Public Airwaves Outdated

[TheBigA]

The lead story on several radio sites today spotlights a new paper by attorney Edwin Krasnow, who says the concept of public ownership of the airwaves is outdated. Here's a quote from Radio Ink:

"The concept that the public owns the airwaves, particularly as it concerns the authority and mission of the FCC is a mischievous notion that has been misused as a rationalization for government regulation." Krasnow says the public-ownership notion is the main reason for broadcasting's second-class status under the First Amendment. It's time for the FCC to renounce this discredited concept."

Here's more from BroadcastingCable:

http://www.broadcastingcable.com/article/467631-Former_NAB_GC_Says_Public_Ownership_Of_Airwaves_Is_Fallacy.php?rssid=20068

The fact is that the FCC has not applied the public ownership standard to the rest of the spectrum, as evidenced by its policy of auctioning spectrum to cell phone companies. Imagine if it did the same with the broadcast spectrum.

 

[Tom Wells]

Huh! How quaint is it now?

Guess I saw this coming.

http://boards.radio-info.com/smf/index.php?topic=189891.0

 

[TexasTom]

Can't say that I was very impressed with that article, which was pretty much just generic warmed-over libertarian boiler plate, complete with references to Ayn Rand.

In particular, I note a comparison in the paper to people breathing air versus broadcasting over the air -- which is a silly and pointless comparison, because my breathing doesn't prevent my neighbors from doing so, whereas a station broadcasting on a particular frequency does preclude the use of that frequency by others for a significant distance from the station. To put is bluntly, I haven't noticed that there are more people in Dallas/Fort Worth trying to breathe the air than there is available air in the metro area. In contrast, more people would like to operate FM broadcast stations than there are available FM frequencies. So, big difference there.

The sad thing about this article is that good arguments can be made for deregulating broadcast content -- just based on the First Amendment, as well as competitive issues (broadcasters forced to deal with content restraints that don't apply to their competition). My personal opinion is that the right way to go would be to combine content deregulation with strict ownership regulation -- in essence, maximize the number of voices that own broadcast stations, then give those owners the maximum amount of freedom in terms of what to put on those stations.

 

[TheBigA]

Here is the entire article:

http://www.mediainstitute.org/new_site/PDFs/Spkng%20Frly%20Krasnow%205-2-11.pdf

In it, he seems satisfied with the FCC's role with regard to interference control.

 

[Tom Wells]

After re-reading this opinion a few times, there is a disconnect that only a lawyer could make.
Mr Krasnow's not doing a very good job of hiding the fact that he seems to be laying groundwork for
the concept of selling off all bandwidth, as if it IS something that can be owned.

This may be a valid viewpoint for lawyers and governments, but annoys me as an engineer.
It certainly is interesting that Ayn Rand's logic of corporatism as the ideal is trotted out.

I'd argue that he's doing an even better job of making the case for the "Italian" model.

For those who may not know, Italy has officailly recognized that no one or any governmental body
has any right to tell anyone else how to regulate their RF.
(except as prohibited by international agreements already in place and those have many cracks of age, too)


If half the commnunity of license can no longer hear you because of noise, industrial, commercial or residential,
no problem, you just add kws.
If someone else's nearby "healthy" signal is capturing the FM radios in your town, you just add more kw.

Which is it to be then?

If the FCC decides it has no business regulating content, they forfeit any claim to authority for
regulating access, which means selling the bandwidth.
The content could not be provided without the "ether".

The "ether" itself pretty much doens't care.
But it does prove a very tempting treasure if we could only figure out how to commodify it and sell it corporations.

Oh wait, we've already been doing that doing that..


Selling bandwidth and washing your hands of whatever happens later is purest nihilism.

It is fraud, pure and simple.


Let the public weigh in on whether they own the "airwaves".
We're getting to where a lot of the public would have no idea what the question is about.
And then, really, if people eventually don't have any use for broadcast, when enough people are paying for
service, we can just stop broadcasting. Then there are those annoying people who didn't buy into the service.
No problem, they'll die off.

What a fine thing radio was when it was magic, engineering and art all at the same time.
And given the respect that it would be somehow not squandered and fought over like every other treasure discovered.
Enough respect to create big governmental bodies to regulate what was considered so valuable.

 

[musichead1029]

Is this article in any way controversial? This is basic stuff that's been around forever. The concept of the public 'owning' the airwaves has always been a fanciful allegory. The ether needs a gatekeeper to maintain order. We ended up with the government at the gate. Predictably, politics quickly followed. Fortunately, we now have media outlets that the government has not yet assumed political control over. As the heritage media spectrum finds a place amongst newer less restricted options, the old scarcity-based assumptions are coming under question, as they should.

