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The "Public Airwaves" Argument, Wireless Communication, and the Kindle:

Ron Collins at the First Amendment Center poses an interesting question: Will the "public airwaves" argument — which has been used as justification for the Fairness Doctrine and other content-based broadcast regulations — be used to urge regulations on wireless downloads to e-book readers?

I hope not, either because radio and non-cable television will be upgraded by the Court to full First Amendment protection, or because the public airwaves argument would at least be limited so as to exclude nonbroadcast communication (though if you're serious about the notion that the government has more power to impose content-based restrictions when the "public airwaves" are involved, that notion would seem to apply to cellular communications as well as to broadcast ones). Still, Collins is right to note the potential dangers of the "public airwaves" rationale.

Colin (mail):
The intersection of the first amendment with communications law is pretty far from my specialty, so forgive me if I'm way off base here. Having said that, this looks like an argument in search of a cool new technology; the Kindle isn't substantively any different than using your cell phone to read an online book (or blog). Using the "public airwaves" doctrine to regulate the contents of Kindle deliveries would require extending that power over all content delivered wirelessly, and that seems like Chicken Little talk to me. Is there some distinction that I'm missing?

I own a Kindle, and I love it. The physical hardware is as badly designed as anything I've ever used - the design is absolutely incompetent. It's still a fantastic device, though, because the wireless capability makes it practical in a way that, at least for me, takes it well out of competition with any other device on the market.
1.15.2008 1:26pm
tarheel:
I second your hope for the death of Red Lion. The scarcity rationale was barely tenable then and is an anachronism now.
1.15.2008 1:35pm
John McCall (mail):
There were technical motivations for the broadcast-television fairness doctrine which don't apply as freely to modern wireless communication. In particular, the broadcast spectrum as originally divided really did significantly limit the number of channels available, creating artificial scarcity. I've heard complaints that the government fouled up the split and created more scarcity than strictly necessary, but I can't speak to that. Still, if you assume that the scarcity is inherent, i.e. that at most a very small number of broadcasters can be available at once, then the Fairness Doctrine is not completely unreasonable. Wireless networks are not similarly scarce, and so that argument fails to apply.

Of course, the fact that the Fairness Doctrine falls apart without this justification doesn't mean that it was actually incorporated as part of the legal framework backing it.

Personally, I don't support the Fairness Doctrine anyway.
1.15.2008 1:38pm
J. F. Thomas (mail):
Collins may be a First Amendment scholar but he apparently knows nothing about communications technology, and shockingly and importantly for a First Amendment scholar, doesn't seem to understand why the FCC regulates content over broadcast airwaves, but not private (or even subscriber) communications over other bands.

The bands over which the books will be transmitted are non-exclusive, digital wavelengths. The books are transmitted as packets of data, not as easily decipherable waves that anyone with a radio set can pick up. That alone prevents non-subscribers from intercepting obscene content. Also, the very same wavelengths are also being used, almost simultaneously for other purposes (e.g., voice transmission).

Furthermore, broadcast networks (whether they are radio or television) have licenses to broadcast on certain (very valuable)wavelengths for free in return for producing programming that is in the public interest. In return for the use of these airwaves, they are subject to FCC regulation of their content. Cell phone companies and cable companies (which of course utilize the airwaves to bounce their signals off satellites before delivering by cable to your house) have paid for their bandwidth and are not subject to the same oversight.
1.15.2008 1:41pm
J. F. Thomas (mail):
There were technical motivations for the broadcast-television fairness doctrine which don't apply as freely to modern wireless communication.

No, the point is that the spectrum is given to the broadcasters practically for free in return for serving the public interest. That is the rationale behind the fairness doctrine. If the broadcasters are going to use the public airwaves (which were and still are limited--even though digital technology does allow more stations to broadcast in the same bandwidth) for free, they should provide "fair and balanced" content.
1.15.2008 1:46pm
Fub:
From TFA:
That technological fact [EDVO technology] means that the FCC might one day try to regulate Kindle's content, because that agency administers the law governing cell phones and other wireless devices, as well as broadcast licensees under the Communications Act of 1934 as amended. Could the FCC's authority to regulate cell-phone frequencies generally extend to regulating the content of e-books that are transmitted electronically? And should it make a difference under the law if Amazon delivers a book in the form of electronic bits rather than in physical form by postal mail?
Some factual distinctions from broadcast media might apply.

