Transcripts For CSPAN2 The Communicators 20100201 : vimarsan

booktv. join us again next weekend for 48 hours of programs about nonfiction books all weekend, every weekend. beginning saturday morning at 8 eastern here on c-span2. this week on the communicators, a philosophical discussion about telecommunications policy with stuart benjamin, the distinguished scholar in residence at the federal communications commission. host: stuart benjamin, what is your job at the fcc? guest: so i am the inaugural distinguished scholar in residence which means i provide some legal advice. obviously, as a law professor, i m working in particular with legal issues that the agency is dealing with, first amendment issues, and then more broadly, just to make sure we re thinking about all the arguments and counterarguments for any given proceeding. there s not group think that s going on. we re considering all the various options before something gets out the door. i think the idea from the chairman s perspective is that the more divergent views we can have inside the commission e the better the process will be so that the commissioners can make the most informed decision. host: a one-man think tank? guest: not a one-man think tank, there s also a chief economist who plays a similar role. and, in fact, i work within the office of special plans and policy whose role is also to try to provide the best kind of background and input that it can. but my role in particular is, hey, take a look at this. are there things we haven t thought about that we should be thinking about? are there arguments that need to be aired that haven t been discussed fully? as i say, there s some specific legal things i work on because of my background teaching telecommunications law, first amendment law and administrative law, and also the breadth of my background in telecommunications, i think the idea is i might just be able to bring to bear some arguments that might not have gotten fully aired that are worth it. host: and what is some of your background in telecommunications? guest: so i, my teaching areas are telecommunications law, first amendment and administrative law, and i will tell you that the leading case book is benjamin on telecommunications law. so i ve been thinking about these issues since i started as an academic a dozen years ago. i also worked on telecom issues before i was an academic. i made the conscious decision that i would not have any clients, so i ve done no consulting whatsoever since i started as an academic now 13 years ago. host: and did the new fcc chairman approach you, and what s your connection to him? guest: so i ve known the chairman for a number of years, maybe 15 years now, and after the election, after he was announced as the chair designate, i guess it was, he contacted me and said, gee, it would be great if we could find a way to bring you in so that we can have this other perspective and have, you know, an airing of different ideas. and as these things go, it took a while, but it actually worked out fairly easily. i knew, i knew him, and i knew chairman mcdowell beforehand. i didn t know any of the other commissioners beforehand. i m sorry, commissioner mcdowell. i shouldn t promote him right here on this program. commissioner mcdowell, as you may know, i ve seen him at duke as well. so it was actually a fairly easy process to set up. host: and so who do you report to, if anyone? guest: so for different projects. for some projects i report to the general counsel, for some projects i report to the specific person who s in charge of the project, the head of the wireless bureau or the head of osp where i m housed. for some projects i report to the chair or the chair s chief of staff. for some projects i actually will talk to all the commissioners. just it depends on as things come up. host: well, joining us also on the communicators is lynn stand on the who is the managing editor of telecommunications reports. host: i just got a promotion, too, it s the senior editor. host: okay. host: you were speaking about when you came on board, part of the job was described as long-term strategy. did that include giving advice to the chairman as to what kinds of proceedings he should launch? guest: yes, although even at sort of a higher level than that in some ways. it s not so much here s a particular notice of proposed rulemaking you should issue. here are things on the horizon that we might want to be thinking about, and what are the different ways we can approach them? i mean, you know, the chair, i think, is really committed to having the fcc as much as possible be a data-driven, long-range-focused agency. there s really big issues out there, and let s make sure we re thinking about all the important issues that are going to be confronting us not only in the next six months, but in the next six years and, you know, the next 15 years. so, yeah, part of my job is, honestly, trying to think about are there things on the agenda that shouldn t be on the agenda? one of the dangers, as i know you both know, in d.c. is it s really easy to have sort of a group think that emerges, and everybody starts thinking in the same patterns. part of my job is to disrupt that, right? to make sure we don t all get so focused on one narrow issue that we lose sight of a lot of other