A recurring challenge for Congress and the FCC has been how to reconcile the competitive commercial pressures of broadcasting with the needs of a democracy when the two seem to be in conflict. This struggle was at the heart of the controversy that led to enactment of the Radio Act of 1927 and the Communications Act of 1934.(1)

Under the antiquated Radio Act of 1912, the Secretary of Commerce and Labor was authorized to issue radio licenses to citizens on request.(2) Because broadcast spectrum was so plentiful relative to demand, it was not considered necessary to empower the Secretary to deny radio licenses. By the 1920s, however, unregulated broadcasting was causing a cacophony of signal interference, which Commerce Secretary Herbert Hoover was powerless to address. The lack of a legal framework for regulating broadcasting not only prevented reliable communication with mass audiences but also thwarted the commercial development of broadcasting.

Thus began an extended debate over how to allocate a limited number of broadcast frequencies in a responsible manner. A prime consideration was how to ensure the free speech rights of the diverse constituencies vying for licensure. Some groups -- especially politicians, educators, labor activists, and religious groups -- feared that, under a system of broadcast licensing, their free speech interests might be crowded out by inhospitable licensees, particularly commercial interests. They therefore sought (among other policy remedies) a regime of common carriage. A common carrier system would have ensured nondiscriminatory access by requiring broadcasters to allow anyone to buy airtime.

For their part, existing broadcasters sought to maintain editorial control and to develop the commercial potential of forging individual stations into national networks. They wanted Congress to grant them full free speech rights in the broadcast medium and did not want to be treated as common carriers.

This basic conflict was resolved provisionally with passage of the Radio Act of 1927, and 7 years later, by the Communications Act of 1934. The 1934 Act, which continues to be the charter for broadcast television, ratified a fundamental compromise by adopting two related provisions: a ban on “common carrier” regulation (sought by broadcasters) and a general requirement that broadcast licensees operate in the “public interest, convenience and necessity” (supported by Congress and various civic, educational, and religious groups).(3) The phrase was given no particular definition; some considered it necessary for the Federal Government’s licensing powers to be considered constitutional.(4)

By prohibiting a common carriage regime, Congress essentially prohibited non-licensees from having free speech rights in the broadcast medium except as authorized by “public interest” requirements. Only Government-sanctioned licensees would, as a rule, have free speech rights in broadcasting. Although the limited number of licensees was in one respect dictated by the physics of the electromagnetic spectrum (only so many stations could operate without chaos resulting), the “scarcity” was also dictated by the Government licensing scheme, which banned a regime of common carriage and made arbitrary divisions of spectrum space for particular reserved uses. The scarcity of access to the airwaves is, in this sense, a creature of Government licensure.

The Government’s exclusionary licensing arrangement was justified by requiring that broadcasters act as public fiduciaries. Their primary duty would be to serve the “public interest, convenience and necessity,” as expressed in both the 1927 and 1934 Acts.(5) Created by the 1927 Act, the Federal Radio Commission described the “public trustee” model in this manner:

[Despite the fact that] the conscience and judgment of a station’s management are necessarily personal....the station itself must be operated as if owned by the public....It is as if people of a community should own a station and turn it over to the best man in sight with this injunction: “Manage this station in our interest.” The standing of every station is determined by that conception.(6)

To give substance to the public interest standard, Congress has from time to time enacted its own requirements for what constitutes the public interest in broadcasting. But Congress also gave the FCC broad discretion to formulate and revise the meaning of broadcasters’ public interest obligations as circumstances changed.(7)

The FCC’s authority, while extensive, is constrained by traditional First Amendment principles. The Federal Government may not censor broadcasters, for example, nor may it regulate content except in the most general fashion, including favoring broad categories of programming such as public affairs and local programming.(8) The FCC can intervene to correct perceived inadequacies in overall industry performance, but it cannot trample on the broad editorial discretion of licensees.

As the foregoing history suggests, the fundamental legal framework that governs the broadcast industry sets it apart from other media. In broadcasting, the Federal Government grants exclusive free speech rights to licensees, while denying such freedom to others. To justify this privileged treatment, Congress and the courts have mandated that licensees serve as “public trustees” of the airwaves.

The public trustee model has given rise to a distinct genre of First Amendment jurisprudence. Unlike newspapers and magazines, broadcasters have affirmative statutory and regulatory obligations to serve the public in specific ways. Despite the philosophical complications and political tensions that this arrangement entails, the U.S. Supreme Court has repeatedly upheld the public trustee basis of broadcast regulation as constitutional.(9 ) The reason that broadcasters have substantial, but not complete, First Amendment protection, said the Court, is the scarcity of broadcasting frequencies and the Government licensing that is necessary:

When there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write or publish....A license permits broadcasting, but the licensee has no constitutional right to be the one who holds the license or to monopolize a radio frequency to the exclusion of his fellow citizens.(10)

Although many commentators have challenged the reasoning of the Red Lion case, it stands as the operative ruling in this area.(12) Much of the criticism focuses on how the “scarcity rationale” has been invalidated by the proliferation of new media outlets. Many broadcasters and others also argue that scarcity is a basic economic fact of life affecting all media, so why should it justify broadcast regulation?(13) Defenders of Red Lion assert that there are still more applicants for broadcast licenses than available licenses -- a basic definition of scarcity -- and that Government selection of one licensee over another justifies the continuing application of the public interest standard.

