A Public Interest Perspective on the Impact of the Broadcasting Provisions of the 1996 Act

I. INTRODUCTION II. SECTION 201: BROADCAST SPECTRUM FLEXIBILITY III. SECTION 202: BROADCAST OWNERSHIP IV. LICENSE RENEWAL PROVISIONS V. CONCLUSION I. INTRODUCTION The broadcasting provisions contained in Title II of the Telecommunications Act of 1996 ("1996 Act") (1) received much less public attention than many of the other provisions when the 1996 Act was adopted. (2) Nonetheless, these provisions, which governed the transition from analog to digital television, revised the broadcast ownership rules, and altered broadcast licensing procedures, have had an important and often detrimental impact on the viewing public. This Essay discusses how these provisions have affected the viewing public over the last ten years in both expected and unexpected ways. The broadcasting provisions in Title II resulted from lobbying by broadcast interests. They include the so-called "broadcaster spectrum flexibility" provisions of Section 201, the broadcast ownership provisions of Section 202, and the license renewal provisions of Sections 203 and 204. Broadcasters sought to ensure exclusive control over additional spectrum to facilitate the conversion from analog to digital technology, and thus better compete against multichannel video providers such as cable and satellite. At the same time, they wanted to eliminate or relax broadcast ownership rules to allow greater consolidation. Finally, they sought to lengthen license terms and make license renewals even easier and more foolproof than before. Public interest advocates regarded these changes as harmful to the listening and viewing public at the time they were adopted. Andrew Jay Schwartzman, head of the Media Access Project, succinctly summed up his reaction: "The bill stinks." (3) Robert McChesney, who later founded Free Press, called the 1996 Act "one of the most corrupt pieces of legislation in U.S. history." He asserted that As a result of this bill, the information highway will be entirely controlled by the big firms, and it will be developed to make the most profit, regardless of the social implications. Forget about the public interest. The rich will get served, the middle class noticed, and the poor forgotten. (4) In this Essay, I show that many, but not all, of the public interest advocates' fears were realized and that moreover, the 1996 Act has had other negative consequences that were not anticipated, or at least publicly discussed, when it passed. II. SECTION 201: BROADCAST SPECTRUM FLEXIBILITY Section 201 added a new Section 336 to the Communications Act (5) governing the transition from analog television to what has variously been called high-definition television ("HDTV"), advanced television ("ATV") or digital television ("DTV"). (6) Although the FCC had already begun planning for the transition to digital television through rulemaking, (7) the 1996 Act resolved some of the outstanding issues. Digital broadcasting allows the electromagnetic spectrum to be used more efficiently and flexibly. With the same amount of spectrum used for a single analog television signal (6 MHz), a digital broadcaster may broadcast in high definition ("HD"), provide multiple program streams ("multicast"), and provide various data or other ancillary and supplementary services. To receive the digital signals, members of the public have to buy new, expensive television sets, or at least converter boxes. This presents what is known as the "chicken-and-egg problem": consumers have no incentive to buy new television sets if there is nothing to watch, and broadcasters have no incentive to provide digital programming if no one can watch it. (8) The 1996 Act was supposed to solve this problem by allowing existing television licensees, and only existing television licensees, (9) to use an additional 6 MHz of spectrum free of charge so that they could simultaneously broadcast their traditional analog signal and their digital program streams, along with any ancillary and supplementary services. …