Tales of the Sausage Factory

“Updating” Media Ownership Rules — Is That Like Boiling a Frog?

It’s an old cliche that it’s easy to boil a frog. Don’t drop the frog in the boiling water — he’ll just climb out. Drop him in the pot and raise the temperature a little at a time. Before he knows it, he’ll be dead.

We have that with media consolidation and the non-stop relaxation of the rules. But instead of calling it “boiling,” proponents of consolidation call it “updating.” This attempt to describe relaxing the ownership rules to allow more consolidation as “updating,” when the evidence shows that the last round of consolidation kicked off by the 1996 deregulation has been a disaster for the industry and a disaster for democracy, came up again at yesterday’s media ownership hearings.

Powell tried to frame it as a debate about evidence v. “emotionalism.” He lost because the evidence did not justify his efforts to relax the rules. Now FCC Chairman Martin is trying to frame this as “updating” the rules, when a real “update” would mean forcing the biggest companies to sell off assets to scale back to a healthier size.

My analysis below . . .

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Tales of the Sausage Factory

FCC Hearings and Home Court Advantage?

The FCC has now announced the schedule for the first of six public hearings on media ownership to take place outside of Washington DC. According to the official announcement, the FCC will hold two separate hearings in the Los Angeles area next Tuesday, October 3. One at USC from 1:30- 4:30 p.m. and the other at El Segundo High School in El Segundo from 6:30-10:30 p.m.

Of possible interest is the fact that the Mayor of El Segundo, Kelly McDowell, is the brother of Republican FCC Commissioner Robert McDowell. As Commissioner McDowell remarked at his confirmation hearing last spring:

> “My oldest brother, Kelly McDowell, is the mayor of El Segundo, California. And if you’ve ever flown
> into Los Angeles Airport, you’ve flown into my brother’s town.“

It certainly makes sense for McDowell to want to have a hearing in his brother’s home town, and for Martin to acquiesce. For one thing, it will certainly raise the visibility of the hearing for El Segundo residents and local press. It makes getting a community location and local coordination easier. Heck, if my brother were mayor somewhere, I’d want to have a hearing in his town. And, as Robert McDowell observed, it’s close to the airport. Given that the Commissioners will be on red-eye flights going home, that has to be convenient.

On the other hand, it raises obvious concerns about giving pro-consolidation folks a ”home court“ advantage. As Mayor, Kelly McDowell is uniquely positioned to encourage witnesses who will support the current FCC’s policy of relaxing ownership rules while subtly discouraging attendance by folks who might challenge accepted FCC positions.

This puts the pressure on Martin to ensure not merely impartiality, but the appearance of impartiality. After the recent reports that — prior to Martin becoming chair — the FCC suppresed studies demonstrating the negative impacts of media consolidation, public trust for the FCC as an institution interested in an impartial investigation and analysis of the facts is at an all-time low.

Martin has already taken a good first step in neutralizing any accusation of bias. The FCC will have a hearing at the USC in Los Angeles before going out to El Segundo. This same location recently hosted a media ownership event sponsored by media activists and attended by FCC Commissioners Copps and Adelstein, neutralizing any ”home court advantage“ for indusry on at least the first hearing.

But the FCC has yet to announce how it will assign seats or provide ”open microphone“ opportunities at either hearing. Nor has the FCC yet announced its witness lists. A highly suspicious audience will look carefully to see if the ”local leader“ pool is stacked with pro-consolidation witnesses, while local leaders, local business folks and residents opposed to consolidation don’t make the list. It is essential to any appearance of fairness that the FCC announce procedures for getting seats and signing up for speaking opportunities well in advance, and adopt procedures that give as many people as possible a chance to speak.

Martin has repeatedly proven himself a man who plays hardball, but an honest game of hardball. He has demonstrated sophisticated political skills while navigating highly controversial issues. Unlike his predecessor Michael Powell, Kevin Martin has proven time and again that he recognizes the value of meeting with people with whom he disagrees, and actually listening to what they have to say.

