
 One  of  them  was  Red  Lion  itself,  in  which  the  Court  sus-  tained  the  fairness  doctrine  and  the  persona1  attack  rules. 

 With  respect  to  the  fairness  doctrine,  it  is  easy  to  forget 
 how  much  discretion  the  broadcasters  retained  over  the  way  in  which-  in  what  format,  at  what  length,  and  with 

 respect  to  what  issues-  they  were  to  fulfill  their  obligation. 
 Theoretically  at  least,  although  fulfilling  the  obligation 
 might  affect  their  programming  decisions  somewhat,  they  retained  sufficient  control  of  their  program  content  so  that 

 they  could  minimize  their  financial  losses.  With  respect  to 
 the  personal  attack  rules,  while  they  did  require  that  broad- 
 casters  give  free  access  to  the  victims  of  personal  at- 
 tacks,  broadcasters  could  avoid  bringing  the  obligation  into 
 play  simply  by  not  engaging  in  personal  attacks.  In  other 
 words,  both  the  fairness  doctrine  and  the  personal  attack 
 rules  left  the  broadcaster  with  significant  discretion  about 

 74.  FCC  v.  Pacitica  Foundation,  438  U.  S.  726  (1978)  (sustaining 
 FCC  ban  on  indecent  programming).  fact~  ca  is  not  relevant  to  the 
 present  discussion  because  the  rationale  for  the  regulation  there  at  issue 
 was  a  combination  of  the  need  to  protect  children  and  captive  audiences 
 and  the  pervasiveness  of  the  broadcast  media. 
 75.  FCC  v.  League  of  Women  Voters.  468  U.  S.  364  (1984). 
96
 34  Is  Free  TV  Constitutional?  Lillian  R.  BeVier  35 
 how  to  structure  broadcast  content.  The  free  TV  proposals,  by  contrast,  appear  to  leave  the  broadcasters  with  virtually 
 no  discretion  about  how  to  fulfill  the  obligation  and  no 
 means  of  escaping  it. 
 The  other  required  content  case  was  CBS,  Inc.  v.  FCC.    The  Supreme  Court  there  sustained  the  FCCs  read- 

 ing  of  section  312(  a)(  7)  of  the  Communications  Act  of 
 1934  to  create  an  affirmative,  promptly  enforceable  right  of 
 reasonable  access  to  broadcast  stations  for  individual  candi-  dates  seeking  federal  office.  n  The  case  is  far  from  being 

 controlling  authority  on  the  constitutionality  of  free  TV 
 mandates,  however,  since  section  312(  a)(  7)  required  broad- 
 casters  to  sell  time  to  candidates,  not  to  give  it  away  as  free  TV  would  require.  Moreover,  even  under  the  rule  in 

 CBS,  broadcasters  were  left  with  considerable  discretion 
 about  how  to  meet  their  obligation.  The  case  that  invalidated  a  congressionally  imposed 

 speech  prohibition  may  cut  against  the  free  TV  mandates 
 constitutionality  under  Red  Lion.  In  FCC  v.  League  of 
 Women  Voters,  78  the  Court  rejected  section  399  of  the 
 Public  Broadcasting  Act  of  1967,  which  prohibited  any 
 noncommercial  educational  station  that  received  a  grant  from  the  Corporation  for  Public  Broadcasting  to  engage  in 

 editorializing.  r)  The  Court  accepted  the  governments 
 assertion  that  section  399  was  designed  to  safeguard  the 
 publics  right  to  a  balanced  presentation  of  public  issues,  sO 
 but  it  was  troubled  by  the  fact  that  the  purpose  was  accom- 
 plished  by  directly  [prohibiting]  the  broadcaster  from 

 76.  453  U.  S.  367  (1981). 
 77.  47  U.  S.  C.  Q  312(  a)(  7). 
 78.  468  U.  S.  364  (1984). 
 79.  47  U.  S.  C.  5  390  et  seq. 
 80.  468  U.  S.  at  385. 

 speaking  out  on  public  issues.*    Although  the  free  TV  pro-  posals  would  not  share  the  direct  prohibition  vice, 
 League  of  Women  Vorers  suggests  that  the  Court  would 
 strictly  scrutinize  them  despite  Red  Lion-  and  strict  scruti-  ny  is  a  process  that  usually  proves  fatal  to  challenged 

 regulations.  **  The  likelihood  of  strict  scrutiny  stems  from 
 the  fact  that  free  TV,  like  section  399,  is  specifically 
 directed  at  [expression]  that  lies  at  the  heart  of  First 
 Amendment  protection,  83  so  the  Court  will  be  especially 
 careful  in  weighing  the  interests  that  are  asserted  [and]  in  assessing  the  precision  with  which  the  regulations  are 

 crafted. 
 The  Same  First  Amendment  Rights  for  Broadcasters? 
 League  of  Women  Voters  suggests  that,  even  under  a  con- 
 stitutional  regime  in  which  Red  Lion  is  good  law,  free  TV  might  have  to  undergo  usually  fatal  strict  scrutiny.  What 

 would  be  free  TVs  fate  if  we  assume  instead  that  Red  Lion 
 is  not  good  law?  The  doctrinal  issues  here  are  not  difficult 
 to  formulate.  Even  when  the  analytical  path  is  not  obscured 
 by  the  scarcity  and  public  ownership  smokescreens,  howev- 
 er,  resolving  the  issues  is  no  simple  task.  One  thing  is  clear:  Congress  could  not  compel  the  print 

 media  to  offer  a  right  to  reply  to  candidates  similar  to  the 
 compelled  right  of  reply  imposed  on  broadcasters  and 
 affirmed  in  Red  Lion.    In  addition,  the  Court  has  on  many 

 81.  Id. 
 82.  As  Professor  Gerald  Gunther  once  observed,  scrutiny  that  is  strict 
 in  theory  is  usually  fatal  in  fact.  Gerald  Gunther,  7lre  Supreme  Courf, 
 1971  Term-  Foreword:  In  Search  o/  Evolving  Doctrine  on  a  Changing 
 Court:  A  Model  for  a  Newer  Equal  Protecrion,  86  HARV.  L.  REV.  I,  8 
 (1972). 
 83.  468  U.  S.  at  381. 
 84.  Id.  at  382. 
 85.  Miami  Herald  Publishing  Co.  v.  Tomillo,  418  U.  S.  241  (1974). 
97
 36  Is  Free  TV  Constitutional? 
 occasions  held  that  private  parties  may  not  be  required  to 
 affirm,&  distribute,  or  offer  a  forum  toS8  points  of  view  or 
 beliefs  with  which  they  disagree.  Those  holdings  suggest  that  the  Court  would  look  with  suspicion  on  the  free  TV 

 mandates  since  they  would  require  broadcasters  to  give  time  to  candidates  whether  they  agreed  with  the  candidates 
 or  not. 
 On  the  other  hand,  the  Court  in  PruneYard  Shopping  Center  v.  Robins  has  sustained  against  a  First  Amendment 

 challenge  a  state  courts  reading  of  a  state  constitutional  provision  to  prohibit  private  shopping  center  owners  from 
 denying  access  to  petition  circulators.  And  in  Turner  Broadcasting  System 
 v.  FCC  (Turner  ll),  W  the  Court,  albeit 
 narrowly,  sustained  the  must-  carry  provisions  of  the 
 Cable  Television  Consumer  Protection  and  Competition  Act  of  1992  in  the  face  of  the  cable  operators  vigorous 

 First  Amendment  challenge.  PruneYard  and  Turner  II  sug-  gest  that  the  mere  fact  that  free  TV  would  compel  broad- 
 casters  to  carry  speech  at  times  not  of  their  own  choosing 
 with  candidates  expressing  views  with  which  the  broad- 
 casters  might  disagree  would  not  necessarily  condemn  the 
 mandates  to  First  Amendment  death.  Mandated  free  TV  would,  however,  condemn  them  to  run  a  highly  nuanced 

 gauntlet  of  First  Amendment  questions. 

 86.  Wooley  v.  Maynard,  430  U.  S.  705  (1977)  (stale  may  not  punish 
 individuals  who  cover  up  the  state  motto  Live  Free  or  Die  on  their  li- 
 cense  plates);  West  Virginia  State  Bd.  Educ.  v.  Bamette.  319  U.  S.  624 
 (1943)  (compulsory  flag  salute  violates  First  Amendment). 
 87.  Pacific  Gas  &  Elec.  Co.  v.  Public  Utils.  Commn.  475  U.  S.  1 
 (1986)  (private  utility  company  may  not  constitutionally  be  required  to 
 distribute  speech  of  a  third  party  with  which  it  disagrees). 
 88.  Hurley  v.  Irish  Am,  Gay,  Lesbian  &  Bisexual  Group  of  Boston, 
 115  S.  Ct.  2338  (1995)  (private  parade  organizers  may  not  be  required  to 
 offer  parade  space  IO  a  group  propounding  a  message  with  which  the  orga- 
 nizers  disagree). 
 89.  447  U.  S.  74  (1980). 
 90.  117  s.  ct.  1174  (1997). 

 Lillian  R.  BeVier  37 
 Content-  Based  or  Content-  Neutral?  First  is  the  ques- 
 tion  of  whether  the  Court  would  deem  free  TV  to  be  a 
 control  on  the  content  of  speech.  If  so,  strict  scrutiny 
 would  ensue,  and  the  mandates  would  be  struck  down  un- 
 less  they  were  finely  tuned  to  serve  a  compelling  state  interest-  some  pressing  public  necessity,  some  essential 

 value  that  has  to  be  preservedn9-  with  the  least  restrictive 
 means.  On  the  other  hand,  if  the  Court  deemed  free  TV  to 
 be  content-  neutral,  the  justices  would  subject  it  to  less  demanding  review  and  would  sustain  it  if  they  thought  it 

 furthers  an  important  or  substantial  governmental  interest;  if  the  governmental  interest  is  unrelated  to  the  suppression 
 of  free  expression;  and  if  the  incidental  restriction  on  al- 
 leged  First  Amendment  freedoms  is  no  greater  than  is 
 essential  to  the  furtherance  of  that  interest.=  In  one  of  its  more  stunning  understatements,  the  Court 

 has  acknowledged  that  [&  eciding  whether  a  particular  reg-  ulation  is  content-  based  or  content-  neutral  is  not  always  a 
 simple  task.  93  Especially  is  that  true  when  the  regulation 
 does  not  on  its  face  discriminate  among  viewpoints  but 
 instead,  like  the  free  TV  proposals,  proceeds  in  terms  of 

 91.  Turner  I,  512  U.  S.  at  680  (OConnor,  J.,  dissenting). 
 92.  United  States  v.  OBrien,  391  U.  S.  367.  377  (1%  8). 
 93.  Turner  I,  512  U.  S.  at  642-  43.  The  Court  elaborated: 

 We  have  said  that  the  principal  inquiry  in  determining  content- 
 neutrality  .  .  is  whether  the  government  has  adopted  a  regulation 
 of  speech  because  of  [agreement  or]  disagreement  with  the  mes- 
 sage  it  conveys.  ,  .  The  purpose,  or  justification.  of  a  regu- 
 lation  will  often  be  evident  on  its  face  But  while  a  content- 
 based  purpose  may  be  sufficient  in  certain  circumstances  to  show 
 that  a  regulation  is  content-  based.  it  is  not  necessary  to  such  a 
 showing  in  all  cases  Nor  will  the  mere  assertion  of  a  con- 
 tent-  neutral  purpose  be  enough  to  save  a  law  which,  on  its  face, 
 discriminates  based  on  content. 

 Id.  (citations  omitted). 
98
 38  Is  Free  TV  Constitutional? 
 subject  matter,  format,  or  speaker  identity. 
 The  Courts  decision  regarding  whether  free  TV  is 
 content-  based  vis-  a-  vis  the  broadcasters  will  turn  in  part  on 
 the  extent  to  which  it  regards  the  mandates  as  a  function  of 
 the  content  of  the  speech  that  the  broadcasters  would  other- 
 wise  utter.  In  describing  the  majoritys  conclusion  that 
 must-  carry  is  content-  neutral,  Justice  Anthony  Kennedy 
 noted  in  Turner  I  that  the  obligation  interfered  with  cable 
 operators  editorial  discretion  by  compelling  them  to  offer  programming  not  of  their  own  choosing  (and  at  a  consider- 

 able  loss  of  revenue).  Still,  he  emphasized,  the  extent  of 
 the  interference  does  not  depend  upon  the  content  of  the  cable  operators 
 programming.  94  If  that  reasoning  were  to 
 be  applied  to  the  free  TV  mandates,  they  too  would  be 
 found  content-  neutral:  they  would  interfere  with  broadcast-  ers  editorial  discretion  and  cause  them  considerable  finan- 

 cial  pain,  9z  but  the  interference  would  not  be  a  function  of 
 or  in  any  way  related  to  the  content  of  the  broadcasters 
 programming. 
 But  the  Courts  decision  regarding  whether  free  TV  is  content-  neutral  may  not  treat  as  controlling  the  fact  that  the 

 required  candidate  access  is  not  a  function  of  the  broadcast-  ers  speech.  Instead,  what  might  matter  most  is  that  the 
 mandates  are  speaker-  identity,  subject-  matter,  and  format- 
 specific.  True,  the  mandates  do  not  single  out  particular 
 viewpoints  for  more  or  less  favorable  treatment.  Apart 
 from  the  fact  that  they  lack  that  inevitably  fatal  flaw,  it  is 
 hard  to  imagine  regulations  that  would  be  less  content- 
 neutral:  looked  at  through  the  lens  of  what  they  require  of 
 candidates  to  become  entitled  to  their  benefits,  they  not  only  prescribe  the  generic  class  of  qualified  speakers  (cer- 

 94.  Id.  at  644  (emphasis  added). 
 95.  The  most  common  estimate  of  cost  is  $500  million  per  two-  year 
 election  cycle,  an  amount  that  Paul  Taylor  thinks  is  small  change  IO  the 
 industry.  Taylor,  Fur  Cat  Broadcusfers,  supra  note  22,  at  2. 

 p  : 
 ,. 

 I 
 I 

 Lillian  R.  BeVier  39 
 tain  candidates  for  federal  office)  but  also  dictate  the  sub- 
 ject  matter  and  the  format  of  the  speech.  In  rejecting  strict 
 scrutiny  in  Turner  Z,  the  Court  noted  several  significant  features  of  the  must-  carry  obligations  that  free  TV  propos- 

 als  do  not  share.  Must-  carry  was  found  to  be  content- 
 neutral  because  Congress  did  not  design  it  to  promote 
 speech  of  a  particular  content  nor  %s  a  means  of  ensuring 
 that  particular  programs  will  be  shown.%  The  free  TV  re- 
 quirements,  on  the  other  hand,  would  ordain  the  topic  and  are  plainly  designed  to  guarantee  that  certain  kinds  of 

 speech  will  be  broadcast.  Moreover,  in  Turner  2  the  Court 
 noted  with  approval  in  connection  with  federal  funding  of  noncommercial  stations  through  the  Corporation  for  Public 

 Broadcasting  that  the  Government  is  foreclosed  from 
 using  its  financial  support  to  gain  leverage  over  any  pro- 
 gramming  decisions.  n97  And  it  reiterated  its  long  commit-  ment  to  negating  the  risk  of  an  enlargement  of  govern- 

 ment  control  over  the  content  of  broadcast  discussion  of 
 public  issuesn9-  a  risk  that  would  materialize  in  spades 
 should  the  free  TV  mandates  be  implemented.  When  the  Court  said  that  deciding  whether  a  particular 

 regulation  is  content-  based  is  not  always  .  .  .  simple,  it  could  well  have  gone  on  to  state  the  analytic  corollary: 
 predicting  what  the  Court  will  decide  is  an  exercise  in 
 guesswork,  hunch,  and  intuition  every  bit  as  much  as  it  is 
 an  exercise  in  case  parsing  and  straightforward  legal  analy- 
 sis.  99  The  jurisp  rudence  of  content  control  would  give  a  Court  determined  to  engage  in  lenient  review  a  plausible  if 

 not  wholly  persuasive  rationale  for  doing  so.  To  me,  how- 
 ever,  it  seems  more  likely  that  the  Court  will  find  the  free 

 96.  Turner  I,  512  U.  S.  at  649-  50. 
 97.  Id.  at  651. 
 98.  Id.  at  652  (citation  omitted). 
 99.  The  best  general  treatment  is  Geoffrey  R.  Stone,  Conrenr-  Neurrul 
 Resfricfions.  54  U.  CHI.  L.  REV.  46  (1987). 
99
 40  Is  Free  TV  Constitutional? 
 TV  mandates  content-  based,  if  only  as  a  means  of  estab-  lishing  a  predicate  for  strictly  scrutinizing  them.  The  free 
 TV  mandates  would  embody  such  intrusive,  particularistic, 
 and  overbearing  governmental  judgments  regarding  the 
 conduct  of  political  campaigns  that  the  Court  will  almost 
 certainly  insist  on  a  painstaking  and  skeptical  evaluation  of 
 the  goals  they  supposedly  serve  and  their  aptness  as  means. 
 And  as  most  Court  watchers  know,  scrutiny  that  is  strict  in 
 theory  is  almost  always  fatal  in  fact.  Even  if  the  Court  were  to  determine  that  the  free  TV 

 mandates  are  content-  neutral,  however,  so  that  they  would  be  given  only  intermediate  scrutiny,  they  would  have  a 
 difficult  time  passing  constitutional  muster.  A  regulations 
 surviving  OBriens  less  exacting  inquiry  into  means-  ends 
 relationships  still  requires  the  Court  to  be  persuaded  that 
 the  governments  interest  is  important,  substantial,  and  unrelated  to  the  suppression  of  free  expression.  In  addition, 

 [w]  hen  the  Government  defends  a  regulation  on 
 speech  as  a  means  to  redress  past  harms  or  prevent 
 anticipated  harms,  it  must  do  more  than  simply 
 posit  the  existence  of  the  disease  sought  to  be 
 cured.  .  .  .  It  must  demonstrate  that  the  recited  harms  are  real,  not  merely  conjectural,  and  that  the 

 regulation  will  in  fact  alleviate  these  harms  in  a  direct  and  material  way.  lm 

 Regardless,  therefore,  of  whether  the  Court  applies 
 strict  or  intermediate  scrutiny  to  the  free  TV  mandates,  it 
 will  have  to  discern,  articulate,  and  assess  the  govern- 
 ments  interest;  it  will  have  to  determine  whether  the  inter-  est  is  related  to  the  suppression  of  expression;  and  it  will 

 have  to  gauge  the  mandates  effectiveness  in  terms  of  the  posited  goals.  I  now  turn  to  the  analysis  of  those  matters, 

 100.  Turner  I,  512  U.  S.  at  664  (quoting  Quincy  Cable  TV.  Inc.  v. 
 FCC,  768  F.  2d  1434,  1455  (D.  C.  Cir.  1985)). 

