Acting FCC Chairman Michael Copps declared yesterday in a speech celebrating the 75th anniversary of the FCC and the Communications Act, that it was time to think “more rigorously” about the impact of the migration of communications to the Internet and “how to ensure that as the Internet becomes our primary vehicle for communicating with one another, it protects the public interest and informs the civic dialogue that America depends on.”
“In the beginning was the Word,” said John Something-or-other. Well, the word here is “public interest” and—make no mistake about it—this is the beginning of a wholesale attempt to impose the regulatory regime of the broadcast era onto the Internet.
As Adam Thierer has pointed out, the “public interest” is really no standard at all—just so much hot air.
I was over at the Federal Communications Commission (FCC) the other day chatting with someone about various regulatory issues and Rush Limbaugh’s WSJ editorial came up. The person I was speaking with made a comment about how conservatives have really been energized and unified in opposition to the re-imposition to the Doctrine. I reminded them, however, that it wasn’t always the case that conservatives stood together in the fight over the Fairness Doctrine. In fact, when I first came to town almost 20 years ago, there were still plenty of conservatives who actually favored it. I was reminded of that fact when reading a new piece in Engage about “Broadcast ‘Fairness’ in the Twenty-First Century” by my friend Robert Corn-Revere. Bob is one America’s great First Amendment defenders and his new essay offers an excellent history of efforts to micro-manage speech on the broadcast airwaves over the years. In it, he reminds us that:
Given the recent vocal opposition to the Fairness Doctrine in the interest of preserving conservative talk radio, it is easy to forget that many prominent conservatives championed the doctrine before its demise. Phyllis Schlafly was a vocal proponent of the Fairness Doctrine because of what she described as “the outrageous and blatant anti-Reagan bias of the TV network newscasts,” and she testified at the FCC in the 1980s in support of the policy “to serve as a small restraint on the monopoly power wielded by Big TV Media.” Senator Jesse Helms was another long-time advocate of the Fairness Doctrine, and conservative groups Accuracy in Media and the American Legal Foundation actively pursued fairness complaints at the FCC against network newscasts.
Likewise, in our book, A Manifesto for Media Freedom, Brian Anderson and I note that some other prominent right-leaning politicians, such as Sen. Trent Lott, favored the Fairness Doctrine. Moreover, even though most of those conservative individuals and groups have now turned against the Fairness Doctrine, some Republicans still defend (or even seek to expand) the same underlying regulatory concepts that served as the foundation of the Fairness Doctrine. As Corn-Revere notes: Continue reading →
There was a hearing today in the House Energy and Commerce Committee on “Reauthorization of the Satellite Home Viewer Extension and Reauthorization Act,” which got into the sticky of issue of whether must carry mandates should be applied to satellite television (DBS) operators. My boss, Ken Ferree, president of the Progress & Freedom Foundation, testified in opposition to that notion. Here’s what he had to say about proposals that would require satellite operators to carry local broadcast TV stations from even the smallest markets:
Because Congress cannot repeal the laws of physics, there are only two ways in which a satellite company might comply with such a mandate: 1) it may add capacity (i.e., launch new satellites and build associated ground equipment), or 2) it may convert capacity currently used for other purposes to local television carriage in the most sparsely populated parts of the country. Neither approach makes economic sense. That is, these proposals, if they were to become law, would impose considerable costs on satellite operators while generating no appreciable revenue.
Continue reading →
Interesting article here (“Not All Information Wants to Be Free“) by Jack Shafer of Slate. He notes that many people focus on why “pay wall” business models don’t work online, but few people discuss those models that do (i.e., the ones that successfully get customers to pay for access to content behind the wall). Shafer walks through some of the ones that have worked and concludes:
Not all successful paid sites are alike, but they all share at least one of these attributes:
1) They are so amazing as to be irreplaceable.
2) They are beautifully designed and executed and extremely easy to use.
3) They are stupendously authoritative.
Succinctly stated, the pay-per-view sites are damn unique, offering content or a service that consumers are unlikely to find elsewhere. Of course, that’s a pretty small universe of sites, and unless you content is extraordinarily unique and time-sensitive, I have a hard time believing that a pay wall model will work for most sites.
