Regulation of broadcast media
25 September 2004 - Emailed

Now, to the issue at hand - the FRC and decency laws. The overall subject is about the battle against "sinful" content on TV, radio, and cable, but my thoughts on that battle will take my comments outside the scope of your email, so let me address first the specific question you asked, which was whether the basis of "the public owns the airwaves" is a noble basis on which to fight that battle. From the technical perspective of an engineer, my first instinct is to ponder whether that statement can be true, or even quantified to the point where its truth can be discussed. I think the only way to get to that point is to thoroughly and completely understand all the different considerations of what we're talking about - starting with details about what it actually is (I ask your forgiveness in advance if I mention things you already know). What makes up the "airwaves", can they be "owned", and if so, who is entitled to own them? The "airwaves" that everyone talks about are nothing more than ranges of energy frequencies in the non-visible spectrum - specifically, frequencies between 3 Hz and 300 GHz. Technology has given us the capability to transmit and receive information by generating radio waves tuned to these frequencies, from analog data like stereo audio and TV video/audio to digital data like internet packets. When these technologies were first developed, a scheme had to be devised to "partition" the available frequencies into discrete bands so that transmitters broadcasting different types of data (or even different versions of the same type) wouldn't jumble each other's signal. In the 1920s industry and the federal government (under the Hoover administration's predecessor to the FCC) collaborated to establish such a scheme and thus, the divisions between (among others) HF, VHF, and UHF were born that carry AM (and short-wave) radio, FM radio and broadcast TV (ch. 2-13), and broadcast TV (ch. 14-69) and household cordless phones, respectively. The FCC gets to determine and mandate which technologies (and to a certain extent, even which corporations) get to use which frequency bands for what applications. The basis for free-market capitalism is private property ownership and the unregulated use of it. But if anyone can be said to "own" the "airwaves", is it the government who grants the privileges, the corporations who own and broadcast the content, or the consumers who receive and decode the signals? If signal broadcasters own them outright, no legislation should be allowed to regulate content; if government shares at all in ownership it follows that it can regulate their use, at least to the extent of its shared ownership; but full or shared ownership by the public is the thorniest of the possibilities - how can something be owned by 200 million people and regulated according to the preferences of each and all? Clearly there is no easy answer, and members of the Democratic, Republican, Green, Constitution, and Libertarian parties would likely give five different answers. I don't claim to have even made up my own mind conclusively on the issue, but one's answer to the question of the possibility of ownership and its placement will certainly take him closer to determining how much regulation is required or justified in controlling content.

Leaving the primary question of ownership momentarily and assuming some regulation could be justified, let me comment on the forms such regulation could possibly take. If the entity responsible for regulation (the government, groups of consumers or individuals, or industry partnerships) decides to enact and enforce some form of content regulation on radio and TV signals, the preferences of that entity will be the only available content, assuming a lack of competition by another such entity. Radio and TV signals can be received and decoded by very cheap, widely available consumer electronics - the communication between the transmitter and receiver is a transmission between two private parties, the owners of the content and the receiver. Theoretically the stated need for the proposed content regulation would be to limit what can and should be received by any consumer who has access to the necessary equipment. Considering the breadth of technology that we have, the varied uses it's put to, and the mass availability of so many different types, what would make radio and TV different enough to warrant content regulation when other signals broadcast over the same spectrum are not regulated? The more precise question is, once the regulating entity controlled the content on radio and TV, why would they stop there and not regulate other communications between two owners of a transmitter/receiver, like CB radios, walkie-talkies, cell phones, wireless internet, etc.? After all, these devices are using the same radio frequency spectrum as radio and TV, and at the moment there's little legal difference (as I understand it) between a corporation being a content owner/broadcaster and an individual being a content owner/broadcaster. One proviso that's been offered regarding broadcast regulation is that restrictions would most likely be less strict on cable networks, but it turns out to be something of a red herring in the discussion over broadcast regulation, especially if the justification for broadcast regulation is that "the public owns the airwaves". The content that is sent over cable or phone line networks is composed of the same type of content as broadcast (music, TV, internet packets, voice, etc.), but the transmission medium doesn't suffer from the same ambiguity regarding ownership. There can be debate over who (if anyone) owns the airborne radio frequency spectrum, but the same cannot be said of a fiber-optic or coaxial cable network installed and maintained by private corporations like Adelphia or SBC. Content delivered over cable is much less vulnerable to the same justification of regulation than that broadcast over the airwaves. All of which begs the question, why would satellite TV be under the same restrictions as cable (which is true of every argument for content regulation I've heard) rather than the same restrictions as broadcast TV, considering the transmission medium involved (airwaves vs. fiber-optic cable)? That argument sounds specious to me.

It seems to me that the most efficient and practical way to control radio and TV content would be self-regulation by consumers and content owners/broadcasters via the free market choices they make - it's also the way least likely to run afoul of 1st Amendment/free speech concerns (Michael Moore's erroneous definition of "censorship" notwithstanding). If there are enough viewers, like this recent Townhall.com article, who are upset enough to do something about what they see on TV and hear on the radio, in my opinion they already have enormous power to control exactly what they're upset about - they can change the channel. Technological means of providing parental control over TV content is already available, and becoming cheaper as it comes increasingly under competitive pressure. Consider also how fast a network will pull a show that is underperforming in the ratings - The Simpsons have been around for so, so long for the simple reason that people keep watching it. Method & Red, on the other hand, was scheduled for 24 episodes but was cut off at 12 after it became clear to Fox that no one was watching it. Regarding Howard Stern specifically - Clear Channel pulled his show from their stations even before anyone at the FCC suggested fines at all. TV and radio broadcasters and content owners are beholden to consumers, and they know it - all that needs to happen is for enough consumers to realize it too, and take the action they're already empowered to take by changing the channel. Self-regulation by the market of consumers and broadcasters is already effective, and can only become more so - and without treading on the slippery slope of legislation that always tends to be much harder to repeal than enact.

To return to the overarching question of the nobility of the FRC fighting this battle, my opinion is this: groups like this (and the individuals who make them up) should do all they can to educate and convince consumers and content owners of the need to self-regulate, but considering that from a technical perspective it can't be conclusively argued that the government should have legislative control of the content broadcast over the RF spectrum, I'm not convinced they (or anyone) should be actively lobbying for legislation in that area. This recent FRC comment, although it deals with cable networks rather than broadcast, is an example of an effort that I think is unnecessary. The FRC wants legislation that will require cable operators to stop offering pre-set channel packages and start offering a la carte selections. I'm not sure about cable networks, but satellite TV providers have already begun offering combinations of packages and a la carte channels. The trend is headed towards completely customizable channel lineups, and as competition increases through deregulation and removal of government-sanctioned monopolies, consumer demand for channel customization will overcome the economies of scale (which are dubious at best) that keeps cable providers offering packages. Combine that with the channel control features pioneered by Tivo and being integrated into cable and satellite receivers (and versions of which are already available for broadcast TV; among these are V-Chip, TV Guardian, and CC+), and I really think there's no reason for that kind of legislation.

Written as a reply to a request for feedback from a friend regarding the efforts of the FRC to advance legislation regulating broadcast media like cable and satellite.