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Toward a Broadband Public Interest Standard University of Miami Law School University of Miami School of Law Institutional Repository Articles Faculty and Deans 2009 Toward a Broadband Public Interest Standard Anthony E. Varona University of Miami School of Law Follow this and additional works at: https://repository.law.miami.edu/fac_articles Part of the Communications Law Commons, and the Law and Society Commons Recommended Citation Anthony E. Varona, Toward a Broadband Public Interest Standard, 61 Admin. L. Rev. 1 (2009). This Article is brought to you for free and open access by the Faculty and Deans at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in Articles by an authorized administrator of University of Miami School of Law Institutional Repository. For more information, please contact [email protected]. University of Miami Law School University of Miami School of Law Institutional Repository Articles Faculty and Deans 2009 Toward a Broadband Public Interest Standard Anthony E. Varona Follow this and additional works at: https://repository.law.miami.edu/fac_articles Part of the Communications Law Commons, and the Law and Society Commons ARTICLES TOWARD A BROADBAND PUBLIC INTEREST STANDARD ANTHONY E. VARONA* TABLE OF CONTENTS Introduction ............................................................................................. 3 1. The Broadcast Public Interest Standard ............................................ 11 A. Statutory and Regulatory Foundations ...................................... 11 B. Defining "Public Interest" in Broadcasting .......................... 12 1. 1930s Through 1960s-Proactive Regulation "to Promote and Realize the Vast Potentialities" of B roadcasting .................................................................. 14 a. Attempts at Specific Requirements: The "Blue Book" and the 1960 Programming Statement ........... 16 b. More Specification, the Fairness Doctrine, and Noncommercial Broadcasting ................................... 18 c. Red Lion BroadcastingCo. v. FCC: The Public's First Amendment Rights as Paramount ..................... 19 2. 1970s and 1980s-The Taming of Red Lion by the Invisible H and ................................................................ 20 * Associate Professor of Law and Director, S.J.D. Program, American University Washington College of Law. The author expresses his appreciation to Dean Claudio Grossman for his generous support and encouragement, and to Professors C. Edwin Baker, Jane Baron, Angela J. Davis, Ellen P. Goodman, David Hoffman, Mark C. Niles, Dawn C. Nunziato, David Post, Jamin Raskin, Catherine Sandoval, and Robert Tsai for invaluable feedback on earlier drafts of this Article. Thanks also to the participants of the Temple University School of Law Faculty Colloquium series and the Washington College of Law Junior Faculty Scholarship Workshop, who offered very helpful comments, to Dean Billie Jo Kaufman and the Pence Law Library faculty for expert research support, and to Andrew Paul Kawel, Andrew W. Guhr, and the staff of the Administrative Law Review for outstanding editing. Ty Bream, Carina Clark, Serwat Farooq, Nicholas Federico, Soo Jin Kim, Karolina Lyznik, Christopher MacFarlane, and Diana Santos provided excellent research assistance. ADMINISTRA TIVE LA W REVIEW [61:1 3. 1990s to Today: Continued Deregulation and a Modest Revival of Public Interest Regulation (Red Lion Roars A gain) ............................................................................. 2 1 a. The Broadcast Public Interest Standard Survives (Tattered, but Still Alive) ......................................... 23 C. Why Did the Broadcast Public Interest Standard Fall Short? .....26 II. The Internet as Marketplace of Ideas .......................................... 28 A. Autonomy and the Internet ................................................... 30 B. Speech and Democracy Online ............................................ 34 1. Online Citizen Activism ................................................... 39 a. The Democratization of Information and the Demise of Unidirectional Monoculture .................... 39 b. Direct Democracy 2.09 .................................................. 43 2. E Pluribus Pluribus-WhitherDeliberative Democracy O nline? ............................................................................ 46 a. A ccess ...................................................................... 46 i. A vailability .......................................................... 49 ii. C ost ..................................................................... 50 iii. Why Is Broadband Important? ................................ 51 C. Private Censorship ................................................................ 