The argument could be extended. Fundamental innovations in any field of human endeavor are few and far between. The "public trustee" concept of broadcasting created in 1927 is with us still, despite the deregulatory movement of the eighties and the demise of the Fairness Doctrine.(note 2) Moreover, basic innovations need not stem from legislation. The FCC substituted "price cap" for "rate base/rate of return" regulation of rates charged by major telecommunications carriers without any change in the 1934 Act.(note 3) The notion that maximum "diversification" in the ownership and control of broadcasting and other mass media is an important public interest objective was invented by the FCC, not by Congress.(note 4)
There remains, nonetheless, reason for this anniversary celebration. The principal innovation of the 1934 Act was its creation of the FCC as the unitary regulator of both telecommunications common carriage and the use of the radio spectrum.(note 5) "[T]he two regulatory functions did not have that much in common, then or now,"(note 6) but the merger of functions itself has had significant consequences (or so I would argue).
One such effect is easily demonstrable. When Congress merged the two regulatory schemes, it inserted in its definition of the term "common carrier" the statement that "a person engaged in radio broadcasting shall not, insofar as such person is so engaged, be deemed a common carrier."(note 7) Whether other transmitters of interstate communications by wire or radio would be subject to regulation under Title II of the Act was left to depend on the uncertain application of traditional notions of what constitutes "common carriage."(note 8) Broadcasters were given a blanket exemption.
In taking this step, Congress resolved a live controversy. Because broadcasters occupied what were then thought to be highly limited radio frequencies, there was major concern that they would deny access to their facilities altogether or discriminate unfairly among those who sought a radio microphone.(note 9) The Senate committee on the 1927 radio legislation reported out a provision that would have classified as "a common carrier in interstate commerce" any broadcaster who sold time for any purpose or who allowed the use of his facilities either by political candidates or for the discussion of "any question affecting the public."(note 10) Although that proposal was rejected on the floor of the Senate,(note 11) the statute as enacted authorized the new Radio Commission to revoke any station license if the Interstate Commerce Commission (ICC) (or "any other Federal body in the exercise of authority conferred upon it by law") found that a licensee properly subject to traditional common carrier obligations (e.g., to "provide reasonable facilities" and avoid "discrimination") had violated those obligations.(note 12)
As was predicted at the time, that provision turned out to be ineffective because the ICC disclaimed jurisdiction over radio.(note 13) But the notion that broadcasters should be regulated as common carriers was included in a bill, which would have created an agency exercising jurisdiction over both "wire and wireless" communication, on which there were extensive hearings in 1929 and 1930.(note 14) That idea, moreover, had the support of the Radio Commission's Chairman.(note 15) The opponents of common carrier regulation for broadcasters (who included the majority of the Radio Commission and Senator Dill, one of the co-authors of the Radio Act) did not talk of broadcaster rights or editorial freedom. Instead, they emphasized the practical need that broadcasters retain editorial discretion over the use made of the limited broadcast time at their disposal.(note 16) Louis Caldwell, who had been the first General Counsel of the Federal Radio Commission, opposed common carrier status as follows:
If the broadcasting station which ordinarily has to rely on advertisers for its income has to receive every advertiser on an equal basis, it, and its listening public may be the prey to all sorts of quack advertising, and it is felt that it is safer to allow the station owner the same discretion which a newspaper or magazine has-that of rejecting or accepting advertising, and relying on his self-interest to see to it that no unfairness is done.(note 17)Whatever their arguments, the supporters of broadcaster discretion prevailed. Their victory, sealed in Section 3(h) of the 1934 Act, cast a long shadow into the future. Almost four decades later, the country was torn by internal divisions concerning the war in Vietnam, as well as those of race, class, generation, and ideology. The impartiality and integrity of broadcast journalists was sharply questioned by avatars of both the right and the left. The Fairness Doctrine had been the FCC's traditional answer to fears on this score, but its requirement that broadcasters provide reasonable opportunity for the expression of conflicting views left broadcasters with broad editorial discretion-too much to satisfy the passions then abroad in the land. Moreover, in affirming the constitutionality of the Fairness Doctrine, Red Lion Broadcasting Co. v. FCC, had strongly hinted that more stringent intrusions could be justified.(note 18)