 I 

 Lillian  R.  BeVier  41 
 all  of  which-  if  the  Court  takes  them  seriously-  bode  ill 
 for  the  constitutional  fate  of  the  free  TV  proposals.   

 The  Government  Interest.  Supporters  have  asserted 
 that  free  TV  would  accomplish  four  principal  goals.  First, 
 by  striking  a  blow  at  paid  political  advertising-  the  single 
 most  expensive  part  of  any  political  campaign,    free  TV 
 would,  in  the  words  of  President  Clinton,  diminish  the 
 impact  of  excessive  money  in  politics.  03  Second,  by  fos- 
 tering  a  campaign  discourse  that  favors  words  over  imag- 
 es  and  substance  over  sound  bites,  lM  free  TV  would 
 raise  the  level  of  discourse.  And  it  would  serve  as  an 

 101.  Note  two  caveats.  First.  since  proponents  of  free  TV  have  to  date  offered  no  sustained  defense  of  their  idea,  it  is  possible  that  they 
 would  characterize  or  formulare  the  interests  that  the  mandates  supposedly 
 serve  differently  from  the  way  they  have  done  so  far.  11  is  also  possible 
 that  different  formulations  of  the  goals  they  seek  to  accomplish  would  sub- 
 stantially  affect  the  Courts  assessmen(  of  the  states  interest.  Thus,  what  I 
 offer  here  is  an  effort  IO  articulate  and  evaluate  free  TVs  goals  as  they 
 have  until  now  been  enunciated.  Should  different  goals  be  posited,  differ- 
 ent  evaluations  might  emerge.  Second,  since  the  analysis  here  is  of  gener- 
 ic  free  TV  proposals,  rather  than  of  any  particular  species  of  mandate,  my 
 examination  of  means-  end  relationships  will  be  less  finely  grained  than 
 were  it  to  focus  on  a  specific  plan. 
 102.  Representative  Louise  Slaughter  (D-  N.  Y.).  Press  Release  on  the 
 occasion  of  her  Introduction  of  H.  R.  84:  Fairness  in  Political  Advertising 
 Act,  which  would  require  television  stations  LO  offer  free  television  time 
 to  candidates  for  statewide  or  federal  office  in  exchange  for  renewing  or 
 receiving  their  broadcasting  license.  Mar.  1  I,  1997. 
 103.  Remarks  to  the  Conference  on  Free  TV  and  Political  Reform  and 
 an  Exchange  with  Repouers,  33  WEEKLY  COMP.  PRES.  Dot.  330  (Mar. 
 11,  1997)  [hereinafter  Clinton  Remarks  on  Free  m. 
 104.  Lawrence  ORourke,  One  Idea  to  Halt  TV  Money  Rush:  Make 
 Ads  Free,  SACRAMENTO  BEE,  May  27,  1997,  at  Al2  (quoting  Paul 
 Taylor)  (  Free  time  would  reduce  negative  advertising.  .  .  .  By  requiring 
 that  candidates  talk  directly  to  the  camera,  free  time  would  raise  the  level 
 of  campaigns.  .  .  The  goal  is  not  10  dull  the  thrust-  and-  parry  of  politics 
 but  to  foster  a  campaign  discourse  that  favors  words  over  images  and  sub- 
 stance  over  sound  bites.), 
100
 42  Is  Free  TV  Constitutional?  Lillian  R.  BeVier  43 
 antidote  to  the  unregulated  hit-  and-  run  campaigning  of 
 outside  groups  .  .  .  and  the  civic  corrosion  of  political  attack  ads.  rM  Third,  free  TV  would  equalize  the  playing 

 field.  to6  And  fourth,  because  deceptive  television  ads  .  .  .  deepen  cynicism  and  depress  turnout,  free  TV 
 would,  again  in  the  words  of  President  Clinton,  restore  the 
 broad  confidence  of  the  American  people  but  also  of  the  American  press  that  comments  on  it.  lm 

 Whether  one  characterizes  them  as  trivial  or  important, 
 vapid  or  substantial,  the  first  of  those  four  goals  is  highly 
 problematic  in  First  Amendment  terms.  It  conflicts  funda- 
 mentally  and  profoundly  with  the  amendments  core  prem-  ises.  The  elaborate  and  sometimes  mystifying  doctrinal 

 framework  that  characterizes  First  Amendment  jurispru- 
 dence  sometimes  tempts  regulators  to  forget  that  the  cases 
 rest  on  a  remarkably  solid  and  unyielding  foundation  of  political  freedom.  lo9  The  governing  p  rinciples  celebrate  the 

 105.  Paul  Taylor,  Creure  a  TV  lime  Bank,  NEW  DEMOCRAT,  May- 
 June  1997.  at  14. 
 106.  Slaughter,  supra  note  102. 
 107.  Paul  Taylor,  quoted  in  Jaqucline  Myers,  Election  Over  but  Not 
 Campaign;  Gvnpaiign  for  Free  Air  Time  for  Political  Gmdidates.  85  THE 
 QUILL  10  (Jan.  1997). 
 108.  Clinton,  Remarks  on  Free  TV,  supra  note  103. 
 109.  I  have  previously  argued: 

 The  government  may  not  interfere  in  [citizens]  efforts  to  persuade 
 their  fellow  citizens  of  the  merits  of  particular  proposals;  nor  may 
 it  disrupt  the  free  communication  of  their  views,  nor  penalize 
 them  for  granting  or  withholding  their  support  from  elected  offi- 
 cials  on  the  basis  of  the  positions  those  officials  espouse.  Govem- 
 ment  may  neither  prescribe  an  offtcial  orthodoxy,  require  the 
 affirmation  of  particular  beliefs,  nor  compel  citizens  to  support 
 causes  or  political  activities  with  which  they  disagree.  Government 
 may  neither  punish  its  critics  nor  impose  unnecessary  burdens  on 
 their  political  activity.  .  .  To  remain  faithful  to  those  principles, 
 one  must  be  vigilant  to  detect  the  costs  to  freedom  lurking  in  re- 
 form  proposals  that  come  dressed  as  benign  efforts  to  achieve  a 

 liberty  of  individuals  and  private  associations  to  decide  for 
 themselves  what  resources  to  devote  to  political  activity 
 and  abjure  the  idea  that  government  may  regulate,  judge, 
 or  in  any  way  control  the  substance  or  quality  of  political  debate. 

 Buckley  v.  Valeo    is  the  flagship  case  that  translated 
 those  principles  into  doctrine  in  the  specific  context  of 
 campaign  finance  regulation.  Not  only  has  Buckley  not 
 been  overruled,  but  it  has  stood  as  a  remarkably  robust 
 precedent  in  the  seven  major  campaign  finance  regulation 
 cases  that  the  Court  has  decided  since.    Buckley  denies 
 government  the  power  to  pursue  the  first  goal  asserted  for 
 free  TV.  A  straight-  faced  argument  that  government  may  regulate  campaign  activity  so  as  to  diminish  the  impact  of 

 excessive  money  in  politics  would  be  virtually  impossible  to  maintain  in  the  teeth  of  the  following  straightforward 
 Supreme  Court  pronouncement: 
 The  First  Amendment  denies  govemmenr  the  power 
 to  determine  that  spending  to  promote  ones  politi-  cal  views  is  wasteful,  excessive,  or  unwise.  In  the 

 free  society  ordained  by  our  Constitution  it  is  nor 
 the  government  but  the  people-  individually  as  citizens  and  candidates  and  collectively  as  associa- 

 tions  and  political  committees-  who  must  retain 
 control  over  the  quantity  and  range  of  debate  on  public  issues  in  a  political  campaign.  I2 

 healthy  politics. 
 Lillian  R.  BeVicr.  Campaign  Finance  Reform  Proposals:  A  Firsr 
 Amendment  Analysis,  CATO  INSTITUTE  POLICY  ANALYSIS  no.  282.  at  22 
 (Sept.  4.  1997)  (footnotes  omitted)  [hereinafter  Cumpoign  Finance  Re- 
 form  I. 
 110.  424  U.  S.  1  (1976). 
 111.  For  a  description  and  analysis  of  the  cases,  see  BeVier,  Cam- 
 paign  Finance  Reform,    supra  note  109.  at  26-  29. 
 112.  424  U.  S.  at  57  (emphasis  added). 
101
 44  Is  Free  TV  Constitutional?  Lillian  R.  BeVier  45 
 No  single  flagship  case  crystallizes  the  First  Amend- 
 ments  hostility  to  government  efforts  to  improve  the 
 conduct  and  discourse  of  politics  or  to  combat  negative 
 campaigning.    Time  and  again,  however,  the  Court  has  extolled  our  profound  national  commitment  to  the  princi- 

 ple  that  debate  on  public  issues  should  be  uninhibited,  robust,  and  wide-  open,  and  that  it  may  well  include  vehe- 
 ment,  caustic  and  sometimes  unpleasantly  sharp  attacks  on 
 government  and  public  officials.    While  the  Court  has 
 acknowledged  that  there  is  no  constitutional  value  in  false  statements  of  fact,  14  it  has  held  that  the  commitment  to 

 uninhibited  debate  is  a  virtual  trump  that  substantially  limits  the  ability  of  public  officials  to  recover  damages 
 from  defendants  who  utter  false  statements  about  their 
 official  performance.  I5  Time  and  again,  too,  the  Court  has 
 affirmed  that  the  freedoms  protected  by  the  First  Amendment  are  delicate  and  vulnerable  and  must  have 

 adequate  breathing  space  to  survive.  6  For  example,  the 
 Court  is  convinced  that  trying  to  protect  public  discourse 
 from  outrageous  speech  would  have  an  inherent  subjec- 
 tiveness  about  it  which  would  allow  a  jury  to  impose  liabil- 
 ity  on  the  basis  of  the  jurors  tastes  or  views,  or  perhaps  on  the  basis  of  their  dislike  of  a  particular  expression.   

 Accordingly,  a  public  official  may  not  recover  damages  for 
 intentional  infliction  of  emotional  distress  without  showing 
 that  the  offending  publication  contains  a  false  statement 
 made  in  reckless  disregard  of  the  truth.  18  And  time  and  again  the  Court  has  defended  the  proposition  that  govern- 

 113.  New  York  Times  Co.  v.  Sullivan,  376  U.  S.  254.  270  (1964). 
 114.  See,  Gertz  v.  Robert  Welch,  Inc.,  418  U.  S.  323,  e.  g.,  344 
 (1974). 
 115.  See,  e.  g.,  New  York  Times  Co.  v.  Sullivan,  376  U.  S.  254 
 (1964). 
 116.  NAACP  v.  Button,  371  U.  S.  415,  433  (1963). 
 117.  Hustler  Magazine  v.  Falwell,  485  U.  S.  46,  55  (1988). 
 118.  Id. 

 mental  bodies  may  not  prescribe  the  form  or  content  of 
 individual  expression  :  I9 

 I  i 
 I 
 I 

 I 
 1 
 I 

 I 

 I 
 I 

 I 

 The  constitutional  right  of  free  expression  is  pow-  erful  medicine  in  a  society  as  diverse  and  populous 
 as  ours.  It  is  designed  and  intended  to  remove  governmental  restraints  from  the  arena  of  public 
 discussion,  putting  the  decision  as  to  what  views  shall  be  voiced  largely  into  the  hands  of  each  of  us, 
 in  the  hope  that  use  of  such  freedom  will  ultimately  produce  a  more  capable  citizenry  and  more  perfect 
 polity  and  in  the  belief  that  no  other  approach  would  comport  with  the  premise  of  individual 
 dignity  and  choice  upon  which  our  political  system  rests. 

 In  light  of  those  often  eloquently  stated  and  consistently 
 affirmed  First  Amendment  principles,  the  second  goal 
 sought  by  proponents  of  free  TV  for  candidates  appears  to  be  out  of  constitutional  bounds.  No  precedent  supports  the 

 use  of  governments  coercive  power  to  improve  the  dis- 
 course  of  politics  and  combat  negative  campaigning, 
 whereas  the  precedents  prohibiting  pursuit  of  such  a  goal 
 are  abundant  and  unwavering.  Buckley  v.  Vale0 
 provides  limited  guidance  on  the  issue 
 of  whether  the  government  may  pursue  the  third  goal  as- 
 serted  in  behalf  of  free  TV,  namely  that  of  equalizing  the 
 playing  field.  The  Court  in  Buckley  expressed  hostility  to 
 equalization  efforts:  the  concept  that  government  may 
 restrict  the  speech  of  some  elements  in  our  society  in  order 
 to  enhance  the  relative  voice  of  others  is  wholly  foreign  to 

 I 
 119.  Cohen  v.  California.  403  U.  S.  15,  24  (1971)  (reversing  the  con- 
 viction,  for  disturbing  the  peace,  of  a  defendant  who  was  observed  in  the 
 corridor  of  a  municipal  court  building,  wearing  a  jacket  bearing  the  words 
 Fuck  the  Draft). 
 120.  Id. 
102
 46  Is  Free  TV  Constitutional? 
 the  First  Amendment.  n2  Providing  free  TV  for  all  federal  candidates  does  not  necessarily  fall  under  that  prohibition. 
 Mandating  that  broadcasters  provide  free  TV  time  would 
 restrict  their  speech-  or  at  least  their  editorial  discretion-  but  it  would  not  do  so  to  enhance  the  relative  voice  of  their 

 competitors.  It  would  attempt  to  equalize  the  relative  voices 
 of  candidates  vis-  l-  vis  one  another,  but  in  doing  so  it 
 would  not  restrict  any  candidates  speech. 
 Under  OBrien,  though,  the  goal  of  equalizing  the  playing  field  of  speech  opportunities  enjoyed  by  candi- 

 dates  vis-  Svis  one  another  seems  likely  to  be  found  to  be  a 
 goal  that  is  not  unrelated  to  the  suppression  of  free  expres-  sion,  since  the  need  to  equalize  is  a  function  of  differences 

 in  communicative  impact  that  would  presumably  arise 
 absent  equalization.  A  conclusion  that  such  is  the  case 
 would  not  necessarily  be  fatal  to  the  attempt  to  pursue  the  goal,  but  it  would  dictate  that  the  Court  engage  in  explicit- 

 ly  strict  scrutiny. 
 Only  the  fourth  of  the  goals  that  free  TV  would  suppos-  edly  accomplish-  namely,  the  goal  of  restoring  the  confi- 

 dence  of  the  American  people-  seems  likely  to  be  unequiv- 
 ocally  endorsed  by  the  Court.  The  Court  has  never  held 
 such  a  goal  to  be  illegitimate.  Indeed,  in  one  case  where  a 
 similarly  formulated  goal-  that  of  preventing  diminution  of  the  citizens  confidence  in  government  23-  was  asserted 

 in  defense  of  a  prohibition  of  corporate  campaign  speech, 
 the  Court  called  it  a  goal  of  the  highest  importance.  24 
 Despite  that,  the  Court  determined  that  the  interest  was 

 121.  Buckley,  424  U.  S.  at  48-  49. 
 122.  For  a  discussion  of  how  a  finding  that  a  governmental  interest  is 
 not  unrelated  to  the  suppression  of  free  expression  switches  the  Court  to 
 a  substantially  more  demanding  level  of  scrutiny,  see  John  Hart  Ely, 
 Flag  Desecration:  A  Case  Study  in  the  Roles  of  Categorization  and  Bal- 
 ancing  in  First  Amendment  Analysis,  88  HARV.  L.  REV.  1482  (1975). 
 123.  First  National  Bank  v.  Bellotti,  435  U.  S.  765.  787  (1978). 
 124.  Id.  at  789. 

 Lillian  R.  BeVier  47 
 insufficient  to  sustain  the  speech  regulation  there  at  issue,  because  no  evidence  existed  to  support  the  governments 
 claim  that  democratic  processes  were  being  undermined  by 
 the  practices  in  question.  25 

 The  Relationship  of  Means  to  Ends.  Assume  arguendo  an  unlikely  proposition,  namely,  that  the  Court  would  find 
 all  four  of  free  TVs  posited  goals  to  be  important  and 
 constitutionally  legitimate.  The  next  task  for  proponents 
 would  be  to  demonstrate  that  the  goals  are  real,  not  merely  conjectural  or  rhetorical,  and  that  free  TV  would  achieve 

 them  in  a  direct  and  immediate  way.  Here,  unless  they  are 
 able  to  come  up  with  more  substantial  evidence  than  they  have  produced  to  date,  the  proponents  are  likely  to  foun- 

 der.  Indeed,  it  is  as  apt  to  note  of  the  free  TV  proposals  as 
 of  the  recent  spate  of  campaign  finance  regulations  that 
 they  are  neither 

 premised  on  empirical  analysis,  nor  derived  from  established  postulates,  nor  defended  in  terms  of 
 predictions  about  testable  results.  Rather  [they]  rest  on  pejorative  and  highly  charged  rhetoric,  [are] 
 formulated  in  ill-  defined  but  evocative  terms,  and  .  .  .  defended  with  extravagant  claims  about  benign 
 effects.  Yet  upon  analysis,  the  picture  the  [free  TV  proponents]  paint-  both  of  political  reality  and  of 
 the  goals  of  reform-  is  so  vague  that  it  begs  all  the  important  questions.  lz6 

 Merely  posing  some  of  the  questions  that  the  free  TV 
 proposals  beg  makes  the  analytical  point.  First,  even  as- 
 suming  that  reforming  skyrocketing  costs  of  running  for 
 office  is  a  legitimate  legislative  project,  how  could  giving  federal  candidates  free  TV  time  keep  overall  costs  down? 

