Originally contained in United States public utility law, the "public interest, convenience and necessity" provision was incorporated into the Radio Act of 1927 to become the operational standard for broadcast licensees. This Act contained a regulatory framework which ensured broadcasters operated within their assigned frequencies, and at the appropriate time periods. It not only specified technical, but programming and licensing requirements as well. The Communications Act of 1934 expanded upon the Radio Act of 1927 to include the telephone and telegraph industries, and has been amended to accommodate subsequent telecommunications technologies, such as television and cable.

The obligation to serve the public interest is integral to the "trusteeship" model of broadcasting--the philosophical foundation upon which broadcasters are expected to operate. The trusteeship paradigm is used to justify government regulation of broadcasting. It maintains that the electromagnetic spectrum is a limited resource belonging to the public, and only those most capable of serving the public interest are entrusted with a broadcast license. The Federal Communications Commission (FCC) is the government body responsible for determining whether or not applicants for broadcast license meet the requirements to obtain them and for further regulation of those to whom licenses have been granted.

Interpretation of the "public interest, convenience and necessity" clause has been a continuing source of controversy. Initially, the Federal Radio Commission implemented a set of tests, criteria which would loosely define whether or not the broadcasting entity was fulfilling its obligation to the listening public. Secifications included program diversity, quality reception, and "character" evaluation of licensees. These initial demands set a precedent for future explications of the public interest.

The pre-television "Blue Book", as it was popularly known, was developed by the FCC in 1946 to evaluate the discrepancy between the programming "promise" and "performance" of radio broadcasters. Since license renewal was dependent upon serving the public interest, program content became a significant consideration in this procedure. The "Blue Book" required licensees to promote the discussion of public issues, serve minority interests and eliminate superfluous advertising. Unpopular with commercial broadcasters, the "Blue Book" was rendered obsolete after five years because of the economic threat it posed.

In it's "1960 Program Policy Statement", the FCC echoed similar sentiments pertaining to television broadcasters. In response to assorted broadcasting scandals, the FCC issued this statement in order to "remind" broadcasters of how to serve the public interest. Although previous tenets of the "Blue Book" were rejected, this revised policy included the "license ascertainment" stipulation, requiring broadcasters to determine local programming needs through distribution and analysis of surveys. However, adherence to such programming policies has never been strictly enforced.

The deregulatory fervor of the 1980s seriously challenged the trusteeship model of broadcasting. Obviously, this same move toward deregulation subsequently challenged the means by which satisfaction of the "public interest, convenience and necessity" should be determined. The rise of cable television undermined the "scarcity of the spectrum" argument because of the newer system's potential for unlimited channel capacity. The trusteeship model was replaced with the "marketplace" model (which had always undergirded commercial broadcasting in America). It was now argued that the contemporary, commercially supported telecommunications environment could provide a multiplicity of voices, eradicating the previous justification for government regulation. Under this model the public interest would be defined by "market forces." A broadcaster's commercial success would be indicative of the public's satisfaction with it.

Advocates of the marketplace argument reject the trusteeship model of broadcasting. It is no surprise that the Cable Act does not contain a "public interest, convenience and necessity" stipulation. However, because cable also falls under the regulatory scrutiny of the FCC, serving the public interest is encouraged through the PEG (public, educational and government) access requirement related to the granting of cable franchises.

Among the deregulatory policies implemented during the 1980s were the relaxation of ownership and licensing rules, eradication of assorted public service requirements and the elimination of regulated amounts of commercial advertising in children's programming. Perhaps most detrimental to the legal justification for the trusteeship model of broadcasting, however, was the abolition of the Fairness Doctrine. This action altered future interpretations of the "public interest, convenience and necessity."

In 1949, the FCC established the Fairness Doctrine as a policy which guaranteed (among other things) the presentation of both sides of a controversial issue. This concept is rooted in the early broadcast regulation of the Federal Radio Commission (FRC). Congress declared it part of the Communications Act in 1959 to safeguard the public interest and First Amendment freedoms. The Supreme Court upheld the constitutionality of the Fairness Doctrine in the case of Red Lion Broadcasting Co. v. FCC (1969). Although the Fairness Doctrine was enacted to promote pluralism, eventually it produced an opposite effect. Concerned that advertising time would be squandered by those who invoked the Fairness Doctrine, broadcasters challenged its constitutionality claiming that it promoted censorship instead of diversity. Declared in violation of the First Amendment, the Fairness Doctrine was repealed, and attempts to provide constitutional protection for the doctrine were vetoed by President Reagan in 1987.

The obligation to serve the "public interest, convenience and necessity" is demonstrated through myriad broadcast policies. Licensing requirements, the equal-time and candidate access rules, the Fairness Doctrine and the Public Broadcasting and Cable Acts are just some examples of regulations which were implemented to safeguard the public from the possible selfish motives of broadcasters.

History has proven that interpretation of the "public interest, convenience and necessity" is subject to prevailing political forces. The development of new technologies continues to test the trusteeship model of broadcasting and what the public interest epitomizes. Despite it's ambiguity, this phrase remains the regulatory cornerstone of telecommunications policy in the United States.

-Sharon Zechowski