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According to a recent Business Week story, government agencies are starting to get worried about the possibility that Comcast may buy NBC Universal.

At least five states are involved in the U.S. antitrust review of cable operator Comcast Corp.’s plan to acquire NBC Universal, two people with knowledge of the process said. Florida has started its own query.

Attorneys general in five states — New York, California, Florida, Oregon and Washington — have joined phone interviews led by U.S. Justice Department officials, said one person who participated and sought anonymity because the call was private.

As Susan Crawford explains, the FCC itself acknowledges that once the dust has settled on its 100-squared broadband plan, the number of broadband carriers serving most parts of the United States will be ONE. Information monopolies are never a good idea, and if it wasn’t bad enough to contemplate an unregulated industry that could control what information flows through the information pipes, think what it would be like if the same companies owned the content too.

Actually, you don’t have to imagine these scenarios. You can go back to this 1883 New York Times story to read how it worked when all the information had to flow through the Western Union telegraph wires. Western Union bullied those on whom it was dependent. This comes from a description of Gardiner G. Hubbard before Congress. Hubbard, whose daughter was deaf, would under-write Alexander Graham Bell’s development of the telephone — and became Bell’s father-in-law. The story sounds to me stunningly modern. An excerpt:

I kid you not. Researchers developed a strain of mice prone to develop Alzheimer’s, and then subjected them to electromagnetic radiation equivalent to talking on a cell phone two hours a day for seven to nine months. The exposed mice tended not to develop the disease as their brethren did.

After long-term exposure to¬†electromagnetic waves such as those used in cell phones, mice genetically altered to develop¬†Alzheimer’sperformed as well on memory and thinking skill tests as healthy mice, the researchers wrote in the¬†Journal of Alzheimer’s Disease.

The study reports the mechanism that is at work — the radiation prevented the buildup of a particular protein associated with Alzheimer’s.

There is a lovely story in the New York Times today about a low-power radio station in northwest Montana: ¬†Creston Journal – From a Porch in Montana, Low-Power Radio’s Voice …. There are only 800 of these licenses, though Congress may increase the number. This particular station has a very short broadcast range but is piped through the Internet to listeners as far away as Florida. It’s an excellent example of the kind of radio diffusion we discuss in Chapter 8 of Blown to Bits. Why shouldn’t the broadcaster in Montana be able to cut a deal with the listener in Florida to rebroadcast to a local Florida audience?

Full disclosure: I know exactly where this transmitter is; I drive through Creston, MT several times each summer, as it is on the road between my summer home the airport we fly into. It’s beautiful, but as the pictures in the story indicate, it is beautifully isolated.

We make that argument (which we learned from a paper by Larry Lessig and Yochai Benkler) in Chapter 8 of Blown to Bits. The outcome of the Supreme Court case of Fox v. FCC, decided this week, suggests that the line of reasoning we outline has some traction on the Court.

The case, stimulated by Cher’s use of the F-word and Nicole Richie’s use of the S-word, was decided 5-4 in favor of the FCC, which would at first blush make it look like a loss for free-speech libertarians. But the case was decided on narrow administrative grounds; the only question on which the court took a position was whether the FCC had properly promulgated a reasonable regulation (its higher standard prohibiting even fleeting use of expletives at times when children were likely to hear them). The constitutional question of whether that regulation of free speech is in violation of the First Amendment the court let stand.

But the four in the minority seem not to support the restriction of broadcast speech at all. And one of the majority seems inclined in the same direction. That would be Justice Thomas. Although we might have expected him to have the least patience with foul speech on television, he takes the opportunity of writing his own opinion, concurring with the majority in its vote on the administrative question, but making plain that technological changes have shaken the court’s prior reasoning on the constitutional question.

The case has been sent back to the lower court, which will have to take up the constitutional question. Whatever it decides, if the decision is appealed, the Supreme Court may have an opportunity to come down once and for all on the federal government’s right to censor broadcast television.

A few passages from Justice Thomas’s opinion (full opinions here):

even if this Court’s disfavored treatment of broadcasters under the First Amendment could have been justified at the time of Red Lion and Pacifica, dramatic technological advances have eviscerated the factual assumptions underlying those decisions. Broadcast spectrum is significantly less scarce than it was 40 years ago. …

Moreover, traditional broadcast television and radio are no longer the “uniquely pervasive” media forms they once were. For most consumers, traditional broadcast media programming is now bundled with cable or satellite services.… Broadcast and other video programming is also widely available over the Internet. …  And like radio and television broadcasts, Internet access is now often freely available over the airwaves and can be accessed by portable computer, cell phones, and other wireless devices. …

These dramatic changes in factual circumstance swell support a departure from precedent ….

Cable television networks are beginning to experiment with targeted advertising. Cablevision is trying out an indirect method. They buy data about their customers from Experian, which aggregates data about individuals for use in credit checking, etc. Once Cablevision knows that there’s no one over 30 at your address, or that you’re a single woman of 45, it can avoid showing you the “I’ve fallen and I can’t get up” ads. As Marc Rotenberg of EPIC agrees, there isn’t really any privacy breach here, yet. But the article continues,

[A competing technology] uses data from remote controls to follow what a person is watching, then matches that with ratings information and program guides to infer that person’s gender and age. It can use census data or data sources like Experian for further refining. Then, it shows an appropriate commercial.… Eventually … the company will be able to identify who is watching based not just on what they are viewing, but also how they watch it: whether they channel change frequently or not at all, or immediately turn to CNN or to Bravo. That will help it show the right ads in households where multiple people watch television.

