The messy suicide of commercial radio series; (part 1) Airwaves of the people, for the people… yeah, sure

Who owns the airwaves? Who actually has the ultimate rights to all those broadcast frequencies?

The airwaves in America (and indeed, in most of the world) are theoretically public property. As mandated by the Radio Act of 1927 (HR 9971), which established the Federal Communications Commission, Congress empowered that commission to:

from time to time, as public convenience, interest or necessity requires…

1. classify radio stations,

2. prescribe the nature of the service rendered by each class of licensed station…

3. assign bands of frequencies or wave lengths…

It also delineated a variety of other responsibilities, some of which have been obviated by the passage of time. The primary one, however, involved assigning frequencies for various functions and licensing them. The FCC reminds us this doesn’t just pertain to commercial broadcasting on the AM, FM, and television frequencies. Toy cars run on radio control and those frequencies need to be licensed. Your car remote is a small radio transmitter. Even microwave ovens use radio frequencies (micro wavelengths, if you will) and need to be licensed. Look at the back of your microwave and you should see an FCC compliance statement.

And, when you think of it, this is all good. Without someone watching out for these things, you might turn on your television and the popcorn would start popping, use your wireless modem and cause interference on all the car radios in your neighbourhood, or broadcast your wireless phone calls to everyone’s FM stereo (now that’s entertainment!).

Before the creation of the FCC, things like that happened all the time. Many of the property squabbles over frequencies were due to the idea that the frequencies were, in fact, up for grabs. According to attorney Krystilyn Corbett:

After broadcast, or “wireless,” communication was first developed, rights to use a particular frequency of the electromagnetic spectrum were allocated through a “first-in-time” principle, as were private rights… . One who wanted to broadcast simply appropriated a suitable frequency; one who came later found another, unused frequency. Rights established through the first-in-time principle were not, however, recognised and enforced consistently, and so many conflict arose.

On the one hand, the courts wouldn’t allow broadcasting to be regulated under the purview of the secretary of commerce. On the other hand, without regulation, there was nothing to say that one broadcaster could not use the frequency another broadcaster had used first, stepping all over it with a more powerful transmitter. By the mid-1920s, things became so confused on the airwaves that President Coolidge went to Congress and asked it to take some action.

The Radio Act in part proclaimed “that the air waves belonged to the people of the United States and were to be used by individuals only with the authority of short term licenses granted by the government.” Back then, as opposed to now, “the government” still equated itself with “the people.”

The next step in the process, the revised Communications Act of 1934, reaffirmed public ownership of the airwaves, stating that radio stations were required to operate in the public interest, convenience, and necessity.” The act also turned the FCC into a permanent body and prohibited anyone from “owning” the radio spectrum:

It is the purpose of this chapter, among other things, to maintain the control of the United States over all the channels of radio transmission, and to provide for the use of such channels, but not ownership thereof, by persons for limited periods of time, under licenses granted by Federal authority, and no such license shall be construed to create any such right beyond the terms, conditions, periods of the license.

However, the University of Chicago’s Richard Posner described a broadcast license as, “for all practical purposes, perpetual.” And by making that license transferable, Congress and the FCC essentially turned the radio spectrum into a frequency auction. Since the people who possess licenses are able to sell them, the broadcast spectrum has become, in essence, the property of those who can purchase a piece of it.

As it became harder to revoke a broadcaster’s license, that broadcasting license could stay in the owner’s hands until such time as they somehow transferred it, leaving the owners of the airwaves – us – out of the transaction completely. To try to prevent this situation from concentrating media access in the hands of the few and the wealthy, who could then ensure that only their own opinions were exposed to the public, some heavy restrictions were placed on media ownership. For example, rules were established:

• In 1941, so one company could reach only 35 percent of the nation’s households

• In 1964, to prohibit a broadcaster from owning more than one station in a single market, except in very large markets

• In 1970, to prevent ownership of both a radio station and a television station in the same market

The public was also given the ability to challenge a station that they felt didn’t serve the “public convenience, interest, or necessity,” and prevent the renewal of that station’s license. The FCC codified these policies in 1946, and again in 1960, when it established 14 criteria for maintaining a broadcast license. By 1965, the effort it took to vet the criteria for each renewal had turned into a real drag on the FCC’s time.

Then the courts got involved, and several rulings began the process of handcuffing the FCC to the standards required to confirm the renewal of a license. From these cases came a flood of challenges to renewals, especially after the FCC denied WHDH a renewal in 1970, citing public demand. In 1970, the FCC streamlined the process, stating it would renew licenses if the station could show at least “substantial performance free of serious deficiencies.” Somewhere in there, the pendulum began to swing away from public ownership of the airwaves and more toward a model of private ownership.

Theoretically, the airwaves have stayed in our hands. The sad fact is, somewhere toward the start of the 1980s, they slipped through our fingers.