Teleacoustics: The Regulation of Transmitted Speech

For the last century, the Western world has been in possession of two technologies created for the primary purpose of transmitting speech over a distance: the telephone and the radio. While both deal with the transmission of audio, they differ significantly in how their content is regulated and who is allowed to transmit information over the medium, partly due to each media’s respective nature and how the government organizes access to

them, if at all. I shall focus on the content of these transmissions as opposed to the formation of their respective networks. However, it is important to realize that in radio networks, as for cable, there is a tight pairing between content and the network over which it is distributed, whereas telephone networks are paired to services, but not, for the most part, transmitted content.

The first and most important reason as to why the US Government, or specifically, the Federal Communications Commission, regulates radio transmission is the apparent scarcity of bandwidth for such transmissions. Ithiel Pool argues that this scarcity is self-imposed; radio receivers needed to be affordable for radio to become popular,

so the frequency spectrum was divided in a simplistic and inefficient

way that was inexpensive to receive properly. Pool argues that while

this technique may have allowed radio to take off very quickly in the

US, its inaction in moving forward to more advanced technology for

radio broadcasts has created unecessary limitations on the number of

stations that can broadcast radio. This scarcity is not some product

of nature or fundamental limitation of radio¹. The Digital Radio proposal by the Canadian government has put forth a new standard to allow for higher-quality audio reception, and the addition of a data channel to the audio. While technically superior, new standards

such as these have failed in the US, due to the opposition of entrenched

US broadcasting stations with brandnames, licenses, and investments to

protect². Those who have made it into the radio market have little interest in opening up spectrum to make it easier to start a new station.

Spectrum limitations began to surface in the 1900’s, when an increase in the number of amateur and experimental radio transmitters began to interfere with naval communication. The Radio Act of 1912 was passed to grant the Secretary of Commerce power to assign stations certain pieces of the spectrum to prevent interference. However, the law had no real force other than suggestion, as was evinced by the Supreme Court’s 1926 decision in US v. Zenith Radio Corporation that indicated that the Secretary had no power to enforce its spectrum allocations³. Regulation was required if the existing spectrum allocation to radio bands was not to be changed. The Radio Act of 1927 created the Federal Radio Commission to provide this regulation through spectrum licensing⁴. The later Communications Act of 1934 continued these provisions and put radio along with telephony under the control of a new Federal Communications Commission (FCC).

Unfortunately, having fewer available frequency bands than applicants

for spaces requires discretion as to which stations may obtain licenses, implicitly allowing the FCC to hold as threat suspension or nonrenewal of a station’s license. The US code states that the FCC must allocate licenses to stations who serve “the public interest,” but it is left up to the FCC to determine what constitutes programming that is in the public interest⁵. Laws against broadcasting obscenity were set up to not only punish individuals ⁶ but also to suspend the license of the transmitter⁷. Applied to print media, this would be roughly equivalent to terminating a newspaper’s publishing right if an offensive column was

printed once upon it. When a radio station owned by the Pacifica Foundation transmitted a humorous commentary on “words you couldn’t say on the public airwaves,” it was severely reprimanded by the FCC, When taken to the Supreme Court, the Court backed the FCC, and stated:

Of all forms of communication, broadcasting has the most limited First Amendment protection. Among the reasons for specially treating indecent broadcasting is the uniquely pervasive presence that medium of expression occupies in the lives of [US citizens]. Broadcasts extend into the privacy of the home and it is impossible completely to avoid those that are patently offensive. Broadcasting, moreover, is uniquely accessible to children. ⁸

The FCC was in such a manner capable of inducing a form of censorship. More insidiously, the FCC’s power to revoke, or simply not renew, licenses not found to be “in the public interest,” disincentivized stations that otherwise might have felt more free to disseminate programming that openly criticized the government⁹.

Telephones also go “into the privacy of the home,” and have established laws against involuntarily received obscene transmissions¹⁰. As a person-to-person medium, a telephone is more of a tool for conversation than for public discourse. As such, it was not a form of mass media and could not be so regulated; telephone service could not be suspended as a result of voluntary discussions occurring over the phone network.

