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{2} The Court in Turner has now determined that the Red Lion scheme is confined to broadcasting.[6] Cable and other new electronic delivery systems such as telephone companies ("telcos") come under traditional First Amendment jurisprudence. That is, they are to receive strict scrutiny First Amendment protection when the government regulation is content-based and to come under the intermediate O'Brien[7] standard when the regulation is content-neutral.
{3} This paper explores the polar opposites of Red Lion and Tornillo, as well as the intermediate O'Brien standard. The paper then analyzes the Supreme Court's selection between these competing doctrines in its decision in Turner regarding the constitutionality of the Cable Act's must-carry provisions. The paper then explores the likely effect Turner will have on new electronic delivery systems such as the telcos. The paper concludes that Turner foretells serious constitutional obstacles to government regulation of the emerging media that will comprise the Information Superhighway. This will enhance the vast potential these media have for widespread dissemination of information throughout the United States and the world.
{6} This scheme necessarily involves content regulation. While the FCC is not to censor, a licensee can be called upon to demonstrate to the agency that it has served as a local outlet by presenting community-issue oriented programming.[15] It must afford equal broadcast opportunities to candidates for the same public office at any level and reasonable access to federal candidates for elective office.[16] In addition, television broadcasters are required to serve the educational and informational needs of the child audience, particularly by carrying programming specifically designed to meet the needs of that audience.[17] The scheme thus implicates First Amendment concerns and calls for "a delicate balancing of competing interests."[18]
{7} In the seminal Red Lion case, the United States Supreme Court sustained the constitutionality of the public trustee scheme in the context of the "fairness doctrine" and specific rules promulgated to implement that doctrine.[19] The Court based its decision on the physical scarcity of frequencies which then existed and persists today in all but the smallest markets. The Court found "no sanctuary in the First Amendment for unlimited private censorship operating in a medium not open to all."[20] The goal of the First Amendment, the Court stated, is to "preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the government itself or a private licensee."[21] The Court indicated that "[i]t is the right of the viewers and listeners, not the right of the broadcasters, which is paramount."[22]
{8} The Court considered the claim that the FCC regulations would have a chilling effect on broadcasters and the airing of controversial issues, but found that the possibility was "at best speculative."[23] It determined that the Commission could take remedial steps to require broadcaster treatment of controversial issues and the that Court could revisit the issue if and when such effects might be definitively shown.[24]
{9} As the Court in Turner noted, Red Lion is still the law.[25] This means that FCC content regulation of broadcasting does not come under strict scrutiny. Rather, if such regulation is reasonably related to a legitimate public interest, it is permissible under the First Amendment.[26] The Court has consistently stressed the uniqueness of the Red Lion decision.[27]
A newspaper is more than a passive receptacle or conduit for news, comment, and advertising. The choice of material to go into a newspaper, and the decisions made as to limitations on the size of the paper, and content,and treatment of public issues and public officials--whether fair or unfair--constitutes the exercise of editorial judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with the First Amendment guarantees of a free press as they have evolved to this time.[30]{11} It is difficult to reconcile Tornillo and Red Lion.[31] Both involved right of reply regulations. In Red Lion, the regulations in question were found to promote the First Amendment values of balanced, vigorous debate.[32] The Court determined that any chilling costs were speculative.[33] In Tornillo, however, the costs were found to exist (with no more evidence than in Red Lion) and, in any event, the regulation was deemed to violate the First Amendment because of its interference with editorial autonomy.[34] The opposing results seem driven by the greatly differing circumstances and traditions of the two media (in broadcasting, government licensing to select the channel operator and keep out others; in print, no licensing or interference with editorial judgment).
{12} Unlike Red Lion, Tornillo is not confined to its own medium of print. The decision stands for the proposition that content-based regulation of any medium other than broadcasting comes under exacting strict scrutiny analysis. To be sustained, therefore, such regulation must be narrowly tailored to a compelling state interest. That is, "[t]here must be some pressing public necessity, some essential value that has to be preserved; and even then the law must restrict as little speech as possible to serve the goal."[35] It follows that judicial determination that a regulation is content-based is usually, but not always,[36] lethal to the government's case.
