December 3, 2002
Revitalizing First Amendment Protection For Electronic Speech
PETER HUBER: Good morning. Welcome. The Manhattan Institute is a think tank in Manhattan, and one of its great virtues is that it lets us not live there but live where we like. So I'm a fellow there, and so is my distinguished friend and colleague, Tom Hazlett, who will kicking off these proceedings. I have to fill my five minutes, and I will talk about what I actually know about.
The biggest technical problem in blasting photons out through the airways is simply generating the power. If you drive up Wisconsin Avenue to one of those tall antennae on the hill there, at the bottom of those masts for each major antennae is a power plant about the size of a Buick engine, running flat-out. Itís all electrical, of course. Youíre pushing 100 kilowatts or so in trying to get that power up to the top of the mast and then punch those photons out to blast all of Washington and the 25-mile radius or so, so people can pick up a radio or TV signal.
Itís very difficult to build a radio frequency power amplifier because at very high frequencies everything becomes an antennae, every drop of solder and little wire and so on. So unless youíre very careful you encounter all sorts of problems. And this has been a problem essentially since the day of Marconi. Literally, in the last few years, the people in Silicon Valley and elsewhere have begun building solid state amplifiers, blaring the semiconductors directly on the same devices that build logic chips. You essentially can build a radio frequency amplifier now on a Pentium, or the succeeding generation of chips. And this is really a radical technical breakthrough. It means that you can begin, over time -- but these time cycles tend to be remarkably short in the age of semiconductors Ė you can begin building the equivalent of a cell phone or a radio station, or ultimately a television station, directly on the same substrate, using the same essential tools as are used to build microprocessors, and microprocessors of course are extremely ubiquitous.
What this implies, quite simply, is that wireless bandwidth, which we thought was exploding in the Ď90s, has scarcely begun to ramp up to what itís going to become. I crudely estimate Ė and Iím right, within, you know, two or three zeros Ė (laughter) Ė that the amount of bandwidth passing through the airwaves today is something like 10 million times higher than it was 50 years ago when we first were officially told that spectrum was scarce. I do not doubt for one second that the total amount of bandwidth moving through the airwaves will increase another five or six or seven orders of magnitude or more in the next 50 years. So however scarce things were 50 years ago, or appear to be today, they will be scarcer still year by year as these technologies begin to proliferate.
And the biggest single policy question by far lurking here is not privacy or copyright or the kinds of things that attract Julia Roberts and Barbara Streisand to this city, but the simple problem of how one leverages Ė extracts this spectrum back out of the federal government, which nationalized it all in 1928. And this is the sort of intriguing problem that has perplexed academics and legal commentators for a very long time, and itís the one weíre going to explore today. And without saying more I shall hand the conference over, once again, to my very distinguished and very good friend, Tom Hazlett.
THOMAS HAZLETT: Thanks very much, Peter. And itís great to have Peter Huber introduce the session on First Amendment law by discussing the power plant producing the photons, and sets it right up for the law here, Peter. (Laughter.)
Iíd like to thank the University of California for having us, and Iím delighted to know that having left the employ of the University of California officially on June 30th, 2000, that they were able to break ground on this building July 1st, 2000. And obviously the financial fortunes of the entire university seemed to shape up Ė (chuckles) Ė getting rid of certain deadwood and moving on to greener pastures. I thought there was a budget crunch out there.
The paper written by Stuart Benjamin is a very challenging and interesting thought for many of us who have been thinking about broadcasting policy, First Amendment issues, and the physical scarcity doctrine for a long time. And the paperís gotten, you know, quite a bit of play in some of the normal scholarly academic circles, and maybe it should have a little more influence and a little more discussion here in the policy circles in Washington and so forth.
It may not be an idea that changes the law today. On the other hand, it may. But it is a challenging thesis, and over time, people do have to critically evaluate this physical scarcity doctrine, and that it is at the heart of First Amendment jurisprudence within the electronic communications marketplace. And as Peter notes that the scarcity concept seems to be quite elastic, thatís both curious, but also, I think, quite a logical part of this picture; that is to say that the idea of what scarcity is, what constitutes congestion and what defines static interference. These concepts change over time to fit the legal concepts and the policy paradigms. And Stuartís paper really comes right into the middle of that and gives us some different ways to think about this. And whether or not it turns the law around today, itís a very important set of thoughts on the way the law may go.
Driving in this morning I just happened to hear, as I get most of my information and current events from the ďImus in the MorningĒ news program, Don Imus screaming about a letter Ė two certified letters heíd received from the Federal Communications Commission because on the little ranch he has out there in New Mexico for kids with cancer they have a low-power FM transmitter, transmitting -- I think itís the Flatlandersí music, but anyway, something the rest of us probably wouldnít want to hear. But heís been given, now, two certified letters from the Federal Communications Commission to stop this low-power broadcasting literally in the middle of nowhere, and a low-power broadcast Ė I donít know if it was one watt or 10 watts, or whatever it was, so that people in a very local environment can get whatever communications they will.
He was screaming about the fact that heíd called Michael Powell yesterday, and Michael Powell had refused to return his call. And the discussion on the air was, what could Michael Powell possibly have to do that heís too busy to return a simple phone call? (Laughter.) But it was sort of wake-up call about how the rest of the world may view my little part of the world, but also a very interesting question. Apparently one of the letters threatened a $100,000 fine and up to one year in jail for not turning off his transmitter. And itís good to remember that this policy comes from the physical scarcity doctrine out there in the ranch in New Mexico.
So these are the sorts of conflicts and sort of the whole transformation of communications, that Peter alluded to in a numerical way, that these legal concepts really intersect with. And so we have a great paper to talk about today, and Stuartís going to spend about 20 minutes sort of introducing us to the basic ideas that heís presented. His paper, by the way, is published in the October 2002 issue of the Duke Law Journal, and itís now available online for those who would like to take a look at it. And weíre going to have various perspectives on this.
Scott Bullock is an attorney with the Institute for Justice. The Institute for Justice has been in court arguing the case for some folks who use the airwaves, sometimes called pirates, without authorization from the Federal Communications Commission.
Tom Krattenmaker is obviously known to many of you; law professor, dean, FCC official, Department of Justice official, author of the casebook that Stuart Benjamin is now a co-author of, and on and on, and he will present some of the legal concepts. Glen O. Robinson, of course, is a professor at the University of Virginia Law School, former member of the Federal Communications Commission, and a prolific author on many of these regulatory topics. And Gigi Sohn, the famous Gigi Sohn, now is the head of Public Knowledge, an exciting new group here in Washington, D.C., but obviously known to communications policymakers for many years for her work in these areas.
So Iím going to turn the podium over to Stuart, and weíll get going.
STUART BENJAMIN: Let me begin by thanking Tom and the Manhattan Institute. I just met Tom for the first time this morning. As it happens in the cyber world, you know, I had just sent him a copy of the article and he sent me an email back saying he might want to do something, and so we managed to arrange this entire thing without ever laying eyes on each other. But I do really appreciate you setting it up.
MR. HAZLETT: Would that have mattered, Stuart? (Laughter.)
MR. BENJAMIN: Uh, no. I think Ė
MR. HAZLETT: On second thought Ė
MR. BENJAMIN: Thatís actually the whole point about the beauty of cyber; it had no impact whatsoever on my Ė
MR. HAZLETT: I sensed you were backing away. (Laughter.)
MR. BENJAMIN: No Ė well, I just lean back when I talk, thatís all.
So, Tom, before, just when we were talking, asked me what got me interested in this, and I told him. And he said, well, you should tell people that; so I will.
I was following the Low Power FM Initiative out of Ė the FCC was very interested in it, and it was disappointed when the Congress decided to override the FCCís initiative on low-power FM. As you all may know, the National Association of Broadcasters and NPR were a very effective lobbying force. And the question I had was, well, is my annoyance here, is it just purely a policy matter -- I just think they got it wrong Ė or is there any possible constitutional issue? And I was turning it over in my head and I came to the conclusion Ė you all can decide for yourselves whether Iím crazy or not Ė that there is something here; that this is not merely a question of whatís good or bad policy.
Now, that might sound strange to you because, as everybody I assume in this room knows, the Supreme Court has applied very lenient judicial scrutiny to spectrum regulations, based on the scarcity rationale. As I assume also most people in this room know, few commentators are actually persuaded that the spectrum is scarce in any way that distinguishes from other kinds of resources Ė land or wire of much of anything else -- and in fact some of the people associated with this seminar, Tom and Peter among them, have made that point. Others have said, well, maybe itís not scarce, but maybe thereís a quid pro quo involved: insofar as youíre giving the licenses for free, there are certain obligations that are entailed. But the Supreme Court, of course, has not been persuaded by any of that, and itís simply stuck with scarcity as the rationale that it finds persuasive.
A lot of people seem to assume from that, well, thatís the end of the story, at least as a matter of what the courts will do, because the scarcity rationale means that all regulation Ė essentially all regulation of radio frequencies are subject to this lenient judicial scrutiny and none of them will ever Ė no regulations like that will ever be overturned. And in this paper I argue otherwise. I argue that neither scarcity nor any other rationale supports distinguishing spectrum from print in a way that can justify applying lenient scrutiny to government decisions limiting the use of spectrum. So itís not just about scarcity, as you can say about any argument. Scarcity supports decisions to choose among competing licensees, but not the decision not to license in the first place. And other rationales either donít justify Ė donít distinguish print from spectrum, or donít justify decisions limiting the number of voices on the spectrum.
So where I begin analytically is with a thought experiment about printing presses. Imagine that the government decided it was going to seize, in eminent domain, and pay for all the printing presses that exist, and it would control all future printing presses. And what it would do is then turn around and license them at, letís just imagine, free of charge, you know, a system that would strike us as content neutral, which is of course not what the FCC does, but totally content-neutral licensing, with one twist: it was going to hold back 20 percent of them from the market. It just thinks, frankly, thereís probably too many publications out there, and so it wants to reduce the number of publications a little bit. Thereís no chance that would be found constitutional, it seems to me, and itís not clear whether that would be reviewed under intermediate scrutiny or heightened scrutiny. You know, the Supreme Court has these different tiers, but it doesnít matter; itís going to be struck down.
