Out of Thin Air: Using First Amendment Public Forum Analysis to Redeem American Broadcasting Regulation

American television and radio broadcasters are uniquely privileged among Federal Communications Commission (FCC) licensees. Exalted as public trustees by the 1934 Communications Act, broadcasters pay virtually nothing for the use of their channels of public radiofrequency spectrum, unlike many other FCC licensees who have paid billions of dollars for similar digital spectrum. Congress envisioned a social contract of sorts between broadcast licensees and the communities they served. In exchange for their free licenses, broadcast stations were charged with providing a platform for a “free marketplace of ideas” that would cultivate a democratically engaged and enlightened citizenry through the broadcasting of “public interest” programming.

Few, other than the broadcasters themselves, would dispute that this “public trustee” doctrine has been a dismal failure. In exchange for the tens of billions of dollars of advertising revenue generated by their licenses, commercial television and radio broadcasters air very little-and some air none-of the kinds of locally oriented public affairs, political, educational, and cultural programming traditionally considered “public interest” fare. Congress and the FCC have failed to correct the mismatch between the proven profit-making power of public trusteeship and its anemic returns for the American people. To the contrary, Congress and the FCC, captured by the broadcast industry they regulate, have continued to subsidize commercial broadcasters constructively by awarding them new lucrative digital channels at no cost to them, while lifting ownership concentration limits and eliminating or failing to enforce the few remaining public interest programming requirements.

This Article begins by surveying the history of the public trustee doctrine, its First Amendment contradictions, and the legislative and regulatory failures and frustrations that have bedeviled the pursuit of a ‘free marketplace of ideas” on the nation’s airwaves. It then explores the First Amendment’s public forum doctrine as an alternative justification for government regulation of the public spectrum, reasoning in favor of the government’s proactive creation and maintenance of public speech fora. After examining the Internet both as a public forum and as the sort of “free marketplace of ideas” that the broadcast spectrum was expected-but failed to create, this Article argues that an affirmative public forum doctrine supports a requirement that broadcasters subsidize broadband Internet access in low-income and underserved communities.