Forget Janet — Congress Must Face Larger Problems

Posted February 10, 2004 at 3:24pm

The House of Representatives this year is set to have the shortest schedule and lightest workload in modern memory. But that does not mean total inaction. Both chambers have mobilized today to consider the biggest issue of our time — the scandal we can, perhaps, call “Boobgate.” [IMGCAP(1)]

Yes, hearings in the House and Senate are scheduled today to explore Janet Jackson’s actions at the Super Bowl.

I do not mean to denigrate those hearings, which of course are on the larger issues of indecency on television and the state of standards in broadcasting. These indeed are serious issues. I was appalled by the entire Super Bowl halftime show, long before the wardrobe malfunction. I was even more appalled by the ads; I am glad I don’t have a 10-year-old at home to discuss the meaning of erectile dysfunction or to explain why horse fart jokes are not really appropriate for all seasons.

I hope, however, that the House Energy and Commerce Committee and the Senate Commerce, Science and Transportation Committee do not just engage in CBS-bashing and use this opportunity to begin the process of re-examining our broader policies toward broadcasting and the electromagnetic spectrum.

Start with one key set of realities here: First, because it does not use scarce public airspace, cable operates under many fewer constraints than over-the-air broadcasting. Cable providers do not have inadvertent audiences; they have contracts with their viewers. Second, broadcast networks are steadily losing their audience share to cable networks, their share now having dropped to well below 50 percent of viewers at most times. A part of that loss comes from the greater freedom that cable has to do shows such as “The Sopranos” and “Sex and the City” or even ribald shows like the Friars Club roasts on Comedy Central.

That leads to the third point: Can anyone be surprised that broadcasters are moving closer inch by inch, or yard by yard, to emulate cable? Or that the vertical integration of broadcast networks and cable outlets has further blurred the lines between, say, CBS and MTV?

But there is a larger reason that over-the-air broadcast TV is losing its share of audience to cable and satellite. Fewer and fewer Americans rely on over-the-air broadcasting for their television. About 83 percent of Americans now watch television via cable or satellite. Of course, they get their broadcast stations that way, as well. But when flipping from channel 24 to channel 38 to channel 69, who makes sharp distinctions between the NBC broadcast affiliate, HBO and Comedy Central?

No doubt, these issues will be raised at today’s hearings, mostly by broadcasters whining that things are unfair: They are saddled with onerous standards and public interest obligations, while cable and satellite have none of their restraints. True. Broadcasters are different, because they have been granted use of extraordinarily precious public assets, the airwaves. But what should follow is a searching analysis of why we have these distinctions between over-the-air broadcast and cable, what has driven our policies as we move to digital — and why we should revamp our policies in fundamental ways.

That means, among other things, a serious reanalysis of the 1996 Telecommunications Act, in which Congress gave (well, technically “lent”) a huge swath of incredibly valuable spectrum — call it “public airwaves” — to broadcasters to make the transition to digital television. How valuable is it? It was assessed at the time at up to $70 billion. The broadcasters’ explicit rationale at the time was this: Lend us this spectrum for a decade and we will move to digital and provide the public with a bargain — a one-for-one exchange of a crummy quality analog picture with monaural sound for a stunning, high-definition picture with five-channel stereo sound. By 2006, the broadcasters vowed, they would return their analog spectrum for the government to auction off, with massive proceeds to reduce deficits and pay for vital programs — including using a portion of those airwaves for public safety, which of course is now, post 9/11, a more vital need than ever before.

We are nearing the decade mark, and here is what we have. Broadcasters’ commitments to make the transition to digital have fallen way short, and the 2006 deadline is a joke. Most broadcast stations are busily making plans to use their digital signal for “multicasting” — multiple channels of lower-quality picture instead of a single, high-definition one — far more often than an HD one. Past budget projections that counted revenues from analog spectrum auction proceeds have had to be revised, even as budget deficits have ballooned and federal revenues have declined as a share of gross domestic product.

The huge problem that emerged with 9/11 of a lack of interoperable communications for emergency services and the lack of dedicated spectrum for all official and emergency communications has not been solved. And the percentage of Americans who rely on over-the-air broadcasting, for whom these multibillion-dollar commitments of public resources have been given, has steadily dwindled, to 17 percent or less (probably much less, since the numbers do not count video piracy). Seventeen percent are driving policy that affects 100 percent.

It is time to rethink the whole model. We do need to provide television opportunities to everybody, including those who cannot afford cable or satellite hookups on their own. But the fact is that we could give digital televisions to all Americans, or converters to turn analog sets into digital ones, for a fraction of what we have committed to broadcasters, and use that spectrum space for a host of other vital needs.

It may be too late to do that. But here is what we ought to do. For broadcasters who do not turn back their analog spectrum by the 2006 deadline, begin charging spectrum rental fees of, say, 1 percent of all revenues, escalating each year after 2007, to provide a serious incentive for fulfillment of that pledge. For public broadcasters, I have long advocated (as a member of the PBS board) that they commit to early or on-time conversion to digital and return of their analog spectrum, which is enough to cover all public safety and homeland security needs, and more. In return, Congress should provide a reward in the form of some auction proceeds and a portion of the rental fees to begin to create a trust fund that can ultimately wean public television off annual appropriations and give it a secure base.

At the same time, Congress needs to consider the balance between the public interest obligations and overall standards that broadcasters have, the need to adjust them to the digital age where the real model will be multiple channels. But Congress also needs to weigh the access broadcasters will have for their multiple channels. There is a crying need to revamp our outdated, outmoded and counterproductive spectrum policy in this area. Don’t miss the opportunity that Janet Jackson has provided to do just that.

Norman Ornstein is a resident scholar at the American Enterprise Institute.