The question is, well, how does this apply to broadcasting? We know that in NBC v. United States, and to some extent in Red Lion, the Supreme Court implicitly upheld the governmentís control of the spectrum, raises the obvious question: does the courtís rationale extend to government decisions that limit the number of users of the spectrum? And my answer is, not only does it not extend but in fact it undermines those decisions. Government actions that enhance rather than minimize the problems that gave rise to the government regulation in the first place subvert the entire justification for lenient review. To put the point differently, if scarcity is a problem that justifies a government response, the one response it clearly does not justify is one that would diminish the number of channels of communication. So insofar as scarcity exists, it must create some presumption against government actions that actually reduce the channels of communications.
Now, you might say, well, that itís all well and good, but thatís inconsistent with these cases, NBC and Red Lion being the main two. I think thatís wrong. First things first, they didnít address or claim to address all forms of broadcast, much less all forms of spectrum regulation, and they donít suggest they would apply to government decisions that would limit the amount of frequencies used. In fact, they have some language talking about how important it is to avoid wasteful use of the spectrum.
But if we were going to find otherwise, we would have to conclude that scarcity creates a low-level review for all government decisions regarding broadcasting and, indeed, all decisions regarding spectrum. If we do that, we really are separating the justification from what it justifies. You know, this is a reification of this justification, and itís a form of bootstrapping, right? The governmentís parlaying lenient scrutiny flowing from scarcity into a basis for limiting the number of voices on the spectrum. Itís sort of akin Ė if you think about it as a judicial matter, it would be akin to a court saying, weíre going to apply lenient review to your claim that your fundamental rights have been violated, such that heightened scrutiny should apply. Weíre putting the analytical cart before the horse.
And the court hasnít done that. It hasnít treated scarcity like that. Whatís an example of a case where they did not treat scarcity that way? Well, another notorious case, FCC v. Pacifica Foundation, involving regulation of broadcast indecency, the court nowhere mentions scarcity as a rationale, even though the FCC had relied on scarcity in its decision. Instead, it relies on pervasiveness and accessibility. Itís very hard to understand, if scarcity were relevant, why the court wouldnít bother to mention it, and instead go off on this other rationale.
Well, what about justifications other than scarcity? What about, for instance, the Pacifica rationale? Maybe that can justify government reducing voices on the spectrum. But that canít be right. It may be that pervasiveness and accessibility support limits on broadcasters once the broadcasters exist; itís not at all clear how we can possibly transmogrify that into limiting giving out of the spectrum for any purpose in the first place. Well, what about the quid pro quo argument? Thatís one thatís gotten a lot of play. People are given these licenses, and that entails certain responsibilities. That makes a lot of sense once the licenses have been given out in some way. Here Iím talking about the decision to give them out in the first place. There is no quid for which there can be a quo, right? There is no government largesse thatís yet been involved.
So my argument is, there really is no basis for a lower level of review. The ordinary review in First Amendment cases applies. That ordinary level of review has been laid out in a bunch of cases, most obviously Turner Broadcasting, a case that also you might be familiar with, but it requires, among other things, there be an important or substantial governmental interest in order to justify some First Amendment regulation. Well, whatís going to satisfy that threshold? And my answer is, basically, interference, and nothing else Ė and non-trivial interference, and only that.
Now, let me begin with the interference point, obviously crucial in terms of spectrum regulation. A signal is just a radio wave thatís going out, and other radio waves can interfere with that, such that no oneís message gets through; you just get static or whatever. Itís been a central concern in FCC policy for decades, and with good reason, and minimizing it seems exactly the sort of thing that would constitute an important or substantial government interest. But what about other possible rationales for the government keeping spectrum idle?
Well, one thing to begin with right off the bat is there is a value often in non-utilization of land. Thereís no value in non-utilization of radio frequencies. Non-utilization of land we might like because it provides a great vista, or we just like the idea of knowing that land is pristine, you know, where the buffalo roam, whatever it might be. Thereís no value in spectrum being unused because, of course, spectrum isnít a thing. Itís just the communication, and no matter how much dross we communicate over the spectrum today, itíll still be there tomorrow, ready for yet more episodes of ďTemptation Island.Ē
Given that, thereís no affirmative value to keeping the spectrum empty. What rationales might there be? Well, we could try to say, transmitting across the spectrum imposes costs because the stuff that we think is going to be transmitted is going to be of very low value. Imagine ďThe BachelorĒ 24 hours a day on every possible communications channel. Well, that canít possibly be a persuasive argument in a world with the First Amendment. Itís got to be that the rationale canít just be, we donít want more speech. Youíve got to say more than that, and so instead you might say, maybe the problem is that using the frequencies now means the government canít use them later for some other purpose. Maybe thereís a real opportunity cost to letting now some potential use on the spectrum. Well, thereís no literal roadblock to the government using the spectrum in the future. The government can always get the property back through Ė first things first, as you all probably know by statute, no one has an ownership right and a license. But even if there is some ownership, the government, by eminent domain, can get back any spectrum that it gives out, any time, for any reason, end of story.
So maybe the response to that would be, well, itís true, the government isnít blocked from getting the spectrum back, but thereís going to be political entrenchment. Whatís going to happen is once you let these people on, you wonít be able to get them off. Theyíll have their own lobby, theyíll get their own fancy building in Washington, and theyíll get the K Street lobbyists to go down to find wherever the FCCís new building is and see if they can get into it, and then go down and lobby, et cetera. Of course, the danger of that entrenchment is real. In fact, itís the power of incumbents in the first place that has got us in this position. Incumbents never relish competition. And this is something that Tom Hazlett has amply demonstrated in the broadcast context, that the entrenched incumbents always want to block new competitors.
The problem with this argument is that itís the governmentís unwillingness to regain control of the spectrum; that is, the source of the governmentís interest in the first place. The government would be saying, well, weíre afraid that once we give out this license, we wonít have the stomach to seize it back. I might call this argument, stop us before we allocate again; please, please, donít let us do that because we wonít have the guts then to do the right thing afterwards. And the problem is -- if thatís persuasive, then it would seem that the requirement of a substantial government interest will be meaningless in any case involving powerful incumbents, and a resource that is in any way finite. That argument, as the lawyers would say, it proves too much. And after all, if thatís right, how could the government ever justify any licensing decision? You can always say, well, gee, in five years there may be better use of the spectrum, so letís hold it off. You can say it in 2002 and in 2007 and on and on and on, and so itís not clear how youíd ever get to a point of licensing.
One other possible government interest in keeping people off the spectrum, well, maybe weíd say, thereís going to be a burden on incumbents because this is going to increase competition for them, to which the answer is, youíre absolutely right; thatís, of course, the point. And that it is simply not an interest that is sufficient, and in fact the Supreme Court has so stated in Turner Broadcasting. It said, look, competitive pressures on incumbents are not a valid basis for taking actions that limit First Amendment rights. Instead, you have to have genuine jeopardy to the economic health of an industry. It seems very unlikely that that is a threshold that allowing non-interfering users on the spectrum, that that could possibly satisfy.
So, what are some examples of the kinds of services Iím talking about that would cause trivial interference, and therefore I think should be allowed on? One, as Iíve already suggested, is low-power FM. As many of you probably know, the FCCís policy since the 1960s has been not to allow stations on any of the three adjacent channels to existing FM stations. The FCCís technical staff recommended, hey, we can let stations on up to 1,000 watts on the second or third adjacent channel. The NAB, among others, furiously lobbied against that and said this is a terrible idea, so the FCC cut back on the proposal and said it would only be on the third adjacent channel, only up to 100 watts. But that wasnít good enough so the National Association of Broadcasters and National Public Radio went to Congress, where Congress cut back on it quite significantly, further cutting by more than 50 percent the number of low-power stations that were going to be able to operate.
The FCCís engineers didnít find that low-power FM would cause absolutely no interference. Every transmitter causes some interference. Every hair dryer, every toaster, causes some interference. The question was what was the level of interference it was going to create, given whatís already out there, and the answer seemed to be that it would create no additional interference for 99 percent of receivers, and for about 1 percent of receivers, mainly cheap clock radios and Walkmans, there would be some interference that could be remediated by moving the device a couple of feet. So there was a strong argument there that there was some interference, but it could easily be avoided -- you know, sort of a classic example, it seems to me, of trivial interference.
Another example is ultra wideband, which is a spread-spectrum technology that uses extremely low transmissions that hop or spread among a wide range of frequencies. And the idea is as long as the recipient has the right algorithm, you can then get the message. And ultra wideband proponents credibly argue that its interference will not rise above that already created by background atmospheric radiation, the radiation in the universe, and radiation created by unintentional radiators Ė you know, the electrical devices you have in your house that just emit radiation as a by-product of their operation. So the idea is, the engineers claim Ė Iím not an engineer; I donít play one on TV Ė but lots of engineers say, look, this is going to cause no additional interference; users will not find any degradation of their signals. So, these are examples of services, it seems to me, that thereís a quite reasonable argument you should be able to go in and say, look, I donít think Iím going to interfere in any meaningful way.
Well, what does this mean as a policy matter? One obvious answer, it seems to me, is that itís a mistake to let yourself get characterized as a pirate, as Tom was talking about. You donít just violate the FCCís rules and then try to challenge them, which is whatís happened in most of the so-called pirate radio cases, because if you have the status of a scofflaw youíre in a different legal category.
