Communications and Society Program

Casting a Broader Net: The Obligations of "Digital Broadcasters" in a Changing Media Environment

Andrew L. Shapiro
Fellow, Berkman Center for Internet and Society
Harvard Law School

Introduction

The President's Advisory Committee on the Public Interest Obligations of Digital Television Broadcasters has been asked to advise the nation on the obligations the next generation of broadcasters owes to the American people. Or has it? By its mandate, the Committee is concerned specifically with the obligations of licensed, over-the-air digital television broadcasters,¹ but in the years to come these will hardly be the only entities "broadcasting" content to the public, by which I mean distributing it widely on a subscription, pay-per-view, or free basis. Indeed, Americans can already receive video programming via cable networks, direct satellite, and the Internet, and the range of distribution channels is likely to continue expanding as new technologies become available.

The members of the Committee and other policymakers should therefore take into account the full landscape of content-delivery options and the implications of this range of choices for the public interest-including the desirability, and feasibility, of imposing obligations on some broadcasters and not others. Within such a holistic view, policymakers should particularly consider the public interest attributes of the Internet-because this medium may well subsume other broadcast media-including the possibility of establishing for the new media environment an incentive-based scheme to bring attention to public interest programming that is likely to be available but also likely to be obscured by commercial content.

Regulation and the Changing Media Environment

A decade and a half ago, MIT media scholar Ithiel de Sola Pool argued that governments should apply the same laissez-faire approach to electronic media that they apply to print media.² Regulation of electronic media was unnecessary, de Sola Pool wrote, because a revolution in technology would both eliminate spectrum scarcity and lower barriers to entry for anyone who wished to disseminate his or her views widely. The result, he said, would be a vibrant and open information marketplace in which data, voice, and video would be carried cheaply and universally over high-speed interactive communications networks. Today, many scholars and observers believe we are achieving, or even have achieved, the media environment that de Sola Pool predicted. They therefore see little reason for government to regulate electronic media. Other observers agree that the technological changes predicted by de Sola Pool are coming to fruition, but still see a need for public interest regulation.

Such regulation does, of course, still exist for all sorts of broadcasters. Licensed analog and digital over-the-air broadcasters are still required to operate "in the public interest, convenience, and necessity"-serving local needs, making time available to political candidates, providing children's programming, and so on.³ As a condition of their municipal franchises, cable television operators can be required to rebroadcast local over-the-air television programming, to provide leased access to commercial competitors, and to carry public, educational, and governmental programming.⁴ Similar obligations apply to direct-broadcast satellite providers.

But one distribution method does not carry public interest obligations: the Internet. In part, this is because the Internet is still in its infancy and the response of the federal government-the Communications Decency Act aside-has generally been not to regulate it. In addition, however, the Internet has features that distinguish it from other forms of broadcasting and make the imposition of public interest obligations uniquely problematic. To begin with, the Internet is a multifaceted medium. Like the telephone, it allows for targeted one-to-one communication (e.g., e-mail). But it also allows for one-to-many communication (via listservs or the Web) that may have an audience of hundreds, thousands, or millions of people. This flexible structure raises a definitional question: What is a "broadcaster"? That is, how broadly does one need to distribute material in order to be considered a broadcaster for regulatory (or other) purposes? Even if this question can be answered, the fact that the Internet is a transnational medium may well make it difficult-if not impossible-for any single nation to impose obligations on Internet broadcasters.

The absence of public interest obligations for Internet-based content providers is particularly significant for two reasons. First, inconsistent regulatory rules for different types of broadcast might cause more heavily regulated broadcasters to balk at their own obligations and to engage in "regulatory arbitrage" (shifting their content distribution to the least regulated environment). Second, and perhaps more important, continuing bandwidth expansions and improvements in audio and video transmission quality provide reason to believe that the Internet's packet-based protocol of information transfer will come to dominate electronic media. In other words, over-the-air, cable, and satellite broadcasting may well become indistinguishable parts of a larger network still known as the Internet. Such a convergence scenario raises profound questions about the regulatory regime that will prevail. If a broadcaster uses licensed, over-the-air spectrum to distribute digital packets of streaming video data, will such distribution be covered by the Committee's proposed obligations for digital broadcasters? If a cable operator uses coaxial cable lines to transmit packets of video data (a practice that is already occurring in many parts of the country), will such transmission be covered by public interest rules that apply to cable operators? How will regulators distinguish packets of video data from packets of audio or text data? And will it matter whether the material is "pulled" to the screen by the viewer or "pushed" in the style of traditional television programming?⁵

