House Republicans last week backed off a threat to block enforcement of new Federal Communications Commission rules involving TV broadcasters and political ads.
They should have remained steadfast – the regulations run afoul of the First Amendment.
The FCC in April decided that TV stations must publish online the individual ad rates charged for political commercials involving federal candidates or issues. Broadcasters opposed the move, arguing the information is proprietary. They did, however, offer to post aggregate spending on all political ad buys.
The broadcasters have asked the FCC to reconsider the regulation. Meanwhile, the National Association of Broadcasters has filed suit in federal court, maintaining that the requirement is “arbitrary, capricious, in excess of the commission’s statutory authority, inconsistent with the First Amendment, and otherwise not in accordance with law.”
The FCC argues that stations already must make the information available on premises – the new rule only brings everything into the Internet age.
But the original mandate also has constitutional issues.
The FCC’s authority to regulate TV and radio dates back to the 1930s and rests on the outdated and dubious premise that because the broadcast spectrum is limited, the public owns the airwaves. Given the explosion of the Internet, satellite and cable TV, and other non-broadcast sources of information, the justification for heavy-handed government oversight doesn’t exist anymore and is “based on fundamental misunderstandings of physics and economics, efficient resource allocation and technology,” noted Erwin Krasnow, former FCC counsel, in a 2011 paper, “The First Amendment and the Fallacy of the Public’s Airwaves.”
And last week, the U.S. Supreme Court tossed out a handful of high-profile indecency fines the FCC levied against broadcasters, holding that the agency didn’t properly apply its own regulations. While the justices declined to address the constitutionality of the government meddling in broadcast content, the court clearly has become more skeptical of federal oversight in this arena.
And that’s as it should be. Given current technology, the FCC should be reducing its involvement with broadcasters, not piling on more regulations that leave stations at the mercy of bureaucratic whim.
In addition, the ad rules target only political speech. Even if one argues that the government has a legitimate interest in promoting disclosure, this regulation is content-based. The FCC hasn’t demanded that broadcasters post their ad rates for fast-food spots.
The FCC should have accepted the compromise and allowed stations to voluntarily post aggregate spending. Instead it overreached. Now that House Republicans have decided not to press the matter, let’s hope the courts intervene.