How is the Public Interest Served When Broadcasters Depict Illegal Behavior with No Consequences?

A recent episode of CBS’ hit series, Two Broke Girls, was thought-provoking; thought-provoking in the sense that it made me ponder, “In 2013, what is the public interest with regards to television broadcasters?”  That is, does it serve the public interest when a prime time (8:30/7:30 pm Monday), entertainment television program depicts behavior which is illegal under federal law without any negative consequences to those characters? In fact, one of the characters suggests a positive impact to the depicted behavior when she says at the end of the episode (20:37), “And another problem solved by weed.”

If CBS were a cable television network, there would be no question regarding its freedom to air the aforementioned episode, since cable television fare is not intended for the public airwaves. CBS-owned stations and CBS affiliates, however, use frequencies that are public and they were given the license (i.e. didn’t pay for the use of the airwaves) in order that they, “Foster the commercial development of the industry and to ensure that broadcasting serves the educational and informational needs of Americans.” Of course, the determination of what is educational and informational versus obscene and indecent is somewhat subjective and has led to court cases throughout the decades.

It is competition with the cable networks for an increasingly fragmented audience that pushes the broadcast networks to air content that is sometimes provocative and gratuitous. It is somewhat ironic that, on one hand the networks are lauded for removing positive references to cigarette smoking, while at least one shows its characters smoking illegal substances.

From a financial standpoint, the broadcast networks look increasingly like cable networks as they augment their advertising revenue with billions of dollars from retransmission fees; fees that are eventually paid for by consumers in the form of higher cable bills. Like cable networks, the broadcast networks are increasingly using the Internet to reach an audience that has tuned out of over-the-air broadcasts. Online is exactly where one can find the aforementioned episode of Two Broke Girls.

Maybe I Have Been Asking the Wrong Question #

As I have pondered my original question, I realize that the right question isn’t whether the public interest is served by our current television broadcast licensing regime, but whether there are better ways to serve the public interest with the spectrum that the broadcast networks use. I contend today, as was implicit in this article from five years ago, that opening up broadcast spectrum for broadband use would provide greater value to the public; essentially allowing everyone to be a broadcaster through the power of the Internet.

In the aforementioned article, I lamented that it was too late to change the DTV transition to better serve the needs of the owners of the spectrum.

Perhaps it isn’t too late, as the proposed Consumer Choice in Online Video Act, S. 1680 by Senator Jay Rockefeller (D-W.Va.) would radically change the way “cable television programming” is delivered. By creating a new class of multichannel video programming distributor – a non-facilities based, online video distributor – the current notion of FCC regulations around things such as retransmission consent, local franchising fees and program non-duplication could be in for some big changes.

To his 16 page bill, I would like to suggest an additional clause:

Any broadcaster that receives retransmission consent fees for its programming would relinquish its spectrum or pay fair market value to the U.S. treasury for said use of its spectrum.

In other words, this language would acknowledge that the “broadcast networks” really are cable networks, given that approximately 93% of their viewers are delivered via an MVPD or a broadband portal.  The broadcast networks might lobby against this addition (along with the rest of Rockefeller’s bill), but at least one of them has already threatened to unilaterally take such a measure if the courts back Aereo.

There will be much fighting over the details of Rockefeller’s bill, but at least the conversation has started and perhaps now is the time to seriously look at how more of the spectrum that is currently used for broadcast television could better serve the public interest.

Additional Reference Material: #

• The White House Marijuana Resource Center

“Confusing messages being presented by popular culture, media, proponents of “medical” marijuana, and political campaigns to legalize all marijuana use perpetuate the false notion that marijuana is harmless. This significantly diminishes efforts to keep our young people drug free and hampers the struggle of those recovering from addiction.”

• Results from the 2011National Survey on Drug Use and Health: Summary of National Findings
• Informative article on the origins of the 1927 radio act and the tension between free speech and public interest:

http://www.scripps.ohiou.edu/mediahistory/mhmjour2-2.htm