These queries naturally point to the larger question of whether public interest obligations should apply at all to future Internet broadcasters and, if so, what they should look like. To begin to address this question, we should take a brief detour to consider the relationship today between the Internet and the public interest.

The Internet and the Public Interest

The Internet appears in many ways to be a public interest advocate's fantasy. As a result of this technology and its future progeny, we are likely to find a media environment that contains:

more material generated for its own sake by individuals, nonprofits, and small companies;
far-ranging coverage of news and public affairs;
vibrant and plentiful programming for children;
affordable access for political candidates;
uninhibited artistic expression;
meaningful representation of the diverse interests of communities, and;
unencumbered opportunities for individuals to be content producers.

In short, the decentralized, interactive, many-to-many architecture of the Internet could have a radically egalitarian effect on the information marketplace. Such an effect is different from the increase in information sources associated with, say, cable television. If there is one area where cyberspace evangelists are right, it's that the Internet could change the power dynamics of media and communications. This technology allows individuals to control what they read, listen to, and watch, and to release an unprecedented wave of vibrant public discourse and creativity. Unconstrained by the scarcity of the airwaves or the costs of large-scale print publishing, anyone online can get the word out-via text, audio, or video.

Already, the diversity of cyberspace is a bracing alternative to the conformity of mass media. Web 'zines and e-mail newsletters are ubiquitous (there are more than a hundred thousand of the latter). Artists are showing their work in virtual galleries. Musicians are uploading their compositions for others to hear. As bandwidth expands and technologies improve, Internet auteurs might even go head-to-head with the media conglomerates of the world-creating an open market for cheap video distribution. Activists, too, have turned to the Web to spread their views, garner support, and coordinate action. They've done so not just to fight for cyber rights (e.g., free speech and privacy online) but also for the environment, human rights, and political reform. In December 1996, when Slobodan Milosevic shut down Belgrade's Radio B92, an important pro-democracy protest station, the station fed its programming to the Internet and won enough support internationally to force Milosevic to reverse course.⁶

That the Internet has such great democratic potential does not mean that public interest concerns can be brushed aside. But the areas of greatest need may not be obvious. One fear is that the Internet is still an exclusive medium, disproportionately accessible to those who are educated and wealthy. This, in fact, is why the Clinton administration has initiated the "e-rate" plan to subsidize Internet wiring and access for schools and libraries in disadvantaged areas. Real as the inequality-of-access problem may be today, though, it will diminish in importance as public institutions come online, as computer prices continue to fall, and particularly as the Internet and digital television become integrated in the decade to come (TV-based Internet appliances are already available for a few hundred dollars). Other inequalities relative to technology will remain-for example, as digital literacy and economic well-being become intertwined-but the ability to afford an Internet connection will probably not be one of them.

Rather than focusing solely on disparate access, then, public interest advocates should turn their long-term attention to the online experience itself. Opposition to state censorship should continue, whether the restrictions are imposed by China and Singapore, by the U.S. Congress, or by libraries in Loudoun County, Virginia.⁷ Increasingly, though, it should be clear that governments are not the only entities that can stifle the spirited din of cyberspace. Indeed, while China may censor what its citizens see online, a handful of technology companies have the ability to alter the very architecture of the Internet, affecting what all of us see.

