The Public Interest Standard: Outdated Mandate or Democratic Safeguard with Harold Feld and Tom Hazlett

Tom Lenard: Hello, and welcome back to the Technology Policy Institute’s podcast, Two Think Minimum. It’s Thursday, October 23rd, 2025. I’m Tom Lenard, President Emeritus and Senior Fellow at TPI, and I’m joined by my colleague Scott Wallsten, TPI’s President and Senior Fellow.

Today, we’re delighted to have as our guests Harold Feld and Tom Hazlett to talk about the Federal Communications Commission’s public interest standard. The public interest standard is a requirement under the Communications Act that broadcast licensees operate in the public interest, convenience, and necessity. It is the basis on which government officials, most recently FCC Chair Brendan Carr, attempt to influence broadcasters’ behavior.

We have two exceptionally well-qualified people to talk about this issue. Harold is Senior Vice President of Public Knowledge and has been writing about spectrum and other communications policy issues for many years. Tom is a professor of economics at Clemson University and the author of, among other things, The Political Spectrum: The Tumultuous Liberation of Wireless Technology from Herbert Hoover to the Smartphone.

Welcome, Harold and Tom.

Harold Feld: Thank you for having us.

Thomas Hazlett: Yeah, thank you.

Tom Lenard: Harold, Public Knowledge, the group that you work for, actually has the words “public interest” in its mission statement, which states that Public Knowledge works to shape policy on behalf of the public interest. So what does that actually mean in practice, and does that mean you’re aligned with the FCC?

Harold Feld: Well, what it means in practice, for us at least, and keeping in mind we’re a nonprofit with a fairly broad set of issues that we care about, from copyright policy to competition on digital platforms, for us, it means, as it says further in our vision statement, that we work for a world in which everyone has access to the tools of information and creativity.

We have a vision of the public interest, the kind of world that we think is important for us to create for a democratic society, and therefore we support those policies that further those interests.

I would say we need to keep in mind that terms like the public interest or public convenience and necessity, which is another way of saying the same thing, go back to the founding of the Republic. I mean, you can find references to this idea in the Federalist Papers. So this is not something with which we have no experience. This is something that has been very central to the question of how do you govern since the beginning of the Constitution.

Tom Lenard: I’m not talking about the Constitution, I’m talking about, was it consciously to use the same words as in the Communications Act when Public Knowledge was started?

Harold Feld: Well, no. I will say we have wordsmithed the mission statement and the vision statement a number of times, and believe me, we have hours-long discussions about each word. This was not about the Federal Communications Commission, although of course some of us who are there are familiar with the FCC and what has traditionally been its vision of the public interest.

And I would say that was not the goal. The goal was this much broader idea of working to what we see as the societal interest in a democratic society. The public interest is contrasted with the private interest, where individuals act for their benefit, which is how things are supposed to work, that’s great. The notion is, though, that when we come together collectively for government, or when we form policies, there are issues that cannot be met by these short-term private interest goals, what is sometimes described as market failure, where the market will just not produce particular things. The idea of a business operating in the public interest, or of advocacy in the public interest, is that it is not in service of one’s private interest, but hopefully in the broader interest of society, because the market on its own will not produce the desired result.

Tom Lenard: Obviously the FCC has been in the news recently more than typically. But this issue of the public interest standard is not necessarily a new one. FCC trying to intervene in content decisions of broadcasters, over time, various FCC chairs, obviously including the current one, have attempted to use the FCC’s licensing authority to influence broadcaster’s decisions, and in particular, broadcasters’ content decisions in different ways. Which raises, at least for me, the question: should the public interest standard be retained?

So, Harold, I’ll ask each of you in turn, but starting with Harold, should the public interest standard be retained, and why?

Harold Feld: Well, I believe strongly in the public interest standard and retaining the public interest standard. It’s been very painful for me to see the current FCC essentially hijack the concept of the public interest and other elements that have traditionally been associated with media policy, such as localism, for what we consider to be very undemocratic ends. Instead of promoting genuine localism, they’re imposing a national censorship standard by threatening action against disfavored content.