The time has come for the FCC to take the following actions: Renounce the discredited concept of public ownership of the airwaves, bury the scarcity rationale, and adopt the approach advocated by former FCC chairman Mark Fowler, by applying a public-interest standard based on minimally regulated marketplace forces rather than content regulation.

This eminently rational mission statement is unlikely to be considered, as it would require the government to take actions that would threaten its power base. The FCC is interested in control, not 'public interest.' The only time you hear about the "public interest" in the context of government is when a possibly well-meaning but ultimately condescending politician like Newton Minnow or Michael Copps claims to know what the 'public interest' is, and how they can implement it if they are just given the power to do so.

Meanwhile the public exercises its own interest every day by choosing what media to consume, government concepts of their interest notwithstanding.

If the FCC decides it has no business regulating content, they forfeit any claim to authority for regulating access

Access and content are mutually exclusive. The FCC could easily assign minimal technical parameters to a slice of spectrum regardless of data content and format. This would be a free and efficient use of the spectrum, which should be an engineer's dream.

The content could not be provided without the "ether".

The ether would be worthless without content that attracts consumers.

The "ether" itself pretty much doesn't care. But it does prove a very tempting treasureif we could only figure out how to commodify it and sell it corporations. Oh wait, we've already been doing that doing that.

By "corporations", I assume you mean content providers. And by "commodify", I assume you mean using the free market to assign relative values to broadcast licenses. The ether would be worthless without both. No value, no content providers. No content providers, no ether value.

What a fine thing radio was when it was magic, engineering and art all at the same time.

Still is. Check out a well-programmed station sometime. If there isn't one nearby that suites your tastes, try an internet ethernet relay.

 

[TheBigA]

After re-reading this opinion a few times, there is a disconnect that only a lawyer could make.
Mr Krasnow's not doing a very good job of hiding the fact that he seems to be laying groundwork for
the concept of selling off all bandwidth, as if it IS something that can be owned.

As I said in my original post, it's something that the US government is doing right now. And pocketing billions of dollars. And no one ever asked the public about it.

 

[TheBigA]

Is this article in any way controversial? This is basic stuff that's been around forever. The concept of the public 'owning' the airwaves has always been a fanciful allegory.

Exactly. As I point out every time someone brings up the "public interest, convenience, and necessity." No station ever lost its license because it didn't honor that phrase. And the reason why the FCC has never enforced it is because it recognized that it's absolute hooey.

 

[musichead1029]

Is this article in any way controversial? This is basic stuff that's been around forever. The concept of the public 'owning' the airwaves has always been a fanciful allegory.

Exactly. As I point out every time someone brings up the "public interest, convenience, and necessity." No station ever lost its license because it didn't honor that phrase. And the reason why the FCC has never enforced it is because it recognized that it's absolute hooey.

Well, the FCC has justified mandating counterproductive measures in pursuit of the mythic "public interest" for years - required newscasts, 'public interest' programming (those boring 'public affairs' shows buried at 4AM), the "Fairness" Doctrine, and overly restrictive content review.

Hell, stations still have to make up "local issues" to put in the public files they're required to maintain (and many have been fined for not keeping them up to date and accessible). Stations still have to identify their 'community of license' on the hour despite COLs having been irrelevant for decades.

Despite the acknowledgment that these provisions provide nothing of value to the public and put an unnecessary burden on broadcasters, they still exist and are enforced by the entrenched political culture at the FCC. Once these provisions are in place, as irrational as they are revealed to be, it's tough to remove them. Common sense is too often not a virtue in political circles.

So any effort to topple the illegitimate legends on which these counterproductive regulations are based is laudable indeed.

 

[TheBigA]

Well, the FCC has justified mandating counterproductive measures in pursuit of the mythic "public interest" for years - required newscasts, 'public interest' programming (those boring 'public affairs' shows buried at 4AM), the "Fairness" Doctrine, and overly restrictive content review.

My point, however, is that they have never enforced any of those things, and gradually did away with them over 25 years ago.

The public file and the city of license aren't major issues. Any public company keeps a public file regardless of whether or not it's in broadcasting. These days they tend to be available online.

 

[musichead1029]

The public file and the city of license aren't major issues. Any public company keeps a public file regardless of whether or not it's in broadcasting.These days they tend to be available online.