Anybody can receive broadcast media (AM, FM, TV) without license granted by the signal originator. However the current wireless media are not broadcast. They operate as point to point. Some license to receive the transmission is required. That license to receive might be a totally "free" license granted by some WiFi hotspot owner, but it is still a license.

The current wireless media purchase or lease the spectrum from government for longer distance point-to-point, or it is granted without fee for particular frequencies with power and therefore small effective radius limitations. This fact is what makes the license to receive the signal possible. Broadcast media do not purchase or lease their spectrum from government.

Whether these two distinctions, or others not noted above, will make such content regulation possible under current law, I don't know. But those with greater legal expertise on communication law might.
1.15.2008 1:49pm
Smokey:
Orwell warned us about these bureaucratic tyrants, who would happily neuter the 1st Amendment in their insatiable lust to regulate the rest of us for the sake of their own aggrandizement.

The Court made a serious error when it decided that free speech doesn't apply to someone shouting "Fire!" in a crowded theater. Instead, the Court should have decided that free speech is an absolute - but that the speaker has the responsibility to consider if his action will cause deliberate harm to innocent bystanders. Jail or a lawsuit is the proper remedy for one who deliberately causes havoc. Chipping away at freedom of speech was improper.

As a result, we now arrive at the bogus "public airwaves" argument. Originally, the government decided that because the RF spectrum was limited, it should be allocated and regulated. But that argument does not apply to the internet, where bandwidth is increasing faster than use. Nevertheless, the same people who want to ban words like 'niggardly,' and who want to thoroughly regulate 'hate' speech on campus [and have had plenty of success], want to continue whittling down the 1st Amendment by extending the Fairness Doctrine to other types of communication, rather than to employ other perfectly acceptable remedies for their perceived problems, such as using the same First Amendment to point out their grievances.

As Mr Collins says:
...we might wish to rekindle the fire in the conviction that our liberties do not diminish when we express ourselves by different modes of communication.


Diminished liberties is exactly what is being proposed by those extending the public airwaves argument.
1.15.2008 1:58pm
Fub:
J. F. Thomas wrote at 1.15.2008 1:41pm:
The bands over which the books will be transmitted are non-exclusive, digital wavelengths.
I not sure I understand what that means. What is a digital wavelength? How is a frequency band non-exclusive?

Did you mean that the license to broadcast is limited to digital transmissions, and that the license is not an exclusive license to transmit digital information on the particular wavelength to which the license applies?

If so, then I understand what you meant. Otherwise, I don't.
1.15.2008 1:59pm
J. F. Thomas (mail):
Did you mean that the license to broadcast is limited to digital transmissions, and that the license is not an exclusive license to transmit digital information on the particular wavelength to which the license applies?

Broadcast licenses, even digital ones, broadcast a dedicated signal (even though with digital signals you can also broadcast alternative languages, digital stereo, even more than one channel over the same wavelength) over a certain wavelength. Anyone with a receiver (be it radio or television) tuned to that wavelength will receive that signal and is able to view the content. Digital wireless signals (like cellphones) send their signals in packets of information to a set receiver. Along with the part of the package that is a small portion of your conversation (or the book you are purchasing), the very same wavelength is carrying portions of dozens or even hundreds of other conversations at the same time.

Imagine a stream of envelopes, all with different addresses, and your device just grabs and opens the envelopes with your address on it. Each envelope contains a small portion of the message addressed to you, but the stream is going by so fast by the time your phone opens the individual envelopes and strings them all together it sounds (at least 70% of the time) like an unbroken conversation. That is also the way the internet, and most landlines, work now. Wire and fiber-optic cable are still more reliable because once those envelopes start flying through the air they can get lost.
1.15.2008 2:31pm
KenB (mail):
If the government can regulate my ability to download Jonah Goldberg's Liberal Fascism to my Kindle, why can it not regulate my discussing my political preferences over a cell phone? And if it can do that, why can it not regulate my use of the cell phone to help organize political events? If the First Amendment does not stop all of this, I fear we no longer have meaningful free expression under modern technology.
1.15.2008 2:55pm
Smokey:
J.F. Thomas:
Anyone with a receiver (be it radio or television) tuned to that wavelength will receive that signal and is able to view the content.
What's the [Constitutional] difference between possessing a television set and a laptop? [hint: none]. In both cases you need some kind of decoder ring to receive the information in a form that you can view.

