Station brakes: the government's campaign against cable television

Reason, Feb, 1995 by Thomas W. Hazlett

The commission was alarmed by this consumer choice thing and projected that allowing cable to bring extra signals into a market would fundamentally threaten the viability of broadcasters. Since broadcasters had received airwave rights at no charge only because they had promised to abide by their obligations as public trustees, damaging broadcasters meant destroying the public interest itself.

Starting with the so-called Carter Mountain decision (1962) and continuing through rulemakings in 1965, 1966, 1968, and 1970, the FCC handed down a series of regulations that placed onerous burdens upon cable operators attempting to do business in the top 100 U.S. television markets (with about 90 percent of U.S. television households).

In 1966, the commission stated its cause for concern about marketplace competition in ominous bureaucratic tones: "We must thoroughly examine the question of CATV entry into the major markets, and authorize such entry only upon a hearing record giving reasonable assurance that the consequences of such entry will not thwart the achievement of the congressional goals. We cannot sit back and let CATV move signals about as it wishes, and then if the answer some years from now is that CATV can and does undermine the development of UHF, simply say, 'Oh well, so sorry that we didn't look into the matter.'"

That consumers might like to be "fragmented" or "siphoned" -- indeed, that only willing channel-flippers could be fragmented or siphoned--was not a big concern. While the First Amendment might have looked slighted by this ham-handed government intervention in the workings of the electronic press, the scholars at the FCC had a handy explanation of how their scheme fit tidily under the Constitution. It furthered First Amendment values to have government provide for the goals sought by the Founding Fathers: diversity of expression, local control of the media, and fairness. This, after all, was how the commission and, generally, Congress defined the public interest.

By buying that line, the courts allowed the commission to go into the editorial business in a funny way: While the FCC couldn't directly tell broadcasters what to air, it certainly could hammer them with regulations in "the public interest." So it embarked on various schemes to encourage what the FCC dubbed non-entertainment programming--news, talk, and public affairs. In the commission's scheme, informational programming was inherently non-entertaining and, hence, unprofitable. Regulators had to force the market to supply this meritorious product--to uplift the public and improve our democracy--despite the financial interests of licensees in producing a steady stream of police dramas, sitcoms, movies, and sports.

The regulators' lament was that greedy licensees had to be carefully watched by publicly minded civil servants such as themselves. Left to their own devices, the vile private broadcasters would think only of their own profits and produce a shoddy product. In fact, we had already arrived in this video sewer, which Newton Minow, the greatest FCC regulator of all, famously decried as "the vast wasteland." Running the Kennedy administration's FCC, Minow beamed with regulatory pride in coercing broadcasters to do more of what they inevitably tried to stint on. "News, information, and public affairs programs are the heart of broadcasting in the public interest," he said in 1961. Indeed, a chapter in his 1964 book, Equal Time, is titled: "News, News, Never Enough."