I think that what is important is if you go back to the initial debates around what was the Federal Radio Act, there was a lot of concern about two things. One was the concern about government control and censorship, and that was something that they were watching emerge around the world, and there was a lot of fear that if the government can just dictate to broadcasters, then this will become a propaganda machine.

The other fear, however, which was equally important, was what they termed private censorship. Again, we think censorship is government. What individuals do is free choice, but it was recognized that in an area where you are restricting the number of people who are able to broadcast to a very small number compared to others, I mean, you know, we go from a world where anybody could get a printing press to a world where, for technical reasons at the time, you could only get a license from the federal government, and the federal government decided how many, and what your use was, and what markets you could reach.

And they said, well, look, the problem is, how do we deal with a broadcaster who just decides to say slanderous things on the night before an election? And how do we deal with this concern about private censorship where somebody may be attacked and not have an opportunity to respond, which were things that were going on at the time under the lack of any sort of regulation?

So the compromise that was hit on was to create an independent commission with the idea that that layer of insulation from the executive would help to police the use of this as a tool of coercion, to set specific goals for the Communications Act, including the prohibition on censorship by the FCC.

Scott Wallsten: Wait, if I can interrupt you for a second. So the problem with the public interest standard at the FCC right now is that, and correct me if I’m putting words in your mouth, but is that it’s been hijacked, and that it was the independence of the agency that prevented that kind of hijacking in the past. Is that what you’re saying?

Harold Feld: One of the things that helped to prevent this kind of hijacking was that the independence of the agency was an important feature. In fact, it’s so important that about a decade ago, the IMF started recommending that countries that had a regulator that was directly part of the executive branch start adopting an independent regulator on the FCC model. And there were other limitations as well.

And frankly, the biggest problem we see here is that the guardrails have fallen off, and we now have the public interest standard, but without the limitations that were intended to prevent it from being a tool of coercion.

Tom Lenard: So, Tom, we’re actually going to allow you to talk now. What is your view of the public interest standard? How it’s operated, and whether it should be retained?

Thomas Hazlett: Well, yeah, just full disclosure: in 1996, when the Telecommunications Act rewrite of the 1934 Communications Act, which was itself a rewrite of the 1927 Radio Act, was on the table, I actually wrote a little piece on the fact that the public interest standard should be eliminated from the statute and replaced, if need be, with a consumer welfare standard. That’s not a perfect standard by any stretch either, but it has worked, I think, to better effect in various elements of the law, and would actually give some kind of a standard.

I mean, the bottom line on public interest, convenience, or necessity, which doesn’t take very much analysis to plumb this, how could something be necessary and in the public interest, but not be convenient? These are just words that are slapped together to create the illusion of a standard. This is not a standard. This is just permission for regulators to operate as they see fit in a political context, and tell courts that review this that they’re doing something that’s passed down by statute that’s very specifically a power given to them by Congress, which is necessary for them to operate under the Constitution.

And in fact, you don’t take my word for it. The author of the 1927 Radio Act, where this comes from, the Democratic senator from the state of Washington, Clarence C. Dill, by all regards the most knowledgeable member of the Congress on radio law, left the Congress in 1935, wrote a book in 1938 called Radio Law, and he does explain that where the public interest, convenience, or necessity appear, it’s just a juxtaposition of words that sometimes changes throughout the act. Anyway, Dill’s explanation of it is quite interesting in terms of the history, but his point was that it was the loosest standard that could pass muster as a standard in the courts. It was just permission to do what was the political goal of Congress.

And in fact, yeah, the idea that there was a lot of talk about whether or not the government would regulate content, that is true. There was a lot of talk. And in fact, there was also a very important opportunity, as described by Dill, that this would be the last opportunity, the Radio Act of 1927, to actually assert regulatory control over content. This was the new medium of expression that was instantly seen as very important in a political context, that people running for Congress and higher office in the United States would be very dependent, as Harold mentioned, on last-minute hit pieces or whatever. And there should be a control mechanism set up by Congress to kind of mitigate this.

Now, the idea that we do that is interesting, because we can’t do it for most of the media. And it’s unconstitutional to do it for newspapers. That’s been established very well. And newspapers can do exactly what over-the-air broadcast television and radio, which now are actually fairly small pieces of the media pie, have sort of special regulatory controls attached to them.

