Former NAB GC Says Public Ownership Of Airwaves Is Fallacy

Former NAB General Counsel Erwin Krasnow says that it is time for the FCC to renounce the "discredited concept" that the public owns the airwaves, which he says is the "the main reason for broadcasting's second-class status under the First Amendment."

Krasnow, who is currently a partner at law firm Garvey Schubert Barer, laid out his argument in a paper, "The First Amendment and the Fallacy of the Public's Airwaves," for First Amendment think tank The Media Institute in Washington in association with the Thomas Jefferson Center for the Protection of Free Expression.

Krasnow takes aim at what he calls the "born-again intensity" with which consumer activists and government officials, including FCC Commissioner Michael Copps, uses the concept of public ownership of the airwaves to "call upon the government to intervene in the programming decisions made by radio and television stations."

Krasnow argues that the airwaves are no more owned by the public than is the sunlight used to grow grain or the wind used to turn a windmill.

The other rationale used to justify broadcast regs is the scarcity of spectrum, but he says that "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."

He points out that the Supreme Court (in 1984) signaled that it would review the scarcity rationale if Congress or the FCC indicated that technology demanded a revision of broadcasts regs. That time is overdue, Krasnow suggests.

Krasnow calls for as return to the deregulatory philosophy of Republican FCC Chairman Mark Fowler, who characterized the public trusteeship model of broadcasting as a "Big Brother" regime that should be dispensed with in favor of a public interest model that focused on the public's interest in "minimally regulated" marketplace forces rather than content regulations.

The paper is part of the "Speaking Freely" series that the Institute and Jefferson Center bill as the authors and not necessarily their own.