Tilling the Vast Wasteland: The Case for Reviving Localism in Public Interest Obligations for Cable Television

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Through its passage of the Communications Act of 1934, (1) Congress established the Federal Communications Commission (FCC) and conferred upon it the authority to, among other things, issue broadcast licenses. In relevant part, section 309 of the Act requires the Commission to consider, in determining the eligible parties to whom licenses may be granted, whether "the public interest, convenience, and necessity will be served" by such grants. (2) The statutory language inscribed in section 309 has given rise to what have come to be commonly known as "public interest obligations," a bundle of community-minded conditions that represent a kind of "quid pro quo for the government's grant of spectrum use." (3) In practice, however, this intended regulatory bargain has turned out to be a raw deal for the viewing public: former FCC Chairman Newton Minow, in his inaugural address to the National Association of Broadcasters in 1961, drew popular attention to the dearth of television programming in service of the public interest, famously declaring that the medium had become a "vast wasteland" devoid of social import. (4)

Partially in reaction to this failure in broadcasting, Congress has over time reinterpreted the notion of public interest obligations and extended them to cable companies. (5) There is good reason for the cable industry to assume the role of steward of the public interest: since its modest origins in the 1940s, (6) cable has evolved to become a dominant force in the nationwide media market. Today, the media marketing and research company Nielsen estimates that more than sixty percent of American households receive television programming via wired cable and more than half of America receives television programming via digital cable. (7) Compare those viewership figures to that for broadcast television, which Nielsen projected would be the sole source of television programming for a mere ten percent of Americans by the end of 2012. (8) These facts suggest that cable, more than broadcast television, ought to be well positioned to make effective Congress's commitment to further the public interest. Unfortunately, however, like its broadcast analogue, the regulatory regime for cable has failed to meet these lofty expectations and is in danger of being abandoned altogether. (9)

While some have heralded the death of television as an all-but-certain (and otherwise favorable) reality, (10) the decline in public interest obligations creates cause for concern because the content that flows over the air and underground still touches the lives of all Americans in profound ways. Television today stands as the predominant national pastime, (11) ranking among the most influential and pervasive features of modern society. (12) Every day, over 280 million Americans spend an average of nearly five hours sitting in front of their television sets. (13) The vast majority of these individuals--regardless of whether they reside in large urban centers, small townships, or rural communities--rely on television as their primary source for local news and information. (14) Public interest obligations ensure that informative and educational programming remains on our screens and accessible to the general populace. Put simply, without these regulations, television serves no better purpose than "a toaster with pictures." (15)

Much headway could be made by returning to one of the core tenets that initially undergirded the public interest-standard rationale for cable--namely, the advancement of localism. (16) "Despite the omnipresence of electronic networks, people still live in geographically defined clusters typically characterized by relative physical proximity to one another," and it is often within these bounded limits that citizens interact not only with one another but also with the institutions that govern them. (17) In recent years, though, the desertion of localism as a guiding principle in cable regulation has threatened to undermine the sustained maintenance of our democratic system. Traditional, area-specific journalistic enterprises such as regional newspapers and local radio stations have seen sharp dips in readership and listenership, respectively, (18) spurring widespread closures that have left some communities without any serious outlet for local news. (19) A lack of information flow to and from local communities has the potential to discourage civic engagement, (20) promote political corruption, waste government resources, and produce a generally uninformed electorate. (21) A 2011 report on the state of the media, produced on behalf of the FCC by a bipartisan assembly of policymakers, journalists, communications scholars, and legal practitioners, put it this way: "We face not a broad crisis of 'the news' or 'content'--but something much more specific: a shortage of local, professional accountability reporting." (22) Ultimately, policies that hew to a clearer conception of the public interest, centered on the representation of local interests, would better satisfy the information needs of communities.