So, yeah, I think the public interest standard is long overdue for reform. Abolition might be a harsher word. But we’ve been living with a regulatory system that does not work well. I disagree with Harold when he says it’s been hijacked by the current administration. It’s certainly a different political spin. But that’s democracy on the one side.

On the other side is the fact that there has been a use of the public interest standard to regulate content, to in essence close down ideological viewpoints, including early on, socialist and left-wing stations that were threatened with being propaganda outlets and were tamed to sort of cool it on their sharp political views. Whether it be the censorship of the Smothers Brothers Comedy Hour, or Newton Minow in the early 60s threatening licenses in the vast wasteland, and then moving to block competition to broadcasters through anti-cable rules, where it was in the public interest, said the FCC, to literally protect the profits of broadcasters against the emerging medium of opinion and distribution of opinion, cable TV, because cable would never amount to a major platform. It would just be supplemental, and in the process, it would siphon off financial resources from the regulated broadcasting sector, where the political system was able, the regulatory system was able to improve the product.

Now, improving the product meant having much less free speech, much less news, public affairs, and opinion. And as we’ve seen with the emergence of the hundreds, if not thousands of channels that have been opened up by not just cable TV, but what cable led to, which was the streaming platforms, 

Scott Wallsten: So, Tom, let me interrupt you for a second. In each of those cases, there was political pressure, including the Jimmy Kimmel case, to do what the FCC did. You’re implying that were it not for the public interest standard, they just wouldn’t have been able to do that. Is that true, or would there be other mechanisms where they could have ended up doing the same thing?

Thomas Hazlett: Well, you can compare the public interest standard in broadcasting and radio, broadcast television and radio, which is where it applies through the licensing mechanism of the FCC. Compare that to the regime that exists for other media, including so-called print, the traditional media, newspapers, magazines, and books. You’ve got film out there as well, and of course, now we have streaming platforms and other video products that are distributed electronically, and in fact, distributed quite heavily through the airwaves, but have come to enjoy First Amendment rights analogous to print.

And yes, it is wrong for the government under the First Amendment to have rules that impinge on the editorial rights, what Harold, I think correctly calls private censorship, but private censorship is completely legal under the First Amendment to the U.S. Constitution. And private organizations do have editorial control.

I mean, you go back to the Miami Herald case in 1974, which was a 9-0 opinion that the Miami Herald could not be told under a Florida state statute to give equal time to a candidate for public office in the state legislature that the Miami Herald had blasted and did not recognize any responsibility for giving equal time in the newspaper for a defense of this candidate.

So what the FCC can do under the public interest standard is verboten in the majority of the media, and correctly so, in my opinion.

Tom Lenard: So do you think if this issue ever got to the Supreme Court, do you think they would strike down the ability of either the standard itself, or just the ability of it to be used to police speech?

Thomas Hazlett: Yeah, well, we got to this about 50 years ago, where there was a case, the so-called Red Lion case, that weighed on the constitutionality of the Fairness Doctrine and associated policies, where the FCC could deny or even revoke a license where there was not proper content, according to the FCC’s rules on this. And that was in 1969. Within 5 years, they went to the Miami Herald case, where this state law was tested, and it was found unconstitutional to have any directives to the editors, the Miami Herald, forcing them to do what in broadcasting was found constitutional.

Now, that’s a terrible opinion, the Red Lion opinion. Terrible opinion. Miami Herald was exactly the way the law should be. That was the opinion, by the way, of William O. Douglas, who recused himself. He had a health issue on the first one. And certainly later noted that he would have denied the government the public interest standard for content at any level. He said the First Amendment is a laissez-faire dictate that the government cannot regulate the speech of private interests.

But the thing that’s stunning about this now is that there’s this incorrect, technically, economically, and legally incorrect excuse for regulating the one and not the other. That is to say, the physical scarcity doctrine that comes from a 1943 NBC case, that’s supposed to make broadcast radio and television different as a technical matter from other media.

Scott Wallsten: Before we go on too much further, Harold, you had, I think, a comment to something Tom had just said.