This whole argument is an exercise in hair splitting. Either you support free speech, or you don't.
1.15.2008 3:11pm
Waldensian (mail):

free speech doesn't apply to someone falsely (ed.) shouting "Fire!" in a crowded theater.

I have learned that, for purposes of discussing First Amendment law, it is important to insert "falsely" here. Doing so ensures that the theater rule isn't stretched beyond its limits.
1.15.2008 3:20pm
David M. Nieporent (www):
No, the point is that the spectrum is given to the broadcasters practically for free in return for serving the public interest.
"Given"? Really? By whom?
1.15.2008 3:22pm
David M. Nieporent (www):
The Court made a serious error when it decided that free speech doesn't apply to someone shouting "Fire!" in a crowded theater.
Putting aside the misquote, the Court never "decided" that at all. It's metaphorical dicta.
1.15.2008 3:25pm
J. F. Thomas (mail):
"Given"? Really? By whom?

By the government who holds them in trust for us. Who do you think owns the airwaves? The person who has the most powerful transmitter?
1.15.2008 3:26pm
subpatre (mail):
JFT's description is TOTALLY incorrect technically and functionally.

Broadcasts are:
Simplex, the station broadcasts no matter what; or
Duplex, the station(s) interact with the receivers.

Due to their nature, broadcast stations (simplex) have higher power and lower geographic density. At this time, over-the-air television, AM and FM radio are pure simplex stations. Simplex carries a fixed amount of information and —here's the real identifier— cannot be changed by anyone other than the licensee/transmitter.

Cell phone and wifi are duplex with low power and geographically common. Obviously, the information carried varies depending on the request (phone number) from a cell-phone user or computer user; and many different requests can be simultaneously fulfilled.
1.15.2008 3:33pm
J. F. Thomas (mail):
Cell phone and wifi are duplex with low power and geographically common. Obviously, the information carried varies depending on the request (phone number) from a cell-phone user or computer user; and many different requests can be simultaneously fulfilled.

No, my description is not incorrect technically or functionally but describe how digital packets are carried over the airwaves compared to a traditional analog signal.

Your description is right when it comes to the distinction between types of broadcast and radio licenses. I think the distinction of how the media is delivered (in packets) is important in discussing FCC regulation of content because the basis of FCC regulation of content has not only been the public interest aspect but also the fact that anyone with a receiver could hear or see it without further agreement with the provider. That is very difficult when the signal is delivered digitally.
1.15.2008 3:42pm
Elliot123 (mail):
"Using the "public airwaves" doctrine to regulate the contents of Kindle deliveries would require extending that power over all content delivered wirelessly, and that seems like Chicken Little talk to me."

I'm reminded of the Commerce Clause.
1.15.2008 3:46pm
John A. Fleming (mail):
Digital/analog distinctions are incidental. Try these definitions:

Broadcast: single transmitter per chunk of exclusive spectrum, many receivers. Spectrum reuse occurs based on distance between and to transmitters.

Non-broadcast shared spectrum: many transmitters sharing the same spectrum, by means of a technical standard (e.g. CDMA, TDMA, 802.11), usually for point-to-point communication.

Note that even in shared spectrum it is still technically possible to have a mix of broadcast and point-to-point communications. But old AM/FM/VHF/UHF analog radio and TV technology was not capable enough to discrimminate between overlapping transmitters. Today's radios can, so they do. As radios get better, the FCC allows novel uses of spectrum, and the old ways of doing things are abandoned. New technology enables new content provisioning markets.

Also,
"Content in the public interest" is not synonomously equal to "fair and balanced". FAB is one possible programming format a broadcaster can utilize. I can easily visualize a three broadcaster market: a red station, blue station, and a non-partisan. The success of Fox News shows that the Big Three broadcasters were under-serving, not providing valuable content, to a large market.

Under-served information markets are not in the public interest.

When radio and TV were young, and we were poor, with only one or two broacasters in a media market, FAB was a compromise choice on how to make sure the public interest was served. In tne era of 500 TV channels, bloggers, and internet news aggregators, FAB as a policy is a historical anachronism; it's now a format choice. And if you believe that Fox News is FAB, a market successful one. (FYI, whether Fox News IS demonstrably FAB, I neither know nor care, especially since FAB is by itself elusive of consensus identification). The invisible hand of the market now determines where content comes from and who it goes to. And no government censor content moderator could possibly do better.
1.15.2008 4:10pm
J. F. Thomas (mail):
"Content in the public interest" is not synonomously equal to "fair and balanced".