But real public hearings that foster genuine public input provide challenges for even the most skilled. That’s why Republicans in this administration have assidulously avoided them, preferring ”town meetings“ filled with supporters and lackeys. The media ownership hearings provide an opportunity for Kevin Martin to show his commitment to real openness — if he can resist the urge to use a ”home court” advanatge.

Stay tuned . . . .

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Tales of the Sausage Factory

FCC Spikes Report Undermining Deregulation

Author’s note. I have significantly reedited this story in light of the fact that Michael Powell denies seeing the report or ordering it purged and that the only source on record states only that the order came from “a senior FCC official.” It is entirely possible that Powell never saw the study, and that someone much lower down the chain took action on his or her own. But this is why we need a thorough investigation.

“Unfortunately, many have turned this critically important policy debate into a political one, substituting personal ideology and opinion for the facts. If we are to craft responsible media policy for the 21st century, everyone involved in this debate must set aside the rhetoric, put the public interest before political interest and focus on ‘just the facts.’”

So wrote Michael Powell in an Op Ed in USA Today in January 2003. Powell was talking about the FCC proceeding to review its media ownership rules. He believed the facts would prove that deregulating the mass media would not harm local news. If anything, I expect Powell believed it would improve it. Doesn’t deregulation make everything better?

But according to this story by the Associated Press, The FCC conducted a study on the impact of deregulation of the media on local news, only to suppress it when it proved deregulation significantly hurts local news.

I do not believe Kevin Martin knew this report even existed before Senator Barbra Boxer (D-CA) sprung it on him yesterday. But I do think Martin has an obligation to investigate and make the results of the investigation known. If the FCC did suppress the report, then it needs to take steps to ensure that such things will not happen again. Because, while Powell was wrong about the impact of deregulation, he was right about one thing: “Only the facts will enable us to craft broadcast-ownership restrictions that ensure a diverse and vibrant media marketplace for the 21st century.”

A bit of back story below.

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Tales of the Sausage Factory

Donna Edwards v. Al Wynn: A Microcosm in More Ways Than One

Art Brodsky has written an excellent blog post at TPMCafe on how progressive lawyer Donna Edwards’ demorcatic primary challenge for incumbent democrat Al Wynn’s seat has gone virtually unnoticed in the press.

Like the much better covered competition between incumbent Joe Leiberman and challenger Ned Lamont, the Edwards/Wynn race pits frustrated progressive democrats against a multi-term incumbent they feel has become too much a part of the system. But for all the coverage of the challenge to Senator Joe Leiberman up in Connecticut, no one in my local media has seen fit to cover exactly the same sort of challenge right here in our own backyard.

This makes the Edwards/Wynn race much more a microcosm for elections around the country. We bemoan the high rate of incumbent reelection, but fail to notice the local media plays in all this. Not by exhibiting famed media bias, but by refusing to cover local races, denying challengers an opportunity to discuss issues with the electorate and denying challengers the exposure they need to overcome the enormous advantage an incumbent has in name recognition and organization.

Contrary to popular belief, we really can do something to give challengers like Donna Edwards a fighting chance to get the exposure they need to make incumbents actively defend their seats and worry about being accountable to voters every two years. The FCC has siting in front of it a rulemaking that would give candidates free air time and force broadcasters to provide substantive coverage of local news.

At the same time, the FCC also has in front of it proposals that would make the situation for political challengers even more difficult. If the Republican majority on the FCC succeeds in relaxing the media ownership rules and allows the same company to own a daily paper, up to three television stations, the local cable system, and radio stations all in the same market, that company decides who gets exposure and who disappears from view. The odds may be bad for challengers now, but they could indeed be much worse.

Details below.

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Tales of the Sausage Factory

Stevens Mark Up — Results

A tie on NN, which translates as a procedural loss (Stevens, as chair, got to break the tie and reject the NN amendment) but a political win. A surprise win on Low Power FM. A surprise minor win on media ownership. No changes on Section 1004, broadcast flag, munibroadband, or white spaces.

