The famous financier George Soros wrote in his book, The Crisis of Global Capitalism (1998), that among the most inspiring moments he remembers was the time a Russian activist told him that his life had been "one long pursuit of lost causes." A "lost cause," indeed, is the attempt by this writer to gain recognition of his fundamental First Amendment right to equal access (along with the "media aristocracy"), to news sources at the US Capital of vital consequences to the public.
When James Bennett, founder of the New York Herald, was refused access to the Senate floor to report the news while Washington Reporters were accommodated, in 1841, he published this editorial: "We have to record this day one of the most outrageous, high-handed, unconstitutional acts ever perpetrated by any legislative assembly in a free land--an act of despotism, tyranny and usurpation against the liberty of the press." 126 CONG. REC. S14905, S14906 (daily ed. Nov 24, 1980) (statement of Sen. Robert C. Byrd, D-WV)). Bennett later got a seat in the first Senate Press Gallery but the "outrageous, high- handed, unconstitutional acts" of the "media aristocracy" have continued against others ever since.
My own attempt to break the long held embargo over news sources at the Congressional press galleries, hit another brick wall this past Nov 3, when the US Court of Appeals for the DC Circuit rejected this reporter's petition for rehearing by the full court in banc. Adding a nasty touch to their treatment of this case the honorable judges decided in their judgment that there was "no need for a published opinion" to explaining the basis of their decision, under court policy where "general public interest" is lacking.
Anyone who reads my petition for rehearing can see that the court's failure to explain the basis of its decision was not for a lack "general public interest"; the case involves fundamental constitutional issues of transcending importance concerning the information role of Congress and use of the Internet for Congressional news reporting entitled to unqualified First Amendment protection, RENO v. American Civil Liberties Union, 117 S.Ct. 2329, 2344 (1997). The court's decision does fit the pattern known by legal scholars as, "Jurisprudence Confidentielle," in which the legal and factual basis of jurisprudence remains a professional secret, which is "never expressed openly" Miller, Myth and Reality of American Constitutionalism 63 TEX. L. REV. 181, 182 (August 1984).
There are no civic voices in the DC Circuit's "media aristocracy," who speak for democratic sustainability, social equity, and ecological integrity. Only the "Golden Rule" of major investor interests prevails in the channels of the Congressional press galleries. Everyone else is shut down, turned off, or drowned out. Telecommunications infrastructure and TV-broadcasting have been similarly rigged.
In addition to closing down the press galleries to all but the "media aristocracy" the DC Circuit is also the author of the "monster model" of telecommunications, "combining content and conduit in order to gain monopoly rents," the dream of the new Robber Baron era described by George Gilder in an article published in Forbes ASAP (June 6, 1994, at 119). Reporter Emily White describes Gilder as a visionary Techno-tyrant, in an amusing story published in the Seattle Weekly (October 14-20, 1999). Not so amusing, a DC Circuit decision, in 1990, required that the antitrust restrictions on information services against the seven Regional Bell Operating Companies (RBOCs) be lifted because it was not certain to be contrary to the public interest in purely economic terms, United States v. Western Electric, 900 F.2d 283, 304-308(DC Cir), cert. denied sub nom, 111 S.Ct. 283 (1990). Following the fictions of market theory the DC Circuit disregarded the likely adverse affect of the "monster model" on the welfare of local ratepayers and prospective anticompetitive behavior by the RBOCs, United States v. Western Electric Company, Inc., 767 F.Supp. 308, 325-326 (D.DC 1991).
The common carrier model that had worked so well for Americans was thus replaced by the "monster model." Informed by over a decade of experience with evidence in the telecommunications field, an evaluation and stinging denunciation of that decision was issued by US District Court Judge Harold H. Greene, in 1991, United States v. Western Electric Company, Inc., 767 F.Supp. at 326. Judge Greene warned of the threat posed by the "monster model" to the public interest:
If the Regional Companies were permitted both to generate information and to transmit it, they would, certainly as of now, appear to be the only entities in the developed world to have this kind of strangle-hold on information. The present era is increasingly being described, with considerable accuracy, as an Information Age, with information more and more a central feature of the economy. That being the case, it would hardly make sense or be in the public interest to cancel an important part of an antitrust decree forged after several decades of on-and- off litigation, and turn a key ingredient of the emerging information society over to corporations who not so long ago were involved in major violations of the antitrust laws, and who even now seem ready to engage in anticompetitive practices whenever the opportunity thereunder presents itself. Indeed, it would be difficult to conceive of a step that would be less in the public interest.
