[Senate Hearing 108-973]
[From the U.S. Government Publishing Office]
S. Hrg. 108-973
PUBLIC INTEREST AND LOCALISM
=======================================================================
HEARING
before the
COMMITTEE ON COMMERCE,
SCIENCE, AND TRANSPORTATION
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
__________
JULY 23, 2003
__________
Printed for the use of the Committee on Commerce, Science, and
Transportation
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SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
JOHN McCAIN, Arizona, Chairman
TED STEVENS, Alaska ERNEST F. HOLLINGS, South
CONRAD BURNS, Montana Carolina, Ranking
TRENT LOTT, Mississippi DANIEL K. INOUYE, Hawaii
KAY BAILEY HUTCHISON, Texas JOHN D. ROCKEFELLER IV, West
OLYMPIA J. SNOWE, Maine Virginia
SAM BROWNBACK, Kansas JOHN F. KERRY, Massachusetts
GORDON H. SMITH, Oregon JOHN B. BREAUX, Louisiana
PETER G. FITZGERALD, Illinois BYRON L. DORGAN, North Dakota
JOHN ENSIGN, Nevada RON WYDEN, Oregon
GEORGE ALLEN, Virginia BARBARA BOXER, California
JOHN E. SUNUNU, New Hampshire BILL NELSON, Florida
MARIA CANTWELL, Washington
FRANK R. LAUTENBERG, New Jersey
Jeanne Bumpus, Republican Staff Director and General Counsel
Robert W. Chamberlin, Republican Chief Counsel
Kevin D. Kayes, Democratic Staff Director and Chief Counsel
Gregg Elias, Democratic General Counsel
C O N T E N T S
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Page
Hearing held on July 23, 2003.................................... 1
Statement of Senator Cantwell.................................... 77
Statement of Senator Dorgan...................................... 4
Statement of Senator Hollings.................................... 2
Prepared statement........................................... 4
Statement of Senator Lautenberg.................................. 6
Statement of Senator McCain...................................... 1
Witnesses
Bozell III, L. Brent, President and Founder, Parents Television
Council........................................................ 63
Prepared statement........................................... 65
Copps, Hon. Michael J., Commissioner, Federal Communications
Commission..................................................... 7
Prepared statement........................................... 9
Corn-Revere, Robert, Partner, Davis Wright Tremaine LLP.......... 14
Prepared statement........................................... 16
Davis, David J., President and General Manager, WPVI--Channel 6.. 48
Prepared statement........................................... 51
Faber, Barry M., Vice President and General Counsel, Sinclair
Broadcast Group, Inc........................................... 45
Prepared statement........................................... 47
Kaplan, Dean Martin, Director, USC Annenberg Norman Lean Center
and Associate Dean, USC Annenberg School for Communication..... 57
Prepared statement........................................... 59
Appendix
Inouye, Hon. Daniel K., U.S. Senator from Hawaii, prepared
statement...................................................... 93
PUBLIC INTEREST AND LOCALISM
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WEDNESDAY, JULY 23, 2003
U.S. Senate,
Committee on Commerce, Science, and Transportation,
Washington, DC.
The Committee met, pursuant to notice, at 9:35 a.m. in room
SR-253, Russell Senate Office Building, Hon. John McCain,
Chairman of the Committee, presiding.
OPENING STATEMENT OF HON. JOHN McCAIN,
U.S. SENATOR FROM ARIZONA
The Chairman. Good morning. Today, the Committee meets to
examine the much-debated public interest standard set forth in
the Communications Act of 1934. For almost 70 years, academics,
Federal Communication Commission commissioners, courts, and
legislators have discussed the meaning of the phrase, quote,
``public interest, convenience, and necessity,'' unquote. It's
mentioned almost a hundred times in the Communications Act, in
one form or another, but never defined.
Broadcasters are the trustees of the public's airwaves,
and, in return, the government asks, and the statute requires,
that broadcasters serve the public interest, convenience, and
necessity. Critics, including several recent and former FCC
commissioners, have charged that the public interest mandate is
vague, providing neither guidance nor constraint on the
agency's regulatory and licensing actions.
Currently, FCC Chairman Michael Powell has stated, quote,
``The lack of guidance leaves those governed by the standard at
a loss as to how to structure their conduct to be compliant.''
And I dare say it invites mischief by regulators and special
interests to advance parochial interest under the guise of
public interest.
This Committee has spent considerable time examining and
debating the role of ownership limitations to achieve public
interest goals. These issues will continue to be debated. I
want to emphasize, they will continue to be debated.
Today's hearing is to consider whether Congress should use
other means to achieve these goals, such as putting teeth in
the public interest standard. We will discuss the role that
locally originated programming should play in determining
whether a broadcaster is serving the public interest.
Previously, the Commission's rules included local programming
mandates for radio and TV. These requirements were removed in
the early 1980s, because the Commission found that during the
short time the programming mandates were in place, commercial
television broadcasters exceeded the mandates in every program
category, thereby making the mandates unnecessary. Recently,
some legislators have discussed the return of local programming
mandates for broadcasters.
Since 1996, the radio industry has experienced dramatic
consolidation. Multiple witnesses before this Committee have
bemoaned the negative effects they claim consolidation has had
on localism. In January 2000, the FCC sought to promote the use
of radio to provide local content by creating a new class of
radio stations, low power FM radio services. Despite being
supported by state and local governments, community
organizations, musicians, religious groups, and students, low
power FM was severely curtailed by a rider added to an
appropriations bill late in 2000, at the behest of the powerful
broadcast lobby. Broadcasters masqueraded their concern about
competition from these new stations in claims that lower power
FM could cause them interference. Late last month, an
independent study stripped the broadcasters of this disguise by
concluding that these stations would cause virtually no
interference under the FCC's original rules.
While it may be too late to turn back the clock on the
radio consolidation that has occurred, we should take another
look at low power FM as a means of providing the public with a
locally oriented alternative to huge national radio networks.
On today's second panel, we will hear from Dean Kaplan
about the disturbing dearth of coverage of political campaigns
by broadcasters. Next week, I'll be introducing a bill similar
to the one I introduced in the 107th Congress that would
establish minimum requirements for issue-centered or candidate-
centered programming by broadcasters, and would also provide
candidates and national committees of political parties with
vouchers that they may use for political advertisements.
The purpose of the legislation is to increase the flow of
political information in broadcast media, and reduce the cost
to candidates of reaching voters. Our democracy is stronger
when a candidate's success is achieved by ideas and not by
dollars.
I appreciate our witnesses for joining us today, and I look
forward to hearing your views.
Senator Hollings?
STATEMENT OF HON. ERNEST F. HOLLINGS,
U.S. SENATOR FROM SOUTH CAROLINA
Senator Hollings. Thank you very much, Mr. Chairman,
particularly for this hearing, because it is necessary.
When it comes to the public interest, let's go back to the
sinking of the Lusitania in 1912, when I think it was Sarnoff
who got on top of the Wanamaker Building in Philadelphia with
his wireless, receiving the list of those who were saved. And
they gathered around, day and night there, for three days and
three nights.
That immediately led to a overwhelming desire, of course,
for wireless radio. And, by the mid-1920s, under Secretary
Hoover, the Secretary of Commerce, Herbert Hoover, everyone had
a wireless radio set, and everyone was--owned a set and--
operating and jamming.
And I think that's a fundamental that ought not to be
missed, and that is that here is an industry that came to
government and said, ``For heaven sakes, regulate us.'' Because
allowed market forces to do as we choose, no one can get
through. Obviously, the airwaves belong to the public itself,
and it was responded to by the 1934 Act.
But it's very good to read just one section, because those
who don't want to respond and recognize pornography--for
example, as Potter Stewart says, ``You know it when you see
it''--similarly, the public interest, you understand and know
it when you see it. You know what the public interest is. We're
all here, in this room, interested in the public interest. But
here's what they said at the very initiation, the very
beginning days there, of that 1934 Act. The conscience and
judgment of a station's management are necessarily personal.
The station, itself, must be operated as if owned by the
public. It is as if people of a community should own a station
and turn it over to the best man in sight, with this
injunction, ``Manage this station in our interest.'' The
standing of every station is determined by that conception.
Now we had a Chairman come onboard, Mr. Michael Powell, who
ridiculed that conception. He said he didn't know what public
interest was. As far as he could understand or see, it was an
empty vessel. In fact, I think it was the day after, or two
days after, his swearing in, he remarked, at one conference,
that he was waiting for the public interest fairy to appear,
but she never showed up. And he just ridiculed the idea, let
the market forces take over, let them run rampant, the heck
with 25, 35, 45, 55 percent ownership, cross-ownership, or
anything else. He's had the bit in his teeth to ruin a
regulatory commission. There isn't any doubt in my mind.
So I think it's highly important that we come together and
understand that we are operating in the public interest. I've
worked--I notice Mr. Markey over there said 20-some years. I've
been on this Committee since I got in here, in 1966, almost 37
years. And we have worked with John Pastore and all the people,
chairmen, who have come along the line, and everything else.
And, Mr. Chairman, it's particularly to your credit that
you understand this and that we're having a hearing which is
very, very necessary under the circumstances, because we're
suffering from monopolization.
We've got two groups. We've got that one big boy crowd. I
understand one of them's here today, representing Disney. I
wish I could go down and start reading the list of their
ownership. It would take us until roll call, I can tell you
that right now. All of them, whether it's news, AOL/Time-
Warner, Viacom, whatever. Those big boys, they want to
monopolize the country. But there's a similar movement of
station owners around the affiliates that they want to
monopolize the community.
They're saying, over on the House side, if you noticed the
activity there yesterday, that, ``Oh, goodness gracious, let's
cut the 45 back to 35, but don't cut the cross-ownership. No,
no, because we'd like our little monopoly.'' So it's a sort of
sweetheart deal they've got going on over here. And I think
under the leadership of Senator Dorgan, we may stop it.
Thank you.
[The prepared statement of Senator Hollings follows:]
Prepared Statement of Hon. Ernest F. Hollings,
U.S. Senator from South Carolina
Thank you, Mr. Chairman. Today, the Committee renews its focus on
the media marketplace and the fundamental obligation of all broadcast
licensees to serve the public interest. From its very beginnings, our
system of broadcast regulation has been built around our Nation's
collective desire to ensure that the public airwaves are used to serve,
educate, and inform individual citizens in local communities.
In the early days of radio, there were seemingly no limits to this
desire, as broadcasting captured the public imagination and evolved
from a technological novelty into a full-fledged business with mass
audience appeal. But as radio grew, so too did interference. Thus, to
accommodate both the needs of individual citizens to make use of
technology and the needs of broadcasters to protect the commercial
viability of the medium, a compromise was struck whereby government
imposed a licensing scheme limiting the number of available licenses,
but obligating each licensee, first and foremost, to use this privilege
to meet the civic needs of local communities.
Accordingly, unlike other of their corporate kindred, broadcasters
have always existed as public fiduciaries--prohibited from owning the
public airwaves but granted the right to use certain frequencies for
limited periods of time so long as
Such use serves the public interest. As the Federal radio
commission, the precursor to today's Federal Communications Commission
once explained this ``public trustee'' model of broadcasting:
[t]he conscience and judgment of a station's management are
necessarily personal. . . . The station itself must be operated
as if owned by the public. . . . It is as if people of a
community should own a station and turn it over to the best man
in sight with this injunction, ``manage this station in our
interest.'' the standing of every station is determined by that
conception.
Unfortunately, recent action taken by the FCC to give large media
corporations even greater control over the public airwaves threatens to
abandon this long-standing principle.
Since the FCC's ill-fated decision on June 2, we have seen a
torrent of citizen outrage aimed at rule changes that will let big
media get bigger, will allow programming decisions made in New York and
Hollywood to trump community standards, and will reduce the number of
diverse voices available in local communities.
As the American public continues to digest details of the FCC
proposal, opposition to the FCC's plan appears to be growing. Indeed,
according to a recent poll conducted by the Pew Research Center, by a
margin of roughly 10 to 1 (70 percent to 6 percent), Americans who have
heard about the FCC's rules changes resoundingly believe that the
impact on our country will be negative, not positive.
Moreover, the direction in which the FCC's decision heads is all
the more disheartening given the telltale signs in today's media
marketplace that consolidation is fueling a ``race-to-the-bottom'' with
regard to broadcast programming. Parents are increasingly frustrated by
the constant stream of lurid, inappropriate material broadcast on
television and spewed out by radio shock jocks. Similarly, network
programmers continue to demonstrate a careless disregard for the well-
being of children as programs increasingly rely on graphic and
excessive violence in an attempt to boost ratings points.
Mr. Chairman, today's hearing gives this committee an important
opportunity to remind broadcasters that there is a difference between
programming that serves the public interest and programming that
attracts the most public attention. The obligation to serve the public
interest extends to the entire public and not just the male, 18 to 30
demographic so coveted by Madison Avenue.
Accordingly, in light of the central role that our broadcast media
play in keeping government and business accountable to the American
people, in educating our children, and in supporting the values of
deliberative democracy, I welcome our examination of current public
interest obligations and look forward to the testimony of the witnesses
and to their answers to our questions.
The Chairman. Our leader.
[Laughter.]
STATEMENT OF HON. BYRON L. DORGAN,
U.S. SENATOR FROM NORTH DAKOTA
Senator Dorgan. Mr. Chairman, I always feel horribly
inadequate following both you and also Senator Hollings. You've
now been on the Committee for--how many years is it? Thirty-
seven years?
Senator Hollings. Yup.
Senator Dorgan. IYou've now been on the Committee for 37
years. But over those 37 years, I was reflecting, as Senator
Hollings was speaking, both under Democrat and Republican
Administrations, I think the American public has dis-served by
decisions of the Federal Communications Commission, and
especially now. We've reached kind of the apex of this
irresponsibility. Instead of localism and public interest
representing the timeless truths of what we have licensing for
the airwaves to accomplish, localism and public interest are
sort of treated as hopelessly old-fashioned virtues or values.
The FCC is making a horrible mistake. They are producing
rules that will further enhance concentration, this galloping
orgy of concentration and mergers. And I may be hopelessly old-
fashioned, but I believe that when the American public owns the
airwaves, it has a responsibility to license them with
restrictions, and those restrictions say that part of the
requirement to use these airwaves that belong to the American
public is that they be used in the public interest and that
there be localism, diversity, and competition associated with
it. Frankly, we've gotten so far away from that, it's hard to
describe.
Now, there are some good things going on out there. I was
north of Grafton, North Dakota, in a huge storm, one of the
most aggressive storms I've ever seen. And the young man that
runs the radio program, the news program, in Grafton, KXPO, he
was out in his car on hilltops in the middle of that storm
broadcasting where the tornadoes were touching down. That's
localism at its best.
A week ago, 2 weeks ago, at Bismarck, KFOR, exactly the
same thing, one of the more aggressive storms I've seen. Two
people out making their discussions with--or providing
discussion with the public about where the storm was moving,
what was happening, the size of the hail, the amount of wind,
and tornado sightings. KFGO, in Fargo, with respect to the 1997
flood, wonderful public service. All of that is localism at its
best.
But we've gotten so far away from that. We now have voice
tracking, people pretending they're in a city, broadcasting,
when, in fact, they're not. You know the description of Minot,
at 2:00 in the morning, when the anhydrous-ammonia car goes off
the track, explodes, and envelopes the city in a plume of
deadly gas, and they call the radio station--nobody's home. You
know, the same company owns six stations, all six commercial
stations, in that city. There's so much wrong with what's going
on. And at the root of it, I think, is that we've failed to
discuss the genuine issues of public interest and localism.
What should we expect, and what should be required with respect
to broadcasting?
We ought to bring back the fairness doctrine. Frankly,
people think Congress got rid of that. We didn't. The FCC got
rid of the fairness doctrine. We tried to reinstate it, and
President Reagan vetoed the bill. But the fairness doctrine
ought to be reinstated. The Supreme Court, in a redline case,
said it is the right of the viewers and listeners, not the
right of broadcasters, which is paramount.
