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Date: May 3, 2011

Radio-Info, May 3,2011.

Time to bury “paternalism” and “nannyism” in regulating broadcasters, says attorney Erwin Krasnow.
In a major policy piece published by The Media Institute and the Thomas Jefferson Center, Krasnow says they all amount to “Big Brother” and keep radio and TV in a “second-class status under the First Amendment." Krasnow’s the former General Counsel of the NAB and respected partner at Garvey Schubert Barer, and he’s looking ultimately at the public interest obligations of broadcasters. He gets there by trying to up-end two things he calls fallacies. #1, the idea that the public owns the airwaves. He calls it a “mischievous notion that has been mis-used as a rationalization for government regulation.” But isn’t it the truth? Krasnow says to the contrary, the co-author of the original 1927 Radio Act said “The government does not own the frequencies or the use of the frequencies. It only possesses the right to regulate the apparatus.” That was Senator Dill. His colleague Senator Watson of the Interstate Commerce Committee said “we do not own the railroads but we regulate them. We do not own the ether, but we control the right to the use of the ether. That is all we seek to control.” The Congressional Research Service can’t find any case that holds that the government owns the airwaves. The second part of Krasnow’s legal argument is about scarcity of spectrum. He says “there is no blinking from the fact that technological developments have advanced so far that the time has come for both Congress and the FCC to revisit and renounce the notion of scarcity in today’s digital world.” To Krasnow, it's high time for a "market-based" approach to public interest obligations.

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