Continue reading →
Matt Lasar of Ars tells us not to worry about the Fairness Doctrine being revived, only to go on and cite several lawmakers who have said they’d like to revive it. Meanwhile, over at the American Spectator, somebody called “The Prowler” seems to have all sorts of unnamed sources on the Hill telling him the Fairness Doctrine will be revived any day now.
Who knows what to believe. But let’s keep our eye on the real issue here. The danger is not that the Fairness Doctrine gets back on the books in the same form; it’s that versions of it sneak in through the back door via other regulatory initiatives. As Cord Blomquist pointed out here last April, “localism is the new Fairness Doctrine.” There are a lot of people are running around Washington today insisting that government must intervene in the marketplace to “save media localism” and “strengthen the public interest obligations” of local TV and radio broadcasters. There’s been an FCC proceeding open on this issue for some time, and everything about it reeks of the Fairness Doctrine in drag.
This effort is being spearheaded by the media reformistas whose short-term goal is to reinvigorate the amorphous “public interest standard” such that the FCC has open-ended powers to regulate everything under the sun going forward. That’s why a key part of the “localism” battle is their effort to breathe new life into “ascertainment rules,” which used to be more formal and required broadcasters to strictly report everything they aired and did in their communities. There’s lots of talk of ensuring more “accountability” from broadcasters regarding how they serve their local communities, and there’s even rumblings of “local community boards” who will sit as mini-free speech Star Chambers and pass judgment on whether local media outlets are doing their job. Again, it’s all just the Fairness Doctrine by another name. Continue reading →
Here’s some good background and analysis from the Congressional Research Service (CRS) about the history and constitutional issues surrounding the Fairness Doctrine. (Matt Lasar has a summary of it over at Ars). The report, authored by CRS legislative attorney Kathleen Ann Ruane, does a nice job of outlining why, given heightened Supreme Court scrutiny of speech controls since the Red Lion days, the Fairness Doctrine would face serious constitutional scrutiny is it was re-instituted today:
It is possible that, in light of the proliferation of different types of media outlets since Red Lion, the Supreme Court will abandon the scarcity rationale for applying a lower standard of scrutiny to restrictions on broadcasters’ speech. If the scarcity rationale is abandoned, the Court will likely begin to apply strict scrutiny to broadcaster speech restrictions like the Fairness Doctrine. Because the Supreme Court has struck down regulations similar to the Fairness Doctrine when applied to other types of media, it seems unlikely that the Fairness Doctrine would survive review under strict scrutiny.
[…]
Assuming that the Supreme Court would continue to apply intermediate scrutiny to government restrictions on broadcasters’ speech, the Court would then need to decide whether the Fairness Doctrine withstands such scrutiny. The Court may choose to uphold Red Lion and the Fairness Doctrine under the principle of stare decisis, which requires courts to adhere to precedent. The Court also may choose to analyze a newly established Fairness Doctrine in light of evidence regarding its effects on speech that has developed since the Red Lion decision. To do so, it would have to answer two questions: (1) whether the Fairness Doctrine advances a substantial government interest, and (2) whether the doctrine is narrowly tailored to achieve that interest.
But it most certainly would not pass muster is applied to cable or satellite:
Continue reading →
This ongoing series has focused on the growing substitutability of Internet-delivered video for traditional video distribution channels like cable and satellite. YouTube has recently begun exploring adding traditional television programming to its staggering catalogue of mostly amateur-generated content.
But now YouTube is going one step farther by exploring the possibility of signing Hollywood professionals to produce “straight-to-YouTube” content:
The deal would underscore the ways that distribution models are evolving on the Internet. Already, some actors and other celebrities are creating their own content for the Web, bypassing the often arduous process of developing a program for a television network. The YouTube deal would give William Morris clients an ownership stake in the videos they create for the Web site.
This kind of deal would make Internet video even more of a substitute for traditional subscription channels—thus further eroding the existing rationale for regulating those channels.
But what’s even most interesting about this development is that YouTube’s interest seems to be driven primarily by the possibility of reaping greater advertising revenues on such professional content than on its currently reaps from its vast, but relatively unprofitable, catalogue of user-generated content:
YouTube’s audience is enormous; the measurement firm comScore reported that 100 million viewers in the United States visited the site in October. But, in part because of copyright concerns, the site does not place ads on or next to user-uploaded videos. As a result, it makes money from only a fraction of the videos on the site — the ones that are posted by its partners, including media companies like CBS and Universal Music.
