Communications attorney Erwin Krasnow says that the Congress that first regulated the airwaves never intended for the regulation to come with a public interest burden – it was more in the lines of how railroads were regulated. He called the broadcast public interest requirement ““a mischievous notion” and suggests that it be done away with.
Krasnow, a partner at Garvey Schubert Barer and frequent contributor to RBR-TVBR, expressed his views in an essay called, ‘The First Amendment and the Fallacy of the Public Airwaves,” written as part of a Media Institiute series called “Speaking Freely.”
Senators who were there at the time the Communications Act was written in 1934 were quoted to make Krasnow’s point.
He wrote, “Senator Dill, co-author of the Radio Act, commented: “The Government does not own the frequencies, as we call them, or the use of the frequencies. It only possesses the right to regulate the apparatus…. We might declare that we own all the channels, but we do not.” Senator Watson, chairman of the Senate Interstate Commerce Committee, made a similar observation: “We do not own the railroads but we regulate them. We do not own the ether but we control the right to the use of that ether. That is all we seek to control.”
Krasnow argues that the suggestion that regulation may proceed because the public owns the airwaves, and also because it is a scarce resource, are false. He calls it a “discredited concept,” and argues that it is time to take the burden off broadcasters.
In conclusion, Krasnow wrote, “The time has come for the FCC to take the following actions: Renounce the discredited concept of public ownership of the airwaves, bury the scarcity rationale, and adopt the approach advocated by former FCC chairman Mark Fowler, by applying a public-interest standard based on minimally regulated marketplace forces rather than content regulation. Fowler once said that whether you call the public-trusteeship model of regulating broadcasters ‘paternalism’ or ‘nannyism,’ it is ‘Big Brother,’ and it must cease. Amen.”