The Fairness Doctrine, Part II-- The Constitutionality of Broadcast Regulation

JB

The Fairness Doctrine, which was abolished in 1987, has been in the news recently, as some Democrats have argued for its revival. In my first post on this subject, I explained why I believe the FCC's Fairness Doctrine was bad public policy and should not be revived, but I also noted that it was probably not unconstitutional, as many critics have charged. In this post I take up the latter question.

To know whether the Fairness Doctrine-- or any other form of broadcast regulation-- is constitutional, we have to know the theory that justifies its regulation. For many years that theory was scarcity. The airwaves were scarce, the argument went; threrefore government could decide who could use them; and therefore government could require broadcasters to act as trustees for the public, who actually owned the airwaves.

The scarcity theory is spurious. All resources are scarce. Moreover, it is also misleading to say that the public "owns" spectrum. Spectrum refers the range of frequencies that radio waves may take. Government may create exclusive or nonexclusive rights to operate technologies that broadcast at certain frequencies, but that is not the same thing as saying that one owns those frequencies.

Here is a better way to understand the basis of broadcast regulation. The atmosphere, when used for traditional forms of broadcasting, is a common pool resource. Absent government regulation, it is difficult to keep many people from using it simultaneously, and their signals can easily interfere with each other and prevent each other from effective broadcasting. Their activities are rivalrous but not easily excludable.

The government's authority to regulate broadcasting derives from its authority to solve a coordination problem in the use of this resource.

At its most basic, broadcast regulation is a kind of zoning. Government sets up a plan that allows people to broadcast in different frequencies in different locations, with differing strengths and at differing times, in order to facilitate successful broadcast transmission and reception. It can also regulate the kinds of technologies used for transmission and reception in order to manage and prevent interference. That is, unlike traditional land use, the government zones not only by location but also by frequency, time of day, and signal strength. It focuses on signal frequency and signal strength in part because the mere location of transmitter does not determine how far a signal will travel or with whom it will interfere. It regulates technological design because (1) different technological designs can create greater or lesser degrees of interference, and (2) because government standards sometimes solve other coordination problems-- for example, ensuring that radio receivers can listen to radio transmitters.

In setting up its zoning plan, the federal government has many options. It can reserve certain frequencies to itself or state and local governments-- for example, for military uses, police and fire departments, emergency services, etc. It can dedicate certain frequencies to scientific research, for example, astronomical uses and telemetry. It can auction off certain frequencies and strengths nationally, or within certain geographical boundaries. Or it can create licenses that expire and need to be renewed.

Government uses a combination of these various techniques in spectrum allocation and regulation. Most people do not realize that the AM, FM, and TV bandwidths constitute a very small part of the total spectrum.

The threshold constitutional question is whether government has any obligation to choose one kind of zoning system over another. The answer is that, within very broad parameters, it does not. If the government allocated all spectrum rights to itself, there might be a constitutional problem, but it has not done so. It is largely a policy question whether to use auctions or licenses, and so on.

If the government uses licenses, as it does for the broadcast media, there is a second constitutional question. What conditions may the government place on the award of a license? Here the First Amendment has something to say. If the government were to award licenses only to Democrats or Republicans, or only to people who promised to support the government's positions, this would violate the First Amendment.

Nevertheless, there are a large number of cases in which the government conditions the receipt of benefits on expression that do not violate the First Amendment. For example, the government may award money to build a music library, and withdraw money or hold the librarians responsible if the latter turn it into a general purpose library or a library devoted to NASCAR racing. The government may subsidize all newspapers and magazines with special postal rates as long as it makes no distinctions on the basis of their viewpoint. Beyond this, government employees can have many additional regulations placed on them without violating the first amendment. However, for purposes of this discussion, I will assume that broadcast licensees are not like government employees. Rather, they are people applying for a license or government benefit that helps them engage in their business subject to various government regulations.

The key question, then, is whether conditions on a broadcast licensee involve an unconstitutional condition on the exercise of their free speech rights.

