The day after the Supreme Court issued its decision in Aereo, the justices are weighing whether to take another case that could have a significant impact on broadcasting.
Minority Television Project, the license holder for public television station KMTP-TV in San Francisco, was fined by the FCC in 2002 for running what the agency said were ads for for-profit underwriters, including State Farm, Chevy Impala, Ford Explorer and Korean Airlines.
The station challenged the penalty, but also sought to invalidate the 1981 law that restricts public stations from airing ads for commercial products or political candidates, and even challenged the FCC on First Amendment grounds. While some underwriting announcements come awful close to resembling the commercial networks’ ubiquitous 30-second spots, the FCC does draw the line when it comes to public TV’s flagrant promotion of for-profit products and services, like the sale of insurance, cars and airline tickets, as well as running spots for political campaigns or certain issues.
Late last year, an en banc panel of the 9th Circuit agreed that the government was on solid legal ground and that it had a vested interest in ensuring that public TV retained its non-commercial nature.
So KMTP-TV, which is independent and not affiliated with PBS, is now asking the Supreme Court to take the case. It was among those the justices were weighing on Thursday, although they have not announced which ones they are taking and which ones are being denied review.
Minority Television says that at the very least, the high court should consider whether the ban on public TV airing paid political messages survives First Amendment scrutiny given the court’s Citizens United decision, which took a dim view of government restrictions on political speech.
But the station also is challenging 45-year precedent that has allowed the government to restrict broadcast content. The court’s 1969 ruling in Red Lion Broadcasting vs. FCC “permits the government to restrict the speech of broadcasters in ways this court would never tolerate in other media,” the station said in its petition to the court. It argues that the court’s rationale for doing do back then — that the airwaves were scarce — no longer makes sense when there are now so many other ways to reach TV viewers.
Among those urging the Supreme Court to take the case are the Cato Institute, which says, “it’s time to give broadcast TV First Amendment protection.” “The FCC can still license broadcasters — that system isn’t going away anytime soon regardless of the next mind-boggling innovation — but the conditions it places on those licenses have to satisfy strict First Amendment scrutiny, especially when they pertain to political speech,” the organization says.
The government, however, argues that so long as it is allocating limited spectrum, and that broadcasters are benefiting from the use of public’s airwaves, content restrictions, even those not imposed on other media, are the price they pay for getting the spectrum.
In the brief on behalf of the FCC, the U.S. solicitor general writes, “the question is whether the government may permissibly set aside a small number of channels for licensees that commit to exclusively broadcast educational and other non-commercial programming … and then hold those licensees to the terms of that bargain.”
The government’s argument is that selling ad spots would change the nature of public TV. An executive from another public TV station, WGBH-TV in Boston, testified that were they allowed to start selling ad time like commercial stations do, funding from federal and state government sources, as well as foundations and not profits, would be “jeopardized.”
The group that represents stations in Washington also is not thrilled with the prospect of the the issue coming before the court. The Assn. of Public Television Stations “did not file in opposition to the petition for certiorari, but we are monitoring it closely, and we are hopeful that the court will not grant cert,” said Lonna Thompson, the organization’s chief operating officer and general counsel.
Nevertheless, Minority Television argues that what’s at stake is the viability of small public broadcasters, particularly those that do not receive federal funds. It notes that public TV airwaves already are heavy in sponsor messaging. The government does allow paid goods-and-services message from nonprofits, and underwriting announcements that include logos, slogans and descriptions of products. And “public stations can essentially air infomercials under the guise of pledge drives,” promoting books, CDs and DVDs of performances.
The Supreme Court faced the question of whether content restrictions make sense in the digital age when it reviewed the FCC’s indecency policies in 2012, but it pretty much avoided the question and issued a narrow ruling. This time around, perhaps the justices, having taken cases that withered down campaign finance laws, will be enticed to take the Minority Television case, and its question of whether the government can restrict where political messages can be shown.