Thursday, June 15, 2006

Taking the Constitutional Oath Seriously at the FCC

Like the President and members of Congress, when FCC commissioners are sworn into office, they pledge that they "will support and defend the Constitution of the United States." Indeed, this pledge is not, of course, a nice platitude. The Constitution itself provides in Article VI that all federal officers "shall be bound by Oath or Affirmation, to support this Constitution."

We'll have a chance to see how seriously the FCC commisoners take their constitutional oath to support and defend the Constitution next week. Because that's when the FCC is scheduled to consider--yet again!--whether cable operators should be required to carry not one, but multiple streams of local broadcast station programming. Simply put, such a requirement almost certainly would violate the First Amendment free speech rights and the Fifth Amendment property rights of the cable operators.

In 1994 in the Turner case, a sharply divided Supreme Court (5-4) barely upheld against a First Amendment challenge must-carry provisions that required cable operators to carry one signal of local broadcast stations. There is no evidence that, nor could there be in today's sunstantially changed communications environment, that the failure to carry multiple signals of local broadcasters will diminish the availability of local programming. And under Turner that is the test that must be met, with substantial and convincing evidence, to pass constitutional muster.

And a must-carry multiple signals mandate in today's competitive video environment doesn't pass muster under the Fifth Amendment either. Cable operators have a right under the Fifth Amendment not to have their property commandeered for the benefit of broadcasters. There is only so much capacity available, and, sure, if I had my druthers, I might like for the government to require the cable operators to commandeer two or three channels for The Free State Foundation to carry programming I want transmitted. I can understand the broadcasters wanting to "free ride" whenever they can. But that's why we have a Constitution that protects private property from commandeering absent the government making a very convincing showing it is necessary to seize the property for public use, and then being willing to pay just compensation for the seizure. Not the case here.

The "must carry" vote next week will be a real test in which we'll have an opportunity to see whether the FCC commisioners take their constitutional oaths seriously. Every government official should, whether running the Weather Service, the Export-Import Bank, or whatever. But with the immense power that FCC commissioners continue to exercise over the communications media, there aren't many public officials for whom the pledge to protect and defend the Constitution is more crucial to good job performance.

And, importantly, rejecting multicast must-carry not only protects the Constitution, but represents sound communications policy.