And, finally, we're going to have some testimony today
about another aspect of localism that I think is very
important, and that is local standards. And something that's
produced in Hollywood or New York, and they say, ``You must
carry this in your community,'' and I'd just encourage all of
you to take a look at the dialogue in Mr. Bozell's testimony,
which I read last night, over one of the networks that goes out
about a plot, on one of the major networks, about a band of
thugs trafficking in horse semen, hiring a prostitute to
perform a sex act with a horse to extract semen from the horse,
and then Mr. Bozell will describe the dialogue in this piece of
trash. And the fact is, many of these local stations cannot
refuse to carry it, because if they do, there will be financial
consequences and they could lose their affiliation with the
network. This is the sort of thing that I think also moves far
away from localism.
And I'm really--Mr. Chairman, I didn't mean to take this
much time, but thank you for holding a hearing on this. It has
been ignored far too long. Your attention to it is something I
deeply appreciate. And I say the same to Senator Hollings.
Perhaps, with this attention, we're going to make some progress
on these issues.
The Chairman. Thank you. We'll certainly look forward to
Mr. Bozell's testimony.
[Laughter.]
The Chairman. Senator Lautenberg?
STATEMENT OF HON. FRANK R. LAUTENBERG,
U.S. SENATOR FROM NEW JERSEY
Senator Lautenberg. Thanks, Mr. Chairman.
And I'm kind of pleased to join the chorus here of those
who express the concern that we do here about localism and what
takes place. And this hearing, Mr. Chairman, I think is
crucial. And the public interest obligation of broadcasters
have been clear over the years. But, as I reviewed the
materials to prepare for this hearing, it appears equally clear
that the obligations are not being met.
According to recent studies, the average American now
spends 24 minutes a day reading, over 3 hours a day listening
to the radio, and over 4 hours a day watching television. Fewer
than one half of all U.S. households read the daily newspaper.
People rely on TV and radio to find out what's going on.
Children spend a bit more time reading, 44 minutes, and that's
because they have to do their homework. But that, too, pales in
comparison with the 6 hours they spend each day with electronic
media.
So the broadcasters have our attention, and because the
government grants them a license to use part of a public
resource, the airwaves, they're supposed to operate as a public
trustee. But it appears that fewer and fewer broadcasters are
operating as a public trustee, and the FCC is giving them a
free pass.
We're going to hear testimony today that programming
diversity is on the decline. We'll hear that local news is
often being produced, as Senator Dorgan mentioned, at a remote
location, but the local audience isn't being told that. We're
going to hear that the number of hours of educational
programming for children is dropping, especially at stations
that are part of media duopolies. And we're going to hear that
local TV coverage of public-policy issues and politics is
becoming nonexistent at the same time that stations are taking
in a billion dollars in potential advertising revenue.
As dependent as we are on running these ads, I doubt that
anyone here would suggest that they are a substitute for civic
debate. Our democracy, as Thomas Jefferson pointed out, depends
on a well-informed electorate. If we're going to rely on TV and
radio to be informed, the trends that I've just mentioned are
truly worrisome.
And I look forward to hearing from our witnesses about
whether and how these trends might be reversed.
And, Mr. Chairman, before I close, I note the long service
of my colleagues on the left here, and I'm here five, six
months, and it's really interesting, I can tell you, what takes
place.
Thank you very much, Mr. Chairman.
The Chairman. Thank you, Senator Lautenberg.
Our first witness is the Honorable Michael Copps,
Commissioner of the Federal Communications Commission. I would
note that we invited Republicans members, appointed members, of
the Commission to testify today. All declined to do so.
Welcome, Commissioner Copps, and we--I note you have a very
long statement. I hope you'll summarize, so we'll have time for
questions, as well as an additional panel.
Welcome, Commissioner Copps.
STATEMENT OF HON. MICHAEL COPPS, COMMISSIONER, FEDERAL
COMMUNICATIONS COMMISSION
Dr. Copps. I will.
Mr. Chairman, Senator Hollings, Senator Dorgan, Senator
Lautenberg, as always I am honored to come home to the Senate.
I'm particularly indebted to Chairman McCain and Senator
Hollings for holding this hearing on a subject that too often
doesn't get the attention it deserves.
My time is short. I don't think you've invited me here to
deliver a history lecture or a philosophical discourse on the
public interest, so I will just reaffirm, at the outset, the
promise that I made to you when I first came up here and
appeared before this Committee, that I would make the public
interest the centerpiece of my commitment as a Commissioner.
The public interest is important, not just because I find
it personally appealing, and I do, but because it's the
cornerstone of the law of the land. As you so rightly noted,
Mr. Chairman, the term ``public interest'' appears over 100
times in the communications law. I take Congress seriously when
they tell me something once. When they tell me 112 times, I
stand at attention.
Where does the Commission go from here? If the structural
bars to media consolidation are going to come down, we need to
ask, ``What's left to protect the public interest?'' I have
some suggestions. I'm going to be asking my colleagues at the
Commission to consider the following six things.
First, we need an effective license renewal process. As
national conglomerates gobble up local stations, we need, more
than ever, a process to ensure that licensees still serve the
public interest, still serve their local communities. An honest
to God and properly designed license renewal process would
avoid micromanagement in favor of a comprehensive look at how a
station has discharged its public responsibilities over the
term of its license.
This process should include going out and hearing from
members of the community. That hasn't happened for years. As we
begin the next round of license renewals for radio this fall,
and for television in 2004, I intend to hold a series of town
meetings in regions where renewals are due, in order to hear
from communities how their airwaves are being used. How can we
know if licensees are serving their local communities without
hearing from the local community? I hope my colleagues will
join me in this outreach effort. At a minimum, I hope that I
will receive support, in terms of funding and staff, so that we
can make these town meetings maximally productive.
Second, we need what I call ``community discovery.'' I
believe the public interest would profit immeasurably by some
meaningful but user-friendly successor to the old ascertainment
process. We need absentee license holders to understand the
needs of the communities they serve. Let's get Clear Channel
and other large station owners out among the people in the
communities where they own stations. As media conglomerates
grow ever bigger and control moves farther away from the local
community, doesn't it make sense to require, as a condition of
renewal or of new acquisitions, that the owners come to town
and visit with their listeners and try to gauge their interest
in what kind of programming they should be producing?
Third, we must, at long last, move against indecency on the
airwaves. Every day, I hear from parents who are fed up with
the patently offensive programming coming their way so much of
the time. I have referred in the past to a race to the bottom.
I'm beginning to wonder if there even is a bottom.
We need a number of public interest actions here. I will
propose a proceeding to consider whether there is a link
between increasing consolidation, on the one hand, and
increasing indecency in our airwaves, on the other, and steps
we should take to address any such problems. The Commission
utterly failed to analyze this issue before its recent vote.
That was an abdication of its responsibility. We voted without
understanding how consolidation was going to affect our kids.
The Commission also needs to do a far better job of
enforcing the laws against indecency on our airwaves. The
process by which the Commission enforces these laws has long
put inordinate responsibility on the complaining listener.
That's wrong. It's the Commission's responsibility to
investigate complaints.
I also believe, as I suggested in the recent WKRK-FM case,
that we need to send some of these more outrageous
transgressions to administrative hearing for license
revocation. Taking some blatant offender's license away would
let everyone know that the FCC has, at long last, gotten
serious.
Also on indecency, I have long suggested, without much
success, that broadcasters voluntarily tackle the issue of
indecent programming. I'd like to see my friends, Eddie Fritts,
of the NAB, and Robert Sachs, of the NCTA, convene a TV summit
to tackle the issue of protecting our kids from broadcast
indecency. And you know what? A lot of their members agree with
me.
It's also time for us to step up to the plate and tackle
the wanton violence our kids are served up every day.
Compelling arguments have been made that excessive violence is
every bit as profane, indecent, and obscene as anything else
that's broadcast.
I don't know the precise mix of legislative initiative and
regulatory enforcement and voluntary industry action that we
need here, but millions of Americans are asking us to get on
the job. I'm pleased that this Committee is on the job. I hope
your Commission will get on the job soon.
Fourth, we need to do more to encourage minority and female
participation in our media. I question how we can have
viewpoint diversity without ownership diversity, yet the
minority ownership figures are all heading in the wrong
direction, arguably as a result of consolidation. Again, we
should have acted before we voted.
In any event, this has to go on the front burner right
away. I know that Chairman McCain, all the other Members here
today, have tremendous interest in this issue, and I commend
them for it. We must never forget that America's strength,
after all, is its diversity, and our media have an obligation
to reflect that diversity and to nourish the diversity.
Fifth, the Commission should forthwith address the issue of
DTV public interest obligations. I see the light's on there.
I'll just say this matter was teed up long, long ago. It's
laying fallow at the Commission. We need to get those
proceedings that are latent settled so that broadcasters know
what public interest obligations are expected of them, and the
American people know what public interest obligations those
broadcasters will be performing.
Sixth, and finally, I believe that we must confront the
substantial reduction in independent programming. Now that
we're further loosening the concentration limits horizontally,
we should address whether there's a need for more independent
programming to ensure that we do not end up with nationally
vertically integrated conglomerates that control not only the
distribution, but the content, too.
So I present these proposals in hopes that we can build on
the dialogue that has begun with media ownership. There are no
doubt many other ideas that you will have that we could be
pursuing, but let us begin, at least. In the past months, we
have seen the media issues steam-rolling across this country, a
grassroots issue like we haven't seen in many years. More than
two million Americans have registered their views with the
Commission now.
The right, the left, Republicans, Democrats, concerned
parents, creative artists, religious leaders, civil rights
activists, and labor organizations have united to fight
together on this issue. The American people want action. I look
forward to working with you, Mr. Chairman, and Members of this
distinguished Committee, to try to deliver some action to them.
Thank you.
[The prepared statement of Commissioner Copps follows:]
Prepared Statement of Hon. Michael J. Copps, Commissioner,
Federal Communications Commission
Mr. Chairman, Senator Hollings, Members of the Committee, I am
honored to be here this morning and I am doubly indebted to Chairman
McCain and Senator Hollings, first for holding this hearing on a
subject that doesn't often get the attention it deserves and second,
for inviting me to share some of my perspectives on this critical
issue, and more importantly, to hear yours.
My time is short and I don't think you invited me to deliver a
history lecture on the evolution of the public interest concept or to
ramble on about its philosophical underpinnings. So, I'll just reaffirm
the promise I made to you when I first appeared before this Committee
that I would make the public interest the centerpiece of my commitment
as a Commissioner. The public interest is important not just because I
find it personally appealing--which I do--but because it's the
cornerstone of the law of the land. My staff and I did a quick count
and found that the term ``public interest'' appears approximately 112
times in the Communications Act. I take Congress seriously when it
tells me something once. When it tells me 112 times, I stand at
attention.
I don't buy, and I never understood, the argument that the public
interest is an empty vessel. We need look no further than the core
principles of the Communications Act to find the oxygen that breathes
life and substance into the public interest. For example, in
telecommunications, Congress told us to promote consumer choice through
competition and to ensure universal service so that all Americans have
access to the communications networks. When it comes to media,
communications law means localism, diversity and competition.
The statute further tells us that the airwaves belong to the
American people. No broadcast station, no company, no single individual
owns an airwave in America; the airwaves belong to all the people.
Corporations are given a temporary right to use this public asset and
even to profit from that use. In return, we direct these corporations
to act as public trustees and to serve the public interest.
As Members of this Committee know, I am deeply troubled at the
direction of the Commission's vote on June 2 to loosen the media
ownership rules and caps. I had the opportunity to detail my objections
on both the substance and the process of that decision when I appeared
before this Committee on June 4. As that decision approached, I saw two
divergent paths. Down one road was a reaffirmation of America's
commitment to local control of our media, diversity in news and
editorial viewpoint, and the importance of competition. This path
beckoned us to update our rules to account for technological and
marketplace changes, yes, but without abandoning core values going to
the heart of what the media mean in our country. On this path we would
also reaffirm that FCC licensees have been given very special
privileges and that they have very special responsibilities to serve
the public interest.
Down the other path was more media control by ever fewer corporate
giants. This path would surrender awesome powers over our news,
information and entertainment to a handful of large conglomerates. Here
we would treat the media like any other big business, trusting that in
the unforgiving environment of the market, the public interest will
somehow magically trump the urge to build private power and private
profit for a privileged few. On this path we would endanger time-tested
safeguards and time-honored values that have strengthened the country
as well as the media.
I believe that with the June 2 vote, the majority of the Commission
took the latter--and in my mind, the wrong--road. The decision allows
the giant media companies to exert massive influence over some
communities by wielding up to three TV stations, eight radio stations,
the already monopolistic newspaper, and potentially the cable system.
It allows each television network to buy up even more local TV stations
to cover 45 percent of the national television audience--and if you
throw in the UHF discount, potentially up to 90 percent. Newspaper-
broadcast cross ownership is henceforth apparently acceptable in 179 of
210 markets, and duopoly gets the green light in up to 162 of them. One
broadcaster who is trying to figure out exactly what our new rules mean
has told me that his preliminary numbers indicate that a single company
could own up to 370 stations in 208 of the 210 markets in this country.
The impact is even more dramatic when considered on a state-by-state
basis. For example, in Texas, one company could own 33 television
stations, the major paper in Houston, Dallas, San Antonio, and El Paso,
plus numerous radio stations. That company might also own cable systems
and cable channels and perhaps be the dominant Internet provider, too.
Where are the blessings of localism, diversity and competition here? I
see centralization, not localism; I see uniformity, not diversity; I
see monopoly and oligopoly, not competition.
Rather than spending my few minutes this morning further going over
my objections to both the substance and process of the decision or the
events leading up to the media concentration vote, I would like to talk
about where we go from here. This Committee, other Members of the
Senate, and now the House of Representatives are actively involved in
deliberations over the June 2 decision, and I will be following what
happens here with great interest. And hope. The courts will also no
doubt be involved.
These ownership limits were about the last safeguards remaining
against the rising tide of media concentration. This is only the
latest, although perhaps most radical, step in a twenty-year history of
weakening public interest protections. Step by step, rule by rule, we
have allowed the dismantling of these protections and flashed a bright
green light to the forces of consolidation. The Commission has allowed
fundamental protections of the public interest to wither and die,
relying instead on private profit as a proxy for the public interest.
Requirements that we once had like ascertaining the needs of the local
audience, requiring a rigorous license renewal process, providing
demonstrated diversity in programming and the teeing up of
controversial issues have gone by the boards. Relics, seemingly, of a
distant past.
The Commission had also cut back and then eliminated important
structural regulations that limited both horizontal (or distributional)
concentration and vertical (or production) concentration, so that the
same network distributing programs increasingly owned them. Nowadays,
content and distribution increasingly report to the same master. On top
of all this, we come now on June 2 and further weaken the horizontal
caps, unleashing what many experts expect to be a great ``Gold Rush''
of swaps, mergers, and acquisitions. ``Corporate Cupid,'' one fund
manager called it during the high-powered meeting of media moguls in
Sun Valley the other day. ``Big-lovemaking, big deals out of this
thing. You are going to see a lot,'' he said. Well, I don't mind
brokers being brokers--that's what they're supposed to do. But I do
wonder who is supposed to be America's broker in all this. Somehow I
had the idea, maybe a little quaint since June 2, that the FCC had a
role in all this. But we punted, and now I think a lot of it is up to
you ladies and gentlemen of the Congress.
So, the question is, where does the Commission go from here? If we
are going to take down the structural bars to media consolidation, then
we'd better try to put some vitality back into the public interest. I
am totally convinced this needs to happen. Accordingly, I will be
asking my colleagues at the Commission to consider the following:
1. An Effective License Renewal Process: As more national
conglomerates gobble up local stations, we need a process to
ensure that licensees are serving their local communities. As
one part of this effort, we should establish an effective
license renewal process under which the Commission would once
again actually consider the manner in which a station has
served the public interest when it comes time to renew its
license. The Commission formerly did that. But the system has
degenerated into one of basically post-card license renewal.