The company has shown interest in becoming a home for premium video in recent months by upgrading its video player and adding full-length episodes of television shows. But some major television networks and other media companies are still hesitant about showing their content on the site. The Warner Music Group’s videos were removed from the site last month in a dispute over pay for its content.
Digital video recorders (DVRs) may turn out to be the “last gasp” of cable, satellite and other traditional multichannel subscription video providers. If users can get the same basic functionality (on demand viewing of the shows they want) over the Internet for free or paying for each show rather than a hefty monthly subscription, Who Needs a DVR?, as Nick Wingfield at the WSJ asks:
Among a more narrow band of viewers -– 18- to 34-year-olds -– SRG found that 70% have watched TV online in the past. In contrast, only 36% of that group had watched a show on a TiVo or some other DVR at any time in the past.
That last figure is a fairly remarkable statistic. Remember that DVRs have the advantage of playing video back on a device where the vast majority of television consumption has traditionally occurred –- that is, the TV set. Although it’s also possible to watch shows over the Internet on a TV set through a device like Apple TV and Microsoft’s Xbox 360, most people watch online TV shows through their computers — which have inherent disadvantages, like smaller screens and, in most cases, no remote controls.
Indeed, if users are going to buy a piece of hardware, why buy a DVR when they can buy a Roku box or a game console like the XBox 360 that will put Internet-delivered TV on their programming on their “television” (a term that increasingly simply means the biggest LCD in the house, or the one that faces a couch instead of an office chair)—and save money?
This is precisely the point Adam Thierer and I have been hammering away at in this ongoing series. The availability of TV through the Internet and the ease with which consumers can display that content on a device, and at a time, of their choosing are quickly breaking down the old “gatekeeper” or “bottleneck” power of cable. Let’s see how long it takes Congress and the FCC to realize that the system of cable regulation created in the analog 1990s no longer makes sense in this truly digital age.
When the history books are finally written, I think it’s clear that outgoing FCC Chairman Kevin Martin will likely go down as one of — if not the — most aggressively pro-regulatory Republican chairman in the agency’s history. Despite his occasional claims of believing in free markets and his support for a couple of legitimately deregulatory decisions, his tenure at the FCC has generally been characterized by a growth of government power, spending, and bureaucracy. But don’t take my word for it; read the report he issued last week called “Moving Forward,” which to some of us looks more like moving backwards (or at least stuck in the same ol’ mud).
Martin, however, touts his regulatory actions and expansion of FCC power as uniformly pro-consumer. Martin is just another in the long line of statists who claims that consumer welfare can only be enhanced by adding layers of government mandates and regulatory red tape. History teaches us a different lesson: That regulation and bureaucracy typically stifle innovation and competition and hurt consumer welfare in the process. Moreover, there are some constitutional considerations and limitations that should trump — or at least limit — the powers of unelected bureaucrats to run roughshod over our rights. But hey, who cares about those meddlesome little things like the First, Fifth, Tenth, or Fourteenth Amendments?! Certainly not Kevin Martin.
What’s equally troubling about Martin’s tenure at the agency is the track record of mismanagement and the bad blood that seemingly surrounds everything and everyone he comes in contact with. The picture painted in the House Energy & Commerce Committee’s 110-page report, “Deception and Distrust: The FCC Under Chairman Kevin J.Martin,” is not a pretty one — although the report failed to mention that waste, mismanagement, and other regulatory shenanigans have been going on at this agency under the days of Democratic rule, too.
Martin’s response to the House report was all too predictable: The evil corporate interests are out to get me! “[M]ost of the criticisms contained in the Majority Staff Report,” Martin says in a letter released a few days ago, “reflect the vehement opposition of the cable and wireless industries to my policies to serve and protect consumers.”
Whatever.
I’m just glad this nightmare is over. Hopefully Martin’s tenure will serve as a cautionary tale for a future Republican administration: If you actually believe in free minds and free markets, try vetting the guy you install at the FCC to make sure he’s a true believer as well.
Clearly, something must be done to counter the evil corporate cabal known as “the Cloud Elders” and the “Knights Doppler” who are behind the blatant pro-weather bias displayed daily on the Weather Channel. Perhaps a Fairness Doctrine for Weather Reporting?
Thank God the hard-working folks at Fairness in Media unearthed this vicious anti-democratic conspiracy.
Weather Channel Accused of Pro-Weather Bias
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.