The Public Trustee Obligations of Free, Over-the-Air Broadcasting
MAP is the leading public advocate in the battle over the soul of the public interest standard of the Communications Act of 1934. While the Federal Communications Commission is mandated by law to ensure that broadcasters serve the “public interest, convenience and necessity,” its decisions over the past decade have stripped the standard of almost all meaning.
MAP has also fought to preserve the system of free, universal, over-the-air broadcasting from attacks by its fee-supported competitors. Since late 1993, MAP has represented viewer-intervenors in the U.S. Supreme Court in a case which will determine the constitutionality of the so-called “must-carry” provisions of the 1992 cable TV law. These provisions require cable systems to carry local over-the-air broadcast stations on their systems. “Must-carry” is essential to the viability of local over-the-air broadcasting, especially smaller stations, which tend to be disproportionately minority- and female-owned. It also ensures that all members of the public, including the 40% who do not get cable, will continue to be able to enjoy the free, over-the-air broadcast TV system.
MAP accomplished some of its objectives in June 1994, when the Supreme Court issued its first decision, Turner Broadcasting System, Inc. v. Federal Communications Commission. The Court adopted a good part of MAP’s argument by expressly recognizing the public’s need for a viable system of local over-the-air broadcasting, and by placing those needs above those of cable operators.
But the Court also returned the case to a lower court to determine whether, in fact, broadcasters would be harmed without “must-carry.” The lower court again upheld the “must carry” scheme, and the Supreme Court heard argument in October, 1996, as to whether the broadcast industry showed that it would be harmed without compulsory cable carriage. The Court’s decision in March, 1997, Turner Broadcasting System, Inc. v. Federal Communications System, once again underscored the importance of free, over-the-air television as an essential, universally available source of information. The Court found that it had been reasonable for Congress to conclude that the prospect of cable operators dropping local TV stations was a threat to the health of small broadcasters and the diversity of broadcast media.