There was actually a case that came down about nine months ago now out of the D.C. Circuit where the D.C. Circuit said this particular broadcaster could have petitioned for a rulemaking or applied for a waiver, and then challenged that denial. But he didnít, and he chose instead to operate without a license, making it inappropriate for us to consider his challenge to the micro-broadcasting band, to the low power Ė some low-power FM limitations, absent an indisputable indication that the band was unlawful or unconstitutional. Youíre putting yourself in a different box. Why donít you instead go to the FCC, petition the FCC for a waiver of rulemaking, then if you donít get it you can cleanly bring the legal challenge, raising these issues?
Now, even if the formal challenge is never brought, or itís brought unsuccessfully, it seems to me that the ideas that Iím talking about can sort of help advance arguments that are already out there, that are already percolating around. One of the points of my paper is, if the government frees up the spectrum, there will be no problems of the sort my paper is focusing on. Remember, the First Amendment only limits government actions, not private actions. So if the government opens up all the spectrum and lets people use it for any purpose they deem fit, then there will be no government-created idle spectrum. There will be no one who can say, oh, Iím not being allowed to go on this because the government is just letting the spectrum sit there unused. So, in this way, something like the report of the Spectrum Policy Task Force, which I commend to all of you that came down just two weeks ago, is consonant with my concerns, even though it doesnít focus on First Amendment issues. And my arguments support the reportís recommendations for adding flexibility -- both opening up spectrum and adding flexible use.
Another example of something thatís consonant is an idea that has been put out in a paper by Mark Bykowsky and Mike Marcus, also from the Spectrum Policy Task Force, of interruptible or callable spectrum. Again, thereís all this spectrum right now thatís controlled by the military and public safety agencies, and they say, well, we canít give it up because someday we might have to use it. Well, what if we can set up a system of interruptible spectrum where others can use it and you can just get it back whenever you need it?
Yet another good idea is a proposal from Jerry Faulhaber (sp) and David Farber for easements for low-power uses that will not interfere with existing services. And again, the Spectrum Policy Task Force also picks up on that. They talk about an interference temperature limit where there would be a level of interference below which services could come on, just like what Iím talking about in this paper, and then those low-power services could operate, and as long as they werenít above that interference temperature, they would be allowed to go. And, also as the Faulhaber-Farber paper and the Task Force policy point out, those underlay rights could be any opportunity to try out a commons if we wanted to. Let me bracket and say, this paper does not Ė the question of commons versus private ownership is basically tangential to this paper. I have thoughts about it, Iím happy to answer questions, but itís not central Ė thatís a policy question not central to this paper.
The larger point that is, though, central to this paper is thereís been this ongoing battle in First Amendment law between those who see the First Amendment as a purely negative liberty and those who say, well, thereís an affirmative element where the government should Ė it actually emboldens -- empowers the government to take certain actions. And my argument in this paper is this is one place where those two sides actually might agree. Theyíre on opposite sides of most things, but this is one situation where both of them might agree that this set of government actions really is problematic Ė for different reasons, they would so conclude, and those with an affirmative vision might go further and might want to block private actions as well. But as I say, for the purposes of my paper, I think both sides can come together, and come together on the basic principle that Iím articulating: that government actions limiting access to spectrum are subject to heightened First Amendment scrutiny; it is not the very low level of Red Lion. And the only interest thatís going to satisfy that is non-trivial interference.
So my argument is totally consistent with the current doctrine: the government cannot exclude non-interfering uses of the spectrum. And with that I will leave it to others.
SCOTT BULLOCK: As Tom mentioned, I work for a group, the Institute for Justice, which is a non-profit, public interest law firm that litigates a number of constitutional cases, and one of them is free speech issues. And we have indeed been involved in some battles concerning low-power FM, sometimes called micro-broadcasters, and even sometimes called pirate broadcasters as well.
I very much enjoyed reading Stuartís Law Review article. And when I read Law Review articles now, given the type of work that I do, even when Iím reading the paper or listening even to a radio broadcast, my thoughts always go to, is there a way to sue somebody Ė (laughter) -- as a result of the ideas that are expressed in this article or story that I read in the newspaper. I think ďlawsuit.Ē And what I particularly liked about Stuartís paper is that it does give some ammunition to people like myself, and organizations like the Institute for Justice, to take these ideas and actually apply them in the courtroom. And itís written, I think, with that in mind. It takes the world as it is, and takes the doctrine as it is, to a large extent, and then pushes it in a particular direction.
Iím very much a fan of the writings of Tom Hazlett and others that look toward a reorientation of how we view telecommunications law and how we view spectrum policy. Unfortunately, we donít live in that world; at least, not yet. And so, I did like the perspective on taking this approach.
It reminds me of an area that weíre involved in at the Institute for Justice in the whole battle for school choice. You know, thereís a number of arguments that talk about whether we actually do need to have government involvement in public schools; whether we need to have public financing, and certainly governmental control of education. And while those ideas are very interesting, we do live in a world where the government is involved in financing education and running schools. The question of school choice, for instance, is whether -- given that thatís the state of affairs, isnít it better to have more competition, more choice among these educational institutions? And I think Stuartís paper looks at this practical world in which we live and sees how we can change this in order to increase freedom, to add more voices to the spectrum.
My interest in this issue largely derives from our defense of some low-power radio people, and some broadcasters as well, and I just want to spend a moment talking a little bit about, if these ideas are actually put into effect, just who can they help? Tom mentioned the Don Imus broadcast out on the ranch in New Mexico. And we actually had a case where we represented someone -- and I really think if Don Imus is actually almost in the middle of nowhere, farmer Roy Neset in northwestern North Dakota is literally in the middle of nowhere. He is a farmer, and he did not like the one radio station that was in Tioga, North Dakota, a country AM station, and that was his only choice. So he received written permission from a station in Colorado to rebroadcast their talk radio show. He built a one-watt broadcaster with a 30-watt amplifier and started to broadcast largely over his quite large property, and it reached about eight to 10 neighbors within his particular area.
Nobody seemed to mind these broadcasts. Roy liked listening to them out on his tractor; his neighbors liked listening to them. Who didnít like this? The manager of the one radio station in Tioga, North Dakota, who wrote to the FCC and complained about Royís broadcast. The FCC wrote a warning letter to Roy, telling him he was violating the law by broadcasting without a license. Roy wrote back and said, you donít give licenses to people like me, and donít I have some First Amendment rights in this particular matter? The FCC admitted that no one else broadcast on this frequency, obviously. They also admitted that he was not interfering with any station, certainly in that area or anywhere else, but still the FCC moved against Roy. The FCC sent an agent out to monitor Royís station on two occasions, and on the basis of those monitorings, the U.S. attorney in North Dakota, obviously someone with a lot of time on their hands, filed an action in District Court to shut down Royís station. And this was the case, the United States of America v. Roy Neset. And we represented Mr. Neset in that particular case.
Now, this is something that I actually wanted to talk about with regard to Stuartís paper, where Iím going to disagree with him on his view of low-power broadcasters and how we can perhaps put his ideas into practical effect. He refers to them in the paper and in his remarks even today as scofflaws, and somebody who is kind of breaking the law and should go through the normal channels for doing this. The problem with this, of course is that typically, especially in First Amendment cases, the way you get into court is you break the law, and the government goes after you and prosecutes you in a particular action, and you raise constitutional affirmative defenses in court. In virtually in all cases that come before the court, this is what happens. If someone wants to have a permit to have a parade in a particular area and the government prohibits it, they try to picket in this particular area. They might be arrested, or at least warned not to do so, and then this action is brought into court. This is a classic way of resolving these types of issues.
The problems I see with implementing some of these ideas -- and itís a larger problem beyond this paper -- is how Federal Communications law is set up. There is this idea that you cannot raise these types of challenges in Federal Court, even if Ė and this is what this makes the Neset situation and other low-broadcast situations quite different Ė if the government goes after you. And thatís what happened in the situation involving Mr. Neset. The FCC could have brought him before the FCC and fined him and made him answer to his violations of the law before the FCC, but it chose to prosecute him in Federal District Court, and then try to deprive Mr. Neset, and other broadcasters, of his right to defend himself by challenging FCC policy, of saying --
MR. BULLOCK: -- go get a waiver from the FCC, which is going to be an exercise in futility, especially if they donít give licenses for this type of broadcast. And then the other answer is petition for a rulemaking before the FCC, and go try to bring about something that will take not only years, if not over a decade, as a lot of petitions for rulemakings have done, but also involve a huge amount of time and a huge amount of expense that people like Mr. Neset are simply not going to be able to do.
And itís a very odd response when you raise a constitutional objection. Itís almost like saying, the government is violating my constitutional rights, and a court saying, but canít you just go petition the government to try to change the law? Well, of course you can, but thatís never a response to the government violating your constitutional rights Ė should not be a response to it. But thatís the situation that we have here in a lot of these challenges, and I think that a problem with trying to implement these policies and what has to be Ė the nut that has to be cracked is how you break through the procedural morass that surrounds so much of telecommunications law in order to try to present pure constitutional issues, or as pure as possible in this type of forum.
And hopefully, maybe in a follow-up article, Stuart can talk about how we might be able to not only look at something like spectrum scarcity doctrine, but also look at how we present these issues in a way that gets a court to grapple seriously with them Ė takes them out of the FCC world and puts them before courts that will look seriously at constitutional issues.
I just want to close with two last points, and let some other people comment on the article. And I have to mention this because of the other type of work we do at the Institute for Justice -- and Stuartís interesting hypotheticals that he put where the government is going to confiscate all the broadcast licenses and says that there would not be a problem under the Public Use Clause of the constitution; excuse me, they would confiscate all the printing presses, there would not be a public use problem with this. We litigate these issues concerning public use and actually, public use law is changing. The government, the courts are looking more skeptically at governmentís ability to confiscate property on public use grounds. I think that is a good result, and something thatís a good trend in the law, and I would not like to see those arguments given such short shrift.