Harold Feld: And there’s a lot here. There’s a lot of history. But Tom has hit a number of the key points here that I think are important in how this debate has gone with regard to is television, initially radio, but then television, different as a medium that it requires something different. And the other one which you touched on is does the government have other modes of intimidation so that the public interest standard is not terribly dangerous, because if the government doesn’t have one tool, they have another tool?

I would point out that the Federal Trade Commission, in a recent merger of Omnicom acquiring IPG, these were firms that handle advertising, and the FTC there required them to enter into a consent decree where they said they would no longer censor conservative media outlets by not directing advertising to outlets that the government favors. Because that was the only way they could get their merger through.

So, yeah, when we look at how Carr held this up in the Paramount Skydance transaction and was able to use that and the public interest standard in license review to get, at least most of us think, Stephen Colbert fired, and certainly commitments for other changes at CBS. It’s equally true that the administration was able to do this with just a simple merger review without any public interest standards.

So we do have to look at these issues of a government that is determined to use the mechanisms of government for coercion, whether it is through the fact that large companies have business before the federal government, and therefore are very careful about not wanting to offend the administration, whether it’s because they want to do mergers and acquisitions, whether because they want to sell things to China, and therefore are willing to promise to give the government a cut off the top.

We shouldn’t look at the public interest standard as the primary tool, and if we got rid of it, then we wouldn’t have to worry about these issues anymore. So that was one point.

I do also want to get to, I think, the meat of what, where Tom and I disagree a lot, and this is to some degree, I think, an issue of lawyers versus economists. This question of what does scarcity and the scarcity doctrine mean in the context of broadcasting? Is broadcasting really something that is so different that it gets a different form of First Amendment regulation?

That was not just Red Lion, that was when we go back to one of the oldest cases, NBC v. United States, which was where the FCC initially set up things like limits on the number of licenses that any entity could own. And the argument is not just that, well, this is like gold or some other material that is scarce, and therefore there is a natural limit.

The notion is that the government is inextricably bound up with the regulation and the issuance of the license. The government can double the number of broadcast licenses by saying that you have 3MHz channels rather than 6MHz channels. The government can double the number of licenses by reducing the interference criteria. So the government has to decide how many, and to what. So that makes it different.

I would argue, as somebody who supports the basic idea of Red Lion, that makes it fundamentally different from any natural resource. Because, yeah, gold is scarce. And if, or rare earths are scarce, and I buy up all the rare earths, and I just own them, and unless, in theory, nobody can find an alternative, although, again, as we see, when it’s a natural commodity, people can go around and look for an alternative. There is no alternative other than go to a different medium, which, fine, if we believe broadcast is different and has special characteristics, that’s fine if we say there’s alternative media to which you go to. That’s the solution to not taking this uniquely government asset.

But also, this question of when the government is so inextricably involved, that is different, because it is the government that sets the limit, rather than anything natural, or any mode of scientific advancement that allows you to innovate. To wrap up, it’s much more akin, I would argue, to what we call the reasonable time and place rules that govern access to important public spaces, where the government has to provide certain types of access. We have rules about allowing the, and that’s where we kind of get to this. Broadcast is different because licensing is not the same as other forms of scarcity.

Scott Wallsten: But let’s talk about, sort of more practically, what a public interest standard should or could or shouldn’t look like now. I mean, in the past, Chairman Carr said that the First Amendment was sacrosanct, and now he doesn’t really seem to think that anymore. Are there any possible safeguards that could save the public interest standard the way you think about it, Harold? I mean, how would you operationalize it at this point?

Harold Feld: Well, first and foremost, I think we have to deal with the problem of media concentration. Because if you want to give greater rights of editorial discretion and free speech, and not require carriage of different voices on the same platform, then you need to have multiple platforms that are equivalent within the broadcast universe.

