A right to free Internet? On Internet access and social rights.

• Author: Hartmann, Ivar A.
• Position: I. The Positive Dimension of Free Speech in the United States B. The Access-Enhancing Regulation of Media Before the Internet 3. The Regulation of Radio Broadcasting through D. Intermediary Conclusive Remarks, p. 329-362

3. THE REGULATION OF RADIO BROADCASTING

   Commercial use of radio as we know today barely existed when the Radio Act was passed in 1912 because receivers still weren't cheap enough to become mainstream. (154) But as the Act favored commercial over amateur use (keeping government use by the military and the Navy an overall first priority), the legislature set the backdrop against which political speech would be later restricted in order to secure more airtime for advertising. (155) over the next few years, Herbert Hoover, then Secretary of Commerce, privileged commercial broadcasters with moves such as allocating the worst wavelengths to amateurs and the better ones to commercial players, (156) but the 1920's were still a time when nonprofit radio was seen as the primary use of airwaves and thus commercial stations went so far as asserting an aura of public interest to their services. (157)

   The Radio Act of 1927 established that spectrum belonged to the government and would be licensed for three-year periods. (158) The choice on how the licensing process would occur reveals a desire of Congress to use this public resource to promote free speech. (159) A system for granting licenses based on auctions was vetoed exactly because lawmakers wanted radio to be free. (160) Moreover, while a lottery scheme would also have made radio free, it was rejected because licensees should continue to provide a public service. (161) The criteria set thus were "public interest, convenience, or necessity." (162)

   In less than ten years, the work of the Commission established by the Act (which later became the Federal Communications Commission) in conjunction with two commercial stations caused non-profit radio to decline to a meager two percent of broadcast time in the United States. (163) This was accomplished by requiring licensees to decrease their airtime so that they could share spectrum and also by conditioning licenses to the use of complex, expensive equipment which non-profit stations couldn't afford. (164) They gradually lost airtime and, consequently, revenues. (165) This made them less and less able to maintain the required technical structure and caused their demise. (166)

   The public interest standard was slowly being twisted in its interpretation. Where once it meant public service radio, by the mid 1930's it had been transformed into a requirement of offering programing that would please the average individual. (167) This was of course the main objective of profit-seeking stations: to present content that would be palatable to the largest possible amount of people so that advertising revenue would be higher. (168) It was the rise of the dreaded lowest-common-denominator-programming. (169) The Commission at this point disfavored politically-oriented radio stations because they could not provide such bland speech and had therefore to leave the airwaves. (170) It's convenient to note that Congress, who just a few years earlier had made decisions that would privilege a radio environment less dominated by commercial stations (while trying to enable the conditions for many people to broadcast diverse views) now did nothing to change the FCC's course of action. (171) This was not caused by a change in the representatives' interpretation of what the First Amendment meant. (172) The reason is that politicians learned how much they now depended on broadcasters to win elections. (173)

   Regardless of what type of speech the Commission chose to favor during this time, the real problem is that this period marked the incursion of government into the foray of evaluating the merit of people's speech. (174) The Fairness Doctrine was thus established as a standard whereby the FCC would evaluate the advantages of granting a license renewal to a broadcasting company. (175)

   The liberalist approach to the FCC's role in radio regulation, as well as the absolute negative liberty explanation of the First Amendment, fail to explain the Fairness Doctrine. (176) Not all of the values put forward by Congress in the 1927 Radio Act were lost. (177) The Fairness Doctrine pushed back on negative liberty and required the FCC to actively impose on broadcasters an obligation to include in their programming the debate of public issues and a fair coverage of all sides to such issues. (178) In the early 1940's the FCC had already pressured radio stations demanding more diverse programming. (179) Later, in 1967, it codified the Fairness Doctrine, which was quickly brought to the Supreme Court for review. (180) After author Fred J. Cook felt attacked by a program aired on Pennsylvania radio station WGCB, owned by The Red Lion Broadcasting Company, the FCC agreed that reply time was due. (181) The Commission's decision was upheld by the Court of Appeals for the D.C. Circuit, but at the same time the new regulation of the Fairness Doctrine was being challenged in the courts; the Court of Appeals for the Seventh Circuit understood that it was unconstitutional. (182) The case reached the Supreme Court in Red Lion Broad. Co. v. FCC, which upheld the Fairness Doctrine as constitutional. (183)

   The majority opinion by Justice White was much more skeptical of the argument that the right of reply stimulated self-censorship than the majority in Tornillo was a few years later. (184) The Tornillo majority made a great effort to distinguish itself from Red Lion based on the fact that broadcasters' speech was inherently regulated due to the need to allocate spectrum, whereas the press was never regulated in the first place. (185) Justice White in fact did seem to place a great deal of relevance in the fact that regulation was unavoidable, but he also recognized the merits of having radio convey "representative community views on controversial issues." (186) The negative liberty dimension of free speech surely does not encompass such a thing: all that the state must do is keep out of the speech arena. (187)

   In any event, the escape route for those claiming that the First Amendment forbids government intervention and says absolutely nothing else is to argue that the radio station's exclusion of Fred Cook's speech amounted to state action because of the government's involvement in spectrum licensing. (188) If, for arguments sake, this proposition is accepted, it follows that it was government action excluding speech. (189) But the Supreme Court has consistently stated that when government acts as speaker, its editorial choices are beyond judicial scrutiny. (190) one example is Arkansas Educ. Television Comm'n v. Forbes. (191)

   The constitutional mission to promote speech in the radio medium is apparent in decisions by Congress, the FCC and the Supreme Court. (192) When the Commission decided to discontinue the enforcement of the fairness doctrine in 1987, it was only after a report two years...