Commentary By Steve Effros The Cost of Diversity There’s an interesting new "take" going on at the FCC regarding multichannel must carry, and I do mean "take." It goes like this: diversity is important, and access by new groups and owners to mass media outlets is a good thing, so let’s encourage it. The only problem with that laudatory objective is that the folks proposing it, particularly Chairman Kevin Martin and now Commissioner Deborah Taylor Tate, propose using someone else’s assets to accomplish their goal. Guess whose? Here’s the general scenario: allow the broadcasters to lease some of their digital spectrum to the new, approved "diverse" groups. It’s not clear whether these groups would have to get a "stamp of approval" by the government before they could partake of this little scheme. But if that were the case, the First Amendment hurdle would probably be too high to clear. So let’s assume the favored groups would be very generic, like "minorities" or "women." I still suspect the First Amendment problems would be huge, but let’s ignore that for now. OK, so we now have these special folks to whom the broadcasters can lease spectrum. They don’t have to, mind you… after all, it’s just public spectrum broadcasters are using for free… wouldn’t want to put them under too much of a public interest obligation! But if they lease these "multichannels"—this extra spectrum that they are clearly not using to transmit their "primary" offering to the public—then, bingo! Cable MUST carry whatever it is the favored groups want to put on the channel! Neat, huh? The broadcaster gets to charge for the use of "the public’s" free spectrum. The government, by law, gets a percentage of the lease fee. And then the government requires the one group in all this that actually paid to build its own infrastructure to give it away for free, and to favor one programmer over another. As I said, we won’t get into the First Amendment issues, but that’s only because I’d like to remind everyone that there are Fifth Amendment issues related to "must carry" as well! We argued them all the way back in the first cases on "must carry." They never got decided by the Supreme Court, however, because cable won the lower court rulings on a First Amendment argument. So the other arguments got shelved and have yet to be fully tested. I am pretty sure this "new" FCC idea would clearly fail just about any Fifth Amendment test. The government simply cannot "take" private property… even for a "good" purpose… without paying for it! How can they possibly be forgetting that very clear "eminent domain" rule that the Supreme Court has reinforced just recently? Would this be a "taking?" Of course. It would be a required, exclusive use of our property for a government-ordered purpose. It would not be the carriage of the "primary" programming of the broadcaster. The broadcaster and the government would both have a financial interest and make money on the use. How could it not be a "taking?" I’m just amazed that this talk is going on without even a mention (well, until now…) of this issue. If some members of the Commission didn’t think they had jurisdiction to require multichannel must carry before, wait ’till they start seriously looking at the legal implications of this idea! There already is a law on the books saying the FCC cannot incur new costs for the U.S. Treasury without specific authorization from Congress. None exists here. The cost of diversity cannot simply be assigned to the cable industry.