important considerations of ideas. host: have you talked about how long term a job this is? coming from the act dame ya positions in washington, d.c., it tends to be a year maybe and pack out to the university. guest: right. there s no specific time horizon on this. host: and, well, stuart benjamin, let s get into some of the issues you may be discussing. in may 2009 you presented a paper called roasting the pig to the burn down the house, and i just want to read a bit from that and get you to expand on it. this is about the spectrum. and you write, if one opposes a certain policy that will sound attractive to voters and/or legislators and would be popular in small doses but disastrous in large doses, one may decide to support the large dose in the hope that people will soon realize their mistake, or one may regard a set of proposed regulations as foolish and likely to hobble the industry regulated, but perhaps desirable if one believes that we would be better off without that industry. i can this question, you write, with with respect to spectrum p. what does that mean? guest: well and as you it s part of a larger article, so here s what it really means. i want to be clear, this is my view. this is my view, not the commission s view. my view is that we re, we are best off moving towards spectrum flexibility, toward having flexible used of the uses of the spectrum so that people can determine what are going to be, what services they want. bottom up rather than top down. so in a world of truly flexible uses where you can use your spectrum for anything, and if you want to create the britney spears texting network, you can or whatever else it might be, more power to you. if people want to subscribe to that, they will. if not, then it will flounder. in that world without being dedicated to one purpose or another, it may very well be that people would choose broadcasting, it may be that they would choose something else. my own view is that should happen, and we should let whatever people want arise. so the point of the article was, we aren t there because we now have spectrum dedicated to specific purples purposes, and i think that s a mistake. instead, have it come from the ground up. so the last lines of the article, you may have noticed, were spectrum regulators of the world unite. you have nothing to lose but your jobs. again, like the whole article a little bit tongue in cheek, but the idea was why should we be making the decisions? so but i want to be clear, that s my view. i think the commission s view is not necessarily discordant with that, but i think the long-range view there is, look, we need to get to a position where we have lots of spectrum available for broadband as well as the services that we ve come to expect and associate with things like broadcasting, and we re not going to force any broadcasters off the air. it s going to be a voluntary program, the chair has said that. but there have got to be ways of making this a win/win for everybody so that we can have more spectrum available for broadband, etc., because as the chair has noted and i think everybody agrees, spectrum is the oxygen for broadband. it s the oxygen for mobile, and there s just been an explosion in mobile communications. so that s, i m sorry, a long answer to your question. host: you mentioned last week gordon smith was on, and he talked about spectrum and the broadcasters. here s a little bit. if they take broadcast spectrum and some of the trial balloon proposals are to stack tv stations in a way that will ultimately destroy the high-definition broadcast signal, it would take away the multichannel availability, it would eliminate the future of mobile tv. we just think that in the digital the tv shouldn t be sacrificed on the altar of the digital divide. host: what s your response, stuart benjamin? guest: i mean, i don t have any specific response. that s a level of detail in the broadband plan that s beyond me. but, you know, my own view is if it turns out that that s what that what viewers and consumers want is any particular use of the spectrum, i think we should have it. again, my own view. and i don t see why it s totally fine with me if it turns out that people want to have hundreds of megahertz for any particular service. as a private citizen, that s my decision, but i would rather the fcc not be in the business of making that decision. again, speaking for myself here. host: so on a practical level, if it s not too much in the weed, how would you get from where we are to this flex bilityd use of spectrum? do you say, okay, broadcasters can do whatever they want with it, or do you take it back, start from scratch and allocate it? guest: that s a great question. again, just to be clear, that s a decision that s being discussed, or i should say that s being discussed, i think, in the context of probably the broadband plan, probably things on the hill right now, it s probably being discussed in, you know, half of the telecommunications law firm thes in this city right now. my own personal be view, again, just speaking for me personally is, i don t feel that strongly about how it happens. i mean, i say this in the article too. it can happen by giving the existing licensees the ability to use things flexibly. some people would say, oh, you shouldn t do that, that s a