This Note proceeds in three parts. Part I provides an overview of the history behind public interest obligations in broadcasting and cable and contrasts the Commission's bases for, ends in, and means of regulating each industry. Part II reviews the issues plaguing the cable industry's existing public interest-obligation regime. Specifically, this Part examines the issues pertaining to set-aside cable capacity for public, educational, and governmental channels and to must-carry and retransmission-consent election rights for broadcasters. This Part also offers a series of normative legal and policy recommendations and engages with counterarguments hinged upon the practicality and political feasibility of these proposals' implementation. Part III briefly explains why, despite their presumed availability, alternatives such as satellite television and the internet cannot satisfy local interests to the same extent that cable can.

I. A HISTORY OF PUBLIC INTEREST OBLIGATIONS

Although broadcast and cable both nominally fall under the umbrella of "television," the bases, ends, and means of FCC regulation of each of these media differ quite markedly. The government's basis for regulation of broadcasting stemmed from concerns regarding spectrum scarcity, and the primary end the government sought to achieve was the balanced presentation of political views. The particular means chosen to attain this end--known colloquially as the fairness doctrine--constituted one of the broadcast industry's earliest and most notable content-based regulations. In a 1949 report on the practice of editorializing by broadcast licensees, the Commission formally set out broadcasters' role in advancing the public interest by imposing upon them a standard duty comprised of two essential elements: (1) "the making of reasonable provision for the discussion of controversial issues of public importance in the community served" and (2) the presentation of "different attitudes and viewpoints concerning these vital and often controversial issues." (23) When the fairness doctrine came under constitutional attack in 1969, the Supreme Court affirmed its validity, holding that government regulation of the broadcast industry was justifiable given the scarcity of broadcast spectrum and the nature of such spectrum as public property. (24) Over time, however, the FCC's steadfast adherence to the fairness doctrine waned, as journalists and other members of the public complained of the chilling effects that attended compulsory ideological equity (25) and as once-commonly accepted notions of informational paucity receded from the political discourse. (26) The fairness doctrine was formally abandoned in 1985, (27) and in 2011, the Commission excised from its records all remaining references to the term. (28)

The government rationale for the regulation of cable, conversely, is derived from cable operators' access to public rights-of-way for the laying of cable lines, which, if left unmediated, would give such operators an inordinate amount of control in shaping the very "content to which their viewers have access." (29) Employing different means from those used in broadcasting, the FCC has engaged in predominantly structural regulation vis-a-vis the cable industry, focusing on the end of furthering local interests by (1) directing cable companies to set aside a portion of their channel capacity for public, educational, and governmental (PEG) use and (2) allowing broadcasters to obtain cable carriage via must-carry and retransmission consent rules. (30)

Unlike broadcasters, which are awarded licenses pursuant to regulatory procedures defined and managed by the FCC directly, (31) cable companies typically must petition municipal boards, commissions, city councils, or other governmental organs (known collectively as local franchising authorities or "LFAs") to obtain franchises allowing them to provide cable service to a particular area or neighborhood. (32) These franchising authorities enjoy a fair degree of autonomy in establishing the criteria under which prospective franchisees may be evaluated, and since the 1960s, many of them have made the provision of PEG channels a binding term in their franchise agreements. (33) Agency support for modern-day PEG channels dates back to the late 1960s and early 1970s, when the FCC first prescribed that cable companies reserve a certain number of channels for public, educational, and governmental access and furnish the facilities and equipment necessary for would-be community enterprisers to produce local original content. (34) However, in its 1979 decision in FCC v. Midwest Video Corp., (35) the Supreme Court pushed back against the Commission and struck down these requirements, declaring that PEG regulations were outside the ambit of the agency's statutory dominion (36) and that the "authority to compel cable operators to provide common carriage of public-originated transmissions must come specifically from Congress." (37) Congress, in passing the Cable Communications Policy Act of 1984 (38) (1984 Cable Act) five years later, answered the Court's call with a measured response, assigning LFAs the right--though not the duty--to require cable operators to establish PEG channels. (39) The length of the franchise terms (oftentimes lasting between ten and fifteen years) and the necessity for cable operators to interface with LFAs made the renewal process "much more intimate than the federal government's postcard renewal used with broadcasters." (40) In addition, the Act generally prohibits these companies from moderating the content of PEG channels. (41)

The passage of the Cable Television Consumer Protection and Competition Act of 1992 (42) (1992 Cable Act), which …