This is already occurring. Microsoft, for example, uses its dominance of personal computer operating systems to influence what people encounter on the Web. The company capitalizes brilliantly on what might be called the "path of least resistance" theory of media domination: As a powerful gatekeeper, Microsoft doesn't need to restrict the choices of its users, because it can simply steer them-subtly but strongly-where it wants them to go. So, for example, Microsoft's Windows 98 has features that lead users directly to Microsoft's own content and commerce sites on the Web as well as to those of its partners such as Disney and Time Warner. This would appear, as the Justice Department's current antitrust suit against Microsoft alleges, to be a classic case of a dominant access provider giving preferential treatment to its own content and discriminating against the content of others. Even de Sola Pool, the champion of laissez-faire communications policy, insisted that the "monopolist of the conduit not have control over content."⁸

From Spectrum Scarcity to Scarcity of Attention

Whatever one thinks of the Microsoft case, the increasingly intense battle for viewers' attention online should help public interest advocates realize that their focus must change as the communications landscape changes. In the era of television (including cable and direct-broadcast satellite), lawmakers have used the scarcity of the medium as a justification to require broadcasters to save a place on the dial for local access, educational shows, and other nonprofit programming. Will the absence of spectrum scarcity eliminate the need for such public interest regulation? To be sure, the rationale for imposing obligations must be different in a post-television world where "channels" are essentially unlimited and almost anyone will be able to speak. But there may be such a rationale.⁹

Indeed, we may realize that the problem with our new media environment is not scarcity of space but its opposite: an abundance of space-and content-that creates scarcity of attention. In other words, the good stuff will be out there, but with so many competing information sources it will be difficult for people to know about it, let alone listen to it.

Public-access cable TV programmers have long known the frustration of being relegated to channel 87 while the big networks occupy the expensive real estate at the lower end of the dial. But with television, there's at least a chance that a channel-surfing viewer will catch a glimpse of non-commercial programming and stay-if it's worth staying for. Online, by contrast, marginal voices can literally be lost in cyberspace. Since content is not arranged sequentially, there is almost no chance that a viewer will come upon a small Web site unintentionally (i.e., while trying to get somewhere else). Search engines, default start pages, and other entry portals to cyberspace are therefore of great importance.

Yet as these gatekeepers recognize what a valuable commodity attention is, they are increasingly turning the Internet-as-sprawling-library into the Web-as-never-ending-billboard. Some search engines, like Goto.com and OpenText, have tried to auction search results to the highest bidder. Most of the other search engines simply place search results amid targeted ads that track the user's search. Search for "bookstore," for example, and a prominent paid link to Amazon.com or Barnes & Noble-a so-called banner ad-will appear sooner than a link to the Web site of any small bookstore. In all these situations, the big players are paying for the path of least resistance. Everything else gets jumbled in the mix.

The significance of this is clear. In the broadcast paradigm of the future, high-quality public interest content will be available, but only to those who are most determined to find it. This is unfortunate, first, because those who stumble accidentally upon this material probably benefit from it as much or more than those who seek it out. And second, this dynamic may undermine the presumption that the Internet is fundamentally different than other electronic media. As with television and radio, it seems likely that commercial content online will thoroughly dominate noncommercial content.

Incentivizing the Sharing of Attention

In a sense, public interest regulation of broadcasting has always been about requiring commercial providers to share attention with noncommercial providers. In the context of the Internet, do these concerns about attention-or the possibilities mentioned earlier of regulatory arbitrage and convergence-mean that obligations should also be imposed on Internet broadcasters? It is probably too early to tell. But it is fair to say that these questions will have to be resolved soon and creatively. The old regulatory strategy of mandating public access probably will not work in a world without channel scarcity. To find an audience for public interest programming, then, advocates are going to have to try novel solutions.

One strategy that might work in the Internet context would be to create an incentive scheme to get large for-profit content providers to share the audience they are able to command with small nonprofit sites that deserve attention but don't have the resources to get it. The incentive could be provided by government in the way of a tax break or subsidy. Or if implemented by industry (perhaps with prompting from consumer groups), the incentive might just be good public relations. In fact, it might be better if the incentive were not supplied by government, as this would decrease the likelihood and viability of any constitutional objections.

