Public Interest Standard

The Center for Media Engagement at The University of Texas at Austin hosted a roundtable to discuss the current state of the public interest standard and what, if any, improvements need to be made. The virtual event took place on May 10, 2021 and was moderated by Marley Duchovnay, Caroline Murray, and Talia Stroud. Experts who participated drew from their experience in the professional fields of law, government, research, education, advocacy, and journalism. Experts in attendance included:

• Christopher Ali, Associate Professor in the Department of Media Studies at the University of Virginia;
• Yosef Getachew, Media and Democracy Program Director of Common Cause;
• Catherine Sandoval, Associate Professor of Law at Santa Clara University;
• Steven Waldman, President and Co-Founder of Report for America.

What is the public interest standard?

The roots of the public interest standard trace back to the 1920s when the government first set out to address problems with radio signal interference and sparse radio spectrum with the passage of the Radio Act of 1927. The Act established a relationship between government and radio stations where the government would assign frequencies and licenses to stations and, in return, stations were expected to serve “the public interest, convenience or necessity.”

Years later, to improve upon the Radio Act of 1926, Congress passed the Communications Act of 1934. This Act established the Federal Communications Commission (FCC), which still governs radio and broadcast television licenses today, and established criteria to guide the Commission’s licensing powers. The law again emphasized that license recipients should operate in “the public interest, convenience or necessity.”

How exactly did stations prove that they were serving the public interest? While requirements have changed over the standard’s lifetime, two key elements were that 10% of a station’s programming needed to be non-entertainment and that stations were required to determine the information needs of their local community by meeting with community members (a process called ascertainment). Today, all that remains of the public interest standard is the requirement that licensed stations must maintain an “issues/programs list” which notes examples of programming that serve in the public interest. The problem is that these lists aren’t filed with the FCC. In order for the public to access the lists, they need to visit the main office of the licensed station and request the list in person. Steven Waldman’s 2011 FCC report, “The Information Needs of Communities,” cites problematic examples of issues/programs lists that included advertisements for an America’s Next Top Model audition and a contest to win a Dairy Queen cake as programs that served the public interest.

This led us to ask: What are the primary issues with the public interest standard today? And what can be done to address them?

“I think the public interest standard is largely a sham at this point. And the sooner we kind of grasp that, the faster we’ll come up with some solutions … In the first 75 years of the FCC’s existence it granted over 100,000 license renewals. In only four cases was a renewal application denied because the licensee failed to meet its public interest programming obligations…” explains panelist Steven Waldman. Christopher Ali points out that there seems to be a shift from the belief that the public interest standard is about a broadcaster’s responsibility to the public. Previously implemented regulations that were beneficial to the public interest, such as ascertainment and the main studio rule, are no longer in effect.

Shedding light on the historical context, Catherine Sandoval explains, “It took [the FCC] between 1934 to 1949 to award even the first broadcast license to a minority, to a person of color. And they didn’t award the first television license until 1973.” Yosef Getachew furthers that the inequity affects more than just the public interest standard – it impacts communications ecosystems as a whole.

Yosef Getachew explains that one criteria examined during the merger process is whether the merger benefits the public interest, “not only does it not harm the public interest, but does it actually have an improvement?” Getachew found that merger filings don’t often have much information about how they will help the public interest. Christopher Ali highlights a recent FCC decision that states that any transfer of license from one company to another is by definition in the public interest.

What can we do to address these issues with the public interest standard? Although there are many possible improvements, we include here a subset of those addressed in the roundtable conversation:

• Reshape the conversation to prioritize quality local journalism
• Request more data on the demographics of license owners
• Hold companies accountable for the promises they make during the merger/acquisition process
• Reinstate regulations that prioritized the public interest (ascertainment & the main studio rule)