{13} In determining whether a regulation is content-based or content-neutral, a critical inquiry in which a court must engage is whether the government adopted the regulation "because of disagreement with the message it conveys."[37] Furthermore, as the Court noted in Turner, the government also may not regulate speech based on "favoritism" to the content being conveyed, or "impose differential burdens upon speech because of its content."[38] Thus, "speaker-based laws demand strict scrutiny when they reflect the government's preference for the substance of what the favored speakers have to say . . . ."[39]
{15} Thus, there is leeway as to the amount of tailoring required between a content-neutral regulation and the government interest it is intended to promote. Content-neutral regulation need not be the least speech-restrictive means of promoting the applicable governmental interest. It can meet the test so long as the "regulation promotes a substantial governmental interest that would be achieved less effectively absent the regulation."[42]
{16} Furthermore, Congressional findings, and especially Congress' predictive judgment, must be accorded substantial deference under either strict scrutiny or intermediate scrutiny analysis.[43] When reviewing a regulation under either standard, therefore, a court must not substitute its judgment for that of Congress but rather "assure that, in formulating its judgments, Congress has drawn reasonable inferences based on substantial evidence."[44] While such review can be difficult since the courts are necessarily reviewing the judgments of a co-equal branch, intermediate review under O'Brien is certainly not lethal to the government's case. Indeed, it is generally quite favorable in light of the substantial deference to be accorded congressional judgment.
{17} The above discussion of Red Lion and the traditional First Amendment jurisprudence, i.e., strict scrutiny under Tornillo or intermediate scrutiny under O'Brien, sets the framework for the Turner case. The government sought to avoid analysis of the must-carry provisions of the Cable Act under traditional First Amendment jurisprudence, and especially strict scrutiny analysis, by arguing for the application of Red Lion. It did so on the grounds that television represents a dysfunctional market where the government has given cable a "preferred position" in the market thereby enabling it to monopolize the television medium.[45] The significance of Turner is its rejection of that argument: Red Lion is not to be extended to new electronic media such as cable or other burgeoning means of delivering video programming such as the telcos.[46] While the First Amendment analysis of both the majority and minority opinions in Turner is flawed, the long-run effect of the case will be to make heightened scrutiny analysis generally applicable to the new electronic fields. This is sound, not only under First Amendment law and precedent, but also as a matter of policy in light of the dawning era of enormous electronic abundance.
{19} Upon direct review in the Supreme Court, the government argued that rather than applying the O'Brien standard, the district court should have applied the Red Lion standard which does not require regulation to be content-neutral but does require it to be viewpoint-neutral.[50] First, the government contended that the Red Lion standard is applicable to cases "where Congress acts to correct dysfunction in a market, whose commodity is speech, and requires the government to show that reasonable steps were taken to correct that dysfunction."[51] Second, the government urged that where regulation has given certain speakers "a preferred position" in the speech marketplace which enables their monopolization of an important communications means, the government may act to insure that such speakers allow a diversity of programs to their subscribers.[52]Cable, the government argued, occupies such a position because in order to use public rights-of-way it must obtain a local franchise that is usually exclusive, either de jure or de facto, with government regulation limiting franchise authorities' ability not to renew the franchise.[53]
{20} The Court unanimously rejected the government's argument for application of the Red Lion standard to the must-carry provisions. First, it held that Red Lion is based on the unique and distinguishing characteristic that broadcast frequencies are a scarce resource that must be allocated among many more applicants than there are available frequencies, and that cable television does not have such inherent limitations.[54] The Court determined that in light of technological developments, there is no practical limitation on the number of speakers on cable nor is there any danger of interference between two cable speakers.[55]
{21} Second, while agreeing that the cable market reflects dysfunction, the Court rejected the extension of Red Lion on that basis, holding again that the physical, rather than the economic, characteristics of the broadcast market underlie the Court's broadcast jurisprudence and that the claim of market dysfunction "is not sufficient to shield a speech regulation from the First Amendment standards applicable to nonbroadcast media."[56] For the same reason, the Court rejected the notion that the must-carry provisions are simply "industry-specific antitrust legislation" that warrant only rational basis scrutiny under "precedents governing legislative efforts to correct market failure in a market whose commodity is speech" such as in the Associated Press[57] and Lorain Journal[58] cases.[59] The Court noted that both these cases were brought under the Sherman Antitrust Act, a law of general application, and that "while the enforcement of a generally applicable law may or may not be subject to heightened scrutiny under the First Amendment, . . . laws that single out the press, or certain elements thereof, for special treatment . . . are always subject to at least some degree of heightened First Amendment scrutiny."[60]
{22} These holdings are sound. Indeed, it is surprising that the government urged so sweeping and bold a position that would have made the Red Lion standard applicable to all media, including the print press, upon a finding of market dysfunction.[61]Red Lion permits content regulation such as the fairness doctrine, access for candidates, and specifically designed educational programming merely upon the basis that such regulation is reasonably related to a legitimate public interest.[62] If there is a market dysfunction in some speech sector, however, then structural, non-content relief which avoids the First Amendment concerns raised by content regulation is generally preferable. If content regulation is needed, surely it is sound that there be heightened scrutiny for such intrusion into the editorial process, not merely the reasonably related or rational basis approach of Red Lion.