Indeed, telephone conversations were protected against any monitoring at all by requiring a court order to wiretap(*10*). In this aspect it differed from radio, which, being a public-access medium, is open to monitoring at any time.

Everybody who has a telephone has a “right to transmit”: there is no

distinction between the right to receive a phone call and the right to

place one other than a small fee placed on the outgoing calls. Both

rights are granted to anyone with sufficient resources to purchase a

telephone and secure a connection to the telephone network. While

inexpensive, there are some left yet “unphoned.” Many have called for

action on this, declaring that a telephone is “a necessity…

essential for citizenship.” ¹¹ Connecting everyone to everyone

else with a telephone is the first step in the creation of a

global network for the exchange of ideas — it is the realization of

Pierre Teilhard’s noosphere, where everybody connects with everyone else to form a

thinking whole of the entire planet¹².

Such a degree of grassroots support is not seen for universal radio

reception. One reason for this lack of support may be that radios

are already quite accessible. There is no recurring charge to a radio,

due to advertiser support. A phone, to contrast, has monthly access

fees plus additional fees for any calls outside of the caller’s local area.

There is no “installation fee” for a radio, but telephones require a

preexisting phone network to get connected to the network. As such,

practically everyone is capable of receiving radio transmissions.

It also must be considered that radio is an interesting and

informative tool, but as a one-way medium cannot effectively act as

anything more than a limited service for the individual, who has no personal interaction with the medium other than selecting a channel. It is an impersonal medium, even if it can draw the listener into a deep bond with the speaker and others listening to the broadcast¹³. As Marshall McLuhan points out, the telephone is a “participant form, that demands a partner…It simply will not act as a background instrument like radio.”¹⁴ Without interactivity or feedback, the radio cannot truly be considered part of a global information network in which ideas and entertainment flow in all directions.

In terms of access to radio transmission, there are

large technical, political, and financial barriers to entry for a

typical citizen. Because of the limited number of licenses

which such a system provides, licensed carriers are, in some sense,

*common* carriers mandated “to operate in the public interest.” They are

so mandated “to present those views and voices which are representative of his

community and which would otherwise, by necessity, be barred from the

airwaves.” ¹⁵ A radio station thus operates somewhat

uncomfortably on the line between a government-sponsored monopoly

under the laws of common carriage, e.g., the telephone system, and a

player in an openly competitive information market, e.g., newspapers.

The American citizen has a right to airtime to respond to aired

personal attacks ¹⁶, but not a right to airtime to respond to

advertisements. ¹⁷ The inclusion of content beyond self-defenses

is up to the editorial discretion of radio station, permitting radio

stations to impose self-censorship.

Due to continued economically justified self-limitations

on the number of available distribution channels, radio continues

to require regulation and mild censorship to best serve the public

interest. Telephony, courtesy of its near-universality and the legal

protections afforded against eavesdropping, continues to be free of

censorship for two consenting adults in conversation. While many laws

have been passed and technologies advanced which shifted the structure

of the telephone network, the laws regarding its usage by consumers

remain largely unchanged, as do laws concerning radio transmission and

reception.

There is, however, a new medium that can form an odd marriage of the

concepts of radio and telephone: digital transmission. By

encapsulating audio into chunks or packets of bits, audio can be represented

abstractly to flow over generic data networks that also carry word

processing documents, web pages, and charts. Here, I will briefly

discuss digital telephony, digital radio broadcasting, and new media

opportunities.

With a digital channel, I could turn my voice into bits to send to a

friend in Turkey. My friend in Turkey could reply, also with

his voice. This realtime exchange of voice data is effectively a phone

call that uses the Internet as a free long distance carrier. Needless to

say, the long-distance companies are not thrilled about this. Neither

are local phone companies, who must completely subsidize local phone calls

to Internet Service Providers from other sources of revenue, usually long

distance calls¹⁸.