Unless there is a major complaint pending against a station,
its license is almost automatically renewed. A real, honest-to-
goodness and properly-designed license renewal process,
predicated on advancing the public interest, would avoid micro-
management on a day-to-day basis in favor of a comprehensive
look at how a station has discharged its public
responsibilities over the term of its license.
As part of the license renewal process, I believe it is important
to go out and hear from members of the community. But that
hasn't happened for years. It's time for that to change. As we
begin the next round of license renewals for radio this fall
and for television in 2004, I intend to hold a series of town
meetings in regions where renewals are due in order to hear
from communities how their airwaves are being used. How can we
know if licensees are serving their local communities without
hearing from the local community? I intend to get outside the
Beltway to listen and to learn.
I hope my colleagues will join me in this outreach effort. At a
minimum, I hope that I will receive support in terms of staff
and funding so that we can make these town meetings maximally
productive.
2. Community Discovery: The Commission should not be the only
listening to the people. Let's get Clear Channel and other
large station owners out among the people in the communities
where they own stations. I believe the public interest would
profit immeasurably with some meaningful, but user-friendly,
successor to the old ascertainment process. As media
conglomerates grow ever bigger and control moves further away
from the local community, doesn't it make sense to require, as
a condition of renewal or new acquisitions, that the owners
come to town and visit with their listeners and viewers to
learn about the problems, needs, and issues facing the local
community, and understand what the people there really want to
see and hear in their programming? An occasional visit to town
by absentee station owners is not what I would call localism at
its best, but at least it's something. And the owners would
then tell the Commission if and how they followed through.
3. Eliminate Indecency on the Airwaves: Every day I hear from
Americans who are fed up with the patently offensive
programming coming their way so much of the time. I hear from
parents frustrated with the lack of choices available for their
children. I even hear from many broadcast station owners that
something needs to be done about the quality of some of the
programming they are running. I've referred to a ``race to the
bottom,'' but I'm beginning to wonder if there even is a bottom
to it. How does this serve the public interest?
We need a number of actions here.
First, I will propose a proceeding to consider whether there is a
link between increasing consolidation and increasing indecency
on our airwaves and steps we should take to address any such
problems. In its recent decision, the Commission failed to
analyze this issue. Has consolidation led to an increase in the
amount of indecent programming? Intuitively, it makes sense,
but I don't pretend to know whether there is a causal effect or
a correlation or what. When programming decisions are made on
Wall Street or Madison Avenue, rather than closer to the
community, do indecency and excessive violence grow more
pervasive? We need to know the answer to this question. I
believe we had no business voting on June 2 without having
visited this matter and amassing at least a halfway credible
record as to whether all this media concentration has
concentrated a lot of smut on our kids. We owe it to our
children, and their parents, to explore this question before
voting on whether to allow more consolidation.
Second, the Commission needs to do a far better job of enforcing
the laws against indecency on our airwaves. The process by
which the FCC has enforced these laws has long placed
inordinate responsibility upon the complaining citizen. That's
just wrong. It is the Commission's responsibility to
investigate complaints that the law has been violated, not the
citizen's responsibility to prove the violations.
I also believe, as I suggested in the recent WKRK-FM case, that
we need to send some of the more outrageous transgressions to
administrative hearing for license revocation. Taking some
blatant offender's license away would let everyone know that
the FCC had finally gotten serious about its responsibilities,
and I think we would see an almost instantaneous slamming on of
the brakes in the race to the bottom.
Third, I have long suggested, without much success, that
broadcasters voluntarily tackle the issue of indecent
programming. Many of you will remember the Voluntary Code of
Broadcaster Conduct that for years and years saw the industry
practicing some self-discipline in the presentation of sex,
alcohol, drug addiction and much else. It didn't work
perfectly, but at least it was a serious effort premised on the
idea that we can be well-entertained without descending into
that race for the bottom. I'd like to see my friends Eddie
Fritts of the National Association of Broadcasters and Robert
Sachs of the National Cable and Telecommunications Association
convene a TV summit to tackle the issue. And you know what? A
lot of their members agree. It wouldn't be easy, but it would
certainly be welcomed by the American people.
It is also time for us to step up to the plate and tackle the
wanton violence our kids are served up every day. Compelling
arguments have been made that excessive violence is every bit
as indecent, profane and obscene as anything else that is
broadcast. Over the years, dozens of studies have documented
that excessive violence has hugely detrimental effects,
particularly on young people. I don't say this is a simple
problem to resolve, because it is not. I do say the issue has
gone unaddressed for too long.
I don't know what the precise mix of legislative initiative,
regulatory enforcement and voluntary industry action should be
here, but millions of Americans are asking us to get on the
job, and I am pleased that this Committee is on the job. Today
we have the best of television and undeniably the worst. When
it is good, it is very, very good; and when it is bad, it is
horrid. It's not what the pioneers of the great broadcast
industry had in mind when they brought radio and television to
us.
4. Minority and Female Participation: The Commission in the recent
media ownership decision promised to initiate a proceeding to
increase the participation of minorities and women in our
media. I was troubled that in reaching that decision, the
Commission did not even attempt to understand what further
consolidation means in terms of providing Hispanic Americans
and African Americans and Asian-Pacific Americans and Native
Americans and women and other groups the kinds of programs and
access and viewpoint diversity and ownership and career
opportunities and even advertising information about products
and services that they need. But the Commission moved forward
notwithstanding my objection. Now that the vote has taken
place, we must undertake and expeditiously complete a
proceeding to increase opportunities for minorities and women.
I know that Chairman McCain and other Members of this Committee
have tremendous interest in this issue and I commend them for
it. We must never forget that America's strength is, after all,
its diversity. America will succeed in the twenty-first century
not in spite of our diversity, but because of our diversity.
Diversity is not a problem to be overcome. It is our greatest
strength. And our media need to reflect this diversity and to
nourish it.
5. DTV Public Interest: Thanks to this Committee and its counterpart
in the House, the transition to digital television has advanced
on many fronts. And Congress made it clear that the public
interest obligations of broadcasters would continue in the new
digital world. But the FCC has not followed up on its
responsibility to update its rules for those who are given the
right to use spectrum for digital television. We have just
recently managed to get a couple of proceedings, now more than
three years old, dusted off and put out for further comment. We
need to push these to conclusion and take a good, broad look at
this so (1) the American people will know how digital TV will
serve their interests and (2) broadcasters will know and
understand the rules of the road.
6. Independent Programming: I will also propose a proceeding to
examine independent programming on our airwaves. Numerous
commenters urged us to include this in the recent ownership
proceeding but the majority felt it didn't belong there. I
disagreed. But now that we are further loosening the
concentration limits, we should address whether there is a need
for independent programming requirements to ensure that we do
not end up with national vertically integrated conglomerates
that control the distribution channels and all the content we
see and hear. Network ownership of the full range of prime time
programming constrains competition, consigns independent
production to oblivion or, at best, minor and marginal roles,
cripples the production of diverse programming, and also
entails widespread job losses for workers, including creative
artists, technicians and many, many others.
Members of this distinguished Committee, I present these proposals
in the hope that we can build on the dialogue that has begun with media
ownership. In the past months, we have seen this issue steamrolling
across this country--a grassroots issue like we haven't seen in many
years and one that developed without the FCC doing its part to spark it
or Big Media doing its part to cover it at all adequately.
More than two million Americans have registered their views with
the Commission now--more than for any proceeding in our history. In
these times when many issues divide us, citizens from right to left,
Republicans and Democrats, concerned parents and creative artists,
religious leaders, civil rights activists, and labor organizations have
united to fight together on this issue. I believe the American people
want action on how their airwaves will be used. Who is going to control
the media? How many--or, rather, how few--companies? How do we protect
local broadcasting, diversity of programming and opinion, and the
ability of local broadcasters to compete with the huge companies?
I read some inspiring words the other night from a former President
who I think understood radio, back when radio pretty much was all of
broadcasting. The spectrum is, he said, ``a public medium and its use
must be for public benefit. The use of a radio channel is justified
only if there is public benefit. The dominant element for consideration
in the radio field is, and always will be, the great body of the
listening public, millions in number, countrywide in distribution.''
That wasn't my hero, FDR, but his Republican predecessor, Herbert
Hoover, serving as Secretary of Commerce in 1925. Those words ring now
truer than ever. I don't know who your heroes are, Members of the
Committee, but I do believe that working together, in bipartisan
fashion, we can once again propel the liberating spirit of the public
interest to the forefront of our great country's media.
Thank you very much for this opportunity and I am anxious to hear
your further thoughts and to try to answer any questions that you may
have.
The Chairman. Yes. Panel Number 2 is Mr. Corn-Revere,
Partner, of Davis Wright Tremaine LLP; Mr. Barry M. Faber, Vice
President and General Counsel, Sinclair Broadcasting Group;,
Mr. Dave Davis, the General Manager of WPVI-DT; Dean Martin
Kaplan, Associate Dean and School Director, University of
Southern California, Annenberg School for Communication; and
Mr. L. Brent Bozell, President of Media Research Center,
Parents Television Council and the Conservative Communications
Center. Welcome to the witnesses, and Mr. Corn-Revere, we will
begin with you. Thank you, and welcome.
STATEMENT OF ROBERT CORN-REVERE, PARTNER,
DAVIS WRIGHT TREMAINE, LLP
Mr. Corn-Revere. Thank you, Mr. Chairman, Members of the
Committee. I appreciate your inviting me to testify about
public interest obligations of local broadcasters and the role
the broadcasters play in the delivery of local news and public
affairs programming.
The Chairman. Could you pull the microphone a little
closer, please. Thank you.
Mr. Corn-Revere. Specifically, I have been asked to focus
my testimony on the history and constitutionality of the
broadcast public interest standard as it applies to programming
mandates. Accordingly, my written testimony concentrates on
that history in general and its relationship to First Amendment
concerns. Before I begin, I want to just stress that this
testimony represents my personal views and should not be
attributed to any clients or any other parties.
As has already been expressed this morning, the public
interest standard is the touchstone of authority for the
Federal Communications Commission. The standard was first
adopted as part of the Radio Act of 1927, which created the
Federal Radio Commission. It was perpetuated by the
Communications Act of 1934, when Congress consolidated the
communications regulatory functions with the FCC.
The Communications Act uses many different formulations of
the public interest language in various sections of the law,
and I guess, as has again been mentioned earlier, occurs some
100 times in the act. Like the Radio Act before it, the
Communications Act does not define these terms. I believe
Senator Hollings mentioned that Chairman Powell has said that
the standard is vague.
He's not the only FCC Commissioner who has expressed that
thought. Former FCC Commissioner Glenn O. Robinson has noted
the frequent criticism that the public interest standard is
vague to the point of vacuousness, providing neither guidance
nor constraint on the agency's action. He added that what the
act itself does not define, the legislative history does not
illuminate. Many other Commissioners have made the same point
over the years, including former Chairman Newton Minow.
Before starting law school, I received a master's degree
focusing on broadcast history and regulation, and during my
studies I recall one enterprising graduate student saying that
he was going to finally determine the meaning of the public
interest standard in the Communications Act, and he proposed to
do that by programming every FCC decision ever made into a
program that he was devising, and he would use that process to
determine what the public interest meant.
Now, little did he know that the public interest appears in
every FCC decision. It rarely means the same thing twice in any
two decisions. I really don't know whatever became of that
project.
The very general mandate of the Communications Act has a
special application when it comes to the regulation of
broadcast programming. There is an inherent tension in the
FCC's mandate to regulate in the public interest and the First
Amendment command that Congress shall make no law abridging
freedom of speech or the press. Among other places, this
tension is recognized in section 326 of the act, which
prohibits censorship and expressly withholds from Government
the power to interfere with the right of free speech by means
of radio communications.
Based on this dual obligation, the Supreme Court has
stressed that the First Amendment must inform and give shape to
the manner in which Congress exercises its regulatory power in
this area. It is said that the FCC must walk a tightrope to
preserve the First Amendment values written into the
Communications Act and has described this as a task of great
delicacy and difficulty.
That being said, the FCC historically has directly
exercised greater supervision of broadcast content than would
be permitted in other media, and the Supreme Court in the past
has approved this regulation, although with some notable
exceptions. The Commission has moderated the inherent tensions
in this arrangement by showing a certain degree of restraint
and sensitivity to competing values at stake.
In 1960, the FCC emphasized that in considering the extent
of the Commission's authority in the area of programming, it is
essential for us to examine the limitations imposed upon it by
the First Amendment to the Constitution and section 326 of the
Communications Act.
After an extensive analysis of the meaning of the public
interest, the FCC found that the required constitutional and
statutory balance barred the Government from implementing
programming requirements that were too specific. In response to
proposals to require licensees to present specific types of
programs on the theory that such action would enhance freedom
of expression, rather than to abridge it, the commission
explained that the First Amendment forbids governmental
interference asserted in aid of free speech, as well as
governmental action repressive of it.
The protection against abridgement of freedom of speech in
the press flatly forbids governmental interference, benign or
otherwise. In the past, the Commission has relied upon
processing guidelines, rather than programming mandates, to
reach this kind of balance. Whether or not Congress or the FCC
at the present time could constitutionally adopt more detailed
requirements under the public interest standard is not an easy
question to answer.
To begin with, it's difficult to assess the
constitutionality of content regulations in the absence of a
concrete proposal. Although the prevailing standard for
broadcast regulation articulated in Red Lion has permitted the
Government to regulate broadcast content more intensively than
other media in the past, the courts have never defined just how
far this power might extend. Additionally, it has been 34 years
since the Supreme Court decided Red Lion, a case that it said
was based on the state of commercially acceptable technology as
of 1969. Since then, both Congress and the FCC have found that
the media marketplace has undergone vast changes. For example,
the legislative history of the Telecommunications Act of 1996
suggested that the historical justifications for the FCC's
regulation of broadcasting required reconsideration.
Given these changes, and in light of evolving case law,
which is described in more detail in my written testimony, it
is far from clear how new programming requirements would be
evaluated by reviewing courts.
Thank you, and I would be happy to answer any questions.
[The prepared statement of Mr. Corn-Revere follows:]
Prepared Statement of Robert Corn-Revere, Partner,
Davis Wright Tremaine LLP
Mr. Chairman, and Members of the Committee. Thank you for inviting
me to testify about the public interest obligations of local
broadcasters and the role of broadcasters in the delivery of local news
and public affairs programming.\1\ Specifically, I have been asked to
focus my testimony on the history and constitutionality of the
broadcast public interest standard as it applies to programming
mandates. Accordingly, my written testimony concentrates on the history
of the FCC's public interest standard and its relationship to First
Amendment concerns.\2\
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\1\ This testimony represents my personal views and should not be
attributed to any clients or other parties.
\2\ My testimony draws heavily from Chapter 14 of Zuckman, Corn-
Revere, Frieden and Kennedy, Modern Communications Law (West Group 1999
& Supp.). In addition, I have attached two more recent articles: Avast
Ye Wasteland: Reflections on America's Most Famous Exercise in ``
`Public Interest' Piracy,'' Federal Communications Law Journal 481 (May
2003) and The Public Interest, the First Amendment and a Horse's Ass,
2000 Mich. St.-Detroit Coll. L. Rev. 165 (Spring 2000).
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Broadcast Regulation and the Public Interest
A. The Elusive Public Interest Standard
The public interest standard is the ``touchstone of authority'' for
the Federal Communications Commission (``FCC'').\3\ The standard was
first adopted as part of the Radio Act of 1927, which created the
Federal Radio Commission (``FRC''). Recognizing the importance of the
new medium of communications, the Washington Post described the Radio
Act as the ``most important legislation of the session.'' \4\ The Act
directed the FRC to perform various tasks, including classifying radio
stations, describing the type of service to be provided, assigning
frequencies, making rules to prevent interference, establishing the
power and location of transmitters and establishing coverage areas in a
way that maximized the public good. But this did not address the larger
question of what constitutes ``the public good.'' The FRC took the
position that the Supreme Court eventually would define the public
interest case by case. Nevertheless, it outlined the primary attributes
of the public interest in its policy statements and licensing
decisions.\5\
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\3\ FCC v. Pottsville Broadcasting Co., 309 U.S. 134 (1940).