{23} The same analysis applies to the argument based on cable's governmentally preferred position and franchising. Even assuming, as some lower courts have,[63] that cable's close involvement with the government and the regulated television industry is a pertinent distinguishing factor from print which bears on the government's ability to regulate cable, it does not follow that the Red Lion standard is applicable and that the government, under a rational basis approach, can regulate cable content as to fairness or children's programming. Cable is a multichannel video delivery system, with greatly expanding capacity. Clearly, there can be structural relief, such as access provisions, to deal with cable's monopoly gatekeeper role in today's environment. Here again, governmental regulation should meet some degree of heightened First Amendment scrutiny rather than simply a rational basis standard.
{25} It would have been easy for Congress to craft a content-neutral must-carry provision. As the Court found in Turner, "[w]hen an individual subscribes to cable, the physical connection between the television set and the cable network gives the cable operator bottleneck, or gatekeeper, control over most (if not all) of the television programming that is channeled into the subscriber's home."[64] The Court further noted that cable operators have an economic incentive to not carry all local signals and that the financial health of signals not carried can be greatly threatened.[65] Thus, there is a substantial governmental interest in insuring the continued availability of these over-the-air signals, especially for the forty percent of American homes without cable.[66] The must-carry provisions, therefore, are justified without reference to content "by special characteristics of the cable medium: the bottleneck monopoly power exercised by cable operators and the dangers this power poses to the viability of broadcast television."[67]
{26} While the must-carry provisions in the Cable Act do not suppress or favor any viewpoint, there are statutory findings in the Act which raise a most serious issue--namely, whether the government favored the carriage of local broadcast signals, and the possible dropping of cable networks, because of the content of those signals. Statutory findings in the Cable Act are explicit in recognizing the "benefit" in local origination of programming. They state that local broadcasters are "an important source of local news and public affairs programming and other local broadcasting services critical to an informed electorate."[68] The statutory findings further state that "[p]ublic television provides educational and informational programming to the Nation's citizens, thereby advancing the government's compelling interest in educating its citizens."[69] Finally, there is an entire section, section 5, which bestows special benefits on noncommercial educational television, including the requirement that cable operators import a distant noncommercial educational television station if none is available locally.[70]
{27} That localism is an important and driving force behind the Cable Act is further shown by provisions which permit the FCC to require carriage of a low-power station if it determines that the station's programming would address inadequately served "local news and informational needs."[71] The FCC is also allowed to require carriage of an otherwise ineligible station if the station provides coverage of news or sports or other events of interest to the community.[72]
{28} The minority in Turner relied upon these provisions to find that Congress had preferred local broadcasters over cable programmers in significant part because of the educational and local content of the broadcasters' programming.[73] The minority determined that the must-carry provisions come within the strict scrutiny test.[74] The minority then found that the must-carry provisions meet a legitimate, but not a compelling, government interest and, therefore, would not survive strict scrutiny analysis.[75]
{29} The majority opinion sloughed aside the above provisions as being nothing more than a recognition that broadcast signals have "some intrinsic value."[76] The majority found that the "overriding objective" of the must-carry provisions is "not to favor programming of a particular subject matter [read educational] . . . or format [read local], but rather to preserve access to free television programming for the 40 percent of Americans without cable."[77] Consequently, the majority found the must-carry provisions to be content-neutral and that O'Brien intermediate scrutiny was the applicable standard of review.[78]
{30} In so finding, the majority simply reads the above provisions out of the Cable Act.[79] It is certainly correct that Congress was concerned with preserving access for the forty percent of households without cable, but the minority was right when it stated that the Congressional findings and scheme make clear that a substantial purpose of the must-carry provisions was also to preserve the availability of local and noncommerical educational programming. As a consequence, Congress was making a content-driven determination to favor local broadcast signals and noncommercial educational stations over cable programmers, since cable systems with limited capacity will likely have to drop cable programmers in order to meet their must-carry obligations.