53 1. Censorship on Social Networking and News Media W ebsites ......................................................................... 54 2. Censorship in the Blogosphere ....................................... 56 3. Censorship by Broadband Providers ............................... 57 4. The New Scarcity: Scarce Audience, Abundant "Spectrum ". ................................................................... 58 5. Valuable Dissent Can Be Impolite ................................... 61 D. Online Exposure Diversity-The Diminishing Returns of D igital A utonom y ................................................................ 62 1. The Importance-and Scarcity-of Heterogeneous Exchange O nline ............................................................ 63 2. Beyond Gatekeepers, Beyond Fences-Finding Truth in the D ata Sm og ........................................................... 67 E. Localism and Community Building Online .......................... 72 1. Are Online Communities Undermining Local Communities on Terra Firma? .................... ................. 74 III. Operationalizing a Broadband Public Interest Standard .............. 77 A. Intensified Federal Efforts in Support of Broadband U niversality ......................................................................... 78 1. Assessing the Challenge ................................................ 78 a. Existing Federal Efforts to Proliferate Internet Access-Lack of Prioritization ................................. 80 b. Mixed Results in Educational Connectivity Initiatives-Many Children Left Behind and O ffl ine ...................................................................... 82 2009] TOWARD A BROADBAND PUBLIC INTEREST STANDARD c. What Else Is at Stake-Advantages of Household Internet Access Beyond Democratic Engagement ........ 84 2. Increasing Direct Federal Subsidies for Broadband D eploym ent ..................................................................... 87 3. Financial, Technical, and Legislative Support for Municipal Broadband and Public-Private Initiatives to Build Out Broadband ..................................................... 91 a. Cable Modem and DSL Duopoly ............................ 92 b. Municipal Broadband Networks as an Emerging (but Underfunded) Third Option .............................. 93 c. Cable and Telephone Company Efforts to Thwart Public N etw orks ....................................................... 96 4. Supporting Demand-Side Digital Literacy Programs ........ 100 5. More Federal Research Support, Better Data Collection, and Better Spectrum Management .................. 102 B. Content: Cultivating Digital Democracy ................................. 104 1. Building Online Town Squares-Support for Public Fora on Local and State Government Websites ................. 104 a. Causes of the Shortage of Public Deliberation Spaces O nline .............................................................. 106 b. Parameters for Online Public Fora .............................. 108 2. Linking Public Broadcasting with Public Broadband- A New Corporation for Public Broadband?...................... 110 3. N etw ork N eutrality ............................................................ 114 a. Net Neutrality and Democracy Online ........................ 118 IV. Old Wine in a New (Digital) Bottle? How a Broadband Public Interest Standard Would Be More Effective than Its Broadcast P rogen itor ....................................................................................... 12 1 A. Avoiding Content Regulation Quagmires ............................... 121 B. Subsidies as a Constitutional Alternative to Regulation .......... 124 C. Bridging Autonomy with Civic Republicanism ...................... 128 C on clu sion ................................................................................................. 133 INTRODUCTION The emergence of the Internet as a prominent communications medium was welcomed with excited declarations of the new technology's power to transform democracy and society. It was exalted as "the most transforming technological event since the capture of fire"' and "the most participatory form of mass speech yet developed.Q More recently, observers credited it with ushering in "the most profound change since the advent of literacy" 1. Forum, What Are We Doing Online?, HARPER'S MAG., Aug. 1995, at 35, 36 (quoting John Perry Barlow). 2. ACLU v. Reno, 929 F. Supp. 824, 883 (E.D. Pa. 1996). ADMNISTRA T1VE LA WREVIEW [61:1 and "a new renaissance." 3 Not since the dawn of broadcasting has a new technology generated such hopeful predictions. Radio was touted as a "new miracle," 4 and television was the "great radiance in the sky," 5 expected to catalyze political engagement and enrich American democracy if put to
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