Whose Airwaves Are They?
There Is Nothing Peculiar About the Broadcast Spectrum to Justify Collectivization
JULY 01, 2004 by SHELDON RICHMAN
Filed Under : Property Rights
The heat is being turned up on radio stations for broadcasting indecent material. The Federal Communications Commission (FCC) has fined Clear Channel Communications nearly half a million dollars for broadcasting several minutes of lewd remarks by radio star Howard Stern back in April. Clear Channel has since stopped carrying the program on its six stations. The FCC is also investigating whether to impose fines on Infinity Broadcasting, a unit of Viacom, which broadcasts Stern’s program on 18 stations and distributes it to others. Stern has not been the only target. Congress has also joined the battle to clean up the airwaves.
Which brings up a question that hardly anyone seems interested in: Whose airwaves are they? The standard answer is that they belong to the public. Throughout the debate over what can and cannot be broadcast, no one has questioned that premise. Even people who ordinarily extol private property as a pillar of Western civilization are strangely enthusiastic about collectivism when it comes to the broadcast spectrum. In a statement typical of those battling indecency, L. Brent Bozell III, president of the Parents Television Council, asks, “Why does the FCC ignore its Congressionally mandated role to enforce broadcast decency standards over the publicly owned airways?”
Isn’t something out of kilter when the world’s reputedly paradigmatic capitalist country has public ownership of this resource? There is nothing peculiar about the broadcast spectrum to justify collectivization. The spectrum was not a resource until particular individuals discovered its usefulness. That required scientific and entrepreneurial insights: namely, that sounds and later pictures could be delivered through the air, and that people would be willing to pay (even if indirectly) to receive them. The risk-taking involved is easy to overlook now.
What did the pioneers of broadcasting get for their trouble? Government appropriation and licensing of that revolutionary resource. (This is not to ignore that some of the early titans of broadcasting reaped benefits from the government’s takeover of the spectrum.)
It almost didn’t work out that way. When the first radio broadcasters commenced, they sometimes interfered with each other. Aggrieved parties did what Americans always do when they believe their property has been violated: They went to court. The courts, quite naturally, began to apply the common-law principles of trespass to resolve the disputes. Formal property rights were beginning to emerge.
But in the 1920s the federal government got into the act. Then-Commerce Secretary Herbert Hoover, who oddly has a reputation as an advocate of individualism and laissez faire, began by unilaterally regulating the airwaves. Next he engineered the Federal Radio Act of 1927, which authorized a new government agency to parcel out the spectrum to licensees. (Yes, it could have been worse: Hoover could have set up a state broadcasting monopoly.) With the authority to issue and revoke licenses came the power to impose obligations on broadcasters, such as the equal-time rule, the fairness doctrine, the restrictions on indecency, and the prohibition of obscenity. Theoretical ownership by the public always means actual control by government.
The last 20 years have seen some relaxing of the rules, but few people have seriously questioned the socialized status of the airwaves. With good reason people worry about what they and their children might be exposed to on radio and television, and I don’t mean to minimize that concern. But I do mean to say that collective—that is, government—ownership is an illegitimate solution in a free society.
* * *
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