Constitution Day at the FCC

Randolph May Contributor
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On September 17th we celebrated Constitution Day, commemorating the day the delegates to the Constitutional Convention met for the last time on September 17th, 1787 to sign the document they had created.

While Constitution Day should be important to us all, it should be of special importance to the Federal Communications Commission’s commissioners and staff. This is because so many of the FCC’s regulations and policies substantially implicate free speech interests protected by the First Amendment.

On the one hand, some FCC regulations and policies mandate that communications and Internet providers, and broadcasters, cable operators, and other media purveyors, must carry certain programs or information content they may prefer not to carry. On the other hand, other regulations proscribe carriage of some programs and content that communications and media companies would prefer to carry.

No other federal agency’s actions implicate free speech interests as much the FCC’s. Hence, the agency’s commissioners and staff should have a heightened interest in the Constitution, and its proper application.

Without trying to be exhaustive, here are some of the FCC’s regulations and proposals that implicate the First Amendment’s free speech guarantee.

Cable television and satellite operators must carry on their systems certain channels and programs that they may prefer not to carry, and they may be required to place such programming in a particular channel location on their systems that they may not prefer. The must carry mandates includes local broadcast programming, and public, educational, and government channels.

Cable operators and other multichannel video program distributors are subject to program carriage and program access rules that dictate circumstances under which they must make available their limited system capacity to carry programming of others instead of programming of their own choosing. Other regulations dictate they must make available their own proprietary programming on terms not of their own choosing.

The FCC’s proposed so-called “AllVid” rule establishes mandates applicable to cable operators and other video distributors relating to the design of video navigation devices. The new regulations would require disaggregation and unbundling of certain search menus and program display functionalities in accordance with government specifications. In other words, the government would dictate the presentation of search content.

The FCC’s proposed “bill shock” regulations would require wireless operators to provide certain types of information concerning customer usage in certain government-specified formats, using certain specified language, at government-mandated intervals.

And, in the name of non-discrimination and fairness, the FCC’s new “net neutrality” rules prevent Internet service providers from blocking access to websites even if the ISP might prefer to avoid using its own facilities to make available a particular kind of content, say, certain forms of rabid hate speech. And the regulations require Internet providers to carry messages and content indiscriminately – common carrier-like – that the ISPs might prefer not to carry.

And, of course, there are various rules still on the books dictating broadcast content, ranging from the regulation of children’s programming to political programming to indecency.

I don’t suggest all these regulations violate the First Amendment under current jurisprudence. They all don’t. Whether they do depends, in particular instances, on how courts view factors such as whether, if challenged, the government demonstrates a compelling interest for imposing the speech regulation and shows it has employed the least restrictive means to achieve the government objective.

But whether or not these and other FCC regulations would survive First Amendment scrutiny if challenged in court is not my point as we think about Constitution Day. Rather, the point is that the FCC, as the federal agency that exercises the most control over communications and media companies, should, of its own accord, be more sensitive to First Amendment concerns.

Most importantly, contrary to the thrust of many FCC’s actions, the agency needs to understand the First Amendment was included in the Constitution to prevent government interference with private speech, not to authorize the government to interfere with private speech on the premise that it is enabling more important, balanced, or fairer speech.

It is fitting that, so close to Constitution Day, the FCC finally removed from its rules, a quarter century after ceasing to enforce them, the Fairness Doctrine mandates applicable to broadcasters. Recall the Fairness Doctrine required broadcasters affirmatively to cover controversial issues of “public importance,” and to do so in a “balanced” way. When Fairness Doctrine complaints were presented to the FCC, the agency had to conduct an intrusive examination of the content of a broadcaster’s programming in order to resolve the complaint.

The notion that the government, for several decades, engaged in deciding whether a broadcaster’s programming was or was not of public importance, and whether such programming was or was not balanced, now seems rather creepy.

Regardless whether the Fairness Doctrine ever was justified in the more monopolistic media environment in which it was adopted in the 1940s, today we enjoy an extraordinarily different environment — a competitive communications and media marketplace. The arguments in favor of various speech regulations are much less persuasive in today’s era of media abundance than they may have been in the earlier more monopolistic era.

The FCC bears its own special responsibility to comport its actions with a proper interpretation of the First Amendment. Indeed, in a case leading to the Fairness Doctrine’s demise, a federal appeals court made clear that an FCC commissioner’s constitutional oath requires him or her to make determinations concerning whether agency regulations are constitutional.

This constitutional responsibility requires the FCC to consider much more carefully than it often does whether its various regulations infringe on the free speech rights of those subject to its authority.

In this sense, every day should be Constitution Day at the Federal Communications Commission.

Randolph May is President of the Free State Foundation, a nonpartisan free market-oriented think tank located in Rockville, Maryland.