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," according to Erwin G. Krasnow, a veteran communications attorney and former general counsel and senior vice president of the NAB.
In a new "Speaking Freely" opinion paper released by The Thomas Jefferson Center for the Protection of Free Expression in Charlottesville, VA, and The Media Institute in Arlington, VA, Krasnow, the co-author of 15 books, said the public-ownership notion is the main reason for broadcasting's second-class status under the First Amendment. "It is time for the FCC to renounce this 'discredited concept,'" he said.
Krasnow also said it is time to bury the scarcity rationale, citing a 2006 FCC Media Bureau paper that found the rationale invalid "based on fundamental misunderstandings of physics and economics, efficient resource allocation and technology."
The combination of public ownership and scarcity has been the underlying reason for applying a public-interest standard to broadcast regulation. It's time to replace that content regulation with a public interest standard based on minimally regulated marketplace forces, Krasnow said.
"The radio frequency spectrum cannot be seen, touched or heard," Krasnow wrote. "It has existed longer than man, and like air, sunlight or wind, cannot be owned by anyone. Does a person who uses a windmill to grind grain or pump water owe the 'public' for the use of the wind? What about the sunlight used by those who grow wheat, corn or other crops? And what about the use of the 'public's air space' by aircraft? The list could go on and on, and in each case it can be said that someone is engaging in a business enterprise by using a 'public resource.'"
Krasnow called for the adoption of the approach advocated by former FCC Chairman Mark Fowler, a Republican who served during the Reagan administration, by applying a public interest standard based on minimally regulated marketplace forces rather than content regulation. "Fowler once said that whether you call the public-trusteeship model of regulating broadcasters 'paternalism' or 'nannyism,' it is 'Big Brother,' and it must cease. Amen." Krasnow said.
Krasnow's paper is titled "The First Amendment and the Fallacy of the Public's Airwaves." He is a partner in the law firm of Garvey Schubert Barer in Washington, DC, and former general counsel and senior vice president of the National Association of Broadcasters and the co-author of "The Politics of Broadcasting Regulation (3rd edition)."