The FCC’s War on Broadcasting


By: Guest Authors

By Mark Hyman

Since its founding, the U.S. has gone on the offensive to defend the nation, liberate allies, or to defeat a domestic scourge. Domestically, it launched wars on poverty, drugs, and illiteracy, just to name a few.

Yet for the first time, the federal government has launched a war against an entire — and completely legal — industry: broadcast television.

The Federal Communications Commission has made little effort to hide its goal of ending free television. The recent — and perhaps most brazen — act was the appointment by FCC Chairman Julius Genachowski of a Duke University Law Professor to serve as the commission’s architect to dismantle the nation’s 1,600 television stations. Sound like hyperbole? Consider the following.

Last month, Genachowski appointed Stuart Benjamin, who referred to broadcast television as “a powerful source of homogenization and pablum,” as a key advisor on spectrum policy and First Amendment matters. Last May, Duke University published a paper by Benjamin titled “Roasting the Pig to Burn Down the House: A Modest Proposal.” Benjamin recommends the FCC impose onerous “broadcast regulations that seem undesirable on their own terms but that may result in such harms to broadcasting that broadcasting leaves the [radio-TV] spectrum.”

Benjamin argues in favor of “new regulations on broadcasters that will make broadcasting unprofitable.” He suggests “some regulations will impose costs on broadcasters and not only have no benefits but also impose additional costs in their effects (e.g., make programming worse).” Benjamin favors regulatory measures that “will reduce the viewership of broadcasting and thus hasten the demise of broadcasting — what I [Benjamin] would regard as a win-win.”

Further, Benjamin notes that “every dollar of additional costs for broadcasters is one less dollar of profit, and thus reduces the attractiveness of over-the-air broadcasting as a business model.” He suggests “onerous record-keeping requirements, ascertainment requirements” and other regulations that have no public interest benefit and “will likely be pure cost.”

One source for levying expensive regulatory burdens could originate with the FCC’s 2008 Report on Localism, Benjamin suggests. As such, the FCC could rely on the efforts of Mark Lloyd, the agency’s diversity czar and former fellow at the left-wing Center for American Progress.

In 2006, Lloyd wrote “freedom of speech or the press… is all too often an exaggeration” and that “the purpose of free speech is warped to protect global corporations and block rules that would promote democratic governance.” Lloyd even applauded the seizure of independent media outlets by Venezuelan strongman Hugo Chavez.

Benjamin employs a straw man argument in his treatise that ridding the nation of broadcast television would free up the radio-TV spectrum for other uses resulting in “hundreds of billions of dollars” in auction proceeds for the government. However, reality contradicts Benjamin’s assertion. The recent auction of the much sought after 700 MHz band vacated by UHF TV stations during the just-completed transition to digital TV netted less than $20 billion. An entire block of spectrum estimated to fetch several billion dollars went unsold.

From an engineering perspective, there are more attractive portions of the spectrum that are better suited for use by cellular phone companies — for whom Benjamin implies he is shilling. In addition, the government controls large swaths of spectrum that lie fallow or are grossly underutilized. Large chunks of spectrum reserved for unlicensed devices dwarf the less than 300 MHz slice of spectrum used by all of the nation’s TV stations.

Even wireless companies have not fully utilized their existing spectrum. AT&T is operating the bulk of its cell phone service on outdated 2.5G technology and has yet to fully upgrade to yesterday’s 3G technology; yet, the carrier is demanding more spectrum to support its niche iPhone service (while simultaneously informing customers that there are indeed limits to its “unlimited” service).

This is what should most alarm the public. Moving broadcast television to subscription-only platforms such as cable and satellite or shutting down the service altogether eliminates a free, mass media First Amendment vehicle.

While local television is currently in the FCC’s crosshairs, broadcast radio is no doubt somewhere on the agenda. One only has to look to remarks from Administration officials, including those by the President himself, to conclude that talk radio is on the President’s “naughty and not nice” list.

Silencing dissent can be very attractive to those who wish to implement unpopular programs. How the FCC handles the Comcast-NBC Universal merger will be telling. Just hours after the merger was reached, Comcast Chairman Brian Roberts publicly announced his complete support of President Obama’s policies. NBC properties including MSNBC and NBC News were already firmly in the Obama camp.

Benjamin — perhaps inadvertently — discloses in his paper that local television news poses an obstacle to realizing his scheme. He notes “the easiest and most effective way for members of Congress to reach their constituents without having to pay for advertising is to appear at a community event that is covered by the local television station.” Benjamin is concerned local news coverage may lead Congress to resist his proposal and instead act to “protect broadcast television.”

One aspect of broadcast television Benjamin finds deeply objectionable is advertising. In a 2004 paper, he wrote “the advertising model appears to do a worse job of capturing, and therefore reflecting, the value of programming to viewers.” He argues only subscription television accurately reflects the public’s entertainment demands. Sadly, Benjamin conveniently ignores the fact that local broadcast stations account for half of all TV viewing even when engulfed in a sea of cable and satellite channels.

The FCC’s attempt to manipulate how the public receives its news and entertainment is already garnering some interest on Capitol Hill. Congressman Darrell Issa, the ranking member of the House Oversight and Government Reform Committee, has demanded the identities of the Commission’s 150-member National Broadband Task Force. According to Issa, as many as two-thirds of the task force members are “lobbyists and industry insiders” on loan from industries that have direct interests in the outcome of the task force recommendations.

Mark Hyman is a commentator for Sinclair Broadcast Group, Inc.

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