 125.  Id. 
 126.  BeVier,  Campaign  Finance  Reform,  *  supra  note  109.  at  24 
103
 48  Is  Free  TV  Constitutional?  Lillian  R.  BeVier  49 
 Since  any  effort  actually  to  prohibit  candidates  from 
 continuing  to  spend  on  their  campaigns  would  run  into  an  impenetrable  constitutional  barrier,  r2  what  besides  wishful 

 thinking  would  prevent  candidates  from  using  the  money 
 saved  by  free  TV  to  engage  in  other  expensive  campaign 
 maneuvers?  Second,  again  confronted  by  the  impenetrable  consti- 

 tutional  barrier  to  candidate  spending  limits,  so  that  candi-  dates  with  access  to  more  resources  could  continue  to 
 spend  more  even  after  accepting  free  TV,  how  would  providing  free  TV  to  less  well-  financed  candidates  equal- 
 ize  the  playing  field?  Even  if  proponents  somehow  found  a  way  to  equalize  the  total  spending  of  candidates  accepting 
 free  TV,  how  would  the  incumbents  already  considerable 
 advantage  be  equalized  away? 
 Third,  given  that  direct  regulations  of,  or  prohibitions 
 regarding,  the  content  and  quality  of  political  discourse  are  placed  beyond  legislative  power  by  the  First  Amendment, 

 how  would  merely  providing  free  TV  time  to  candidates 
 foster  a  campaign  discourse  that  favors  words  over  images 
 and  substance  over  sound  bites?  Fourth,  what  evidence  exists  that  citizens  were  actually 

 and  to  their  detriment  misled  by  what  proponents  of  free  TV  claim  were  deceptive  ads  in  the  1996  campaign  or  at 
 other  times?  And  even  if  citizens  were,  why  is  it  not 
 enough  that  the  candidates  are  free  to  engage  in  counter 
 speech?  (Do  we  really  want  the  government  to  monitor  the 
 truthfulness  of  campaign  speech,  to  begin  canvassing  past  campaign  speech  and  voters  reaction  to  it,  to  determine 

 whether  all  the  claims  were  true  and,  if  not,  whether  citi-  zens  were  misled  by  false  claims?  The  implications  of  such 
 an  inquiry  are  truly  devastating  to  the  idea  of  a  self- 
 governing  people.)  Moreover,  if  citizens  have  recently  be-  come  more  cynical  about  politics  and  have  lost  some  of 

 their  confidence  in  government,  what  evidence  supports  the 
 claim  that  such  a  phenomenon  is  accounted  for  by  the  way 
 politicians  campaign  rather  than  by  the  way  they  behave 
 when  in  oflice? 
 Finally,  upon  what  evidence  do  advocates  of  free  TV 
 think  that  there  is  a  real  hunger  for  political  informa- 
 tion,  28  and  what  makes  them  think  that  free  TV  would 
 satisfy  that  appetite?  Upon  what  evidence  do  they  conclude 
 that  citizens  hungry  for  political  information  cannot  find  plenty  to  satisfy  them  from  the  rich  and  varied  menu  now 

 provided  by  the  free-  that  is,  genuinely  unregulated- 
 political  debate?  If  the  Court  takes  at  all  seriously  its  obligation  to  call 

 what  appears  on  the  present  state  of  the  evidence  to  be  a 
 rhetorical  bluff  of  free  TVs  proponents-  if  it  truly  requires 
 them  to  demonstrate  that  the  recited  harms  are  real,  not  merely  conjectural,  bnd  that  the  regulation  will  in  fact 

 alleviate  these  harms  in  a  direct  and  material  way  29-  the  proponents  will  have  to  come  up  with  well-  founded  an- 
 swers  to  the  kinds  of  questions  posed  above.  They  will,  in 
 other  words,  have  to  offer  a  defense  much  more  solid  than 
 the  vague  generalities  and  unsupported  assertions  about  causes  and  effects  that  they  have  offered  so  far. 

 The  First  Amendment  Rights  of  Candidates.  The  implic- 
 itly  skeptical  empirical  premise  of  the  foregoing  rhetorical 
 questions  is  that,  unless  it  is  bolstered  by  significant  addi- 
 tional  constraints,  free  TV  alone  will  do  little  to  accomplish 
 its  proponents  highly  touted  goals.  Accordingly,  the  pro- 
 posals  contemplate  regulating  the  speech  of  candidates  who  accept  free  TV  by  exacting  some  kind  of  quid  pro  quo 

 from  them:  candidates  must  agree  to  appear  in  person,  to 

 127.  Buckley,  424  U.  S.  at  82. 
 128.  James  Bennett,  Perils  oj  Free  Air  7he.  N.  Y.  TIMES,  Mar.  13. 
 1997.  at  Al  (quoting  Paul  Taylor). 
 129.  Turner  I.  512  U.  S.  at  664. 
104
 50  Is  Free  TV  Constitutional?  Lillian  R.  BeVier  51 
 face  the  camera,  to  talk  for  a  specified  length  of  time,  or  to 
 accept  limits  on  overall  campaign  spending,  or  they  must  agree  to  all  of  those  conditions.  Restrictions  like  those-  on 

 the  quality,  quantity,  content,  or  format  of  political  cam- 
 paign  speech-  would  surely  not  be  tolerated  if  Congress  or 
 the  FCC  attempted  to  impose  them  as  free-  standing  rules.  3o 
 Proponents  of  free  TV  may  think  that  the  restrictions  will 
 enjoy  a  different  constitutional  fate  if  they  are  defended  as 
 reasonable  conditions  on  candidates  receipt  of  govern-  mentally  provided  subsidies.  But  proponents  would  be 

 mistaken. 
 Proponents  would  begin  their  defense  of  the  conditions  by  analogizing  them  to  provisions  implicitly  endorsed  by 

 the  Court  in  Buckley,  when  it  qualified  its  otherwise  un-  equivocal  rejection  of  expenditure  limitations: 

 Congress  may  engage  in  public  funding  of  election 
 campaigns  and  may  condition  acceptance  of  public 
 funds  on  an  agreement  by  the  candidate  to  abide  by 
 specified  expenditure  limitations.  Just  as  a  candi- 
 date  may  voluntarily  limit  the  size  of  the  contribu- 
 tions  he  chooses  to  accept,  he  may  decide  to  forgo  private  fundraising  and  accept  public  funding.   

 Proponents  of  free  TV  would  also  cite  Rust  v.  Suflivan,  32  in  which  the  Court  sustained  against  First  Amendment 
 challenge  a  Department  of  Health  and  Human  Services  gag  rule  that  prohibited  recipients  of  federal  family  plan- 
 ning  funds  from  providing  abortion  information.  The  Court 
 held  that  the  gag  rule  was  a  permissible  means  of  safe- 
 guarding  the  integrity  of  the  government  program  for 
 which  taxpayer  funds  were  being  expended.  33 

 130.  See  text  accompanying  noles  97-  105.  sup.  131.  Buckley,  424  U.  S.  at  57  n.  65. 
 132.  500  U.  S.  173  (1991).  133.  Rust,  500  U.  S.  at  196  (  the  Government  is  simply  insisting  that 

 f  * 
 Proponents  of  free  TV  would  reason  that  because  candi- 
 dates  would  receive  free  TV  time,  Buckley  and  Rust  would 
 support  the  imposition  on  them  of  quality,  content,  or 
 format  restrictions  to  achieve  the  purposes  of  the  govern- 
 ment  program.  But  neither  Rust  nor  Buckley  would  support  them  because  the  key  fact  in  both  cases  was  that  the  subsi- 

 dy  was  supplied  by  the  tqayers.  The  key  fact  about  free 
 TV,  on  the  other  hand,  is  that  the  subsidy  would  be  provid- 
 ed  by  the  broadcasters. 
 Indeed,  analysis  of  free  TV  in  terms  of  Buckley  and  Rust  exposes  the  proposals  for  the  constitutional  shell  game 

 that  they  are.  Broadcasters  would  have  no  First  Amend- 
 ment  rights  to  resist  compliance  with  the  free  TV  man- 
 dates,  proponents  say,  because  spectrum  scarcity  or  some  variation  of  the  public  ownership  trope  permits  government 

 to  regulate  licensees  speech  in  the  public  interest;  they 
 would  have  no  Fifth  Amendment  right  to  compensation  because  the  property  to  be  taken  does  not  belong  to 

 them;  and  candidates  would  have  no  First  Amendment 
 right  to  resist  compliance  with  the  format,  quality,  or 
 content  controls,  because  they  would  be  permitted  to  speak  for  free.  It  does  not  require  X-  ray  vision  to  detect  the 

 conceptual  emptiness  of  that  series  of  tricky  doctrinal  ma- 
 neuvers.  The  First  Amendment  edifice  of  political  freedom 
 that  the  Court  has  so  painstakingly  constructed  seems  un- 
 likely  to  yield  to  such  transparently  feeble  arguments  on 
 behalf  of  overbearing  government  control. 

 The  Proposals  Assessed 
 The  basic  idea  of  free  TV  for  political  candidates  lacks  a  constitutional  foundation.  Nor  can  it  be  justified  in  policy 
 terms.  Those  conclusions  do  not  fundamentally  change  de- 
 pending  on  which  particular  proposal  one  considers:  the 

 public  funds  be  spent  for  the  purposes  for  which  they  were  authorized) 
105
 52  Is  Free  TV  Constitutional? 
 constitutional  devil  in  those  proposals  lurks  in  their  very 
 conception,  while  the  policy  devil  lurks  in  the  mismatch  of 
 ends  and  means  that  inevitably  follows  when  policymakers 
 attempt  to  give  real-  world  shape  to  basically  ill-  conceived 
 notions.  Since  that  is  the  case,  quibbling  over  regulatory  detail  at  this  stage  of  the  debate  would  be  unproductive. 

 Thus,  this  monograph  does  not  undertake  either  to  describe 
 or  to  examine  the  particulars  of  any  of  the  proposals.  In- 
 deed,  President  Clintons  call  for  free  TV  for  political 
 candidates  in  his  1998  State  of  the  Union  address,  and  the 
 surfacing  of  such  a  proposal  by  FCC  Chairman  William 
 Kennard  immediately  thereafter,  suggest  that  the  details  of 
 perhaps  the  most  prominent  proposals  have  yet  to 
 be  determined.  34 

 The  Proposals.  To  enhance  appreciation  of  the  constitu- 
 tional  and  policy  issues  that  they  raise,  I  briefly  summarize 
 the  most  prominently  touted  of  the  plans--  two  that  have 
 been  introduced  in  Congress  and  one  that  has  been  advocat- 
 ed  by  a  private  group. 

 The  MeCain-  Feingold  Bill.  One  version  of  the  McCain-  Feingold  Bipartisan  Campaign  Reform  Act  of 
 1997,  S.  25,  included  a  free  TV  time  provision.  It  would  have  amended  section  315  of  the  Communications  Act  of 
 1934  35  the  equal  time  for  candidates  provision,  to  re-  quire  broadcasting  stations  within  a  candidates  state  or  an 
 adjacent  state  to  provide  eligible  Senate  candidates  with  thirty  minutes  of  free  prime  broadcast  time.  36  To  become 
 eligible  for  the  time,  Senate  candidates  would  have  had 

 Ldlian  R.  BeVier  53 
 to  agree  to  abide  by  campaign  spending  limits  and  to  limit  their  acceptance  of  contributions  from  out-  of-  state  do- 
 nors.  No  single  station  would  have  had  to  provide  more 
 than  fifteen  minutes  of  free  time;  and  candidates  would 
 have  been  required  to  use  the  time  in  segments  of  not  less 
 than  thirty  seconds  or  more  than  five  minutes.  13*  Within  a 
 certain  prescribed  time  before  an  election,  the  bill  would  in 
 addition  have  required  stations  to  sell  broadcast  time  to 
 eligible  candidates  at  50  percent  of  the  stations  lowest 
 charge  .  .  .  for  the  same  amount  of  time  for  the  same  period  on  the  same  date.  13 

 The  Slaughter  Bill.  In  March  1997  Representative  Louise  Slaughter,  a  Democrat  from  New  York,  introduced 
 H.  R.  84,  the  Fairness  in  Political  Advertising  Act.  In  exchange  for  receiving  or  renewing  a  broadcast  license,  the 
 act  would  have  required  broadcasters  to  offer  free  TV  time 
 to  candidates  for  statewide  or  federal  office.  Stations  would  have  been  required  to  offer  an  equal  amount  of  free 

 time  per  candidate,  but  not  less  than  a  total  of  Lwo  hours 
 and  in  units  of  not  more  than  five  minutes  and  not  less  than 
 ten  seconds.  No  broadcaster  would  have  been  required  to 
 provide  more  than  four  and  a  half  hours  per  week.  Candi- 
 dates  would  have  been  required  to  speak  directly  into  the  camera.  14 

 Free  TV  for  Straight  Talk  Coalition.  The  privately  organized  Free  TV  for  Straight  Talk  Coalition,  founded  by 
 former  Washington  Post  reporter  Paul  Taylor,  has  joined 
 with  a  group  of  scholars-  Norman  J.  Ornstein  of  the 

 134.  Lawrie  Mifflin,  Stute  ofrhe  Union:  Political  Broudcasfs;  F.  C.  C. 
 Plans  to  Take  Look  at  Free  Political  Broadcasts,  N.  Y.  TIMES,  Jan.  29, 
 1998.  at  Al9. 
 135.  47  U.  S.  C.  5  315. 
 136.  S.  25.  105th  Cong.,  2d  Sess.  8  102  (1997). 

 137.  Id.  at  $  503. 
 138.  Id.  at  4  502. 
 139.  Id.  at  0  103. 
 140.  H.  R.  84,  105th  Cong.,  2d  Sess.  5  Z(  a)  (1997). 
 141.  Id.  at  4  2(  c). 
106
 54  Is  Free  TV  Consti~  ioml?  Lillian  R.  BeVier  55 
 American  Enterprise  Institute,  Thomas  E.  Mann  of  the 
 Brookings  Institution,  Michael  J.  Malbin  of  the  State  Uni- 
 versity  of  New  York  at  Albany,  and  Anthony  Corrado,  Jr., 
 of  Colby  College-  in  endorsing  the  creation  of  a  broad- 
 cast  bank.  Although  the  broadcast  bank  proposal  has  taken  a  number  of  slightly  different  forms,  its  broad  out- 

 lines  have  remained  essentially  as  follows.  Every  radio  and 
 TV  station  in  the  country  would  be  required  to  contribute 
 at  least  two  hours  of  prime  spot  time  each  two-  year  elec-  tion  cycle.  The  contributions  would  be  deposited  into  a 

 broadcast  bank.  They  would  be  assigned  a  monetary  value  based  on  market  rates  where  they  originated,  and  the  bank 
 would  distribute  vouchers  denominated  in  money  to  the 
 Federal  Election  Commission,  which  would  in  turn  dis-  pense  them.  Half  the  value  of  the  vouchers  would  go  di- 

 rectly  to  House  and  Senate  candidates  who  qualified  for 
 them  by  raising  over  a  threshold  amount  in  small  contribu- 
 tions  from  their  own  districts  or  states,  and  the  other  half 
 would  go  to  the  parties,  which  could  distribute  the  vouch- 
 ers  as  they  deemed  most  prudent,  given  their  electoral  prospects  and  the  relative  strengths  and  weaknesses  of  their 

 slates  of  candidates.  Candidates  and  parties  could  use  the 
 vouchers  at  any  stations  they  wished,  but  no  message  could 
 be  less  than  sixty  seconds  long.  The  candidate  would  be  re- 
 quired  to  appear  on  screen  for  the  duration  of  the  TV 
 message,  and  the  candidates  voice  would  be  required  for 
 radio  messages.  At  the  end  of  every  election  cycle,  the  bank  would  reimburse  stations  that  redeemed  more  than 

 two  hours  worth  of  free  time  with  proceeds  that  it  would  collect  from  stations  that  redeemed  less.  Candidates  wish- 
 ing  to  purchase  time  outside  the  broadcast  bank  system  would  be  free  to  do  so,  but  at  full  market  rates:  the  exist- 
 ing  requirement  that  broadcasters  charge  political  candi-  dates  the  lowest  unit  rate  for  paid  political  advertising 
 would  be  repealed. 
 142.  New  Campaign  Finance  Reform  Proposals  for  the  105th  Con- 

 The  Assessment.  For  the  reasons  detailed  earlier,  all  the  free  TV  proposals  are  constitutionally  vulnerable.  A  brief 
 recapitulation  of  why  that  is  so  will  serve  to  emphasize  the  point. 
 In  Fifth  Amendment  terms,  the  proposals  push  the 
 government  ownership  claim  to  the  breaking  point.  On  the 
 most  rudimentary  functional  economic  analysis  of  how  the 
 licensing  system  actually  works  and  is  administered,  the 
 free  TV  mandates  would  constitute  a  taking  of  property.  By 
 requiring  that  broadcasters  forgo  substantial  income  from  the  sale  of  broadcast  time  during  the  license  period,  or  by 

 assessing  broadcasters  a  fee  derived  solely  from  their 
 sales  of  political  ads  and  devoting  it  solely  to  funding 
 candidate  time,  each  of  the  free  TV  proposals  not  only 
 would  constitute  an  obviously  coercive  wealth  transfer  but 
 also  would  unacceptably  disrupt  the  broadcasters  legiti- 
 mate,  government-  induced,  investment-  backed  expectations. 
 In  First  Amendment  terms,  and  looking  initially  at  their 
 impact  on  broadcasters*  rights,  the  proposals  all  raise  seri- 
 ous  concerns  even  if  the  Court  continues  to  adhere  to  Red  Lions 
 broadly  discredited  scarcity  fiction.  That  is  so  be- 
 cause  each  of  the  post-  Red  Lion  cases  in  which  the  Court  gave  its  blessing  to  government-  imposed  content  require- 

 ments  is  distinguishable  in  fundamentally  important  ways 
 from  the  free  TV  mandates.  If  the  Court  were  to  play  one 
 or  another  of  the  variations  on  the  ownership  theme  to 
 analyze  the  broadcasters  First  Amendment  rights,  the 

 gress  (issued  Dec.  17.  1996;  revised  May  7,  1997);  Reforming  Campaign 
 Finance,  BROOKINGS  HOME  PAGE,  http:/  www.  brookings.  org/  gs/  newcfr/ 
 reform.  htm.  One  version  of  the  broadcast  bank  plan  plays  a  variation  on 
 that  theme.  II  would  finance  the  plan  by  an  explicit  trade-  off,  repealing 
 the  lowest  unit  rate  requirement  and  in  return  assessing  each  broadcaster  a 
 fee,  payable  in  dollars  or  minutes,  on  all  political  advertising  the  broad- 
 caster  sells,  with  revenues  going  to  the  broadcast  bank.  Norman  J. 
 Ornstein,  Forger  Sweeping  Reformr  Here  Are  5  Realisric  Changes,  ROLL 
 CALL,  Jan.  9.  1997.  at  34. 
107
 56  Is  Free  TV  Constitutional?  Lillian  R.  BeVier  57 
 result  might  be  somewhat  more  in  doubt,  but  only  because  a  Court  willing  to  take  the  spurious  ownership  claims 
 seriously  would  thereby  signal  its  willingness  to  ignore 
 basic  First  Amendment  principles.  If  the  Court,  on  the 
 other  hand,  were  to  abandon  Red  Lion,  reject  the  owner- 
 ship  metaphor,  and  analyze  the  free  TV  mandates  as  though  broadcasters  enjoyed  the  same  First  Amendment 

 rights  as  members  of  the  print  media,  the  mandates  would 
 almost  surely  succumb  to  the  broadcasters  First  Amend-  ment  challenge.  Among  other  causes  for  constitutional 

 skepticism  is  the  fact  that  the  governmental  interests  that 
 free  TV  would  supposedly  advance  are  either  impermissible 
 or  ill-  served  by  the  scheme. 
 In  addition,  all  the  proposals  would,  in  one  way  or 
 another,  violate  candidates  First  Amendment  rights.  McCain-  Feingold  would  do  so  by  impermissibly  and  with- 

 out  adequate  justification  requiring  candidates  to  sacrifice 
 their  right  to  spend  their  own  resources  to  advocate  their 
 own  election;  it  would  also  unjustifiably  dictate  the  format 
 of  candidate  speech.  Both  the  fairness  in  political  adver- 
 tising  proposal  and  the  broadcast  bank  proposal  would  do 
 so  by  dictating  in  even  more  intrusive  and  impermissible  detail  the  format  of  candidate  speech.  The  broadcast  bank 

 proposal,  in  addition,  would  condition  candidates  receipt  of  vouchers  on  their  raising  certain  kinds  of  contributions 
 from  in-  state  supporters.  The  condition  has  no  apparent 
 connection  to  the  reduce  the  cost  of  campaigning  and 
 make  political  discourse  more  substantive  goals  that  the 
 proposal  is  touted  as  serving. 
 Its  proponents  often  portray  free  TV  as  something  of  a 
 panacea-  a  practically  painless  cure  for  practically  all  of  our  campaign-  financing  woes.  They  should  be  more  skepti- 

 cal  about  the  idea  that  they  have  so  enthusiastically  em-  braced.  In  all  its  incarnations  it  is  almost  certainly  uncon- 
 stitutional.  For  any  embodiment  of  it  to  pass  constitutional  muster,  the  Court  would  have  to  suspend  quite  completely 