One vision, often associated with Justice Oliver Wendell Holmes, sees the First Amendment as a guarantor of the “free marketplace of ideas” against Government encroachment.(14) Under this familiar metaphor, a “free trade in ideas” in a pluralistic society will yield the most freedom, the closest approximations to truth, and the greatest common good.

An overlapping perspective with a different emphasis is associated with James Madison, the great champion of free speech during the framing of the Constitution and Bill of Rights. For Madison, the First Amendment was important as a way to ensure political equality, especially in the face of economic inequalities, and to foster free and open political deliberation.(15) This conception of the First Amendment sees free speech as servicing the civic needs of a democracy. Free speech, in Madison’s view, expresses the sovereignty of the people. Justice Louis Brandeis, also associated with this vision of the First Amendment, emphasized the vital role of citizens in coming together as political equals to engage in rational political discussion.(16) In Brandeis’s view, free speech is not just an end unto itself, or simply a freedom from Govern- ment meddling; it is also a necessary means for democratic self-governance.(17)

The philosophical distinction between the free marketplace of ideas metaphor and the Madisonian notion of a deliberative democracy is not academic. It lies at the heart of the public interest standard in broadcasting. From the beginning, broadcast regulation in the public interest has sought to meet certain basic needs of American politics and culture, over and above what the marketplace may or may not provide. It has sought to cultivate a more informed citizenry, greater democratic dialogue, diversity of expression, a more educated population, and more robust, culturally inclusive communities.

The Madisonian concept of free speech helps clarify, then, why public interest obligations have been seen as vital to broadcast television—and why a marketplace conception of free speech may meet many, but not all, needs of American democracy. As constitutional scholars have noted, the famous “marketplace of ideas” metaphor associated with Justice Holmes presumes that diverse ideas have the ability to compete for public acceptance.(18)

Some scholars say the marketplace metaphor obscures the extent to which political outcomes require active deliberation and debate.(19) This requires public fora that can give serious, sustained attention to different perspectives. These public fora must be open and accessible to divergent viewpoints, and they must be able to facilitate citizen participation in matters of democratic concern.(20) The marketplace may or may not serve these needs well. When Congress and the FCC have determined that public policy is needed to fulfill conditions that Madison saw as primary to the First Amendment, they have developed new applications of the public interest standard. Another view of the First Amendment, propounded by many broadcasters and others, is that the marketplace alone is the best guarantor of diversity of expression. According to this perspective, Government’s role is likely to be intrusive and inimical to diverse expression; only a robust, free marketplace can duly honor the free speech rights of speaker and listener. As one commentator from this perspective writes:

The question of whether or not an unregulated marketplace produces “enough” valuable speech, or conversely, “too much” worthless or harmful speech, assumes an ability to determine the optimal amount separate from the voluntary choices of speakers and listeners. It presumes that the “public interest” should outweigh traditional First Amendment concepts of speaker and listener autonomy.(21)

By this view, any Government policy that presumes to affect the content of broadcasting (such as limitations on advertising, guidelines for public affairs programming, or requirements for children’s educational programming) represents an abridgement of broadcasters’ First Amendment rights.

The philosophical disagreements between the marketplace and Madisonian interpretations of the First Amendment have ebbed and flowed over time. But in general, when Congress or the FCC have applied the public interest standard, they have cited the need to help American democracy function more effectively and to help civic culture thrive. While some applications of the public interest standard have been highly controversial, others have gained wider acceptance and proven quite durable.

The public interest standard has most often been applied to six major arenas: diversity of programming, political discourse, localism, children’s educational programming, access to persons with disabilities, and equal employment opportunity.

If broadcasters are meant to act as trustees for the public interest, then a corollary is that they must affirmatively present a wide diversity of perspectives. This is clearly a central role of the First Amendment and the reason why the Federal Government from the beginning of broadcasting has sought to encourage programming diversity.

The first major initiative in this regard was a set of guidelines known as Great Lakes Broadcasting Co., issued by the Federal Radio Commission (FRC) in 1929. To assess the performance of licensees under the public interest standard, the FRC declared that a station should meet the tastes, needs and desires of all substantial groups among the listening public...in some fair proportion, by a well-rounded program, in which entertainment, consisting of music of both classical and lighter grades, religion, education and instruction, important public events, discussions of public questions, weather, market reports, and news, and matters of interest to all members of the family, find a place.(22)

The FRC held that programming along these lines would be considered part of a station’s public interest obligation at the time of license renewal. Apart from pushing “propaganda stations” off the air, the FCC did not flex its muscle significantly to affect programming during the 1930s and 1940s.(23)

In 1943, the Supreme Court affirmed the FCC’s broad powers over the broadcasting industry in its landmark ruling, National Broadcasting Co. v. United States.(24) This decision held that the public interest standard is the touchstone of FCC authority; that the standard is not unconstitutionally vague; that the scarcity rationale justifies the public interest standard; and that FCC license revocations and nonrenewals do not violate the First Amendment rights of broadcasters.

