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Pay to Play:
The Public Interest Obligations of Digital Television Broadcasters By B. R. Forbes President, Access Enterprises Digital Television and the Public Spectrum:
The Public Interest Advisory Committee on the Public Interest Obligations of Digital Broadcasters (the Committee) has been exploring many options. Even if the Committee reached a consensus -- which it apparently has not -- its conclusions have no legislative or regulatory validity. At the direction of Congress, the Federal Communications Commissions (FCC), will still proceed with the formal process of "Notice of Inquiry" (NOI) and "Notice of Proposed Rule-Making" (NPRM) to develop the regulations regarding the public interest obligations of digital broadcasters. Undoubtedly, the FCC filings will be dominated by large media corporations and industry trade associations. These are the groups that will be most financially affected by the rule-making - and can afford to spend huge sums of money on lawyers and legal staff to prepare filings. As with previous rule-makings, the "public interest" will be represented by a few public interest law firms and "think tanks," working on behalf of membership organizations and associations. However, in order to have any chance of matching the power of the commercial media, the public interest filings must have the strong involvement and support of national and grassroots constituencies. In order to engage the public in an effective way, any recommendations should (1 ) involve the national and grassroots constituencies in the development; (2) be easily understood and communicated; and (3) offer direct, tangible benefits to the constituencies. Unfortunately, most of the recommendations explored by the Committee (as presented in the meeting packet) do not meet these criteria. In addition, most of the current recommendations seem to based on an "inside-the-beltway" perspective that assumes that (1) the "public trustee" broadcaster model is still valid; (2) commercial media outlets and national institutions are able to determine and represent the "public interest," (3) the federal government can and should determine the content of programming; and (4) high-power commercial TV broadcasters have the right of first refusal on public spectrum set-aside for digital broadcasting. B. Observations on the Current Recommendations 1. Multiplexing At the direction of Congress, the FCC has granted an additional electromagnetic spectrum to a select group of high-power broadcasters in order to develop the new technology of high-definition television. Therefore, any discussion of "multiplexing," or using the spectrum for any other purpose, is moot. If a broadcaster determines that it cannot raise the funds or cover the costs of the equipment and production capacity needed, then its grant of 6 megahertz of spectrum should be forfeit. Allowing this elite group of broadcasters free spectrum to develop ancillary commercial services is a form of selective corporate welfare. If current or potential broadcasters wish to u'se this spectrum allotment, then a fair market lease price should be set. Complex rules and timelines regarding multiplexing obscures the major intent of moving to free, over the air digital television broadcasting. 2. Education In typical "inside-the-beltway" thinking, the Committee has equated educational programming with public broadcasting. In discussing educational programming, the Committee believes that "public broadcasting will need the funding necessary to produce quality digital programming and to promote it so that viewers know what is available to them." No mention is made of increasing production and promotion funding to the many other producers, including community colleges, libraries, high schools, and other local institutions that currently produce effective educational programming for institutional networks and educational access channels on cable television. Ironically, the Committee proposes giving the right of first refusal of a proposed "educational channel" to the 300-plus member stations of the Public Broadcasting Service - of which a small percentage provide any local production outside of on-air fundraising. This recommendation seems to assume that rebroadcasts of nationally produced programming serves the public interest more than locally-based programming. 3. Voluntary Standards of Conduct The discussion of this government-appointed committee about creating a "voluntary standard of conduct" for the broadcast industry is self-contradictory and ominous. The federal government and its advisory committees should stick to the laws and regulations within its purview. Even if the broadcast industry - on its own – develops such standards, they should have no bearing on the regulations that govern the industry. "Self-regulation" by any industry is no guarantee that conduct will be monitored or sanctions levied. 4. Minimum Public Interest Requirements With today's diversity of media and technology, the model of the broadcaster as a "public trustee" is dead. The primary public interest obligation of the commercial broadcasters is to be profitable. The profitable company provides a needed service or product to consumers, generates revenues for its owners or stockholders, creates jobs within its communities, and pays taxes to support public services. When competition thrives in the commercial marketplace, the private sector is far more efficient in providing services at a lower cost and with greater choice than any government agency. The idea that a profit-driven corporation can best determine and represent the "public interest" is presumptuous and patronizing. The "public interest" is far better expressed by the public itself rather than a professional broadcast manager, assignment editor, or stand-up reporter. No matter what "public interest" or public affairs" programming is required, the broadcaster will always use its own judgment in interpreting information gathered, acting as gatekeeper for the voices heard, and packaging the final product so as not to affect its primary obligation of making a profit. 