The Broadcast Giveaway

When "the public interest" means free ads for politicians


"We have to address the real reason for the explosion in campaign costs: the high cost of media advertising. I will–for the folks watching at home, those were the groans of pain in the audience–I will formally request that the Federal Communications Commission act to provide free or reduced-cost television time for candidates who observe spending limits voluntarily." So said President Clinton in his State of the Union address.

And so, over the groans of his listeners in Congress, he told the American people watching on television that he planned to require broadcasters to make campaign donations of commercial time to political candidates–or, more precisely, to candidates approved by the major political parties. What the president did not tell Americans watching on television was that he had already appointed a commission last year to do just that. The Advisory Committee on Public Interest Obligations of Digital Television Broadcasters, more widely known as the Gore Commission, is charged with creating a series of new "public interest obligations" for broadcasters. Since October, it has been deciding how high a price television stations must pay, in free political advertising time and other "public service" costs, to keep their licenses.

Of course, that's not exactly the way the White House wanted the commission to be viewed by the media in general and broadcasters in particular. But consider the president's own words last June, when he announced the appointment of the panel's co-chairmen, Les Moonves, president of CBS Television, and Norman Ornstein, resident scholar at the American Enterprise Institute: "For years," Clinton said, "I have supported giving candidates free time….Now we're working to make it happen. Today I'm appointing two distinguished Americans to lead a commission that will help the FCC decide precisely how free broadcast time can be given to candidates, as part of the broadcasters' public interest obligations." The president described the donation of air time to political candidates as "the least we can ask of broadcasters."

But even Sen. John McCain (R-Ariz.), who thinks air-time donations are a good idea, has mixed feelings about letting the FCC, which licenses TV and radio stations, make such rules. "What prevents them from then saying, `You've got to give free time to the next FCC hearing, or the Commerce Committee chairman's next speech'?" he asked The New York Times. "Where does it end?"

McCain said only an act of Congress can obligate broadcasters to donate commercial time. But many legal scholars question whether even Congress has that power. Professor Rodney Smolla, who teaches at the College of William and Mary Law School, wrote what many believe is the bible of First Amendment law, Free Speech in an Open Society. At a January forum on the Gore Commission organized by the Media Institute, a media policy think tank, Smolla said the government will have difficulty requiring campaign donations of air time as a retroactive condition for the frequencies it has already awarded. And even if it were not retroactive, according to Smolla, the courts would let the government mandate the donated time only if judges accepted the notion of broadcasting as "a public discourse utility," a view that has usually not prevailed, especially in recent years.

There's an even larger picture to consider. The fundamental technology of broadcast television is changing with the advent of digital broadcasting. In return for opening up part of the spectrum for digital transmissions, the government has imposed certain conditions on broadcasters. For years, researchers believed that digital television was so complex it could not be squeezed into the existing band of conventional television channels established decades ago. But in 1993, what once was viewed as impossible became reality, and digital television moved from a dream into a new broadcast service–and a new business. (Digital TV will operate in the same band, and within the same channel numbers, as existing TV.)

By the end of 1999, most television stations will be required by the government to start transmitting on a second channel using a new digital television standard. Although no one is yet making television sets for consumers to receive these new signals, the FCC has required that every television station purchase new transmitters, build new transmitter towers, and broadcast new digital programs.

Some politicians and many public interest groups characterize this expansion of the television dial as a "giveaway" to broadcasters–President Clinton has said the new channels are "worth billions." And indeed, station owners in major cities are eager for the change, anticipating larger advertising revenue.

But for television stations in smaller towns and rural areas, the new equipment may be a mandate to lose money. Station owners will be required to buy the same transmission equipment whether they are in the largest U.S. television market, New York City, or the 211th, Glendive, Montana. It seems unlikely that Glendive's 5,000 households will support enough new advertising revenue to pay for the expensive new transmitter towers, transmitters, control rooms, and antennas any time soon.

The new digital channels will change forever the idea of a "television channel." At first, everyone assumed digital television would be just like current television, only with sharper, clearer pictures. But then Fox and other broadcasters realized the new digital frequencies can actually accommodate up to five simultaneous live video feeds, so one digital channel can carry as many as five different television programs. The picture is not quite as clear as if the entire channel is devoted to one program, but for most programs, broadcasters expect viewers to accept slightly lower picture quality. In any case, a split digital signal will be as good as or better than what everyone is watching now.

Once digital transmitting is in place, instead of simply tuning into channel 20, you will be able to check out channels 20A, 20B, 20C, 20D, and 20E. In major cities that have 10 or 15 over-the-air stations, that could mean 40 to 60 new television channels. Broadcast television will be able to offer a range of choice similar to that of cable television.

Enter the Gore Commission, charged with defining "public interest obligations" for the new channels. Donating free ad time to political candidates is only the first "public interest" category: Lobbyists are forming a line to add new mandatory programs for children, for health information, and for every other conceivable "public interest." Coming soon to a TV set near you: Hour after hour of new programs selected by the FCC in Washington. And every television station in the country will be required to broadcast them.

