Freedom on the Freeway -- another and interesting opinion on S.2195

[David Farber <farber () central cis upenn edu>]

From: discover () halcyon com (Mike Perry)
Date: Thu, 30 Jun 1994 10:56:42 -0900
Organization: Discovery Institute, Seattle


Note: This was posted on another list but the discussion is also
appropriate her. Those interested in following the debate over
Senator Inouye's recent bill S.2195 can download a copy from ftp.eff.org or
get a printed version from their US Senator. At present the bill doesn't
seem to be going anywhere, but it could become attached to another bill,
perhaps, S.1822, in a Congressional fit of absentmindedness. Then it could
become a very, very critical topic of discussion.


To summarize the bill very briefly, it does two things. 1. Up to 20% of
existing cable and DBS systems (as well as any future video system like
interactive TV) must available for free public access. 2. Funds to develop
programming are taken from "telecommunications networks" in a variety of
ways. State, local and tribal government agencies then get to decide who
gets on the air and also set up committees to dole out the funding for
program development. None of the funding or channel set-aside is
voluntary.--Mike


To begin discussion, I quote James Love  of TAP, the Taxpayers Assets
Project (love () Essential ORG):


>   S. 2195 attempts to provide to mechanisms to promote non-commerical
> programming on the new broadband networks.  The first and most midely
> publicized feature is the 20 percent set-aside of bandwidth for
> non-commerical uses.  The second feature is a provision for a competitive
> neutral fee on carriers that would be used to finance non-commerical
> programming.  The house bill (hr 3636) provides for incremental cost
> pricing of services for some non-commerical entities on enhanced networks
> (but not video networks), and no funding mechanism for programming.  Both
> S. 2195 and HR 3636 are inartfully drafted, and need to be cleaned up.
> But the principle political issue is whether or not our society should
> provide support for non-commerical information services, as opposed to
> accepting market outcomes.  S. 2195 tries to strike a balance which
> conceeds quite a bit to the market, but will provide some mechanisms for
> non-commerical information services to survive and grow.


S.2195 certainly is "inartfully drafted." For instance, how can state and
local governments--thousands of them--determine the programming on a Direct
Broadcast Satellite that blankets all North America with 75 or so channels.
And how about giving the FCC the power to take money for the Infrastructure
Fund from "such other sources as the Commission may determine to be
sufficient and appropriate for such purposes." What if they decide that
taking all my assets, few as they are, is "appropriate?" This "inartfully"
worded bill allows just that.


But the problems with the bill goes far, far beyond the technicalities.
Until recently, free speech and press had never been interpreted as
allowing some to force others to bankroll the spread of their ideas. In
fact, the opposite has been true. Thomas Jefferson, a distant kin of mine,
noted how "abhorent" it was to force anyone to do such a thing. Certainly,
everyone should be free to speak and everyone should be free to give to
support the free speech of others of their choosing. But no one should be
forced to fund the free speech of another or, for that matter, some vague
free speaking collective. No amount of talk about the "value of diversity"
can obscure that fact. Real diversity bestows a right to say "No" and can't
be balanced by the fact that some funded ideas may even be those your agree
with. All the bills language about set-asides, fees on carriers etc. merely
conceals the fact that it would force tens of millions of Americans to
support causes in which they have no interest or against which they are
hostile. You can't sugar coat it, that idea is deeply and fundamentally
hostile to the basic values of any free, democratic society. You can't talk
diversity and practice coercion.


The second disturbing feature of the bill is who it sets up as a
gatekeeper, limiting access to the substantial 20% set-aside and
determining who gets production funds. All the vague standards set up by
the bill don't change the fact that it places the power of exercising them
in the hands of government from the federal level (the FCC and the IRS) to
local agencies. Personally, I find it amazing that anyone would consider
this a safe or a sensible thing to do. It implies a level of trust in
government that is mind-boggling. Do we give the government control over
who is allowed to publish newspapers or produce television news programs?
Do we let them decide which books or magazines are publihed. Yet this bill
does just that for fully 20% of the video portion of the information
superhighway. (The Internet is exempt.) In fact, the first group in the
list of qualifying groups for access are "governments and their agencies."
Personally, I'd rather get my information from a source that's a bit less
"official." And I worry about the impact so much coercively funded
government propaganda could have on the more naive.


Nor are my suspicions imagined. Aside from the "publics" (schools,
broadcasting and libraries) whose very existence depends on government
funding, the only other eligible entries are 501(c)(3) non-profits and
anyone familar with tax law knows that that particular kind of non-profit
is severely limited in its ability to deal with issues and political
candidates. Were this 1932 Germany, a Jewish 501(c)(3) group might, for
instance, inform us that Hitler was not well-disposed toward Jews (who
didn't know that?) but they couldn't tell us to vote against Hitler because
he was an evil candidate, something all too many Germans needed to be told
repeatedly.


No, S.2195 is not only not a good idea; it's a terribly bad and very
dangerous one. There's a world of difference between setting up free
mechanisms for what "our society should support" through voluntary giving
and legally mandating a scheme for government collection accompanied by
government control of the content providers.


--Mike Perry, Seattle


One final note. It would, of course, be legitimate to set up some kind of
checkoff system like that for Presidential elections. Consumers could
choose whether a certain portion of their bill goes to enhance the normal
fare and services (mostly commercial, though even A&E kinds of channels
require the cable operator to pay) or funds a "public-access" set-aside.
You might even allow people to designate the programs they support much as
United Way now does with charities. What you can't do and still claim to
believe in individual freedom is to force people to pay for the "free
speech" of others or--even worse--place the government in the role of
gatekeeper for such a large portion of our public discourse.


Nothing in what I have said applies to arguments that, as the number of
channels grows into the hundreds, the operator of a cable system becomes
less of a publisher (with some rights to determine what is carried) and
more like a common carrier who is required by law to carry all legal,
paying telecommunication "freight." And the bandwidth of fiber is so great
(25,000 GHz or millions of video channels) that when fiber is run into
every home, most people in the country could subscribe to any of thousands
of store-front "virtual" cable systems with the mix of programming (and
funding techniques) they prefer. That would also get around another social
problem, the "in your face" mentality of some who believe that their right
of free speech allows them to thrust their programming into the lives of
others, willing or not. This past Saturday afternoon, for instance, the
public access channel on Seattle's cable had four and a half hours of
programming that included "graphic" demonstrations (and not on bananas) on
how to use condoms. Hundreds of outraged parents have called TCI to task
about that.