Despite the FCC’s reticence toward content regulation in the 1930s, the changing economies of network radio and proliferation of entertainment programming prompted the Commission to issue another general policy statement about programming in 1946.(25) The Blue Book specified the means the FCC would employ to assess the public interest performance of licensees at renewal time. It required four basic components: live local programs, public affairs programming, limits on excessive advertising, and “sustaining” programs. (Sustaining programs were unsponsored network shows that were deliberately created to showcase high-quality programming having experimental formats or appealing to niche audiences.)

Although it had symbolic importance, the Blue Book had no legal force. The FCC never ratified or rejected Blue Book guidelines. Many considered the Commission’s goals in developing the guidelines laudable, even to public trustees of the airwaves, the idea of Government mandating specific programming was viewed as contrary to the First Amendment. Nonetheless, the National Association of Broadcasters, which had a voluntary code of programming standards, used this occasion to issue a new and stronger code in 1948.(26)

The challenge for the FCC, then and on other occasions since, has been to give substance to the broad public interest standard without becoming too prescriptive or intrusive. This task is inherently difficult because the first duty -- to ensure licensee compliance with public trustee responsibilities -- quickly threatens to run athwart the First Amendment. During the late 1950s, scandals involving rigged quiz shows and radio “payola” -- paying of bribes for radio airplay of certain songs -- shook public confidence in broadcasting.(27) The FCC decided that it was an appropriate moment to clarify the meaning of the public interest standard once again and to articulate guidelines for programming.

The result was 19 days of hearings and testimony from more than 90 witnesses, culminating in the FCC’s 1960 report, Report and Statement of Policy re: Commission en banc Programming Inquiry.(28) Widely known as the 1960 Programming Policy Statement, the report listed 14 “major elements usually necessary to the public interest”:(29)

1. Opportunity for local self-expression.
2. The development and use of local talent.
3. Programs for children.
4. Religious programs.
5. Educational programs.
6. Public affairs programs.
7. Editorialization by licensees.
8. Political broadcasts.
9. Agricultural programs.
10. News programs.
11. Weather and market services.
12. Sports programs.
13. Service to minority groups.
14. Entertainment programming.

The FCC noted that the categories were not intended as “a rigid mold or fixed formula for station operations,” but rather were “indicia of the types and areas of service which, on the basis of experience, have usually been accepted by broadcasters as more or less included in the practical definition of community needs and interests.”(30)

This general approach to defining the public interest standard prevailed for the next two decades. In the years following the 1960 Programming Policy Statement, the FCC adopted guidelines for minimum amounts of news, public affairs, and other non-entertainment programming,(31) and primetime access rules (to encourage non-network and local programming).(32) Without specifying actual program content, the FCC’s goal was to mandate certain market parameters as an indirect means of stimulating programming of civic importance.

During the 1980s, the FCC’s vision of the public interest standard -- and how to achieve diverse programming -- underwent a significant change. As new media industries arose and a new set of FCC Commissioners took office, the FCC made a major policy shift by adopting a marketplace approach to public interest goals.(33) In essence, the FCC held that competition would adequately serve public needs and that federally mandated obligations were both too vague to be enforced properly and too much of a threat to broadcasters’ First Amendment rights.(34) Many citizen groups argued that the new policy was tantamount to abandoning the public interest mandate entirely.

Pursuant to its marketplace approach, the FCC embarked on a sweeping program of deregulation, eliminating a number of long-standing rules designed to promote program diversity, localism, and compliance with public interest standards. These rules included requirements to maintain program logs, limit advertising time, air minimum amounts of public affairs programming, and formally ascertain community needs.(35) The license renewal process -- historically, the time at which a station’s public interest performance is formally evaluated -- was shortened and made virtually automatic through a so-called “postcard renewal” process.(36) The FCC also abolished most elements of the Fairness Doctrine, which had long functioned as the centerpiece of the public interest standard.(37)

In 1996, Congress expanded the deregulatory approach of the 1980s with its enactment of the Telecommunications Act.(38) Among other things, the Act extended the length of television broadcast licenses from 5 years to 8 years(39) and instituted new license renewal procedures that made it more difficult for competitors to compete for an existing broadcast license.(40) The Telecommunications Act also lifted limits on the number of stations that a single company could own, a rule that historically was intended to promote greater diversity in programming.(41)

The range of programming has expanded as the number of broadcasting stations and other media has proliferated over the past 20 years. Yet market forces have not necessarily generated the kinds of quality, noncommercial programming that Congress, the FCC, and others envisioned. Hence, Congress and the FCC have retained rules regarding children’s educational programming and candidate access, among other things.