The other thing I would mention in the discussion of licensing of the press, and something that I think can strengthen his arguments concerns some of the law thatís developed in drawing the line between professional licensing and speech licensing. And there have been courts that have dealt with some of these particular issues, for instance the Lowe vs. SEC case from the Supreme Court that talks about whether or not a person has a constitutional right to give investment advice in the form of a newsletter.
The SEC, and then later the CFT, in a case we were involved in, was requiring a license for somebody to publish investment advice, either on securities or on commodity trading, and saying that this is the equivalent of being a professional. The courts in those cases said that the government cannot require a license simply to disseminate information, and drew a very clear line in that if youíre acting like a professional and perhaps taking peopleís money and investing it in the marketplace, you can be licensed. If youíre merely offering your advice and engaging in speech, obviously you canít do that because the government cannot license the press, and doesnít even apply a certain strict scrutiny or intermediate scrutiny. It simply overturns the governmentís actions in trying to license the press.
Iíll close with that and of course welcome any questions during the Q & A. Thank you.
THOMAS G. KRATTENMAKER: Good morning. My name is Tom Krattenmaker, and I am a recovering law professor. (Laughter.) I fear that my reaction to the paper is driven a bit by that. Youíre probably worried that itís driven by the opposite of Scottís; that is, I read the paper and say, how am I going to defend my clients against these kinds of things? But I think that Iím going to talk more about this paper from the perspective of a former life I had.
I also need to say at the beginning, I was sort of overwhelmed by Peter Huberís facility with photons and electrical power. I am not now, and never have been, an engineer. I do know how to turn on a television set on, but if my wife were here sheíd say, notice he didnít say he knows how to turn it off. (Laughter.) Iím not sure I know how the things work, but I know a little bit about these spectrum issues, and in light of the fact Ė I would like to say so that Iím really very clear here Ė in light of the fact that I am going to say some tough things about the paper, I would like to say two things at the beginning. One is, you should all read it. It is a paper that is very much worth reading, and it deals with what I think is a very important issue thatís really going to become Ė that already is cutting edge in communications regulation.
Secondly, I would like to say that it was written by an extremely impressive person. I have the good fortune to be familiar with both of Stuartís writings, and we are blessed with the fact that thereís a burgeoning number of young academics in the law schools who are starting to take communications law seriously. Stuart is at the forefront of that group. It used to be that it was very, very lonely doing that kind of work, as Glen can attest. Now we have a lot of really good people, and there arenít any better than Stuart. So while I have some reservations about this paper, I donít have any reservations about his work generally.
Let me say in praise of Stuartís paper, how is this for an overview or a summary of many of the major points he makes: ďAdvances in technology create the potential for systems to use spectrum more intensively and to be much more tolerant of interference than in the past. In many bands, spectrum access is a more significant problem than physical scarcity of spectrum, in large part due to legacy command and control regulation that limits the ability of potential spectrum users to obtain such access. To increase opportunity for technologically innovative and economically efficient spectrum use, spectrum policy must evolve towards more flexible and market-oriented regulatory models. Such models must be based on clear definitions of the rights and responsibilities of both licensed and unlicensed spectrum users, particularly with respect to interference and interference protection. Preliminary data and general observations indicate that many portions of the radio spectrum are not in use for significant periods of time, and that spectrum use of these white spaces, both temporal and geographic, can be increased significantly.Ē I could go on; what Iím reading from is what Stuart alluded to, the report released two weeks ago by the Federal Communications Commissionís Spectrum Policy Task Force.
I daresay I think Stuart would agree that insofar as heís talking about communications policy, this is a fairly good summary of what heís saying in the paper, and I think it is, and I think he says it very well in the paper too. Access is a greater problem than scarcity right now, and we have both unused and underused spectrum out there, and it is constraining the amount of people who can communicate with each other and the ways in which they can communicate with each other.
I should say that another thing you should read, accompanying the Spectrum Policy Task Force Ė and you can get these off the Internet, by the way, at the FCCís website; itís easy to do Ė is an Office of Plans and Policy working paper. Since we have at least one former OPP working paper author here in the audience, I wonít say itís the best they ever did -- Barbara. But Evan Kwerel and John Williams have written a paper, itís Working Paper #38: ďA Proposal for a Rapid Transition to Market Allocation of Spectrum,Ē which lays out a comprehensive scheme for moving to full-efficient spectrum use, employing either market-based exclusive rights or a spectrum commons model, depending on which type of the spectrum youíre talking about.
What I found particularly interesting about these, which I read after reading Stuartís paper, is that neither of these reports say a word about the First Amendment, or Red Lion, or NBC, and Stuartís paper is all about that. Now, I know Evan and John pretty well, neither of them is a lawyer; I guess it didnít occur to them to think of a First Amendment challenge. But the Spectrum Policy Task Force, the co-director is a lawyer, the associate director is a lawyer, and itís striking, it seems to me, that theyíre both moving in the same direction yet the only difference is that Stuart says, what we can do is rely on courts to take us to the promised land, and these folks are thinking about alternative ways.
So at least as a recovering law professor, I see this paper as suggesting that what we can do is we can make a substantial contribution to resolving the present impasse, or underutilization by relying on courts. And this is the part of the paper that I find unpersuasive, that there is a role for constitutional analysis to play at this time in the evolution of these issues.
I think I would raise three Ė in other words, I would say that on the present scholarly record, the key question that Stuartís paper raises is, why courts? I think there is forming a consensus that itís time to start revising and reformulating the way in which spectrum is controlled so that it is not unused and underutilized, and I think Stuartís paper is going to be a major contribution on that. But when I look at the array of stuff in front of me I say whatís different about his is the constitutional law focus and the focus on courts. And I think Iíve got Ė and Iím assuming that all of you have had the opportunity to read the paper, but that few of you have taken advantage of that opportunity Ė (laughter) -- so Iím going to try again to tell you, read the doggone paper. Itís 110 pages long, but you can skip the footnotes, except for I think itís footnote 197 Ė (laughter) --which I thought was such an obscure article of mine, I had to call my co-author and say, I donít think weíve been cited in 20 years, and here it is. Thank you, Stuart.
I will summarize my questions about it in hopes that maybe youíll think about these when you go back and read the paper. First of all, what is this thing called intermediate scrutiny that the courts are going to use? This is post-Warren Court constitutional sleight of hand, and at some other constitutional seminar weíll have a discussion about what this intermediate scrutiny means. But an intermediate scrutiny that tells us that the must-carry rules the FCC promulgated, based on the must-carry statute that Congress wrote, is perfectly well-justified by a number of important governmental interests seems to me to be, at best, a paper tiger. Maybe he means the gender case, the intermediate scrutiny that the court used, in which case weíll obliterate all the regulations. But this is, I suppose, a little bit of an in-group comment, but the falling back on something that seems to be, as I said, a constitutional sleight of hand intended to replace the discarded ďsubstantive due processĒ doctrine, doesnít seem to me to advance the ball very much.
Secondly, it seems to me that government never warehouses spectrum just to warehouse it. I may have to revise that remark in light of what Scott said, because it sounds like maybe in North Dakota thatís exactly what theyíre doing Ė (chuckles) -- but I do think generally itís chimerical to assert that the government is going to come in and say, the reason you canít use the spectrum is we donít want you to use the spectrum. I mean, I just donít think thatís the way cases are going to come up. Here it seems to me are some of the more complicated issues, anyway, that the way they would roll out -- and maybe Stuart will have a chance to show how his analysis would do this.
I think most importantly thereís not, I think, an adequate recognition in the paper that interference -- and Peter can do this better than I -- isnít just a function of the transmitter, itís also a function of the receiver. Sometimes you can deal with interference by making your receiver better and more selective. The Spectrum Policy Task Force talks about this at some length. So what happens to the complainant who comes in and said, I read Stuartís paper, I want to broadcast, the only reason I canít is the government didnít mandate better receiver standards? Intermediate scrutiny, under the First Amendment, do you win? He says no. I donít know why not.
What about the person where the government says, we sold the license to X, on which you want to broadcast, and promised X zero interference? Is the constitutional claim that the government must allow a certain amount of interference, and is it intermediate scrutiny that tells us how high to raise this interference temperature? What about the plaintiff who says, the government gave a right to transmit on this frequency, on which I want to broadcast, and gave that right to X? Now, X can do just as well at a much higher frequency, but I cannot. And there would be many cases like that, at least this is what the people at the Spectrum Policy Task Force tell me. So move X so that I Ė I concede Iím interfering with X, but I donít need to; you can move X. First Amendment case?
To me, this is the way the cases are likely to roll out, and I donít know how it is that judges are going to resolve questions of setting the interference temperature, of deciding which incumbents need to be moved where or deciding how we need to revise our receiver standards. Just like the spectrum isnít something that was given to us, but is really just sort of like the multiplication tables, a list of frequencies on which we currently know how to transmit, and has expanded hugely since World War II, so it is the case that nothing about the world out there is given, and that includes the state of the transmitters and the state of the receivers.
Aside from questions about intermediate scrutiny and exactly what kind of governmental interests are going to be asserted, Stuart knows that Ė I mean heís got this whimsical title, ďThe Logic of Scarcity,Ē and in the paper asserts that Ė what heís doing is sort of taking the scarcity rationale and showing that the government canít use this as a justification for underutilization or non-utilization. The reason I take -- and itís a bit whimsical -- is, as he points out, you canít find anybody who believes in the logic of scarcity. And so, at least those of us whoíve been through this battle before find it very hard to suggest that one could build a viable constitutional theory on top of a completely non-viable Ė I donít know what it is Ė economic or political social theory about scarcity.
Iím sure the philosophers have a description; you know, thatís the so-and-so fallacy, probably Bertrand Russell wrote it down somewhere. One of the things Iíve thought of is that Red Lion says that suitable access to important ideas justifies government regulation of what goes on over the airwaves. I could take that logic and build a complete system of thought control under the First Amendment thatís not only permissible but required for government to do. It doesnít work to take an illogical doctrine and then say, well, thatís what the courts have said, and then build a constitutional regime on top of it.