And the fact that two companies, Nexstar and Sinclair, are able to make a decision for, I don’t know what it was, 25% of the country, not just we don’t want you to see this, you can’t see it, at least not in the broadcast manner, then that is the kind of private screening, private censorship, where, again, I can’t just pop up my own television station and say to Disney, I’ll carry Jimmy Kimmel in this market. That’s where, kind of first and foremost, we want to, 

Scott Wallsten: Well, wait a minute, actually, is that true? I mean, there are lots of streaming platforms, like, let’s set aside the contracts that tie it to ABC, but, 

Harold Feld: And that’s a fundamental question that we actually need to address more, which is: Is broadcast still the uniquely powerful microphone, or bullhorn, or whatever? I mean, Red Lion actually made this point at the end that most people don’t read, said even if scarcity were to disappear tomorrow, there would still be a period of time where just the market dominance, the power of, the legacy power of these stations would require the FCC to engage in similar regulations. And this is where, again, measuring this is very difficult.

I mean, I actually wrote a little blog post on, is Colbert really losing $40 to $50 million? Nobody can tell, because nobody knows what the business models are, and how you monetize these things. So we have this issue of fewer people watch broadcast television, for sure. But they’re still the largest concentration of people watching, and one of the arguments is the ability to aggregate that greater number of eyeballs in a splinterverse is more important and more powerful.

There is concern that there are particular audience segments that are overly reliant on broadcast, the folks who are either lacking in broadband access that is suitable for streaming, or who are not technologically literate enough to be able to serve, who can’t find all of this speech that’s out there in the splinterverse here.

And so I’m not prepared to say, I’m prepared to say we need to think about it. We need to think about, we shouldn’t pretend that we’re still in the 1930s, but at the same time, I’m not prepared to say that just because there are multiple potential outlets, we don’t have to worry anymore, because these are simply not on equivalent footing.

Scott Wallsten: So let me get a cynicism check on you. Is it possible to think about these issues and how to address them realistically, or are we past an ability to work within rules and standards and norms that anybody respects?

Harold Feld: Well, I’d like to think that we can still think about, 

Scott Wallsten: I mean, you didn’t say any of that, I’m just, 

Harold Feld: Right. I get the question. It’s kind of like, is it too late? Politically, nobody’s going to make Nexstar divest, nobody is going to make Sinclair divest, that’s not realistic. So what do we do? And I think that’s an excellent question.

I do think that there are ways that we can look at this. There are steps we could take, some of which have to do with older solutions, like a right of reply in particular circumstances. But I think that, yeah, we need a rethink of how the new media market fits together, and what we ought to be worried about, and what rules would better serve our goals, which I think are still the same goals of a broad access to different and diverse perspectives, to a healthy local news market, where people can get the news and information that is necessary for them, for a sustained democracy.

Tom Lenard: I mean, do you think, aside from the current administration, do you think that those goals have been achieved in a meaningful sense?

Harold Feld: Well, you know, I started out, as you guys know, working for a now defunct nonprofit called Media Access Project, which was centered on media, just this question of media programming. And I think that there have been times when we have done it better. I think we have been in a downhill slide for a very long time. I think that we have reached a point that a lot of us were very worried about 25 years ago with regard to the lack of healthy news industry, the lack of, the consolidation in the media that puts power in the hands of a very few companies, by which I also mean the largest digital platforms, as we are now talking about where TikTok may be acquired by a group of people who would include the primary media ownership, media owner groups, and which all have personal ties to the President of the United States.

So there have been times when we’ve done it better. There have been times when we have failed in that responsibility. I would like to think that we are capable of rethinking this problem, or frankly, American democracy is in big trouble.

Tom Lenard: Well, if the Supreme Court strikes down Humphrey’s Executor as, 

Harold Feld: Looks like it’s going to happen.

Tom Lenard: Seems likely. What are the implications of that for the standard?

Harold Feld: You know, that question of where does the independence that is so critical to preventing what we’re seeing now, and how do you replace that in a world without Humphrey’s Executor is very difficult. I’ve been doing some thinking about this. I’ve been thinking about ways you could use the quorum requirement, for example, to ensure that there are at least some members of the opposite political party on the commission by saying that you don’t have a quorum if there are no members of a different political party, and that under a no quorum rule, it would be much more aggressive than now, where the agency is still capable of carrying on a number of functions on autopilot.

You would want to have, without a quorum, shut down the whole agency so that the industry starts screaming that they can’t get their license transfers done, they can’t get their toys certified for Christmas, they can’t get the things that they care about, and maybe that would be a way to try to preserve some level of independence.

