This July marks 80 years since the Federal Communications Commission began to regulate broadcasting and telephone systems. The “public interest, convenience and necessity” was supposed to guide the development and operation of our national communications systems, and the FCC was supposed to proactively create the conditions to serve the public interest. During that time, however, the public’s interest has been losing its status. In fact, many innovations that communication and information services and businesses introduced over the past several years are unquestionably useful, even transformational, but public interest seems increasingly absent in how the FCC assesses where we need to go. In its stead, the marketplace, and what the market requires, provide dominant rationales.
The Supreme Court recently shut down Aereo, a system that tried to do something many of us would like: give us the channels we really want to watch on a digital device at a relatively low price. Streaming TV is becoming commonplace with the likes of Netflix, Hulu and HBO Go, but the sorts of technological changes that might benefit many of us are difficult to accommodate with the hold that many existing industries have over our communication systems and their accompanying copyright arrangements.
Under the vague public interest mandate, the FCC considers various topics such as net neutrality, expanding Internet access, shoring up our emergency communications networks, supporting “innovative” communications systems and keeping our phone and Internet service options from lapsing into limited, high-priced options. Continuous skirmishes around what constitutes the public interest have muddied what the FCC can and should do. Aereo, for example, provides a service many people believe is more desirable than conventional satellite or cable television. Netflix, in the crosshairs of net neutrality debates, capitulated to Comcast’s and Verizon’s bids for paid fast lanes for its programming, deflating many people’s hope that it would be a poster child for strong rules enforcing equal treatment in network transmission. Could proactive signals from the FCC have changed these companies’ futures?
The current communications and information revolution highlights the difficulties facing the FCC and the courts. The 1934 Communications Act originally was thought to exist to streamline the radio broadcast industry. Almost immediately, however, the 1934 FCC investigated relationships among the “common carrier” industries, namely the phone and telegraph carriers, in order to report to Congress whether legislation was needed to ensure that industry parties were behaving themselves. If their “joint arrangements” were likely to adversely affect services or charges, the FCC was supposed to recommend that Congress provide them with the authority to reject or modify company transactions. Things haven’t changed that much since then.
These early inquiries set the stage for 80 years of continuous policy zigzagging among Congress, the FCC, the courts and the industries being regulated. The constant jockeying for industry growth often conflicts with what is right — what is in the public interest. The question is, how do we know what is right? The FCC hears a lot from the industries it regulates and typically does not hear much from the public. Current debates about net neutrality and, perhaps surprisingly, media ownership/acquisitions are an exception. Those two topics have galvanized a public that understands in various ways that bigger and bigger companies (think AT&T merging with DirecTV or Comcast acquiring Time Warner Cable) generally mean higher priced services, and that allowing certain types of content to move faster on the Internet than other types might be somehow disadvantageous. More than 100,000 people, for example, recently contributed to an online petition advocating strong net neutrality. But regarding the release of more unlicensed spectrum, which has allowed such things as the spread of free or cheap Wi-Fi, or the remedying of the digital divide, there is scant evidence of widespread public opinion or even awareness. This raises the stakes in having an FCC that has the foresight and will to think through exactly what is in the public interest and the ability to take the initiative.
Without strong and clearly articulated public interest values, values that go beyond what is good just for the market, our FCC will continue to be a chaperone directing businesses to places where they do little more than not interfere with one another.
Sharon Strover is the Philip G. Warner Regents Professor in Communication and former chair of the Radio-TV-Film Department in the Moody College of Communication at The University of Texas at Austin.