5. Disclosure of Public Interest Activities by Broadcasters As noted above, the commercial broadcasting industry cannot represent the "public interest" and so discussion of disclosing "public interest" activities is moot. However, the broadcasters themselves should team that undertaking and promoting some charitable activities benefits their constituents - and the company's own bottom-line. 6. Political Discourse The perceived problem of political discourse in America has nothing to do with the transition of television signals from analog to digital. This is a red herring that serves only to confuse the core issues. In addition, the models proposed to date seem to primarily benefit the two major political parties and their top candidates, rather than to parties and individuals with fewer funds and less access. If democratic discourse is desired, then all Americans should be offered basic access to the media -and not just elite candidates anointed by the parties in power. Once again, the proposed rules and regulations are complex and tend to obscure the basic issues. 7. Disaster Warnings in the Digital Age Federal, state, and local governments should always have direct access to the public airways and rights-of-way in order to maintain public safety. Therefore, these recommendations are appropriate. 8. Disability Access to Digital Programming "Electronic curb cuts" benefit all Americans and is the one area where regulation is appropriate and necessary. All broadcast programs should be enhanced with descriptive video services and captioning. Funding should be provided through the leasing of public spectrum. A producer may either (1) apply for public funding and forego the copyright of the materials produced (which may be marketed separately to generate additional funds) or (2) cover the costs of this assistive technology in order to retain the full copyright. 9. A New Approach to Public Interest Obligations As the Committee recommendations indicate, "...many members of the Advisory Committee believe that the White House, the Congress and the FCC should consider developing a whole new model of public interest obligations." However, the recommendations offered by the Committee seem only to elaborate on current models or build upon the "pay or play" model suggested by former FCC general counsel Henry Geller several years ago. The recommendations notes that many members object to the "pay or play" approach because it "would damage or destroy the ethos of public trusteeship on which broadcasting has been built." However, the Committee did not seem to consider that this notion of broadcaster as "public trustee" is technologically out-dated, inherently contradictory, enormously patronizing, and dangerous to a democratic "marketplace of ideas." C. Specific Recommendations for "Public Interest Obligations" 1. Underlying Model: From "Public Trustee" to "Tenant" The notion of broadcasters as "public trustees" grew out of an era of perceived scarcity of spectrum, "full-service" program line-ups, and a naive belief that large institutions could be trusted to represent diverse cultures and viewpoints. This is no longer the case. Digital broadcasting can now squeeze more programming and data services out the public spectrum. This will accelerate the move to diverse and specialized content services, similar to the magazine industry. The most disturbing trend in the modern media era is that broadcasting operations, which have distinct local geographic service areas, are being purchased and managed by huge communications conglomerates. These media giants are headquartered far from their service areas and are predominantly controlled by straight, white, affluent men. In the past, these owners/managers may have lived in their companies' broadcast service areas and felt compelled to provide "public service" to their own communities. But this is increasingly rare. In addition, America's sad history of its treatment of communities of minority cultures and "unpopular" beliefs provides a compelling reason to allow the public to speak for itself rather than be patronized and misrepresented by mass media. Therefore, any new approach to the "public interest obligations" of communications entities must be based on different assumptions. Access Enterprises proposes that broadcasters be considered tenants of the public airwaves. In the past decades, the industry has "lived at home." While room and board has been free, the parent government has required the equivalent of curfews and minor housework. Since broadcasting has "grown up," it's time for the industry to leave the nest and pay for its own way. While renting would be more expensive, the industry would be free to set its own hours and determine its own furnishings. As a good parent might, the government should provide "low income" housing - but again would not interfere with the lives of the tenants. 2. Fees and Access in Exchange for Use of Public Assets American citizens own the spectrum and public rights-of-way that the overwhelming majority of telecommunications companies require to provide their services. They should demand fair market compensation for the use of this property - and access — to these "information roadways." Rental agreements should be open to bidding, limited to ten years or less, and not be automatically renewed. Governments at the local, state and federal levels only manage these public assets and must get the best price for their use. Rental fees and access are the only reasonable conditions that governments may charge companies and individuals. Requiring complex "public interest" requirements and other forced behaviors is intrusive and ultimately non-productive. 3. Establishment of Telecommunications Universal Service Funds (TUSF) The rental fees received for the use of public spectrum and rights-of-way at the municipal, state, and federal levels should be restricted to universal service funds to provide telecommunications services. The federal TUSF will consist of rental fees for all American terrestrial and satellite broadcast spectrum, federal highway right-of-ways, inter-state telecommunication access charges, additional funds appropriated by Congress (such as those funds currently allocated for public broadcasting) and other revenue. The state TUSF will consist of intra-state telecommunications revenues, public utility rights-of-way for wire-line services, and other similar charges. The local and municipal TUSF shall consist of cable television franchise fees, broadcast and microwave tower sitings, and other appropriate fees. 4. Support of Public Telecommunications Centers Just as the current universal service funds are used to provide minimal two-way