Airing of Douglas tape vs public interest responsibility
BY PREM MISIR
June 23, 2002
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The recent airing of the infamous Douglas tape on a few television channels is a case in point. Those television stations that broadcast the tape felt that they had a divine right to execute this unworthy act. Clearly, little consideration was given to the public interest, convenience, and necessity, especially in terms of the rapidity of the tape’s airing.
However, this cannot be. Broadcasters use the electromagnetic spectrum, which is scarce and is a national asset, owned by the people of Guyana. Therefore, discussions on regulation of broadcasting have to start from a premise of the people or the public’s interests and needs. In the final analysis, however, it is the job of any government to not only make certain that the public interest is met, but also to promote the commercial development of the broadcasting industry.
Here, I shall try to show how the U.S. developed the public interest standard in broadcasting through source materials drawn from the National Telecommunications and Information Administration (NTIA).
How the public interest responsibility is evolving
The Federal Government and the Federal Communications Commission (FCC) have agreed that the broadcast market by itself does not adequately meet the public needs. So over the years, the Federal Government has tried, through the FCC, to integrate the public interest into the commercial environment.
We can start with the Radio Act of 1912. The Secretary of Commerce and Labor was empowered to issue radio licenses to people on request. The spectrum was in abundance at the time, so it was not appropriate to deny licenses. As the 1920s emerged, unregulated broadcasting, with an extremely large number of broadcasters, produced signal interference. It was at this time that we saw the beginnings of a national discussion on how to responsibly allocate a limited number of broadcast frequencies.
This conflict situation was partially resolved by the Radio Act of 1927 and the Communications Act of 1934. The Communications Act is the charter for broadcast television. It banned the ‘common carrier’ regulation, which used to enable any person to purchase airtime for broadcasting purposes, and it required broadcast licensees to operate in the public interest, convenience, and necessity.
The Radio Act of 1927 created the Federal Radio Commission, which saw broadcasters as public trustees. The Commission said:
“[Despite the fact that] the 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 the 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.”
The U.S. Government has determined over time the requirements to be met for meeting the public interest in broadcasting. The Federal Government also empowered the FCC with wide discretion to address broadcasters’ public interest responsibilities. In fact, both the Congress (Parliament) and the courts have mandated that broadcast licensees operate in the public interest. And the U.S. Supreme Court has frequently endorsed the public interest model of broadcast regulation as constitutional.
Philosophy of the public interest
The notion of the public interest was captured in James Madison’s idea of free speech when the U.S. Constitution and the Bill of Rights were framed. He felt that the First Amendment to the Constitution was a significant mechanism for ensuring political equality, and to promote free and transparent political discussion (Sunstein, 1993). Brandeis, in agreeing with Madison, believes that free speech allows citizens to engage in political discussion, and that public discussion is a political duty (Whitney v. California). This view of free speech promotes the civic needs of a democratic society.
In the early years, broadcast regulation in the public interest in the U.S. attempted to create an informed citizenry through advancing the needs of democracy and culture beyond what the market forces can make available. This approach continues to this day. This kind of public interest standard will have to be defined by the National Assembly, civil society, broadcast interest groups, and a broadcasting authority in Guyana.
In the U.S., the public interest philosophy and responsibilities are generally applied over the following six areas: programme diversity; political dialogue, localism; children’s educational programming; access to persons with disabilities; and equal employment opportunity.
This diversity was first initiated in guidelines called the Great Lakes Broadcasting Co., promulgated by the Federal Radio Commission in 1929, and mandated the station to meet the:
“tastes, needs and desires of all substantial groups among the listening public…in some fair proportion, by a well-rounded programme, in which entertainment, consisting of music of both classical and lighter grades, religion, education and instruction, important public events, discussions of public questions, weather, market reports, and news, and matters of interest to all members of the family, find a place” (Great Lakes Broadcasting Co. v. FRC, 37 F.2d 993 (1930).
In 1946, the FCC issued the Public Service Responsibility of Licensees called the Blue Book. It evaluated the public interest performance of licensees at renewal time. It examined four mechanisms: live local programmes, public affairs programming, restrictions on excessive advertising, and unsponsored programmes.
The 1960 Programming Policy Statement further clarified the public interest standard. It mentioned the following as integral to the public interest: opportunity for local self-expression, development and use of local talent, children’s programming, religious programming, educational programming, public affairs programming, editorialisation by licensees, political broadcasts, agricultural programming, news programming, weather and market services, sports programming, service to minority groups.
The 1980s saw the development of new media industries and the FCC at that time felt that it was necessary to effect a significant policy shift by applying a market approach to public interest goals. The FCC, enamoured with a free market approach, introduced a comprehensive programme of deregulation by abolishing rules governing programme diversity, localism, and compliance with some public interest standards. Even the Telecommunications Act of 1996 furthered the deregulation programme.
Today, both the Congress and the FCC have realised that the market approach to achieving the public interest is wanting.
