foreign terrorists are enemy combatants and must be treated as such. the safety of the american people depends on it. i am senator susan collins from maine. thank you for listening. >> this week on "the communicators," a philosophical discussion communications policy. >> stuart benjamin, what is your job with the fcc? >> i am the inaugural, distinguished scholar in residence. i provide some legal advice as a law professor in dealing with first amendment issues, and more broadly, a big part of my job is to make sure that we are looking at all the arguments and counter arguments for any given procedure.

we are considering all the various options before something gets out the door. the idea is that the more diverging views we can have inside the commission,ñi the better the process will be. >> a one-man think tank? >> there is also a chief economist to place a similar role. i work within the office of special plans and policies, whose role is also to try to provide the best kind of background and input that it can. my role in particular is to see if there are things we have not thought about that that we should be thinking about. there are specific legal things that i work on, telecommunications law, communications law, an

administrative law. the idea is that i might be able to bring to bear some argument that might not have gotten fully aired. >> what is a matter background in telecommunications? >> my teaching areas art telecommunications law, first amendment, an administrative law. [unintelligible] i have been thinking about these issues since i started as an academic a dozen years ago. i have also worked on telecom issues. i made a conscious decision that i would not do any work -- i have done no consulting work since i started as an academic 13 years ago. did julius genachowski approach, and what is your connection to him? >> i have known the chairman for almost 15 years now.

after he was announced as the chair designee it, he contacted me and said it would be great to bring me and to have another perspective and have an airing of different ideas. it took awhile, but it actually worked out fairly easily. i knew him and i new chairman mcdowell before him. i am sorry, i mean commissioner mcdowell. he is a very loyal alum. it was a fairly easy process to set up. >> who you report to? >> for some projects, a report to the general counsel. for some projects, a report to

this specific person in charge of the project. for some projects, i report to the chair or the chief of staff. for some, i talked to all the commissioners. >> also joining us is a truth stanton -- ruth stanton. >> you were speaking of how part of the job was described as long-term strategy. >> at a higher level, here are things on the horizon that we want to be thinking about, and what are the different ways we

can approach them? the chair is committed to having the fcc b eight dated driven agency. there are big issues out there, and to make sure we are thinking about all the important issues, not only in the next six months, but in the next six years. part of my job is just trying to think about are there things on the agenda that should be on the agenda? are there different ways of thinking about issues than we have? >> it is easy to have a group think that emerges, and everyone starts thinking in the same patterns. part of my job is to disrupt that, to make sure we do not get all focused on one narrow issue and lucite of other important considerations -- lose sight of other important considerations or ideas.

there is no specific time horizon. >> let's get into some of the issues you may be discussing. in may 2009, you presented a paper called "roasting the pig to burn down the house." this is about the spectrum.

what does that mean? >> this is an abstract of a larger article. this is my view, not the commission's view. my view is that we are moving toward spectrum electability. people can determine what services they want, from the bottom up, rather than the top down. if you want to create the britney spears testing network, more power to you. if people want to subscribe to that, they will, and if not, it will flounder. it may be that people would choose broadcasting, or they would choose something else.

my view is, we should let whatever people want our rise. the point of the article was, we are not now, because we have spectrum dedicated to different services, and i think that is a mistake. we should not have the decision made by the fcc, but have it come from the ground up. the last lines were, spectrum regulators of the world unite, you have nothing to lose. i want to be clear, that is my view. i think the commission's view is not necessarily discordant with that, but the long-range view is we need to get to a position where we have lots of the spectrum available for broadband as well as the services we expect an associate with things like broadcasting.

we will not force any broadcasters off the air, but there have to be ways of making this a win-win for everyone, so there is more spectrum available for broadband, etc. everyone agrees, spectrum is the oxygen for broadband. there has been an explosion in mobile communications. that is the long answer to your short question. >> you mentioned broadcasters last week on this program. here is a low bid from gordon smith. >> if they take broadcast spectrum and some of the trial balloon proposals are to stack tv stations in a way that will only destroy the high- definition project, it would take away the multi channel

availability and eliminate the future of mobile tv. we think that in the digital -- did your tv should not be sacrificed on the altar of the digital drive -- digital tv should not be sacrificed. >> my own view is that if it turns out that what viewers and consumers want is any particular use of the spectrum, i think we should have it. i do not see why b.g.e. is fine with me if it turns out people want to have hundreds of megahertz. i would rather the fcc not be in the business of making that decision.

