Promoting the Public Interest in the Digital Era

The issue posed is whether in today's media environment, the public interest is better served than at the time of the "Vast Wasteland" speech. (1) Clearly, it is in some important respects. For example, with cable's increasing importance, there are more national news outlets and the terrific addition of the C-SPAN channels. However, I do not plan to explore this issue further. In my opinion, the more important question today is whether we should continue the present regulatory scheme for television broadcasting or adopt a radically different approach. Under the Communications Act of 1934 (2) (the 1934 Act) and the Telecommunications Act of 1996 (3) (the 1996 Act), the broadcaster is a short-term licensee obligated to operate in the public interest. Broadcasters, led by the National Association of Broadcasters ("NAB"), have stated that they accept this social compact, that is, a commitment to serve the public interest in exchange for free use of the spectrum. (4) But this public trustee content scheme raises serious policy considerations, especially in light of changed circumstances in the video distribution field. These considerations include the following: (1) The heart of the regulatory scheme is the presentation of public service programming. But this necessarily involves behavioral content regulation and thus First Amendment strains. Whatever public service program categories are used, for example, local, informational, nonentertainment, community issue oriented, or "specifically designed" to educate or inform children, (5) definitional problems arise, particularly at the margins. Take the latter category, called core educational programming. (6) Educational or informational programming for children contains a strong entertainment component, and trying to separate the two components is neither possible nor appropriate; further, it can have a social purpose instead of being cognitively directed, and indeed, studies by the Annenberg Public Policy Center establish that almost all of the core programming on the commercial networks is of the social purpose nature. (7) This can result in the claim that The Little Mermaid meets the definition of core educational programming because it shows little girls how to be leaders or be assertive. Controversy can and has arisen over programs like NBC's N.B.A. Inside Stuff, with the network disputing the criticism that this was not core educational material by citing the support of two educational consultants who assisted in its preparation. (8) This is but one example of the difficult First Amendment problems that can arise in this field. (9) (2) The objective is to obtain high-quality public-service programming. But the government cannot review for quality; that would be much too subjective. So we are dependent on the broadcaster to produce such high-quality programs. The noncommercial system has demonstrated that it will strive to do that, even though it is expensive. The commercial system, under fierce and growing competition, has no such history or incentive. (10) (3) It is anomalous to be still applying the seventy-five-year-old public trustee content scheme to this one medium of video distribution, broadcasting, while powerful new media are soundly not under such content regulation. Thus, multi-channel video program distributors (chiefly cable and direct broadcast satellite ("DBS")) serve 85.3% of U.S. television households. (11) The vast majority of the public makes no distinction between basic cable (and DBS) channels and broadcast channels, with cable and DBS coming close to TV broadcasting in audience reception figures. Cable and DBS have hundreds of channels, with more in the offing in the digital era. Still to come is video streaming over the Internet. There are access requirements applicable to some of these new media, but none have public trustee content obligations of the nature imposed on broadcasting. (12) (4) The Federal Communications Commission ("FCC") has largely deregulated radio and television broadcasting. …