\4\ See Philip T. Rosen, The Modern Stentors: Radio Broadcasting
and The Federal Government 106 (Greenwood Press 1980).
\5\ E.g., Great Lakes Broadcasting Co., F.R.C. Ann. Rep. 32 (1929),
affd in part and rev 'd in part Great Lakes Broadcasting v. FRC, 37
F.2d 993, 59 App. D.C. 195 (D.C.Cir.), cert. dismissed, 281 U.S. 706,
50 S.Ct. 467, 74 L.Ed. 1129 (1930). The Great Lakes decision
established programming service as one of the public interest criteria
governing radio station renewal. See generally Robert Corn-Revere,
Economics and Media Regulation, in Media Economics Theory and Practice
71-90 (Alexander, Owers & Carveth, eds, 1993).
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Congress borrowed the expression ``public interest, convenience or
necessity'' from the field of railroad regulation, and its use in the
context of radio regulation was almost accidental. The terms had been
used previously in the Transportation Act of 1920.\6\ Senator Clarence
C. Dill, who drafted the Communications Act, later recounted that ``[a]
young man on the Committee staff had worked at the Interstate Commerce
Committee for several years . . . and he said, 'Well, how about
``public interest, convenience and necessity''? That's what we used
there.' That sounded pretty good, so we decided we would use it, too.''
\7\
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\6\ 41 Stat 456 (1920), codified at 49 U.S.C. Sec. 10901. For a
general discussion see Glen 0. Robinson, The Federal Communications
Act: An Essay on Origins and Regulatory Purpose in A Legislative
History of the Communications Act of 1934 (Max Paglin, ed. 1989) pp. 3-
24.
\7\ Newton N. Minow and Craig L. LaMay, Abandoned In The Wasteland
4 (Hill and Wang: New York 1995).
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By shifting the context of the regulatory mandate from railroads to
radio, however, its meaning became less certain. Judge Henry Friendly
wrote in his classic study The Federal Administrative Agencies that the
use of the ``public convenience and necessity'' standard ``conveyed a
fair degree of meaning'' in the Transportation Act ``when the issue was
whether new or duplicating railroad construction should be authorized
or an existing line abandoned.'' However, the standard ``was almost
drained of meaning'' in the context of radio regulation ``where the
issue was almost never the need for broadcasting service but rather who
should render it.'' \8\
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\8\ Henry Friendly, The Federal Administrative Agencies 54-55
(Harvard University Press 1962). See also Robinson, note 6 supra at pp.
14-16.
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The Communications Act of 1934 uses various formulations of the
``public interest'' language,\9\ and like the Radio Act before it, does
not define the terms.\10\ The absence of specific statutory direction
has been a distinguishing characteristic of communications regulation.
As one contemporary observer wrote regarding the standard as employed
in the Radio Act, ``[p]ublic interest, convenience or necessity' means
about as little as any phrase that the drafters of the Act could have
used. . . .'' \11\ The Communications Act did not improve the
situation. Professor of law (and former FCC Commissioner) Glen 0.
Robinson has noted the frequent criticism that the public interest
standard ``is vague to the point of vacuousness, providing neither
guidance nor constraint on the agency's action,'' adding that ``[w]hat
the Act itself does not define, the legislative history does not
illuminate.'' \12\
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\9\ See, e.g., 47 U.S.C. Sec. Sec. 201(b), 215(a), 319(c) and
315(a) (``public interest''); Sec. Sec. 214(a) and 214(c) (``public
convenience and necessity''); Sec. 214(d) (``interest of public
convenience and necessity''); Sec. Sec. 307(c), 309(a) and 319(d)
(``public interest, convenience and necessity''); Sec. 307(a) (``public
convenience, interest or necessity''); Sec. Sec. 311(b) and 311(c)(3)
(``public interest, convenience or necessity'').
\10\ Office of Communication of the United Church of Christ v. FCC,
707 F.2d 1413, 1429, (D.C.Cir. 1983) (``the [Communications] Act
provides virtually no specifics as to the nature of those public
obligations inherent in the public interest standard''). Despite the
lack of a categorical definition of the public interest, various
provisions of the Act operationally define at least part of what
Congress intended. For example, the Act directs the FCC to provide, to
the extent possible, rapid and efficient communication service,
adequate facilities at reasonable charges, provision for national
defense and safety of lives and property, and a fair, efficient and
equitable distribution of radio service to each of the states and
communities.
\11\ Louis Caldwell, The Standard of Public Interest, Convenience
or Necessity as Used in the Radio Act of 1927, 1 Air Law Rev. 291, 295
(1930).
\12\ Robinson, supra note 6 at 14.
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Accordingly, ``[b]ecause the act did not define what the public
interest meant,'' former FCC Chairman Newton Minow has written,
``Congress, the courts, and the FCC have spent sixty frustrating years
struggling to figure it out.'' \13\ Two prominent communications
lawyers have suggested that ``[p]erhaps no single area of
communications policy has generated as much scholarly discourse,
judicial analysis, and political debate over the course of the last 70
years as has that simple directive to regulate in ``the public
interest.'' \14\ It has also generated conflict. Since broadcast
regulation began, the meaning of the public interest has been the focal
point for the clash of values at the FCC, and at the FRC before it.\15\
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\13\ Minow and LaMay, supra note 7 at 5.
\14\ Erwin G. Krasnow, and Jack Goodman, The ``Public Interest''
Standard: The Elusive Search for the Holy Grail, 50 Fed. Comm.L.J. 606,
606 (1998).
\15\ Newton N. Minow, Equal Time, The Private Broadcaster and the
Public Interest 4 (New York: Athenaeum 1964).
---------------------------------------------------------------------------
But there is another eye-of-the-beholder problem embedded in this
regulatory puzzle. Not only does the public interest standard provide
scant guidance for selecting among particular policy options in a given
instance, there is robust debate as to whether it is a ``good''
standard. At one end of the spectrum, it has been described as the
``intellectual knife of collectivism's sacrificial guillotine.'' \16\
At the other, it has been said that all of the FCC's actions would be
``without meaning'' in the absence of the public interest standard.\17\
As a consequence, the FCC has been ``a storm center of criticism from
the left and the right.'' \18\ One thing that all can agree on,
however, is that the meaning of the ``public interest'' has changed
over time.
---------------------------------------------------------------------------
\16\ Ayn Rand, Capitalism: The Unknown Ideal 121-122 (New American
Library 1966) (``the `public interest' . . . amounted to a blank check
on totalitarian power over the broadcasting industry, granted to
whatever bureaucrats happened to be appointed to the Commission'').
\17\ Newton N. Minow, Commemorative Messages, in A Legislative
History of the Communications Act of 1934 (Max Paglin, ed. 1989) at p.
xvi.
\18\ J Roger Wollenberg, The FCC as Arbiter of ``The Public
Interest, Convenience, and Necessity,'' in A Legislative History of the
Communications Act of 1934 (Max Paglin, ed. 1989) p. 77.
---------------------------------------------------------------------------
The nature of the public interest has fluctuated in part because of
the political outlook of those who administer the law. ``At various
times in its history the Federal Communications Commission has taken a
broad view of its power and responsibility to further what it deemed to
be in the public interest'' while at others it has promoted ``rapid
moves toward deregulation.'' \19\ As former FCC Commissioner Ervin
Duggan put it, ``successive regimes at the FCC have oscillated wildly
between enthusiasm for the public interest standard and distaste for
it.'' \20\ While this has led some to criticize the FCC for being
overly political, Judge E. Barrett Prettyman of the United States Court
of Appeals for the District of Columbia Circuit has described it as
being ``political in the high sense of that abused term.'' \21\ Still,
the inherently political nature of the regulatory mandate creates
special tensions since ``the `public interest' standard necessarily
invites reference to First Amendment principles.'' \22\
---------------------------------------------------------------------------
\19\ Id at 77-78.
\20\ Ervin Duggan, Congressman Tauzin's Interesting Idea,
Broadcasting & Cable, Oct. 20, 1997 at S18.
\21\ Pinellas Broadcasting Co. v. FCC, 230 F.2d 204, 206 (D.C.Cir.
1956), cert, denied, 360 U.S. 1007 (1956) (``Commissions themselves
change, underlying philosophies differ, and experience often dictates
change. Two diametrically opposite schools of thought in respect to the
public welfare may both be rational.'').
\22\BS, Inc. v. Democratic National Committee, 412 U.S. 94, 122
(1973). See Wollenberg, supra, note 18 at 61 (``[I]t seems passing
strange that a society traditionally fearful of government should have
subjected one of its major communications media to sweeping, vaguely
defined administrative powers'').
---------------------------------------------------------------------------
The invitation to apply First Amendment principles, however, has
done little to clarify the statutory mandate or reduce the Commission's
political mood swings. From the beginning, the public interest standard
permitted the government to regulate broadcast content to an undefined
degree while simultaneously prohibiting censorship. Section 29 of the
Radio Act, and Section 326 of the Communications Act, specifically
prohibited ``giv[ing] the licensing authority the power of censorship
over the radio communications. . . .'' \23\ At the same time, the FRC
promulgated as an early statement of policy that programming would be
considered in license renewal decisions, that stations should meet the
``tastes, needs and desires of substantial groups among the listening
public'' as opposed to ``propaganda'' \24\ and that operators that
failed to meet the Commission's expectations could lose their
licenses.\25\ The Commission and the courts resolved this evident
paradox by concluding that the ``application of the regulatory power of
Congress in a field within the scope of its legislative authority'' is
not ``a denial of freedom of speech.'' \26\ Similarly, comparing the
FCC to a ``traffic cop,'' the Supreme Court decided that the Act ``does
not restrict the Commission merely to supervision of the traffic. It
puts upon the Commission the burden of determining the composition of
that traffic.'' \27\ What none of the decisions established, however,
was how far the cop could go in issuing citations, or whether this
power would continue forever.
---------------------------------------------------------------------------
\23\ 47 U.S.C. Sec. 29 (West 1927); 47 U.S.0 Sec. 326.
\24\ Great Lakes Broadcasting Co., 3 FRC Ann. Rep. 32.
\25\ See KFKB Broadcasting Ass'n v. FRC, 47 F.2d 670, 671 (D.C.Cir.
1931) (self-promoting program the ``Medical Question Box'' which aired
on station licensed to a controversial doctor held to violate the
public interest); Trinity Methodist Church, South v. FRC, 62 F.2d 850
(D.C.Cir. 1932), cert. denied, 288 U.S. 599 (1933) (license renewal
denied to radio minister who campaigned against corruption and attacked
the Catholic Church, Jews, local law enforcement officers and public
officials). Compare Near v. Minnesota, 283 U.S. 697 (1931) (injunction
against ``nuisance publication'' that attacked local public officials
struck down as prior restraint).
\26\ Trinity Methodist Church, South, 62 F.2d at 852.
\27\ National Broadcasting Co. v. United States, 319 U.S. 190, 215-
216 (1943).
---------------------------------------------------------------------------
The meaning of the public interest also varies because of the
nature of technology. Congress purposefully left the regulatory
standard open, with the details to be filled in by the FCC over time
because radio was a new and complicated technology. The FCC's broad
powers were based on the assumption that ``Congress could neither
foresee nor easily comprehend . . . the highly complex and rapidly
expanding nature of communications technology.'' \28\ The Supreme Court
described the public interest standard in FCC v. Pottsville
Broadcasting Co. as ``a supple instrument for the exercise of
discretion'' that is ``as concrete as the complicated factors for
judgment in such a field of delegated authority permit.'' \29\
---------------------------------------------------------------------------
\28\ National Ass'n of Regulatory Utility Commissioners v. FCC, 525
F.2d 630, 638 n.37 (D.C.Cir. 1976).
\29\ 309 U.S. at 138.
---------------------------------------------------------------------------
At various times the underlying focus on technological issues has
been made explicit. For example, in 1983 Congress added a new section
to the Communications Act establishing ``the policy of the United
States to encourage the provision of new technologies and services to
the public.'' \30\ The Telecommunications Act of 1996 also placed great
emphasis on promoting innovation and technology. Consistent with these
statutory goals, the Supreme Court has recognized that ``because the
broadcast industry is dynamic in terms of technological change[,]
solutions adequate a decade ago are not necessarily so now, and those
acceptable today may well be outmoded 10 years hence.'' \31\ Similarly,
it had noted in National Broadcasting Co. v. United States that ``[i]f
time and changing circumstances reveal that the `public interest' is
not served by application of the regulations, it must be assumed that
the Commission will act in accordance with its statutory obligations.''
\32\
---------------------------------------------------------------------------
\30\ 47 U.S.C. Sec. 157.
\31\ Democratic National Committee, 412 U.S. at 102.
\32\ 319 U.S. at 225.
---------------------------------------------------------------------------
For all of these reasons, in seeking to apply a general statutory
mandate, the Commission has revised its substantive public interest
requirements over time. In 1941, for example, the Commission decided
that broadcast editorials violated the public interest, only to
reconsider that policy eight years later.\33\ Similarly, in 1945 the
Commission withheld renewal of a radio station license until the
station agreed to sell time for paid editorials to the United Auto
Workers.\34\ Since then, however, the Commission determined that
licensees cannot be forced to sell time to a particular group. This
more current view of the public interest was upheld by the Supreme
Court.\35\
---------------------------------------------------------------------------
\33\ Compare Mayflower Broadcasting Corp. 8 F.C.C. 333 (1941) with
Opinion on Editorializing by Broadcasters, 13 F.C.C. 1246 (1949). See
also Syracuse Peace Council, 2 FCC Rcd. 5043 (1987), aff'd sub nom.
Syracuse Peace Council v. FCC, 867 F.2d 654 (D.C.Cir. 1989), cert.
denied, 493 U.S. 1019 (1990) (fairness doctrine does not serve the
public interest); FCC v. League of Women Voters of California, 468 U.S.
364 (1984) (ban on editorials by public broadcast stations is
unconstitutional).
\34\ E.g., United Broadcasting Co., 10 F.C.C. 515 (1945).
\35\ Democratic National Committee, 412 U.S. 94 (broadcasters may
not be compelled to provide a generalized right of access to discuss
controversial issues).
---------------------------------------------------------------------------
B. Regulation of Broadcast Content
1. The Public Interest Standard and the First Amendment Tightrope
Broadcasters historically have been subject to various forms of
content regulation under the public interest standard of the
Communications Act. The Act imposes certain specific requirements, such
as those for educational programming as well as general public interest
mandates that are unlike regulations that may be applied to the print
media. The Supreme Court upheld this differential level of protection
because of spectrum scarcity in Red Lion Broadcasting Co. v. FCC.\36\
At the same time, Congress recognized that broadcasters ``are engaged
in a vital and independent form of communicative activity'' \37\ and
conferred upon licensees `the widest journalistic freedom consistent
with their public [duties].' '' \38\ For example, Section 326 of the
Communications Act prohibits censorship and expressly withholds from
government the power to ``interfere with the right of free speech by
means of radio communication.'' This denies to the FCC ``the power of
censorship'' as well as the ability to promulgate any ``regulation or
condition'' that interferes with freedom of speech.\39\ These policies
``were drawn from the First Amendment itself [and] the 'public
interest' standard necessarily invites reference to First Amendment
principles.'' \40\ Consequently, the Supreme Court has stressed that
``the First Amendment must inform and give shape to the manner in which
Congress exercises its regulatory power in this area.'' \41\
---------------------------------------------------------------------------
\36\ 395 U.S. 367 (1969).
\37\ League of Women Voters of Cal. v. FCC, 468 U.S. 364, 378
(1984).
\38\ CBS, Inc. v. FCC, 453 U.S. 367, 395 (1981), (quoting
Democratic National Committee, 412 U.S. at 110).
\39\ 47 U.S.C. Sec. 326.
\40\ CBS, Inc., 412 U.S. at 121.
\41\ League of Women Voters of Cal., 468 U.S. at 378.
