DEVELOPING PUBLIC INTEREST RESPONSIBILITY
IN BROADCASTING IN THE U.S.
By Prem Misir
How
the public interest responsibility is evolving
Philosophy of the
public interest
Program diversity
Platform for political
discussion
Localism
Children’s
educational programming
Access for persons
with disabilities
Equal Employment Opportunity
Legislative and judicial roots of public interest
Broadcasting is considered a sacred cow for some television
station managers in Guyana. They see broadcasting as untouchable
and an entity that operates only in the private interest.
The recent airing of the infamous Douglas tape on a few television
channels is a case in point. Those television stations that
broadcasted the tape felt that they had a divine right to
execute this unworthy act. Clearly, little consideration was
given to the public interest , convenience, and necessity,
especially in terms of the rapidity of the tape’s airing.
However, this cannot be. Broadcasters use
the electromagnetic spectrum, which is scarce and is a national
asset, owned by the people of Guyana. Therefore, discussions
on regulation of broadcasting have to start from a premise
of the people or the public’s interests and needs. In
the final analysis, however, it is the job of any government
to not only make certain that the public interest is met,
but also to promote the commercial development of the broadcasting
industry. Here, I shall try to show how the U.S. developed
the public interest standard in broadcasting through source
materials drawn from the National Telecommunications and Information
Administration (NTIA).
How
the public interest responsibility is evolving
The Federal Government and the Federal Communications Commission
(FCC) have agreed that the broadcast market by itself does
not adequately meet the public needs. So over the years, the
Federal Government has tried through the FCC to integrate
the public interest into the commercial environment. We can
start with the Radio Act of 1912. The Secretary of Commerce
and Labor was empowered to issue radio licenses to people
on request. The spectrum was in abundance at the time, so
it was not appropriate to deny licenses. As the 1920s emerged,
unregulated broadcasting with an extremely large number of
broadcasters produced signal interference. It was at this
time that we saw the beginnings of a national discussion on
how to responsibly allocate a limited amount of broadcast
frequencies.
This conflict situation was partially resolved
by the Radio Act of 1927 and the Communications Act of 1934.
The Communications Act is the charter for broadcast television.
It banned the ‘common carrier’ regulation, which
used to enable any person to purchase airtime for broadcasting
purposes, and it required broadcast licensees to operate in
the public interest, convenience, and necessity.
The Radio Act of 1927 created the Federal
Radio Commission, which saw broadcasters as public trustees.
The Commission described broadcasters as:
“[Despite the fact that] the conscience and judgment
of a station’s management are necessarily personal…the
station itself must be operated as if owned by the public…It
is as if the people of a community should own a station and
turn it over to the best man in sight with this injunction:
‘Manage this station in our interest…’The
standing of every station is determined by that conception.”
The U.S. Government has determined over time
the requirements to be met for meeting the public interest
in broadcasting. The Federal Government also empowered the
FCC with wide discretion to address broadcasters’ public
interest responsibilities. In fact, both the Congress (Parliament)
and the courts have mandated that broadcast licensees operate
in the public interest. And the U.S. Supreme Court has frequently
endorsed the public interest model of broadcast regulation
as constitutional.
Philosophy
of the public interest
The notion of the public interest was captured in James Madison’s
idea of free speech when the U.S. Constitution and the Bill
of Rights were framed. He felt that the First Amendment to
the Constitution was a significant mechanism for ensuring
political equality, and to promote free and transparent political
discussion (Sunstein, 1993). Brandeis in agreeing with Madison
believes that free speech allows citizens to engage in political
discussion, and that public discussion is a political duty
(Whitney v. California). This view of free speech promotes
the civic needs of a democratic society.
In the early years, broadcast regulation
in the public interest in the U.S. attempted to create an
informed citizenry through advancing the needs of democracy
and culture beyond what the market forces can make available.
This approach continues to this day. This kind of public interest
standard will have to be defined by the National Assembly,
civil society, broadcast interest groups, and a broadcasting
authority in Guyana.
In the U.S., the public interest philosophy
and responsibilities are generally applied over the following
six areas: program diversity; political dialogue, localism;
children’s educational programming; access to persons
with disabilities; and equal employment opportunity.
Program
diversity
This diversity was first initiated in guidelines called the
Great Lakes Broadcasting Co., promulgated by the Federal Radio
Commission in 1929, and mandated the station to meet the:
“tastes, needs and desires of all substantial groups
among the listening public…in some fair proportion,
by a well-rounded program, in which entertainment, consisting
of music of both classical and lighter grades, religion, education
and instruction, important public events, discussions of public
questions, weather, market reports, and news, and matters
of interest to all members of the family, find a place”
(Great Lakes Broadcasting Co. v. FRC, 37 F.2d 993 (1930).
In 1946, the FCC issued the Public Service
Responsibility of Licensees called the Blue Book. It evaluated
the public interest performance of licensees at renewal time.
It examined four mechanisms: live local programs, public affairs
programming, restrictions on excessive advertising, and unsponsored
programs.
The 1960 Programming Policy Statement further
clarified the public interest standard. It mentioned the following
as integral to the public interest: opportunity for local
self-expression, development and use of local talent, children
programming, religious programming, educational programming,
public affairs programming, editorialization by licensees,
political broadcasts, agricultural programming, news programming,
weather and market services, sports programming, service to
minority groups.
