Yesterday’s New York Times featured an article on its Opinion/Editorial page written by FCC Commissioner Michael Copps, suggesting that enforcement of the public interest obligations of broadcaster become more stringent. Commissioner Copps suggested that broadcasters needed to have their responsiveness to the needs of their community scrutinized more closely, and more often. Among other actions, the Commissioner suggested that license renewal period for broadcasters be shortened from the current eight year term, to once every three years – as well as a host of more stringent and specific programming obligations. Coming on the heels of the FCC’s proposal in the Further Notice of Proposed Rulemaking on Digital Radio (see our summary, here) to explore the local service of broadcasters through a checklist public file report quantifying their public interest service, as well as mandating more local program origination and a greater local presence for stations, local service seems to have emerged as a major issue of concern that may be played out in FCC proceedings in this year leading up to the 2008 Presidential election.

The Copps proposal to shorten license renewal terms back to the three years, and to stiffen the renewal process, asks that the FCC return to a system that required broadcasters to spend significant sums of money on administrative matters that could have better gone to broadcast operations. And the sums that used to be spent on license renewal applications had minimal real impact on the public interest.   While from time to time, broadcasters did run into scrutiny at renewal time, the vast majority of broadcasters’ applications were reviewed in a perfunctory manner and renewed – just as they are today. And with the Commission’s depleted resources that are already stretched thin, it seems unlikely that its staff would be able to provide much greater scrutiny to renewal applications that are filed more than twice as often as they are currently – more than doubling the workload of the already overburdened Commission staff.

While some renewal applications did receive more scrutiny during the 1980s, the Commissioner forgets the abuses that the process permitted.  The old license renewal process allowed the filing of applications by third parties which would propose that the third party would be able to better serve the public interest than the incumbent licensee who was filing for license renewal. In other words, a third party’s paper promises were weighed against a licensee’s past service to the public.  This often led to decade-long litigation battles for the renewal of station licenses in major markets around the country.  This process spurred the growth of a cottage industry of companies that would submit competing applications against license renewals, often settling at the end of the day for a private pay-off to walk away from their challenges and dismiss their applications.  While virtually none of these challenges were successful absent some significant other wrongdoing by a licensee, the process was extremely costly for licensees and it added an element of uncertainty to the renewal process which served to restrict financing available to the broadcast industry.  Who wanted to loan to an industry where the principal asset was subject to being revoked every three years?  While Commissioner Copps seems to suggest that it would be no big deal if more broadcasters lost their licenses for not adequately serving the public interest, in fact it would make it even harder for new entrants to the broadcast industry to obtain the financing necessary to enter the business.

Some of the specifics of the public interest obligations suggested in the editorial also seem to ignore the realities of today’s entertainment marketplace. For instance, the Commissioner suggests that broadcasters should be obligated to cover much of the party Presidential nominating conventions – even though these events have in recent years become little more than several days worth of commercials for the parties involved with little real drama, debate or presentation of much more than political platitudes. This suggestion seems to stem from the Commission’s concern 8 years ago when the Fox network covered a baseball playoff game instead of a Presidential debate. To me, when you have 3 other broadcast networks and numerous cable channels covering the debate, isn’t the public interest better served by providing diversity of programming? Unless we are prepared to mandate that every citizen watch Presidential debates or party conventions, mandating that all stations cover any particular event accomplishes nothing, as airing anything on every station can’t guarantee that everyone will watch. By lessening choice, you probably also contribute to a decrease in the ability of television stations to provide important information to the public, as you encourage those who don’t want to watch the event for which you mandate coverage to seek out other media, lessening television in the long run.

In fact, in today’s Washington Post, there is a story on how the audience for television news in decreasing for many reasons, including the other available media choices. In fact, as these other media choices increase, broadcast stations will, of necessity have to provide more local programming, as that is where they will differentiate themselves from the national programming that comes in from cable, satellite, Internet and other digital providers. It should be incumbent of the FCC to allow these stations to find their own way in this new media landscape, rather than having the government mandate what programming people will see on their televisions or hear on their radio. The government may be able to force certain programming to be available, but they can’t make people view it.  Until the government can make people watch “what’s good for them,” and make decisions as to exactly what that is, they should regulate with a very light hand.