Despite the telcos advancing the ball forward, the 11-11 vote has made it very uncertain the bill the will advance to a full floor vote. You can bet the telcos will mount a full court press during the July 4 recess, so intensifying public input remains critical to killing the bill.

Details below.

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Tales of the Sausage Factory

Meanwhile….Back at the FCC….

The forces of media consolidation continue to make headway now that the FCC has a full contingent of 3 Republicans and 2 Democrats. At the June 21, 2006 meeting, the FCC, by 3-2 vote, began the process of reexamining the rules on broadcast media ownership. Last week, the proposed order approving the Adelphia transaction began circulating. It has a very narrow outlook and very meager conditions (so far). Procedural moves by Martin could cut off any further public debate or input as early as this Thursday (July 6).

But all is not yet lost. Chairman Kevin Martin had also intended to adopt a rule requiring cable operators to carry the additional digital streams of broadcasters after the DTV transition, the so-called multicast must-carry. The Dems have long refused to go along unless the Commission also resolved the long-pending proceeding to define new public interest obligations for digital broadcasters. Martin had long made it clear that he did not intend to impose any new obligations on broadcasters, and that as soon as he had a third Republican, he would ram through multicast without public interest obligations.

But it didn’t happen. Robert McDowell, the new Republican Commissioner, refused to go along. Either because he didn’t like the idea, or because he didn’t like getting pushed so hard so quickly on a controversial matter, McDowell refused to vote “yes” on the multicast item. As a result, Martin pulled the item from the June meeting.

What will McDowell do on Adelphia? With the Dems dead set against approval without firmer conditions, Martin needs both Rs to toe the line.

More analysis and speculation below . . . .

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Tales of the Sausage Factory

The Joker in the Stevens Deck — Section 1004

In the dead of night, just before the latest draft of the Stevens bill came out, a helpful Telco lobbyist inserted a little provision to stack the deck in the case of judicial review. Section 1004 of the Stevens draft now places exclusive jurisdiction for all decisions by the FCC in the D.C. Circuit. This includes not just network neutrality, but media ownership, CALEA, wireless issues, anything.

Why would anyone do that you ask? Because the D.C. Cir. is, without doubt, the most activist court in the land when it comes to pressing its vision of media and telecom policy. More than any other court, the D.C. Cir. can be credited with destroying hope of telecom competition in the United States by perpetually reversing and remanding the FCC’s efforts at rulemaking and enforcement until the FCC finally gave up and effectively deregulated. The D.C. Cir. is also responsible for vacating (eliminating by judicial fiat) the rule preventing cable companies from owning television stations where they have cable systems, and overturning much of the FCC’s cable and broadcast ownership limits. Finally, through the legal doctrine known as “standing”, the D.C. Crcuit has done its best to make it impossible for regular people to challenge FCC decisions or bring individual cases on antitrust grounds.

As a practical matter, the move privileges large companies that can afford to litigate in DC. If you are a small company somewhere else, upset about how FCC action impacts your life, you must now get a lawyer familiar with DC practice ad Petition for review here. Of course, the best (and most expensive) firms most likely have deals with your larger rivals, precluding them from taking the case.

So no wonder why the telco lobbyists want this provision. But why on Earth would anyone else? However, because it comes in at the end, while most of the action takes place elsewhere, it may slip by.

So certainly go to Save the Internet and follow the directions on how to call the Senate Commerce Committee and tell them you want real network neutrality. But don’t forget to tell them at the top of your lungs STRIP OUT SECTION 1004! DO NOT GIVE THE DC CIRCUIT EXCLUSIVE JURISDICTION OVER FCC RULES. You’ll be glad you did.

Stay tuned . . . .

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Tales of the Sausage Factory

Stevens Bill Score Card Pre-Mark Up

And what a mark up it will be! Senators have proposed hundreds of amendments (more than 250 at one point, but now down to something over a hundred as deals get done). Meanwhile, the Stevens Bill itself has undergone significant rewrite. You can find the final pre-mark up draft at Jim Baller’s site here. For comparison, you can read about the Democratic substitute here (and my brief summary of same here).