Watching me watching you, as the song says.

The abominably misnamed “Fairness Doctrine” seems to be gathering steam for reinstatement. I have no political axe to grind here; I’m an information free-marketeer. Can you imagine any court going along with the proposition that by government regulation, editorial opinions in newspapers have to be politically balanced? Given the First Amendment, it is hard to think of anything more un-American.

The argument goes that the airwaves are different; they are public property and there are only so many to go around. As a national resource, they should be distributed “fairly,” so that a range of views can be heard.

There are so many things wrong with this argument from a purely philosophical point of view that it’s hard to know where to begin. Should truth and falsehood be equally represented, and if not, who is to decide whether someone’s claimed truth is actually false? Do Darwin and Usher get equal time to express their views on the age of the earth?

But the fundamental problem here is that spectrum scarcity, which is the premise for its nationalization and government control, is artificial. Chapter 8 explains the reasons, but my evidence could not be simpler. Hundreds of thousands, maybe millions, of broadcast radio stations coexist around you right now. They are called cell phones. Modern radio technology is much more efficient than that of the 1930s when the present schemes for allocating broadcast licenses were legislated.

The case for the government to dictate content of radio broadcasts is very week philosophically, but without its technological foundation, it collapses completely.

FCC chairman Kevin Martin proposed to make a slice of spectrum available to private companies that would deploy nation-wide broadband Internet service — with the catch that all indecent materials would be filtered out. I wrote about what a bad idea this was in the Boston Globe not long ago.

Under pressure from the White House and members of Congress, Martin has cancelled next week’s meeting at which this controversial plan was be voted. The White House is opposed to complicating the spectrum auction process; Congress doesn’t want the FCC to vote anything that will immediately wind up in court. In any case, only one company had shown any interest in the plan, and in the changed economic conditions, even that one might not have found it a profitable venture.

A bullet has been dodged. Let’s hope that the next FCC doesn’t revive this idea. Here is an excellent post explaining the dilemma that will be facing the Obama administration.

That’s the name of rule, no longer in force, requiring political balance in radio broadcasting. As the right has come to dominate talk radio and the left has taken control of both the executive and legislative branches of the federal government, talk of reinstating the doctrine is on the rise. George Will has an excellent column today making that case that the doctrine would, most likely, prove to be unconstitutional. After all, the First Amendment doesn’t say that the federal government should guarantee that all sides are heard; it says that the government has to stay out of deciding what should be heard.

Will notes that part of the rationale for the fairness doctrine was the scarcity argument — that there was only so much radio spectrum so the government needed to have some rules for allocating it. As he states,

The court’s 1969 ruling relied heavily on the scarcity rationale. But Brian Anderson and Adam Thierer, in their book “A Manifesto for Media Freedom,” note that today there are about 14,000 radio stations, twice as many as in 1969, and 18.9 million subscribers to satellite radio, up 17 percent in 12 months; 86 percent of households with either cable or satellite television receive an average of 102 of the 500 available channels. Because daily newspapers are much more scarce than are radio and television choices, should there be a fairness doctrine for TheNew York Times?

I haven’t read the Anderson-Thierer book (but I should: Thierer wrote a nice review of Blown to Bits). But the numbers Will quotes are only part of the reason why the scarcity argument is bogus. The way the radio spectrum is divided is an artifact of 1930s radio engineering. There are much more efficient methods today — without which it would have been impossible for most people to have their own radio station, in the form of a cell phone. As we say in Chapter 8,

There is no reason to re-establish a “Fairness Doctrine,” like that which until 1987 required stations to present multiple points of view. If there were more channels, the government would not have any need, or authority, to second-guess the editorial judgment of broadcasters. Artificial spectrum scarcity has, in the words of Justice William O. Douglas, enabled “administration after administration to toy with TV or radio in order to serve its sordid or its benevolent ends.” Justice Frankfurter’s claim that “there is no room in the broadcast band for every business or school of thought” is now false.

To get broadcast regulation right, you need to know the history and you need to know the engineering. That’s the story we tell in Chapter 8 of Blown to Bits, a remarkable drama in which Marconi, John Romulus Brinkley, Hedy Lamarr, Felix Frankfurter, and Claude Shannon all play their parts. I hope Obama’s team knows the story.

Today is supposed to be the day for an FCC decision on allowing unlicensed use of the “white spaces” between television broadcast channels. The television industry and Broadway have lined up against it — television with predictions of screens going dark all across America because of interference, and Broadway (aligned, improbably, with churches) predicting that their wireless microphones won’t work any more. The FCC engineers have been studying this for six years and have concluded that these fears are exaggerated (cf. Chapter 8 of Blown to Bits). But the entertainment industries are powerful, and so are churches.

A good story in the New York Times on this today, and a good post last week by Susan Crawford. The Times has a good quote from the FCC chairman on this.

“We’re being very cautious about protecting the broadcasters, but at the same time making sure the technology allows us to make greater use of this invaluable resource,” Mr. Martin said.

He added that he thought some opponents, like the broadcasters, were fighting the proposal because they were unnerved by the rise of interactive tools that offered a less passive media experience. “The empowerment of consumers is threatening,” he said.

And it turns out that most of those wireless microphones that churches and Broadway are so concerned about being functional in the future were never operating within FCC regulations anyway. They are essentially arguing that their illegal use of the spectrum should be grandfathered.

Earlier this month, Harry blogged about the proposal by Google and others to open up some of the white space in the TV band for more unlicensed use.  the FCC will be voting on this proposal on November 4.  You can support this effort by signing the petition at www.FreeTheAirWaves.com.