telephone service, the TUSF at each level will help provide minimal two-way telecommunications services. Much like using a public telephone booth or post office, every American citizen should be able to create content and tap the telecommunications systems that depend on using public spectrum and rights-of-way. While many citizens can afford computer and telecommunications equipment and services in their homes, the TUSF will help establish and maintain Public Telecommunication Centers (PTCs) which allow all citizens on a first-come, first-served basis to create and distribute audio, video, e-mail, and web content for little or no cost. TUSF funds would create PTCs where none exist and would provide a steady stream of financial support for organizations that currently provide true public access, such as libraries, community technology centers, community broadcasting radio stations, low-power television stations, and public, educational, and government (PEG) access providers on cable television. Funds would not be used for subsidizing content but for providing training, equipment, and access to telecommunications networks. 5. Public Interest Regulatory Relief for Media and Telecommunications Companies Renting public spectrum or rights-of-way is a far simpler way of doing business than attempting to fulfill regulated public interest obligations. Even an apparently simple obligation, such as airing three hours of children's programming per week, is open to interpretation — such as what constitutes children's programming. Difference of opinions may involve lengthy litigation and may ultimately not achieve the intended goals of serving the public interest. Rather than serving the public, more regulations serve corporate and government lawyers by providing increased job security. The better solution is to provide funds and access for organizations committed to producing and distributing children's programming. Rental payments for spectrum and rights-of-way will also assist potential media buyers or investors to more clearly determine the value of a media company. Fund balance liabilities for current and future rent of public assets can be clearly calculated and reported - while costs of fulfilling public interest obligations cannot. 6. Responsibility for "Public Interest" Content rests with Citizens and the Third Sector Requiring for-profit media and telecommunications companies to create "public interest" content will result in profit-driven programming parading as public interest. The range of local news coverage or diversity of voices presented will always be restricted by the media company's need to attract viewers and advertisers. Therefore, citizens and the Third Sector groups that represent them must take personal responsibility for creating content in their own interests. The role of the government is to provide a minimal level of resources, training, equipment and access for every political candidate, cultural group, and point of view. 7. New Model of Public Compensation Phased in Over Ten Years The new model of public compensation for spectrum and rights-of-way should be phased in over the next ten years. The model should be applied immediately to new platforms such as digital television and the new satellite spectrum allocations. The reorganized and re-authorized FCC should establish a workplan and timeline to phase in the model to apply to other platforms over the next ten years in order to allow telecommunications companies to adjust and plan for the changes. D. Biography of the Author B. R. Forbes, President, Access Enterprises Barry is one of the nation's few experts on access media who has served for over twenty years at the local and national levels in the media of public service radio, television, cable, and internet access. Not an academic or lawyer, Mr. Forbes' hands-on experience has been recognized through the national telecommunications trade media, in speeches across the country, and on the PBS series Freedom Speaks. Mr. Forbes' published articles include topics such as fundraising, direct marketing, the state of PEG access, and the future of access media. A graduate of Colgate University, B. R. Forbes is now president of Access Enterprises, which provides public policy and website development services. His clients have included the Civil Rights Forum on Communications Policy, for which he has served as Director of Community Programs, project manager for the "Managing Information with Rural America" project (funded by the W.K. Kellogg Foundation), and website developer; the Center for Media Education, for which he has developed a white paper on cable television franchises in the digital age; and New Target, an Internet design and development company. For three and a half years, Mr. Forbes served as the Executive Director of the Alliance for Community Media, a national association for public, educational, and governmental (PEG) access cable television organizations and individuals. He has served as General Manager of the Pacifica Radio station KPFT-FM in Houston, Texas, and director of the Pacifica Interconnection Project for the Pacifica Radio Network. Mr. Forbes has also worked at The Development Exchange where he served as a fund raising and management consultant for over 150 public radio stations. Before this, he was a professional fundraiser for public broadcasting stations WGBH TV and Radio in Boston, WMFE TV and Radio in Orlando, and WAMU-FM in Washington DC. Mr. Forbes has been recognized as a "certified fund raising executive" by the National Society of Fund Raising Executives (NSFRE) and was elected to the Board of Directors of the National Federation of Community Broadcasters. Mr. Forbes has reviewed grants for the Station Development Fund of the Corporation of Public Broadcasting for three years; served as a judge for the 1995 National Information Infrastructure Awards (now the GII Awards); and for five years, has reviewed grants for the Telecommunications Information Infrastructure Assistance Program (TIIAP) of the U.S. Department of Commerce's National Telecommunications Information Administration. Mr. Forbes has served as the Lee District finance chair for the Fairfax County Democratic Committee; produced and hosted the award-winning weekly access TV show Gay Fairfax; and was an elected Board member of the Fairfax Cable Access Corporation, Virginia. |
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