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Stuart Benjamin: FCC Isn't Forcing Broadcasters Off Spectrum

"We are not going to force any broadcasters off the
air," said Duke Law Professor Stuart Benjamin Thursday (Jan. 28).

Benjamin, the FCC's distinguished scholar in residence, was
being interviewed for C-SPAN's Communicators series, prefacing most of his
remarks with the disclaimer that they were his comments, not the FCC's. He
attributed the above to the FCC, which seconds assurancesprovided to B&C by the FCC's
top spectrum policy staffer

Benjamin's views have come under fire from broadcasters over
past writings, particularly "Roasting the Pig to Burn Down the
House," in which he suggested broadcast spectrum would be better off in
other hands, and that regulating them out of business might be one way to do

But while he says his job includes advising the chairman on
what proceedings to launch, a larger part of his job is to raise both sides of
issues and combat a kind of "groupthink" in Washington with the
"clash of ideas" he says FCC Chairman Julius Genachowski wanted when
he reached out to him.

Benjamin told C-SPAN his spectrum views are his own, and he
drew a distinction between them and the commission.

Benjamin said that what he "really meant" in his
article was that "we are best off moving toward spectrum flexibility so
that people can determine what services they want, and from the bottom up
rather than the top down."

In that world, he said, without spectrum dedicated to a
specific purpose, it might be that people would choose broadcasting or perhaps
something else. "We should let whatever it is people want arise. The point
of the article was that we are not there because we now have spectrum dedicated
to various services and I think that is a mistake." He says the FCC should
not be deciding, pointing to the last line of his article: "Spectrum
regulators unite, you have nothing to lose but your job," adding that the
article was partly tongue in cheek.

Benjamin distinguished that from what he says the
commission's view is, though he also said it was "not necessarily
discordant" his own.  "We need
to get to a position where we have lots of spectrum available for broadband as
well as the services we have come to expect and associate with things like
broadcasting," he said.  "And we are not
going to force any broadcasters off the air, it is going to be a voluntary
program...But there have got to be ways of making this a win-win for everybody.
He says everybody agrees that spectrum is the "oxygen" for broadband.

Benjamin said that he does not feel very strongly about how
spectrum is reclaimed, which could include allowing broadcasters to use it
flexibly or taking back. He said in the first case some would argue that would
be a windfall for existing licensees, and in the latter broadcasters might say
that wasn't fair for them. He said he guessed it would wind up being something
in between once the process had made its way through the commission and

But while Benjamin's spectrum theories have created ulcers
for broadcasters, he offers something of a tonic in his view of spectrum
scarcity and the Red Lion decision that upheld broadcast regulation based on
that rationale.

"I have never found Red Lion persuasive, which is to
say that I don't think spectrum is uniquely scarce in any way that printing
presses are not," he said. He added that he didn't believe in any
affirmative regulations on broadcasting based on that rationale "as
opposed to regulation of every other provider that they can't regulate under
the First Amendment."

While broadcasters have used arguments against spectrum
scarcity to fight FCC indecency regulations, Benjamin said he has never argued
that those regulations are unconstitutional.

He said that he thought there was more to the intrusiveness defense
for the regulations in the Pacifica 
than in the Red Lion scarcity justification, saying the two stood on different

He also seemed to share some media ownership ground with
broadcasters. He said he has not written about media ownership because it is a
data-driven answer and he does not have all the data. But he said that whatever
the answer was two or three years ago may not be the same one today.
"While you might have said three years ago, I will allow cross-ownership
in this context, maybe now it is in a different context just because of the way
the world has changed."

Benjamin said he had no answers about the future of the
media--the FCC has launched an initiative looking into it. But he said he
thought the FCC was asking the right questions, because the media business was
changing and the commission needed to think about how local news people have
come to rely on will be delivered in that future when the economics of traditional
delivery are in question. "In 10 years we are going to be in a different
place. I don't know what that place is, nobody knows. But I guarantee you they
are going to want the kind of services they associate with local broadcasters
and newspapers. So, the question is how should that look and what, if anything,
should the FCC do about it?"