Private Broadcasters and the Public Interest:Notes toward a “Third Way”
Cass R. Sunstein
The so-called communications revolution has been driven bytechnological change. The rise of cable television, the Internet,satellite television, “direcTV,” and digital television has confoundedordinary understandings of “television.”
Before long, digitaltelevision may enable viewers to choose among over a thousandprograms.
The possible combination of television and theInternet—a combination now in its early stages—may prove anequally dramatic development.
Law has responded to these developments in fits and starts,largely by attempting to engraft legal requirements designed for theold environment onto an altogether new communications market.The result is a high degree of anachronism, misfit, and drift, and inthe view of many observers, a series of constitutional violations.
*Karl N. Llewellyn Distinguished Service Professor, University of Chicago, LawSchool and Department of Political Science. From 1997 to 1998, the authorserved on the Advisory Committee on the Public Service Obligations of DigitalTelevision Broadcasters, which produced a report in December 1998. See FinalReport of the Advisory Committee on Public Interest Obligations of DigitalTelevision Broadcasters, Charting the Digital Broadcasting Future (1998). Theauthor is grateful to other members of the Advisory Committee for many helpfuldiscussions of these problems, and in particular to the two co-chairs of theCommittee, Norman Ornstein and Leslie Moonves. The Committee’s FinalReport has influenced the treatment here, not least when there are disagreements.He is also grateful to Douglas Lichtman, Eric Posner, and Richard Posner forvaluable comments.1See Bruce Owen, The Internet Challenge to Television 311-26 (1999)(discussing this possibility with some skepticism about its feasibility, but alsodealing with other dramatic technological developments).2See Lawrie Mifflin, As Band of Channels Grows, Niche Programs Will Boom,N. Y. Times, Dec. 28, 1998, at A1.3See Owen, supra note 1, at 311-26.4See Thomas Krattenmaker and L.A. Powe, Converging First AmendmentPrinciples for Converging Communications Media, 104 Yale L.J. 1719, 1725