Below, a brief score card on some issues I singled out previously: Opening broadcast white spaces (still in, but facing a “poison pill” amendment from DeMint (R-SC)), program access (dropped by Stevens); Broadcast flag (sadly alive and well); Munibroadband (much improved, thanks in no small part to Jim Baller and the coalition of tech folks, muni orgs, and public interest folks put together by Jim Kohlenberger); and, of course, net neutrality (brought up to COPE levels, with some flavoring added to try to buy off the Christian conservatives).

Most importantly, the telcos have inserted a very nasty joker in the deck, known as “Section 1004.” This Section is designed to rig any post-legislation appeal by giving the D.C. Circuit exclusive jurisdiction over all things FCC. This would be a catastrophe not merely for network neutrality, but for media ownership and just about any other provision of law (and therefore merits a post of its own).

More details below . . . .

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Tales of the Sausage Factory

And Suddenly, the Universe Changed

Well, it’s been busy in the Senate today. While all the Senators were locked down by police on a mistaken report of gunfire, they took the time to confirm Robert McDowell for the FCC. For the first time since Michael Powell left in March 2005, the FCC is now back to 3 Republicans and 2 Democrats.

Over the last year, several controversial items have accumulated that the 2-2 Commission could not agree upon. For example, the long-awaited proceeding on media ownership rules, wherein the FCC will again try to relax or eliminate most ownership limits.

Critically, McDowell’s appointment strengthens Martin’s hand to approve the Comcast/Time Warner/Adelphia merger without significant conditions (whereas just yesterday I was hoping Martin would have to persuade the Democrats to agree to an order). The critical question — does Martin want to approve the merger without conditions? As I have written before, Martin has shown himself willing to stand up to the cable industry in the name of competition. For example, Martin co-authored an Op Ed with Senator McCain supporting imposing a la carte on cable.

So, what will Kevin Martin do? He has a free hand for the first time in his history as Chairman. Once again, I urge you all to help Martin make the right decision by following this link to file a comment urging the FCC to deny the Adelphia Transaction, or impose significant conditions.

As for the rest of the media ownership rules, the AT&T/BellSouth merger, and everything else in the media & telecom world

Stay tuned . . . .

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Tales of the Sausage Factory

Shutting out “controversial” religious ads

Wanted to share with you the ongoing problems folks at United Church of Christ (UCC) (a frequent client of my employer, Media Access Project), are having with getting an advertisement of their on the air. As some of you may recall, the United Church of Christ has found it difficult to buy air time for advertisements urging folks to come to church. Please note, that’s BUY airtime. UCC has not asked for a freebie public service announcement.

Apparently, the message that Jesus ministers to everyone regardless of whether they are mainstream or not is still too “controversial” for mainstream networks. Worse, and further proof of the power of consolidation to supress debate, the cable networks owned or affiliated with the broadcast networks have now joined in the black out of UCC’s controversial “God loves everyone” message. Even the Viacom gay and lesbian network has rejected the advertisement (apparently a church that actually welcomes members of their target audience is too controversial).

For anyone who laughs at the idea that a “free market” will willingly forgo revenues just to block potentially unpopular speech, I advise you to look again. You can read a god op ed on the matter here.

Below I reprint a letter from the Rev. Bob Chase, the head of UCC’s Office of Communication, describing the situation.

As an Orthodox Jew, I am not myself a member of UCC. But I know what it is to be non-mainstream. Anyone who cares about ensuring a free and robust exchange of ideas in this country should ask why UCC can’t find anyone to sell it air time. Is it UCC’s activism on media ownership issues? Their “controversial” decision to appeal to non-mainstream (e.g., gay) parishoners?

And what makes you think the next “controversial” message about your favorite cause will get through?

Stay tuned . . . .

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