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DOCUMENT RESUME ED 428 768 IR 057 309 AUTHOR Firestone, Charles M., Ed.; Garmer, Amy Korzick, Ed. TITLE Digital Broadcasting and the Public Interest. Reports and Papers of the Aspen Institute Communications and Society Program. INSTITUTION Aspen Inst., Washington, DC. ISBN ISBN-0-89843-252-9 PUB DATE 1998-00-00 NOTE 378p. AVAILABLE FROM Aspen Institute, Publications Office, 109 Houghton Lab Lane, P.O. Box 222, Queenstown, MD 21658; Tel: 410-820-5338; Fax: 410-827-9174; e-mail: [email protected]; Web site: www.aspeninst.org ($15) PUB TYPE Books (010) Reports Evaluative (142) EDRS PRICE MF01/PC16 Plus Postage. DESCRIPTORS *Broadcast Industry; Communications; Economic Factors; Federal Government; *Federal Regulation; Government Role; Laws; Legislation; Mass Media; Models; Policy Formation; Politics; *Programming (Broadcast) ;Public Agencies; Public Policy; State Government; *State Regulation IDENTIFIERS Digital Communications; *Public Interest; Regulatory Agencies; *Regulatory Programs ABSTRACT This publication is the result of a series of meetings convened to explore options for broadcast regulation in the digital era. The report offers a crucial context for these issues and aims to contribute to a greater understanding of the legal, constitutional, economic, political, and other issues surrounding the debate. The first section deals with law and policy and contains the following reports and papers: "Toward a New Approach to Public Interest Regulation of Digital Broadcasting" (Angela Campbell); "Public Interest Obligations of Broadcasters in the Digital Era: Law and Policy" (Henry Geller); "Government-Created Scarcity: Thinking about Broadcast Regulation and the First Amendment" (Tracy Westen); "Self-Regulation and the Public Interest" (Robert Corn-Revere); "On Hooks and Ladders" (Monroe E. Price); and "'Red Lion' and the Constitutionality of Regulation: A Conversation among the Justices" (Monroe E. Price). The second section covers economics and implementation: "Achieving the Public Interest in an Era of Abundance" (Forrest P. Chisman); "Broadcasting Policy in the Digital Age" (Andrew Graham); "A Structure and Efficiency Approach to Reforming Access and Content Policy" (Steven S. Wildman and D. Karen Frazer); "Implementation of 'Pay' Models and the Existing Public Trustee Model in the Digital Broadcast Era" (Henry Geller); and "Casting a Broader Net: The Obligations of 'Digital Broadcasters' in a Changing Media Environment" (Andrew L. Shapiro) .The last section focuses on political broadcasting: "Enhancing Political Discourse: Proposals for Political Programming in the Digital Era" (Anthony Corrado); "The Public Interest and Digital Broadcasting: Options for Political Programming" (Anthony Corrado); and "A Proposal: Media Access for All Candidates and Ballot Measures" (Tracy Westen). A list of participants is appended.(DLS) Digital Broadcasting and the Public inter Reports and Papers of the Aspen Institute Communications and Society Program Charles M. Firestone and Amy Korzick Garmer, Editors U.S. DEPARTMENT OF EDUCATION Office of Educational Research and Improvement EDUCATIONAL RESOURCES INFORMATION CENTER (ERIC) O This document has been reproduced as received from the person or organization originating it. O Minor changes have been made to improve reproduction quality. Points of view or opinions staled in this document do not necessarily represent official OERI position or policy. K4A11111L- BEST COPYARABLE "PERMISSION TO REPRODUCE THIS I MATERIAL HAS BEEN GRANTED BY S. Ralston The 0Aspen Institute e Markle Foundati 0 TO THE EDUCATIONAL RESOURCES INFORMATION OENTER (ERIC)." Digital Broadcasting and the Public Interest Reports and Papers of The Aspen Institute Communications and Society Program Charles M. Firestone and Amy Korzick Garmer Editon The Aspet0 Institute Communications and Society Program Charles M. Firestone Executive Director Washington, DC 1998 To purchase additional copies of this report, please contact: The Aspen Institute Publications Office 109 Houghton Lab Lane P.O. Box 222 Queenstown, MD 21658 Phone: (410) 820-5338 Fax: (410) 827-9174 E-mail: publications@aspeninstorg For all other inquiries, please contact: The Aspen Institute Communications and Society Program Suite 1070 1333 New Hampshire Avenue, NW Washington, DC 20036 Phone: (202) 736-5818 Fax: (202) 467-0790 Copyright 0 1998 by The Aspen Institute The Aspen Institute Communications and Society Program Suite 1070 1333 New Hampshire Avenue, NW Washington, DC 20036 Published in the United States of America in 1998 by The Aspen Institute All rights reserved ISBN: 0-89843-252-9 98-032 4 Contents Foreword Charles M. Firestone and Amy Korzick Garmer vii PART I: LAW AND POLICY Toward a New Approach to Public Interest Regulation of Digital