Is the Public Interest Standard Really a Standard?

by on August 28, 2008 · 21 comments

Stephen Schultze is an up-and-coming technology policy analyst who is a fellow at the Berkman Center for Internet and Society at Harvard University. He is also finishing up his Masters of Science in Comparative Media Studies up at MIT. He’s been kind enough to stop by here at the TLF on occasion and comment on some of the things we have written — usually to give us grief, but we welcome that too! He’s very sharp and always has something of substance to say, and he says it in a respectful way. So I look forward to many years of intellectual combat with him. (Incidentally, we also share a mutual admiration for the work of Ithiel de Sola Pool, especially his 1983 classic, “Technologies of Freedom: On Free Speech in an Electronic Age , which I have noted is my favorite tech policy book of all-time.]

Anyway, Stephen has just posted his master’s thesis: “The Business of Broadband and the Public Interest: Media Policy for the Network Society.” It’s a noble attempt to defend and extend the “public interest” concept in the Digital Age. Stephen attempts to “identify the several dimensions in which it remains relevant today.” In his thesis, Stephen cites some of my past work on the issue since I have articulated a very different view on the issue. Specifically, he cites a line of mine that I have used in multiple studies and essays on the issue:

“The public interest standard is not really a “standard” at all since it has no fixed meaning; the definition of the phrase has shifted with the political winds to suit the whims of those in power at any given time.”

I stand by that quote and down below I have pasted a lengthy passage on the mythology surrounding the public interest standard, which I pulled directly from my old 2005 “Media Myths” book. It explains in more detail why I feel that way.

“Right now is a critical point of media in transition that will affect the shape communications ecosystem going forward,” Stephen states in his thesis. I couldn’t agree more, but I completely disagree that that somehow justifies breathing new life into a standard-less standard that justifies open-ended, arbitrary governance of the Internet and digital media. Read on to understand why I feel that way…


[The following passage is cut from Chapter 4 of Media Myths: Making Sense of the Debate over Media Ownership, 2005, p. 97-100]

[M]any policymakers continue to prop up public interest notions and regulations in the belief that they are directing the content or character of media (and broadcasting in particular) toward a nobler end; a sort of noblesse oblige for the communications age. At times, their rhetoric takes on a fairy-tale quality as lawmakers and regulators speak of the public interest in reverential and fantastic terms, all the while deftly evading any attempt to define the term. For example, while testifying before the Senate Commerce Committee in January of 2003, FCC Commissioner Michael Copps paid homage to the public interest standard:

At all times, I strive to maintain my commitment to the public interest. As public servants, we must put the public interest front and center. It is at the core of my own philosophy of government…. The public interest is the prism through which we should always look as we make our decisions. My question to visitors to my office who are advocating for specific policy changes is always: how does what you want the Commission to do serve the public interest? It is my lodestar.

That is nice rhetoric, but Commissioner Copps’ public interest “lodestar” ultimately provides little practical guidance. Public interest proponents assume that their values or objectives — which, in their opinion, are consistent with the needs and desires of the public — should ultimately triumph within the public policy arena. Consequently, volumes of government rules and speeches have been penned advocating a large and expanding role for government in terms of defining “the public interest.” But while public interest regulation has been the cornerstone of communications and media policy since the 1930s, enabling regulators to control industry structures and outcomes, at no time during these seven decades of public interest regulation has the term been defined.

Even today, efforts are made to read new powers or responsibilities into the term in order to provide regulators with the flexibility to control modern electronic media (i.e., broadcasting, cable) in ways they could not control older print media (i.e., newspaper, magazines). For example, during the late 1990s, the Advisory Committee on Public Interest Obligations of Digital Television Broadcasters was formed by an executive order of President Bill Clinton to investigate expanding public interest obligations for television broadcasters. The group came up with numerous recommendations to impose new burdens on broadcasters, even as broadcasters struggle to remain competitive with other media outlets that are not burdened with similar public interest regulatory requirements.

Similarly, many academics have advocated a much broader role for government in dictating media outcomes. For example, even though they admit that “One of the dangers in evaluating the media in a public interest framework is that it can easily take on an elitist tone,” David Croteau and William Hoynes go on to pen an entire book dedicated to expanding public interest regulation of media. Among the expanded public interest responsibilities Croteau and Hoynes and other regulatory supporters endorse: public service announcements; expanding coverage of political campaigns, debates and developments; free (or lower-cost) campaign ad time; expanded “educational” or cultural programming (especially aimed at children); and expanded coverage of community affairs.

The problem with all this “public interest” thinking, as Ben Compaine aptly notes, is that “In democracies, there is no universal ‘public interest.’ Rather there are numerous and changing ‘interested publics.’” The viewing public is likely to have a broad array of interests and desires that cannot be adequately gauged by what five FCC commissioners believe to be in the public interest. Nobel Prize-winning economist Ronald Coase argued 40 years ago that “The phrase… lacks any definite meaning. Furthermore, the many inconsistencies in commission decisions have made it impossible for the phrase to acquire a definite meaning in the process of regulation.” That is still true today. The public interest standard is not really a “standard” at all since it has no fixed meaning; the definition of the phrase has shifted with the political winds to suit the whims of those in power at any given time.


If you are interested in reading the rest, jump to @ page 105 in the Scribd version….

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