Survival of the Standard: Today's Public Interest Requirement in Television Broadcasting and the Return to Regulation
Simshaw, Drew, Federal Communications Law Journal
I. INTRODUCTION II. HISTORY: REGULATION AND THE PUBLIC INTEREST A. The Early Days: Creation of the Concept B. Particularizing the Concept III. DEREGULATION A. Justifying Programming Requirement Cutbacks B. Ascertainment Deregulation IV. TODAY: THE REEMERGENCE OF REGULATION A. Enhanced Disclosure Order: The Return of Programming Considerations B. A Preview of Ascertainment's Comeback C. Report on Broadcast Localism and NPRM: Solving the Communication Breakdown with Ascertainment D. The 2011 Order on Reconsideration and FNPRM and Notice of Inquiry V. INDUSTRIALIZING BENEFICIAL INNOVATIONS V. CONCLUSION [Despite the fact that] [t]he 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. (1)
There are few legal tasks more difficult than determining how best to treat a concept that lacks definition. The history of the public interest requirement is one of these constant struggles. That broadcasters must broadcast in the public interest has always been a requirement; exactly how this requirement is met has taken many forms. This Note will examine the history of the requirement--from vagueness, to regulation, to good faith and presumptions of compliance--and consider the appropriate direction for the public interest's future.
This Note will begin by examining the early days of broadcast regulation itself. It will then describe the creation of the public interest concept and the various standards by which the FCC has considered it satisfied. This Note will then describe the deregulation of the 1980s, during which the public interest standard was arguably eviscerated, and focus primarily on programming and ascertainment requirements for television broadcasters. Consideration will be given to the various justifications offered by the FCC for its cutbacks, which will be scrutinized in light of the industry's current state.
Next, the FCC's Enhanced Disclosure Order and its Report on Broadcast Localism and Notice of Proposed Rulemaking will signify the reemergence of proposed specific regulation regarding the public interest standard. The current state of broadcast guidelines and regulation, or lack thereof, will reveal today's challenges. Broadcast licensees are out of touch with their communities. Technology is being underutilized, squandering opportunities that could increase the ease of reporting and accessing programming content, as well as opportunities for direct communication between licensees and community members. Only recently have licensees and the FCC undertaken a post-Internet burden and benefit analysis that should reveal new sensible ways in which the public interest could be served. Many of these possible solutions can be found, which this Note will examine, by looking to today's broadcasting practices and the innovative ascertainment methods that have resulted from a regulation-free industry. The FCC's recent Order on Reconsideration and Further Notice of Proposed Rulemaking regarding enhanced disclosure requirements, as well as its Notice of Inquiry regarding standardized program reporting, indicate that the FCC is prepared to consider enacting significant regulatory reform.
Finally, this Note will conclude that it is necessary to implement certain sensible regulation at this time in order to ensure the preservation of the public interest standard. These possible regulations include, but are not limited to, required community advisory boards, town halls, and technological means of communicating with the public. First, it is critical to understand where the notion of the "public interest" has been in order to comprehend where it stands today so that we may best decide its future. …