 I 

 its  usual  disbelief  with  regard  to  regulations  that  govern  political  speech.  In  addition,  it  would  have  to  permit  itself 
 to  become  the  victim  of  a  constitutional  shell  game.  While 
 the  arguments  on  behalf  of  free  TV  may  permit  doctrinal  is 
 to  appear  to  be  dotted  and  the  ts  to  be  crossed,  closer  anal-  ysis  shows  that  they  misconceive  the  fundamental  premises 

 of  both  the  First  and  the  Fifth  Amendments. 
 In  policy  terms,  too,  free  TV  has  serious  weaknesses. 
 First,  the  goals  it  claims  to  pursue  are  impermissible  objec-  tives  for  a  government  in  a  free  society.  Second,  it  is 

 unlikely  that  free  TV  would  in  fact  come  anywhere  close  to 
 achieving  its  posited  objectives.  Third,  free  TV  is  not 
 free;  neither  does  it  represent-  as  its  supporters  try  to 
 imply-  a  public  subsidy.  provided  by  public  funds.  Instead, 
 it  represents  a  subsidy  provided  by  broadcasters.  Those  three  weaknesses  might  be  enough  to  condemn 

 the  idea  to  oblivion,  but  there  is  a  fourth:  no  matter  what 
 scheme  of  free  TV  were  to  be  adopted,  implementing  the 
 free  TV  mandates  would  be  an  administrative  nightmare. 
 All  the  free  TV  proposals  and  all  the  optimistic  urgings  on 
 their  behalf  by  their  supporters  imply  through  silence  about 
 administrative  details  that  free  TV  would  be  practically  self-  executing.  Proponents  insinuate  that  getting  the  time 

 slots  in  equitable  portions  from  the  broadcasters,  allocating 
 them  CO  the  appropriate  federal  candidates,  and  then  making 
 arrangements  so  that  the  eligible  candidates  actually  get  on 
 the  air  with  the  required  format  and  the  suitably  crajied 
 message  in  the  relevant  market  are  simple  tasks,  easily 
 accomplished  merely  by  ordering  them  to  be  done. 
 Proponents  of  free  TV  also  imply  that  enforcement 
 would  be  without  cost  or  complexity,  whether  the  task  be 
 assigned  to  the  Federal  Election  Commission  or  to  the  FCC.  The  truth  is  completely  otherwise,  however,  as  a 

 moments  reflection  will  reveal.  Consider  the  range  of  quid 
 pro  quos  that  the  mandates  contemplate,  multiply  them  by  the  number  of  candidates  for  federal  office,  and  you  will 
108
 58  Is  Free  TV  Constitutional? 
 have  a  sense  of  the  sheer  number  of  enforcement  issues 
 that  might  arise.  Divide  the  number  of  hours  of  free  time,  again  by  the  number  of  federal  candidates  deemed  eligible 

 to  receive  the  benefit,  and  you  will  discern  a  second  layer  of  complexity.  Understand  that  all  those  enforcement  tasks 
 will  be  assigned  to  government  officials  and  think  carefully 
 about  the  intensity  of  monitoring  that  ensuring  compliance  will  require.  You  will  understand  and  quite  likely  share  the 

 fear  of  its  freedom-  loving  opponents  that  free  TV  will  inevitably  entail  a  very  significant  expansion  of  government 
 intrusion  into  and  control  of  core  political  activity. 
 Conclusion 
 The  claims  of  free  TVs  supporters  obscure  each  of  the 
 policy  weaknesses.  That  is  a  somewhat  surprising  fact,  given  the  concern  they  so  often  express  about  misleading 

 campaign  ads  and  the  quality  of  campaign  discourse.  As 
 the  debate  on  free  TV  progresses,  however-  whether  it 
 takes  place  in  legislative  chambers  or  in  courts  or  in  the 
 hearings  of  administrative  bodies-  the  ideas  proponents 
 have  an  obligation  to  drop  some  of  their  rhetorical  camou-  flage  and  forthrightly  to  address  those  very  significant 

 substantive  issues.  In  addition,  the  severity  of  the  constitutional  concerns 
 that  the  free  TV  proposals  raise  should  worry  not  just 
 lawyers  and  judges,  nor  should  only  potential  opponents  of 
 the  proposals  raddress  them.  The  constitutional  analysis 
 should  disconcert  proponents  of  free  TV  too,  because  the 
 constitutional  problems  do  not  merely  represent  artifacts  of 
 dry  and  lifeless  legal  doctrines.  To  the  contrary,  the  prob- 
 lems  arise  because  the  proposals  themselves  are  to  a  dis- 
 turbing  extent  inconsistent  with  traditions  and  values  that  many  if  not  most  Americans  revere  deeply,  despite  whatev- 

 er  misgivings  they  may  have  about  negative  campaigning  and  the  costs  of  running  for  political  office. 

 Lillian  R.  Belier  59 
 Political  freedom  and  a  collective  unwillingness  to  cast  the  burdens  of  public  improvements  on  the  few  rather  than 
 the  many  are  traits  that  have  characterized  American  de- 
 mocracy  since  the  founding  of  the  Republic.  The  free  TV  proposals  would  put  both  traits  at  grave  risk. 

 . 
 About  the  Author 
 LILLIAN  R.  BEVIER  is  the  Doherty  Charitable  Founda- 
 tion  Professor  and  the  Class  of  1948  Professor  of  Scholarly 
 Research  at  the  University  of  Virginia  Law  School.  On  the 
 faculty  at  the  University  of  Virginia  Law  School  since 
 1973,  she  teaches  property,  intellectual  property,  and  con- 
 stitutional  law,  with  a  specialization  in  the  First  Amend- 
 ment.  Professor  BeVier  has  published  widely  on  intellectual 
 property  and  First  Amendment  issues  in  such  journals  as 
 the  California  Luw  Review,  the  Columbia  University  Law 
 Review,  the  Harvard  Journal  of  Law  and  Public  Policy,  the 
 Journal  of  Law  and  Economics,  the  Supreme  Court  Review, 
 and  the  University  of  Chicago  Law  Review. 
 Professor  BeVier  graduated  from  Smith  College  in  1961  and  Stanford  Law  School  in  1965. 
109
 APPENDIX  B 
 ^_._  .__-._  _._  .  ..-  -_  -  .---  -  -__.-  --  --  ..._.  I-_ 
110
 Free  Airtime  for  Candidates 
 and  the  First  Amendment 

 Rodney  A.  Smolla 
 Professor  of  Law 
 Marshall-  Wythe  School  of  Law 
 Williamsburg,  Virginia 

 Among  the  sideshows  in  the  debate  over  campaign  finance  reform  are 
 various  proposals  that  would  require  television  broadcasters  to  provide  free 
 air  time  to  political  candidates.  These  proposals,  packaged  in  various 
 shapes  and  sizes,  are  not  just  bad  ideas:  They  violate  constitutional  law. 

 As  Oliver  Wendell  Holmes  quipped,  certitude  is  not  the  test  of  certainty, 
 and  the  skeptic  is  entitled  to  ask  what  exactly  is  meant  by  the  cocksure 
 assertion  that  governmentally  mandated  free  air  time  would  violate  the 
 Constitution.  Is  this  a  slam  dunk?  Do  existing  constitutional  doctrines 
 clearly  make  such  proposals  unsound?  Or  is  this  merely  an  advocates 
 assertion,  a  prediction  that,  when  put  to  the  test,  courts  would  strike  such 
 programs  down,  and  moreover,  should? 

 The  answer  is  a  blend.  Some  of  the  current  suggestions  being  floated  about 
 town  would  clearly  run  afoul  of  well-  established  First  Amendment 
 precepts.  Others  would  be  in  sharp  tension  with  the  animating  principles  of 
 modern  First  Amendment  law,  and  would  very  probably  be  struck  down  by 
 judges  sensitive  to  those  principles.  Free  air  time  may  be  a  popular  project 
 with  some  very  thoughtfbl  and  altruistic  reformers,  but  it  is  up  against  the 
 gathering  momentum  of  numerous  First  Amendment  doctrines  and,  in  any 
 judicial  test,  would  almost  certainly  fail. 

 Proponents  of  free  air  time  base  their  constitutional  justification  for  their 
 proposals  primarily  on  two  related  notions.  On  the  broadest  level, 
 proponents  invoke  the  idea  that  broadcasters  are  public  trustees  who  may 
 be  regulated  by  government  in  the  public  interest.  More  narrowly,  they 

 argue  that  free  air  time  may  be  imposed  on  broadcasters  as  a  quid  pro  quo  in  exchange  for  the  grant  to  broadcasters  of  additional  spectrum  space  for 

 digital  television.  These  justifications  may  sound  plausible  to  some  at  first 
 blush,  but  they  do  not  hold  up  when  analyzed  against  prevailing  First 
 Amendment  norms.  Several  discrete  aspects  of  contemporary  First 
 Amendment  law  would  be  placed  in  play  by  free  air  time  proposals. 

 I.  Unconstitutional  Conditions 
 First,  the  proposals  trigger  the  century-  old  constitutional  doctrine  of 

 -I  ._--  _...  --  ,I 
111
 unconstitutional  conditions.    There  was  a  time  when  American 
 constitutional  law  was  captive  to  what  was  known  as  the  right  /  privilege 
 distinction.  Americans  had  certain  constitutional  rights,  such  as  freedom 
 of  speech  or  the  free  exercise  of  religion.  But  Americans  had  no  right  to 
 government  largess,  such  as  government  jobs,  public  education,  welfare 
 benefits,  franchises,  or  licenses.  These  were  deemed  mere  privileges.  The 
 government  could  attach  whatever  strings  or  conditions  it  wanted  to  the 
 receipt  of  these  privileges.  The  recipient  had  the  choice  of  accepting  the 
 government  benefit  with  its  conditions  attached,  or  declining  the  benefit.  It 
 was  a  world  of  beggars  cant  be  choosers,  dont  look  a  gift  horse  in  the 
 mouth,  learn  to  accept  the  bitter  with  the  sweet. 

 This  harsh  regime,  however,  was  long  ago  modified  by  the  doctrine  of 
 unconstitutional  conditions.  In  a  series  of  landmark  Supreme  Court  rulings, 
 it  was  held  that  government  did  not  have  a  free  hand  to  impose  any 
 conditions  it  wanted  on  the  receipt  of  public  benefits.  Some  conditions 
 were  unconstitutional.  A  collection  of  restraining  principles  evolved, 
 limiting  the  power  of  government.  Americans  now  couZd  look  a  gift  horse 
 in  the  mouth.  Several  of  these  limiting  principles  are  directly  relevant  to 
 free  air  time  proposals. 

 l  The  Supreme  Court  has  drawn  a  distinction  between  restrictions 
 imposed  by  the  government  that  relate  to  the  governments  own  speech, 
 and  restrictions  imposed  when  the  government  is  empowering  or 
 subsidizing  private  speakers.  When  the  government  itself  is  entering  the 
 marketplace  of  ideas,  through  the  speech  of  its  own  employees  or 
 contractors,  it  has  substantial  power  to  control  the  content  of  the  message 
 _  since  the  message,  by  hypothesis,  is  supposed  to  be  the  governments 
 own.  But  when  the  government  is  merely  enabling  private  speakers  to 
 express  their  views  in  the  marketplace,  by  providing  the  forum  for  that 
 speech  or  subsidizing  it  in  some  manner,  governments  power  to  manipulate 
 the  content  of  the  speakers  messages  is  drastically  limited. 

 In  its  1995  decision  in  Rosenberger  v.  University  of  Virginia,    for  example, 
 the  Supreme  Court  held  that  the  University  of  Virginia  could  not  withhold 
 funds  from  a  student  religious  publication  when  it  funded  other  student 
 publications  and  activities.  The  Court  rejected  the  simple-  minded  assertion 
 that  the  university  could  do  what  it  wanted  with  its  own  scarce  resources, 
 holding  that  once  it  entered  the  business  of  funding  student  publications,  it 
 could  not  discriminate  among  various  viewpoints.  The  Court  heavily 
 emphasized  the  distinction  between  the  university  controlling  its  own 
 speech,  and  the  university  controlling  the  speech  of  private  speakers  who 
 sought  to  participate  in  its  subsidy  program.  In  a  key  passage  the  Court 
 stated: 

 When  the  University  determines  the  content  of  the  education  it 
 provides,  it  is  the  University  speaking,  and  we  have  permitted 
 the  government  to  regulate  the  content  of  what  is  or  is  not 
 expressed  when  it  is  the  speaker  or  when  it  enlists  private 
112
 entities  to  convey  its  own  message.  In  the  same  vein,  in  Rust  V. 
 SuZZivan  we  upheld  the  governments  prohibition  on  abortion- 
 related  advice  applicable  to  recipients  of  federal  funds  for 
 family  planning  counseling.  There,  the  government  did  not 
 create  a  program  to  encourage  private  speech  but  instead  used 
 private  speakers  to  transmit  specific  information  pertaining  to 
 its  own  program.  We  recognized  that  when  the  government 
 appropriates  public  funds  to  promote  a  particular  policy  of  its 
 own  it  is  entitled  to  say  what  it  wishes....  It  does  not  follow, 
 however..  .  that  viewpoint-  based  restrictions  are  proper  when 
 the  University  does  not  itself  speak  or  subsidize  transmittal  of 
 a  message  it  favors  but  instead  expends  funds  to  encourage  a 
 diversity  of  views  from  private  speakers. 

 This  passage  from  Rosenberger  exposes  the  deep  constitutional  fissure  in 
 fi-  ee  air  time  proposals.  Yes,  the  government  may  have  licensed 
 broadcasters  to  use  the  electronic  spectrum.  But  it  is  not  the  government 
 itsezfthat  is  doing  the  broadcasting.  Rather,  the  government  has  created  its 
 system  of  licensure  to  distribute  frequencies  efficiently  and  to  promote  a 
 diversity  of  voices  among  private  speakers,  who  maintain  their  rights  under 
 the  First  Amendment  to  choose  for  themselves  what  they  will  or  will  not 
 say. 

 l  A  second  related  restraining  principle  is  the  professionalism  notion. 
 State  university  professors,  for  example,  are  government  employees,  and 
 their  research  is  often  government  funded.  When  legislative  bodies  attempt 
 to  dictate  what  professors  may  teach  and  research  at  too  great  a  level  of 
 specificity,  however,  principles  of  academic  freedom  kick  in  to  insulate  the 
 professor  from  such  controls.  Public  libraries  and  public  schools  are  funded 
 with  tax  dollars.  But  the  Supreme  Court  has  held  that  there  are  limits  to  the 
 power  of  government  to  remove  books  from  them.  A  librarian  applying 
 professional  norms  for  shaping  and  maintaining  a  collection  has  great 
 freedom  to  make  such  choices.  But  there  are  First  Amendment  limits  on 
 the  power  of  a  political  body,  such  as  a  school  board,  to  interfere  with 
 those  choices  in  order  to  advance  a  particular  viewpoint  agenda.  If  these 
 limits  exist  when  political  bodies  attempt  to  exert  control  down  the 
 government  chain  of  command,  so  to  speak,  they  are  all  the  more 
 power&  l  when  the  governments  orders  are  issued  to  outsiders  such  as 
 broadcasters,  who  are  linked  to  the  government  only  by  virtue  of  the 
 licenses  they  hold. 

 l  A  third  limiting  principle  is  the  nexus  requirement.  The  Supreme  Court 
 requires  a  substantial  relationship  between  the  benefit  being  granted  and  the 
 string  being  attached.  When  a  zoning  board  grants  a  license  for  a 
 hardware  store  to  expand  its  business,  for  example,  it  is  permissible  to 
 attach  the  condition  that  the  lot  be  landscaped  to  handle  additional  parking 
 needs,  and  to  deal  with  extra  water  runoff  caused  by  paving.  But  the 
 Supreme  Court  held  in  1994  that  it  was  not  permissible  for  the  government 
 to  impose  a  requirement  that  the  hardware  store  owner  create  a  walking 
113
 and  cycling  path  through  a  greenway  across  the  property,  no  matter  how 
 attractive  and  altruistic  the  policy  goal  of  creating  such  paths  might  be. 
 This  was  a  gratuitous  condition,  the  Court  held,  not  sufficiently  related  to 
 the  expansion  permit. 

 So  too,  the  government  may  not  impose  a  political  greenway  on 
 broadcasters.  The  government  would  only  be  justified  in  attaching  strings 
 to  the  grant  of  new  spectrum  space  for  digital  broadcasting  if  those  strings 
 bear  some  substantial  relation  to  the  grant.  The  government  is  not  free  to 
 simply  pick  out  of  the  sky  nice-  sounding  policy  objectives  like  free  air  time 
 and  impose  them  on  broadcasters  because  it  has  granted  those  broadcasters 
 additional  spectrum.  Indeed,  there  is  absolutely  no  logical  nexus  between 
 digital  broadcasting  and  political  campaigns.  There  is  nothing  about 
 changing  the  technical  method  of  broadcasting  that  has  anything 
 whatsoever  to  do  with  the  content  of  what  is  broadcast,  let  alone  content 
 defined  specifically  as  speeches  by  candidates. 

 l  Fourth,  the  government  cannot  presume  to  attach  conditions  to  benefits 
 that  are  not  in  fact  benefits.  It  is  not  at  all  clear  that  the  grant  of  additional 
 spectrum  space  was  a  benefit  to  broadcasters  at  all.  The  conversion  to 
 digital  broadcasting,  it  now  appears,  will  probably  cost  broadcasters  more 
 than  they  are  likely  to  recoup.  Theres  no  quid  to  the  quidpro  quo. 

