A common line of argument used to support policies that hurt broadcasters is that broadcasters received their spectrum for free. Cable companies complaining about how slanted retransmission consent supposedly is towards broadcasters claim the government requires them to carry all broadcast stations on the basic tier – broadcasters, they point out, who receive their spectrum for free. Whenever broadcasters complain about the many, many problems with the incentive auction, they are told they received their spectrum for free and they should count themselves lucky they’re receiving anything for it now. The government itself, in the form of the FCC and Congress, justify imposing regulations on content, such as decency restrictions and the E/I and public interest requirements, as part of the deal broadcasters have: they received their spectrum for free, and this is what they must do in return to serve the public interest.
That deal is the one that was struck all the way back in the Communications Act of 1934, and even back in the Radio Act of 1927 that established the FCC’s predecessor and put television under its purview back when it was still just an experiment. The idea back then was that, since no one could truly “own” the airwaves, the government would grant licences to stations to broadcast over them to serve the public interest, paid for by ads and available for anyone with a receiver to tune in for free. This was in contrast to the model taking shape in most other countries, especially Europe, where the government controlled most broadcasting and ran, or at least supported, the dominant broadcaster(s). America, by contrast, allowed the private sector to control the airwaves for free, so long as they used it to serve the public interest and made it available to everyone for free.
This worked well for a time when broadcasters had a monopoly on video content outside the movie theater, and when there were only three major networks providing programming. Some questioned the quality of the entertainment programming, but broadcasters provided high-quality news and affairs programming, and while the First Amendment meant the government couldn’t outright crack down on criticism of the government – it’s doubtful Walter Cronkite would have been able to criticize America’s involvement in Vietnam if he worked for a government broadcaster – the public-interest obligation and government licences allowed the FCC to crack down on stations that attempted to use their valuable spectrum to disseminate propaganda, which it used on several Southern stations that broadcast an anti-civil-rights message.
It began to break down, though, with the dawn of cable television networks. Since cable networks didn’t use the public airwaves, Congress decided it fell outside the FCC’s purview, meaning they didn’t have to follow any of the restrictions on content applied to broadcast stations. Rather than repeal those restrictions, though, Congress added more of them, especially in response to complaints over the “30-minute toy commercials” that took over Saturday mornings in the 80s, which only hastened the slow demise of Saturday morning children’s television completely as the shows kids actually wanted to watch moved to channels like Nickelodeon. The existence of “narrowcast” channels like Nickelodeon and ESPN themselves were increasingly not possible on broadcast television even as the digital transition expanded the number of channels available; subchannels had to earn their public-interest and E/I keep even if they had no interest in forwarding them or were trying to compete with networks that didn’t have to follow them. The idea, presumably, is to ensure some channels are furthering the public interest, educating and informing the public while serving as a safe haven from the sex and violence on cable, but by forcing every broadcast station to meet that standard, while expecting them to compete for advertising dollars with cable networks not so constrained and requiring them to offer their wares for free, Congress and the FCC are effectively forcing every broadcast station to follow the public-television model to some degree.
Perhaps that might be a fair price to pay for broadcasters’ “free spectrum”… except that as I’ve chronicled time and time again over the past few years, the technology of broadcasting is valuable in its own right as the Internet takes over the distribution of video, as the best, most efficient way to deliver content to a bunch of people trying to watch the same thing at the same time, especially to mobile devices where using over-the-air spectrum is the only way to deliver content, over-the-air spectrum that is inherently more constrained than a wired Internet connection. The FCC is about to auction off broadcast television spectrum to wireless carriers that need it, to the extent they need it at all, to deliver video, and AT&T and Verizon are working on technologies to use their own spectrum to effectively build their own broadcast networks, which will likely deliver much the same content between them but force you to sign up for one of their carriers to receive it. It would seem the public interest today is served by some sort of platform-, device- and carrier-agnostic service to deliver video, especially video people want to watch at the same time, without running up against data caps, but as it stands no one would want to buy a broadcast station for the purpose of such a service – it’d be useless for something like Game of Thrones that would run afoul of the decency standards, and they would need to meet the public-interest and E/I requirements even if they have no interest or ability to do so, and even if such content would have no reason to have a place on a linear television schedule, not to mention that they would need to operate such a service on the back of advertising (or donations) alone, unless they wanted to take retransmission consent, and if they did why are they running a broadcast station and not a cable network?
Clearly, the old broadcast television compact is outdated in an age where broadcasting is expected to compete with platforms not bound by it, and if we want broadcasting to continue to survive and thrive for years to come, we need a new compact. We need a service that serves as a complement to the Internet at large and a means to further our goals for it, a vision of over-the-air broadcasting as a fundamental part of the Internet, not merely an alternative as broadcasting was expected to be for cable. What we need from broadcasters today is to serve as a platform for any content that wishes to minimize the cost, whether to itself or to Internet providers, of reaching a large number of people, a means of ensuring a high-quality stream for all customers regardless of provider or the content producer’s resources while minimizing the demand for spectrum, simultaneously a control on and release valve for the big wireless carriers.
This platform can’t be placed under the control of those big wireless carriers or wired Internet providers, but to the greatest degree possible, should be open to whoever wishes to take advantage of it. The principle of the free market should apply here; neither the government, Internet providers, or a single large corporation or group of corporations should control what content gets to use this platform, but rather it should be decentralized among as diverse a collection of voices as is possible. Because the existence of this platform is valuable in its own right, there is plenty of reason to offer it to those already taking advantage of it for no greater cost than the opportunity cost of not surrendering it to wireless providers and without further strings attached, and doing the same for new entrants if there is enough spectrum available for all of them, but if there is enough demand to warrant auctioning off new channels the government can certainly do so.
The principle of the free market, and of fostering a vital technology within the overall system for the distribution of content, also means that requiring certain kinds of content on every channel, and certainly prohibiting certain kinds of content that might otherwise warrant taking advantage of the platform, makes no sense and at best bears no relevance to the goal or the technology; leave the furtherance of whatever specific public-interest goals interest groups want to the public stations and let the free market reign on the remaining stations. And as much as it pains me to say this, it also means letting go of the notion that broadcast television needs to be made available to consumers for free. If a pay-per-view event or something on a subscription service would still attract a large enough audience to warrant taking advantage of the broadcast platform, it should be able to do so, although the government may want a piece of the resulting fees. I have no doubt that in most cases the free market will reward content targeted at the broadest possible audience with the lowest barriers to entry.
The success of any platform depends on its attractiveness to the most popular content that can take advantage of it, which usually means the largest players in the space. Right now broadcasting is only marginally popular by that standard, even though it is tailor-made for popularity. We need to let go of outdated regulations holding broadcast back in order to create the video distribution system of the 21st century, and that means not being led astray by the 20th century vision of broadcasting that spawned them.