windfall for them. it could happen by taking that spectrum back, and they ll say that s not fair to us. my guess is it ll be something in between. my guess is the way to try to move toward a win/win is there will be some attempt at having some sharing of proceeds so that everybody feels they ve gotten something out of this. but that s, i mean, that s a guess based on no inside information particularly, that s just a guess of how i think this is going to shake out after it goes not just through the commission, but more importantly, the legislative process. host: moving on to another subject about spectrum. you ve also written about the idea that it would be more effective to leave spectrum in private hands as private property. but wi-fi, as i understand it, is basically an unlicensed technology which seems at least to me [inaudible] maybe i m misunderstanding the term. wi-fi seems to have been incredibly successful in filling the niche need for getting on the internet without having to pay for a second way to access it. guest: right. so, again, i want to be clear speaking just for myself, i ve had no dealings with this in the commission. i think it can. what i was really responding to in the article was a proposal that hundreds and hundreds of megahertz, below three gigahertz, be devoted to wireless commons, and the article is there are some problems with doing that. and if we think it s such a great idea, then why wouldn t a private entity buy up those megahertz and devote them to this commons if it really is as valuable as some of the proponents have suggested? look, there s been enormous benefits. you may know some of these early open bands were called junk bands back when there was no obvious use for them. and then we started getting garage door openers, and the earlieriest cordless phones, they ve all migrated up the spectrum because there s been more and more uses of those shared areas and clearly sharing is going to be a big part of it. again, my own view just to be clear is actually very confident with the fcc s spectrum policy task force report in 2002 or 2003 in which the report said, look, in some situations the transaction costs of negotiating are very high, and in those situations you actually want to have a common so you don t have to have separate negotiations with 47 different people. and in others the transaction costs aren t that high, and what we ordinarily would expect is we can license it to somebody, auction it and license it, and if that licensee then wants to provide some broader use, they can. it s just a different form of payment that they would be getting. you might have your payment fee in the form of device you buy rather than a monthly, a monthly fee. but, again, that would be my own view that would be a bomb-up abefore bomb-up approach. host: is there a legal definition of commons? guest: there isn t. i mean, there are legal definitions in the fcc of what are the bands that are open to a variety of uses, but some of the commons advocates don t like the way those are defined. in fact, part of the point of my article was there would be furious lobbying even in spectrum that would be defined as a commons, there would be furious lobbying on the hill about exactly how are we going to define what was permissible, what was impermissible in that commons? probably have to be power limits. okay, exactly where is the power limits set, that might rule some devices in and some out, and on and on. just to be clear, a, that it s my own views not the commission s, but, b, i was more responding that huge swaths of spectrum should be devoted for this purpose. my real concern was let s say the fcc devotes 400 megahertz to wireless commons, and they build it, and nobody comes? now there s been a top-down decision made by the fcc, and we the people haven t really responded, and there s been a wasting of this really valuable resource. i mean, what it really what motivates me is spectrum is so enormously valuable, and i just hate to see it ever wasted when we could be getting all sorts of services that we would really, really like and benefit from if it were used in a way that, you know, people actually were excited about. host: so is it still considered junk spectrum? guest: oh, no, no, no. to be clear, that was my point. once upon a time it was called that. now it s become enormously valuable. that s my point, is that this has actually worked out very well. that it s really great that if you want to make a cordless phone, you don t have to go out and buy spectrum in order to have your cordless phone work. you know, okay, here s a couple of bands i can use. or for your home wi-fi network or anything else, you know here s some, here s some frequencies that i can use, and i don t have to go through any fancy approval process. i think that s been great. host: just to push back a little bit, it almost seems like you re in the middle of the 19th century worrying that we re going to throw up for settlement, and nobody s going to come and build a homestead. if we worry about this, we wouldn t have garage door openers or wi-fi, would we? guest: it s a fair point. but to be clear, my view was never we should have zero spectrum devoted to this. maybe here s if i can use your analogy, maybe it would be more that we decide, okay, there s been homesteading