 The  proponents  of  free  air  time  may  have  high-  minded  objectives,  But  the 
 device  of  attaching  strings  to  government  benefits  has,  throughout  our 
 countrys  history,  almost  always  been  a  vehicle  for  suppressing  civil 
 liberties.  The  attempt  to  use  this  device  as  the  fulcrum  for  forcing 
 broadcasters  to  grant  free  air  time  places  free  air  time  proponents  on  the 
 wrong  side  in  the  march  of  constitutional  history. 

 II.  The  Constitutional  Status  of  Broadcasters 
 Free  air  time  proposals  place  in  issue  the  constitutional  status  of 
 broadcasters.  There  are  two  models  at  war  here.  Under  one  view 
 broadcasters  are  a  sort  of  partner  with  government,  engaged  in  a  joint 
 venture  encapsulated  in  the  catch-  phrase  public  trustee.  Government 
 should  attempt  to  elevate  public  discourse,  the  argument  goes,  and 
 broadcasters  should  participate  in  that  noble  endeavor.  Broadcasters  are 
 thus  seen  as  public  discourse  utilities  who  may  be  regulated  according  to 
 whatever  current  policy  vogue  is  deemed  in  the  public  interest. 

 A  competing  model  sees  broadcasters  as  independent  journalists,  with 
 freestanding  First  Amendment  rights  to  calI  em  as  they  see  em  without 
 government  interference.  This  model  contemplates  an  arms-  length  tension 
 between  government  and  broadcasters,  the  same  healthy  tension  that  has 
 traditionally  dominated  the  American  conception  of  journalists  as 
 watchdogs  who  occupy  their  own  autonomous  role  in  the  system  of  checks 
 and  balances.  This  second  model,  of  broadcasters  as  free  agents  with 
 editorial  autonomy  and  journalistic  freedom,  now  dominates  the 
114
 constitutional  landscape. 
 It  is  at  this  juncture  that  proponents  of  free  air  time  proposals  ritually 
 incant  the  Supreme  Courts  1969  decision  in  Red  Lion  Broadcasting  Co.  v. 

 FCC,  z  imposed  specific  and  confined  obligations  on  broadcasters  to 
 provide  opportunities  for  persons  to  respond  to  personal  attacks  and 
 present  opposing  viewpoints.  Red  Lion  has  been  much-  roasted  in  recent 
 years  by  judges  and  scholars.  It  is  doubtful  that  the  Supreme  Court  would 
 adhere  to  the  ruling  in  Red  Lion  if  it  were  presented  with  the  issues  in  that 
 case  again.  More  importantly,  Red  Lion  was  an  extremely  narrow  holding, 
 made  even  narrower  by  subsequent  Supreme  Court  rulings.  Whatever 
 lingering  vitality  Red  Lion  may  have,  it  is  certainly  not  enough  to  support 
 incursions  on  the  independence  of  broadcasters  as  sweeping  as  mandatory 
 free  air  time  for  candidates.  Time  and  technology  have  passed  Red  Lion  by: 

 l  The  fairness  doctrine  itself  no  longer  exists.  It  was  wisely  abandoned  by 
 the  FCC  because  it  was  deemed  unnecessary  and  counterproductive.  The 

 Commission,  in  a  decision  affirmed  by  the  court~,~  ruled  that  the  fairness 
 doctrine  does  more  to  harm  First  Amendment  values  than  to  promote 
 them. 

 l  Red  Lion  was  predicated  on  the  notion  of  spectrum  scarcity.  There 
 were  many  voices  clamoring  to  be  heard  and  not  enough  broadcast 
 channels  to  carry  them  all.  Scarcity  no  longer  exists.  There  are  now  many 
 voices  and  they  are  all  being  heard,  through  broadcast  stations,  cable 
 channels,  satellite  television,  Internet  resources  such  as  the  World  Wide 
 Web  and  e-  mail,  videocassette  recorders,  compact  disks,  faxes  _  through  a 
 booming,  buzzing  electronic  bazaar  of  wide-  open  and  uninhibited  free 
 expression.  Pundits  such  as  Norman  Omstein,  one  of  the  major  proponents 
 of  fi-  ee  air  time,  can  be  heard  day  and  night  commenting  on  the  issues  of 
 the  times  by  anyone  with  a  remote  control  and  the  willingness  to  surf  For 
 every  point  in  modem  politics  there  is  a  cacophony  of  counterpoints. 
 Political  candidates  are  not  wanting  for  the  means  or  the  media  from  which 
 to  project  their  messages. 

 l  The  Supreme  Court  has  cautiously  backed  away  from  Red  Lion. 
 Because  the  FCC  has  abandoned  the  fairness  doctrine,  the  Court  has  had  no  necessary  occasion  to  revisit  the  case.  But  in  numerous  pronouncements 

 the  Court  has  clearly  repudiated  the  partnership  model  for  broadcasting. 
 In  CBS,  Inc.  v.  Democratic  National  Committee,  4  for  example,  the  Court 
 observed  that  Congress  sought  to  retain  a  traditional  journalistic  role  for 
 broadcasters,  and  had  pointedly  refrained  from  divesting  broadcasters  of 
 their  control  over  the  selection  of  voices. 

 l  There  is  no  sense  of  joint  venture  when  Sam  Donaldson  grills  Bill 
 Clinton  about  Monica  Lewinsky.  We  have  become  so  accustomed  to  the 
 independence  of  broadcasters  that  we  may  at  times  forget  its  importance; 
 that  independence  becomes  as  natural  and  as  unnoticed  as  the  air  we 
 breathe.  This  separation  of  journalism  from  government,  however,  is  part 

 _.  _  __  .___  x_  t  l  .l  ..  ..--  _.--  -. 
 _  11_ 
115
 of  the  genius  of  our  constitutional  democracy.  Like  other  separations  in  our 
 system  _  separation  of  church  and  state,  separation  of  civilian  control  over 
 the  military  _  the  maintenance  of  distance  between  the  press  and 
 government  divides  power  and  prerogative,  promoting  balance  and 
 accountability.  We  would  be  a  vastly  different  society  without  it. 

 KII.  Neutrality  and  Forced  Speech 
 Once  it  is  understood  that  neither  the  right  /  privilege  distinction  nor  the 
 public  trustee  concept  is  sufficient  to  disqualify  broadcasters  from  First 
 Amendment  protection,  mandated  free  air  time  proposals  run  smack  into  a 
 number  of  the  most  potent  doctrines  in  modern  constitutional  law. 

 l  Neutrality  is  the  lodestar  principle  of  modem  First  Amendment 
 jurisprudence.  The  government  is  not  permitted  to  regulate  speakers 
 according  to  its  own  views  of  what  is  good  speech  and  what  is  bad. 
 Many  of  the  proposals  for  free  air  time  blithely  ignore  this  fundamental 
 dictum.  Some,  for  example,  presume  to  restrict  what  candidates  using  the 
 free  time  could  say,  barring  political  attacks  and  requiring  that  the  time 
 be  used  for  the  presentation  of  positions  on  issues.  But  the  First 
 Amendment  absolutely  bars  government  from  the  arrogant  enterprise  of 
 deciding  what  speech  is  appropriate  in  political  discourse.  Indeed,  the  First 
 Amendment  does  not  even  permit  the  government  to  presume  to  determine 
 what  is  an  attack  and  what  is  an  issue,  as  if  those  two  notions  could 
 ever  be  meaningfUlly  distinguished  by  the  government  bureaucrats  who 
 would  enforce  the  law. 

 l  A  transcendent  principle  of  modem  First  Amendment  thinking,  cutting 
 across  a  wide  variety  of  contexts  and  topics,  is  the  prohibition  on  forced 
 speech.  Government  normally  is  not  permitted  to  force  speakers  to  carry 
 the  messages  of  others,  even  when  the  government  owns  or  operates  the 
 medium  through  which  the  speech  is  being  expressed.  Thus  the  government 
 owns  main  street,  and  a  group  wishing  to  use  the  street  to  stage  a  parade 
 on  St.  Patricks  Day  must  obtain  a  permit  to  do  so.  But  once  a  private 
 group  is  granted  the  right-  of-  way,  the  government  is  forbidden  under  the 
 First  Amendment  from  dictating  who  will  be  allowed  to  march.  This  was 
 the  learning  of  the  Supreme  Courts  1995  decision  in  Hurley  v.  Irish 

 American  Gay,  Lesbian,  and  Bisexual  Group  of  Boston,  3  in  which  the 
 Court  held  that  Massachusetts  could  not  force  a  private  group  of  parade 
 organizers  to  include  gay,  lesbian,  and  bisexual  marchers,  even  though  their 
 exclusion  was  mean-  spirited  and  discriminatory.  While  the  law  is  free  to 
 promote  all  sorts  of  conduct  in  place  of  harmful  behavior,  the  Court 
 admonished,  it  is  not  free  to  interfere  with  speech  for  no  better  reason 
 than  promoting  an  approved  message  or  discouraging  a  disfavored  one, 
 however  enlightened  either  purpose  may  strike  the  government. 

 IV.  Campaign  Reform  and  Buckley  v.  Vale0 
 Free  air  time  proposals  are  currently  being  advanced  as  part  of  the  larger 
116
 agenda  of  political  campaign  reform,  an  agenda  that  implicates  the 
 Supreme  Courts  historic  1976  ruling  in  BuckZey  v.  VaZeo,  e  striking  down 
 aspects  of  the  Federal  Election  Campaign  Act  of  1971  and  upholding 
 others.  Buckley  is  a  First  Amendment  thicket,  growing  thicker  and  thicker. 
 Many  Supreme  Court  rulings  since  1976  have  elaborated  on  BuckZey  and  it 
 is  clear  enough  that  public  funding  of  election  campaigns  is  not  per  se 
 unconstitutional.  But  there  is  a  world  of  difference  between  public  funding 
 of  campaigns,  and  the  commandeering  of  the  air  time  of  broadcasters.  It  is 
 one  thing,  under  the  First  Amendment,  for  the  government  to  give 
 candidates  money  to  buy  their  own  time  on  television.  It  is  quite  another  to 
 cross  the  line  of  separation  between  the  government  and  the  media,  and 
 forcibly  impose  free  time  obligations  on  broadcasters. 

 In  a  1990  decision  that  is  often  overlooked,  Austin  v.  Michigan  Chamber 
 of  Commerce,  Z  the  Supreme  Court  actually  explored  the  question  of 
 whether  the  press  can  be  swept  in  and  made  part  of  the  regime  of  political 
 campaign  reform.  The  case  involved  a  Michigan  law  restricting  corporate 
 political  expenditures.  The  law  contained  an  exemption,  however,  for 
 media  corporations.  The  Supreme  Court  not  only  held  that  the  exemption 
 was  permissible,  but  seemed  to  signal  that  the  law  would  not  have  been 
 upheld  had  it  been  applied  to  the  press.  The  Court  emphasized  the  unique 
 role  the  press  plays  in  our  system,  stating  that  the  press  serves  and  was 
 designed  to  serve  as  a  powerful  antidote  to  any  abuses  of  power  by 
 government  officials. 

 V.  Conclusion 
 The  mandated  free  air  time  bandwagon  should  not  be  permitted  to  start  a 
 roll.  Free  air  time  sounds  good  to  some  when  they  first  hear  of  it.  The  idea 
 is  altruistic  and  catchy.  But  it  is  an  idea  out  of  touch  with  reality  and  out  of 
 synch  with  the  First  Amendment.  There  are  many  practical  problems  with 
 free  air  time,  among  them  the  simple  fact  that  you  can  put  candidates  on 
 television  but  you  cant  make  people  watch.  More  importantly,  mandated 
 free  air  time  is  a  First  Amendment  nightmare.  There  are  many  thoughtful 
 proposals  for  reforming  American  politics  in  a  manner  consistent  with  our 
 First  Amendment  tradition.  Free  air  time  is  not  one  of  them. 

 Notes 

 1  Rosenberger  v.  University  of  Virginia,  115  S.  Ct.  2510  (1995). 
 2  Red  Lion  Broadcasting  Co.  v.  FCC,  395  U.  S.  367  (1969). 
 3  See  1985  Fairness  Report,  102  F.  C.  C.  Zd  145  (1985);  Syracuse  Peace  Council  v.  FCC, 
 867  F.  2d  654  (D.  C.  Cir.  1989),  cert.  denied,  493  U.  S.  1019  (1990). 

 4  CBS,  Inc.  v.  Democratic  National  Comm.,  412  U.  S.  94  (1973). 
 3  Hurley  v.  Irish  American  Gay,  Lesbian,  and  Bisexual  Group  of  Boston,  115  S.  Ct.  2338  (1995). 
117
 6  Buckley  v.  Vafeo,  424  U.  S.  1  (1976) 
 7  Austin  v.  Michigan  Chamber  of  Commerce,  494  U.  S.  652  (1990). 

 The  Author 
 Rodney  A.  Smolla  is  the  Arthur  B.  Hanson  Professor  of  Law  at  the 
 College  of  William  and  Mary,  Marshall-  Wythe  School  of  Law.  From  1988 
 to  1986  he  was  Director  of  the  Institute  of  Bill  of  Rights  Law  at  William 
 and  Mary.  He  graduated  from  Yale  in  1975  and  Duke  Law  School  in  1978, 
 where  he  was  first  in  his  class.  He  then  served  as  law  clerk  to  Judge 
 Charles  Clark  on  the  U.  S.  Court  of  Appeals  for  the  Fifth  Circuit.  After 
 practicing  law  in  Chicago,  he  entered  academic  life,  and  taught  at  the  De 
 Paul,  University  of  Illinois,  and  University  of  Arkansas  law  schools  before 
 beginning  at  William  and  Mary.  He  has  also  been  a  visiting  professor  at  the 
 University  of  Denver,  University  of  Indiana,  and  Duke  University  law 
 schools,  He  writes  and  speaks  extensively  on  constitutional  law  issues,  and 
 is  also  active  in  litigation  matters  involving  constitutional  law. 

 His  book  Free  Speech  in  an  Open  Society  (Alfred  A.  Knopf,  1992)  won 
 the  William  0.  Douglas  Award  as  the  years  best  monograph  on  freedom  of 
 expression.  He  was  the  editor  of  A  Year  in  the  L@  of  the  Supreme  Court 
 (Duke  University  Press,  1995),  which  won  an  ABA  Silver  Gavel  Award. 
 His  book  Suing  the  Press:  Libel,  the  Media,  and  Power  (Oxford  University 
 Press,  1986)  won  the  ABA  Silver  Gavel  Award  Certificate  of  Merit.  He  is 
 also  the  author  of  Jerry  FaZweZl  v.  Larry  FZynt:  The  First  Amendment  on 
 Trial  (St.  Martins  Press,  1988).  He  is  the  author  of  three  treatises:  Smolla 
 and  Nimmer  on  Freedom  of  Speech  (West  Group,  two  volumes,  1996); 
 Federal  Civil  Rights  Acts  (West  Group,  two  volumes,  1994);  and  Law  of 
 Defamation  (West  Group,  1986),  and  co-  author  of  a  casebook  on 
 constitutional  law:  Constitutional  Law:  Structure  and  Rights  in  Our 
 Federal  System  (with  Banks  and  Braveman,  Matthew  Bender,  1996). 

 Issues  in  Broadcasting  and  the  Public  Interest 
 This  paper  is  adapted  from  Prof.  Smollas  presentation  at  a  panel,  Public  Interest 
 Obligations  of  Broadcasters  and  the  Gore  Commission,  convened  by  The  Media 
 Institute  in  Washington,  D.  C.,  on  Jan.  28,  1998.  Papers  in  the  Issues  in  Broadcasting 
 and  the  Public  Interest  series  are  published  under  the  auspices  of  The  Media  Institutes 
 Public  Interest  Council,  a  study  group  of  communications  attorneys  and  constitutional  scholars  formed  to  follow  the  work  of  the  Gore  Commission. 

 The  Media  Institute  is  a  nonprofit  research  foundation  in  Washington,  D.  C., 
 specializing  in  communications  policy  and  First  Amendment  issues.  The  Institute 
 advocates  and  encourages  freedom  of  speech,  a  competitive  communications 
 industry,  and  excellence  in  journalism. 
118
 APPENDIX  C 
 .--I  I  -.  .I  -~    .--.._.  x-  .  --  .__._.,.  .._-~--__-.--  .L_  I  --.  .-- 
119
 THE  UNCONSTITUTIONALITY  OF  FEDERALLY  MANDATED 
 FREEAIRTIME 

 A  Summary  Prepared  for 
 The  National  Association  of  Broadcasters 
 for  Presentation  at  a  Meeting  of  the  Presidential  Advisory  Committee 
 on  Public  Interest  Obligations  of  Digital  Television  Broadcasters 

 University  of  Southern  California 
 March  2,198 
 P.  Cameron  DeVore  Davis  Wright  Tremaine  LLP 

 .._  _  _.--  .-  __-__--_--  --  _-  -. 
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 THE  UNCONSTITUTIONALITY  OF  FEDERALLY  MAN-  DATED  FREE  AIR  TIME 
 A  Summary  Prepared  for 
 The  National  Association  of  Broadcasters 
 for  Presentation  at  a  Meeting  of  the  Presidential  Advisory  Committee 
 on  Public  Interest  Obligations  of  Digital  Television  Broadcasters 

 University  of  Southern  California 
 March  2,1998 
 P.  Cameron  DeVore  Davis  Wright  Tremaine  LLP 

 SUMMARY 
 Free  air  time  is  the  current  mantra  of  many  earnest  and  well-  meaning  critics  of 

 Americas  campaign  finance  practices.  Its  proponents  blame  the  cost  of  television 
 advertising  for  the  perceived  problems  with  our  campaign  finance  system,  and  they 
 propose  free  air  time  as  a  kind  of  universal  solvent,  touted  to  be  a  cure  for  almost  every 
 election  malaise  ranging  from  incessant  high  pressure  solicitation,  to  negative  campaign 
 advertising,  to  declining  voter  participation  and  growing  voter  cynicism. 