---------------------------------------------------------------------------
This obvious tension between public interest regulation and
traditional First Amendment concepts has been blunted somewhat to the
extent the FCC approached broadcast licensees with a certain degree of
sensitivity to the competing values at stake. From the beginnings of
broadcast regulation, Congress and the FCC (and its predecessor agency,
the Federal Radio Commission), appeared to approach the business of
regulation with the understanding that constitutional limitations might
prevent too great a reliance on specific programming mandates. One of
the bills submitted prior to passage of the Radio Act of 1927 included
a provision that would have required stations to comply with
programming priorities based on subject matter. However, the provision
was eliminated because ``it was considered to border on censorship.''
\42\ Similarly, the Federal Radio Commission sought to ``chart a course
between the need of arriving at a workable concept of the public
interest in station operation, on the one hand, and the prohibition
laid on it by the First Amendment to the Constitution of the United
States . . . on the other.'' \43\
---------------------------------------------------------------------------
\42\ See FCC v. WNCN Listeners Guild, 450 U.S. 582, 597 (1981).
\43\ Report and Statement of Policy re: Commission En Banc
Programming Inquiry, 44 F.C.C. 2303, 2313 (1960).
---------------------------------------------------------------------------
In 1960 the FCC emphasized that ``[i]n considering the extent of
the Commission's authority in the area of programming it is essential
[first] to examine the limitations imposed upon it by the First
Amendment to the Constitution and Section 326 of the Communications
Act.'' \44\ After an extensive analysis of the meaning of the public
interest, the FCC found that the required constitutional and statutory
balance barred the government from implementing programming
requirements that were too specific. It noted:
---------------------------------------------------------------------------
\44\ Id. at 2306.
[S]everal witnesses in this proceeding have advanced persuasive
arguments urging us to require licensees to present specific
types of programs on the theory that such action would enhance
freedom of expression rather than to abridge it. With respect
to this proposition we are constrained to point out that the
First Amendment forbids governmental interference asserted in
aid of free speech, as well as governmental action repressive
of it. The protection against abridgment of freedom of speech
and press flatly forbids governmental interference, benign or
otherwise. The First Amendment while regarding freedom in
religion, in speech, in printing and in assembling and
petitioning the government for redress of grievances as
fundamental and precious to all, seeks only to forbid that
Congress should meddle therein.\45\
---------------------------------------------------------------------------
\45\ Id. at 2308 (citation omitted).
Such considerations led the Commission to conclude that it could
not ``condition the grant, denial or revocation of a broadcast license
upon its own subjective determination of what is or is not a good
program.'' \46\ To do so, the Commission concluded, would ``lay a
forbidden burden upon the exercise of liberty protected by the
Constitution.'' \47\ In order to maintain a balance between a free
competitive broadcast system, on the one-hand, and the requirements of
the public interest standard on the other, the Commission found that
``as a practical matter, let alone a legal matter, [its role] cannot be
one of program dictation or program supervision.'' \48\
---------------------------------------------------------------------------
\46\ Id.
\47\ Id quoting Cantwell v. Connecticut, 310 U.S. 296, 307, 60
S.Ct. 900, 906, 84 L.Ed. 1213 (1940).
\48\ Id. at 2309.
---------------------------------------------------------------------------
Over the years the FCC has attempted to balance the constitutional
imperative of the First Amendment with the public interest aspirations
of the Communications Act. It has found that while it may ``inquire of
licensees what they have done to determine the needs of a community
they propose to serve, the Commission may not impose upon them its
private notions of what the public ought to hear.'' \49\ In particular,
public interest ``standards or guidelines should in no sense constitute
a rigid mold for station performance, nor should they be considered as
a Commission formula for broadcasts in the public interest.'' \50\ The
Commission emphasized that it did ``not intend to guide the licensee
along the path of programming.'' On the contrary, ``the licensee must
find his own path with the guidance of those whom his signal is to
serve.'' \51\
---------------------------------------------------------------------------
\49\ Id. at 2308.
\50\ Id. at 2313.
\51\ Id. at 2316.
---------------------------------------------------------------------------
Recognizing this delicate balance, courts have noted that the
Commission must ``walk a tightrope'' to preserve the First Amendment
values written into the Radio Act and its successor, the Communications
Act.'' \52\ The Supreme Court has described this balancing act as ``a
task of great delicacy and difficulty,'' and stressed that ``we would
[not] hesitate to invoke the Constitution should we determine that the
[FCC] has not fulfilled with appropriate sensitivity to the interest of
free expression.'' \53\ The Court found that the Communications Act was
designed ``to maintain--no matter how difficult the task--essentially
private broadcast journalism.'' \54\ For that reason, licensees are to
be held ``only broadly accountable to public interest standards.'' \55\
Thus, in Turner Broadcasting System, Inc. v. FCC, the Supreme Court
quoted the 1960 En Banc Policy Statement, and reiterated that
``although `the Commission may inquire of licensees what they have done
to determine the needs of the community they propose to serve, the
Commission may not impose upon them its private notions of what the
public ought to hear.' ''\56\
---------------------------------------------------------------------------
\52\ Democratic National Committee, 412 U.S. at 117; Banzhaf v.
FCC, 405 F.2d 1082, 1095 (D.C.Cir.1968), cert denied sub. nom. Tobacco
Institute, Inc. v. FCC, 396 U.S. 342 (1969).
\53\ Democratic National Committee, 412 U.S. at 102.
\54\ Id. at 120.
\55\ Id.
\56\ 512 U.S. 622, 650 (1994) (``Turner I'') (citation omitted).
---------------------------------------------------------------------------
Specific program requirements generally are considered the most
constitutionally suspect among the requirements imposed by broadcasting
regulations. The United States Court of Appeals for the District of
Columbia Circuit has noted that the ``power to specify material which
the public interest requires or forbids to be broadcast . . . carries
the seeds of the general authority to censor denied by the
Communications Act and the First Amendment alike.'' \57\ Public
interest requirements relating to specific program content create a
``high-risk that such rulings will reflect the Commission's selection
among tastes, opinions, and value judgments, rather than a recognizable
public interest,'' and ``must be closely scrutinized lest they carry
the Commission too far in the direction of the forbidden censorship.''
\58\
---------------------------------------------------------------------------
\57\ Banzhaf, 405 F.2d at 1095.
\58\ Id. at 1096. See also Public Interest Research Group v. FCC,
522 F.2d 1060, 1067 (1st Cir.1975), cert. denied, 424 U.S. 965 (1976)
(``[we] have doubts as to the wisdom of mandating . . . government
intervention in the programming and advertising decisions of private
broadcasters''); Anti-Defamation League of B 'nai B 'rith v. FCC, 403
F.2d 169, 172 (D.C. Cir. 1968) (``the First Amendment demands that [the
FCC] proceed cautiously [in reviewing programming content] and Congress
. . . limited the Commission's power in this area'').
---------------------------------------------------------------------------
In those instances in which Congress has adopted affirmative
obligations--such as the requirement of Section 312(a)(7) of the
Communications Act that broadcast licensees provide ``reasonable''
access to Federal political candidates--it has stressed that the
requirement must be implemented ``on an individualized basis'' and not
on the basis of ``across-the-board policies.'' \59\ The Commission has
never attempted to specify what amount of candidate access is
''reasonable'' and the Supreme Court's First Amendment analysis of the
law assumed that the broadcaster's editorial discretion would be
accorded appropriate deference.\60\
---------------------------------------------------------------------------
\59\ CBS, Inc., 453 U.S. at 387.
\60\ Id. at 396-397.
---------------------------------------------------------------------------
In Turner I, the Supreme Court emphasized ``the minimal extent''
that the government may influence the programming provided by broadcast
stations. The Court noted that ``the FCC's oversight responsibilities
do not grant it the power to ordain any particular type of programming
that must be offered by broadcast stations.'' \61\ Similarly, the
United States Court of Appeals for the District of Columbia Circuit
expressly avoided approving ``a more active role by the FCC in
oversight of programming'' on educational stations because it would
``threaten to upset the constitutional balance struck in CBS v. DNC.''
\62\ The challenge facing broadcast content regulation is the need to
reconcile public interest mandates with constitutional commands and
statutory restrictions.
---------------------------------------------------------------------------
\61\ 512 U.S. 622, 650-652.
\62\ Accuracy in, Media v. FCC, 521 F.2d 288, 296-297 (D.C. Cir.
1975). See also Community-Service Broadcasting of Mid-America v. FCC,
593 F.2d 1102, 1115 (D.C. Cir. 1978) (en banc) (FCC and courts have
generally eschewed ``program-by-program review'' schemes because of
constitutional dangers).
---------------------------------------------------------------------------
2. Affirmative Programming Mandates
As a general matter, broadcast licensees have a public interest
obligation to provide programming that is responsive to the needs of
the community of license.\63\ To ensure compliance, the FCC requires
radio and television broadcasters to file quarterly reports listing the
programs that have provided the station's most significant treatment of
community issues during the proceeding three month period. This list
must include a brief narrative statement describing what issues were
given significant treatment and which programs addressed the particular
issues. The report must list the air date, day part, as well as program
length and title of the programs.\64\ The station's overall performance
in serving the community is evaluated at license renewal time.
---------------------------------------------------------------------------
\63\ 47 C.F.R. Sec. Sec. 73.3526(e)(11)-(12), 73.3527(e)(8) (2002).
\64\ Id.
---------------------------------------------------------------------------
The FCC previously enforced such programming requirements in a far
more detailed way. In its 1960 En Banc Programming Inquiry, for
example, the Commission listed 14 categories of programs generally
considered necessary to serve the public interest, including programs
that provided an opportunity for local self-expression, programs that
used local talent, children's programs, religious programs, educational
programs, public affairs programs, editorials, political broadcasts,
agricultural programs, news, weather and market reports, sports
programs, service to minority groups and (finally) entertainment
programming.\65\ Although the Commission did not prescribe the
transmission of particular programs, noting that the specified
categories should not be considered ``a rigid mold of fixed formula for
station operation,'' it nevertheless concluded that the listed
programming types, provided in some reasonable mix, provided evidence
that a licensee was operating in the public interest.\66\ This was
enforced through the use of formal ascertainment procedures, which
required applicants for broadcast licenses to interview community
leaders in 19 specified categories ranging from agriculture to
religion.\67\
---------------------------------------------------------------------------
\65\ En Banc Programming Inquiry, 44 F.C.C. at 2314.
\66\ Id.
\67\ See Primer on Ascertainment of Community Problems by Broadcast
Applicants, 27 F.C.C.2d 650 (1971).
---------------------------------------------------------------------------
In 1981 the FCC eliminated its rules and policies that required
radio stations to keep program logs and conduct ascertainment of
community problems, imposing non-entertainment programming requirements
and limiting the amount of commercial time.\68\ The FCC similarly
deregulated television, eliminating ascertainment and other
requirements in 1984.\69\ The Commission also simplified the renewal
process, eliminating the detailed program-related questions that had
accompanied the ascertainment process.\70\ Generally, the FCC moved
away from examining the programming formats chosen by broadcast
stations, leaving such decisions to marketplace forces.\71\
---------------------------------------------------------------------------
\68\ Deregulation of Radio, 84 F.C.C.2d 968 (1981), af'd. in part
and remanded in part, Office of Communication of the United Church of
Christ v. FCC, 707 F.2d 1413 (D.C. Cir. 1983).
\69\ Revision of Programming and Commercialization Policies,
Ascertainment Requirements, and Program Requirements for Commercial
Television Stations, 98 F.C.C.2d 1078 (1984); Revisions of Programming
Policies and Reporting Requirements Related to Public Broadcasting
Licensees, 96 F.C.C.2d 74 (1984). See Action for Children's Television
v. FCC, 821 F.2d 741 (D.C. Cir. 1987) (remanding FCC decision to
eliminate commercial guidelines for children's programming).
\70\ See Black Citizens for a Fair Media v. FCC, 719 F.2d 407 (D.C.
Cir. 1983), cert. denied, 467 U.S. 1255 (1984).
\71\ See FCC v. WNCN Listeners Guild, 450 U.S. at 604.
---------------------------------------------------------------------------
C. The Prospect for Expanded Public Interest Mandates
Whether or not Congress or the FCC at the present time could
constitutionally adopt more detailed content requirements under the
public interest standard is not an easy question to answer. As a
threshold matter, it is difficult to assess the potential
constitutionality of content regulations in the absence of a concrete
proposal. Although the prevailing standard for broadcast regulation
articulated in Red Lion has permitted the government to regulate
broadcast content more intensively than other media in the past, the
courts have never defined how far this power might extend.
Additionally, it has been thirty-four years since the Supreme Court
decided Red Lion, a case based on 'the present state of commercially
acceptable technology' as of 1969.'' \72\
---------------------------------------------------------------------------
\72\ News America Publishing, Inc. v. FCC, 844 F.2d 800, 811 (D.C.
Cir. 1988), quoting Red Lion, 395 U.S. at 388. See Meredith Corp. v.
FCC, 809 F.2d 863, 867 (D.C. Cir. 1987) (``the Court reemphasized that
the rationale of Red Lion is not immutable''). See also Banzhaf, 405
F.2d at 1100 (``some venerable FCC policies cannot withstand
constitutional scrutiny in the light of contemporary understanding of
the First Amendment and the modern proliferation of broadcasting
outlets'').
---------------------------------------------------------------------------
Since then, both Congress and the FCC have found that the media
marketplace has undergone vast changes. For example, the legislative
history to the Telecommunications Act of 1996 suggested that the
historical justifications for the FCC's regulation of broadcasting
require reconsideration. The Senate Report noted that ``[c]hanges in
technology and consumer preferences have made the 1934 [Communications]
Act a historical anachronism.'' It explained that ``the
[Communications] Act was not prepared to handle the growth of cable
television'' and that ``[t]he growth of cable programming has raised
questions about the rules that govern broadcasters'' among others.\73\
The House of Representatives' legislative findings were even more
direct. The House Commerce Committee pointed out that the audio and
video marketplace has undergone significant changes over the past 50
years ``and the scarcity rationale for government regulation no longer
applies.'' \74\
---------------------------------------------------------------------------
\73\ Telecommunications Competition and Deregulation Act of 1995,
S. Rpt. 104-23, 104th Cong. 1st Sess. 2-3 (Mar. 30, 1995).
\74\ Communications Act of 1995, H. Rpt. 104-204, 104th Cong. 1st
Sess. 54 (July 24, 1995).
---------------------------------------------------------------------------
The FCC has reached similar conclusions over the years. In the mid-
1980s, for example, the Commission ``found that the `scarcity
rationale,' which historically justified content regulation of
broadcasting . . . is no longer valid.'' \75\ Most recently, in
complying with the congressional mandate to conduct a biennial review
of broadcast regulations, the FCC once again found that the media
landscape has been transformed.\76\ It concluded that ``the modern
media marketplace is far different than just a decade ago,'' finding
that traditional media ``have greatly evolved'' and ``new modes of
media have transformed the landscape, providing more choice, greater
flexibility, and more control than at any other time in history.'' \77\
People coming of age in this environment enjoy an ``extraordinary level
of abundance in today's media marketplace'' and thus ``have come to
expect immediate and continuous access to news, information, and
entertainment.'' \78\ Of course, if Congress or the FCC chose to adopt
new public interest requirements, they would be expected to adopt new
legislative or regulatory findings. But any new rules regulating
broadcast content would necessarily implicate the First Amendment, and
reviewing courts would not be required to defer to the policymakers'
findings.\79\
---------------------------------------------------------------------------
\75\ Meredith Corp., 809 F.2d at 867, citing Report Concerning
General Fairness Doctrine Obligations of Broadcast Licensees, 102
F.C.C.2d 143 (1985) (``1985 Fairness Doctrine Report''). See Syracuse
Peace Council, 867 F.2d at 660-666 (discussing 1985 Fairness Doctrine
Report and upholding FCC's decision to repeal the fairness doctrine).