>> how would you get from where we are in the use of spectrum? the take it back from the broadcasters and start from scratch? >> that is a great question. that is a decision that is being discussed in the context -- it is probably being discussed in half of the telecommunications law firms in the city right now. i don't feel that strongly about how it happens. it can happen by giving existing licensees the ability to use it flexibly. it could happen by taking the spectrum back, and they will say that is not fair to us.

my guess is it'll be something in between. there will be some attempt at having some sharing of proceeds so that everybody feels like they have got something out of it. that is a guess, based on no inside information. after goes to the commission and the legislature. >> you have also written about a spectrum, and to leaving it in private hands and private property. wi-fi is basically an unlicensed technology. it seems to have been incredibly successful for getting on the internet without having to pay

for spectrum. >> i have no dealings with this in the commission. what i was responding to in the article was the proposal that hundreds of megahertz be devoted to wireless. there are some problems with doing that, and if it is such a great idea, why would it private industry not buyup -- there has been enormous benefits. some of the early bands were called junk bands. then we started getting garage door openers, and the earliest cordless phones have now migrated of the spectrum. clearly, sharing is a big part of it.

my own view is very confident with the spectrum quality task force in 2003 where the report said that in some situations, the transaction costs of negotiating are very high. he did not want to accept less separate negotiations with 47 different people. if the licensee wants to ride a broader use, they can. it is just a different form of payment that you would be getting. that would be a bottom-up approach, let different entities try what they want, rather than have it imposed from the top down. >> is there a legal definition of "commons"?

>> there are legal definitions of the bands that are open. the point of my article was there would be less lobbying about how we are going to define [unintelligible] there would have to be power limits. it might work it -- it might rule some devices in and some out. i was responding to the argument that a huge swath of spectrum should be devoted for this purpose. let's say they build it and nobody comes.

there has been a top down decision made by the fcc, and we, the people, have not really responded, and there has been a wasting of this valuable resource. spectrum is so enormously valuable, and i hate to see it ever wasted when we could be getting all sorts of services that we would really like and really benefit from if it was used in a way that people were actually excited about. >> is it still considered junk spectrum? >> no, that was my point that it was once considered that. it has actually worked out very well. it is really great that if you want to make a cordless phone, you do not have to go out and buy spectrum in order to have the cordless phone work.

for your. wi-fi network or eat -- for your home wi-fi network or anything else, you do not have to go through an approval process. >> if we worry about this, we would not have garage door openers or wi-fi. >> my view was never that we should have zero spectrum devoted to this. it would be more like deciding there had been homesteading in the west, so let's reserve wyoming and concede u.s. --

concede -- contiguous states for cattle ranching, and then the cattle would die off because it was too cold. it would turn out that it was not use that people find particularly useful. >> chairman genachowski launched a proceeding to look at the future of media and how it is affecting journalism and newspapers that. what that would do with respect to broadcasters or cable companies or any company they have regulatory effect on. does this seem like a wise policy? >> the industry that is most

concerned about this is newspapers. it is a great question. the landscape as we know it is changing before our eyes every day. this is exactly the kind of thing the fcc should be talking about. what they should do about it, i don't know. there may not be any good answers here. there may be only a limited role for the fcc to play, but it seems to me the right question to ask. the media landscape keeps changing, and the local news we have all come to rely on is becoming harder and harder to be successful as an economic matter. one of the things about news is, it is hard to charge people

for it. once i tell you a bit of news, you can pass it on to anyone else, and i cannot monitor that. there may be less news provided and there is demand for. what is the best way to approach that? i have no idea what the right answer is. it makes sense to think about it. in 10 years, we will be in a different place. nobody knows what that place is. a guarantee that in 10 years, people will want the kind of services they now associate with local broadcasters and newspapers, etc. hauschka that look in tears, and what, if anything, -- how should that look in 10 years?