 However,  strictly  as  a  matter  of  First  Amendment  analysis  it  is  impossible  to 
 escape  the  conclusion  that  a  he  air  time  mandate  would  be  subjected  to  strict  First 
 Amendment  scrutiny  and  struck  down  by  the  courts.  Indeed,  even  if  lesser  scrutiny  were 

   Strict  scrutiny  requires  government  to  prove  a  compelling  interest,  diiy  advanced  by  the  least  restrictive  regulatory  means.  See,  e.  g.,  Reno  v.  ACLU,  117  S.  Ct.  23,29  (1997).  !I&  called  intermediate 
 scrutiny  hnposes  the  somewhat  lesser  burden  on  government  to  prove  a  substantial  interest,  directly  and  materially  advanced  by  means  no  more  extensive  than  necessary.  One  version  of  the  intermediate  scmtiny 
 test  is  for  content  neutral  regulations  imposing  only  a  secondary  impact  on  speech,  as  set  forth  in  United  States  v.  OBrien,  491  U.  S.  367  (1968)  (federal  ban  on  burning  dmft  cards  upheld,  as  cards  integral  to 

 ~.-.--  ..,_  -  ._ 
121
 to  be  applied,  the  government  would  be  equally  unable  to  meet  its  heavy  burden  of 
 proving  not  only  that  the  goals  of  free  air  time  are  both  real  and  substantial  when 
 weighed  in  the  balance  against  First  Amendment  values,  but  also  that  mandated  Ike  air 
 time  would  directly  and  materially  advance  those  goals.  2 

 Indeed,  the  daunting  problem  that  must  ultimately  be  addressed  by  proponents  of 
   free  air  time  is  that  the  concept  relies  on  a  naked  governmental  directive  to  Americas 
 broadcast  media  to  air  core  political  speech  not  of  their  choosing,  but  instead  selected  by 
 candidates  and  defined  by  government  fiat.  As  set  forth  below,  merely  intoning  with 
 great  certitude  the  question-  begging  citation  of  Red  Lion3  or  the  practically  and  legally 
 emptyA  assertion  that  broadcasters  are,  in  effect,  merely  squatters  on  the  publics 
 spectrum,  will  not  suffice  to  save  free  air  time  from  its  many  constitutional  infirmities 

 selective  service  system);  also  see  Turner  Broadcasting  Co.  v.  FCC,  (  Turner  II)  117  S.  Ct  1174  (1997)  (upholding  under  OBrien  the  federal  must  cany  requirement  imposed  on  cable  television  industry). 
 Another  version  of  intermediate  scrutiny  is  exemplified  by  tbe  Courts  test  for  regulation  of  commercial  speech  as  defined  in  Central  Hudson  Gas  &  Elec.  Corn.  v.  Public  Serv.  Commn,  447  U.  S.  557  (1980). 
 Lesser  so-  called  Red  Lion  scrutiny,  applied  to  uphold  the  FCCs  fairness  doctrine  by  tbe  Supreme  Court  iu  1969,  is  discussed  at  p.  15,  below. 
   See  p.  47-  49  of  Professor  Lillian  R  BeViers  monograph,  Is  Free  TV  for  Federal  Candidates  Constitutional?,  American  Enmrprise  Institute,  Washiin  DC,  1998  (attached  to  this  summaty  as 
 Exhibit  A):  If  the  [Supreme]  Court  takes  at  all  seriously  its  obligation  to  call  what  appears  from  the 
 present  state  of  the  evidence  to  be  a  rhetorical  bluff  of  thee  TVs  proponents  -  if  it  truly  requires  them  to  demonstmte  that  the  recited  harms  are  real,  not  merely  conjecmral,  and 
 that  the  regulation  will  in  fact  alleviate  these  harms  in  a  direct  and  material  way,  [citing  Turner  Broadcasting  V.  U.  S.  (  Turner  l),  5  12  U.  S.  622  at  664  (1994)],  the  proponents 
 will  have  to  come  up  with  well-  founded  answers  to  [professor  BeViers  challenging  observations  about  the  ephemeral  effects  that  iiee  air  time  would  have  on  tbe  plethora 

 of  ills  assert4  by  its  propcaeats  in  justification  of  the  coacept].  They  will,  in  other  words,  have  to  offer  a  defense  much  more  solid  thau  the  vague  generalities  and 
 unsupported  assertions  about  causes  and  effects  that  they  have  offered  so  far.  3  Red  Lion  Broadcastinn  Co..  Inc.  v.  FCC,  395  U.  S.  367  (1%  9),  discussed  at  p.  15,  below. 
   BeVier,  SUDTB.  at  4. 

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 Seattle  2 

 ._  .-  .,.  -  ^  l,_,  .  .  .-  -.-  11-----  r 
122
 under  the  most  fundamental  and  well-  established  principles  of  First  Amendment 
 jurisprudence.  5 

 I.  FEDERALLY  MANDATED  VREE  AIRTIME  WOULD  BE 
 IMPERMISSIBLEUNDERTHEFIRSTAMENDMENT 

 As  set  forth  below,  nothing  in  Red  Lion  -  even  assuming  that  this  1969  decision 

 of  the  Court  rendered  at  the  dawn  of  the  modem  era  of  exploding  technological 
 multiplication  of  both  spectrum  and  of  other  electronic  media  retains  any  legitimacy 
 today  -  should  support  the  imposition  of  a  free  air  time  requirement  or  prevent  the 
 application  of  the  First  Amendment  guarantee  of  virtually  absolute  editorial  freedom  to 
 the  broadcast  media.  6  Indeed,  virtually  absolute  editorial  freedom  lies  at  the  heart  of  First 
 Amendment  protection,  and  free  air  time  proposals  run  squarely  into  a  First 
 Amendment  wall.  Hurlev  v.  Irish  American  Gay,  Lesbian.  and  Bisexual  Groun  of 
 Boston,  115  S.  Ct.  2338,235O  (1995);  Woolev  v.  Mavnard,  430  U.  S.  705  (1977);  Miami 
 Herald  Publishine  Co.  v.  Tornillo,  418  U.  S.  241  (1974). 

   See  Professor  BeViers  thorough  analysis  of  the  ownership-  of-  spectnun  argument  in  Exhibit  A,  p.  4-  13.  Tbe  ownership  trope  is  no  more  persuasive,  factually,  than  would  be  an  argument  that  because  newspaper 
 newsracks  are  almost  always  on  public  property--  an  d  are  as  essential  to  newspaper  distribution  as  is  spectrufn  to  the  broadcasters,  the  newspapers  *by  eve  up  editor@  control  to  some  farm  of  government 
 ~~&~  uTLI&  Also  see  comments  of  Wrlhams,  J.,  drssentmg  from  denial  of  rehearmg  en  bmrc  mm  tertamment  Co.  v.  FCC,  105  F.  3d  723  (D.  C.  Cu.  1997)  (  There  is,  perha~  q  good  reason  for  tbe 
 [Supreme]  Court  to  have  hesitated  to  give  great  weight  to  the  governments  property  intetest  in  the  specmrm.) 
 6  See  remarks  at  p.  3  of  Free  Air  Time  for  Candidates  and  the  First  Amendment,  by  Professor  Rodney  A.  Smolla,  filed  with  the  Advisoty  Committee  this  weeks 

 Red  Lion]  dealt  with  the  question  of  whether,  in  tbe  absence  of  government  mandates,  the  views  of  some  might  not  be  reflected  on  broadcast  stations.  No  one  could  argue  that 
 the  views  of  candidates  for  political  office  are  not  widely  available  on  broadcast  stations  now,  both  through  news  and  other  free  coverage  and  through  the  sale  of  advertising  time. 
 Ihus,  free  time  proposals  do  not  4ow  from  any  claimed  scarcity  of  electronic  voices  and  cannot  rely  on  Red  Lion  for  consumuonal  support.  Spectrum  scarcity,  witbout  more, 
 does  not  necessarily  justify  regulatory  schemes  which  mtrude  into  First  Amendment  vracuse  Peace  Council  v.  FCC,  867  F2d  654,683  (D.  C.  Cir.  1989)  (Starr,  J. 

 ilZS&  jsce7t.  denied  493  U.  S.  1019  (1990).  Also  see  further  RedLion  analysik  at  p.  15  below. 

 FAdocs~  op\  l  n6&  gm.&  c  SCatlc 
 3 

 .  .._.  -  .  ---^  .  _--,.  ,--  _lll__  ._.,  ._,  -.---_-.  _-  ._  --  --  ..,  .--.  _____ 
123
 Also,  the  fxe  time  requirement  would  force  broadcasters  to  provide  time  to 
 candidates  to  be  used  as  the  candidates  choose,  or  in  a  mamxr  prescribed  by  federal  fiat. 
 The  First  Amendment  would  impose  an  insuperable  burden  on  the  government  to  prove 
 that  such  a  content-  based  requirement  did  not  infringe  First  Amendment  freedoms.  & 
 Simon  &  Schuster.  Inc.  v.  Members  of  the  New  York  State  Crime  Victims  Bd.,  112  S.  Ct. 
 501(  1991).  Such  a  law  could  be  justified  under  the  First  Amendment  only  by  a  showing 
 of  a  compelling  interest,  directly  advanced  by  the  mandate,  and  not  capable  of  being 
 advanced  through  alternatives  that  do  not  encroach  on  the  editorial  discretion  of  the 
 broadcaster. 

 Historically,  broadcasters  have  been  subject  to  more  restrictions  than  have  other 
 media  on  their  constitutionally  protected  editorial  discretion,  but  the  late&  Os  rationale  of 
 spectrum  scarcity  no  longer  justifies  singling  out  broadcasters  for  reduced  First 
 Amendment  protection.  As  also  discussed  below,  compelling  broadcasters  to  finance 
 political  campaigns  would  bear  no  direct  relationship  to  broadcasters  traditional  public 
 interest  duties,  and  would  upset  the  delicate  balance  between  their  journalistic  freedoms 
 and  their  obligations  as  licensees  of  the  public  airwaves. 

 A  A  Free  Air  Time    Mandate  Impermissibly  Would  Require 
 Broadcasters  to  Engage  in  Compelled  Speech. 

 1.  Government  May  Not  Mandate  Political  Speech  Absent 
 Compelling  Necessity  and  Precise  Tailoring. 

 At  the  heart  of  the  First  Amendment  lies  the  principle  that  each  person  should 

 decide  for  him  or  herself  the  ideas  and  beliefs  d  eserving  of  expression,  consideration,  and 

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 adherence  Turner  Broadcasting  Svstem.  Inc.  v.  F.  C.  C.  c  Tumer  I),  5  12  U.  S.  622,639 
 (1994)  (plurality  op.). 

 While  the  law  is  free  to  promote  all  sorts  of  conduct  in 
 place  of  harmful  behavior,  it  is  not  free  to  interfere  with 
 speech  for  no  better  reason  than  promoting  an  approved 
 message  or  discouraging  a  disfavored  one,  however 
 enlightened  either  purpose  may  strike  the  government 

 Hurlev  v.  Irish  American  Gav,  Lesbian  and  Bisexual  Grout  of  Boston,  115  S.  Ct.  2338, 

 2350  (1995)  (citation  omitted);  accord,  Pacific  Gas  &  Electric  Co.  v.  California  P.  U.  C., 
 475  U.  S.  l(  l986);  Woolev  v.  Mavnard,  430  U.  S.  705  (1977);  Miami  Herald  Publishing 
 Co.  v.  Tomillo,  418  U.  S.  241  (1974). 

 In  no  category  of  speech  are  these  principles  more  important  than  political  speech. 
 Political  speech  -  and  particularly  speech  by  or  concerning  candidates  for  office  -  is  at 
 the  core  of  First  Amendment  protection.  McIntvre  v.  Ohio  Elections  Commn,  115  S.  Ct. 
 1511,1518  (1995);  First  National  Bank  of  Boston  v.  Bellotti,  435  U.  S.  765,776-  77 
 (1978);  Bucklev  v.  Valeo,  424  U.  S.  1,14  (1976).  The  fact  that  broadcasters  are  paid  for 
 airing  political  advertisements  in  no  way  diminishes  this  First  Amendment  protection  or 
 transforms  either  paid  or  voluntary  political  speech  into  speech  entitled  to  less 
 constitutional  protection.  Bellotti,  435  U.  S.  at  776-  77;  and  see  New  York  Times  Co.  v. 
 Sullivan,  376  U.  S.  254,266  (1964)  (full  protection  for  advertisement  on  political 

 subject). 

 Government  preference  for,  or  prohibition  of,  political  speech  or  indeed  any  other 
 category  of  speech  based  on  its  content  is  particularly  repugnant  to  the  First  Amendment. 

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125
 FCC  v.  League  of  Women  Voters,  468  U.  S.  364,383  (1984);  Consolidated  Edison  Co.  of 
 New  York  v.  Public  Service  Commn  of  New  York,  447  U.  S.  530,537  (1980).  Content- 
 based  regulation  is  subject  to  the  most  stringent  First  Amendment  scrutiny.  Congress 
 may  not  dictate  the  content  of  speech  absent  compelling  necessity,  and  then,  only  by 
 means  precisely  tailored.  Rilev  v.  National  Federation  for  the  Blind,  487  U.  S.  781,800 
 (1988);  accord.  e.  G,  Texas  v.  Johnson,  491  U.  S.  397,412  (1989);  Boos  v.  Barrv=  485 
 U.  S.  312  (1988);  Pacific,  su~  ra,  475  U.  S.  at  19. 
 Proponents  of  free  air  time  cannot  seriously  contend  that  such  a  mandate  would  be 
 accorded  some  lesser  First  Amendment  protection  because  it  is  allegedly  content- 
 neutral  or  tiewpoint-  neutral.  As  Professor  BeVier  notes  in  her  attached  monograph, 

 what  might  matter  most  is  that  the  [%  ee  air  time?  mandates  are  speaker-  identity,  subject-  matter,  and  format- 
 specific.  True,  the  mandates  do  not  single  out  particular 
 viewpoints  for  more  or  less  favorable  treatment  Apart 
 from  the  fact  that  they  lack  that  inevitably  fatal  flaw,  it  is  hard  to  imagine  regulations  that  would  be  less  content- 

 neutral;  looked  at  through  the  lens  of  what  they  require  of 
 candidates  to  become  entitled  to  their  benefits,  they  not 
 only  prescribe  the  generic  class  of  qualified  speakers  (certain  candidates  for  federal  office)  but  also  dictate  the 

 subject  matter  and  the  format  of  the  speech. 
 BeVier,  Exhibit  A,  at  38-  39.   
 Free  air  time  would  represent  just  such  content-  based  regulation,  requiring 

 broadcasters  to  provide  free  broadcast  time  to  candidates  for  federal  office  just  prior  to 

   Also  note  Professor  BeViers  i%  al  conchkon  on  the  content-  neutral  point,  Exhibit  A  at  40,  that  the  f&  e  air  time  maudates  would  embody  such  intrusive,  particularistic,  and  overbearing  governmental  judgnxnts 
 regarding  the  conduct  of  political  campaigns  that  the  [Supreme]  Court  will  almost  certainly  insist  on  a  pahakhg  and  skeptical  evaluation  of  the  goals  they  supposedly  serve  and  their  aptness  as  means. 
 As  most  Court  watchers  know,  sc&  ny  that  is  strict  iu  theory  is  almost  always  fatal  in  f&  t.  n 

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 elections.  The  candidates  could  use  the  time  as  they  choose  (subject  to  any  format 
 conditions  imposed  by  the  mandate),  but  the  obvious  purpose  would  be  to  allow  them  to 
 discuss  their  candidacy,  not  simply  to  provide  an  opportunity  to  expound  on  general 
 matters  of  public  interest.  All  candidates  in  contested  elections  -  not  simply 
 government-  favored  candidates  -  presumably  would  be  entitled  to  the  subsidized  time, 
 but  that  time  would  be  allotted  to  them  because  of  their  political  viewpoints,  and  as  a 
 means  of  enabling  them  to  convey  w  message  in  &&  own  words.  The  interest  in 
 ensuring  that  specific  individuals  are  given  time  to  communicate  their  partisan  political 
 views  would  thus  be  directly  tied  to  the  content  of  what  the  speakers  would  likely  say. 
 Such  content  regulation  of  speech  would  be  subject  to  strict  First  Amendment  scrutiny. 
 See,  e.  g.,  Simon  &  Schuster.  Inc.  v.  Members  of  the  New  York  State  Crime  Victims  Bd., 
 112  S.  Ct.  501  (1991)  (requirement  that  proceeds  of  book  by  criminal  about  crimes  be 
 given  to  victims  is  content-  based  regulation  of  speech  subject  to  strict  scrutiny);  Arkansas 
 Writers  Proiect.  Inc.  v.  Ragland,  481  U.  S.  221  (1987)  (tax  applied  to  general  interest 
 magazines  but  exempting  religious,  professional,  trade  and  sports  journals  is  content- 
 based  regulation  of  speech  subject  to  strict  scrutiny);  Buckley  v.  Valeo,  424  U.  S.  1  (1976) 
 (limits  on  campaign  contributions  and  expenditures  are  regulation  of  speech  subject  to 
 strict  scrlltiny).* 

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127
 2.  Requiring  Broadcasters  to  Provide  Free  Time  Impermissibly  Would  Infringe  First  Amendment 
 Freedoms. 
 To  withstand  a  First  Amendment  challenge,  the  government  must  prove  that 

 requiring  broadcasters  to  provide  free  broadcast  time  to  political  candidates  would 
 directly  advance  a  compelling  governmental  interest  and  be  as  precisely  tailored  as 
 possible  to  achieve  that  interest  &  Boos  v.  Barrv,  485  U.  S.  at  321-  22.  No  doubt,  the 
 integrity  and  credibility  of  the  federal  electoral  process  is,  as  a  matter  of  broad  public 
 policy,  a  compelling  state  interest.  &  Bucklev  v.  Valeo,  424  U.  S.  at  27.  Mandating 
 free  and  subsidized  broadcast  time,  however,  would  not  directly  advance,  nor  would  it  be 
 narrowly  tailored  to  achieve,  that  interest. 