Technologically, the Internet is ideally suited to such incentive-based partnerships because of the essentially unlimited nature of the medium and the fact that the Web works on a system of hyperlinks. Microsoft, for example, could reserve space on the front page of its Sidewalk city-based Web sites for links to the home pages of nonprofit community groups and media organizations.¹⁰ Presumably, whatever reward it received through the incentive system would be proportionate to the amount of traffic it generated for the nonprofit site. That way it would have a real stake in sharing attention. Among the details that such an incentive scheme would have to resolve are: which sites would be eligible "sharers" of attention, which sites would be qualified "sharees," who would determine which sharers and sharees would be partnered, how prominent a link would be required, and so on.

More ambitious schemes certainly are plausible. Following a "pay or play" model, online gatekeepers could be taxed in proportion to their traffic or required by law to carry, or link to, nonprofit content. Or, in a manner somewhat comparable to National Public Radio or PBS, the government could fund a digital gateway focusing on public interest content or it could subsidize production of such content (though again, the question might be how to attract people's attention). By contrast, encouraging linkage between profit-oriented and nonprofit content producers is a limited goal. It would cost taxpayers little or nothing, and it would not interfere with the structure of the Internet or the rights of its content providers. It would also continue the tradition of having dominant media entities act as trustees for the public interest.¹¹

Conclusion

Whether or not an incentive system or some other form of public interest commitment is ultimately appropriate for the Internet, one matter should be clear. Unless policymakers in the area of digital broadcasting consider the most expansive view of the media environment, the rules they recommend today may have unpredictable consequences tomorrow, if they are consequential at all.

Endnotes

1. President Bill Clinton's executive order does not specifically mention "over-the-air" digital television broadcasters. See Executive Order 13038, 11 March 1997 (establishing "an advisory committee on the public interest obligations of digital television broadcasters"), available online at http://www.pub.whitehouse.gov/uri-res/I2R?urn:pdi://oma.eop.gov.us/1997/.... But the Department of Commerce's charter for the Advisory Committee states that "[t]he Committee will study and recommend what public interest responsibilities should accompany the broadcasters' receipt of digital television licenses." See Charter of the Advisory Committee on Public Interest Obligations of Digital Television Broadcasters, available online at http://www.ntia.doc.gov/pubintadvcom/about/charter.htm.
2. Ithiel de Sola Pool, Technologies of Freedom (Cambridge: Harvard University Press, 1983).
3. 47 U.S.C., sec. 336(d).
4. Sec. 531-534, 541. See Turner Broadcasting System v. FCC, 520 U.S. 180 (1997), which upholds "must carry" provisions for cable providers.
5 The Federal Communications Commission has acknowledged that "[d]ifficult legal and policy issues arise from the fact that Internet-based services do not fit easily into the longstanding classifications for communications services under federal law or FCC regulations." Barbara Esbin, "Internet Over Cable: Defining the Future in Terms of the Past," Federal Communications Commission Office of Plans and Policy Working Paper No. 30 (August 1998), p. i.
6. Chris Hedges, "Serbs' Answer to Oppression: Their Web Site," New York Times, 8 December 1996, A1.
7. Restrictions on Web access in Loudoun County's libraries have recently been challenged in a court case that is likely to succeed. See "Trial Allowed on Challenge to Software," New York Times, 9 April 1998, A19.
8. de Sola Pool, Technologies of Freedom, 173.
9. See paper by Angela Campbell, "Toward a New Approach to Public Interest Regulation of Digital Broadcasting," in this volume.
10. Upon reading an earlier version of this paper, David R. Johnson made the following innovative suggestion: "Create electronic 'tours' of good public interest, low-visibility sites and seek to persuade the major portals to include a 'trailhead' tour button on their top pages."
11. There are, of course, a host of other "public interest" issues related to the Internet that are beyond the scope of this essay. These include: protecting the privacy of personal information; securing communications while recognizing law enforcement's legitimate need to access certain information; examining the impact of the Internet on social cohesion and geographically based community building; monitoring the effect of disintermediation on the regulatory process, particularly the ability of states and municipalities to collect their fair share of tax revenue as cross-border electronic commerce grows; maintaining an equitable balance between the interests of intellectual property owners and information users; preventing the wholesale privatization of public data; and so on.