Abandoned in the Wasteland: Children, Television, and the First Amendment.

AuthorKrotoszynski, Jr., Ronald J.

By Newton N. Minow and Craig LaMay. New York: Hill & Wang. 1995. Pp. xi, 237. $11.

More than thirty years ago, Newton N. Minow,(1) then Chairman of the Federal Communications Commission ("Commission"), scolded broadcasters for failing to meet their obligations to the general public and, in particular, to the nation's children.(2) Minow challenged broadcasters to "sit down in front of your television set when your station goes on the air and stay there . . . keep[ing] your eyes glued to that set until the station signs off" (p. 188). Chairman Minow assured them that if they did so they would "observe a vast wasteland" (p. 188). In an indictment that still rings true today, Chairman Minow described commercial television programming as "a procession of game shows, violence, audience participation shows, formula comedies about totally unbelievable families, blood and thunder, mayhem, violence, sadism, murder, western bad men, western good men, private eyes, gangsters, more violence and cartoons," laced with "commercials -- many screaming, cajoling, and offending" (p. 188). The end result of this parade of horribles: "boredom" (p. 188). Chairman Minow concluded by asking the broadcasters if "there is one person in this room who claims that broadcasting can't do better" (p. 188).

Whether or not one agrees with Chairman Minow's observations about the "vast wasteland" of television, one cannot fault his courage. Daniel-like, he stormed into the lion's den at its own national convention and indicted the broadcasting industry for failing to meet its collective obligations to the nation: "Gentlemen, your trust accounting with your beneficiaries is overdue. Never have so few owed so much to so many" (p. 189).

Notwithstanding Chairman Minow's best intentions, his efforts as Chairman during the Kennedy Administration did not remake television's landscape. Unfortunately, in the intervening thirty-five years, the "vast wasteland" has only grown vaster.(3) If one scans a recent edition of TV Guide, one will find that the networks and local affiliates still offer viewers a "procession of game shows, violence, audience participation shows, [and] formula comedies about totally unbelievable families." Contemporary programming has evolved only in that the violence is now ubiquitous and ever more graphic, the sex ever more sultry and lacking in moral sensibility. In addition, these programming formulae have repeated and spread, like electronic kudzu, on countless independent television stations, not to mention dozens (and soon hundreds) of cable channels.

In Abandoned in the Wasteland. Children, Television, and the First Amendment, Chairman Minow freely concedes that the battle he began in 1961 has not yet been won.(4) Nevertheless, Chairman Minow, with the assistance of his coauthor Craig LaMay,(5) renews his commitment to and redoubles his efforts on behalf of the project he began in 1961: ensuring that commercial broadcasters honor in practice their statutory commitment to operate in the "public interest."(6) Minow and LaMay's work is both a vigorous defense of the public interest standard as a mainstay of commercial broadcast television regulation and a call to arms for the strict enforcement of the public interest standard.

The sad truth, however, is that the Commission's attempts to implement the public interest standard, which Congress enshrined in the Communications Act of 1934(7) and the Telecommunications Act of 1996,(8) are a portrait of regulatory failure, notwithstanding the good faith efforts of virtually every subsequent Chairman of the Commission.(9) The Commission's efforts to enforce the public interest standard largely have failed to produce cognizable improvements in either the quality or scope of commercial broadcasters' discharge of their "public trustee" responsibilities.(10)

Although Minow and LaMay focus on the issue of children's television programming, their overall objective is to salvage the public interest standard from the ash heap of administrative law history. For those familiar with the history of the public interest standard over the past sixty years, this task's difficulty easily ranks with Hercules's cleaning of the Augean stables. Undeniably, the stakes are high: Minow and LaMay posit that television exposes our children to thousands of hours of mindless violence and lascivious trash (pp. 5, 17-19, 26-40).