Secondly Ė and Stuart knows this too, so I hope youíll get a chance to respond to this Ė Stuart points out Ė one of the helpful things he does Ė this is not just about broadcasting; heís talking about everything. He uses ultra lightband as an example, he uses wireless person-to-person communication, and thatís one of the great contributions of the paper. But the idea that government would ever justify what it does in, say, the wireless Telephony area on the notion of scarcity, thatís just not right.
If you ask the government lawyer, why is it that we have this regulation of transmitters, they would tell you, I think, that there are basically four reasons: one, itís to protect against interference; secondly is for national security and public safety reasons; third are we have certain international obligations and we need to coordinate frequency use so that weíre in compliance with our treaty obligations; and finally, in the words of the Federal Communications Act, we want to encourage the wider and more effective use of radio.
And if a judge said, well, what about scarcity? If the attorney were honest, the government attorney defending this would say, well, I read Tom Hazlettís stuff, and quite frankly, there might be a fifth rationale, and that was to induce scarcity. The reason the government did what it did was to prevent us from having too many radio stations out there and driving each other into bankruptcy, Your Honor. In short, the government would say that there is a need to establish property rights in the use of the transmitters to send radio wave propagation; thereís a need to do that, and it is Sunstein 101 that weíre not required to use common law property rights; at least the Constitution doesnít require us to do that.
We can do it some other way. We can, for example, create these rights at the federal level and have federal courts define and enforce them Ė Iím sorry, a federal regulatory agency. Now weíre not required to have done them through a common law method, and what we have done is an active regime that is content-neutral and serves substantial and significant governmental purposes. And so therefore, the First Amendment is not the way to handle this challenge. I imagine that if I were to read the North Dakota case that Scott called to our attention, as a recovered law professor, I would construe it to say, your First Amendment claim fails. You might have a good claim under the Administrative Procedure Act or the Federal Communications Act; why donít you go pursue that? And to me, that makes somewhat more sense.
I finish by saying, again, to come back to how much I agree and how important I think Stuartís point is, the point I was trying to make is probably made better by Evan Kwerel and John Williams in the conclusion to their paper. Reforming spectrum policy is like reforming planned economies. The form of the transition from central planning to markets matters, as we have seen in Eastern Europe and Russia. The form of the transition matters. Markets do not create themselves. The central planners canít just not show up for work one day and expect an efficient transition to markets to occur spontaneously.
I think Stuartís paper shows that itís time to get out of a -- as Kwerel and Williams call it -- a planned economy in the spectrum. I donít think Stuartís paper shows us how we can solve that problem by turning it over to courts.
GLEN O. ROBINSON: Tom says heís a recovering professor of law; I guess that makes me a recovering regulator. Happily, Iím fully recovered now, so I will not take the views of a regulator. I have some complimentary things to say about Mr. Benjaminís paper, and some critical things. Unfortunately, Hazlett did not leave us enough time to say both, so Iíll just be critical and blame it on Tom.
My critical comments are twofold. First, I think Stuart is not addressing the important problem of inefficient spectrum use. Second, I donít think his First Amendment solution can do any real work here, either in solving either the important problem or indeed even in solving his more limited problem. His paper says throughout that heís concerned about unused or underused spectrum. For example, he criticizes the FCC for being too conservative in not allowing low-power FM or in not allowing more ultra wideband use. This is a fair criticism. I think, however, it doesnít really come close to addressing what is really wrong with the spectrum plan that we have now.
What ought to concern us is not the ability to squeeze in a few more FM stations, or even a few cell phone systems in particular UHF channels. What really ought to concern us is the massive, colossal misuse of the frequencies. If spectrum waste is the problem, as Benjamin claims, what really ought to concern us Ė in fact, what ought to enrage us is the tremendous warehousing Ė Iíll call it that, although it isnít quite that Ė warehousing of frequencies to the broadcasting system.
What we have done with the existing spectrum is we have given away some of the most valuable portions of the radio spectrum to an obsolete technology: television broadcasting. Instead of finding out ways to leverage more broadcasting, at least in the television area, we ought to find out ways of leveraging out fewer uses. At a time when, for example, I think the current figure is about 80 percent of television households receive their television through multi-channel vehicles -- cable or satellite -- and I think the number is now 95 percent can do so. Basically, what over-the-air broadcasting is is nothing more than an inefficient way of delivering program content to the head end of the pipe. We donít need the radio spectrum to do that.
If what we want is more program channels, and I want them just as Stuart does, we want more program diversity, we want more program content, what we really need is more networks, and we donít need more broadcast stations. We want more competition with CNN and Fox and MSNBC, and weíre not going to get it by trying to leverage out a few more broadcast stations. In fact, thatís really the wrong way to go, completely. We ought to be finding out a way of recapturing the portions of the spectrum that have been misused.
Unfortunately, itís not clear, to me at least, how his solution Ė his First Amendment solution will work here. In fact, I think, far from being a means of leveraging out a more efficient use of the radio spectrum, it might be to further entrench the inefficiencies that already exist, because the greatest inefficiencies are the lock-in that our favorite First Amendment folks have, namely the broadcasters. In any First Amendment contest, the broadcasters will win over almost all contenders, and yet it is the broadcasters who constitute Ė certainly the television broadcasters who constitute a large part of the wasted use of the spectrum.
Thatís one reason why Iím skeptical about the use of the First Amendment in this controversy. I donít see it doing any useful work in solving the real problem of spectrum misuse, and indeed, as I said, it might have the further effect of further locking in the misuse that we already have. What we do know from past experience is that the broadcasters have been uncommonly successful in not only holding onto the frequencies theyíre using, but in holding onto frequencies that theyíre not using. That, after all, is what high-definition television, digital television, is all about.
Beyond that, however, I am somewhat skeptical about the use of the First Amendment in this context. I would admit with Stuart that the First Amendment has a role here. Indeed, itís hard to imagine any area of communications law in which it doesnít have a role, given the fact that communications is about speech, and therefore you can work a First Amendment issue into almost every regulatory context, and the Washington Bar has been exceedingly successful in doing that in the last 25, 30 years.
The problem I have is I think that in the case of the spectrum-use problems that weíre concerned with, the First Amendment values are relatively marginal. We are talking about a speech interest of sorts, yes, but I think the speech interests are --
-- I believe relying on the First Amendment is going to distort our perspective in that respect. Think, for example, about the contest currently between Ė historically and currently Ė between broadcast users and cell phone users or mobile radio users over the years -- a constant source of problems. I donít see the First Amendment solving that problem, and yet I think that problem illustrates what I think to be the biggest problem of waste. For years the broadcasters held onto fallow UHF spectrum, notwithstanding growing demands by mobile radio users for that. And as I said before, broadcasters have other ways now of reaching the household; mobile users do not.
Beyond that, I donít think that the First Amendment Ė and here my remarks echo Tomís Ė is going to get us much in this area, particularly if weíre relying on intermediate scrutiny. If you look at the Turner Broadcasting cases, and you look at the analysis they did there, and then you take that analysis and apply it to the kind of cases that are likely to arise over the use of the spectrum, I think itís extremely unlikely that youíre going to get an effective First Amendment control over the policymaking process.
Iíll consider just one of the arguments that Stuart says the government will advance. This is the warehousing argument. That is to say, we donít want to assign it now because it might foreclose a higher and better use 10 years or five years from now. He says he doesnít think that that argument is very attractive. I agree. In some abstract sense itís not very attractive. The question is just this: do we really think that it is constitutionally impermissible for the government to plead its own inherent weakness? That is to say, do we really think that it is a violation of the First Amendment for the government to say, if we were to allocate this now we will not be able to un-allocate it or reallocate it a year from now, especially when history tells us that that is the truth; that theyíre speaking the truth.
It might be an unattractive argument in the abstract because we would like to have it that government doesnít lock itself into inefficient regimes, but the entire spectrum plan as we now have it is a perfect illustration of how it has done that. Now, do we think that in fact, given that historical lesson that the government should not be able to come in and confess error it might be a second-best solution? But second-best solutions are better than third-best solutions. In any event, given what the Supreme Court said in Turner, how likely is it that the Supreme Court is going to say, oh, well you canít make that argument; that doesnít pass intermediate scrutiny? Iím very dubious that itís going to get us much.
Consider the second point. Stuart mentioned in his paper that the proper analogy here is to government locking up the printing presses. With respect, I think that analogy doesnít work. Itís not that Ė the proper analogy is not to locking up or taking over the printing presses and then sort of doling them out or warehousing some of them or licensing only a few of them. The proper analogy really is the wood pulp. In fact, the wood pulp corresponds to the radio spectrum, right? In the print environment it is the underlying raw resource out of which the uses are made.
But now letís think about that. What is the argument for locking up the wood in wilderness areas, or simply not harvesting something? Do we think, in fact, that the Forest Service is violating the First Amendment, for example, when it does not make a maximum yield cut or does not optimize the forest for wood pulp out of which newsprint is made? I donít think so. Moreover, I donít think that the First Amendment is going to do us much good in that context.
So the bottom line I think is this Ė my bottom line would be, yes, by all means, Stuart, letís go after the inefficient uses of the radio spectrum. Itís an egregious problem and weíve suffered from it too long. But letís keep our eye on what the real problem is. The real problem is the governmentís clumsiness in designing spectrum, coupled with bureaucratic inertia which refuses to adapt to new technologies, reinforced by practical interest group politics. And when you come bring those three together, I donít Ė youíve got a powerful problem on your hands, but I donít think in fact you can solve that problem with the First Amendment.