Again, we’re going to be in a brave new world, but I do think we really need to rethink this question, rather than just throw in the towel and say, well, alright, no oversight. Because I will add, we did try that once. We tried it with the 1984 Cable Act, where we said, we’re going to take away all the FCC’s authority, we’re going to take away the primary authority of local franchises, and expect that the private market will handle this.

And that produced results that were so unpopular that 8 years later, Congress did virtually a 180 to try to reverse the problems that had occurred, including a major question about the evolution of independent programming. And while we got some steps forward on that, once you get to that level, it’s very hard to recover. So I would argue that we’ve also seen the alternative of a complete free market approach. It’s not very pleasant, and therefore we need to come up with some way to find the proper balance.

Scott Wallsten: Tom, from your perspective, where do we go from here?

Thomas Hazlett: Well, we should learn from history. And yeah, just to briefly clarify, the argument against the public interest standard being an effective guarantor of any sense of responsibility or progress is not that it’s the only factor involved, or even the primary factor involved in regulating speech. Although I’d be happy to take that position, but that’s not the argument.

The argument is it gives unchecked power to political considerations, and these can, people object to those when it seems to be the other side doing it, but it’s certainly in violation of the First Amendment to have this given free reign.

And I would just note that progress we’ve had really has been, for example, the concentration issue, which I do think is actually an interesting issue to look at and focus on, it’s made much worse by the public interest standard. I gave just one example with the public interest standard being used to delay cable TV as a competitor to broadcasting for 15 years.

And it is funny to see a lot of cable outlets over the last couple of decades complain about Reagan-era deregulation. Well, they’re the product of actually Carter-era deregulation in eliminating the prohibition of cable TV to compete, and that’s how we got these unregulated network outlets in video, by doing away with what the public interest standard had wrought.

Now, look today, and see if this doesn’t shake you up a little bit. This so-called difference, which is just not correct in terms of logic, economics, or the law, as presented, that there is this distinction to be made for the scarcity of communication through the airways versus other media.

Where are we today? Well, we have two different regimes. And the New York Times is supposed to be regulated by the print media regime, laissez-faire. The New York Times can write and say whatever it wants, and there is no government regulation directly of their content. Well, most of the New York Times content is now delivered through electronic means, and in fact, even through the airwaves. People read it on their phones, people read it on their home internet networks that may have Wi-Fi or other wireless links.

And now the regime can be, yes, the government can step in, and actually, whether it be the Biden administration or the Trump administration, make the kinds of judgments about whether or not those speakers, publishers, media outlets are doing things the right way, based upon the judgment of five commissioners at the FCC, or three of five, if you will, to pick up on Harold’s previous discussion.

But that should actually bring some urgency to this discussion, that it is not a good regime to have arbitrary political assertions and judgments being made under a vague standard from 1927 that does not reflect the importance of the First Amendment in protecting us from arbitrary government rules.

Tom Lenard: Let me add one final question, maybe, and it’s actually a yes or no question, but you can do more than that. In 5 years, will we have the same public interest standard we have now?

Thomas Hazlett: If I had to bet, I’d say what’s been in effect for 98 years will last another 5. Okay, that’s, but if you gave me good odds, I’d be happy to take, certainly a bet that 20 years from now, we’ll come up with something better.

Harold Feld: I think it will last and evolve the way it has over the last almost 100 years. And what that means, because, one, it had a 150-year, 200-year run before that, and it’s kept along in this kind of longevity because there is a sense that there needs to be some sort of oversight mechanism, some sort of balance on critical things which are, where market failure is going to be a disaster.

And some of these are issues, I mean, when we talk about the public interest standard, we talk about a wide wealth of things. For example, we talk about the participation by broadcasters in the emergency alert system, which we don’t think of as a content issue, although you’d argue that it’s forced speech to require to do that, but that’s also part of the public interest standard. We talk about the issues of political advertising, ensuring that qualified federal candidates have equal access at the same rates to these platforms, which, again, that touches on the First Amendment, but it’s a little different from, if you’re paying for advertising, you ought to be able to get the same kind of access.