{31} The majority probably acted in this fashion for pragmatic reasons. The findings and scheme in section 5, which grant a preference for noncommercial educational stations, are unnecessary. Congress could have simply adopted a content-neutral approach focused on preserving the availability of local signals for the cable and non-cable audiences in order to counterbalance cable's monopoly bottleneck position. It could have adopted the "may carry, must-carry all" approach[80] which would lead to the same results as the must-carry provisions but in a wholly content-neutral fashion. The majority could have noted that these alternatives were open to Congress, and acknowledged that the must-carry provisions are indeed content-based regulations. Instead, it simply chose the pragmatic route of essentially re-writing, or, more aptly, discarding parts of, the Act thereby avoiding a fourth round on the must-carry controversy.[81] In practical effect, the government won under its market dysfunction argument but under O'Brien intermediate scrutiny rather than a rational antitrust test or the Red Lion standard.
{32} After finding that the must-carry provisions are content-neutral, the majority proceeded to analyze the case under O'Brien intermediate scrutiny analysis. The Court found that the must-carry provisions meet important governmental interests of "(1) preserving the benefits of free, over-the-air local broadcast television, (2) promoting the widespread dissemination of information from a multiplicity of sources, and (3) promoting fair competition in the market for television programming."[82] The majority then proceeded to determine whether the must-carry provisions were narrowly tailored to meet these governmental interests. This turned on resolution of two questions: whether the government had demonstrated that "the economic health of local broadcasting is in genuine jeopardy and in need of the protections afforded by must-carry" and whether the must-carry provisions burden "substantially more speech than is necessary to further the government's legitimate interests."[83]
{33} The majority found that on the record before the Court, even according "substantial deference to the predictive judgments of Congress," there was a need for additional fact finding on these issues and remanded to the district court.[84] The majority indicated that even if it accepted the validity of an FCC study which showed that in 1988, at a time when no must-carry provisions were in effect, about twenty percent of cable systems dropped or refused to carry one or more local broadcast stations on at least one occasion,[85] a factual issue remained because there was an inadequate showing on the record that broadcasters who would be dropped or repositioned in the absence of must-carry "would suffer financial difficulties as a result."[86] Similarly, there was a void in the record "concerning the actual effects of must-carry on the speech of cable operators and cable programmers . . . ."[87]
{34} The minority opinion is somewhat stronger on this score, finding that the must-carry provisions "restrict too much speech" and that the only sound remedy is to "[p]rotect those broadcasters that are put in danger of bankruptcy, without unnecessarily restricting cable programmers in markets where free broadcasting will thrive in any event."[88]
{35} Both the majority and, ultimately, the minority opinions, however, are mistaken on this score. The concurring opinion of Justice Stevens, which relies on the interplay between the retransmission consent provision of section 6 of the Act[89] and the must-carry provisions of section 4 and section 5, is the sound approach.[90] Without section 6, there is a strong argument that the must-carry provisions are overbroad. It is undisputed that, even in the absence of must-carry, cable operators will carry popular over-the-air signals, including strong noncommercial educational signals, precisely because they are the most watched programming.[91] Even if cable operators fail to voluntarily carry popular over-the-air signals, there is a factual question whether these popular stations would be so injured economically as to impair their ability to operate successfully.[92] The problem area concerns the less popular stations such as the UHF independents or noncommercial educational stations. The must-carry provisions do not focus on the need to carry such stations, and indeed, give the cable operator discretion as to what stations to carry on the one-third of its channel capacity which must be devoted to local commercial programming. It follows that absent the retransmission consent provision of section 6, the governmental scheme would not be narrowly tailored to the purpose it is designed to meet.
