The "vast wasteland" in retrospect.(1961 speech on television by Newton Minow)

First, a disclosure: I was a newly minted legal assistant to Newton Minow in May 1961, when the speech was given. (1) I and several other staff members had sought to persuade him to drop the "vast wasteland" phrase. I thought it was too intellectual--the broadcasters would hate the speech in any case and the wider public whose support Minow sought would not get the reference to the Eliot poem. Minow first agreed, and then at his wife's urging, put the phrase back in. The subsequent public reaction--which made the "vast wasteland" phrase famous--put paid to any pretensions I might have had to expertise in public relations.

Whatever I thought of its language, however, I was a committed supporter of the speech's substance, including its central demand that commercial telecasters provide programming that was socially worthy but undervalued by the commercial market. Yet today the speech reads like the relic of a bygone geologic age. This Essay attempts to explain why this should be so.

It is not, to begin with, that the intellectual bases for Minow's activist stance toward broadcast program regulation have been decisively refuted. Consider the thesis that activist program regulation is warranted by the scarcity of broadcast frequencies; i.e., that the government may or must allocate limited frequencies to different uses, and that it cannot in so doing avoid responsibility for the social worth of the uses (as well as the users) that it licenses. (2) Even before 1961, this claim had been attacked by Ronald Coase, in a now-famous article which demonstrated that the electromagnetic spectrum is no more limited than any other economic resource; that the government could in principle define property rights in the use of the spectrum, auction them off (or dispose of them to private parties by lottery or some other means), and let them be, thereafter, allocated to different uses and users by the forces of the market. (3) Since 1961, it has become commonplace for scholars and jurists to treat that demonstration as a total refutation of the claim that "frequency scarcity" justifies the regulation of broadcast program content. (4) But the conclusion does not follow automatically from the premise.

Clearly, if frequency allocation and use were determined solely by property rights and market forces, no one could point to "frequency scarcity" as a reason that the government may or must assume responsibility for broadcast program content. (5) But while Federal Communication Commission ("FCC" or "Commission") broadcast licenses have many of the features of de facto property rights, (6) the government has continued to determine the allocation and use of broadcast frequencies, and there is no likelihood that this situation will change anytime soon.

It does not matter whether one ascribes the persistence of the government allocation model to a general perception of its superior merit, (7) or to an unholy (if tacit) alliance among rent-seeking broadcasters, politicians, and bureaucrats. (8) So long as we continue to base broadcast frequency allocations on government judgments of the "public interest" to be served, the argument that those judgments may or must consider broadcast program content will remain viable. That we could deal with broadcast frequency scarcity in some other fashion does not warrant reasoning as if we were already doing so.

The "frequency scarcity" thesis has been strengthened, moreover, by the current vogue for its kissing cousin--the belief that "the public owns the airwaves." (9) Ironically, in 1961, the "public ownership" thesis was little more than a rhetorical flourish with no independent power to turn the crank of legal analysis. (10) Section 304 of the Communications Act, which was derived from the Radio Act of 1927, provided then (as it does now) that license applicants must waive any right to the spectrum "as against the regulatory power of the United States." (11) That choice of language was deliberately intended to foreclose any claim that the government owns the spectrum as it does public lands. (12) In 1993, however, Congress authorized the FCC, for the first time, to distribute licenses (limited to specified nonbroadcast services) by means of auctions. (13) In so doing, it required the agency to seek (among other things) the "recovery for the public of a portion of the value of the public spectrum resource made available for commercial use." (14) The legislative history, moreover, refers to the spectrum as a "public" or "national" resource, from the use of which the government is entitled to recover an economic return. (15)

Advocates of program regulation soon argued that, because broadcasters use "the public's" spectrum "for nothing," the government, as representative of the public, has the right to demand payment in service to public ends the government specifies. (16) And the FCC--in an action that was the high-water mark of the kind of program regulation that Minow espoused--justified rules that effectively require commercial television stations to devote three hours each week to children's educational and informational programs on grounds of both "frequency scarcity" and "public ownership." (17)

I repeat, therefore, that Minow's approach has not been decisively discredited. (18) Why does it nonetheless seem antique? I can suggest several reasons.