Different requirements. Just ask KLSU, WNYG and WWIZ if it's still a big deal to the bureaucrats. Though even the paper-pushing drones at the FCC finally seem to realize what a worthless waste of time and effort the public file is.

Well, maybe:

While this request for comments on the paperwork burden imposed by the public file may be nothing more than a routine review of Commission rules to justify their continuing existence under the provisions of the Paperwork Reduction Act, it is interesting that this rule - long the source of wrath from broadcasters who complain that the file is never visited except by the occasional college broadcasting student who has to do so as a class project, or by the competitor in the market looking for something to complain about (and even those visits are extremely rare for most stations) - is now up for review and comment. Why was this rule selected for review? Will there be other rules about which the FCC asks for comment? Is there any justification for the burden imposed on broadcasters (which the FCC estimates at a cumulative 1,831,706 hours of work annually, but to which it curiously assigns no associated cost burden with the required tasks) when it is routine for the file to be never visited? You have your chance to voice your comments - with the filing deadline for such comments being June 17, 2011.

 

[TheBigA]

The article in this thread and my comments about it are specifically about public interest requirements, which is different from the public file. It's nice that they're considering elimination of the paperwork. But I agree with the question, "Why is this rule selected for review?" Why not just throw the whole book away? There are lots of rules that haven't been enforced, yet this one is they've chosen for review.

 

[TexasTom]

After re-reading this opinion a few times, there is a disconnect that only a lawyer could make.
Mr Krasnow's not doing a very good job of hiding the fact that he seems to be laying groundwork for
the concept of selling off all bandwidth, as if it IS something that can be owned.
[...]
I'd argue that he's doing an even better job of making the case for the "Italian" model.

Given those choices, I'd take what you refer to as the Italian model (I've heard what unregulated radio in Rome, Italy is like). But what people like Mr. Krasnow really want is for radio spectrum to be treated as private property, with the government protecting the "property rights" of the big companies that will end up owning all that spectrum.

 

[TheBigA]

Doesn't have to be "big companies," but what you describe is what copyright law is all about. The United States is built on the private ownership of property.

 

[musichead1029]

what people like Mr. Krasnow really want is for radio spectrum to be treated as private property, with the government protecting the "property rights" of the big companies that will end up owning all that spectrum.

The FCC essentially protects each licensee's right to the exclusive use of the spectrum assigned, the 'property right' so to speak. Without that protection, the license would be worthless and there would be no incentive to invest in programming resources. The FCC should treat spectrum more like private property and let licensees decide what the best data uses and formats are within specified technical parameters to prevent interference. A private consortium could take over frequency management and we could wring much of the public sector politics out of the task. The government could continue to mandate broad initiatives like noncommercial spectrum as it saw fit, but the counterproductive political micro-mismanagement of spectrum administration would be greatly reduced. What's wrong with that?

Rather than looking at this through the narrow prism of class warfare ("big companies"), observe the benefits that are derived from private companies competing for audiences. (And remember that spectrum is set aside for noncommercial use, and that one of the top stations in Philadelphia, for instance, is an independent, Jerry Lee's WBEB. No 'big company' there.) Compare U.S. media's variety of offerings to that of England or any other state run networks. It's not so surprising that most of these governments have opened up parts of the spectrum to private ownership. Who could do a better job? And what does a 'small company' do better than a 'big company' as a rule in media ownership?

As for dropping the excessive regulation - that would be anything beyond specifying minimal technical parameters required to prevent interference - I'm all for it. Let the data providers decide what kind of data and transmission to use on their spectrum plot, and what kind of files they need to maintain. We'd see new uses of over-the-air technology popping up over night, likely far more innovative than the inadequate compromise that HD has proven to be.

Alas, the reigning regulatory structure has turf to protect, and the government power base to keep logic and common sense safely at bay for the foreseeable future. We'll just have to keep chipping away at the regulatory facade.

 

[w9wi]

But what people like Mr. Krasnow really want is for radio spectrum to be treated as private property, with the government protecting the "property rights" of the big companies that will end up owning all that spectrum.

Be careful what you ask for, you might get it!

I think those calling for spectrum ownership are assuming they will simply be *given* the spectrum they currently occupy. Kinda like the guy who builds a cabin way back in the woods at a national park, and then expects he'll be permitted to rent out rooms. Makes a nice business model, renting the use of property you didn't have to pay for.

(OK, more recent licensees have paid for their spectrum at auction. What was auctioned was an open-ended lease. Will not ownership likely result in larger bids?

