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Dozens of the nation's most prestigious and highly paid lawyers have asked the Supreme Court to give broadcasters until Jan. 3 to decide whether to appeal the Prometheus case [Prometheus Radio Project v. Federal Communications Commission, 373 F.3d 372 (3d Cir. 2004)].

The case involves the media concentration limits of the Federal Communications Commission, Congress and the courts. Details aside, the underlying issue is whether limiting the number of stations one licensee can operate somehow violates a broadcaster's First Amendment rights.

The law says broadcasters can profit from the public's airwaves, with limited-term licenses, in exchange for "public interest" programming. The Supreme Court has repeatedly upheld the constitutionality of FCC regulation, most notably in the 1969 Red Lion decision [Red Lion Broadcasting Co., Inc. v. FCC, 395 U.S. 367 (1969)].

Broadcasters like their half of the contract: enormous profits from government-protected monopolies. They just don't like the part about giving something in return.

Concentration in any industry has economic and antitrust consequences. Media concentration involves far more.

The ideas of the marketplace do not make a marketplace of ideas -- one of the First Amendment's purposes. Other purposes involve the relationship of citizens' free speech to democratic self-governing, checks on institutional abuses, speech as an alternative to violence, and self-actualization from personal expression. Each is frustrated by concentration.

Flashback: Eighty years ago, national governments responded to the miracle called broadcasting. Few politicians understood AM radio. But all concluded it held too much potential for social good to turn over to commercialism and too much potential for political mischief to trust its power to individuals.

Most nations placed responsibility for broadcasting in government agencies or public corporations. The latter were usually independent of government -- indeed, capable of bringing down a government -- like the BBC in Great Britain or Sverges Radio in Sweden.

(As I noted 30 years ago, after studying the BBC, “The BBC is more independent of the British government than NBC is independent of the U.S. government” – a proposition re-confirmed by the BBC and U.S. commercial broadcasters this past year.)

Following Secretary of Commerce Herbert Hoover's radio conferences during the 1920s, the U.S. approach was an all-American compromise: government ownership of the frequencies but limited (initially 18-month) licenses for private operators. These trustees of the public's airwaves were charged by statute with operating in "the public interest, convenience and necessity."

Even so, Congress was concerned about media power. Congressman Luther Johnson spoke for many of his colleagues when he warned in 1926,

"American thought and American politics will be largely at the mercy of those who operate these stations. [If] a single selfish group is permitted to ... dominate these broadcasting stations throughout the country, then woe be to those who dare to differ with them."

This dichotomy raises two questions. How could anyone in the 1926 Congress have been so farsighted about the risks of media concentration? And how could anyone in the 1996 Congress have been so blind, once risks became reality?

Congressman Johnson's nightmare has come to pass. There are, now, a handful of groups "permitted to ... dominate these broadcasting stations throughout the country." Woe be to us, indeed.

Broadcasters argue the existence of thousands of broadcast stations, plus cable and satellites, means "scarcity" is no longer a constitutionally valid justification for regulation. There are two things wrong with this argument: They're counting the wrong things, and there are other justifications than scarcity.

You can't broadcast without a license. Try it and you land in Leavenworth. What other business can send competitors to prison? That's "scarcity." Moreover, all the most valuable licenses and frequencies are gone. That's "scarcity." And how do facilities costing millions end up selling for billions? It's that little license on the wall; the "medallion value" of a government-granted monopoly. That's "scarcity."

Some justify regulation because the government's role makes broadcasting a kind of "public forum," like a city's auditorium. Others point to the pervasiveness of broadcasting, its presence in the home and easy access by children.

As the recent incident involving the United Church of Christ commercial makes clear, the only Americans with free speech rights in broadcasting are those who own stations. Moreover, the Supreme Court says their First Amendment right to speak includes their right to silence others.

Ironically, broadcasters won these censorship rights precisely because of the Red Lion decision upholding the Fairness Doctrine. The Court reasoned that since stations had to program about controversial issues and present a range of views, they needn't be required to sell time.

But now the Fairness Doctrine has been repealed.

FCC Commissioners Michael Copps and Jonathan Adelstein hold public forums and cast dissenting votes, but they can't do it alone. If the public doesn't join them in discussing these ownership issues today, we'll be talking about little that matters very much tomorrow.
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Nicholas Johnson is a former FCC commissioner. He can be reached through his Web site, www.nicholasjohnson.org.