Working Group on Digital Broadcasting and the Public Interest
The Aspen Institute Communications and Society Program
Wye River Conference Center, Queenstown, Maryland
January 25-27, 1998
Note: "So much to say, so little
time" -- and so many people to say it -- prompt this document, modeled
on the old joke about the stand-up comics' convention, where jokes are
told by number.* I anticipate the occasion may arise during our deliberations
when I will want to make some of these points, and yet courtesy, if not
a concession to the shortness of life, will preclude taking (or being granted)
the time to do so. To expedite those occasions I may refer to the
following by number. -- N.J.
1. First Amendment Purposes.
The words "Congress shall make no law abridging the freedom of speech"
don't help us very much when confronting the kinds of issues posed by a
Red Lion or Tornillo set of facts. We must balance,
not First Amendment rights against other governmental interests, but one
party's First Amendment assertions against another party's First Amendment
assertions. How to decide? It is helpful in such cases to evaluate
the competing positions in terms of the contribution of each to the accomplishment
of the purposes of the First Amendment. E.g., suppose a citizen
is arguing a right of entry ("access") to an oligopolistic medium (newspaper,
TV station, cable system), and the owner is arguing a First Amendment right
to censor (i.e., the unilateral, unreviewable, right to decide what
will be included and excluded). Pounding the podium while shouting
"First Amendment!" contributes little to resolution. Asking which
position will contribute more to self-governing, self-actualization, safety
valve, truth seeking, and checking value (see, e.g., Bollier, Electronic
Media Regulation . . ., p. 4) may be more useful. (This approach
is illustrated in our readings in the excerpt from the Chief Justice's
opinion in Pacific Gas and Electric, quoted in Price, "Red Lion
and the Constitutionality of Regulation . . .," p. 20, and Logan, "Getting
Beyond Scarcity . . .," summarized at pp. 4 and 61.)
2. Audio-Video Communication is "Special."
a. Until the last ten or 20 years, virtually all nations,
and academics, agreed that there was something special about radio and
television. Audio-video communication is powerful, pervasive, works
on the brain, can affect human perceptions and behavior, can maintain or
modify myths and national culture and language, is essential to any war
effort, and is always "educating." (As a Scotsman observed 200 years
ago about a prior medium, "Give me the power to write a nation's ballads
and I care not who writes its laws.") And see, Price, "On
Hooks and Ladders," pp. 2-3 ("The Abyss on the Other side of Scarcity:
Looking Only at Ladders," including the "public health rationale" for broadcast
regulation).
b. Some nations limited the channels, and left them
in the control of the government -- the party or individual in power.
Others created "public corporations," somewhat to entirely independent
of government. The U.S. chose a "public trustee" model of private
licensees legally bound to serve "the public interest."
c. In recent years an ideology of "deregulation," "privatization,"
and "marketplace" has spread over the world. Were the earlier concerns
overblown? Were they right then, but not now, because of some major
change? Or is it possible that all the new emperors are without clothes?
d. As Steven Shiffrin is quoted as saying in the 1991
Conference, "we're producing a passive, disengaged citizenry that doesn't
participate in elections and is increasingly materialistic and hedonistic.
. . . [A] commercially driven medium [does not provide] an equal opportunity
for non-commercial speech. . . . [Commercial media are] lopsided, unfair
systems, from a cultural standpoint." [Bollier, Electronic Media
Regulation . . ., p. 12.]
3. Political Realities/Campaign Contributions.
Nothing is more exciting to a policy wonk/academic than a new perspective
cleverly stated. We have been blessed with a great many regarding
media/telecommunications over the years. Most have failed of implementation;
in part because of their creators failure to think through the more mundane
challenges posed by the political and economic power of the entrenched.
I have always thought it best to begin with thinking through the
wisest/best policies in the national interest -- rather than limiting one's
policy options/thinking to the proposals of trade and other powerful groups
-- and then compromise as necessary. But might it be wise
for us to give at least some consideration to the political process
that turns our prime beef into sausage, and strategies of self-defense
for our proposals that might make the process less savage?
4. Political Proprieties/Majoritarian
Pressures for Content Control/Paternalism.
a. Do we believe that it is hopeless at this point to
involve "the public" in the making of media/telecommunications policy;
that it must be left to an elite, as modified by an establishment?
If not, how do we propose to democratize the process of formulating
policy?
b. Constitution aside for the moment, under what circumstances
are majoritarian concerns about media content entitled to serious response
of some kind? (The new TV "ratings" and "v-chip" can be considered
examples of King Solomon solutions of this dilemma.)
c. Most Americans have both theoretical, and actual,
potential access to an enormous quantity, and diversity, of information
and entertainment -- world travel, Internet, subscriptions to tens of thousands
of commercial and governmental publications, public and university research
library collections, cable programming, shortwave and conventional radio,
and many more. Do the informational needs of a democracy (the First
Amendment's "self governing" rationale) require more? Must the citizens
not only be led to water but made to drink? By what right do we,
gathered here, proclaim "what is good for them"?
5. Our Mandate; Throw the Rascals Out?
I have had some problem with the allocation of additional frequencies to
the current broadcasters from the get go. I suspect this may be outside
our mandate at this point in history. But, if not, here are some
views on that issue.
a. I understand the extra profits this will make possible
for them. And what additional national interest arguments
are there for doing this?
b. To the extent large amounts of additional frequency
space are to be freed up for any purpose, what is the comparative
benefit-cost analysis that supports the decision to use them to make it
possible for the American people to watch (1) even more television,
or (2) see the details in commercials more clearly (HDTV)?
c. If "television" is the purpose, then I see absolutely
no justification for permitting other uses of this frequency space by broadcasters.
d. Finally, if this frequency space is to be made available
for any purpose, I see no justification for the presumption that it should,
as a matter of course, go exclusively to those to whom enormous amounts
of spectrum have already been made available -- in exchange for their legal
obligation, which they have ignored and fought, to use it in "the public
interest." Why should it not be put up for auction or lottery to
everyone who might want to use it? Indeed, why would the benefits
of increased diversity not dictate that non-broadcasters be given a preference
in its assignment?
# # #
[19980125]
* Never heard the story? It goes like this (sort of). A
stand-up comic takes her friend to the stand-up comics' convention. The
friend observes, as one after another of those in attendance stand up,
speak only a number (e.g., "35," "73"), and the audience bursts
into laughter. The comic explains to her friend, "You see, everyone knows
the jokes so well they don't have to take the time to tell them, they just
refer to them by number." The friend thinks the procedure a little
odd, but says no more. Then a fellow stands up, says "45," and there is
no response. The friend asks the stand-up comic who brought him,
"What's happening here? The others stood up, said a number, and everybody
laughed. That guy stood up, said a number, and no one responded.
How come?" "Oh," she explained, "he just doesn't know how to tell
a joke." It seemed to me the same principle and procedure might be
applicable to this gathering. (Yes, the group seemed to think I told
the numbers well.) -- N.J.