Of course, the vast majority of stations have *not* paid for their spectrum. I'm not saying we should require them to make a large payment for the frequencies they've been occupying -- but I am asking whether we can give them *ownership* in this spectrum at no charge.)

I wonder whether these folks will still favor spectrum ownership once they learn how much it will cost them?

Does ownership even make sense for many broadcasters? It's certainly difficult to make the case for AM ownership. The value of the asset is obviously and rapidly declining. If you're your market's 50,000-watt Rush/Hannity/baseball/football station, it probably makes sense to lease 520KHz for five years at market rates. Do you really want to pay for permanent ownership of a channel that stands a very good chance of being commercially useless in ten years? Even the value of an FM channel is declining.

Most of those calling for spectrum ownership seem to see it as a way to escape what they consider burdensome FCC regulations. I find it interesting that broadcasters themselves -- those most affected by regulation -- are NOT those speaking most loudly for ownership. Could be they've looked at all the angles?

 

[musichead1029]

Most of those calling for spectrum ownership seem to see it as a way to escape what they consider burdensome FCC regulations. I find it interesting that broadcasters themselves -- those most affected by regulation -- are NOT those speaking most loudly for ownership. Could be they've looked at all the angles?

Most licensees would love to get rid of the burdensome and unproductive FCC regulations, but ownership is only one concept of how that could work. Licensees effectively 'own' their licenses now as long as they jump through the FCC hoops, so there wouldn't automatically be any reason for licensees to advocate a new system. A new system would likely involve new unknown costs courtesy of the whims of Washington politics. Unless that new system could guarantee some significant benefits over the old one, it would be of limited appeal to licensees.

If entities that deal with politicians on a regular basis know anything, it's to go with the devil you know. That way the costs of dealing with the politics, no matter how inane they can be, can be built into the business model. The unknown is often worse, and there may be no way to realistically predict the outcome once the door's been opened. Businesses hate the unknown and won't court it unless there's a reasonable chance at an enhanced return on investment. When politics are in the mix, the benefits of change are usually hard or impossible to predict.

 

[w9wi]

Licensees effectively 'own' their licenses now as long as they jump through the FCC hoops, so there wouldn't automatically be any reason for licensees to advocate a new system. A new system would likely involve new unknown costs courtesy of the whims of Washington politics. Unless that new system could guarantee some significant benefits over the old one, it would be of limited appeal to licensees.

If entities that deal with politicians on a regular basis know anything, it's to go with the devil you know. That way the costs of dealing with the politics, no matter how inane they can be, can be built into the business model. The unknown is often worse, and there may be no way to realistically predict the outcome once the door's been opened. Businesses hate the unknown and won't court it unless there's a reasonable chance at an enhanced return on investment. When politics are in the mix, the benefits of change are usually hard or impossible to predict.

Absolutely on all points.

Especially about the existing system being effectively 'ownership' already. Once you've paid your auction bid (if you're new enough to have won your license at auction), there are no ongoing lease/rental payments. Yes, you still pay regulatory fees but those are justified on a different basis and really, I doubt they'd go away in a spectrum ownership scheme. It's nearly impossible to lose your lease. (even if you *don't* jump through the FCC hoops..) Most stations that have lost their leases recently lost them for not using them -- demonstrating pretty dramatically that they really didn't value what they were losing.

One might argue that the last point especially mitigates against going to an ownership scheme. Ownership would allow (maybe even encourage?) "warehousing" of spectrum -- buying it to drive up the price, with no intent of using it to provide service.

 

[bturner]

I disagree that liscenees have not paid for the spectrum they occupy. We have auctions for commercial frequencies with those going to the highest bidder. In most instances it is cheaper to buy an existing license than it is to try to win a new frequency somewhere. Then there is the annual spectrum fee you pay to the FCC each year. The airwaves might be technically like air or any other element that makes up our planet but radio broadcasters do pay for it. After all the components of that car you drive are made up of things already existing on this planet that have been manipulated and forged into a combination that makes it a form of transportation. Certainly you pay for your car and annual fees for its license and insurance to pay for any mishaps. Radio, via FCC rules, is much like the car with the car being the frequency you bought for a license term with a huge downpayment and an annual fee.

 

[TheBigA]

Ownership would allow (maybe even encourage?) "warehousing" of spectrum -- buying it to drive up the price, with no intent of using it to provide service.

You realize the biggest "warehouser" of spectrum space is the military? They're sitting on huge chunks of spectrum with no plans for use.