Assuming that the government does not impose viewpoint based restrictions, the question should be whether there is a reasonable nexus between the government's purposes for choosing a licensing system (rather than, say, an auction system or more government owned channels) and the additional conditions the government imposes. These conditions can be content-based (for example, special rules for stations that play only music or have all talk or all sports formats, requirements that all licensees have twenty minutes of local news every day) and speaker based (special rules for non-profit corporations) as long as they are not viewpoint-based.

The Supreme Court has frequently stated that the purpose of a renewable licensing system in broadcasting is to ensure "the widest possible dissemination of information from diverse and antagonistic sources." That is to say, broadcasting policy is a form of information policy. It seeks to give incentives for private actors to produce information that will be useful to the public. Because information is a public good, valuable and useful information will likely be underproduced by market forces acting alone, so government investments in and regulations of information production can help make up the slack, as long as they do not otherwise violate the First Amendment. Therefore the government may impose conditions on licensees if they help promote this goal.

This is the best interpretation of the familiar idea that the broadcaster is a "public trustee." The broadcaster gets a valuable license priced well under market cost (for example, in an unencumbered auction). In return, the broadcaster agrees to help the government promote the dissemination of information valuable to the public, in addition to any other information the broadcaster wants to disseminate. Thus, public trustee rules ideally should be about what licensees should add to the mix of information available to the public, not what they may not broadcast.

Laws that do not distinguish based on viewpoint of the speaker and are merely structural regulations of ownership and broadcast services are least likely to be unconstitutional conditions and most likely to be decisions about information policy that further the underlying purposes for the licensing system.

That is why, for example, most media concentration rules are likely to be constitutional. A rule that you can own no more than ten licenses, or five in a single metropolitan area, or that you cannot have a license if you also own a local newspaper, for example, is probably a permissible condition on applying for a license in the first place. It reasonably promotes the purposes of "dissemination of information from diverse and antagonistic sources." Some media concentration rules will do this better than others, and some people think that media concentration rules don't further diverse and antagonistic sources of information at all. But, absent viewpoint discrimination, the proper question is not what is the best policy, but what is a reasonable policy. As long as the government can make a reasonable case that its rules promote its underlying goals, courts should give it fairly broad discretion under the Constitution (A different set of rules applies when courts determine whether FCC regulations are consistent with its statutory charter).

Rules that require broadcasters to award equal use of facilities to identified political candidates and to sell airtime to candidates at reduced prices are also probably not unconstitutional conditions. That is because they promote public understanding and debate about upcoming elections.

Finally, we come to the fairness doctrine. Remember, it has two prongs. The first prong states that licensees must cover issues of public concern regularly. This has a clear nexus to the information policy goals of broadcasting regulation. The second prong says that when licensees cover issues of public concern, they must do so fairly while giving attention to competing points of view. This is a content based regulation, but it is not a viewpoint based regulation. It says that if you have a viewpoint, whatever your viewpoint is, you must offer contrasting perspectives so that the audience can judge for itself. A rule that said that the doctrine only applied if you took a particular position would be both content based and viewpoint based.

The purpose of the fairness doctrine is clearly connected to the purposes for the licensing system: promoting the dissemination of diverse and antagonistic sources of information, particularly about issues of public concern. It performs this function, but not all that well, in my opinion. As I noted in my first posting, I don't believe the fairness doctrine is good public policy. But the constitutional question is whether there is a reasonable nexus to the underlying goal. It is hard for me to say that the nexus is not there.

One of the consequences of the government's choice of a licensing system is that it gets fairly wide discretion in how it implements the purposes of that system as long as it does not impose special burdens on some licensees-- and not others-- for taking particular points of view. Some of its rules will be unwise, and others will be downright stupid, but remedying those is mostly left to the political process.

In the third installment, I will take up the question of what the political process might do if it wanted to reform broadcasting policy in light of changes in technology and market structure. The Fairness Doctrine is not the answer, but there are many other reforms that might make a considerable difference in the long run.
Posted 8:00 AM by JB [link]