Joho the Blog
An Entry from the Archives

Bob Frankston has a new essay that makes the case that the current spectrum management system unduly restrains free speech. He writes:

It's as if we were having a party and someone came into the room and told everyone to be quiet and gave out pieces of paper with a time and a place telling each person when and where they could talk. If there were a possibility young people would overhear you couldn't use certain words even if there were no other venues and even if you felt the language was appropriate for them.

Put that way it seems outrageous. Yet if we communicate using radio waves instead of sound waves that is precisely what the FCC is doing.

The FCC was in 1934 created to deal with a technological limitation of radios of their day. Frequencies had to be assigned exclusively to broadcasters to optimize reception. That meant that access to the "public airwaves" was gated by corporations with enough capital to build expensive transmission systems. The government over the years has recognized that this is a problem, legislating ameliorating solutions. But modern technology means that we don't need the broadcast chokepoints. All that's keeping the public from using the public airwaves are regulations based on outmoded assumptions about technology. Our free speech is being restrained.

Bob also points to an essay by Yochai Benkler and Larry Lessig posted by the New Republic: Will technology make CBS unconstitutional? A snippet:

Our argument is straightforward: The FCC regulates speech. It says that, if you want to speak on 98.6 FM in Boston, you must get a license (or, now, buy one). If you speak on 98.6 without a license, you will have committed a crime. The FCC will prosecute you and seize your transmitter. All this despite the fact that the First Amendment to the Constitution says, "Congress shall make no law ... abridging the freedom of speech." What gives?

Both of these articles are must-reading. This issue is really beginning to boil...