Broadcasting Angela Campbell 3 Public Interest Obligations of Broadcasters in the Digital Era: Law and Policy Henry Geller 37 Government-Created Scarcity:Thinking About Broadcast Regulation and the First Amendment Tracy Westen 47 Self-Regulation and the Public Interest Robert Corn-Revere 63 On Hooks and Ladders Monroe E. Price 81 Red Lion and the Constitutionality of Regulation:A Conversation Among the Justices Monroe E. Price 89 Hi iV DIGITAL BROADCASTING AND ME PUBLIC INTEREST PART II: ECONOMICS AND IMPLEMENTATION Achieving the Public Interest in an Era of Abundance Forrest P. Chisman 121 Broadcasting Policy in the Digital Age Andrew Graham 151 A Structure and Efficiency Approach to Reforming Access and Content Policy Steven S. Wildman and D. Karen Frazer 193 Implementation of "Pay" Models and the Existing Public Trustee Model in the Digital Broadcast Era Henry Geller 227 Casting a Broader Net:The Obligations of "Digital Broadcasters" in a Changing Media Environment Andrew L. Shapiro 247 PART III: POLITICAL BROADCASTING Enhancing Political Discourse: Proposals for Political Programming in the Digital Era Anthony Corrado 259 The Public Interest and Digital Broadcasting: Options for Political Programming Anthony Corrado 293 A Proposal: Media Access for All Candidates and Ballot Measures Tracy Westen 335 Table of Contents v APPENDIX Aspen Institute Working Group on Digital Broadcasting and the Public Interest: Lists of Participants at the January, March, and June Meetings 355 About the Authors 363 About the Communications and Society Program 369 NI ( Foreword Charles M. Firestone Executive Director Communications and Society Program The Aspen Institute Amy Korzick Garmer Associate Director Communications and Society Program The Aspen Institute A digital revolution is coming to television. By converting from analog to digital transmission of audio-visual signals, television broadcasters ("telecasters") are transforming the living room; dig- ital television can deliver high-definition pictures and CD-quality audio to create a true home theater. Telecasters will soon be able to "multiplex," that is, transmit several digital channels over the same portion of the electromagnetic spectrum that they currently use for a single analog channel, potentially creating a kind of free wireless cable television system. They will also be able to target specific messages to different individual receivers, and send audio, video, and text simultaneously. Most importantly, digital broadcasters may eventually enable interactive communication with the audience over the air waves. Quite simply, the move to digital broadcasting will likely change the very nature of the most powerful and important medium of mass communication in the world. Television, of course, is not just a medium of entertainment, or of news, or of casual interest. Over 98 percent of Americans have televisions in their homesmore than have indoor plumbing or tele- phones. In fact, one is hard-pressed to think of any common experience that binds Americans together more than television, with its pervasive reach into both the American home and its psyche. vii Viii DIGITAL BROADCASTING AND THE PUBLIC INTEREST FEDERAL REGULATION OF BROADCASTING While the United States is a nation of receivers, it has only a limited number of telecasters. This is due both to the physical properties of the electromagnetic spectrum and the legal limits of the U.S. television licensing scheme. Physically, two broadcasters cannot transmit on the same frequency at the same time in the same location. Legally, Congress made an early decision to license only one broadcasting entity for each frequency per location; and it authorizeditsquasi-legislativeagency,theFederal Communications Commission (FCC), to assign a limited number of frequencies for television broadcasting purposes. Broadcasting in the "Public Interest" Since the Radio Act of1927,and its successor Communications Act of1934, U.S.broadcasters have been subject to federal licens- ing and regulation according to the touchstone of "the public interest, convenience, and necessity." While this congressional standard may sound simple and direct, its vagueness and author- ity have generated volumes of federal regulations, court cases, scholarly commentary, political speeches, and citizen action. At one time the Supreme Court found the phrase to be a "supple instrument" for dynamic regulation of the air waves. More recent- ly, however, some scholars have suggested that the phrase is unconstitutionally vague, which would preclude governmental regulation of this medium of speech under the First Amendment. More recent Court decisions have held that the "public interest" standard can not be used as a basis to regulate newspapers, and it has also
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