It can also be seriously argued that once the bathwater of the fairness doctrine was thrown out by Reagan, the baby of content in the public interest went with it and the need to show any public interest broadcasting in order to keep a license over the last 25 years has been minimal to simply nonexistent.

Under-served information markets are not in the public interest.

Tell that to people who need information about evacuations for chemical spills, hurricanes or tornado warnings--where's the profit in that?
1.15.2008 4:20pm
Brett Bellmore:

Still, if you assume that the scarcity is inherent, i.e. that at most a very small number of broadcasters can be available at once, then the Fairness Doctrine is not completely unreasonable.


Land is scarce, but the government has not, as yet, seized ownership of every square inch of the country... An act no more inherently unreasonable than seizing control of the electromagnetic spectrum, just because it's scarce.

I view the public airwaves argument as being on a par with the government confiscating the nation's entire supply of ink, and using it's ownership of that ink as a basis for regulating the content of newspapers. Bogus right from the start.
1.15.2008 4:20pm
Elliot123 (mail):
"It can also be seriously argued that once the bathwater of the fairness doctrine was thrown out by Reagan, the baby of content in the public interest went with it and the need to show any public interest broadcasting in order to keep a license over the last 25 years has been minimal to simply nonexistent."

What public interest content was thrown out 25 years ago? What public interest content existed prior to Reagan, but does not exist now?
1.15.2008 4:31pm
J. F. Thomas (mail):
Land is scarce, but the government has not, as yet, seized ownership of every square inch of the country... An act no more inherently unreasonable than seizing control of the electromagnetic spectrum, just because it's scarce.

Of course it did. Do you think the United States just appeared out of thin air two hundred thirty two years ago under private ownership? For the most part this country used to be owned by someone else, the U.S. government either stole it or obtained by treaty from Indians; or stole (Texas), bought, or took it in conquest from other Nations (who for the most part also took it without fair compensation from the Indians). Then the U.S. government platted it and sold it off or gave it away to individuals and corporations.
1.15.2008 4:36pm
J. F. Thomas (mail):
What public interest content was thrown out 25 years ago? What public interest content existed prior to Reagan, but does not exist now?

Believe it or not, radio (especially radio) and television actually provided a lot more regional and local programming prior to the consolidation in the industry after Reagan. Local radio stations would actually have their own news teams and report on issues of consequence to the local community. Local musicians would get significant airtime. There are still a few independent stations out there, but they are few and far between.
1.15.2008 4:44pm
Fub:
IANACommLawyer. But I think the applicable statute is 18 USC 1464:
Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both.
This appears to apply to broadcast as well as point-to-point radio transmissions.

There are likely some constitutional exceptions, and I expect that point-to-point radio communications between consenting parties would be at least an arguable one.

The broadcast indecency regs and case law are premised on the fact that a broadcast is both actually and intended to be received by parties who may not have given prior consent to indecency.
1.15.2008 6:21pm
John A. Fleming (mail):
I'm going to go out on a limb here, and say the Kindle is very unlikely to get the FCC exercised over the content being delivered. Since it's point to point delivery, and the only way to get someone else's content is to have a very expensive and extremely specialized purpose-built receiver, you can't casually snoop your neighbor's unusual book selections. EVDO is inherently more secure than WiFi.

The bandwidth used, however, might cause them to take notice. If the Kindle is a spectacular market success, it could have the effect of crowding out other uses of the same spectrum (e.g. voice calls). The pricing mechanism could be inefficient at moderating this crowding. The EVDO operators, as part of their license, do have to provide at least some minimum level of service to their subscribers. If the service quality is disrupted for one class of subscriber at the expense of others, the FCC can clearly do a "we're from the Government, and we're here to help you solve your service quality problems" effort. The network operator may also request a license modification. Either way, there's going to be a public comment period before reaching a consensus on how to support multiple subscriber services and relicense operators on these cellular frequencies.

Finally, Sturgeon's Law says that 90% of everything is junk. Since we're no longer managing spectrum with a scarcity model, as long as the 10% we care about gets through, the FCC doesn't have any cause to moderate the 90% content over the airwaves. (I'm trying to address the objections of the Guardians of Civic Virtue to garbage(!) being transmitted across Our Precious Airwaves.)
1.15.2008 6:22pm
KenB (mail):
J.F. Thomas writes that the U.S. stole Texas. There's a plausible case that the U.S. stole much of the American southwest, but Texas stole itself from Mexico, much in the way the U.S. stole itself from Great Britain. We Texans think that's a material distinction.

