Shadow Debate

By guest blogger ROBERT CORN-REVERE, partner, Davis Wright Tremaine LLC, Washington, D.C.

During the presidential campaign, and particularly since the election, conservative talk radio and the blogosphere have been abuzz with rumors that the Democratic agenda would include reviving the Fairness Doctrine.  Prominent media activists have labeled such claims as fantasy and asserted they have no interest in reviving the policy, which required broadcast licensees to air “controversial issues of public importance” and to do so in a “balanced” way.
That debate has now been joined in Washington by actual experts in communications law.  FCC Commissioner Robert M. McDowell, speaking at a Media Institute luncheon on Jan. 28, warned that there may be efforts to bring back the principles underlying the Fairness Doctrine, albeit in some modified form that may extend beyond the broadcasting medium.  In response, my friend Henry Geller, the venerable former FCC general counsel, criticized Commissioner McDowell’s views about the Doctrine and the concept of spectrum scarcity, and suggested instead that other new regulatory approaches may be appropriate.  

In a commentary written for Broadcasting & Cable, Henry acknowledged that “with the growth of cable, satellite, wireless, and, above all, the Internet, it is most unlikely that the fairness doctrine will return as a matter of general policy.”  But he also outlined other possible approaches, such as a spectrum fee to support meritorious programming, and suggested that the overriding issue is “the appropriate regulatory scheme for broadcasting in the 21st Century … not this skirmish over the unlikely re-appearance of the fairness doctrine.”
This looks like a debate in which both sides agree on two fundamental premises: (1) that the Fairness Doctrine is not likely to be resurrected, at least not in the form that existed before 1987; and (2) the real issue going forward is what type of regulatory model should be applied to broadcasting and other electronic media.  

Commissioner McDowell identified and critiqued various ways in which the government may assert its authority over broadcasting and other electronic media (including the Internet), while Henry Geller highlighted ways in which the “public trustee obligation” might be “clarified and made more effective.”  In short, they agree on the central issue, but simply offer quite different perspectives on the desirability of enforcing “public trustee” requirements.  
This overriding question about the proper regulatory approach is not confronting us because a new administration has come to Washington.  The Republican FCC under Chairman Kevin Martin launched an unprecedented number of regulatory initiatives designed to bolster and perpetuate government control over broadcast content and to extend such policies to other media. 

These efforts included a single-minded campaign to restrict broadcast indecency and Chairman Martin’s overzealous efforts to require a-la-carte marketing of cable and satellite programming.  They also included the regulation of video news releases – on cable as well as broadcasting – and proposed new rules to restrict product placement.  
One of Chairman Martin’s most ambitious initiatives, the so-called “enhanced disclosure form” which requires detailed quarterly reports on broadcast news and public affairs programming, and his proposed “localism” guidelines, to be overseen by mandatory local “advisory committees” and enforced by licensing review, would give the government far greater control over private editorial judgment than ever existed under the Fairness Doctrine.  In fact, forget the Fairness Doctrine.  “Localism” is the new “fairness.”  
The common element in all of these initiatives is the assumption that the government should oversee broadcasters’ (and perhaps others’) editorial choices – a philosophy that is antithetical to traditional First Amendment principles.  The real question, then, is whether the FCC can continue to maintain the legal fiction, eroded by time, technology, and case law, that the media it regulates are not entitled to full Constitutional protection.

Kevin Martin, and the Peril of Fixed Ideas

Like the man who appointed him to the position, today marks FCC Chairman Kevin Martin’s last day on the job. That both he and President Bush are leaving office to the relief of most, and the glee of many, is partly explained by a trait they share: Both have an unfortunate capacity to project their personal views ahead, and at the expense, of sound public policy.

In Bush’s case the most obvious example is the Iraqi adventure; in Martin’s it has been his pursuit of content controls on TV programming. This is not to say there weren’t other things on their agenda—some of which even went right—just that it is these issues for which they will be  remembered most critically.

Looking back on it, two events bookend The Media Institute’s relationship with Kevin Martin. The first was a speech he gave at our annual awards banquet in October of 2003, at a time when he was but a Commissioner at the FCC; the second was a private meeting I had with him in May of 2005, not long after he became Chairman.

With the benefit of hindsight, one can see in Martin’s banquet speech an outline of  where his personal views might later take him. Indeed, I knew even before the speech that he had a strong aversion to indecent programming. But even so I assumed that his clear understanding of the benefits of free speech (much of which he attested to in his remarks), and his knowledge of the constitutional limitations, would overcome his personal views.

