"The public airwaves"-it's a catchy phrase. And it's been repeated so often that most people believe it. Especially Congress.
The fact is, however, this is a myth. The airwaves do not belong to the public. Not in fact and not in law.
This misconception has been the excuse of government regulators to impose restrictions on broadcasters that would be clearly unconstitutional if applied to other media.
Let's look back quickly over the legislative history of broadcasting. In 1912 Congress passed the first law requiring a radio license.
Then in 1920, Westinghouse saw that it wasn't moving many radios, even at 10 bucks. So the company started radio station KDKA in Pittsburgh. You could hear election returns. Music.
Sets sold. Radio boomed!
By 1927 there were so many broadcasters that their signals were interfering with each other. They asked Congress to work out the problem (live and learn). Thus the new radio act. By 1934 Congress updated the law by passing a new Communications Act and established the Federal Communications Commission.
Research by the Library of Congress' Congressional Research Service, National Association of Broadcasters attorneys and various legal scholars has shown that the authors of the Radio Act of '27 and the Communications Act of '34 never indicated the notion of "public airwaves."
Congress did not intend to vest the property right of ownership of frequencies in either the public or the government. Transmission interference was the main reason for license regulation.
Spectrum ownership was debated prior to the Radio Act. The House stated "that the ether within the limits of the United States, its territories and possessions, is the inalienable possession of the people thereof." The Senate's version: "The government intends forever to preserve and maintain the channels of radio transmission as perpetual mediums under the control and for the people of the United States."
Neither provision became law. The ownership clause was rewritten to read: "No station license shall be granted by the Commission or the Secretary of Commerce until the applicant thereof shall have signed a waiver of any claim to the use of any particular frequency or wavelength or of the ether as against the regulatory powers of the United States, because of the previous use of the same, whether by license or otherwise."
Section 304 of the Communications Act makes no mention of public or government ownership. Only regulatory power is referenced.
Senator Dill, co-author of the Radio Act of 1927: "The government does not own the frequencies as we call them, or the use of the frequencies. It only possesses the right to regulate the apparatus...We might declare that we own all the channels but we do not."
A 1979 Congressional Research Service study came to the same conclusion: "We believe the fact that no person, nor the government itself, owns the frequencies...or the use of the frequencies" is the clear intent of Section 304 of the Communications Act of 1934. It has never been judicially challenged. The law is clear that no property rights today exist.
The ether, the spectrum, the radio waves. They're there. But until they are enhanced by a broadcast signal they have no value to the public. You'll say, "But frequencies are scarce." So, land is scarce. So, oil is scarce.
But this is not sufficient reason for public ownership. Besides, with low power stations, cable and video, we're on the information highway to a moot point. The "natural monopoly" or "public utility" attitudes toward broadcasting are obsolete.
Most broadcasters feel a special sense of responsibility because of the "reach" of their signal. Then, any highly profitable business should have the same feelings. But wanting to "change" television is no excuse to interfere with the First Amendment rights of broadcasters.
It's been said: "For every complex societal problem there's an easy answer-that's wrong!" TV is not the root cause of the ugliness in today's society. TV reflects the ugly.
Many, including Janet Reno, love to say that "television too often panders to our lowest common denominator." To me that's the kid who spends three years in the fourth grade.
Television attempts to reach the largest mass audience. No apology here. This is the same group that elects our Congress, and our president.
The next time you see something on TV that makes you want to call and say, "I'm never going to watch you again," pause a moment. The first thing that disappears when freedom disappears is free speech-free broadcasting and a free press.
Even bad broadcasting is a small price to pay for a free society.
Mr. Franzgrote is president of KUSA-TV, Denver. This article first appeared in the January-February issue of Info, published by Nova II Publishing, Golden, Colo.