FREE SPEECH AND FEDERAL CONTROL: THE U.S. APPROACH TO BROADCASTING REGULATION

DOIhttp://doi.org/10.1111/j.1468-2230.1976.tb01450.x
AuthorJoan Baker
Publication Date01 Mar 1976
FREE SPEECH AND FEDERAL CONTROL:
THE
U.S.
APPROACH
TO
BROADCASTING
REGULATION
PERHAPS
the single most important issue in broadcasting today, both
in the United States and in Great Britain, may be stated broadly
in this question: Who should have what right to broadcast what
material to whom? The issue is the same in both countries because
it arises in part from the nature of the broadcasting medium. How-
ever, the approach to and resolution of the many subsidiary questions
embodied in the issue have been significantly different in our two
countries because of the different structures of the broadcasting
industries and the manner of their regulation. It is the major
purpose of this article to explore thc problem of control over
programme content in the context of the United States broadcasting
structure.
In the United States, as in Britain, there has been cxtensive govern-
ment involvement in broadcasting ever since the potential uses of
radio were first being realised. Government ownership of and/or
control over the electromagnetic spectrum, the natural resource
essential to over-the-air broadcasting, has been the starting point as
well as the principal justification for government intervention.
Centralised control over the spectrum was essential in order to
prevent interfering uses of radio frequencies that would render
them worthless for any purposes. Government allocation of frequen-
cies has been the solution to the problem of interference;
a
solution
that has been used as a pretext for government involvement
in
nearly
all phases of broadcasting regulation in the United States. The
alternative to continuous government involvement-that is, to
regard the spectrum, once allocated, as if it were
a
freely alienable,
vested private property right-was never adopted, possibly because
of some special importance attached to the medium, but perhaps
simply because of prevailing attitudes toward property during the
historical period
of
broadcasting development.
A
resource that enables its owner to communicate ideas, attitudes
and values to the people living in large geographic areas on
a
vast
range of subjects at relatively low cost, is
a
powerful asset. The
question as to how that asset is to be used (and it is roughly the same
question whether ownership is in government or private hands) and
what the impact of its use will be
on
the people affected by
it,
certainly
deserves all the attention it has received in both our countries over
*
This article
is
based
on
a lecture given in November
1973
as part
of
the
University
of
London
Legal
Series, at The London School
of
Economics and
Political Science. The author wishes
to
acknowledge with thanks the assistance given
at that time by Sir
Huw
Wheldon
of
the
BBC;
and Mr. Brian Young, Director
General, and
Mr.
B.
C.
Sendall, Managing Director
of
Television,
of
the Independent
Broadcasting Authority.
147

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