Even if one grants that commercial television broadcasters are not fully meeting the programming needs of the nation's children or, for that matter, are also failing to provide other essential social, political, and educational programming, the question of how best to redress this state of affairs remains open. One response would be to rely on greater government regulation that would require commercial broadcasters to provide programming deemed essential, including educational children's programming, public interest programming, and similar fare. An alternative approach would be to recognize the reality that commercial television broadcasters do not act in the public interest, but rather are business people who must use a public resource in order to make and sell their product. Minow and LaMay appear dedicated to the former public interest model, even as they recognize the viability of the latter, market-based approach (pp. 154-61).

Part I of this review essay examines the public interest standard and the history of the Commission's efforts to implement it. Part II then critiques the public interest standard and argues that because of the serious (and seemingly intractable) problems the Commission has experienced in trying to implement it, the public interest standard should be abandoned. Part m takes up the First Amendment issues associated with the Commission's efforts to require broadcasters to meet their public interest obligations. Although there are serious First Amendment questions associated with government efforts to impose subject-specific programming requirements on commercial broadcasters, Part III argues that such schemes are probably constitutional. Part IV describes the three principal alternatives to the public interest standard: a system of spectrum royalties, common carrier regulation, and sole reliance on the market. Part IV concludes that a system of spectrum royalties coupled with direct government subsidies of desired "public interest" programming would be a far more efficient means of securing public goods than attempting to coerce unwilling commercial broadcasters to produce and air programming that they view as unprofitable. Part V argues that the programming efforts of public broadcasters have ensured that the nation's children have not been completely abandoned in the wasteland, and suggests that a renewed commitment to public broadcasting, which has been and remains a sort of oasis in the "vast wasteland," is the best means of meeting the nation's public interest programming needs.

Ultimately, Chairman Minow's attempted defense of the public interest standard is a noble failure. To say, as this essay does, that the public interest standard is unworkable in practice, however, is not to say that the fate of public interest programming must be left to the vicissitudes of the market. Abandoned in the Wasteland presents a compelling case for governmental intervention to correct the market's failure to provide essential programming -- especially educational children's programming. Moreover, although Chairman Minow defends the public interest standard, he also seems prepared to move beyond it, if necessary, to meet the programming needs of the nation. In sum, Chairman Minow's dream of a national television service that challenges its audience and helps to create a citizenry capable of self-government is achievable, provided that Congress and the Commission rethink a flawed first premise of federal broadcast regulation: that commercial broadcasters are capable of acting as "public trustees."

  1. THE PUBLIC TRUSTEE MODEL OF BROADCAST REGULATION

    Chairman Minow passionately endorses the "public interest" model as a paradigm for the regulation of commercial television broadcasters. Under this model, commercial broadcasters serve as "public trustees" (pp. 66-67, 114-15). As such, they can and should be required to provide certain public goods (including educational children's programming) in exchange for the privilege of using the public's airwaves.(11) This model conceives of commercial broadcasters as fiduciaries of the general viewing public. The public trustee model serves as the foundation of contemporary broadcast regulation; it also undergirds the Supreme Court's landmark decision in Red Lion Broadcasting Co. v. FCC.(12)

    The public interest standard has a long (though not storied) history. Congress first adopted the public interest standard in the Radio Act of 1927,(13) charging the Federal Radio Commission (the Federal Communication Commission's immediate predecessor) with managing the airwaves in a fashion consistent with the "public interest, convenience, and necessity."(14) In 1934, Congress revisited telecommunications policy and expanded greatly the federal regulatory role to encompass almost every kind of communications endeavor. The Federal Communications Commission replaced the Federal Radio Commission and the 1934 Communications Act charged the Federal Communications Commission with both licensing and regulating broadcasters in the "public interest."(15) To this day, the Commission distributes licenses to would-be radio and television broadcasters free of charge, subject only to the restriction that the licensees operate their stations in the public interest.(16) Although licenses are only valid for a limited period of time, licensees who adequately discharge their public interest duties can look forward to renewal.(17)

    Although it is difficult to define precisely the "public interest" in the context of commercial broadcasting, Chairman Minow...

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