>> mr. benjamin, you have written about media ownership. what should be thresholds on media ownership? should there be limits on media ownership? can there be cost of ownership in local markets when it comes to a television station or newspaper? >> that is something i have not written about with any specificity. that is such a fact driven answer. i think whatever your answer was to wear three years ago, it could be different today -- whatever your answer was two or three years ago, it could be different today.

what i mean is, three years ago you might have set i will allow research in this context.s%mayt context, because the rules have changed. a personal view is, to many aspects of policy in washington d.c. historically have been driven by ideologically first, and then i will find the facts to suit me. this is one area where is particularly true. you have to start with the facts and the data. what i like about chairman genachowski's approach is, he once different ideas.

we are a data-driven agency. we will start first with what are the facts. that has to be the right approach. let's try to figure out what really makes sense and what is actually necessary for the help of those markets. i would never want to prejudge them, because it has to come from what the facts on the ground show, and they could change in two or three years. >> one of my first articles was about the difficulty of changing fax 4 legal regimes. congress passes a law, and then the facts change. the court issues a ruling saying the internet is x, and then one of the statements involving the

communications decency act was, users rarely come upon unwanted content by accident and the internet. that was probably true in 1997. i would love to know what's percentage of internet users have not come upon unwanted content in 2010. things are changing all the time. there is a constantly calibration. we should want our members of congress to keep confidently taking into account how things have changed. we need to reconsider what our policies are. >> the parents television council has been critical of you and your writing when it comes to first amendment and decency and broadcast. how would you address their concerns? >> i am actually befuddle by that.

i have never said broadcasting regulations work unconstitutional. i googled myself and did not find any place where i said that. i suppose someone could have made it up. i have talked about broadcast regulations and suggested that lots of regulations -- it under a case called red lion, i think it stands on weak footing, but it is still there. i have talked about that side of broadcast regulation, but unless i am having a senior moment, i never said anything about the and constitutionality of regulation in broadcast.

>>ñi is it the idea that people are having television foisted upon them? >> that was the dichotomy between the case i referred to -- speaking for myself, i do not think spectrum is uniquely scarce. i don't see any particular justification for a set of affirmative regulations for broadcasters as opposed to regulation of every other provider that they can regulate in this way. this indecency comes in unbidden, and there is a

pervasiveness and intrusiveness to it, and you cannot run away. once you have heard words, you cannot unhear them. there is more to those arguments then to the spectrum scarcity argument. you can read tea leaves as well as i can. it is not up to me, but i focus more on the weakness of the red lion argument. >> a question on administrative law. the fcc has been experimenting with commenting on blogs. there was a complaint from civil rights groups that the commission waived its sunshine agenda of requirements that prohibit third-party initiated

communications the last week before they actually vote on something. does that seem like a reasonable argument to you? people do not -- people who do not haveñi internet are being disenfranchised more by the attempt to reach out to more people who are probably accessing and it through other means. >>ñiñiñr my view is, anyway thae american peopleñr can get the information is great. what has been unfortunate for every agency that i am aware of is that so often in the past, it

has been those who had inside knowledge to getting access. once it is open up to all the american people, then i feel better about it. the real problem in the past has been the only way to even know what was happening at an agency was to go and walk the hallways. nothing was posted on line, and you had no way to meaningfully comment. there were all sorts of agencies where you could communicate with them. i really want to be able to comment on it. it is wonderful to have that available to people. >> give us your impressions of the job. are you