Category: Public Interest Standard

Posted on By Richard T. Kaplar

A Disappointing Delay on Cross Ownership

Since January we’ve heard a lot of talk about changing the way the government does business.  At the FCC, however, it looks like it’s still just talk.  When it comes to the newspaper-broadcast cross ownership rules, at least, the times … they definitely are NOT a-changin’.

This week the U.S. Court of Appeals for the Third Circuit said it would put off a decision on whether to lift a stay on the FCC’s modest attempt to loosen the rules until after the Obama FCC has a chance to review the revisions.

This comes after acting FCC chairman Michael Copps announced that the Commission would no longer oppose a petition by activist groups to put the case on hold until the new FCC leadership was in place.  

Let’s add this up.  The usual suspects in the activist realm (Media Access Project, Free Press, United Church of Christ, etc.) try to stall a court action that might loosen the cross ownership rules.  They know that if they can stall until a Democratic-majority FCC is in place, the changes are as good as dead.  The acting FCC chairman, who favors that outcome, goes along with the idea.

So it’s business as usual at the FCC.  But we expected more from the federal judiciary.

The court’s decision was unfortunate.  The judges should have acted decisively and immediately to lift the stay – as a matter of principle.  The ban on cross ownership makes absolutely no sense, neither in this digital age, nor in this recession.  The ban should have been abolished in its entirety years ago.  Some relaxation now would at least be a step in the right direction.

As for the activist groups and the acting FCC leadership – shame on them.  Has nobody among them noticed that in recent months newspapers have been biting the dust at an increasing rate that is nothing short of alarming?

If these policy watchers and makers truly cared about the public interest and a diversity of media voices, as they purport to do, they would be doing everything possible to help newspapers survive.  

It’s true that the problems facing the newspaper industry go well beyond the scope of the newspaper-broadcast cross ownership rules.  And it’s true that repealing the rules will not, by itself, restore the industry to robust health.

But getting rid of the rules – or even relaxing them a bit as the previous FCC chairman had proposed – might just help a little around the edges.  And if even one newspaper were able to keep publishing as a result, wouldn’t the public interest be better served?

That would be a change we could believe in.

Posted on By Guest Author Robert Corn-Revere, Esq.

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.