{36} The retransmission consent measure in section 6 saves the day. Under section 6, a commercial TV station can choose must-carry or instead, can seek compensation for allowing the cable operator to continue carrying cable programming.[93] This scheme has been effective, with a large majority of stations opting for retransmission consent because of their popularity.[94] Weaker UHF independent stations, on the other hand, generally utilize must-carry.[95]
{37} It might still be argued that there is a need for a remand to determine to what extent these weaker stations are adversely affected if not carried by cable. But it seems not only rational but indeed common sense that a weak UHF station, such as Channel 50 in Washington, D.C., if cut off from over half of its audience, would suffer grievous harm. Even if it were not driven off the air, it would operate under a crippling handicap. If the above analysis is correct, the Supreme Court is calling upon the district court to review Congressional findings that are, as a practical matter, sound. If ever there were a case for substantial deference to the predictive economic judgments of Congress, this is it. In short, other than the opinion of Justice Stevens, the treatment of this issue by the Court simply ignores reality.[96]
{39} The Turner majority certainly acted as if that were the case, since it strained so hard to find that Congressional findings, clearly directed to content (localism and educational fare), were irrelevant to the determination of whether the must-carry provisions are content-based or content-neutral. But what if the majority had found that the must-carry provisions did involve content and, therefore, came under strict scrutiny analysis? Are the provisions narrowly tailored to a compelling government interest?
{40} It seems likely that Section 4, must-carry for local commercial television, would be unconstitutional. As indicated above, this provision is essentially directed to carriage of weaker independent stations. These stations produce little news and information regarding public affairs. Most operate in a similar fashion to the UHF stations which carry home shopping[98] as they primarily carry entertainment or infomercials, with short segments of public service information.[99] It cannot be seriously argued that there is a compelling state interest in ensuring the carriage of such stations, rather than cable programmers.[100]
{41} The provisions of section 5, which require the carriage of noncommercial educational stations, however, stand on an entirely different footing. These provisions are directed at the most compelling interest of the government--the education of its citizens. Children watch an inordinate amount of television. There should be programming that not only entertains but educates and informs this critical audience. By far the major source of such programming is the noncommercial educational station. Congress has long supported educational television for this purpose.[101] Congress has determined that "[p]ublic television provides educational and informational programming to the Nation's citizens, thereby advancing the government's compelling interest in educating its citizens" (emphasis supplied).[102] While the Court cannot abdicate its responsibility to review the matter, surely a Congressional judgment of compelling state interest in insuring that over half of the TV households throughout the United States are not cut off from reception of this vital educational material is entitled to some reasonable degree of deference.[103]
{42} Because the majority sloughed aside the content nature of the section 5 regulations, it did not confront the issue of whether these regulations meet a compelling state interest. The minority did discuss the issue, however, but its reasoning is flawed. The minority opinion does note that the government's interest in promoting educational programming seems "somewhat weightier" than its interest in promoting localism, but then finds it a "difficult question" whether that interest can justify restricting other speech.[104] The minority opinion points out that the Court has never held that the government could impose educational content requirements on newsstands, bookstores, or movie theaters.[105] That statement, however, simply ignores the crucial consideration that cable is a monopoly gatekeeper with the ability to cut off access to vital educational programming in sixty percent of TV households.[106]
{43} The minority also asserted that the must-carry provisions are not narrowly tailored because in order to benefit educational broadcasters, the provisions burden educational cable channels "with as much claim as PBS to being educational . . . ."[107] The government's compelling interest, however, is that educational programming of noncommercial stations gain access to the large cable audience. To go beyond that and decree what cable programming can or cannot be dropped in order to accommodate that purpose would truly interfere with cable operators' editorial autonomy, and might well pull the government into a First Amendment quagmire of defining what constitutes worthy cable educational programming.