in some of the west, so let s reserve all of wyoming and the dakotas, whatever, and a whole bunch of contiguous states for, you know, for cattle grazing and it turns out that cattle just don t, they die off there, it s too cold. i hate for somebody in washington to make that decision and then all it can be used for is cattle phrasing, grazing, and it turns out that s not a particular use when all is said and done. host: chairman genachowski recently launched a proceeding to look into the future of media, how the internet is affecting journalism, cuttings of newspaper staffs and what the fcc, perhaps, should do with respect to broadcasters or cable companies or any of the various companies that they have some kind of regulatory effect on. does this seem like even a wise policy, you know, barring the fact that a court might say, you know, you can t impose a public interest obligation on a cable company or google or whoever they might want to impose on to provide local news? guest: so, i think this is a fascinating question. and, of course, the industry that is probably most concern canned about this is one the fcc has no jurisdiction over, which is newspapers. i think it s a great question. our media landscape as we know is changing before our eyes every day, and i think this is exactly the kind of thing the fcc should be talking about. what they should do about it, i don t know. i ll read the report with as much interest as you will. i don t know that there s any good answers here, and it may very well be when all is said and done, there s only a limited role for the fcc to play or no rule. who knows? but it seems to me it s the right question to ask because our media landscape really is changing, and in particular the local news that we ve all come to rely on is becoming harder and harder to, to be successful just as an economic matter. and, you know, one of the things about, about news is it s a good that s hard to charge people for. once i tell you a bit of news, you can pass it on to anybody else, and i don t get to monetize that. we might expect there would be less news provided than demand for it. so there s an interesting question of what s the best way to approach that? i have no idea, to be honest, i have no idea what the right answer is, but it s a kind of thing that seems to me makes a lot of sense to think about because be h ten years we re going to be in a different place in terms of [inaudible] i don t know what that place is, nobody knows what that place is. i guarantee you, though, that in ten years people are going to want the kind of services that they now associate with local broadcasters, local newspapers, etc. and so the question is, well, so what how should that look in ten years, and what should the fcc, what, if anything, should the fcc do about it? host: this is c-span s communicators program. our guest this week is the fcc s first distinguished scholar in residence, stuart benjamin. professor of law at duke university, and lynn stanton is our guest reporter. but, mr. benjamin, you have written about media ownership. guest: right. host: what, if any, should be, in your view, should be thresholds on media ownership? guest: what do you mean by thresholds? host: should there be limits on media ownership? should there be cross-ownership when it comes to a television station owning a newspaper and vice versa? guest: you know, that s actually something i haven t written about with any specificity, and i ll tell you honestly why, and this really is the commission s approach, that is such a fact-driven answer, it s such a data-driven answer. let me just give one obvious point here. i think whatever your answer was as recently as two or three years ago, it could be different today because even two or three years ago i think that the economic health of local newspapers looked different than it does today. i m not when i say i don t mean necessarily your bottom line outcome you go from yes to no, what i mean is if you might have said three years ago i will allow cross-ownership in this context, maybe now and say a different context just because of the way the world has changed. my own personal view is i don t want to get on a soap box here, but my own view is that too many aspects of policy, media and otherwise, have in washington, d.c. historically have been driven by ideology first, and then i ll find the facts to suit me. and i really do believe that this is one of those well, in every area, but this is one where it s particularly true, you ve got to start with the facts, you ve got to start with the data which is part of the reason in particular what i like about chairman genachowski s approach. one of the first things he said to me about bringing me in was, look, i want to bring you in because i want a clash of ideas, i want different ideas, and we re going to be a data-driven agency where we start first with what are the facts out there and then build on that. and that strikes me as that s got to be the right approach. let s actually look at these markets and figure out in the context of these markets what really makes sense, what is actually necessary for the health of those markets? i have no idea what those answers are, and i would never want to prejudge them because it really has to come from what the facts on the ground