In response to this inadequacy, Congress and the FCC have sustained the rules governing children’s programming, local news and public affairs, and political candidate access, inter alia.
Platform for political discussion
Another application of the public interest responsibility has to do with political candidates and citizens’ access to broadcasting. The Zapple Rule (Letter to Nicholas Zapple, 23 FCC 2d 707 (1970) requires that equal airtime must be available for all political candidates, excepting political editorial advertising. The Fairness Doctrine, which tried to ensure that all sides are presented fairly, was rescinded in 1987 because it was deemed to be inimical to the public interest. Many opponents of the Fairness Doctrine believed that it inhibited them from broadcasting controversial items. However, other measures, as the Fourteenth Amendment to the Constitution and the Civil Rights Legislation, are in place to compensate for the elimination of the Fairness Doctrine.
The Blue Book in 1946 indicated two requirements for promoting localism. These were ‘local live programmes’, and ‘programming devoted to discussion of local public issues’. The 1960 Programme Policy Statement endorsed two requirements: ‘opportunity for local self-expression’; and ‘the development and use of local talent’. If these requirements are fulfilled, then the broadcaster/station management would have met the public interest responsibility in serving the local community.
Congress in 1992 said: “A primary objective and benefit of our Nation’s system of regulation of television broadcasting is the local origination of programming. There is a substantial governmental interest in ensuring its continuation” (106 Stat. 1461, Pub. Law 102-385). Also in 1992, Congress passed the Cable Television Consumer Protection and Competitive Act to ensure that local programmes can be accessed by a large number of Americans who are unable to pay for cable television. In effect, cable television has to now carry broadcast programmes through the cable channels to facilitate those who cannot afford cable.
Children’s educational programming
Congress ratified the Children’s Television Act in 1990, which mandated broadcasters to have three hours of educational children’s programming per week, catering to children 16 years and under. The law further restricted children’s advertising to 12 minutes per hour during weekdays and 10.5 minutes during weekends. This legislation ensured that children’s educational programming would be a standard for evaluating a station management’s public interest performance at the license renewal point. Note the strong emphasis on children’s programmes.
Access for persons with disabilities
The Television Decoder Circuitry Act of 1990 mandates all television sets to carry special decoder chips to display closed captioning on television programmes. Section 305 of the Telecommunications Act of 1996 introduced more requirements for the deaf and hard-of-hearing. In this regard, the FCC in 1997 ruled that deadlines be set up that will produce 95 per cent closed captioning on all new programmes over the next eight years from 1998.
Equal Employment Opportunity
The FCC must assure that licensees meet the needs and interests of minorities and women, and to make certain, too, that an appropriate number of minorities and women are employed by the broadcast stations. Broadcast stations do not meet the public interest obligations if they fail to provide equal employment opportunities.
The equal employment opportunity provision is required through Section VII of the Civil Rights Act of 1964, the Equal Employment Opportunities Commission, and the Department of Justice.
Legislative and judicial roots of public interest
National discussion on the regulation of broadcasting started some years ago. Not much happened until last year when the Joint Committee on Radio Monopoly, Non-Partisan Boards and Broadcasting Legislation (Referred to hereafter as The Joint Committee) produced its final report. Given this development, there still are cross-sections of the media world that earnestly believe that broadcasting should be self-regulated. And even if it may not be self-regulated, then the Parliament and not Government should drive the major decisions for the composition, functions, and operations of a broadcasting authority.
The experience of the United States demonstrates that self-regulation and leaving the market forces to determine the public interest in broadcasting are inadequate.
Both the market and self-regulation mechanisms can play a role in broadcasting, but the Government and Parliament through a broadcasting authority must establish the minimum requirements for the public interest as well as general broadcasting principles.
The advent of digital broadcasting and broadband issues in Guyana may require additional public interest responsibilities that have to be addressed. The Joint Committee did not comprehensively tackle the impact of the new digital technology - increased number of channels of communication, sharpened clarity of images and the varied types of signals transmitted digitally producing multiple avenues for varied groups in each community to have their broadcasts transmitted.
Therefore, the Government should consider establishing an advisory committee on public interest responsibilities for the current broadcast system as well as for digital television broadcasters.
We need to keep in mind the fact that the FCC, a product of the Communications Act of 1934, enforces numerous rules governing public interest standards that originate from many pieces of legislation and court decisions over the years. This 1934 law did not encompass all the salient public interest obligations in broadcasting found today in the U.S.
Additional laws and court decisions, while limiting the authority of the FCC, modified existing public interest obligations and instituted new public interest responsibilities. The FCC’s authority is limited, too, by the First Amendment principles, and the fact that the formulation of its rules is guided by statutes. In effect, the source and strength of most American public interest obligations are legislations and court decisions.
The Guyana broadcasting interest groups need to review this statutory and judicial complexion of public interest responsibilities. Public interest obligations in broadcasting will be a sham without this statutory and judicial blood.