{44} Finally, the minority opinion holds that since the must-carry rules are content-based, they are "an impermissible restraint on the cable operators' editorial discretion . . . ."[108] Of course the rules interfere with cable's editorial autonomy. The issue is whether there is a compelling state interest that warrants such interference. The minority opinion here simply abandons the First Amendment analysis in which it purports to engage.[109]
{45} It may be that the minority's mishandling of the strict scrutiny issue in the noncommercial educational field is due to the government's failure to argue the point.[110] If that is the case, it is unfortunate. For it leaves four Justices holding that since content regulation is involved, strict scrutiny will be applicable with lethal results in even the strongest governmental area of interest, a powerful education interest seriously threatened if cable undermines its access to audiences, and five other Justices straining very hard to avoid strict scrutiny probably because of the resulting need to invalidate the must-carry regulations. This does not augur well for other content regulations in the cable arena.
{46} Cases in which the constitutionality of such regulations is challenged are sure to come before the Court in the near future. For example, review is currently being sought to challenge the trial court's determination in the Daniels Cablevision[111] case that the public access, educational, and governmental channels ("PEG") and the commercial leased channel requirements of the Act[112] are constitutional on the grounds that "affording speakers with lesser market access to the nation's most pervasive video distribution technology" serves a substantial governmental interest and thus meets the intermediate test of O'Brien.[113] The commercial leased channel requirements are clearly content-neutral and thus would be sustained under O'Brien. Public access channels are really noncommercial, open channels, and regulation of them would also likely fit comfortably under O'Brien. The educational access channel and the government access channel (a local C-SPAN) requirements, however, implicate content regulation. If the government set aside a reasonable number of such channels, and adequately funded them,[114] it could cogently argue that these regulations meet a compelling state interest in both the educational and local public affairs area.[115] Whether the government would succeed in the face of Turner, however, is uncertain.[116]
{47} This issue will keep arising until there is a definitive ruling by the Court. Thus, on December 27, 1994, Children's Television Workshop (CTW) filed a petition with the FCC, requesting that it amend its so-called "going forward" rules[117] to allow cable operators to increase an agency-prescribed cap by twenty cents per month per subscriber for operators that add a channel programmed by "quality educational or minority programming sources."[118] CTW is exploring the possibility of launching an all-day, advertiser-supported cable channel dedicated to children's educational programming, and believes that without the rule change, its effort will not be feasible.[119] Clearly, we are again in the content area and under strict scrutiny to determine whether there is a compelling governmental interest. The FCC should be allowed to act affirmatively, in light of the strong educational interest, the absence of any adverse effect on other cable programmers, and the voluntary nature of the regulation which precludes interference with cable's editorial autonomy.
{48} In sum, the problem with Turner is the majority's strained effort to avoid the strict scrutiny test by jamming the must-carry provisions of sections 4 and 5 of the Cable Act into the content-neutral category even though, particularly in regard to section 5's provisions relating to carriage of noncommercial educational stations, there is clearly no fit. The opinion is further plagued by the minority's slipshod and flawed analysis of the strict scrutiny test as applied to the educational area. While this does not bode well for sound constitutional application to future cable regulation, there is still hope that a new majority on the Court will arise to save the day.
{49} Such action would not require any new test or major revision of First Amendment jurisprudence. The present formulation is sound: The government must show that a content-based regulation is narrowly tailored to meet a compelling state interest, and the Court will apply strict scrutiny to that showing. Where the regulation differentiates on the basis of viewpoint, strict scrutiny will almost always result in a finding of unconstitutionality. But where the government is seeking to promote content in an area like education, and has a very strong reason for doing so (as in cable where the audience can be cut off from receipt of the educational fare because of a monopoly gatekeeper), the Court must not repeat the mechanistic approach that it employed in Turner. Rather, the Court should afford its co-equal branch, Congress, a reasonable amount of deference when Congress finds that a compelling interest is at stake. The Court should not assume the role of a super-legislature as it did in Turner.
