Stuart Benjamin: FCC Isn't Forcing Broadcasters Off Spectrum

Distinguished scholar draws distinction between his views and commission's

By John Eggerton -- Broadcasting & Cable, 1/28/2010 5:56:04 PM

"We are not going to force any broadcasters off the air," said Duke Law Professor Stuart Benjamin Thursday (Jan. 28).

Benjamin, the FCC's distinguished scholar in residence, was being interviewed for C-SPAN's Communicators series, prefacing most of his remarks with the disclaimer that they were his comments, not the FCC's. He attributed the above to the FCC, which seconds assurances provided to B&C by the FCC's top spectrum policy staffer

Benjamin's views have come under fire from broadcasters over past writings, particularly "Roasting the Pig to Burn Down the House," in which he suggested broadcast spectrum would be better off in other hands, and that regulating them out of business might be one way to do it.

But while he says his job includes advising the chairman on what proceedings to launch, a larger part of his job is to raise both sides of issues and combat a kind of "groupthink" in Washington with the "clash of ideas" he says FCC Chairman Julius Genachowski wanted when he reached out to him.

Benjamin told C-SPAN his spectrum views are his own, and he drew a distinction between them and the commission.

Benjamin said that what he "really meant" in his article was that "we are best off moving toward spectrum flexibility so that people can determine what services they want, and from the bottom up rather than the top down."

In that world, he said, without spectrum dedicated to a specific purpose, it might be that people would choose broadcasting or perhaps something else. "We should let whatever it is people want arise. The point of the article was that we are not there because we now have spectrum dedicated to various services and I think that is a mistake." He says the FCC should not be deciding, pointing to the last line of his article: "Spectrum regulators unite, you have nothing to lose but your job," adding that the article was partly tongue in cheek.

Benjamin distinguished that from what he says the commission's view is, though he also said it was "not necessarily discordant" his own.  "We need to get to a position where we have lots of spectrum available for broadband as well as the services we have come to expect and associate with things like broadcasting," he said.  "And we are not going to force any broadcasters off the air, it is going to be a voluntary program...But there have got to be ways of making this a win-win for everybody. He says everybody agrees that spectrum is the "oxygen" for broadband.

Benjamin said that he does not feel very strongly about how spectrum is reclaimed, which could include allowing broadcasters to use it flexibly or taking back. He said in the first case some would argue that would be a windfall for existing licensees, and in the latter broadcasters might say that wasn't fair for them. He said he guessed it would wind up being something in between once the process had made its way through the commission and Congress.

But while Benjamin's spectrum theories have created ulcers for broadcasters, he offers something of a tonic in his view of spectrum scarcity and the Red Lion decision that upheld broadcast regulation based on that rationale.

"I have never found Red Lion persuasive, which is to say that I don't think spectrum is uniquely scarce in any way that printing presses are not," he said. He added that he didn't believe in any affirmative regulations on broadcasting based on that rationale "as opposed to regulation of every other provider that they can't regulate under the First Amendment."

While broadcasters have used arguments against spectrum scarcity to fight FCC indecency regulations, Benjamin said he has never argued that those regulations are unconstitutional.

He said that he thought there was more to the intrusiveness defense for the regulations in the Pacifica  than in the Red Lion scarcity justification, saying the two stood on different ground.

He also seemed to share some media ownership ground with broadcasters. He said he has not written about media ownership because it is a data-driven answer and he does not have all the data. But he said that whatever the answer was two or three years ago may not be the same one today. "While you might have said three years ago, I will allow cross-ownership in this context, maybe now it is in a different context just because of the way the world has changed."

Benjamin said he had no answers about the future of the media--the FCC has launched an initiative looking into it. But he said he thought the FCC was asking the right questions, because the media business was changing and the commission needed to think about how local news people have come to rely on will be delivered in that future when the economics of traditional delivery are in question. "In 10 years we are going to be in a different place. I don't know what that place is, nobody knows. But I guarantee you they are going to want the kind of services they associate with local broadcasters and newspapers. So, the question is how should that look and what, if anything, should the FCC do about it?"