As to ownership of the radio spectrum, I have always analogized that to the government's claim of ownership to new land (being as I am a real estate lawyer). The government's assertion of land ownership allowed for orderly allocation of title among private claimants (except perhaps in those Western states where some would argue it has kept too much). Government assertion of ownership of spectrum ought to allow for an orderly allocation of spectrum. To the extent it hasn't allowed for that, it's probably because the government treated spectrum differently from how it treated land.

Texas kept its public land and has sold almost all of it into the private sector. Some decry that, but we don't have the problems the feds have with western lands or with radio spectrum.
1.15.2008 7:35pm
KenB (mail):
In rereading my post, I see an apparent incongruity in saying Texas kept its public land and that it sold almost all of it. I should have said that, when Texas joined the Union, it retained ownership of its public land instead of ceding it to the federal government. Texas then proceeded to sell the land off to private parties.
1.15.2008 7:39pm
EricMess:
If the FCC were to regulate the content delivered via wireless data transmission, it would have to have some basis for that regulation and here I seen none.

If I recall the law on this correctly, there are two (and probably others I don't remember) rationales for regulating speech on the airwaves. The first is premised on the technological limitations of the EM spectrum. A transmission free-for-all would be like trying to drive on an extremely long and wide parking lot with no lanes, speed limits, or traffic control devices, resulting in an incoherent mess when trying to get from A to B. This means less speech. The second is the Pacifica rationale where the unsuspecting listener, as Fub pointed out, is subjected to offensive content as he flips through stations while driving his pickup.

I don't see any way that the gov't could regulate content delivered over the spectrum here because none of these issues is evident. When I pay for a book and receive it over the spectrum, I'm ostensibly the only one who can unless I resort to very sophisticated anti-encryption technology. Thus, I'm not the innocent listener being subjected to offensive speech, right? Likewise, there isn't anything close to the concerns of there being "scarce" channels of communication because diverse content can be delivered without affecting others' ability to send and receive these PRODUCTS.

The fairness doctrine was brought about by a worry that private actors, for whatever reason, would use the then-scarce spectrum to shut people up without there being an alternative channel of communication capable of reaching a significant audience like broadcast radio or television. How does this come close to that?

If anything, we should worry that Amazon and other big players, due to high barriers to entry, would become the xm and Sirius of this market with the power to restrict certain authors (again, for whatever reason) from selling their works via wireless transmission. But how likely is this? And how problematic is it when I can just order a copy from one of a dozen other hard-copy providers?
1.16.2008 2:39am
J. F. Thomas (mail):
I see an apparent incongruity in saying Texas kept its public land and that it sold almost all of it. I should have said that, when Texas joined the Union, it retained ownership of its public land instead of ceding it to the federal government.

Texas was a sovereign nation that voluntarily became part of the United States (unlike the rest of the states that were carved out of land ceded to the U.S. from other countries either through purchase, treaty or conquest). As such the rest of the states didn't have much sovereign land to start with. The Federal government did, however, at least in the west, grant significant parcels of federal land to the new states (every sixteenth or thirty-second section, I can't remember which) for the purposes of developing educational institutions. This is how the "land-grant" universities got their names, and how the U.S. developed the premier public university system, and the best educated populace, in the world.
1.16.2008 11:11am
Reasoner:
Simply put, the difference between broadcast radio and personal radio services is that with personal services, the receiver decides the content of what is transmitted. The receiver cannot complain of bias in the transmission because the receiver determines the content of the transmission. It is as if there is an effectively infinite number of radio stations to choose from instead of a limited amount of spectrum.

In the case of something like an e-book reader, the only kind of fairness the government might be able to make a case for enforcing, is that the e-book provider ought not discriminate against any author who wants to make his book available on the e-book service. For example if the e-book provider decided not to make available a book promoting a certain political party, and if the receiver of the personal radio service couldn't access another provider of that book using the radio service, then the receiver of the transmission would no longer be determining the content, the transmitter would be. At that point the fairness doctrine could kick in.

In the case of cell phone calls, it's not the person at the other end that determines what is transmitted and what you hear, you determine what person you will listen to and you can hang up and call someone else if you don't like what you're hearing. Thus the receiver controls the transmission. A cell phone call is like a book, because you can't control what the other person says or what the publisher printed, but you control what you read because you chose to open the book and you can close it and open a different book when you like.
1.18.2008 5:01am