GIGI B. SOHN: Good morning. I guess if everybody is recovering, I am a recovering former supporter of the scarcity doctrine, Red Lion. You know, I see a lot of familiar faces, and some people might not have known that I shipped myself off to New York for two-and-a-half years to work for the ultra-conservative Ford Foundation. (Chuckles.) But itís kind of been interesting because it gave me a chance to sort of not only see how the non-profit field works, the public interest field that I was and still am a member of, how that worked, but also to see really how the government works from afar. And it really Ė I think my views on a lot of these issues have matured, and itís amusing and a lot of fun to see people in the room Ė my, you know, old friends and nemeses, Tom Hazlett and Peter Huber and Tom Krattenmaker, who, you know, weíve always had sort of friendly debates with, finding myself agreeing with almost every single thing they say. Itís really scary. (Laughter.)
But in my full-time job now I am focused mostly on copyright and technology issues, and trying to fend off the numerous efforts to architect computers and Internet to protect the copyrights. And this issue is one of my loves, and I hope that a foundation will give me lots of money so I can work on it more, so if anybody wants to help with that endeavor, Iíd appreciate it.
Stuart, I thought your paper was Ė it was compelling, it was timely, and I think most importantly, it was realistic because it really accepts the law as it is. I mean, even I believe that the scarcity rationale is dead for technological and other reasons, and quite frankly, I donít think itís public interest lawyers like me, in my former life, and my former colleagues that are keeping it alive.
Quite honestly, I think itís incumbents like broadcasters that are keeping the scarcity rationale alive because differential treatment helps them a lot. And in fact one of the curious Ė Iím going to focus most of my remarks on the Spectrum Policy Task Force and the politics as opposed to the law because Iím also a recovering litigator Ė but I felt one of the curious findings of the Task Force was that broadcasters should remain subject to the current regulatory model. Okay, so everybody, you know, all other spectrum holders have to be subject to disruption and a new way of thinking about spectrum except for the broadcast industry, and I find that really curious. And I want to thank Glen for taking my time to beat up on the broadcasters so I donít have to.
On your core constitutional points, I mean, I agree with you really 100 percent. I mean, as a person who relied on Red Lion as precedent, mostly unsuccessfully, for 10 years, you know, itís never been used to support government regulations that limit voices and diversity. I mean, in fact, it stands for the exact opposite, and you really quoted the portions that were very, very compelling. I also was quite persuaded by your discussion of intermediate scrutiny and how the substantial government interest that you put forth would not rise to the level of what was required under Turner. I mean, the Turner cases really set the bar for showing a substantial government interest. I mean, basically, you know, broadcast stations had to be essentially going bankrupt for there to be a substantial government interest in preserving them. So I actually, you know, find it interesting. Whether itís realistic in the real world, Iíll leave that to Scott and others, but I did find it compelling and entirely plausible.
But I do -- as I said before, I want to focus on a couple of the findings of the Spectrum Policy Task Force that Tom didnít mention. As Tom did mention, you know, the majority of the findings completely reify, you know, the basis for your paper, and thatís why I think itís so incredibly timely. But I do think some of the other findings raise questions that are also raised in your paper but that you donít answer, and maybe it will be a basis for another paper, but there are a couple of questions raised and I want to discuss them.
Let me focus on two findings of the Task Force report that I found curious and somewhat troublesome, and I have to Ė I admit, I have not read the entire report; Iíve read about half of it, again, because Iím to busy saving the world from Hollywood and the recording industry Ė donít quote me on that, Drew Ė so let me just focus on these two.
The first is that when, you know, when government is looking at re-ordering the spectrum Ė you know, re-allocating and reassigning Ė thereís going to be some sort of combination of the exclusive rights model and the commons model. So they want to get away from command and control and more towards this mix of exclusive rights/property rights and the commons unlicensed model. But the report says that it would favor using the exclusive model and bans where there is high scarcity and the transaction costs associated with market negotiations are low, and it would use the commons model where there is low scarcity and the transaction costs associated with market negotiations are high. And what that says to me is that the exclusive model is going to be used in the most favorable bands and the unlicensed model is probably going to be used in the Ė primarily but not exclusively in the least favorable bands, and I think that raises some questions.
The other issue that Tom did raise was this notion of interference temperature, that the Ė the recommendation was that the commission set some sort of quantitative measure for interference, although itís not exactly clear what that measure is going to be. And I think these two conclusions sort of dovetail with some of the questions -- again, raised in your paper but not answered -- and the first is, you talk about the basis for surviving a First Amendment challenge as causing non-trivial interference, but you donít ever really say what that is. In the low-power radio debate, non-trivial interference to the broadcasters was, you know, a pretty high standard. And I think, you know, maybe in this case you do need an engineer to try to figure out Ė you know, obviously in different bands youíre going to have non-trivial interference. But Iím curious, and Iím very concerned that this interference temperature is going to be very, very high depending on, you know, what band weíre talking about, and not low, as youíre proposing and as it should be.
The second question -- and it may be the one place where I perhaps disagree with you -- is, what happens in a case where a speaker petitions to be at a better band than the FCC is willing to provide? And this is the case, again, where I believe where the FCC is heading towards, you know, putting the unlicensed spectrum, which, you know, I favor, and the less attractive bands and the broadcasters and others in the more attractive bands. And what if Iím a speaker who wants to, you know, provide some sort of, you know, YFI service but I want to be in the broadcast band? Now, if I read your paper correctly, you say that thatís okay; the FCC can say, okay, just broadcasting on this band, just cellular on this band, as long they use all the spectrum. I think that raises First Amendment problems if youíre going to actually limit who can get on what band if there is spectrum available and not being used.
The third point Ė and this one kind of hearkens back to my old days Ė if, as you say, and as I truly believe, the goal of First Amendment is a diversity of voices, how do you preserve it under your paper without recreating the structural regulations that I would probably argue that 99 percent of the people in this room canít stand, and which I have pretty much given up on because I think, politically, theyíre a non-starter?
In the low-power context, the FCC did say, if you wanted a low-power license it had to be non-commercial; you couldnít own another property Ė Iím not sure of the specifics, but there were at least four or five Ė and you laid them out in your paper, specific structural regulations, you know, that prohibited certain entities from getting low-power licenses. And I would submit that, you know, your system is not going to be any better if incumbents can just gobble up all Ė you know, diversity is not going to be achieved if you make spectrum available and its just gobbled up by all the same incumbent parties.
In my estimation, the answer, or the cure to that problem, is to open up more spectrum for unlicensed use because then nobody is prohibited. Once you start -- you know, once you start to get back to the licensing process which you so -- you know, which you, in a lot of ways, criticize and which has been roundly criticized, I think you fall into the same traps of, you know, of just having the same parties gather up all the spectrum. And I still donít believe Ė you do address this a little bit Ė I donít believe that anti-trust scrutiny really necessarily gets you to the kind of First Amendment diversity of ideas, diversity of voices that you want, and that more of an unlicensed commons model is really the way to go.
MR. BENJAMIN: Iíll be very brief. Let me see if I can hit highlights from all four of the people.
Scott Bullockís point about not needing -- you know, calling it status of a scofflaw, this is what we do in First Amendment law, I think thereís something to that. I mean, I suppose one answer to that is there is now this bad precedent of the D.C. Circuit which says otherwise, but I think there is something to the argument that the court is making, which is you need to give the agency a chance to see what it will do if you go through the ordinary channels.
I guess I would say I donít find Ė I donít have a strong stake in this. I donít find the D.C. Circuit position an outrageous one. I have some sympathy for his as well. I donít really have much of a stake as to the way it comes out, and I do like the Neset case because it does point out Ė picking up in response to Tomís point Ė that I do think this argument does some work because I do think there are situations where the government is simply not letting people on the spectrum.
Let me pick up on Tom and Glenís point, sort of together. Thereís a little bit of an irony Ė one often gets this is in academic arguments Ė that your argument either does too much or not enough, right? So Tom is saying, gee, why should we get the First Amendment, why should we have courts do this, why not leave it to the policymakers; youíre trying to do too much. But thereís also this sense of, well, youíre not hitting at the right things, and I want to say, well, Iím not sure both of those arguments can be right.
But let me just now be sort of specific. I freely admit that this, my argument, does not do everything I would want to do in spectrum policy. Beware of any lawyer who says, Iíve got a constitutional argument that will achieve all of my policy aims, right? That means somebody who is torturing their legal arguments to get where they want to get politically, you know. Sort of a footnote, you know, John Rawls Ė the recently departed John Rawls at one point said Ė and he disavowed this Ė but at one point he said that there was no vision of a just society that wouldnít include robust rights for a woman to choose to have an abortion, right? If we get from first principles to Roe vs. Wade, youíre really Ė boy, I really wonder how youíre sort of mangling your first principles.
I am not claiming that this will get to everything I want to get to in spectrum policy. I freely admit it leaves the broadcast spectrum Ė Tom Hazlett has a good paper on why we should get rid of all of the spectrum allocated to broadcast. It leaves that as it is. It leaves the crude receivers. I think crude receivers are a really big problem, but I think that if an existing service can go in and say, the way that our usersí receivers are set up there will be a lot of interference with your use, I think that rises to the level of an important government interest.
I recognize it means that you arenít doing all the work that we would want to do as a policy matter, but I do I think Ė and this is where I disagree with both Tom and Glen that the First Amendment does do some important work, because there are some situations Ė and thatís why I focused on ultra wideband and low-power Ė where the government really doesnít have that argument of saying, oh, there are these crude receivers; thereís going to be lots of interference. And so the question really is: is there a backstop to be played by courts? I donít like courts running things any more than you did. I didnít like Judge Green running the telecom system.
The question is just if the policymakers donít do all the things we want them to do Ė of course thatís my first choice, of course I want the policymakers to do the right thing Ė is there a role for the Constitution to play; is there some place for courts to step in? And it seems to me that in this limited circumstance where a court can really say, you havenít come up with a good argument, that itís appropriate then for a court to say, therefore this person has to be let on the spectrum. So, yeah, of course I want the policy actors to take the lead role, but that doesnít mean I think that courts should play no role.
