The 1996 Telecommunications Act: ten years later.(Telecommunications Act of 1996: Ten Years Later Symposium)

While we may all celebrate the energy released into the marketplace by competition (when it actually occurs), commercial competition in itself promises and threatens nothing for public culture. It is our communications and media policies that either promote or discourage public culture. And it is a culture. Public culture is not spontaneous generation. Accident and the unintended consequence may create new opportunities, but nothing guarantees that those opportunities turn into cultural habit. Two decades ago social scientist Ithiel de Sola Pool (4) argued that emerging open technologies would liberate enchained social forces and undercut the traditional power of elites. Those "technologies of freedom" have arrived. But they did not bring the vaunted release that many (not necessarily Pool) imagined from regulatory responsibility.

Communication policies that promote public life are not utopian. However, many have worked, though imperfectly, in the past. For instance, obligations upon broadcasters to serve their communities with local programs appropriate to the concerns they ascertained in deliberation with community members were clumsy but also useful ways of getting designated monopolists to pay some attention. As imperfect as such regulations were, when faithfully enforced they resulted in active relationships between media and local communities. The aggressive retirement since 1980 of a range of mass media public interest obligations and relaxation of structural regulations, including concentration limits, was not accomspanied by good-faith efforts to assess the consequences of their dismissal. Nonetheless, their utility has not been retired, in part because the ancient regime in which they were crafted has also not yet been retired.

As communications scholar Philip Napoli has pointed out, the public interest standard has always been saluted at a high conceptual level, and become a political skirmish at the level of application with not much in the way of principles that help people operationalize the concept. (6) The goal of encouraging active public engagement with the issues that affect our joint present and future is wholly nonpartisan and consistent with bedrock political values.

Encouraging public life with media policy can have, in this tempestuous era of digital opportunity, many facets. Approaches such as encouraging entry of new players (that is, competition policies that are not gifts in disguise to incumbents), government support for standards-setting, and privileging open-access zones in spectrum policy are as rich in possibilities for the benefit of public culture as more classic public interest approaches. There are plenty of good ideas in circulation today by many of the underfunded organizations representing stakeholders in the nonprofit environment. Some of them include:

* Investment in public media (whether delivered by broadcasting, cable, satellite, or emerging technologies) that can afford to do the work of public engagement rather than scouting for the next Suze Orman to rescue the budget during pledge drives.

* Policies that encourage local mass media responsiveness to local publics, including protection of cable franchise requirements, community programming expectations, and community needs ascertainment by broadcasters, license renewal requirements exigent enough to allow regulators to know what local engagement broadcasters have engaged in, and license terms and ownership limitations appropriate to encouraging local engagement.

* Policies that encourage universal broadband deployment and access.

* Policies that reallocate spectrum so that more is available to develop grassroots Wi-Fi and other unlicensed networks permitting collaborative communication and content generation.

* Policies that move toward a more flexible spectrum policy with encouragement for noncommercial, public uses.

* Policies that encourage rather than punish public debate and discussion, especially online and digitally. Currently, the use of Strategic Lawsuits Against Public Participation ("SLAPP") by the powerful discourages such discussion. So do rigid and high-bar intellectual property protectionist policies such as broadcast flag, the Digital Copyright Millenium Act, and hardware and software initiatives developed in the private sector to limit copying, but which in the process strangle the ability to quote materials for public discussion.

* Policies that encourage inclusion, as the Americans with Disabilities Act did with continuing and sometimes surprising success for populations never originally considered.

Americans need to invest in their own democratic culture through their tax dollars and their communications policies. Policymakers can be leaders of that process. They need to participate in and learn from public discussion and input--encouraged by hearings, public statements by policymakers calling for input, and engagement with the broad nonprofit sector--as they reshape the law. They need to seek policies that are friendly to such processes as well. This can happen. The independent sector is blooming with good suggestions from all political viewpoints. The corporate sector is full of cross-currents and interests that can benefit from a vital civil society. The alternative is the cynical invocation of public interest by highly interested parties that made the making of the 1996 Act such a travesty of public policymaking.

(1.) See generally JOHN DEWEY, THE PUBLIC AND ITS PROBLEMS (1927).

(2.) See generally DAVID SHENK, DATA SMOG: SURVIVING THE INFORMATION GLUT (1st ed., Harper Edge 1997).

(3.) STEVEN KULL ET AL., THE PIPA KNOWLEDGE NETWORKS POLL, MISPERCEPTIONS, THE MEDIA AND THE IRAQ WAR (2003), available at http://65.109.167.118/pipa/pdf/oct03/ IraqMedia_Oct03_rpt.pdf.

(4.) See generally ITHIEL DE SOLA POOL, TECHNOLOGIES OF FREEDOM (1983).

(5.) See Victoria F. Phillips, On Media Consolidation, the Public Interest, and Angels Earning Wings, 53 AM. U. L. REV. 613-33 (2004).

(6.) See generally PHILIP M. NAPOLI, FOUNDATIONS OF COMMUNICATIONS POLICY:

Pat Aufderheide *

* Pat Aufderheide is a professor and the director of the Center for Social Media in the School of Communication at American University in Washington, D.C., and author of Communications Policy and the Public Interest: The Telecommunications Act of 1996 (Guilford Press).

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