 Free  time  proposals  are  aimed  to  enhance  the  integrity  and  credibility  of  the 
 electoral  process  by  reducing  one  part  of  the  campaign  spending  budgets  of  political 
 candidates.  However,  the  government  would  likely  find  it  impossible  to  meet  its  heavy 
 burden  of  proving  in  court  that  a  reduction  in  the  cost  of  one  element  of  campaigning 
 would  have  any  positive  impact  on  the  integrity  of  the  political  process.  The  Supreme 
 Court  aheady  has  held  that  the  mere  growth  in  the  cost  of  federal  election  campaigns  in 
 and  of  itself  provides  no  basis  for  governmental  restrictions  on  the  quantity  of  campaign 
 spending  and  the  resulting  limitation  on  the  scope  of  federal  campaigns.  Buckiev  v. 
 Valeo,  424  U.  S.  at  57.  Candidates  are  just  as  likely  to  be  or  appear  to  be  beholden  to 
 special  interests,  with  or  without  shifting  some  of  their  campaign  costs  to  the  broadcast 
 media.  Encouraging  reduced  spending  through  free  broadcast  time,  moreover,  might 
 actually  undermine  public  confidence  in  the  political  process  by  instead  increasing  the 

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 total  amount  of  broadcast  advertising  -  and  just  as  likely  as  not  encouraging  more 
 political  advertisements  which  are  negative  and  uninformative,  eliciting  public  disgust, 
 rather  than  confidence,  in  the  political  system.  Certainly,  there  could  be  no  constitutional 
 limit  on  the  content  of  such  necessarily  wide  open  and  robust  advertising  -  whether 
 fk  or  paid.  Thus  the  constitutionally  required  nexus  between  free  broadcast  time  and 
 governments  interest  in  enhancing  the  integrity  of  the  electoral  process  is  either 
 nonexistent  or,  at  best,  murky. 

 Even  if  reduced  campaign  spending  could  bring  some  measure  of  integrity  to  the 
 political  process,  the  proposal  nevertheless  would  fail  to  survive  strict  scrutiny  through  its 
 utter  lack  of  tailoring  to  the  governments  asserted  interest.  Even  a  compelling 
 governmental  purpose  cannot  be  pursued  by  means  that  broadly  stifle  fundamental 
 personal  liberties  when  the  end  can  be  more  narrowly  achieved.  The  breadth  of 
 legisiative  abridgement  must  be  viewed  in  the  light  of  less  drastic  means  for  achieving 
 the  same  basic  purpose.  Woolev  v.  Mavnard,  430  U.  S.  705,71617  (1977)  (quoting 
 Shelton  v.  Tucker,  364  U.  S.  479,488  (1960)).  Numerous  means  exist  for  pursuing  the 
 goal  of  enhancing  the  integrity  of  the  political  process  that  are  far  less  drastic  than 
 requiring  broadcasters  to  finance  candidates  political  campaigns. 

 Most  obviously,  Congress  may  engage  in  public  financing  of  election  campaigns 
 and  may  condition  acceptance  of  public  funds  on  an  agreement  by  the  candidate  to  abide 
 by  specified  expenditure  limitations.  Bucklev  v.  Valeo,  424  U.  S.  at  57  n.  65.  This 
 procedure  would  communicate  the  desired  information  to  the  public  without  burdening  a 

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 speaker  with  unwanted  speech  .  .  .  .  Rilev,  487  U.  S.  at  800.  That  Congress  may  have 
 political  objections  to  such  an  alternative  does  not  render  constitutionally  palatable  the 
 free  air  time  effort  to  make  broadcasters  shoulder  the  financial  burden  of  campaign 
 finance  reform? 

 In  short,  Congress  cannot  compel  broadcasters  to  finance  political  campaigns  as 
 long  as  means  exist  to  enhance  the  integrity  of  the  political  process  that  do  not  burden 
 free  speech  rights.  The  free  air  time  proposal  would  force  broadcasters  to  make 
 contributions  of  advertising,  services  and  broadcast  facilities  to  candidates  they  might  not 
 otherwise  choose  to  support,  all  in  violation  of  the  First  Amendment  protected  right  not 
 to  engage  in  government-  mandated  speech.  See  Rilev,  487  U.  S.  at  800;  Bucklev  v. 
 Valeo,  424  U.  S.  1;  see  also  Austin  v.  Michigan  Chamber  of  Commerce,  494  U.  S.  652 
 (1990)  (Brennan,  J.,  concurring)  (discussing  First  Amendment  issues  relating  to  forced 
 political  contributions).  1o 

 9  la  addition,  Congress  could  eaact  more  shiageat  limits  on  coatributioas  to  political  campaigas.  The  Supreme  Court  has  upheld  the  coastitutioaality  of  limits  on  political  coatriioas.  Bucklev  v.  V&  o>  424 
 U.  S.  at  58.  Additional  limits  could  include,  for  example,  more  resbictioas  on  czunpaiga  coatributioas  from  political  action  committees  aad  on  so-  called  soft  money  contributed  to  political  parties  that  is  used  to 
 finance  individual  caa@  gas.  Coagnss  could  also  seek  to  work  with  the  states  to  explore  mesas  of  reducing  the  need  for  caadidates  to  expead  substaatial  funds,  for  example  by  limiting  primaries  aad 
 enhancing  the  coordiaatioa  aad  timing  of  primaries  aad  elections.  *  Professor  Smolla  also  suggests  that  Austia  actually  explored  the  question  of  whether  the  press  caa  be 
 swept  ia  aad  made  part  of  the  regime  ofpolitical  caa~  paiga  reform.  The  case  involved  a  Michigan  law  restrictiag  corporate  political  expenditures.  The  law  coataiaed  aa  exemption,  however,  for  media 
 corporatioas.  The  Supreme  Court  not  only  held  that  the  exemption  was  permissible,  but  seuned  to  sigaal  that  the  law  would  not  have  beea  upheld  hod  it  beea  applied  to  the  press.  The  Court  emphasized  the 
 unique  role  the  press  plays  ia  our  system,  stating  that  the  press  serves  aad  was  designed  to  serve  as  a  powerful  antidote  to  any  abuses  of  power  by  govemment  officials.  Smolla,  su~  ra,  at  6. 

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 B.  The  Nature  of  Broadcasting  Does  Not  Lessen  the  Governments  Burden  of  Proof. 
 Sponsors  of  free  air  time  are  fond  of  supporting  their  concept  not  only  by 
 citation  to  Red  Lion,  as  discussed  below,  but  also  to  the  Supreme  Courts  decision  in 
 CBS  v.  FCC,  453  U.  S.  367  (1981).  The  Court  in  that  case  concluded  that  the  statutory 
 right  of  federal  political  candidates  to  reasonable  access  to  broadcast  time  properly 
 balances  the  First  Amendment  rights  of  federal  candidates,  the  public,  and  broadcasters. 
 Id.  at  397.  Presumably,  sponsors  of  free  air  time  believe  that  such  a  compulsion  might 
 well  survive  First  Amendment  challenge  on  the  same  grounds.  The  Courts  decision  in 
 CBS.  however,  fails  to  support  that  proposition. 

 1.  Reasonable  Access  Would  Not  Include  Requiring 
 Broadcasters  to  Finance  Political  Speech. 

 At  least  historically,  the  Supreme  Court  has  required  some  adjustment  in  First 

 Amendment  analysis  for  broadcasters  because  given  spectrum  scarcity,  those  who  are 
 granted  a  license  to  broadcast  must  serve  in  a  sense  as  fiduciaries  for  the  public  interest. 
 FCC  v.  League  of  Women  Voters,  468  U.  S.  364,377  (1984).  At  the  same  time,  the  Court 
 has  made  clear  that  broadcasters  are  engaged  in  a  vital  and  independent  form  of 
 communicative  activity.  As  a  result,  the  First  Amendment  must  inform  and  give  shape  to 
 the  manner  in  which  Congress  exercises  its  regulatory  authority  in  this  area.  Id.  at  378. 
 Congressional  restrictions  on  broadcasters  editorial  judgment  and  control  at  a  minimum 
 have  been  upheld  only  when  [the  Court  was]  satisfied  that  the  restriction  is  narrowly 
 tailored  to  further  a  substantial  governmental  interest,  such  as  ensuring  adequate  and 
 balanced  coverage  of  public  issues.  &J.  at  380.  Also  see  CBS  v.  Democratic  National 

 F:\  does\  dcvop\  l126@  m.  bc  scaltle 
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 Committee,  412  U.  S.  94,116  (1973)  (Congress  structured  broadcast  regulation  to 
 maintain  the  broadcasters  journalistic  role). 

 As  set  forth  below  in  discussing  Red  Lion,  the  1969  rationale  for  applying  the 
 lowest  standard  of  First  Amendment  scrutiny  to  broadcast  regulation  cannot  survive 
 carefid  analysis  today.  Even  assuming  that  free  air  time  need  satisfy  only 
 intermediate  scrutiny,  it  could  not  withstand  even  that  mid-  level  judicial  review.  As 
 demonstrated  above,  compelling  broadcasters  to  sponsor  candidates  partisan  political 
 speech  is  unlikely  to  enhance  the  integrity  of  the  electoral  process,  regardless  of  whether 
 that  interest  is  considered  compelling  or  substantial.  Nor  is  such  a  compelled  speech 
 requirement  either  narrowly  or  precisely  tailored  to  further  that  interest  in  light  of  the 
 availability  of  the  numerous  alternatives  that  impose  less  of  a  burden  on  protected  speech. 
 f&  FCC  v.  League  of  Women  Voters,  su~  ra,  at  397-  98  (restriction  not  narrowly  tailored 
 in  light  of  the  variety  of  regulatory  means  tbat  intrude  far  less  drastically  upon  the 
 journalistic  freedom  of.  .  .  broadcasters)  (quoting  CBS  v.  Democratic  Nat1 
 committee,  SuDra). 

 Indeed,  the  decision  in  CBS  v.  FCC  is  consistent  with  this  analysis.  The  Court  in 
 that  case  did  not  approve  a  broad  right  of  access  to  the  media,  but  upheld  a  limited  right 
 to  reasonable  access  under  section  3  12(  a)(  7).  453  U.  S.  at  396  (emphasis  in  original). 
 The  Court  reached  its  decision  only  after  recognizing  that  the  broadcasting  industry  is 
 entitled  under  the  First  Amendment  to  exercise  the  widest  joumalistic  freedom 
 consistent  with  its  public  [duties]  and  that  government  restrictions  on  the  editorial 

 ._  .-  __-._.  _  .-  ~-  1_ 
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 discretion  of  broadcasters    call  for  a  delicate  balancing  of  competing  interests.  Id.  at 
 394-  95  (quoting  CBS  v.  Democratic  Nat1  Committee,  412  U.  S.  at  110,117).  The 
 reasonable  access  requirement  upheld  by  the  Court  was  expressly  limited  to  political 
 candidates  for  &  political  broadcasts  on  behalf  of  their  candidacies.  a.  at  3  82 
 (emphasis  added).  No  request  for  access  must  be  honored  under  6  3  12(  a)(  7)  unless  the 
 candidate  is  willing  to  pay  for  the  time  sought.  Id.  at  382  n.  8. 

 A  requirement  entitling  political  candidates  to  free  broadcast  time  goes  far  beyond 
 reasonable  access  and  would  upset  the  delicate  balance  the  Court  reached  in  CBS  v. 
 FCC.  The  Court  found  that  a  limited  right  of  political  candidates  to  masonable  access 
 represents  an  effort  by  Congress  to  assure  that  an  important  resource  -  the  airwaves  - 
 will  be  used  in  the  public  interest,  453  U.  S.  at  397,  and  concluded  that  the  public  interest 
 was  served  by  affording  political  candidates  an  opportunity  to  present,  and  the  public  to 
 receive,  information  necessary  for  the  effective  operation  of  the  democratic  process.  Id. 
 at  396.  That  public  interest  does  not,  however,  include  forcing  broadcasters  to  subsidize 
 the  cost  of  broadcasting  political  candidates  self-  selected  information.  l1 

   There  is  only  a  tenuous  connection  between  the  FCCs  admitted  power  to  regulate  the  con&&  of  broadcasting,.  and  its  dubious  power  to  issue  a  mandate  designed  to  cure  the  perceived  ills  of  Americas 
 campaign  finance  process.  As  Professor  Smolla  comments  at  p.  3  of  his  article  Free  Air  Time  for  Candidates  and  the  First  AmendmeW, 

 indeed  there  is  absolutely  no  logical  nexus  between  digital  broadcasting  and  political  campaigns.  There  is  nothing  about  changing  the  technical 
 method  of  broadcasting  that  has  anything  whatsoever  to  do  with  the  content  of  what  is  broadcasted,  let  alone  content  defined  specifically  as 
 speeches  by  candidates. 
 Indeed,  the  lack  of  nexus  between  the  pmported  goals  of  the  free  air  time  concept  and  the  FCCs  regulatory  power  also  exacerbates  the  First  Amendment  vulnerability  of  any  attempt  by  the  FCC  to  impose 
 such  a  regime. 

 13 
133
 Broadcasters  add  substantial  value  to  the  licenses  they  receive  from  the  federal 
 government  through  investments  in  pro  gramming,  operations,  and  equipment.  The 
 broadcasters  are  compensated  for  this  investment  through  the  sale  of  broadcast  time  to 
 advertisers.  The  rates  charged  for  this  time  vary  according  to  the  time  of  day  and  the 
 program  during,  before,  or  after  which  the  advertisement  is  broadcast.  A  free  air  time 
 rule  would  mandate  not  only  that  political  candidates  be  given  the  opportunity  to  have 
 their  messages  broadcast  but  presumably  that  the  broadcasts  occur  when  broadcast  time  is 
 most  valuable  (so-  called  prime  time).  Such  a  requirement  would  be  a  far  more 
 expansive  encroachment  on  broadcasters  editorial  discretion  than  the  paid  reasonable 
 access  upheld  in  CBS  v.  FCC,  and  would  represent  nothing  less  than  a  tax  on 
 broadcasters  to  finance  partisan  political  campaigns  -  an  issue  never  considered,  much 
 less  decided,  in  that  case. 

 A  free  air  time  mandate  would  skew  the  delicate  balance  of  competing 
 interests  entirely  in  favor  of  political  candidates.  Whether  or  not  the  public  would  gain 
 any  benefit  from  having  broadcasters,  rather  than  the  candidates  themselves,  finance  a 
 substantial  portion  of  partisan  political  messages,  the  broadcasters  ability  to  control  the 
 content  of  their  broadcasts  and  retrain  from  supporting  speech  with  which  they  do  not 

 l2  Alternatively,  compelled  financing  could  be  interpted  as  a  license  fee.  The  tying  of  mandated  or  discounted  broadcast  requirements  to  the  licensing  of  frequencies,  however,  is  inconsistent  with  the  Courts 
 admonition  that  government  may  not,  cansistent  with  the  First  Amendment,  condition  the  grant  of  a  government  benefit  on  the  sacrifice  of  a  constitutional  freedom.  Rutan  v.  Reoublican  Partv,  497  U.  S.  62 
 (1990);  Swiser  v.  Randall,  357  U.  S.  513  (1958).  Broadcasters  do  not  lose  their  First  Amendment  freedoms  merely  because  the  FCC  grants  the  licenses  under  which  they  operate.  See  FCC  v.  Leaeue  of  Women 
 Voters,  468  U.  S.  at  376-  S  1.  Such  a  construction  of  the  pending  legi&=  also  raises  takings  concerns,  dii  infira  at  p.  21  ff.  Also  e  Professor  EWiers  discussion  of  the  inapplicability  of  Rust  v.  Sullivan, 
 500  U.  S.  173  (1991),  in  Exhibit  A,  at  pp.  50-  51. 

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 agree  would  be  severely  infringed.  Under  these  circumstances,  the  pending  legislation 
 plainly  would  violate  the  freedom  of  speech  and  press  guaranteed  by  the  First 
 Amendment. 

 2.  The  Lingering  Death  of  Red  Lion13:  Ykarcity  No 
 Longer  Justifies  Treating  Broadcasters  Differently 
 Than  Other  Media  Entities. 

 As  discussed  above,  free  air  time  would  fail  to  satisfy  either  strict  or 

 intermediate  First  Amendment  scrutiny.  As  for  the  even  lower  level  of  scrutiny  applied 
 to  restrictions  on  broadcasters  speech  by  Red  Lion,  the  legitimacy  of  relying  on 
 spectrum  scarcity  as  the  basis  for  according  broadcasters  less  freedom  than  other  media 
 rapidly  eroded  after  1969  and  has  subsequently  disappeared.  The  specuum  scarcity 
 rationale  for  such  disparate  treatment  has  come  under  increasing  judicial  attack,  and  the 
 apparent  scarcity  that  formed  the  factual  predicate  of  Red  Lion  is  now  history.  In  all 
 likelihood,  therefore,  free  air  time  would  be  subjected  to  the  strict  judicial  scrutiny 
 applied  to  infringements  of  the  editorial  fkedoms  granted  to  all  media  by  the  First 
 Amendment. 

 The  Supreme  Court  in  Red  Lion  relied  on  the  scarcity  concept  to  justify 
 regulation  of  broadcast  licensees  in  the  public  interest  and  the  paramount  right  of  the 
 public  to  have  the  medium  function  consistently  with  the  ends  and  purposes  of  the  First 
 Amendment.  395  U.  S.  at  389.  Such  scarcity  was  equivalent  to  scarcity  of  outlets  for 
 diverse  viewpoints  because  broadcast  licensees  were  virtually  the  only  form  of  electronic 

 l3  Red  Lion  Broadcastine  Co.  v.  F.  C.  C.,  395  U.  S.  367  (1%  9). 
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 mass  media  for  almost  the  first  50  years  after  Federal  regulation  was  legislated  by 
 Congress.  The  continuing  and  exponential  expansion  of  available  spectrum,  spectrum 
 compression,  and  the  advent  of  cable  television,  satellite  transmission,  and,  most 
 dramatically,  the  Internet  have,  however,  vastly  increased  the  number  and  availability  of 
 electronic  mass  media  outlets  and  have  erased  any  scarcity  of  sources  for  expression  of 
 diverse  viewpoints.  Indeed,  confident  citation  of  Red  Lion  as  a  First  Amendment  cure-  all 
 rationale  for  the  free  time  mandate  would  be  the  triumph  of  hope  over  careful 
 constitutional  analysis. 

 There  is  little  question  that  the  avoidance  of  frequency  interference  and  other 
 spectrum  problems  is  a  sticient  reason  for  government  regulation  of  broadcast 
 frequencies.  Licensing  for  those  purposes  is  not  inherently  unconstitutional,  nor  does  the 
 First  Amendment  necessarily  prevent  content-  neutral  mechanisms  serving  goals  like  local 
 and  universal  service.  See.  e.  gZ,  FCC  v.  National  Citizens  Committee  for  Broadcast@, 
 436  U.  S.  775  (1978).  But  spectrum  scarcity,  without  more,  does  not  necessarily  justify 
 regulatory  schemes  which  intrude  into  First  Amendment  territory.  Svracuse  Peace 
 Council  v.  F.  C.  C.,  867  F.  2d  654,683  (DC.  Cir.  1989)  (Starr  J.,  concurring),  cert.  denied, 
 493  U.  S.  1019  (1990). 