\76\ 2002 Biennial Regulatory Review--Review of the Commission's
Broadcast Ownership Rules and Other Rules Adopted Pursuant to Section
202 of the Telecommunications Act of 1996, FCC 03-127, 4 (released
July 2, 2003) (``Biennial Regulatory Review'').
\77\ Id. at 86-87.
\78\ Id. 88.
\79\ Playboy Entertainment Group, 529 U.S. at 817-818; Sable
Communications of California, Inc. v. FCC, 492 U.S. 115, 129 (1989)
(``Deference to a legislative finding cannot limit judicial inquiry
when First Amendment rights are at stake.'') (citation omitted).
---------------------------------------------------------------------------
In this context, it is not easy to predict how the Supreme Court
might treat new content regulations. It has been a long time since the
Court has directly confronted the constitutional status of
broadcasting, and where the issue has come up in dictum, its
endorsement of Red Lion has been lukewarm at best. In Turner I, for
example, the Court rejected the government's bid to extend the
principles of Red Lion to the regulation of cable television. After
noting the Commission's ``minimal'' authority over broadcast content,
the Court pointed out that ``the rationale for applying a less rigorous
standard of First Amendment scrutiny to broadcast regulation, whatever
its validity in the cases elaborating it, does not apply in the context
of cable television.'' \80\
---------------------------------------------------------------------------
\80\ Turner I, 512 U.S. at 637 (emphasis added).
---------------------------------------------------------------------------
Lower court decisions in this area have reached mixed results. The
case that provides the strongest support for some type of expanded
public interest requirement is Time Warner Entertainment Co. v. FCC,
which used a straightforward application of Red Lion to uphold a 1992
Cable Act provision requiring Direct Broadcast Satellite (``DBS'')
operators to set aside four to seven percent of their channel capacity
for ``noncommercial programming of an educational or informational
nature.'' \81\ The panel reasoned that the provision ``should be
analyzed under the same relaxed standard of scrutiny that the court has
applied to the traditional broadcast media.'' \82\
---------------------------------------------------------------------------
\81\ 93 F.3d 957 (D.C. Cir. 1996) (upholding 47 U.S.C.
Sec. 335(b)(1) against a First Amendment challenge).
\82\ Id. at 975.
---------------------------------------------------------------------------
However, a deadlocked court of appeals denied rehearing in that
case, and five judges endorsed a dissenting statement that casts a
shadow over the panel's strong endorsement of Red Lion.\83\ The five
dissenters pointed out that ``[e]ven in its heartland application, Red
Lion has been the subject of intense criticism,'' noting that the
assumptions underlying spectrum scarcity are suspect in light of the
scarce nature of all economic goods.\84\ Judge Williams noted that the
Red Lion Court suggested that the reason for such relaxed treatment
would vanish along with the end of scarcity, and pointed out that, even
in its nascent state, ``[t]he new DBS technology already offers more
channel capacity than the cable industry, and far more than traditional
broadcasting.'' \85\ The dissent further reasoned that the DBS set-
aside requirement for ``educational'' or ``informational'' programming
is content-based, and that ``as a simple government regulation of
content, the DBS requirement would have to fall.'' \86\ In light of the
55 deadlock among the D.C. Circuit judges, the Time Warner case
represents more of a hung jury than it does a constitutional mandate
for new content regulations.\87\
---------------------------------------------------------------------------
\83\ Judge Steven Williams, joined by Judges Edwards, Silberman,
Ginsburg, and Sentelle, sharply questioned the central premises of
extending the constitutional rationale of broadcast regulation. Time
Warner Entertainment Company v. FCC, 105 F.3d 723 (D.C. Cir.)
(Williams, J., dissenting).
\84\ Id. at 724 nn. 1-2.
\85\ Id. at 725.
\86\ Id. at 726.
\87\ Other lower courts have declined to apply the Time Warner
panel's analysis of Red Lion. See Satellite Broadcasting &
Communications Ass'n. of America v. FCC, 146 F. Supp. 2d 803, 823 (E.D.
Va. 2001) (rejecting Time Warner analysis and applying intermediate
scrutiny) (``numerous courts have questioned and/or declined to extend
the Red Lion rationale'').
---------------------------------------------------------------------------
Other cases further suggest that reviewing courts will closely
scrutinize any new regulation of broadcast content. In MPAA v. FCC, the
D.C. Circuit vacated the Commission's video description rules.\88\
Although the court analyzed only the question of whether the FCC had
been given statutory authority to adopt the rules, it explained that it
interpreted the Commission's powers narrowly because any regulation of
programming content ``invariably raise[s] First Amendment issues.''\89\
It expressed no opinion on the constitutional issues, but the thrust of
the holding was that the FCC's general public interest authority over
programming is far less expansive than was previously assumed.
---------------------------------------------------------------------------
\88\ 309 F.3d 796 (D.C. Cir. 2002).
\89\ Id. at 805.
---------------------------------------------------------------------------
The same conclusion follows from the D.C. Circuit's decision in
RTNDA v. FCC, where the court ordered the Commission to repeal the
personal attack and political editorial rules.\90\ There, the court
held that the FCC had the burden to justify rules that ``interfere with
editorial judgment of professional journalists and entangle the
government in day-to-day operations of the media.'' \91\ Although the
court did not decide whether such rules are constitutional or would
serve the public interest, it was unwilling to allow the FCC to
continue to enforce the content restrictions (that already had been
subject to protracted review) while the Commission assessed their
validity.
---------------------------------------------------------------------------
\90\ Radio-Television News Directors Assn. v. FCC, 229 F.3d 269
(D.C. Cir. 2000) (per curiam).
\91\ Id. at 270 (it is ``incumbent upon the Commission to 'explain
why the public interest would benefit from rules that raise these
policy and constitutional doubts') (citation omitted).
---------------------------------------------------------------------------
Conclusion
The First Amendment and the public interest standard require
Congress and the FCC to ``walk a tightrope'' between the enforceable
public obligations of broadcast licensees and the Constitution's
command that ``Congress shall make no law . . . abridging the freedom
of speech, or of the press. . . .'' That task is made more difficult by
rapidly changing technology that alters the assumptions upon which
previous theories of regulation were grounded. It is especially
problematic since the regulations at issue uniquely apply to only one
medium--broadcasting--that is less and less unique in an age of
convergence. Accordingly, it would be prudent for policymakers to
proceed cautiously in this area.
Attachment 1
Attachment 2
The Chairman. Thank you. Mr. Faber.
STATEMENT OF BARRY M. FABER, VICE PRESIDENT AND GENERAL
COUNSEL, SINCLAIR BROADCAST GROUP, INC.
Mr. Faber. Good morning. My name is Barry Faber. I'm Vice
President and General Counsel of Sinclair Broadcast Group.
Sinclair is one of the Nation's largest independent free over-
the-air television broadcasters, owning and/or providing
services to more than 60 television stations in 39 markets
across the country.
At Sinclair, we take our commitment to meeting the locally
based needs of all of our communities very seriously. Each of
our market-based station general managers makes a myriad of
decisions, from media sponsorship of local charitable events to
carriage of community-based programming, from the publicizing
of the local activities to the broadcast of community
calendars, to serving the informational needs of the community
through the presentation of news programming.
I understand that this last topic, news, is the primary
reason Sinclair was invited to participate in today's hearing.
More specifically, the Committee is interested in the
implementation of a centralized news service, News Central,
that Sinclair is currently rolling out to a number of its
markets.
News Central is simply a service pursuant to which nonlocal
news stories, that is, certain national and international news,
are written and produced a single time in a centralized
location for use in a number of stations. Rather than 39
reporters in 39 markets researching, writing, and producing 39
stories on a single national or international news event, the
story is produced a single time for broadcast in our markets.
I am well aware that there are some who criticize News
Central for a variety of competitive or philosophical reasons,
or because they do not understand how News Central works. I
welcome the opportunity to be here to set the record straight
by explaining the significant contributions that News Central
is making to localism.
Nationally, most ABC, CBS, and NBC affiliates have numerous
hours of local newscasts each day across which they can spread
the cost of producing news. In contrast, only a handful of WB
and UPN stations in only the largest markets have any newscasts
at all. As a case in point, News Corporation's UPN-20 and
Tribune's WB-50 here in Washington, D.C., a Top 10 market, do
not have any news.
Many Fox affiliates in medium and smaller markets also do
not have news, and even where they do, it is typically limited
to 1 hour per day. Sinclair has television stations affiliated
with all six of the major networks, ABC, NBC, CBS, Fox, WB, and
UPN, and I believe our levels of news operations have
historically mirrored that of the rest of the industry.
Going forward, however, our News Central model is designed
to achieve certain efficiencies so that we can provide viewers
with more choices for local news, particularly in the smaller
markets, where choices are currently limited. These
efficiencies have been made possible in part by recent
technological advances. News Central will allow Sinclair to
launch local newscasts on Fox, WB, UPN, and independent
stations in medium and small markets, as well as to relaunch
newscasts on Big Three affiliates where we have previously
discontinued local news operations due to financial and
competitive concerns.
Significantly, however, each market served by News Central
will have its own complete, separate, locally based news team,
consisting of reporters, producers, anchors, photographers, et
cetera, and these news rooms will focus 100 percent of their
attention and resources on local news only. As a result, we
believe these local news operations will provide a better
focused and more locally tailored newscast than our
competitors, who will continue to devote local resources to
producing national and international news stories that have no
local impact.
At each News Central station, the local portion of the news
is independently produced by the local staff based on their
decision as to which news is of greatest interest to their
specific community. Then, at a commonly prescribed time, each
of the stations turns the newscast over to the national-
international news desk, at which point the single, centrally
produced news report will be broadcast at each of the stations.
The current economic and advertising climate, combined with
the increasing popularity of national cable news networks, has
not been kind to local news operations. As I referenced
earlier, Sinclair was forced to shut down local news operations
on three Big Three network affiliates between the end of 2000
and the beginning of 2002, and we are not alone. For example,
example, a major network-owned news operation was shut down in
a Top 10 city late last year.
News Central, however, is allowing Sinclair to change
direction. Rather than news shutdowns, we anticipate that by
the end of this year, Sinclair will have added news programming
in eight markets, resulting not incidentally in a net increase
of more than 200 news jobs since last summer, with more growth
to come, and we expect to continue to grow our news force over
the coming years, as we roll out News Central to additional
markets.
I note, by the way, that the News Central model is far from
revolutionary. For many years, the use of shared stories has
been the newspaper model. Similarly, in television, local
stations have relied on news services such as CNN to provide
national and international news stories for use in a large
number of stations across the country. CNN was built on the
same model as is News Central, namely, the efficiency of having
a single report prepared for many stations.
An even closer analogy to News Central can be seen in the
network news model that hundreds of ABC, CBS, and NBC
affiliates followed every day for decades. Under that model,
these stations present a half-hour of primarily local news
produced in the various communities, followed by a half-hour
national and international newscast produced a single time by
their network in New York for broadcast in virtually every
community in the United States.
Let me conclude by again noting how pleased I am to have
had the chance to appear here today. Sinclair takes very
seriously its responsibility to the many communities it serves,
and believes that News Central will allow us to better serve
the public interest of the various localities. I hope my
explanation of how the News Central model works has illustrated
why this is the case, and has cleared up any misperceptions
that may have existed.
Thank you.
[The prepared statement of Mr. Faber follows:]
Prepared Statement of Barry M. Faber, Vice President and General
Counsel, Sinclair Broadcast Group, Inc.
Good morning. My name is Barry Faber and I am the Vice President
and General Counsel of Sinclair Broadcast Group. Sinclair is the
Nation's largest, independent, free, over-the-air television
broadcasters, owning and/or providing services to more than 60
television stations in 39 markets across the United States.
At Sinclair, we take our commitment to meeting the locally-based
needs of all of our communities very seriously. Each of our market-
based station general managers makes a myriad of decisions from media
sponsorship of local charitable events to carriage of community based
programming, from the publicizing of local activities through the
broadcast of community calendars to serving the informational needs of
the community through the presentation of news programming.
I understand that this last topic--news--is the primary reason
Sinclair was invited to participate in today's hearing. More
specifically, the Committee is interested in the implementation of a
centralized news service, known as News Central, that Sinclair is
currently rolling out to a number of its markets. News Central is
simply a service pursuant to which non-local news stories, that is
certain national and international news, will be written and produced a
single time at a centralized location for use at a number of stations.
Rather than thirty-nine reporters in thirty-nine markets researching,
writing and producing thirty-nine stories on a single national or
international news event, the story will be produced a single time for
broadcast in each of the markets.
I am well aware that there are some who criticize News Central for
a variety of competitive or philosophical reasons or because they do
not understand how News Central works. I welcome the opportunity to be
here to set the record straight by explaining the significant
contributions that News Central is making to localism.
Nationally, most ABC, CBS and NBC affiliates have numerous hours of
local newscasts each day, whereas only a handful of WB and UPN stations
in only the largest markets have any newscasts at all. Many FOX
affiliates in medium and smaller markets also do not have news and even
where they do, it is typically limited to one hour per day. Case in
point, News Corporation's UPN 20 and Tribune's WB 50 here in
Washington, DC--a top ten market--do not have news. Sinclair has
television stations affiliated with the six major networks: ABC, NBC,
CBS, FOX, WB and UPN and I believe our news operations have
historically mirrored that of the rest of the industry.
Going forward, however, our News Central model is designed to
achieve certain efficiencies so that we can provide viewers with more
choices for local news particularly in the smaller markets where
choices are already limited. News Central will allow Sinclair to launch
local newscasts on FOX, WB, UPN and independent stations in medium and
smaller markets, as well as to relaunch newscasts on big 3 affiliates
where we previously discontinued local news operations due to financial
and competitive concerns.
Other operating efficiencies are achieved by capitalizing on the
newest technologies as we continue to build brand-new, state-of-the-art
news facilities in numerous cities. All of these efficiencies allow us
to launch local news on stations that have neither had news in the past
nor were expected to add news using the 50-year old news model.
Significantly, however, each market served by News Central will
have a complete locally-based news team, consisting of reporters,
producers, anchors, photographers, etc and these news rooms will focus
100 percent of their attention and resources on local news only. As a
result, we believe these local news operations will provide a better-
focused and more locally-tailored newscast than our competitors, which
will continue to devote resources to producing national and
international news stories that have no local impact.
At each News Central station, the local portion of the news is
independently produced by the local staff based on their decision as to
which news is of greatest interest to their specific community, then,
at a commonly prescribed time, each of the stations turns the newscast
over to the national/international news desk at which point the single,
centrally-produced news report will be broadcast on each of the
stations.
The current economic and advertising climate, combined with the
increasing popularity of national cable networks, has not been kind to
local news operations. For example a major network-owned news operation
was shut down in a top 10 city late last year. And last fall, two media
giants discussed combining their cable and broadcast news operations
with an aim toward saving $100 million. A large portion of those
savings would most likely have been in jobs and not equipment. However,
we anticipate that by the end of this year Sinclair will have had a net
increase of more than 200 news jobs since last summer with more growth
to come. And we expect to grow our news force over the coming years as
we continue to roll-out News Central.
I note, by the way, that the News Central model is far from
revolutionary. For many years, like the newspaper model, local stations
have relied on news services, such as CNN, to provide national and
international news stories for use on a large number of stations across
the country. CNN was built on the same model as is News Central, namely
the efficiency of having a single report prepared for many stations. An
even closer analogy to News Central can be seen in the network news
model that hundreds of ABC, CBS and NBC affiliates have followed every
day for decades. Under that model, these stations present a half-hour
of primarily local news produced in their various communities, followed
by a half-hour national and international newscast produced by their
network in New York for broadcast in virtually every community in the
United States.
Let me conclude by again noting how pleased I am to have had the
chance to appear here today. Sinclair takes very seriously its
responsibility to the many communities it serves and believes that News
Central will allow us to better serve the public interest of these
various localities. I hope my explanation of how the News Central model
works has illustrated why this is the case and has cleared up any
misperceptions that may have existed.
The Chairman. Thank you. Mr. Davis, welcome.
