Survival of the standard: today's public interest requirement in television broadcasting and the return to regulation.

• Author: Simshaw, Drew

1. INTRODUCTION II. HISTORY: REGULATION AND THE PUBLIC INTEREST A. The Early Days: Creation of the Concept B. Particularizing the Concept III. DEREGULATION A. Justifying Programming Requirement Cutbacks B. Ascertainment Deregulation IV. TODAY: THE REEMERGENCE OF REGULATION A. Enhanced Disclosure Order: The Return of Programming Considerations B. A Preview of Ascertainment's Comeback C. Report on Broadcast Localism and NPRM: Solving the Communication Breakdown with Ascertainment D. The 2011 Order on Reconsideration and FNPRM and Notice of Inquiry V. INDUSTRIALIZING BENEFICIAL INNOVATIONS V. CONCLUSION [Despite the fact that] [t]he conscience and judgment of a station's management are necessarily personal ... the station itself must be operated as if owned by the public.... It is as if people of a community should own a station and turn it over to the best man in sight with this injunction: 'Manage this station in our interest'.... The standing of every station is determined by that conception. (1) I. INTRODUCTION

   There are few legal tasks more difficult than determining how best to treat a concept that lacks definition. The history of the public interest requirement is one of these constant struggles. That broadcasters must broadcast in the public interest has always been a requirement; exactly how this requirement is met has taken many forms. This Note will examine the history of the requirement--from vagueness, to regulation, to good faith and presumptions of compliance--and consider the appropriate direction for the public interest's future.

   This Note will begin by examining the early days of broadcast regulation itself. It will then describe the creation of the public interest concept and the various standards by which the FCC has considered it satisfied. This Note will then describe the deregulation of the 1980s, during which the public interest standard was arguably eviscerated, and focus primarily on programming and ascertainment requirements for television broadcasters. Consideration will be given to the various justifications offered by the FCC for its cutbacks, which will be scrutinized in light of the industry's current state.

   Next, the FCC's Enhanced Disclosure Order and its Report on Broadcast Localism and Notice of Proposed Rulemaking will signify the reemergence of proposed specific regulation regarding the public interest standard. The current state of broadcast guidelines and regulation, or lack thereof, will reveal today's challenges. Broadcast licensees are out of touch with their communities. Technology is being underutilized, squandering opportunities that could increase the ease of reporting and accessing programming content, as well as opportunities for direct communication between licensees and community members. Only recently have licensees and the FCC undertaken a post-Internet burden and benefit analysis that should reveal new sensible ways in which the public interest could be served. Many of these possible solutions can be found, which this Note will examine, by looking to today's broadcasting practices and the innovative ascertainment methods that have resulted from a regulation-free industry. The FCC's recent Order on Reconsideration and Further Notice of Proposed Rulemaking regarding enhanced disclosure requirements, as well as its Notice of Inquiry regarding standardized program reporting, indicate that the FCC is prepared to consider enacting significant regulatory reform.

   Finally, this Note will conclude that it is necessary to implement certain sensible regulation at this time in order to ensure the preservation of the public interest standard. These possible regulations include, but are not limited to, required community advisory boards, town halls, and technological means of communicating with the public. First, it is critical to understand where the notion of the "public interest" has been in order to comprehend where it stands today so that we may best decide its future.

2. HISTORY: REGULATION AND THE PUBLIC INTEREST

   The public interest standard in broadcasting is a concept as old as federal oversight of broadcasting itself. The justification of federal oversight is rooted in two main goals. (2) The first is to allow regulation to foster the commercial development of the broadcasting industry. (3) The second goal, from which the public interest standard derives, is to regulate in a manner that meets the informational needs of the public. (4) It is the marketplace's ability or failure to meet these public needs that has controlled the degree of government regulation over time. The idea of serving the public interest subsequently created an array of new goals, from ensuring candidate access to the airwaves, to providing educational children's programming. This Note will focus on the goals of ensuring diversity in programming and promoting a concept known as "localism," especially with ascertainment of community needs. Examining the history of specific public interest regulations is essential to understanding where we find ourselves today. Its journey has led us to our current point in history where it is necessary to return to some of the early forms of regulation, as well as develop new forms.

   1. The Early Days: Creation of the Concept

      The need for regulation was first recognized during the chaotic 1920s, a time in which radio interference made mass media communication unreliable, and consequently made commercial development impossible. As a result, Congress passed the Radio Act of 1927, in which broadcasters were required to operate in the "public convenience, interest, or necessity." (5) Notably, the phrase was not defined in the Act. It was noted at the time that, '"Public interest, convenience or necessity' means about as little as any phrase that the drafters of the Act could have used and still comply with the constitutional requirement that there be some standard to guide the administrative wisdom of the licensing authority." (6) A larger move toward regulation was apparent in the subsequent Communications Act of 1934. (7) Rather than take the opportunity to define the phrase, Congress gave the FCC intentionally broad discretion to change the particular meaning of obligations as circumstances changed over time. This new requirement was notably different from the absence of regulation in print media. Instead, broadcasters were charged with a positive, albeit broad, statutory obligation to serve the public in specific ways.

      The question of what this new obligation of broadcasters should look like has been a constant struggle that continues to this day. Indeed, the historical account that follows will reveal that no particular definition, standard, or requirement has remained constant. However, the Federal Radio Commission ("FRC") eloquently captured the sentiment that drives the need for a public interest standard in a statement that should be considered by anyone seeking to define appropriate regulation at any given point in time. Although some aspects of the statement seem less applicable today, its philosophy can be considered a mantra for the essence of what it should mean to broadcast in the public's interest. The FRC explained that, even though certain aspects of a station's management are personal,

      [T]he station itself must be operated as if owned by the public.... It is as if people of a community should own a station and turn it over to the best man in sight with this injunction: "Manage this station in our interest".... The standing of every station is determined by that conception. (8) There are several historical developments that may seem to diminish the applicability of this statement today. On the one hand, the FRC likely could not have comprehended the degree to which broadcasting would become commercialized. In addition, the varying methods of licensing that have been adopted over time suggest that we are not singularly focused on "the best man in sight" when considering to whom licenses should be granted. On the other hand, the broad public interest policy behind the FRC's statement is still used in commentary today to advocate for political and social issues related to broadcasting. (9) Above all, and for the purposes of this Note, the notion that the public should be served through addressing the needs of the community should remain prominently considered while addressing the history of public interest requirements, deregulation, recent proposals, and where the standard should go from here. Upon such considerations, it will be evident that the current state of public interest regulation for broadcasting has lost sight of this mantra. Further, the longer we go without implementing additional, sensible broadcast licensing regulation, the further away the mantra could slip.

   2. Particularizing the Concept

      In 1943, NBC v. United States affirmed the FCC's broad regulating power over the broadcasting industry. (10) More specifically, the Supreme Court held that the public interest standard is the touchstone of this authority. (11) It also held that the standard is justified by the scarcity rationale and that it is not unconstitutionally vague. (12) The ruling paved the way for guidelines and regulations to more specifically determine what broadcasting in the public interest would look like in action.

      In 1946, the FCC issued a general statement regarding programming (13) and what would be known as the "Blue Book" guidelines. (14) Although the Blue Book guidelines only served symbolic importance, having never been ratified or rejected, they would still have an effect on the emerging priorities of the public interest standard* The statement recognized that, at renewal time, in determining whether a station was serving the public interest, the FCC would require four components: live local programs, public affairs programming, limits on excessive advertising, and what were known as "sustaining programs." (15) Of special importance to this Note is...