Now, on the question of Turner Broadcasting Ė thereís a lot of back-and-forth on this Ė Iíll just say, lower courts have, I think, interpreted Turner Broadcasting as having more backbone than I think Glen and Tom are giving it credit for. You might think those lower courts are wrong, but there are a bunch of lower court cases that have interpreted the requirement of a government interest as having some real meaning to it.
And the final thing to Gigiís point: again, I totally acknowledge that this means the government can in fact give less attractive bands to the services it doesnít value, and, you know, more attractive bands to the services it does value. Thatís a policy matter. I think itís a mistake as a policy matter. I donít think that the First Amendment impinges on that, but in my view the modesty of the First Amendment point is an argument -- sort of is an argument in favor, right? Iím not saying now courts will control everything, but I do think they have this role, and I do think itís a meaningful role. And with that I will desist.
MR. HAZLETT: Thanks very much. We have time for a few questions. I certainly invite all questions with this barrier: Please come up here and ask it in the mike because we are taping. Say your name and your affiliation.
Q: Charlie Firestone, the Aspen Institute. And I think moving to intermediate scrutiny is useful. I argued a case, and actually won, in the newspaper broadcast cross-ownership case where there was no scrutiny, basically. It just said, yes, you win on First Amendment grounds, and thereís virtually no rationale. I mean, I appreciated it but Ė and I hope we donít lose those rules, which weíre obviously headed to do.
I think what First Amendment Ė Iím going to just make a quick statement and then ask a question Ė I think what the First Amendment give us in this intermediate scrutiny is some goals for regulators to abide by, which is a strength of governmental interest, however strong that is, depending on the level of scrutiny, but, you know, we should have a strong governmental interest.
And the other Ė but the thing that I havenít heard here is the other side of that, which is the least restrictive, or less restrictive, means. What is the restriction of the means of achieving that interest, which, not having read your paper, I donít know whether you get into. But it seems that there is a rationale that was used in the original allocation, which is that there was a thinking that by licensing that you would allow more people to speak because of interference. I mean, that was Ė whether it was used for, you know, private Ė to advance private interests or not.
They actually thought, or Iíd say they actually said that Ė and that was the rationale of a lot of the Supreme Court cases, was that this allowed more people to speak because you could regulate interference. Since that time weíve seen that really the problem is the interference, the reception and the means. So it seems to me that technology has changed enough that probably the means of achieving the governmental interest may no longer be sufficient at that end.
But my question Ė I just wanted to get that out, but my question is this: If you allow for all the cases Ė and the Supreme Court, even in Turner, said that theyíre not questioning the scarcity rationale Ė if you allow for licensing and you take your approach -- and if you take a third point, which is that I feel that the regulation is regulating people off the air; essentially the form of regulation is keeping people from speaking by requiring them to have a license, so the case of North Dakota was a perfect case of that. Would your arguments require either a form of common carriage or a form of right of access to the airwaves if you allowed that first step?
And if you didnít win the step saying that all allocation is unconstitutional, would you then have a second step which is saying, well, if youíre going to have some kind of allocation, that you have to have some right of Ė you cannot, through this intermediate scrutiny, keep people off the air through other means, maybe through allowing access or common carriage?
MR. BENJAMIN: Let me just say briefly that I do talk a little about the less-restrictive means stuff in the article, but it seems to me that the question of once youíve done the allocation if you want to set up some sort of a common carriage system I actually donít think raises the same kinds of First Amendment issues.
Once the government has allocated it, we might say there are better or worse ways to get more people to speak, but it seems to me -- I really do think thatís actually a policy question. I have views on that policy question. I think that there are some circumstances when it makes sense to have something that looks more like a common carriage regime and others where you would just have the owner of that right to transmit on those frequencies just have pure control over them. But I donít see that as resonating so much as a First Amendment issue, given that I am one of those people who actually believe that the First Amendment really is essentially a charter of negative liberties about what the government canít do, and that it doesnít impose affirmative obligations to go ahead and make Ė and open up the newspaper to competing voices. I see those as raising a different set of issues.
MR. FIRESTONE: If I could just follow up real quickly; but if youíre taking the premise that it is regulating people off the air, then the government is regulating those who donít have a license, essentially, and restricting their speech. Thatís the Ė
MR. BENJAMIN: Right, itís regulating Ė you mean just because itís not giving them Ė I mean, I suppose in the same Ė
MR. FIRESTONE: Same thing: some people have a license, some people donít.
MR. BENJAMIN: Right, thatís right. I mean, and this is always the difficulty of with any sort of licensing regime, and I do talk about this a little bit in my paper, which is for those who say, we need access regulations because of the limitations imposed by licenses, they should particularly embrace my proposal because this is a way of enhancing access without going this route of trying to pass this legislation and passing the First Amendment hurdles that it raises.
Why not instead just let Roy Neset Ė I think, is it Roy? Ė let Roy Neset on his own channel? You donít have to worry then about going Ė I mean, I think this is actually a better way of achieving that goal of access. Let a hundred Roy Nesets bloom; let a thousand Roy Ė am I going to listen to Roy Neset? Never. Right? Am I going to listen to any of the local low-power stations in my community? Not on your life. But thatís actually a better way, it seems to me, of getting them access than trying the much more troubling route of imposing on the existing licensees.
Q: Hi, Iím Solveig Singleton. This is a little complicated; I had to actually write down what I wanted to ask. Letís assume that we want to go the route of basing anything at all on the scarcity doctrine, which I think is questionable, but letís assume we want to go there
MR. BENJAMIN: The paper is written in the subjunctive, right?
MS. SINGLETON: Okay -- and the passive voice?
MR. BENJAMIN: No, I meant the subjunctive as in if scarcity made any sense, then what?
MS. SINGLETON: Okay. And letís Ė your argument seems to depend, in some sense, on a challenge to the obstruction of the low-power ruling as a limit on users or as a limit on intensity of use. And I think thereís Ė my question goes to the question of who and when exactly gets the First Amendment rights that youíre talking about? And Iím not sure that I understand why or how you connect this to the low-power users in particular.
Where was I going next?
I think essentially if I were a commercial user like the NAB or Verizon, I would make the point that the limits on use and intensity of use, that a lot of them come not just from power limits, but they come from FCC restraints on who was going to be allowed to use these low-power frequencies once they were freed. So, you know, it was being restricted Ė basically commercial users were being kept out. And I think thereís a good argument to be made that in terms of just sheer intensity of use of spectrum, that the big commercial users, whether itís, you know, a traditional broadcaster or Verizon or, you know, a new company that wants to come in and do YFI are in fact going to use that spectrum a lot more intensely in many areas than a few non-profits in low-power channels.
So it seems to me even if you want to make the argument that the First Amendment further -- you know, is something that you can get to -- you know, policies that argue in favor of a diversity of voices and so on, it doesnít seem to me thereís any necessary reason that a diversity of voices requires a church operating a traditional broadcast station or a farmer in his field, as opposed to enabling me to call my husband over my cell phone or access the Internet, or whatever.
So I guess Iím not seeing the nexus between the argument and the low-power users, necessarily. Now, you could say that that nexus comes in because when the FCC established the low-power radio proposal that it was in a sense giving the low-power users these rights and not companies like Verizon, or what have you. But then I think you have a problem of putting the government in a situation of facing a First Amendment challenge any time it considers a proposal to expand users, and Iím not sure that that wouldnít discourage proposals to expand users as opposed to encourage them. You can respond to any part of that that you got or interpret it any way you like; Iím not sure I made that clear enough.
MR. BENJAMIN: Sure. The way I conceptualized this Ė and I think this is actually responsive to your point about, you know, Verizon versus non-commercial. The way I conceptualized this is, look, the First Amendment challenge Ė the First Amendment right is the right of an individual or, you know, some entity that wants to broadcast. So if you can go to FCC and say, look, Iíve got this farm in North Dakota and I think Iím not going to interfere with any existing user, I think you have a First Amendment right then to get on the spectrum unless the government is in the middle of allocating it for something else, right?
The government can certainly say it has a substantial interest if theyíre in the middle of some other allocation process. Why do I say this responds to your point about Verizon? If youíre right that there just wonít be many non-commercial low-power FM -- you know, I donít think the First Amendment tells the government how it has to structure the ownership rules about who gets a low-power stations, but letís say youíre right and only a few of those non-commercial church groups go forward, only a few Roy Nesets go forward. And Verizon can then say, oh, look, we found a place where we can now transmit, and we can transmit our radio station or our cell phone, you know, whatever we want to do, but weíre not going to interfere, I think they have to be, you know, let on. Whoever has that can sort of point to a place where they wonít be interfering with an existing user.
Now let me note, again, this can leave all sorts of inefficiencies. It might be that Verizon could show me with facts and figures that it makes much more sense to give them a global footprint over all the low-power frequencies so that they can set up, you know, Catherine Zeta Jones, whatever, you know, advertisements rather than having these church groups that do it. I donít think the First Amendment speaks to that. I think once the capacity is out there, I think itís a policy question about how those ownership limits then get divided up.
MR. ROBINSON: I was just going to say I think Verizon wouldnít be representing Catherine Zeta Jones.
MR. BENJAMIN: Whoís Catherine Zeta Jones for?
MR. BENJAMIN: All right.
MR. HAZLETT: I just have to add a quick detail here. I donít know if you snuck into the office and saw Brunoís data on this. Weíve actually been looking at how many of these low-power licenses that were awarded are actually in use. So the next time you attack Congress for paring back the FCC rules, you might want to take a look at the FCCís rules, and just a whole host of them, no advertising being the first one.
