Re: [dvd-discuss] ClearChannel Plays It Safe

[Bryan Taylor <bryan_w_taylor(at)yahoo.com>]

--- Jeme A Brelin <jeme@brelin.net> wrote:

> > > The use of public resources brings the responsibility of public
> > > service.
>
> > What is the legal basis for this? Public service is an entirely
> > voluntary activity as far as I'm concerned. It might be admirable, but
> > it certainly isn't obligatory.
> 
> The Telecommunications Act of 1933 and 1996 and FCC regulations.

There is a very good summary of the radio/TV first amendment law at
http://caselaw.lp.findlaw.com/data/constitution/amendment01/17.html#6

I was somewhat surprised to find that there is some legal support for your
position. My arguments fairly state the legal standards in the newspaper arena,
as typified by Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241 (1974). 

The basic rationale for greater regulatory control over broadcast speech is the
scarcity principle, which is described at length in the above findlaw article.
 
The "Fairness Doctrine" requires broadcasters to present both sides of a
political issue, but does so within the context of editorial discretion, and
does not require them to accept paid advertising from third parties CBS v DNC
412 U.S. 94 (1973), with the limited exception of political candidates CBS v
FCC 453 U.S. 367 (1981). 

I think it safe to say that under the standard of CBS v DNC, a station can ban
the playing of "99 Red Balloons" if it wants to, unless a candidate for office
wants to use that song in their commercial. Since the DJ employee of the radio
station is not such a candidate, they have no claim.

> > Due process of law requires whatever consideration must be given for
> > use of public resources to be specified unambiguously ahead of time.
> > Often the public service IS the use of the public resource.
> 
> What?  Simply USING a public resource is not a public service.  That's
> absurd.

I think that's up to the public, not you. The fact that use itself can be a
public service was the idea behind homesteading. The public is served by an
increase in commerce and trade. The public benefits from broadcasting per se
because of increased tax revenue and greater access to news and entertainment.
Some reasonable regulation applies based on the scarcity princple, but due
process of law requires these to be specified ahead of time, which they were.
 
> Public resources must be used IN THE PUBLIC INTEREST.  If the stewards of
> our public resources (our government) fail to enact sufficient
> requirements for public service in exchange for limited use of public
> resources, then they have failed.

Majoritarian processes will determine what the public interest is, and would
generally be subjected only to a rational basis test by courts. Promotion of
commerce alone would provide such a rational basis. You can argue that it's bad
policy, but at the end of the day, Congress has the Constitutional power to set
that policy.
 
> > I have no doubt that companies use their broadcasting rights in a way
> > that they feel is moral. When you disagree, don't listen to them.
> 
> A corporation is not moral.  It has one objective: To maximize profits.  
> Any other goal could undermine that purpose and spell certain death.

Corporations are nothing more than associations of individuals, and have as
diverse objectives and goals as the people who run them. Compare Red Hat with
Microsoft. In the same basic market, one is moral, one is not. I have yet to
see any company whose mission statement says "maximize profits", but if that's
how they want to try to obtain happiness, then good for them. By engaging in
trade they only offer you additional options that you are free to accept or
reject. 

> PR and tax deductions are both methods used to maximize profits.
Yawn.

> Monopolies and oligopolies would only be MORE prevalent if broadcast
> rights were treated like property, bought and sold to the highest bidder.

I profoundly disagree. In fact, I'd argue that the failure to treat broadcast
rights like property is what makes radio and TV so bland. The FCC has regulated
small players out of the market, and it's only this governement intervention
that stiffled the medium. If I have an innovative radio idea, I simply can't
get onto the AM or FM spectrum, even though there is plenty of unused bands on
my radio dial. My ability to compete is stiffled by government, not Clear
Channel.

> It would only be a matter of time before wealthiest had all the rights to
> broadcast.

Small business is the engine of the economy and always bears the least ability
to cope with governement regulation.

Regarding whether broadcasting is a "public forum", I said it isn't, and you
said:
> I think you should re-read both of the Telecommunications Acts and come
> back.  You're sorely mistaken.

The seminal case in finding the boundary of the "public interest" obligation of
broadcasters is CBS v. Democratic National Committee mentioned above. Here the
court reasoned this way in rejecting a supposed "right of access" in favor of
"journalistic discretion":

<quote CBS v. DNC, 412 U.S. 94, 120-121 (1973)>
More profoundly, it would be anomalous for us to hold, in the name of promoting
the constitutional guarantees of free expression, that the day-to-day editorial
decisions of broadcast licensees are subject to the kind of restraints urged by
respondents. To do so in the name of the First Amendment would be a
contradiction. Journalistic discretion would in many ways be lost to the rigid
limitations that the First Amendment imposes on Government. Application of such
standards to broadcast licensees would be antithetical to the very ideal of
vigorous, challenging debate on issues of public interest. Every licensee is
already held accountable for the totality of its performance of public interest
obligations. 
</quote>

> Oh, and while you're at it, read "The Media Monopoly" by Ben Begdikian and
> "Rich Media, Poor Democracy" by Robert W. McChesney.

If these are on the web, link them and I'll take a look. Generally, though, I
prefer to read caselaw directly and to form my own opinions.

Please keep in mind that I really detest the content of most broadcast radio
and TV stations. These have replaced religion as the opiate of the masses.

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