{51} Before developing this proposition, some brief comment on the continuing constitutional viability of Red Lion for the broadcast public trustee scheme in the light of Turner is in order. Turner is unanimous in leaving Red Lion isolated and standing alone.[121] It is unlikely that Red Lion will be overturned in this decade.
{52} First, the argument has been made that there is no longer any scarcity and, therefore, the foundation of the Red Lion rationale has been undercut.[122] But the broadcast scheme is based on allocational scarcity, which is defined, not by the number of outlets or comparisons with other media, but by comparing the number of requests for broadcast frequencies with the number of frequencies available. Indisputably, the same scarcity exists today as existed when the scheme was first developed.[123]Red Lion was decided at a time when there were roughly 7000 radio stations;[124] today there are about 11,500.[125] One cannot seriously argue that the public trustee scheme is constitutional at 7000 but not at 11,500.
{53} Second, it is difficult to see how the constitutional issue would be presented to the courts. The broadcasters have no interest in doing so; they like being called public trustees because it enables them to fend off efforts to impose a spectrum usage fee and to operate under little regulatory burden.[126] Furthermore, the Court in this decade has continued to rely heavily on the public trustee concept in determining the constitutionality of broadcast regulation.[127] It may be that the Court, recognizing that sweeping change is coming in light of technological and market developments,[128] is simply waiting for Congress to do what it must do eventually--end the isolated content treatment of broadcasting.
{54} In sum, Red Lion should have continued impact only in the broadcast area. That impact is bound to diminish and eventually end as broadcasting enters the digital era and becomes indistinguishable from other forms of electronic publishing.[129] At that point, broadcasting will come fully under traditional First Amendment jurisprudence.
{55} So far as Direct Broadcast Satellite ("DBS") and other microwave video distribution services[130] are concerned, they do not come within broadcast regulation under the FCC's current regulatory regime if they are carried out, as they invariably are, on a subscription video basis.[131] When the services are carried out on such a basis, they are conducted on a contractual, pay relationship, with the subscriber needing a special encoder to receive the encrypted transmission.[132]
{56} Even as a non-broadcast entity, however, DBS and the other microwave carriers can nevertheless be required to present public service material. Section 25 of the Cable Act[133] provides that as a condition to authorization or renewal of any DBS license, the DBS provider must allocate four to seven percent of its channel capacity to "noncommercial programming of an educational nature."[134] The district court in Daniels Cablevision found this provision unconstitutional because there was no evidence in the record to show that it is needed to serve a "significant regulatory or market-balancing test."[135] The district court's decision was sound since section 25 is a content-based regulation and, therefore, in order to be constitutional it must serve a compelling state interest. Other than some vague purpose such as reserving capacity for possible future educational growth on a possibly important transmission means, there appears to be no practical reason for the regulation. The real problem is not access for distribution of educational programming on DBS, but rather the production of such educational material.[136]
{57} In the 103d Congress, the Senate telecommunications reform bill, S.1822,[137] contained a section which required telecommunications networks to reserve, for public uses, up to five percent of their capacity for the delivery of information services.[138] These services were to be provided at incremental cost to schools, libraries, public broadcasting entities, and non-profit organizations that provide public access to noncommercial educational, informational, cultural, civic or charitable services.[139] This reservation was required "in exchange for use of public rights-of-way," which included the radio spectrum.[140] The Senate Report stated that the reservation was a content-neutral regulation permissible under Turner and that "the First Amendment does not bar the Federal government from imposing enforceable public obligations in exchange for 'use of a limited and valuable part of the public domain.'"[141]
{58} In fact, the regulation was not content-neutral. It explicitly sought to promote specified "categories of speech"--namely, "educational, informational, cultural, civic or charitable . . ." categories of speech.[142] In order for the regulation to be sustainable, therefore, the government would have had to have established that the regulation met a compelling state interest. The Senate Report did not identify such an interest, but merely stated that the provision "furthers a number of substantial government interests . . . ."[143] The Report's reliance on use of the public rights-of-way is similarly unpersuasive. This justification for regulation was rejected in Turner in regard to cable and its need to use local streets or ducts.[144] Even as to spectrum, the public trustee notion which drove the Red Lion and CBS decisions is limited to the broadcast medium. As noted above, the operations here--DBS, MMDS, IFTV, OFS, and LMDS--are, under FCC policy and rules, non-broadcast in nature. It would appear that the thrust of Turner is not fully appreciated by some members of Congress.