Two-hundred-fifty-five license awards were announced two years ago this month. Half of the awardees have bothered to get the construction permits. About 35 have operating licenses, of which we actually find signs of life for 15 that offer regular programming. So thatís 6 percent of the first 255; theyíve had two years. And in fact, when these licenses actually started to come on, the construction permits, they had an 18-month lag on that. So some of these licenses are actually being handed back to the FCC now Ė starting to be handed back to the FCC because they didnít construct them. But this is the severe constraints. Itís actually quite an interesting and challenging question. You just said, no, that thereís no First Amendment issue there, or itís harder, is what I interpreted.
MR. BENJAMIN: Well right, although, again, if Ė that would suggest to me that then some commercial users should be able to go in and say, well look, Iíve found this great neighborhood in, you know, in Philadelphia where this is just not being used, and I want to Ė
MR. HAZELETT: Yeah, okay.
Q: Hi, Iím Tom Donlan with Barronís magazine. Although as a journalist I applaud anything that extends the reach of the First Amendment, I really would like to understand why we care that much about broadcasting since itís tending to become the Vermiform Appendix of communication. We have this amazing enhancement of communications abilities; freedom of the press is now not limited to Ė (audio break) -- we stop worrying too much about whether the farmer in North Dakota can put up his own transmitter, which seems to me to be a completely useless solution to his problem of entertainment in his tractor compared to downloading the same talk radio show and putting them on MP3s and shoving them in a player in his tractor. End of his problem, right? Or wrong?
MR. BENJAMIN: Well, I donít mean in the paper to focus Ė I mean, weíve talked a lot about broadcast, but I take your point, and I was serious when I say I think Tom Hazlett is probably right that we should have no spectrum devoted to broadcast, and I also commend that paper to you.
Q: Well, Iíve read it and I agree with it, but still Ė
MR. BENJAMIN: But let me point out that in this paper also I talk about, for instance, ultra wideband. I donít at all think of this as being limited to low-power FM. I gave that as an example; that was what spurred me. But I agree with you. Whatís the real growth industry here for underutilized spectrum? It is probably very low-power ultra wideband, not very low-power radio. Itís setting up networks that operate with these very sophisticated algorithms.
I see Greg wants to respond to that.
MR. HAZLETT: Heís just waving. (Laughter.)
MR. BENJAMIN: Oh. But it seems to me that that really is a much more exciting growth potential for spectrum, and the FCC has in fact allowed some ultra wideband, as you probably know, on this sort of experimental basis. Well, I'm just suggesting there should be a whole lot more ultra wideband, and thereís a lot of opportunities that opens up for all sorts of communications that you can now engage in with your neighbor, you know, or around your house and in your city, thatís in many ways much more exciting that broadcast. Youíre right. I mean, Roy Neset is doing on a smaller scale what existing broadcasters are doing. Ultra wideband might potentially allow us to have a whole different kind of communication network that gets created.
MS. SOHN: Stuart, could I just Ė and then I'm going to have to run. I think you canít separate one out from the other because, quite honestly, sort of the, you know, the separate and, you know, for some odd reason, elevated regulation of broadcasting, you know, coupled with the colossal giveaway in 1997 of the digital television spectrum, it really does play on how these new mesh networks, ultra wideband networks, get deployed. Now, as I said before, one of my concerns about the Spectrum Task Force Report is it gives the broadcasters all the goodies and the, you know, as Reid Hunt (sp) used to say, the ďbeachfront property,Ē the spectrum, and leaves the stuff you care about, you know, in the ghetto. So I think you have to care about broadcast regulations to the extent that it actually limits the potential for some of the new technologies to grow.
MR. HAZLETT: We have time for one more question. Greg.
Q: I raised my hand earlier.
MR. HAZLETT: Okay, do you have a quick question? Okay, Iíll tell you what Ė
Q: (Off mike.)
MR. HAZLETT: Letís do three quick questions and then they can just finish them up, and then thatís the commons, itís going to be a big tragedy, but Ė (laughter).
Q: My name is Chuck Jackson. Iím an electrical engineer and consultant. I guess I know some on the panel; one of them used to be my boss. Two observations. And one, if you think the golden spectrum today, with modern technology, is below three gigahertz or five gigahertz, the broadcasters have 10 to 15 percent of that for their over-the-air service, a little bit more for their backhaul. Itís not the heart of how the spectrum is being used, the good spectrum today is being used -- it might have been in 1953. And it seems to me that the discussion of broadcasting issues tends to cloud the mind and focus on other than the heart of the issue. And Gigi is sneaking out, but I think she had very sound insights here. I commend that.
And the other point Iíd make Ė and this gets to some of the litigation strategy -- is, for example, the dispute over ultra wideband was -- a significant part of the opposition to ultra wideband came from the air navigation community and the FAA. And they took the position that ultra wideband systems might create harmful interference to GPS. And you can just see if theyíre arguing that at the Supreme Court they would say something like, yeah, Your Honor, we canít tell you exactly how many airliners would crash in the next decade because of this requested authorization. Our worst scenario says itís no more than four, and maximum fatalities of no more than 2,000, but it could be zero; we canít tell you exactly. And it seems to me that kind of interference model is going to be very hard for anybody on the other side to rebut, and it will be very compelling.
Q: Assuming that thereís not a First Amendment problem here, Iíd like to ask a question about administrative law or good government, or regulatory failure, and that is, if we have this incredibly valuable resource, public resource, that has been terribly underutilized, is there any alternative remedy? If I were the trustee of a trust and I failed to invest the rates of the trust in a productive way for the beneficiaries, Iíd be kicked out as a trustee or maybe sued. If I were the CEO of a corporation and I failed to take advantage of some enormous opportunity, you know, an oil reserve underneath my companyís land, presumably there would be consequences, you know, in some sort of negligent failure to maximize the value of the interests of the ultimate owners of the assets. Is there anything like that that is at all available?
Q: And my question Ė Iím Drew Clark with National Journalís Tech Daily Ė I guess raises the opposite approach, which is that, Stuart, how can you avoid looking at the commons and/or licensing models through this paradigm? I mean, isnít there also First Amendment Ė or do you think there might be free speech issues raised by merely the desire to be able to transmit on the electromagnetic spectrum so long as the scarcity is not really in play? You know, why doesnít that essentially bring a First Amendment argument to bear on the question of unlicensed versus licensed spectrum?
MR. BENJAMIN: Let me just respond very briefly; I want to give everyone else a chance to talk. You hit on the exact point. If scarcity is not in play, then those issues are raised. In this paper I really am assuming that scarcity Ė I am assuming scarcity Ė I am assuming itís the given doctrine, and I must say, Iím not sure Iím yet persuaded that this vision of infinite spectrum Ė Iím not sure that Iím persuaded that thatís right, but it doesnít matter, for purposes of this paper where I am just assuming scarcity. But I want to give others a chance to talk because I havenít done that, and I apologize.
MR. ROBINSON: I have a comment on Gregís point because it sort of ties into mine. Sad to say, there probably isnít any mechanism for throwing the rascals out. My point about the First Amendment is that not only will it probably not do the trick, but it probably goes in the opposite direction because if the problem is that weíve got a kind of a bungled spectrum, it turns out that the people with the strongest First Amendment voice are the people who bungled it. The people who are the winners now are the broadcasters. Theyíre the ones who have vis-ŗ-vis Ė almost all contestants have the strongest First Amendment clients. They donít have the only ones, there are lots of other speakers, but in any competition between broadcast use and some other use, it is at best a standoff; that is to say you will never trump the broadcasters on a First Amendment claim Ė oh, my First Amendment rights are better than yours Ė and yet I think when we get to the root problem we see that, you know, almost every place we want to go Ė more cell phone, 3G Wireless, et cetera -- gee, if we only had back some of the spectrum that we have locked into VHF and UHF broadcasting, we could solve a lot of problems, but we just wonít do it with the First Amendment.
MR. KRATTENMAKER: If weíre just moving down the table -- Greg Sidak, the answer to your question is, yes. Write down the following: FCC OPP Working Paper Series Number 38, ďA Proposal for a Rapid Transition to Market Allocation of Spectrum,Ē how to do it; itís right there.
I donít know that this is a fair thing to do -- one more point -- but a way that I would restate what I think Ms. Singleton was asking about Ė I hope I got your name right Ė is itís an odd First Amendment right that says you have a First Amendment right to transmit on the third adjacent band at 103.5 either so long as you show up first or so long as you are the person whoís name is pulled out of the hat when 20 of you file the same lawsuit, or so long as you were the one whom the FCC selects when the court sends the 20 plaintiffs over to the commission to choose it. Weíre not used to thinking of First Amendment rights as being, in that sense, contingent.
MR. BULLOCK: And I would just make the final point that Drew alluded to, and it gets back to one of the points that I made in my comments of where weíre in a very tough procedural posture in challenging some of these regulations because you do have this very clear statute that says you cannot broadcast without a license, period, and thatís what got Mr. Neset in trouble because he was broadcasting without a license, as all the other low-power people clearly were as well. But the regulations of low-power Ė the regulation that initially prohibited the granting of licenses to low-power broadcasters, and now the ones that very severely limit them under the law, the way itís developed, and the decisions, the way itís developed, that those are basically unreviewable by a federal court because theyíll say, well, those are FCC regulations; we canít pass upon the constitutionality of those. Youíre kicked back into the regulatory morass of the FCC, and thatís the dilemma in raising some of these issues and getting a federal court to look at them. And thatís something that weíre going to take a more serious look at in trying to crack this very severe logjam thatís present.
MR. HAZLETT: Thanks very much. And I want to congratulate Stuart on a fine piece of work, and we wish him well with future research. And a great panel; the comments were first rate. So, Scott and Tom and Glen Ė and Gigi had to run Ė and finally my thanks to the audience; great questions, great audience. Hopefully weíll be able to put on some more programs, and Peter and I will have you back for another Manhattan Institute seminar.
Thanks a lot.