rise and demise of the technology-specific approach to the first amendment, The

Georgetown Law Journal, Jan 2003 by Yoo, Christopher S

INTRODUCTION

Congress and the Federal Communications Commission (FCC) have historically relied on models of media regulation that were shaped by the distinct physical and economic characteristics of the communications media governed by the Communications Act of 1934.1 Originally, person-to-person communications were available only through wire-based technologies, which were characterized by the high fixed costs that have traditionally been associated with natural monopolies. As a result, such communications were governed by the "Telephone Model," which incorporates the system of common carriage obligations and rate regulation that has represented the traditional regulatory response to natural monopoly. Mass communications, by contrast, originally employed the electromagnetic spectrum as its sole means of transmission. As a result, regulatory authorities relied on what they perceived to be the unique physical qualities of spectrum-based communications in developing the system of administrative licensing, content restrictions, and affirmative programming obligations associated with the "Broadcast Model" of regulation.2

This technologically balkanized approach to regulation remained coherent only so long as each type of communications was available solely through a distinct means of transmission. The emergence of cable television, however, began to cause this tidy regulatory division to unravel because it allowed mass programming to reach consumers via wire-based technologies previously dedicated to person-to-person communications. The arrival of wireless telephony completed the collapse of this scheme by making it possible to receive person-to-person communications over the spectrum. Furthermore, the impending shift of all networks to packet switched technologies promises to cause all of the distinctions based on the means of conveyance and the type of speech conveyed to collapse entirely. Indeed, the FCC has spent much of the last half-century struggling with the policy implications of technological convergence.

At the same time that Congress and the FCC were developing their technology-specific approach to telecommunications policy, the courts were engaging in the parallel process of developing a technology-specific approach to the First Amendment. Expanding on the sentiment reflected in Justice Robert Jackson's declaration in Kovacs v. Cooper3 that each means of communications represents a "law unto itself,"4 the Supreme Court suggested that the First Amendment might apply differently to each communications medium.5 Although one might have expected a plethora of technology-specific First Amendment standards to emerge, in actuality the Court restricted itself to two. The first, most strongly associated with newspapers and other forms of print, accords an almost prohibitive degree of protection against governmental interference.6 The second, developed in the context of broadcasting, has been more permissive of governmental regulation. In a series of decisions highlighted by NBC v. United States7 and Red Lion Broadcasting Co. v. FCC,8 the Court announced that the physical scarcity of the electromagnetic spectrum justified according broadcasters a lesser degree of First Amendment protection. The Court has relied on this so-called scarcity doctrine to uphold a wide range of structural and content regulations. The Court's subsequent decision in FCC v. Pacifica Foundation9 held that the unique pervasiveness and accessibility of broadcasting provided a further basis for subjecting broadcast regulations to a lower level of First Amendment scrutiny.10 The scheme that has emerged has been aptly dubbed a "virtual celebration of public regulation"11 that has largely obscured the extent to which the current regulatory approach to broadcasting represents a constitutional anomaly. Had the Court failed to recognize these two grounds for upholding more intrusive regulation of broadcasting, it is almost certain that the principal features of the broadcasting model would not have withstood constitutional scrutiny.12

The possibility of variable First Amendment standards has had a dramatic impact on other media as well. Until courts resolved whether a new form of communications was more like broadcasting or more like traditional media (such as print), private parties and regulators could do little more than speculate about the constitutional propriety of any particular regulatory provision. The Supreme Court's continuing struggle with the proper First Amendment standard to be applied to cable television nearly fifty years after its emergence underscores the significance of the costs associated with such uncertainty.13

Similar problems have threatened to impede the ongoing transition to digital television technologies. As the conversion of the music industry from analog-format vinyl albums to digital-format compact discs demonstrates, digital technologies allow for far more efficient storage and transmission of information. They also allow content to be copied without any material signal degradation. As a result, the conversion to digital technology promises to revolutionize the quantity, quality, and variety of television services available to the typical American consumer. Although many do not realize it, the conversion to digital television is already well underway. FCC regulations required that all television stations supplement their current analog signal with a digital signal by May 1, 2002.14 The governing statute also calls for all stations to cease transmitting analog signals altogether and to broadcast solely in digital by December 31, 2006.15 Although compliance has been less than perfect,16 it is clear that digital television is in the process of becoming a reality.