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Free TV Speech for Candidates

We own the airwaves. We, the public. Not GE, not Disney, not Westinghouse, and not Rupert Murdoch. But we lend them our airwaves for free, as trustees, in return for a pledge to serve the public interest.

Published: June 8, 1998

The Nation
June 8, 1998

Free TV Speech for Candid­ates
By E. Joshua Rosen­kranz

We own the airwaves. We, the public. Not GE, not Disney, not West­ing­house, and not Rupert Murdoch. But we lend them our airwaves for free, as trust­ees, in return for a pledge to serve the public interest. That’s a good place to start when eval­u­at­ing the broad­cast industry’s cri du coeur against propos­als to require them to reserve a tiny sliver of air time for polit­ical candid­ates.

Led by lobby­ing Goliath the National Asso­ci­ation of Broad­casters, the industry has blocked the notion at every pass, often wield­ing specious argu­ments that free TV propos­als are uncon­sti­tu­tional. Broad­casters forced the prime movers of campaign finance reform in the Senate, Senat­ors John McCain and Russell Fein­gold, to strip their bill of its modest free TV require­ment. They flexed their muscles again a few weeks ago when, for the first time, a newly recon­sti­t­uted F.C.C. seemed poised to do what Congress would not. The broad­casters’ Senate allies forced FCC chair William Kennard to back away from the proposal, at least tempor­ar­ily, by threat­en­ing to pass an appro­pri­ations rider prohib­it­ing the F.C.C. from adopt­ing a free TV rule. Congress is moved, at least in part, by millions in broad­cast-related campaign contri­bu­tions—$7.6 million in the last elec­tion cycle alone, accord­ing to the Center for Public Integ­rity—an ironic twist, since much of the money is recycled back to the broad­casters to pay for TV ads.

Gauging from the vigor of the broad­casters’ response, you’d think free TV propos­als would spell certain doom for the industry. To the contrary, the propos­als that are gain­ing currency are quite modest. Perhaps the most popu­lar would require every broad­caster to put aside only two hours of prime time a year into a “time bank” for polit­ical candid­ates. That’s a razor-thin two-hundredths of one percent of a broad­caster’s air time. Qual­i­fied candid­ates and polit­ical parties would then redeem some prescribed alloc­a­tion of the time, in segments of a minute or more, with vouch­ers furnished by the govern­ment.

Let’s put this proposal in perspect­ive. Broad­casters make a pretty penny from our gift of free spec­trum. They rake in over $36 billion in reven­ues a year. Polit­ical advert­ising accounts for about 1 percent of the revenue of local stations, but in the last elec­tion year, it was still a hefty $400 million, more than a threefold increase since 1972, in constant dollars. So when we hear news­casters and pundits rail­ing about the skyrock­et­ing costs of campaigns, let’s not forget whose pock­ets the money is lining.

The broad­casters breath­lessly invoke their public interest oblig­a­tions whenever conver­sa­tion turns to steps that would line their pock­ets even more. Their trustee status was front and center when they insisted that the govern­ment waive charges for the precious digital spec­trum—or, as former F.C.C. chair Reed Hundt called it, “the beach­front prop­erty of the cyber sea”—as part of the Tele­com­mu­nic­a­tions Act of 1996. Sure, they said, other bidders, like wire­less phone or beeper services should pay—to the tune of $20 billion since 1993 when Congress first author­ized the auction­ing of non-broad­cast spec­trum—but not us. We serve the public interest.

So it was that the power­ful broad­cast lobby convinced Congress to give 1,500 TV stations an estim­ated $70 billion in digital spec­trum owned by the public. Not reduced rate. Free. The broad­cast industry “is managing to steal a Fort Knox worth of spec­trum,” chided Adam Thierer of the Herit­age Found­a­tion. A “rip-off on a scale vaster than dreamed of by yesteryear’s robber barons,” cried William Safire.

Seventy billion dollars ought to buy a lot of public interest. But no. When faced with the legis­lat­ive proposal to provide free airtime to polit­ical candid­ates, the broad­casters came down with a bout of public interest amne­sia. To force them to give up even a minute of tele­vi­sion time is uncon­sti­tu­tional, claimed the broad­casters. Why? It’s a “taking without just compens­a­tion.” That’s right, we’re steal­ing from them!

As consti­tu­tional argu­ments go, this one’s a no brainer. The govern­ment can’t be accused of “taking” what it already owns. The takings clause of the Fifth Amend­ment prohib­its the govern­ment from build­ing a high­way through your house without compens­at­ing you. But if you’re living rent free on a govern­ment estate, you can’t complain when the govern­ment reserves a walk­way for public use. Espe­cially, when you agree up front as a condi­tion of occu­pancy to accede to the govern­ment’s broad author­ity to define public uses.

Equally specious is the broad­casters’ claim that a free TV require­ment would viol­ate their First Amend­ment rights by forcing them to “speak”—i.e., to broad­cast other people’s polit­ical ads—a­gainst their will. True, the First Amend­ment prohib­its compelled speech just as it prohib­its censor­ship. That means, for example, the govern­ment cannot pre-empt Frasier to air govern­ment propa­ganda. Laws cannot inter­fere with a broad­caster’s edit­or­ial judg­ments. But a broad­caster’s choice to air one commer­cial rather than another is not an edit­or­ial judg­ment. It’s a pure busi­ness decision. That’s why we call them commer­cials. And the First Amend­ment does not protect a broad­caster’s right to extract the largest possible profit from every commer­cial spot. Other­wise, the Supreme Court would have struck the rules that currently govern polit­ical advert­ise­ments, such as the “lowest unit rate” rules (a some­what elusive cap on the price a broad­caster can charge a polit­ical candid­ate) and the “reas­on­able access rules” (limit­ing a broad­caster’s abil­ity to turn away polit­ical ads).

Put another way, the First Amend­ment applies differ­ently to the same broad­caster depend­ing upon whether the broad­caster is acting as a speaker (as it is when it determ­ines what shows to air) or as a gate­keeper (as it is when it determ­ines which commer­cials to run). Broad­casters under­stand the distinc­tion well. They’re the ones who lobbied for the so-called “must carry” rules that require cable compan­ies—a­gainst their will—to carry the tele­vi­sion shows broad­cast over the air in the same area. And with the broad­casters cheer­ing loudly at the side­lines, the Supreme Court rejec­ted the cable oper­at­ors’ free speech objec­tions. If the govern­ment can say that cable compan­ies must carry the broad­casters’ shows, then certainly it can say that broad­casters must carry polit­ical advert­ise­ments.

In the end, all this talk about free speech and consti­tu­tional enti­tle­ment is a thin subter­fuge for protect­ing the bottom line. It won’t be long before the public will see through it, as it is begin­ning to see through the consti­tu­tional fig leaves donned by self-inter­ested politi­cians as an excuse for inac­tion in the face of the campaign finance scan­dals of 1996. The new villains of the next elec­tion cycle will be the broad­casters. They could do them­selves a great service by seiz­ing the oppor­tun­ity now to fash­ion a free TV solu­tion they can live with, for in time they will be stuck with rules that are far more oner­ous.

E. Joshua Rosen­kranz is Exec­ut­ive Director of the Bren­nan Center for Justice at New York Univer­sity School of Law.