Former FCC Counsel Erwin Krasnow Calls For End To 'Public Ownership Of Airwaves' Standard
May 3, 2011 at 4:22 AM (PT)
Former FCC General Counsel ERWIN KRASNOW is calling for the end of the concept of "public ownership of the airwaves." In an opinion piece released by the MEDIA INSTITUTE, KRASNOW, noting the 50th anniversary of then-FCC Chairman NEWTON MINOW's "vast wasteland" speech and current FCC Commissioner MICHAEL COPPS' similar disdain for how broadcasters approach public service programming, KRASNOW, quoting AYN RAND and Justice WILLIAM O. DOUGLAS, charges that the idea that the public is owed anything for the use of airwaves is "absurd."
The spectrum is there whether it is used or not; only when it is enhanced by the use of broadcasters and others does it have any value at all to the public.
"The radio frequency spectrum cannot be seen, touched, or heard," KRASNOW, presently a partner at law firm GARVEY SCHUBERT BARER, writes. "It has existed longer than man and like air, sunlight or wind, cannot be owned by anyone. Does a person who uses a windmill to grind grain or pump water owe the 'public' for the use of the wind? What about the sunlight used by those who grow wheat, corn, or other crops? And what about the use of the “public’s air space” by aircraft? The list could go on and on, and in each case it can be said that someone is engaging in a business enterprise by using a 'public resource.'"
"The concept of public 'ownership' of the airwaves is demonstrably at odds with Congress’s intent in enacting the Radio Act of 1927 and the Communications Act of 1934," KRASNOW asserts, adding, "The spectrum is there whether it is used or not; only when it is enhanced by the use of broadcasters and others does it have any value at all to the public."
KRASNOW also takes on the scarcity justification for broadcast regulation, saying, "There is no blinking from the fact that technological developments have advanced so far that the time has come for both Congress and the FCC to revisit and to renounce the notion of scarcity in today’s digital world."
"The time has come," KRASNOW concludes, "for the FCC to take the following actions: Renounce the discredited concept of public ownership of the airwaves, bury the scarcity rationale, and adopt the approach advocated by former FCC chairman MARK FOWLER, by applying a public-interest standard based on minimally regulated marketplace forces rather than content regulation. FOWLER once said that whether you call the public-trusteeship model of regulating broadcasters 'paternalism' or 'nannyism,' it is 'Big Brother,' and it must cease. Amen."