Saving Red Lion

Charles Benton

I was troubled to read over the weekend that the major broadcast television networks have filed briefs at the Supreme Court challenging Red Lion Broadcasting Co. v. Federal Communications Commission, one of the seminal cases in the history of US broadcasting and a decision that strikes the correct balance of rights between broadcasters and citizens.

In the 1969 Red Lion case, the Supreme Court declared that "it is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of the market," and thus, it is "the right of the viewers and listeners, not the right of the broadcasters, which is paramount." It is these basic viewers' rights that broadcasters seek to eliminate in their efforts to overturn Federal Communications Commission indecency decisions.

The Red Lion case is rooted in the fact that broadcasters use a scarce public resource -- the spectrum. You see, before the government decided to licensed spectrum to a few radio -- and then TV -- companies, radio was much like the Internet is today, offering everyday citizens the ability to both receive and transmit the content they wanted. Although there are more media choices today, there are also more potential users of spectrum as recent FCC spectrum auctions demonstrate by raising tens of billions of dollars.

In order to reserve the right to broadcast "dirty" words and the occasional image of a naked female breast when children might be in the audience, broadcasters are challenging the right of the public to demand public interest programming -- educational programming for children, local civic and election affairs, and public safety information.

Last week, television broadcasters told the Supreme Court that the FCC's efforts to enforce US broadcast indecency law are invalid because today's families subscribe to cable and satellite television services and surf the Internet. To make the point clearer: in order to reserve the right to broadcast "dirty" words and the occasional image of a naked female breast when children might be in the audience, broadcasters are challenging the right of the public to demand public interest programming -- educational programming for children, local civic and election affairs, and public safety information.

I wonder if broadcasters are forgetting the special benefits they derive from the public interest compact they have with the communities they serve. In return for serving the public, broadcasters enjoy a variety of government-ensured benefits. Among them:

• Free, exclusive use of a valuable but scarce public spectrum—including many billions of dollars worth of temporary additional spectrum to convert to digital;
• Legal protection against anyone else who seeks to compete in their market or broadcast over their licensed frequencies;
• Federal preemption of local zoning and environmental regulations in order to make sure stations' transmission towers can be erected and send signals to viewers; and
• Guaranteed carriage of programming on local cable systems for free, or in exchange for payment from the cable company -- a benefit for which non-broadcast networks actually pay the cable companies millions.

As my former colleague on President Clinton's Advisory Committee on the Public Interest Obligations of Digital Television Broadcasters and long-time commercial broadcaster James "Jim" F. Goodmon, President and CEO of Capitol Broadcasting, puts it: "The broadcast company is fulfilling a contract between itself as the user of a public asset and the public body that owns the asset. As with all contracts, both parties to the agreement need to know exactly the responsibilities that they have to each other. With minimum standards spelled out, there is no question. As a broadcaster, I would like to know what is expected of me in serving the public interest. Required minimum standards and a voluntary code provide the benefit of certainty to broadcasters. I like to know what the rules are."

In short, broadcasters have an obligation to serve the public's interests, not just their own commercial interests. This compact between broadcaster and community has been beneficial to both: America's broadcasting system is the best in the world because of -- not in spite of -- public interest obligations.

One former FCC chairman once (in)famously refered to television as any other household appliance, a "toaster with pictures." If broadcasting is continually seen as just a business, like the toaster business, a short-sighted focus on narrow, profitable market segments may prevail. The result will be less and less programming that benefits the broadest segments of society. And TV could soon be seen as just a big box filled with yesterday's technology.

When broadcasters embrace their roles as journalists and protectors and proponents of the public interest, we benefit far beyond what TV stations can recover in advertising: People are engaged as citizens; government power is checked; waste and fraud are exposed; and we can value our televisions as much as broadcasters value our well-being.

Without public-interest obligations, our country's most time-honored broadcast values of competition, diversity, localism and democracy might all be toast.