show. host: and the facts on the ground could change in two, three years? guest: absolutely. one of my very first articles was, in fact, about the difficulty of changing facts for legal regimes, you know? congress passes a law, and then the facts change, and all of a sudden the law seems a little out of date or even more to the point of my article, court issues a ruling saying the internet is x. and then the internet changes. one of the statements that was made in reno v. aclu involving the communications decency act was i m going to get this wrong, but this is close. users rarely come upon unwanted content by accident on the internet. that was probably true in 1997. i would love to know what percentage of internet users have not come upon unwanted content by accident in the year 2010. so, yeah, things are changing all the time, and so there s a constant recalibration. and, again, we should want our regulators, our members of congress to do that. we should want them to be constantly taking into account how things have changed. well, we thought things were going to work out one way, it turns out they re not, we need to reconsider our policies. host: you mentioned that court case, the parents television council has been critical of you and your writing when it comes to first amendment and decency in broadcast. how would you address their concerns? guest: you know, i saw that. i m actually quite befuddled by it. i ve never said broadcasting indecency regulations have been unconstitutional. they said i have been quoted somewhere as saying that, so i googled myself. i didn t find any place i suppose somebody could make up a quote. to my knowledge i ve never said that s unconstitutional. i have talked about broadcast regulation, and i ve, in fact, suggested that lots of regulations of broadcasters might be unconstitutional under a case called red lion which, i think, is my own personal view again, just my view i think stands on weak footing. but it s still there, and in any event, it has nothing to do with indecency. so i have talked about that side of broadcast regulation, but unless i m having a deeply senior moment, i don t remember ever saying anything about the unconstitutionality of indecency regulation in broadcast. host: lynn stanton. host: just to follow up on that, what do you think is the appropriate basis for the constitutionality? is it the spectrum scarcity, or is it the idea that people are having television foisted upon them because people are secretly bringing television sets into their home and turning them on when they re not looking? guest: and that was cattily the die exactly the dichotomy that i was referring to. speaking for myself, i ve never found red lion persuasive. so, again, just speaking for myself, the commission knew this before they brought me in, i don t see any particular justification for a set of affirmative regulations of broadcasters as opposed to regulation of, you know, every other provider that they can t regulate in this way under the first amendment. pacific, as you note, relied on a different argument. not scarcity, but that this indecency comes in unbidden and that it s the, so that there s a pervasiveness to it and there s an intrusiveness to it, and that you can t run away once you ve heard words, you can t unhear them. and it seems to me that those arguments, there s more to those arguments, it seems to me, than there is to the spectrum scarcity argument. you all can read tea leaves as well as i can. i m not sure the supreme court i don t know what it would do with either of those cases. that s up to them, not up to me. but my own writing i focus more on what i think as the weakness of the red lion argument or pacific just stands on different grounds. host: i wanted to ask you a question on administrative law since you do that as well. the fcc has been experimenting with getting input from the public through blogs, people commenting on blogs, and last fall when the commission wuss initiating was initiating its open internet proceeding, there was a complaint that the commission waived its sunshine agenda requirements which prohibit third party-initiated ex parte communications during this last week i know you know this, but for the audience the last week before they actually vote on something so that, does that seem like a reasonable argument to you? their argument was that people who don t can have internet are being disenfranchised even more by this, this attempt to reach out to more people who probably are the same people who were already accessing it through other means? guest: so the short answer is, i really this is something before the commission, so i can t talk about it in detail the. let me answer in a high level of generality which is my view is any way that the american people can get their views to the commission i think is great as long as it, it s one that really is truly open. what i think is, has been unfortunate for every agency which i m aware and i teach administrative law so i ve thought about a lot of agencies is that so often in the past it s been those who had inside knowledge who were getting access. we ve thrown something up to all the american people, and i personally have, just me as a citizen, i feel better about it. you know, the real problem in the past has been the only way