So I think that, and I think as we go forward, we’re talking about, the FCC has an item on its agenda for next week’s meeting about next-generation television, 3.0, where part of the question is, okay, broadcasters, these licenses were initially for free. I know you bought them all from each other, so you feel like you paid, but the fact is the government didn’t get its cut. The bargain was, and you stepped into that bargain, that you agree to certain kind of obligations of public service, let us call it.

And as we move to where next-generation television is going to enable all kinds of new things, we’ll have this question, well, okay, what does the public get back from it? Is there something that we ought to do to make sure that this, to use that fuzzy phrase, serves the public interest? Because the wealth of things that we might care about, whether it’s that the government gets as the statute requires a cut from the way you monetize it because you didn’t auction it, so we’re entitled to, to use the words of the statute, recoup the use of the public resource, or use of this extra capacity to do a little something for local communities, or a concern that broadcasters want to insert DRM into broadcast signal, these are all things that we’re going to have to debate as this stuff evolves.

And I think that’s why the public interest standard endures, because it is, Tom would say, meaningless and vague, and I would say flexible and ideally bounded by both everything else in the statute and the safeguards of precedent, and until now, independence.

Scott Wallsten: Well, actually, so that’s another way of asking it. What are the odds that we’ll see additional safeguards or institutional constraints in the next decade? Is this going to, are the current experiences going to show us that the president and through the chairperson can kind of do or jawbone any way they want? Or will it teach us that we need more constraints on some of these institutions?

Harold Feld: Yeah, it’s a very good question, because we’re debating this now with regard to digital platforms in Congress, where the same questions come up. What about children? Addiction by design, which again delves into the freedom of these platforms to curate and present information in the way that they would want to do so.

These issues endure. And I think the fact that we’re debating them in the context of, in Congress, not before a federal agency, around Facebook and YouTube is a strong signal that we’re going to continue to want to debate these and tweak them in the context of broadcasting as well.

Thomas Hazlett: Yeah, if I could comment on that, Harold forgot his primary concern with concentration, and by which he means competition. I think competition is a better word.

Harold Feld: Competition. Oh, I didn’t forget it. I mean, we, 

Thomas Hazlett: Well, you went right to the regulatory side of things.

Harold Feld: I wasn’t supporting it, I was just saying that the fact that we’re still, that 100 years later, we are having the same conversation shows that the issues endure. I would say, 

Thomas Hazlett: I’ll give you that. The issues endure, but the answers should be improved. And so after 100 years, we might just see that the concentration issue and competition issues have not been favorably treated by the public interest standard, where in fact, you invite rent-seeking, and you invite decisions by regulators that suppress competition. And the open market competition idea within the media sector, which does come from the Constitution, William O. Douglas is very good on this, it needs to be taken more seriously.

And that’s not to say that everything is made perfect, and that we can cure cancer by free speech. The fact is that we’re still going to have challenges with the advent of technologies and new competitive platforms, but those platforms should not be stopped by public interest rules that in fact give political operations the chance to suppress the competition.

So we need to be smart about this and see, really see what we’ve been taught by history, that competition left to its own devices is the best shot we’ve got at welcoming new technologies, new markets, new business models, and in fact, solving our problems.

Harold Feld: Well, I’ll say, just as you’ve written a book about the public interest standard, I’ve also written a book called The Case for the Digital Platform Act, which advocates for a lot of these pro-competitive solutions. But I still think we’re going to see a number of issues. The race to the bottom that people complain about with regard to programming directed at children, for example, and I’m not saying we ought to jump in and start regulating those, because I’ve got a lot of concerns about that. How do you, ultimately, if you take, say, the design for addiction thing too far, what you’re saying is you have to have a lousy experience on your platform so you won’t enjoy it too much.

So my position actually is, yeah, we ought to learn from the past. And we ought to see what has worked and what hasn’t. But we also, and this is where I think we will fundamentally disagree, we ought to recognize that there are differences among the different communications media, that they, and these differences matter, and that therefore our policies ought to reflect not just our societal goals, but also these technological differences.

Tom Lenard: Well, I hesitate to give anyone the last word, but we’ve got to cut this off at some point. So, Harold, you got the last word. And I want to thank you both for participating in this. It was a great discussion. So thank you very much.

Harold Feld: Thank you.

Thomas Hazlett: Thank you.