The 1980s saw the development of new media
industries and the FCC at that time felt that it was necessary
to effect a significant policy shift by applying a market
approach to public interest goals. The FCC enamored with a
free market approach introduced a comprehensive program of
deregulation by abolishing rules governing program diversity,
localism, and compliance with some public interest standards.
Even the Telecommunications Act of 1996 furthered the deregulation
program.
Today, both the Congress and the FCC have
realized that the market approach to achieving the public
interest is wanting. In response to this inadequacy, Congress
and the FCC have sustained the rules governing children’s
programming, local news and public affairs, and political
candidate access, inter alia.
Platform
for political discussion
Another application of the public interest responsibility
has to do with political candidates and citizens’ access
to broadcasting. The Zapple Rule (Letter to Nicholas Zapple,
23 FCC 2d 707 (1970) requires that equal airtime must be available
for all political candidates, excepting political editorial
advertising. The Fairness Doctrine, which tried to ensure
that all sides are presented fairly, was rescinded in 1987
because it was deemed to be inimical to the public interest.
Many opponents of the Fairness Doctrine believed that it inhibited
them from broadcasting controversial items. However, other
measures, as the Fourteenth Amendment to the Constitution
and the Civil Rights Legislation, are in place to compensate
for the elimination of the Fairness Doctrine.
Localism
The Blue Book in 1946 indicated two requirements for promoting
localism. These were ‘local live programs’, and
‘programming devoted to discussion of local public issues’.
The 1960 Program Policy Statement endorsed two requirements:
‘opportunity for local self-expression’; and ‘the
development and use of local talent’. If these requirements
are fulfilled, then the broadcaster/station management would
have met the public interest responsibility in serving the
local community. Congress in 1992 said: “A primary objective
and benefit of our Nation’s system of regulation of
television broadcasting is the local origination of programming.
There is a substantial governmental interest in ensuring its
continuation” (106 Stat. 1461, Pub. Law 102-385). Also
in 1992, Congress passed the Cable Television Consumer Protection
and Competitive Act to ensure that local programs can be accessed
by a large number of Americans who are unable to pay for cable
television. In effect, cable television has to now carry broadcast
programs through the cable channels to facilitate those who
cannot afford cable.
Children’s
educational programming
Congress ratified the Children’s Television Act in 1990,
which mandated broadcasters to have three hours of educational
children’s programming per week, catering to children
16 years and under. The law further restricted children’s
advertising to 12 minutes per hour during weekdays and 10.5
minutes during weekends. This legislation ensured that children’s
educational programming would be a standard for evaluating
a station management’s public interest performance at
the license renewal point. Note the strong emphasis on children’s
prpgrams.
Access
for persons with disabilities
The Television Decoder Circuitry Act of 1990 mandates all
television sets to carry special decoder chips to display
closed captioning on television programs. Section 305 of the
Telecommunications Act of 1996 introduced more requirements
for the deaf and hard-of-hearing. In this regard, the FCC
in 1997 ruled that deadlines be set up that will produce 95
percent closed captioning on all new programs over the next
eight years from 1998.
Equal
Employment Opportunity
The FCC must assure that licensees meet the needs and interests
of minorities and women, and to make certain, too, that an
appropriate number of minorities and women are employed by
the broadcast stations. Broadcast stations do not meet the
public interest obligations if they fail to provide equal
employment opportunities. The equal employment opportunity
provision is required through Section VII of the Civil Rights
Act of 1964, the Equal Employment Opportunities Commission,
and the Department of Justice.
Legislative
and judicial roots of public interest
National discussion on the regulation of broadcasting started
some years ago. Not much happened until last year when the
Joint Committee on Radio Monopoly, Non-Partisan Boards and
Broadcasting Legislation (Referred to hereafter as The Joint
Committee) produced its final report. Given this development,
there still are cross-sections of the media world that earnestly
believe that broadcasting should be self-regulated. And even
if it may not be self-regulated, then the Parliament and not
Government should drive the major decisions for the composition,
functions, and operations of a broadcasting authority.
The experience of the United States demonstrates
that self-regulation and leaving the market forces to determine
the public interest in broadcasting are inadequate. Both the
market and self-regulation mechanisms can play a role in broadcasting,
but the Government and Parliament through a broadcasting authority
must establish the minimum requirements for the public interest
as well as general broadcasting principles.
The advent of digital broadcasting and broadband
issues in Guyana may require additional public interest responsibilities
that have to be addressed. The Joint Committee did not comprehensively
tackle the impact of the new digital technology - increased
number of channels of communication, sharpened clarity of
images and the varied types of signals transmitted digitally
producing multiple avenues for varied groups in each community
to have their broadcasts transmitted -. Therefore, the Government
should consider establishing an advisory committee on public
interest responsibilities for the current broadcast system
as well as for digital television broadcasters.
We need to keep in mind the fact that the
FCC, a product of the Communications Act of 1934, enforces
numerous rules governing public interest standards that originate
from many pieces of legislation and court decisions over the
years. This 1934 law did not encompass all the salient public
interest obligations in broadcasting found today in the U.S.
Additional laws and court decisions, while limiting the authority
of the FCC, modified existing public interest obligations
and instituted new public interest responsibilities. The FCC’s
authority is limited, too, by the First Amendment principles,
and the fact that the formulation of its rules is guided by
statutes. In effect, the source and strength of most American
public interest obligations are legislations and court decisions.
The Guyana broadcasting interest groups need to review this
statutory and judicial complexion of public interest responsibilities.
Public interest obligations in broadcasting will be a sham
without this statutory and judicial blood.
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