To be fair, Martin would deny, and indeed has denied, that his pursuit of indecent TV programming was anything more than an obligation on his part; that Congress has passed laws and he was simply enforcing them.

That argument, though, puts me in mind of a tale concerning the former British Prime Minister, Harold Wilson. Seems that, so the story goes, Wilson went round to Buckingham Palace following his Labour Party’s defeat in 1970, there to tender his resignation to the Queen, only to find that she had gone for the day to the races at Ascot. This was said by many to be very odd because the Queen was known to be a lady who always put duty before pleasure. Perhaps though, said one, the Queen saw Ascot as her duty and Wilson’s resignation as her pleasure.

However he saw his duties, Kevin Martin’s crackdown on TV content was definitely his pleasure.

In November of 2004, The Media Institute published an essay written by Arizona State University professor Laurence Winer. Titled “Soul of the Censor: The FCC Attacks Television Violence,” the essay was a brilliant, if provocative, explication of the constitutional infirmities, and other problems, with the FCC’s crackdown on violent and indecent TV programming.

Six months later, and with growing concern about the direction in which he seemed headed, I wandered over to the FCC for a meeting with Martin, who just two months earlier had been named Chairman. My hope for the meeting was that I might be able to persuade him to make a course correction re “fleeting expletives,” and all the rest of it, on the argument that the Commission was putting the cart before the horse; that, as Professor Winer had observed, not only was there no evidence in the record of harm from exposure to indecent TV, the nature of the alleged harm itself wasn’t even explained.

Martin was having none of it, though, and showed a particular displeasure with Winer’s essay. And so, though I didn’t realize it at the time, what had been a collegial relationship with him, and with Michael Powell before him, turned adversarial. Thereafter, he rarely attended Media Institute functions, and largely stopped communicating with us.

But he didn’t stop, or even slow down, his campaign to “clean up” the airwaves. Instead, he turned his attention to cable TV, and to his “a la carte” proposal for cable pricing, a mission that, given its length and depth, took on almost comical proportions, with some observers likening it to Ahab’s pursuit of Moby Dick.

Martin argued that the motive behind his a la carte advocacy was to give consumers a break in the rising cost of cable TV service, but virtually nobody was buying it. Instead, it looked to most people as just another attempt to supplant ‘indecent” with “family friendly” programming. As Fortune’s Mark Gunther put it, “So what’s going on here? Politics, as usual.”

In the end, the great irony in Martin’s a la carte campaign–and indeed in all of his efforts to combat what he deems offensive or harmful TV programming–is that owing to the Internet and its effects, the marketplace by itself is moving toward program disaggregation and greater consumer choice, a development one might think a Republican appointee would have expected and preferred to government controls.

Call Me Ishmael

In Herman Melville’s novel, Captain Ahab’s obsession is with Moby Dick.  In the morality play that’s been running for years at the FCC, Chairman Kevin Martin’s obsession is with “a la carte” for cable TV.   Missing from this analogy is a communications lawyer as the novel’s Elijah — "ye shall smell land where there is no land” — perhaps because so few of them are into allegory and none say “ye,” but I digress.

The latest chapter in this struggle between good and evil took place last Thursday when, at the point of a gun, 13 cable companies provided the FCC with information, I blanch to say, about their shifting of channels to digital tiers.  Did I just say digital tiers?  Yes I did, and who wouldn’t want to investigate something like that?

For a matter of such gravity, however, it does seem, as the NCTA argued, a wee bit prejudicial and a skosh abrupt for the FCC to have sent its request from the Enforcement Bureau, and to demand the data in 14 days.  Not eager to be fined, all of the companies did in fact respond by the deadline, but it remains to be seen if the FCC will accept their responses as adequate.

This, because according to press accounts, at least some of the respondents were chary about parting with confidential information relating to their deals with program suppliers, and gobsmacked by the sheer volume of the material requested.  Comcast, for instance, estimated it would take 1,500 man hours just to compile the data for 2008.

Whether the agency accepts the companies’ reports or not, however, it’s clear that this is one fishing expedition that’s not going to end here.  Aided and abetted by such as Commissioner Copps, Kevin Martin is hell-bent, you’ll pardon the expression, on saving consumers from fleeting expletives on broadcasting, and all manner of indecent programming on cable TV, and his solution for the latter is a la carte pricing.

So, as with the captain of the Pequod, the order from the captain of the FCC is sure to remain, for at least a little while longer, “steady as she goes."