We have already seen how well mandatory programming does not work. Last year, every television station was required to run "educational" programming for children. These are not such familiar good-for-you shows as Sesame Street–which did not meet the new federal definition of "educational" programming. (Sorry, Big Bird: the new rules define "educational" programs as only 30 minutes in length.) No, the government required broadcasters to develop new programs to meet the new standards.

So broadcasters dutifully added dozens of new "educational" children's programs, such as Science Court on ABC and Ghost Writer Mysteries on CBS. The unanimous verdict is now in: According to The Washington Post, all of the new programs are failures–every one. Across the country, the reaction was a massive flipping of channels away from the new "educational" programs. The new federal program guidelines did not result in anything kids might actually want to watch.

Faster than you can say spinach, children tuned out the federally inspected programs on broadcast TV and switched to Nickelodeon and other cable stations. Kids also turned off the tube entirely: Fox is the only network holding onto its children's audience, and new ratings research this winter showed Americans between 2 and 17 years old are watching five hours a week less television than their parents watched when they were kids. (This includes broadcast and cable, but not use of the TV for videocassettes or video games.)

Never ones to rest on their failures, federal programmers came back with still more from the Washington dream factory. This time, the politicians want to start by ordering broadcasters to run the politicians' own programs–anything from slick campaign ads to Ross Perot staring into a camera lens for 30 minutes. Though they wrap the proposal in idealistic rhetoric peppered with such phrases as "public interest obligations" and "free time" for political debate, it is, of course, nothing of the sort. True debate and discussion is the last thing most political candidates want to put on the air, unless they are far behind in the polls–and then the front runner will almost never agree.

Broadcasters already saddled with federal requirements that they buy new, unpopular "educational" programs will now be required to donate hours of television time to politicians, so the politicians can produce "public interest" programs promoting their re-elections. With the wave of a Washington commissioner's hand, mudslinging political commercials have been transformed into "public interest" programs that broadcasters must run for free. Then again, as the president might say, it's the least we can ask of broadcasters.

Of course, the networks offered free time to political candidates in 1996, as they have in every recent election. Television stations and networks also broadcast many hours of public affairs programming, debates, and special programs. And under existing law, stations are already obligated to sell commercial time to political candidates at a deep discount.

But that is not exactly what President Clinton and other candidates want. What they want is free air time for their campaign commercials. What's more, they want to ban anyone else from running political commercials. So the Gore Commission will try to devise a way to make certain no one except major party candidates will have a voice in future elections. No other individual, club, union, or company would be able to buy air time.

The rationale for restricting who can make political ads was explained at the Media Institute forum by Paul Taylor, who heads the Free TV for Straight Talk Coalition, which is lobbying for donated commercial time. "Candidates are the only actors in the drama [i.e., elections] that voters hold accountable on election day," Taylor said.

So, he continued, the ideal system would have broadcasters donate "air time directly to candidates or indirectly through parties." The voters–the other "actors in the drama"–would have their speech rights limited sharply or eliminated entirely. Only in Washington could stifling political speech on TV be defined as a step forward for the "public interest."

And TV is not the end of the story. Live and recorded news and entertainment are now staples of the World Wide Web, and sound over the Internet is already as good as FM radio was in the 1970s. Within a year or two, the jerky video pictures transmitted over the Net will be smoothed out into something that will look very much like television. Since the Gore Commission's mandate was limited to suggesting regulations for the new digital broadcasting frequencies–and in light of last year's U.S. Supreme Court decision striking down the Communications Decency Act–the Internet would seem to be plainly off-limits for federal program regulators.

But is it? In a public hearing on January 16, both of the Gore Commission's co-chairs toyed with the idea of trying to regulate not just television but the Internet as well. "Are we dealing with networks?" asked Moonves. "Are we dealing with cable? Are we dealing with local stations, be they independent? Are we dealing with America Online? When we make suggestions and recommendations about what the public interest obligation is, how far do we go? We're looking at a brave new world here. How far does our reach extend?"

"While our mandate is digital television broadcasters," Ornstein observed, "I don't see how we can avoid addressing in some fashion the much larger question of how the public interest is served by all of these different entities and try to make sure that there is a better balance struck."

Consider where such expansive logic can lead. In all likelihood, political commercials (or "public service" programming) will not attract many viewers; Internet surfers would similarly resist federally mandated Web sites for candidates. So to help spread the word, the Gore Commission, extending the reasoning behind free TV time for candidates, might impose "public interest" requirements for other media, such as newspapers and magazines.

After all, the argument could go, publishers received all of those federal subsidies and preferential postal rates over the years, similar to the "giveaways" to broadcasters ("worth billions"). They make their paper by cutting down trees that are sometimes grown on federal lands, and they deliver their periodicals over the public roads, which are perhaps worth even more than public airwaves. And newspapers make billions of dollars in profits, so they can afford to give space away. Isn't it time for publishers to give a little back to democratic society, to finally do something in the "public interest"? They could start by giving free space–pages of it–to political candidates.

Indeed, a future Gore Commission might well conclude, that would be the least we could ask of them.

Adam Clayton Powell III (apowell@alum.mit.edu) is vice president of technology and programs at the Freedom Forum, a nonpartisan foundation dedicated to free speech and free press issues.