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

Harvard Law Review, February 2013 | Go to article overview

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


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. …

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