STATEMENT OF DAVID J. DAVIS, PRESIDENT AND GENERAL MANAGER,
WPVI--CHANNEL 6
Mr. Davis. Thank you, Senator McCain. Thank you to the rest
of the Committee.
The Chairman. Well, pull the microphone over in front of
you. Thank you.
Mr. Davis. Is that better?
The Chairman. Thank you.
Mr. Davis. I want to thank Senator Specter who came in.
Senator Specter is one of our more informed attentive viewers.
He certainly doesn't agree with everything we do every time,
but he's been a great friend of this station, and I also
acknowledge Senator Lautenberg, who I knew--I was his director
during his first term in the Senate, and he knows our
connection to South Jersey and has taken advantage of our
studios in Trenton a number of times.
You've got my written testimony, so I won't read it right
now. I'd just like to talk as long as I can about two things
that I'm very fond, of Channel 6 and the Greater Philadelphia
region. We are owned by ABC, the same company that owns our
network, but I do not just represent the hundreds of
broadcasters, employees at Channel 6, but also the thousands of
dedicated local broadcasts at our other nine television
stations across the country.
We all have a similar operating philosophy. Even though we
don't have a group news director, group program director, we
are independent, but we share some common causes. Our first
priority is news. Let me take that back. Our first, second,
third, fourth, and fifth priority is news. Two-thirds of our
employees work in the news department, the rest work in some
regard to support them.
We produce over 30 hours of live local news per week. It's
done right there at the television station. Senator Hollings,
we are open 24 hours a day, 7 days a week. You're always
welcome. The door is always open.
Local news is supplemented by 30 hours per week of network
news from ABC, which produces high quality programs like Good
Morning America, Nightline, World News Tonight, and we benefit
from that relationship.
We also have a very active public affairs department. We
produce 7 weekly shows. We locally program the prime access
time period on Saturday. We have a magazine show, ``Prime
Time,'' that highlights the positive accomplishments of
schools, businesses, and human interest stories, followed by
``Visions,'' a long-running program that highlights concerns of
our many minority populations. We produce half-hour shows
called ``Perspective New Jersey'' and ``Perspective Delaware,''
that focus on our issues in those states. Because we cover
parts of three states, we have an obligation to those states.
We also have in addition news bureaus in Trenton and the
Jersey Shore. We have studio facilities in Trenton and in
Wilmington, Delaware, better to serve those local communities
and those cities.
We also have the longest-running Hispanic theme show in the
country, Puerto Rican Panorama, 33 years on our air. We
produce, with the cooperation of the Archdiocese of
Philadelphia, weekly mass on Sunday mornings. We also allow
that time period to be used by other religions during their
holiday periods. We produce shows weekly, quarterly, and
annually for children and their parents, Perspective Youth,
Children First, Fast Forward. We just finished our Best in the
Class program. Every year we invite about 300 of our high
schools to submit their best students, bring them all together
at Longwood Gardens, tape a show of them, then we feature them
in 60-second vignettes for the whole month of June, so every
parent gets to see their child's picture on Channel 6.
We do live interview shows Sunday morning, 8 a.m., take
viewer call-ins, also an opinion show on Sunday mornings for
the local opinion leaders to discuss issues.
We're proud to be known as the debate station. Last
election cycle we held debates not only for the general
election but for the primary for the Pennsylvania Governor, the
New Jersey Senator, and 13 Congressional districts. We've done
DA's races, attorneys general races in Delaware.
Last May in Philadelphia, we held 4 hour-long debates, some
of those in cooperation with our sponsors, League of Women
Voters, NAACP. We work with the Annenberg School at the
University of Pennsylvania. I have a letter from Dean Jamieson
of the Annenberg School that gives more explanation of how we
work with Penn to better improve not just our debates, but our
political coverage within our newscasts.
We're proud to be the community station of major events. We
just opened up the new Constitution Center in Philadelphia, the
first museum dedicated to the Constitution. If you haven't seen
it yet, it's a great facility. I think it's going to be a great
national attraction.
We did a prime time special, preempting the network July 3
to preview that facility for our viewers, did a Liberty Medal
ceremony where we honored Justice O'Connor in the morning, then
we did a parade, fireworks, concert at night. We do that every
year. For that, we did the pro cycling bike race, the largest
bike race in the country, brings 200,000 people out in the City
of Philadelphia. We cover that for 6 hours, preempt the network
sports program that day.
We love parades. We did do a lot of parades, because it's
important. We serve a lot of different ethnic communities. We
do the St. Patrick's Day Parade, we do the Puerto Rican Day
Parade, we do the Pulaski Day Parade--you get about 12 people
marching in the same direction, we'll be likely to cover it.
[Laughter.]
Mr. Davis. We enjoy doing that, and it reflects the effort
of those communities to put on their best effort on those days.
Thanksgiving Day Parade is the oldest Thanksgiving Day
Parade in the country. It used to be Gimbel's. It was before
Macy's. Then Gimbel's went out of business in 1987. The person
that had my job then said, we'll do that parade. He hired four
producers from Gimbel's, put them down on that first floor.
That parade office is still there. He hired the bands, brought
up floats, put that on every year as a benefit to the City of
Philadelphia, and it's a great event.
It creates goods for infants and mothers with the Girl
Scouts. We have the biggest food drive of the Boy Scouts. If
the Fire Chief were here, he'd say that our fire safety
program--we give away 100,000 smoke detectors--has cut the fire
death and injury rate in Philadelphia.
We're proud of all those things. I heard Commissioner
Powell talked about ascertainment. I was around when
ascertainment was around. We do a little bit better than that.
We have a standing Community Advisory Board made up of about 10
members of the community. They're freely chosen and elected.
They do their own choosing of who's on that Board. They meet
every month. They invite leaders of the television stations,
including myself, to their meetings and tell us what we're
doing right and what we're doing wrong.
I see my time is up. I would just like to say that you
folks are going to make important decisions on media ownership
in this country, and I respect that. I would just ask if you
please not make any of that decision based on the fact that
we're not good broadcasters just because we also happen to own
the network.
Thank you very much.
[The prepared statement of Mr. Davis follows:]
Prepared Statement of David J. Davis, President and General Manager,
WPVI--Channel 6
Good Morning Chairman McCain, Senator Hollings and members of the
Committee. Thank you for the opportunity to address your committee.
My name is Dave Davis. I am the President and General Manager of
WPVI, Channel 6, in Philadelphia, and I am here to represent the
thousands of dedicated local broadcasters at WPVI and the other ABC
Owned TV Stations.
The ABC Owned stations are industry leaders in local news and
community service. Anyone who tells you that an ABC Owned station is
not committed to local service is not speaking the truth. Our
commitment to localism is not the result of government regulation. We
strive to be the most locally relevant station because we believe that
is the surest path to commercial success. A station that is #1 in local
news and community service will almost always rank among the most
commercially successful stations in the market.
WPVI was first licensed in 1947 to Walter Annenberg, whose family
owned the Philadelphia Inquirer, among other media properties. In 1953,
we became the first affiliate of the ABC network. In 1970, the station
was sold to Capital Cities Communications, which grew to buy ABC in
1985, and in 1995, The Walt Disney Company bought ABC.
Even as the names on the license have changed, our operating
philosophy through the years has stayed the same. We try very hard
every day to be the best possible community television station for our
viewers. That's a tall order, because there are 2.8 million television
homes within our Nielsen-designated market. Besides Philadelphia, we
cover seven other counties in southeastern Pennsylvania, the southern
half of New Jersey, and the state of Delaware. We have a saying at the
station that acts as our guide--``take care of the viewers, and
everything else will take care of itself''. Let me explain how we try
to do that.
We try to provide the right combination of news, information, and
entertainment programming. If you have a TV set with a rabbit ear
antenna, you can sit there and watch Channel 6 twenty-four hours a day,
seven days a week, and enjoy the most expensive programming in the
television industry--for free.
Our most important priority is news. We produce more than thirty
hours per week of live, local news. More than half of our employees
work in the news department, and many of the rest of us work to support
the news programs. Our local news is supplemented by the ABC Network
that provides more than thirty hours per week of national and world
news. So during a normal broadcast day, on average, approximately half
of our time is devoted to news.
Although we have won numerous awards from industry peers, our most
important judges are the viewers, and we are proud of the fact that
they have made Channel 6 the leading source for news in our tri-state
region, reaching more than three million people in a normal week.
Of course, most weeks in the news business are not normal, so we
frequently program news outside its normal time periods. Everyone at
the station knows if there is an emergency or major even--anything that
we think our viewers need to know now--we tell them. We will pre-empt
the most popular syndicated or network programs to inform our viewers
when we feel it is necessary, and those decisions are made at the
station level, either by me or one of our department heads--NOT by
anyone at the ABC Network. We have produced hours of continuous, often
commercial-free news programming during weather emergencies, natural or
man-made disasters, major elections, and times of civic celebration.
In addition to news, we produce significant local programming from
our public affairs department. We are one of the few stations in the
country to locally program the prime access time period every Saturday,
instead of using reruns of syndicated programs. Our viewers enjoy a
half-hour magazine show--``Prime Time''--that highlights achievements
of local people in their schools, communities or businesses. That's
followed by ``Visions,'' a half-hour program designed to focus on
issues important to the many minority communities in our region. Other
weekly programs include ``Perspective New Jersey'' and ``Perspective
Delaware'', interview shows with newsmakers in those states, produced
at our Trenton and Wilmington news bureaus. In addition to news
personnel, we maintain studios at those sites to better serve those
areas. We also staff a news bureau at the Jersey shore.
We produce weekly, monthly, and quarterly programs aimed at young
people and their parents. We just finished our annual ``Best of the
Class'' program, where we feature three hundred of the best high school
students in our region in an hour-long prime access program, then
during the month of June, we produce and air one-minute vignettes of
every student. Of course, we let the proud parents know when their kids
will be on Channel 6.
We produce the longest running Hispanic-themed show in the
country--``Puerto Rican Panorama'' has been on Channel 6 for 33 years.
We produce a weekly Catholic mass on Sunday mornings, and substitute
specials from other religions during their holiday periods.
Later on Sunday morning, we air an hour-long live, local interview
show to expand on major stories of the week, and take phone calls from
viewers. We also have ``Inside Story'', a weekly panel of local opinion
leaders giving their take on current events.
We are proud of the fact that Channel 6 is known as the place for
local political debates. In the most recent election cycle, we produced
and aired hour-long, commercial free debates for both the primary and
general election for Pennsylvania governor and New Jersey Senate. In
2000, we held debates for New Jersey governor and statewide races in
Delaware, and in the last Philadelphia mayor's race, we hosted four
hour-long debates. For most of our debates, we partner with groups like
the League of Women Voters, the NAACP, and the Chamber of Commerce. We
have also hosted them at places like the College of New Jersey, Drexel
University, and the University of Pennsylvania to give students more of
an opportunity to see these debates in person. And like everything else
we do, our debates are designed to attract viewers. We promote and air
them in high-visibility time periods, like prime access. Right now we
are working on two debates for the upcoming Philadelphia mayor's race.
We also work with the Annenberg Public Policy Center and School for
Communication at the University of Pennsylvania, both as a partner for
political debates, and as a source for improving the quality of
political coverage at the local level. A letter with more details from
its director, Kathleen Hall Jamieson is attached to my testimony.
If there is a big event in our region, we want to be part of it. We
just finished six hours of live programming around Philadelphia's
Fourth of July celebration, starting with the Liberty Medal ceremony in
the morning, and the parade, concert, and fireworks in the evening.
This is something we do every year. This year we also televised the
opening of the National Constitution Center, including a prime time
special on July 3 to preview the museum for our viewers. The month
before, we produced six hours of live coverage of the big pro bike race
that circles Philadelphia. Also in June, we feature the non-profit
Philadelphia Zoo in a half-hour program to highlight its attractions.
In March, we previewed the annual Philadelphia Flower Show in an hour
prime access special, and we are now preparing to produce coverage of
the Marian Anderson award ceremony in November.
And we do love a parade. One of our largest productions each year
is the city's Thanksgiving Day Parade, the oldest in the country. It
started out as the Gimbel's parade, but when that department store went
out of business in 1987, Channel 6 stepped in to produce the parade. We
actually have a parade office at the station, because it is a year-
round job to bring in the bands, floats, balloons, and other
attractions in the parade. We also broadcast the annual Puerto Rican
Day parade, the Pulaski Day parade, the St. Patrick's Day parade, and
the Columbus Day parade, each live for two hours, usually at the
expense of pre-empting network programming.
In addition to special programs, there are other station efforts
during the year to partner with non-profit organizations. We produce a
fire safety campaign every January to educate viewers, and with the
cooperation of local fire departments, Channel 6 has given away more
than 100,000 smoke detectors and 50,000 batteries. Philadelphia Fire
Commissioner Harold Hairston gives us credit for helping to cut the
city's fire death and injury toll during the program's ten-year
history. With the local Boy Scouts, we operate the largest single food
drive every year for the Philadelphia Food Bank. With the Girl Scouts,
we collect more than 40,000 items for infants and new mothers in our
annual Baby Bundles campaign. With the American Cancer Society, we help
raise awareness and funding for breast cancer research.
In the unlikely event that we would neglect any of our commitment
to our local communities, we have a built-in safeguard. For more than
thirty years, Channel 6 has maintained a Community Advisory Board, made
up of about ten community members and leaders, representing different
ethnic groups and geographical areas. They are independently elected
for several year terms, and meet on a monthly basis to discuss station
programming and employment issues. They share those discussions with
the department heads, and me and we value their input.
So that is a glimpse of how we operate WPVI-TV. But I also
represent today the other nine ABC Owned Television Stations and from
them you would hear the same speech. Even though we have no group
program director, no group news director, no shared theme music, no
shared technical hub--we do have a similar operating formula. Do what
is in the best interest of your local communities, and the company will
back you up.
All of our stations invest heavily in local news and local
programming. That IS our core operating philosophy. Attached to my
testimony are typical and illustrative examples of the outstanding
local service rendered by each of the ABC Owned stations. Let me
mention a few highlights. KTRK presents the 4th of July celebration in
Houston, does the rodeo parade, and carries a large commitment of
public affairs programming. KFSN in Fresno just pre-empted prime access
for a one-hour town hall meeting on air quality in the Central Valley
of California. Maybe the best example of what it means to be an ABC
owned station comes from the two stations we most recently purchased,
WTVG in Toledo, and WJRT in Flint. On its first day as an ABC owned
station, WTVG bought more than a million dollars worth of additional
newsgathering equipment, and within a year, added twelve hours of local
news per week. Let me say that again, after ABC bought this local
Toledo station; the station added 12 hours of additional local news
each week. Our manager there pre-empts the ABC network to carry the
Toledo Mud Hens baseball game on opening day, Bowling Green football,
and political debates. And after ABC bought WJRT in Flint, that station
added similar amounts of local news, and invested more than seven
million dollars in a new broadcast facility in a redevelopment area of
Flint.
So now the question is--why do ABC owned stations have such a
strong commitment to local service? We certainly take seriously the
service to community standard in our license, but I think you would
agree that our record of outstanding local community service goes way
beyond legal license requirements. Pardon me, but forget the
government. We have to answer to our viewers. And we have to do that
every day. When they have more than a hundred channels to choose from,
and we want them to choose us, we think the best way to do that is to
provide the best possible service. We don't get any subscriber fees, or
have a dual revenue stream--one hundred percent of our revenue comes
from advertising that is totally dependent upon viewership. If people
don't watch, we don't get paid, and if you aren't the best local
station, people don't watch. It's that simple.
Mr. Chairman, I have been going to work at a local television
station every day for the last 26 years, assigned to a lot of different
jobs. Sometimes I worked at a station that was co-owned with a network
and sometimes I didn't. The feeling towards my job never changed. The
most enjoyment came from knowing that you were helping to supply
something of value to lots of people-valuable news information,
positive public service programming, a chance for local companies to
market their products, and just good, solid, quality entertainment,
available free to all the homes in our community.