{59} In the new (104th) Congress, the above issue will likely not arise because of Republican opposition. Commerce Committee Chairman Larry Pressler's Discussion Draft[145] of the Telecommunications Competition and Deregulation Act of 1995[146] omits the five percent set aside of the prior Senate proposal. Senator Ernest F. Hollings, in issuing the Democratic response, has acquiesced in that omission.[147] The Chairman's Draft raises no new First Amendment issues and alleviates two issues now pending in the courts since it permits the telcos to deliver video programming and significantly diminishes rate regulation of cable.[148] It affords the telcos the option of delivering video either as common carriers or as cable operators. If a telco opts for the latter, it will be required to obtain a cable franchise and will be regulated as a cable operator.[149] This is unfortunate, because it would be better policy to require common carriage operation thereby insuring open access to all comers.
{60} The Hollings Draft, in contrast, has strong First Amendment goals.[150] It calls for universal service at incremental cost to schools, libraries, local public broadcast stations, and similar entities.[151] However, the draft does raise a First Amendment issue in one respect. Section 208(D) provides that local broadcast stations are to have access to the telco's video platform at incremental-cost rates and are entitled to access on the platform's first tier of programming.[152] Once again, this provision reflects mere favoritism for the broadcasters because of their strong lobbying clout. The provision survived the negotiation process between Republican and Democratic Committee leaders and is contained in the bill currently introduced in the Senate.[153] The bill contains no Congressional findings as to why broadcast stations, including the home shopping stations, merit such preference over educational cable programming such as CNN and C-SPAN. Congress is favoring one group because of the content of its programming, more accurately its lobbying abilities, and must advance a compelling reason for doing so--a difficult hurdle in this case.
{62} That means that all media will come under traditional First Amendment jurisprudence, and in particular the print model of First Amendment jurisprudence. That model has traditionally served the interests of the First Amendment by promoting the widest possible dissemination of information from diverse sources. In the future it should serve to promote vast dissemination of information by means of the emerging telecommunications media. Just think today of all the magazines, news letters, pamphlets, circulars, etc. that are sent by mail or fax over electronic means. The Internet exemplifies the great potential for such electronic publishing from a huge number of sources. There will be content problems, but they will be the usual ones such as obscenity, libel, and false and misleading advertising.[155]
{63} Second, in light of these developments, the bottleneck aspect of cable television, which understandably drove the decisional process in Turner, will disappear. There will in all likelihood be a pervasive bedrock common carrier operation (the telcos).[156] Cable itself may become a much more open, nondiscriminatory medium in the new mileau, particularly as it enters into large scale telecom operations with fiber optic and digital compression techniques making available hundreds of channels of programming. Indeed, with the emergence of large video servers (huge computer complexes) and video switching ability, the very notion of channels of programming may disappear; this technology makes available any amount of video programming at the choice of the subscriber. In this future of abundance, there will simply be no need for the messy and awkward O'Brien-type review now being conducted at the district court level.
{64} Third, while Turner does indicate a flawed approach to applying the traditional First Amendment jurisprudence, namely a mechanistic rejection of finding that regulation is content-based even where it is not viewpoint directed and may well serve a compelling state interest, this may not be of great importance in the future. The problem will not be access. Rather it will be ensuring that vital governmental undertakings that involve the NII in fields like education, libraries, and health care are adequately funded. For example, in education, the issue will not be any reservation of capacity for educational programming or materials. Rather, the issues will be, for example, preparation of educational materials, testing such materials, training teachers to use the applications, and the purchase, maintenance, and upgrading of necessary equipment. All this must be done by the education sector. Telecom can help, with expertise and possibly preferential or incremental cost pricing (though even this can be poor policy if carried to an inordinate extent), but it cannot be called upon to do the job.[157] In short, policymakers must face up to the real problems in these fields of vital governmental interest, and not try to slough their responsibilities through regulatory approaches that look good but really do very little for the public interest.