First, the 1962 all-channel receiver legislation, which required that television sets be capable of receiving UHF television signals, (19) and the growth of cable television, which tended to equalize the ease of reception for UHF and VHF television stations, (20) made UHF stations viable (albeit not the equal of VHF stations). The result was an enormous growth in the number of both commercial and noncommercial public television stations. (21) The existence of a nationwide, functioning public television service, which provides many of the programs Minow demanded of commercial telecasters, unavoidably makes those demands seem less urgent.

The growth of cable has had another relevant effect. We now have, in addition to six general-audience television broadcast networks and several Spanish-language networks, a wide variety of television networks that depend entirely on non-broadcast, cable transmissions and derive support from subscription payments as well as advertising. Some of the cable networks provide the kind of educational, cultural, and other programs that Minow demanded. None of the cable networks is constrained by "frequency scarcity." This does not refute the "frequency scarcity" thesis as applied to broadcasters, but it once again reduces its significance--why should we care so much whether commercial broadcasters provide the desired service? And it creates a disparity between the regulation of broadcasters and cable services, which although not inexplicable, is certainly awkward.

Second, the general movement for deregulation of American industry, which arose during the Ford administration and reached its acme in the Reagan and first Bush administrations, (22) had a major impact on FCC program regulation. Traditional efforts to require "public interest" programming in the context of license renewal were swept aside or diluted virtually to the point of insignificance, on the ground that they were no longer necessary to achieve "public interest" goals. (23)

Similarly, the "fairness doctrine" had for decades required broadcasters to provide some programming devoted to controversial issues of public importance and, in so doing, it allowed for a reasonable opportunity for the presentation of conflicting views. Although the constitutionality of the doctrine had been affirmed in ringing terms (on "frequency scarcity" grounds) by Red Lion Broadcasting Co., Inc. v. FCC, (24) the FCC now found the "frequency scarcity" thesis invalid and the doctrine both unconstitutional and contrary to the public interest. On review, the D.C. Circuit chose not to address Red Lion but found the FCC's public-interest rationale independent of the Constitution and affirmed on that ground. (25)

As noted above, the "frequency scarcity" thesis survived this blow and, in conjunction with the "public property" theory, returned to justify the current rule on children's television programming. But the Clinton FCC, which adopted that rule, made no attempt to revive the "fairness doctrine" or any serious attempt to reinstate a vigorous practice of requiring "public interest" programming generally in the context of license renewal.

It seems highly unlikely that any such efforts will be made in the future. For the reasons already described, it no longer matters as much whether commercial television broadcasting is or is not a "vast wasteland." Moreover, even those who (like me) believed in Minow's attempt to reform the "wasteland" no longer have confidence in the efficacy or the wisdom of the attempt to achieve that result by regulation.

As to efficacy, it suffices to cite the first-year law students' favorite, Lumley v. Gye. (26) Courts cannot make opera singers sing, and administrative agencies cannot make commercial broadcasters provide unprofitable cultural, educational, or informational programming that is creative and effective. The FCC rule requiring minimum amounts of children's educational and informational programming has undoubtedly increased the quantity of programming shown on the tube that meets the only kind of standard an administrative agency can enforce. But one doubts that there has been a major change in the degree to which the commercial medium performs the desired function effectively.

As to wisdom, the regulatory model based on "frequency scarcity" and "public ownership of the spectrum" has always had a repressive potential. Justice Brennan (among others) argued that "frequency scarcity" can justify only affirmative content requirements, not prohibitions or restrictions. (27) But if the government is responsible for the failure of broadcasters to provide socially desirable content, it is hard to see why it is not responsible for their provision of socially undesirable content.

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