 Regulation  and  licensing  with  the  goal  of  picking  qualified  licensees  is 
 fkndamentally  distinct  from  a  free  air  time  mandate  that  would  force  publication  and 
 subsidization  of  a  particular  kind  of  speech  because  of  its  content  The  former  allows 
 review  of  a  licensees  performance  to  measure  good  faith  and  reasonable  efforts  to 

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 respond  to  community  interest  and  to  satisfy  minimum  performance  criteria  in  the  public 
 interest.  The  latter  would  compel  speech  and  require  broadcasters  to  subsidize  a 
 particular  kind  of  speech  during  a  license  term.  The  former  comports  with  the 
 requirement  of  minimum  intrusion  commensurate  with  the  necessity  of  licensing.  The 
 latter  founders  because  such  political  speech  and  can  and  will  be  heard  over  an 
 extraordinary  range  of  media  and  from  an  almost  infinite  variety  of  voices  without  such  a 
 mandate,  and  because  the  mandate  would  simply  not  be  conceptually  related  to 
 evaluation  of  licensees  to  serve  the  public  interest. 

 Accordingly,  courts  increasingly  have  criticized  the  use  of  presumed  scarcity  of 
 media  for  mass  distribution  of  video  and  audio  information  as  a  means  of  justifying 
 content  regulation.  See.  e.  L  Turner  I,  5  12  U.  S.  622,  at  637-  8  (1994)  (impliedly 
 questioning  the  validity  of  disparate  treatment  for  broadcasters  and  stressing  the 
 limitations  of  government  control  of  content,  even  under  Red  Lion);  Telecommunications 
 Research  and  Action  Center  v.  F.  C.  C.,  801  F.  2d  501  (D.  C.  Cir.  1986)  (  The  basic 
 difficulty  in  this  entire  area  is  that  the  line  drawn  between  print  media  and  the  broadcast 
 media,  resting  as  it  does  on  the  physical  scarcity  of  the  latter,  is  a  distinction  without  a 
 difference.  .  .  .  Since  scarcity  is  a  universal  fact,  it  hardly  explains  regulation  in  one 
 context  and  not  another.?.  The  FCC  in  partial  response  abolished  the  Fairness  Doctrine 
 which  gave  rise  to  the  Courts  decision  in  Red  Lion.  See  Svracuse  Peace  Council,  sunra 
 (afErming  Meredith,  2  F.  C.  C.  Rec.  5043  (1987),  recon.  denied,  3  F.  C.  C.  Rec.  2035 
 (1988)  afYd  sub  nom  3--  d  Svrac  use  Peace  Council,  cited  su~  ra). 

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 Thus,  the  traditional  and  undifferentiated  claim  that  spectrum  scarcity  justified 
 regulation  has  lost  its  intellectual  vitality,  and  there  has  been  a  growing  recognition  that 
 the  need  for  government  allocation  and  licensing  to  avoid  interference,  even  under 
 historical  conditions  of  scarcity,  cannot  support  governmental  favoritism  for  particular 
 speech  or  speakers  based  on  the  content  of  messages.  See  Time  Warner  Entertainment 
 Co.  v.  FCC,  105  F.  3d  723  (D.  C.  Cir.  1997)  (Williams,  J.,  dissenting  from  denial  of 
 rehearing  en  bone)  c.  .  .  Red  Lion  has  been  the  subject  of  intense  criticism.  Partly  this 
 rests  on  the  perception  that  the  scarcity  rationale  never  made  sense  -  in  either  its 
 generic  form  (the  idea  that  an  excess  demand  over  supply  at  a  price  of  zero  justifies  a 
 unique  First  Amendment  regime)  or  its  special  form  (that  broadcast  channels  are 
 peculiarly  rare)  and  partly  the  criticism  rests  on  the  growing  number  of  available 
 broadcast  channels.);  Tribune  Co.  v.  FCC,  NO.  97-  1228  (D.  C.  Cir.  Jan.  16,1998)  (  It 
 maybethat..  .  the  FCC  would  be  thought  arbitrary  and  capricious  ifit  refused  to 
 reconsider  its  [newspaper-  broadcast  cross-  ownership]  rule  in  light  of  persuasive  evidence 
 that  the  scarcity  doctrine  is  no  longer  tenable.).  Also,  in  Turner  I,  the  Supreme  Court 
 declined  to  extend  Red  Lion  to  cable,  stating  that  whatever  its  validity  in  the  cases 
 elaborating  it,  the  scarcity  doctrine  could  not  apply  outside  the  broadcast  context.  5  12 
 U.  S.  622  at  637-  8.  Although  the  Court  recognized  that  courts  and  commentators  have 
 criticized  the  scarcity  rationale  since  its  inception,  it  saw  no  reason  to  consider  those 
 arguments  in  a  case  that  involved  only  cable  regulation.  Id.  at  2456-  57. 

 Also,  as  set  forth  above,  even  if  the  scarcity  doctrine  under  Red  Lion  retains  some 
 slim  claim  to  validity  -  almost  entirely  because  the  Supreme  Court  has  not  specifically 

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 overruled  the  decision  -  the  argument  that  Red  Lion  would  support  the  imposition  of 
 free  air  time  is  unjustified  and  based  on  an  incorrect  understanding  of  the  case,  which, 
 as  set  forth  above,  dealt  solely  with  the  question  of  whether,  in  the  absence  of 
 governments  fairness  requirement,  the  views  of  some  speakers  might  not  be  reflected 
 on  broadcast  stations.  Indeed,  given  the  narrow  holding  of  Red  Lion,  one  can  wonder 
 whether  those  who  ritually  intone  Red  Lion  in  this  context  have  recently  read  the 
 decision.  No  one  can  argue  that  the  views  of  candidates  for  political  office  are  not  widely 
 available  on  broadcast  licensees  now,  both  through  news  and  other  free  coverage  and 
 through  the  sale  of  advertising  time,  let  alone  on  the  multifarious  and  even  cacophonous 
 alternate  means  of  electronic  distribution  available  in  this  country.  Thus,  the  free  time 
 proposal  is  fundamentally  unrelated  to  any  claimed  scarcity  of  electronic  voices,  cannot 
 rely  on  the  narrow  fairness  doctrine  holding  of  Red  Lion  for  constitutional  support,  and 
 would  have  to  be  considered,  as  analyzed  above,  under  the  traditional  First  Amendment 
 standards  applying  to  all  media. 

 3.  Other  First  Amendment  Theories  Do  Not  Support  a 
 Free  Air  Time  Mandate 

 Proponents  of  free  air  time  have  suggested  two  other  theories  in  an  attempt  to 

 bolster  their  First  Amendment  arguments.  Respectively,  they  are  discussed  in  detail  by 
 Professor  Rodney  A.  Smolla  in  his  discussion  of  Free  Air  Time,  suma,  and  by 
 Professor  Burt  Neubome  in  Blues  for  the  Left  Hand:  A  Critique  of  Cass  Sunsteins 
 Democracy  and  the  Problem  of  Free  Speech,  62  Univ.  Chicago  L.  Rev.  423  (1995),  a 

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 copy  of  which  is  attached  to  this  Summary  as  Exhibit  B.  Briefly,  the  two  arguments  are 
 as  follows: 

 (1)  Quidpro  quo:  As  Professor  Smolla  puts  it,  the  argument  is  that  free  air 
 time  may  be  imposed  on  broadcasters  as  a  quidpro  quo  exchange  for  the  grant  to 

 broadcasters  of  additional  spectmm  space  for  digital  television.  Smolla  at  1.  He 
 analyzes  and  refutes  each  of  the  asserted  bases  for  the  quidpro  quo  theory,  including  but 
 not  limited  to  his  final  conclusion  that  the  government  cannot  presume  to  attach 
 conditions  to  benefits  that  are  not  in  fact  benefits.  It  is  not  at  all  clear  that  the  grant  of 
 additional  spectrum  space  was  a  benefit  to  broadcasters  at  all.  The  conversion  to  digital 
 broadcasting,  it  now  appears,  will  probably  cost  broadcasters  more  than  they  are  likely  to 
 recoup.  There  is  no  quid  to  the  quidpro  quo.  Id.  at  3. 

 (2)  The  Madisonian  theory  of  the  First  Amendment.  At  p.  435  of  Professor 
 Neubomes  attached  critique  of  Professor  Sunsteins  text,  he  notes: 

 According  to  Sunstein  on  Madison,  the  First  Amendments 
 dominant  purpose  is  the  [governments]  protection  of  political  speech  that  is  needed  for  the  proper  functioning  of 

 a  polity  of  political  equals  seeking  a  common  good  -  what 
 Sunstein  calls  a  deliberative  democracy. 

 Professor  Neubomes  analysis  demonstrates  that  the  so-  called  Madisonian  theory  for 

 flipping  the  First  Amendment  to  support  government  regulation  of  speech  is  deeply 
 antithetical  to  fundamental  First  Amendment  principles,  and  without  support  in  decisions 
 of  the  Supreme  Court  -  except  for  Red  Lion.  The  Madisonian  theory  is  inconsistent  with 

 any  plain  meaning  interpretation  of  the  First  Amendment  as  consistently  applied  by  the 

 20 
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 Supreme  Court.  Particularly  if  berefi  of  Red  Lion  as  a  viable  citation,  a  likelihood 
 discussed  above,  the  theory  doesnt  make  much  constitutional  sense  and  the 

 governments  purported  right  to  dictate  favored  speech  could  not  be  limited  to  free 
 political  time,  but  would  inevitably  extend  to  whatever  topic  the  government  of  the 
 moment  supported. 

 II.  A  FREE  AIR  TIME  REQUIREMENT  WOULD  TARE 
 BROADCASTERS  PROPERTY  WITROUT  JUST  COMPENSATION, 
 VIOLATINGTHEFIFTEAMENDMENT 

 The  FifIh  Amendment  bars  the  government  from  taking  private  property  without 

 compensation.  Proponents  of  free  air  time  argue  that  requiring  broadcasters  to  air 
 candidate  messages  for  free  would  not  constitute  a  taking  because  the  Communications 
 Act  bars  licensees  from  claiming  any  property  interest  in  their  licenses.  This  simplistic 
 analysis  simply  does  not  fairly  represent  the  scope  of  broadcasters  ownership  interests. 
 While  they  may  have  no  legal  claim  against  the  government  for  the  spectrum  as  such, 
 broadcasters  certainly  have  a  cognizable  interest  in  the  businesses  they  have  developed 
 using  that  spectrum,  an  interest  that  cannot  be  eradicated  by  government  fiat.  Further,  the 
 courts  have  recognized  that  takings  occur  when  government  requires  uses  of  property 
 diffkrent  from  the  expectations  of  property  holders  or  which  substantialIy  diminish  their 
 value.  See  Pruneyard  Shopping  Center  v.  Robins,  447  U.  S.  74,83  (1980);  Penn  Central 
 Transportation  Corp.  v.  New  York  City,  438  U.  S.  104  (1978). 

 Although  a  specific  free  time  proposal  has  not  yet  been  presented  to  the  Advisory 
 Committee,  some  free  time  proposals  would  grant  up  to  two  hours  of  free  time  on  every 

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 television  station  to  each  qualified  candidate  for  public  office.  Even  if  the  rule  were 
 limited  to  federal  candidates,  in  some  markets  there  would  be  more  than  100  qualifying 
 candidates  in  a  given  election  cycle.  Broadcasters  could  be  required  to  give  candidates 
 up  to  1020  30-  second  spots  per  week,  of  which  half  could  be  in  evening  hours.  Each 
 evening,  every  TV  station  might  have  to  give  up  73  spots.  In  the  weeks  before  elections, 
 there  would  be  little,  if  any,  remaining  time  that  broadcasters  could  sell  to  commercial 
 advertisers.  Thus,  even  ifthe  actual  mandate  were  only  half  as  onerous,  broadcasters 
 expectations  concerning  the  use  of  their  stations  still  would  be  markedly  changed,  with 
 potentially  devastating  impact  on  stations  incomes  and  market  values. 

 The  Fifth  Amendment  provides  that  private  property  [shall  not]  be  taken  for 
 public  use,  without  just  compensation.  This  guarantee  is  designed  to    bar  Government 
 from  forcing  some  people  alone  to  bear  public  burdens  which,  in  all  fairness  and  justice, 
 should  be  borne  by  the  public  as  a  whole.    Penn  Central  Transnortation  Co.  v.  New 
 york.  438  U.  S.  104,123  (1978)  (quoting  Armstronn  v.  United  States,  364  U.  S.  49 
 (1960)).  Any  governmental  action  that  effects  even  a  minor  taking  of  property  rights 
 brings  into  question  the  constitutional  obligation  to  pay  just  compensation,  as  measured 
 by  market  value  at  the  time  of  the  taking.  Loretto  v.  Tehxxomnter  Manhattan  CATV 
 Corn,  458  U.  S.  419  (1982);  94  469  U.  S.  24,29  (1984). 
 Just  compensation  must  be  paid  whether  the  intrusion  is  comparable  to  an  easement, 
 Nollan  v.  California  Coastal  Commission,  483  U.  S.  825,831-  32  (1987),  or  more 
 permanent,  as  in  Loretto,  and  regardless  of  the  degree  of  economic  impact  or  the  public 
 interest  asserted. 

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 .  .._  -  _I.  _^  ...-..-..  l-.  .--.  ...,  .,  -^ 
142
 A  free  air  time  mandate  would  implicate  at  least  two  property  rights:  (1)  the 
 broadcasters  rights  in  station  facilities  and  work  of  station  personnel;  and  (2)  the  value  of 
 broadcast  time  that  results  from  the  investment  of  capital  and  effort  to  create  and 
 maintain  an  ongoing  broadcast  station  where  there  would  otherwise  be  only  a  bare 
 frequency  allocation.  4  A  frequency  allocation  cannot  be  used  until  the  licensee 
 constructs  facilities  capable  of  sending  communications  using  the  frequency  and  hires 
 personnel  to  operate  its  facilities.  Even  then,  communication  requires  an  audience,  which 
 the  licensee  develops  through  investment  in  pro  gramming,  including  coverage  of  news, 
 public  events,  sports,  and  various  entertainment  programming. 

 Under  the  ostensibly  free  broadcast  license  scheme  long  ago  established  by 
 Congress,  the  licensee  recovers  the  cost  of  its  facilities,  personnel,  and  programming 

 Itissom~  esarguedthatbroedcastas  havenopropeayrigh~  intheirLicensesbecausethcyaregrantaiby  their  tam  to  avoid  inte&  ranx  problems. 
 (1940).  This  aIgume&  however 
 for  revocatiun  of  the  license  during  its  tam.  anddaatthmustbcbulycompcll&  cause  As  Professor  Be&  points  out,  Exhiiit  A  at  55:  In  Fifth  Amembnent  tams,  the  [he  air  time  pqosal]  push[  esJ  the  government 

 owmship  claim  to  the  breaking  point  On  the  most  rudimentary  functional  economic  analysis  of  bow  the  lie  system  actually  works  and  is  administued, 

 tbehcTVmandateswouldconshtcatakingofpqeq  Byquiringtbt  broadcastas  forego  substahd  income  hm  the  sale  of  broadcast  time  during  the 
 licensepaiod,  whereby-  g  broxhtm  a  fee  derived  solely  lium  their  sales  of  political  ads  and  devoting  it  solely  to  funding  candidate  time,  each  of  the 
 fkaTVpmposalsnotonlywouldcohtuteanobviously~  ivewealth~  er  htwouldalsounecceptablydisNptt.  he-  legitimate, 
 govuIlment-  induced,  investmul-  badred  cxpedbm.  Ofcourse,  asProfessaBeVia~~~  that~  e[  Supreme]  Captbas 
 developed  in  considexing  those  [takings]  claims  is  a  paradox  of  doctkal  uui~~~  lligibility.  a  at  14.  she  conch&  q  howcvcx,  that  theFifihAm~  cz&  ontheotherhaud,  is 
 designed  to  prevent  unfair  and  unjust  coercive  wealth  transfers  disguised  as  qulation.  The 
 OnlywaythattheCourtamaccoPnplisbthatpnpaseistoholdthata~  nisataking  forwhichcompensationmustbcpid.  Thus,  ifasig&  kautdcfixtoftbefrecTVmambtes 

 isthattheycomivelytransferwcalth~  -topoliical  candi~  thenFii  Amendment  principles  would  be  at  stake.  &  at  16. 

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 through  agreements  to  broadcast  advertisers  messages  at  specified  times  during  the  day 
 that  the  broadcaster  has  devoted  for  such  purposes.  The  rates  for  this  advertising  depend 
 on  the  length  of  the  message,  the  time  of  day  the  advertiser  chooses  to  have  its  message 
 broadcast  and  the  programming  during,  before,  or  a.  kr  which  the  advertisement  airs.  By 
 requiring  that  broadcasters  air  political  candidates  advertisements  -  rather  than  other 
 advertisers  messages  -  without  charge,  the  pending  legislation  would  take  broadcasters 
 property  without  just  compensation.  5 

 CONCLUSION 
 A  free  air  time  mandate  would  be  an  attempt  to  advance  the  laudable  goal  of 
 campaign  finance  reform,  but  its  means  of  achieving  that  goal  would  raise  insuperable 
 constitutional  barriers.  Neither  Congress  nor  the  FCC  can  compel  anyone,  including 
 licensed  broadcasters,  to  finance  federal  candidates  partisan  political  speech.  The 
 proposals  to  extend  that  mandate  to  provide  f&  e  access  to  broadcast  time  to  such 
 candidates  not  only  would  disrupt  the  delicate  balance  of  existing  law  but  would  raise 
 additional  constitutional  difficulties,  further  erode  broadcasters  journalistic  freedom,  and 
 render  the  reasonable  access  mandate  even  more  susceptible  to  challenge.  Those  who 
 take  comfort  from  early  judicial  decisions  sustaining  regulation  of  broadcasters  should 
 realize  that  those  decisions  at  a  minimum  do  not  support  the  proposed  legislation  and 

   Witbout  question,  ataking  would  occur  if  Congress  were  simply  to  mandate  that  ao  expressive  enterprise  reserve  8  portion  of  its  medium  of  expression  for  use  by  the  general  public.  Such  public  access  would 
 deprive  [the  media]  of  the  ri@  t  to  exclude  others,  one  of  the  most  essential  sticks  in  the  bundle  of  rights  that  are  commonly  charactetrzed  as  propetty.  Dolan  v.  Citv  of  Tie@  114  S.  Ct.  2309,23  16  (1994). 
 Free  air  time  represents  just  such  a  mandate  to  broadcasters.  Broadcasters  would  be  unable  to  exclude  political  candiM  messages  &rn  their  pmgramming,  and  they  would  not  receive  compensation  for  that 
 access.  These  circumstances  would  pose  a  clear  violation  of  the  Fifth  Amendment. 

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 likely  would  no  longer  represent  the  Supreme  Courts  view  on  the  permissibility  of 
 treating  broadcasters  differently  than  other  media-  and  certainly  not  in  the  context  of 
 compelled  political  speech. 

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