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CONTACT: Amy Smorodin
March 4, 2010
(202) 289-8928
FCC should Re-evaluate Public Interest Mandates
Thierer Participates in FCC Workshop on Public Interest Regulation

WASHINGTON D.C. - The Federal Communications Commission should re-evaluate public interest regulation in light of changes and innovations in the media industry, stated PFF President Adam Thierer in written testimony presented today at a FCC workshop "Serving the Public Interest in the Digital Era." Expanding existing public interest regulations to other media platforms would raise constitutional concerns and be an insurmountable task considering the size and scope of media today.

In his testimony, Thierer addresses the ambiguity of public interest mandates. "Simply put, the public interest standard is not really a 'standard' at all since it has no fixed meaning; the definition of the phrase has shifted with the political winds to suit the whims of those in power at any given time." Moreover, the public has more media choices than every before, including educational and public affairs programming, on a variety of platforms. Thierer stated that the choice of what media to consume "must be respected by government officials." He continued, "Just because the American people sometimes make choices that policymakers find distasteful, it does not mean that citizens don't have good choices at their disposal."

Thierer also identified free speech concerns if public interest regulations were expanded to new media platforms. The scarcity rationale used as a reason for the imposition of public interest obligations on broadcast platforms can no longer be justified in an age of media abundance. Indeed, courts have recently struck down efforts by policymakers to expand broadcast-like regulations for new media platforms. Thierer advised that, "instead of first looking to expand regulation, we should use this as an opportunity to return to first principles—especially in light of the dubious constitutionality of the FCC's existing public interest regulatory regime.

Thierer also questioned the practicality of expanding public interest mandates beyond broadcast media. The sheer size of the media marketplace, where content is available across multiple platforms, would make this unattainable. Policymakers would also be forced to define what constitutes a media entity or journalist in today's media environment. "There may well be rational ways to make cuts along these lines, but they are all almost certainly unconstitutional," he stated. "Government preferences among speakers or classes of speakers are prior restraints, constitutional sins of the highest order."

Thierer also warned of imposing new public interest requirements on struggling traditional media operators as such regulation could further constrain their ability to compete in the media marketplace.

"In a world in which scarcity has been overthrown by abundance," Thierer concluded, "we should strike the balance in favor of greater media freedom and stronger First Amendment protections for all speech however it is delivered."

Thierer's complete written testimony is available on the PFF website.

Thierer is available for further comment. Please contact Amy Smorodin at

The Progress & Freedom Foundation is a market-oriented think tank that studies the digital revolution and its implications for public policy. It is a 501(c)(3) research & educational organization.



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