The network will also permit transmision of a signal to many people at

once. Music sent out onto the network as it is played simulates

a radio broadcast. As early as 1994, rock bands were transmitting audio over the

Internet using “multicast” technology and getting feedback from

audience members as they played¹⁹. This clearly shows the power

for small broadcasters to reach out and touch many people in a much

more interactive way than allowed by traditional radio. While there

are a few economic barriers to entry, resources are equally available

to everyone for broadcasting information over the Internet. Prices for

Internet publishing software and access tends to be quite reasonable;

many Internet locations will allow people to publish their own extensive

sites for free on their service, provided that the page displays an

advertisement for one of their clients.

With low barriers to entry and no practical limit to the number of broadcasters, the old model of radio regulation cannot apply. Attempts to censor of web

sites or audio broadcasts over the Internet are misguided, given that

transmissions must be actively sought out: viewing an offensive website

usually takes definitive action on the part of the viewer.

Web pages rarely actively force themselves itself upon you in the

same manner as a radio transmission does when one turns on the radio.

There need be no government restriction of access to the new medium in

the old forms.

Yet the network also allows communication in ways that in the past

were not possible, or at least were prohibitively expensive. Internet

startup MPlayer has created software to allow groups of people to talk

audibly together at once over the Internet. Slightly reminiscent of the old

trunk “party lines,” the technology brings together new communities to

live together in an audio cyberspace. Some parts of the community, called “fight rooms,” center on speech that is patently abusive and derisive.²⁰ This speech is not protected by the First Amendment. Should such speech be protected, restricted, or simply left out of the law? Answers to tricky new questions like these may be many years forthcoming.

In sum, the telephone has provided nearly everybody powerful and uncensored

one-on-one dialogue; radio gave Western civilization one-to-many

communication but in a limited and censored medium and in a format

less than wholly permissive of a free exchange of ideas by all

parties; new digital technologies will provide an ultimate enactment

of free speech by allowing ubiquitous access to information in a many-to-many

broadcast communication environment that need not be censored, given

the effectively infinite number of communications channels.

A new way of sharing thoughts in speech form is arisen, related

to the old media only insomuch as it encompasses them and goes beyond

them. The digital medium represents an amalgamation, a convergence of all of the media

technologies before it along with numerous genuinely new methods of

communication. The whole world over, we are entering into a conversation amongst

ourselves that, once started, will never stop, but will continue evermore with the fervent chatter of the hopes, dreams, ideas, and whims of Earth’s inhabitants.

1 – Pool, Ithiel de Sola. “Technologies of Freedom.” (Belknap:

Cambridge, MA), 1983. pp142-148.

2 – Web site. “Digital Radio.” Canadian Broadcasting Corporation. [http://www.radio.cbc.ca/radio/digital-radio/]

3 – Pool, pp113-114.

4 – ibid., p118.

5 – 47 USC 307(a).

6 – 18 USC 1464.

7 – 47 USC 303(m)(1)(D).

8 – FCC v. Pacifica, 438 US 726. 1978.

9 – 47 USC 223.

10 – 47 USC 1004 and 47 USC 229(b)(1).

11 – Graham, Stephen, James Cornford, and Simon Markin. “The

socio-economic benefits of a universal telephone network.”

Telecommunications Policy, V.20, N.1, Jan/Feb 1996, p5.

12 – Kreisberg, Jennifer Cobb. “A Globe, Clothing Itself with a

Brain.” Wired Magazine. Issue 3.06. June 1995. [http://www.wired.com/wired/archive/3.06/teilhard_pr.html]

13 – McLuhan, Marshall. “Understanding Media.” (MIT Press: Cambridge,

MA) 3rd ed. 1995. pp301-302.

14 – ibid., p268.

15 – Pool, pp130-131, p121.

16 – Red Lion Broadcasting Co. v. FCC, 395 US 367. 1969.

17 – Pool, pp131-132.

18 – Komblum, Janet. “Agency: Telcos to pay for ISP calls.” Web

site. C|Net news.com. [http://www.news.com/News/Item/0,4,27907,00.html]

19 – Drake, William J. “The National Information Infrastructure

Debate.” The New Information Information Infrastructure. Ed. William

J. Drake. (Twentieth Century Fund: New York) 1995. p325.

20 – Moriarty, Brian. “Whispering Pines.” Video, private showing.

MPath, 1998.