The DC Circuit's limitation of public interest concerns to purely economic terms, for purposes of telecommunications infrastructure, has no valid foundation in logic or communications law, it is an oximoron, an assertion of the fiction of laissez faire economic theory that was, in fact, absolutely rejected by the public interest mandate of the Communications Act. V. SCHREIBMAN, THE MARKETPLACE OF BROADCASTERS' IDEAS 21-29 (Amicas 1987). The struggle over a determination of "public interest" criteria, has resulted in abdication of regulatory authority to industry discretion guided by the fictions of the "free market," which disregard the "public interest." Id., at 21-24.
This is the cause of dire conflict and confusion that has permeated regulation of communications. Now almost seven decades after the enactment of the Communications Act, we still have no intelligible definition of the value content and meaning of the "public interest" standard of communications as a purposeful guide either for regulation of telecommunications or broadcasting. Moreover, according to attorney Henry Geller, former general counsel of the Commission and first administrator of the National Telecommunications and Information Administration, who I interviewed in person Dec 5, 1983 Id., at 17-18, the lack of an explicit definition of public interest criteria has not been due to any excusable omission. During my interview of attorney Geller, he explained:SCHREIBMAN: (T)here has been a lot of talk about the [public interest] standard over the years, but what it means has more or less been delegated to the Commission and nobody knows to this moment what criteria, if any, will be used.
GELLER: I think that's correct, and I think you've sized it up.... In a speech in 1973, (Dean) Burch, the then chairman of the Commission said, "If I were to ask a group of broadcasters out there, what are the standards, you wouldn't know, I wouldn't know, nor would the long suffering staff know...." I think that the reason why, I'm being blunt with you, the agency has failed to come to grips with it is that it never really wanted to enforce the public interest. What it wanted to do, was to just get by in a nice quiet fashion.
Finally one must ponder the role of the DC Circuit Court in the tragedy of the "wasteland" of television broadcasting, which has developed an unbreakable pattern of manipulative infotainment, exploitive sex, and gratuitous violence, used as a strategy to draw viewers and listeners of broadcast programming. Without firm criteria to guide regulation, the pressures of profit maximization have culminated in making the great public resource of the electronic spectrum into a training ground for youth homicide, children killing their parents, classmates, teachers and anyone else who gets in the way.
The honorable judges of the DC Circuit barely raised their eyebrows at the admitted lack of intelligible criteria for broadcasting in the "public interest," see e.g., Central Florida Enterprises v. FCC, 683 F.2d 503, 508 n.27 (DC Cir. 1982) cert. denied, 460 US 1084 (1983). They have subjected the nation to the "monster model" of telecommunications, positioning the rapidly consolidating monopoly powers of the RBOCs (e.g., Bell Atlantic+Nynex+GTE) to destroy all other competitors, as Judge Greene warned, and building pressures for ever greater industry consolidation (e.g., AT&T's $48 billion acquisition of Tele-Communications, Inc., approved by the FCC Feb 1999, and the $129 billion proposed merger of MCI WorldCom, Inc. and Sprint, announced Oct 1999). Now petitions for redress of grievances over violations of the "free press" at the Congressional press galleries -- gateway to the largest body of news and public affairs information in the world -- are being sent to the dead letter box at the DC Circuit court house, see Order denying petition for rehearing.
The deplorable outcomes in these cases pertaining to the telecommunications infrastructure, primary standard of broadcasting, and equal access to the Congressional press galleries have nothing to do with the exercise of sound judgment based on the Constitution and Laws of the United States. This is the DC Circuit's "media aristocracy" constraining civic voices and building a national instrumental foundation for the return of 19th-century laissez faire ideology devoid of moral integrity, systemic competence, or Constitutional legitimacy.
Federal Information News Syndicate, Vigdor Schreibman, Editor & Publisher,
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