In this context, an activist court of appeals found in the First Amendment a requirement that broadcasters must accept paid advertisements in which the proponents of views on controversial issues could express those views, select the issues to be discussed, and control the manner of the overall presentation.(note 19) In CBS, Inc. v. Democratic National Committee, the Supreme Court rejected that holding.(note 20) In doing so, it relied on Section 3(h), which it read (in light of its history) as reflecting "Congress' flat refusal to impose a `common carrier' right of access for all persons wishing to speak out on public issues."(note 21) The Court went well beyond the discussion of practicalities that had dominated the pre-1934 debate on this subject:
Nor can we accept the Court of Appeals' view that every potential speaker is "the best judge" of what the listening public ought to hear or indeed the best judge of the merits of his or her views. All journalistic tradition and experience is to the contrary. For better or for worse, editing is what editors are for; and editing is selection and choice of material. That editors-newspaper or broadcast-can and do abuse this power is beyond doubt, but that is no reason to deny the discretion Congress provided.(note 22)This passage represents, I believe, the first instance in which any court found the screening editorial function performed by mass media worthy of protection under the First Amendment.(note 23) To be sure, the Court's recognition of broadcaster editorial rights was nowhere near as sweeping as the protection it soon thereafter gave to print editors.(note 24) It relied heavily on the constraints imposed on broadcasters by the Fairness Doctrine,(note 25) and left room for the creation of limited rights of access to the facilities of broadcasters.(note 26) But CBS, Inc. v. Democratic National Committee established the proposition that the constitutional need to preserve broadcasters' editorial discretion imposes a limit on the scope and nature of any obligations that the government may impose.
This is not the only effect that Section 3(h) has had on media regulation. The belief that it is undesirable for media editors to stand as filters between would-be speakers and the public has had strong appeal in a variety of contexts. That appeal increases when there appears to be little constraint on a medium's capacity to deliver the messages of multiple speakers. When the FCC first recognized that cable television offered a potential "economy of abundance" in the channels of video service that the public might receive,(note 27) the agency toyed with the idea of imposing "common carrier" status, at least as to some channels.(note 28) In 1972, it imposed "access" requirements for the benefit of government, educational institutions, and would-be speakers via cable generally, both commercial and noncommercial.(note 29)
The agency's authority over cable, however, then rested on the holding in United States v. Southwestern Cable Co. that Section 2(a) of the 1934 Act granted jurisdiction over cable television "reasonably ancillary to the effective performance of the Commission's various responsibilities for the regulation of television broadcasting."(note 30) In FCC v. Midwest Video Corp., the Supreme Court struck down the Commission's cable access rules on the ground that: (i) "[Section] 3(h), consistently with the policy of the Act to preserve editorial control of programming in the licensee, forecloses any discretion in the Commission to impose access requirements amounting to common carrier obligations on broadcast systems,"(note 31) and (ii) Congress could not be deemed to have authorized the imposition on cable operators of restrictions that it had sternly forbidden in the case of broadcasters.(note 32)
The statutory ban on Commission attempts to constrain the programming discretion of cable operators was limited to intrusions which were so severe as to amount to the imposition of common carrier status.(note 33) Moreover, Midwest Video was far from the final word on the subject. The access requirements stricken by the Court in 1979 were substantially restored by the Cable Communications Policy Act of 1984.(note 34) But the idea that the programming discretion of cable operators is entitled to respect was given a powerful boost by Midwest Video. That discretion has since been given First Amendment protection, most recently and authoritatively in Turner Broadcasting System, Inc. v. FCC.(note 35)
We seem today on the cusp of an era marked by the convergence of technologies (and players) in telecommunications carriage, data processing, cable television, and broadcasting. In an era in which channels of communication to the public will be, as a practical matter, infinite, television viewing will become increasingly interactive, and "systems integrators" will play as large a role as the purveyors of content or the providers of transport services.(note 36) But there is no indication that fears of media power and fascination with its presumed ability to shape our society for good or ill will disappear. Nor is there much evidence that Congress or the courts will reject all rationales for the use of regulatory power to constrain the editorial choices of the electronic media. It is a matter of some moment, then, that any form of such regulation will have to leave electronic media editors with "abundant discretion over programming choices."(note 37) We owe that feature of our jurisprudence in no small part to one of the decisions made in 1934.
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[I]n theory I have agreed for a long time with the idea that all broadcasting stations should be common carriers, but in practice I have never been able to convince myself that it could be worked out without seriously breaking down the radio service, and that is why I have never insisted upon it.
Hearings on S. 6, supra note 14, at 193.
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