You are going to make decisions on media ownership in this country
based on your collective wisdom, and I respect that. I am only asking
you to please not base any decision on the false premise that Network
Owned stations like Channel 6 in Philadelphia do not do their best to
serve their local community.
Thank you again for the opportunity to speak to you today, and I
would be glad to try and answer any of your questions.
______
The Annenberg Public Policy Center
University of Pennsylvania
Philadelphia, PA, July 18, 2003
Mr. Dave Davis,
General Manager,
WPVI,
Philadelphia, PA.
Dear Dave,
In the process of clearing out fourteen years of files in the
dean's office, I realized that I had one called ``WPVI'' that is filled
with evidence of your station's dedication to public service and
willingness to assist us in our scholarship. For both, my colleagues
and I are grateful.
At a time when access to much of political discourse comes at the
price of purchasing cable, WPVI's commitment to political access
deserves special notice. Whether audiences reward you with ratings or
not, WPVI anchors, carries, and promotes debates by candidates for the
Senate and governorships from each of the states in the tri-state area.
In the late afternoon time slot, you also have pioneered alternative
ways of offering detailed looks at candidate positions on issues.
You also have sought ways to give the citizens of Philadelphia a
stake in political debates. When the Student Voices project was
launched in the Philadelphia high schools four years ago, it was WPVI
that sponsored a debate that permitted students to question the
candidates. It was WPVI that aired a debate in which citizens from the
Philadelphia Inquirer's Citizen Voices project served as questioners.
As important was the fact that the station promoted both.
Unsurprisingly, WPVI carried the Liberty Medal ceremony live, as well.
On a personal note, when, critique in hand, scholars at the
Annenberg School or Policy Center have asked to talk with you about the
station's work, they have been welcome in your office. You've also
helped us search for solutions. When we thought there might be a more
effective way to present political news, instead of watching bemused as
we struggled to create instances of it,. your anchors and reporters re-
taped stories for us to test, Without them we could not have generated
the research reported in Spiral of Cynicism: The Press and the Public
Good.
So, if you have a file marked ``Annenberg School'' filled with
critiques, please place this fan letter ahead of them as a reminder
that, despite our cantankerous nature, some of the scholars in your
audience are grateful that WPVI sees its viewers as citizens as well as
consumers.
Sincerely,
Kathleen Hall Jamieson
Professor,
Annenberg School for Communication,
Director,
Annenberg Public Policy Center.
______
ABC-Owned Television Stations Committed to Localism
KABC-TV Glendale, California
KABC-TV's tradition of public service involves all of Southern
California's diverse communities. From its 34 hour per week of locally
produced news coverage to its decades of support to organizations
throughout the region, KABC-TV's community efforts are proposed by the
local station, approved by the local station, planned by the local
station, and implemented by local station personnel. This commitment to
the community has forged its stature in the region as a successful and
involved local broadcaster.
KABC-TV has created long-term community programs that have
benefited millions of local viewers. It started ``The Spark of Love Toy
Drive'' to provide a happy holiday season for underserved families,
implemented ``Women's Health Month'' to raise funds for and awareness
of women's health issues and for 14 years have run the KABC-TV Kids
Care Fair to provide free health screening and immunizations for
underserved children and their families.
Besides its ongoing community projects, KABC's commitment to local
viewers is evident in their regular programming schedule. KABC-TV
produces more local news than any other station in the Southern
California viewing area. KABC-TV Eyewitness News has regular features
every week highlighting the good work of community organizations and
volunteers. The station also produces local programming and special
shows that serve the community, such as ``Vista L.A.,'' a weekly
magazine show that highlights the Latino community in Southern
California.
KFSN-TV Fresno, California
KFSN-TV is the leading television station within the six counties
of Central California and fulfills its responsibility to those
communities by compiling a long and honorable record of news coverage
and public service to its various constituencies.
Producing and airing 22 hours of local news every week, KFSN has
received numerous honors and awards. The station recently received two
RTNDA ``Edward R. Murrow'' Awards and an Emmy Award for best newscast.
It has also produced numerous specials beneficial to their viewing
audience such as ``The Air We All Breathe,'' an hour-long special
examining the air quality issues of the Central San Joaquin Valley and
``Valley Focus,'' a weekly 30-minute program featuring community
organizations, issues and events.
KFSN has been a major provider of video presentations for local
non-profit organizations. These presentations are produced at no cost
and are used to raise funds and awareness for these community
organizations. It has produced videos for Children's Hospital Central
California, United Cerebral Palsy of Central California, the Marjaree
Mason Center, and the Fresno County Office of Education ``Educator of
the Year'' events. KFSN has also aired a variety of Public Service
Announcements on topics as diverse as Black History Month and Drug-Free
America.
KGO-TV San Francisco, California
KGO-TV is proud of its strong relationship with the market it
serves. Annually, it dedicates millions of dollars in airtime and
production costs to provide non-profit organizations as wells as civic
organizations a strong voice in their community. KGO-TV provides
regular public service time for thousands of Public Service
Announcements and donates a large amount of high profile airtime and
productions to many local events and non-profits.
KGO-TV produces 4.5 hours per day and 27 hours per week of local
news. In the past 18 months, it has interrupted regularly scheduled
programming 110 times for a total of 24 hours and 15 minutes of
additional breaking news coverage. In addition to the daily local
newscasts, KGO-TV also produces 2 local half-hour programs per week and
a wide variety of local programs from sports shows to people profile
shows to town hall meetings to ``fun'' events in the area.
A truly unique community based effort of KGO-TV is ``ABC-7
Listens,'' an expansive effort to solicit viewers' thoughts, opinions
and news story ideas through feedback from contacting the station or
through monthly town meetings. KGO is also known throughout the
industry for its strong investigative unit, The I-Team, which regularly
breaks big news stories in the market. They're also known for their
very strong consumer unit. Through ``7 On Your Side,'' a team of
employees and volunteers solve thousands of consumer complaints every
year and many consumer stories have led to legislative action.
KTRK-TV Houston, Texas
KTRK-TV, ABC-13, has long believed that local community involvement
is core to the station's overall market success. Annually the station
strives to offer the best local news coverage as well as showcasing
Houston's unique special events. The most watched news station for over
two decades, ABC-13 produces more regularly scheduled hours of news
than any other Houston TV station--34\1/2\ hours each week.
ABC-13's top newscasts are complimented by more special event
programming than anywhere else. In 2003 alone, ABC-13 will produce more
than 30 hours of special event programming and will be the only Houston
television station providing live coverage of the Houston Marathon,
Houston's Rodeo Parade, The Rodeo's scholarship fundraising art and
steer auctions, and Houston's 4th of July Concert and Fireworks. It
will also once again produce and broadcast the Houston Texans four
preseason NFL football games and a weekly half hour wrap-up show on
Sundays during the NFL season.
ABC-13's contributions to the community extend beyond programming.
ABC-13 helped collect over 1,000,000 pounds of food and $50,000 in
contributions to help feed hungry families last December during the
station's annual Holiday Food Drive. The station's annual blood drive
netted nearly 1,000 pints for the Houston Blood Center and their annual
``Caring Cradles City Wide Baby Shower'' brings in thousands of dollars
worth of baby items for March of Dimes to distribute to families in
need.
WABC-TV New York, New York
As the broadcaster of 28.5 hours of live, local news every week,
WABC is the Tri-State's largest TV news team and has the biggest live
newsvan fleet. Daily local shows such as ``7 On Your Side,'' address
the needs, interest and concerns of communities throughout New York,
New Jersey and Connecticut. The WABC news team has recovered untold
thousands of dollars for local consumers through solving legal problems
and exposing countless frauds, scams and schemes.
The station regularly organizes high-profile public service
campaigns, reaching out to tri-state viewers and community
organizations where the need is great and timely. Highlights of its
numerous outreach activities include a schedule of about 1,100 public
service announcements each month. Employees at the station also
volunteer in the community through station-organized efforts such as
``Principal for a Day.'' It has also held workshops such as a ``Smarter
Surfing'' Internet workshop, offered to viewers and community groups
free-of-charge.
WABC-TV has a commitment to excellence built on the foundation of
social responsibility. The station's outreach efforts are linked to
public service on and off the airwaves. Examples of WABC-TV's
commitment to public affairs programming and campaigns include ``Like
It Is,'' a one-hour program that takes and in-depth look at various
topics of concern on the tri-state areas African-American community and
``Operation 7: Save a Life,'' a one-hour special focusing on the work
of area fire fighters.
WJRT-TV Flint, Michigan
WJRT-TV is the most watched television station in the Flint-
Saginaw-Bay City, Michigan television market. The station has long been
recognized as a community leader because of their commitment to support
community organizations, not-for-profit agencies and local events of
importance and interest to the people living in Mid-Michigan.
Since ABC's acquisition of WJRT in 1995, they have underwritten
$10.8 million in technical and news gathering capital investments and
$5.6 million in a building expansion and renovation. ABC has also
invested $4.8 million in the new digital high definition transmission
system (HDTV), making it the first and still the only Mid-Michigan
television station to offer full HDTV service to Mid-Michigan viewers.
Since 1995, WJRT has also added 19 half hours of news programming per
week and daily broadcast four and one-half hours of local news.
WJRT-TV also locally produces and broadcasts public affairs and
special programming such as the ``Life From a Teen's Perspective''
series and the Children's Miracle Network Telethon. Employees of WJRT
also have a personal commitment to the local community. Over the past
two years, WJRT staff have served on more than 40 different boards and
working committees, including United Way, American Red Cross, Habitat
for Humanity and Big Brothers and Big Sisters. The station also works
to regularly support and participate in special events for not-for-
profit agencies through on-air promotion, news interviews, serving as
master of ceremonies and organizing volunteers.
WLS-TV Chicago, Illinois
Since March 1986, WLS-TV has dominated the Chicago local news
market. From sign-on to sign-off, ABC7 is the most watched station in
the market including all key newscasts. The station leads the market in
local and breaking news coverage, as well as special local programming
and community involvement. This is a direct result of their more than
30 hours of local news every week, broadcasting more than 100 hours of
local programming per year, running an average of 600 PSAs per year and
offering direct financial support through cash donations to local
community groups and charitable organizations.
Converted in August 2002, WLS-TV now runs a fully digital, tapeless
editing and playback system. The newscasts provide viewers with
important local, national and international breaking news events as
well as on-going coverage of local and state politics, weather and the
day in sports. Additional information is also provided through special
segments such as the daily ``HealthBEAT'' segment that provides
perspective on medical breakthroughs and the latest health-related
information available to Chicagoans.
In addition to news, ABC7 produces more than 30 compelling,
entertaining, and thoughtful local television programs for their
viewers. The station broadcasts more than 100 hours of local specials
per year, including the award-winning weekly program, ``190 North'' and
the long-running ``Chicagoing,'' among many others.
WTVD-TV Raleigh, North Carolina
WTVD is an organization distinguished by dedication and
responsiveness to its viewers and by a strong appreciation of the
diversity within its community. WTVD's hands-on public service
projects, daily newscasts, and quality programming demonstrate it's
commitment on a daily basis. Serving 22 counties, WTVD's Eyewitness
News provides 4.5 hours of local newscasts daily Monday through Friday
with one hour on Saturday and three hours on Sunday. It also frequently
interrupts network and syndicated programming to broadcast bulletins on
severe weather and local news.
In addition to daily interaction with viewers by phone and e-mail,
WTVD has developed a community outreach initiative called ``Contact ABC
11'' where the News Director, General Manager and other top managers of
the station gather with viewers to listen to their thoughts, opinions
and news story ideas. It also has extensive involvement with the
community through a variety of service projects such as the ``ABC 11
Blood Drive'' and ``Best of the Class'' where it produced and aired 30-
second vignettes to recognize valedictorians from high schools in it's
viewing area.
WTVD's commitment to serve all segments of the community is evident
through its work with the station's Minority Advisory Committee. This
committee consists of 15 African-American community leaders who meet
bi-monthly with station management to share their thoughts and ideas.
It has also established a Latino roundtable made up of 9 community
leaders who share information and story ideas to ensure the station
provides accurate, inclusive, and informative news and information to
it's viewers.
WTVG-TV Toledo, Ohio
WTVG-TV provides more news, more local specials, more local sports,
more community affairs, more local parades and has won more awards than
any other station in town. Each week WTVG provides twenty-six and a
half hours of regularly scheduled news--more than any other Toledo
television station. It also frequently produces special reports on
major breaking news stories and emergency weather information. This
commitment has resulted in numerous prestigious awards including the
RTNDA ``Edward R. Murrow Award'' for Outstanding News Operation.
The station's broadcasts often include exclusive investigative
material that benefits the public. It has assisted people with consumer
problems, identified dangers posed to the public through unscrupulous
business practices and educated viewers about threats to public health.
WTVG-TV has also assisted police as they search for criminal suspects
or seek public help in solving crimes. Action News also gives viewers
an opportunity to interact with guest experts on a daily basis during
their noon news segment. Its commitment to responsible, complete and
accurate coverage also includes the area's only weekly community
affairs program that features detailed discussions about local matters
of public importance.
WTVG's commitment to the community goes beyond its coverage of
news. Each year, it produces and broadcasts several specials addressing
concerns of Northwest Ohio and Southeast Michigan and airs ``fun
events'' such as the ``Foodtown Holiday Parade and Preview'' and the
``Fiesta Championship Pregame.'' WTVG also responds to local concerns
by helping to raise hundreds of thousands of dollars through its annual
broadcast of the 21-hour Jerry Lewis Labor Day Telethon. It also brings
viewers the annual Children's Miracle Network Broadcast and educates
viewers on how they can protect the environment through a station-wide
campaign during April and May for Earth Day.
WPVI-TV Philadelphia, Pennsylvania
WPVI-TV has been serving the Delaware Valley since 1947. The
leading station in the region, Channel 6 continues to build on its
long-standing commitment to local viewers through an emphasis on local
news and information, public affairs, community projects and special
local programming.
Action News is the cornerstone of WPVI-TV's commitment to the
community. Encompassing thirty hours of local news every week, Action
News is the leading news programs with it daily newscasts reaching an
average of 1.4 million households per week. Along with its
Philadelphia-based newsroom, Action News has three regional news
bureaus to allow the most complete coverage of the tri-state area.
These bureaus, and their studios, also serve as the sites for public
service programs and debates relevant to that particular state.
WPVI also continues to have one of the most active public affairs
departments in the country, with a staff dedicated solely to producing
local programming, public service announcements and regional specials.
Examples of public affairs programming include ``Prime Time Weekend,''
a half hour magazine-format program addressing the positive aspects of
a variety of topics and ``Inside Story,'' a weekly half-hour program
featuring local opinion-leaders commenting on issues and events of the
week. WPVI also has an equally strong commitment to public service
announcements, airing approximately 100-150 PSAs every week.
In addition to a commitment to public service initiatives, WPVI-TV
has an equal dedication to broadcasting big events in the Delaware
Valley, allowing all residents to have equal access to the shared
traditions of the region. The greatest example of this is the annual
Thanksgiving Parade, the longest running Thanksgiving Day parade in the
Nation. On the verge of being lost to the city in 1986, this tradition
was rescued by WPVI, which now produces the parade, as well as
broadcasts it, live every Thanksgiving morning.
The Chairman. Thank you, Mr. Davis. Dean Kaplan.
STATEMENT OF DEAN MARTIN KAPLAN, DIRECTOR, USC ANNENBERG NORMAN
LEAN CENTER AND ASSOCIATE DEAN, USC ANNENBERG SCHOOL FOR
COMMUNICATION
Mr. Kaplan. Thank you, Mr. Chairman, for the invitation to
testify here today. My name is Martin Kaplan. I'm the Associate
Dean of the Annenberg School for Communication at USC, and my
comments this morning, while they report on academic research,
also draw on experience in the trenches of politics, news, and
entertainment. I spent 8 years here in Washington, where I was
chief speech writer to Vice President and then Presidential
candidate Walter Mondale, so I know something from the
candidate's point of view about how hard it is to earn media
coverage on television. I've also had stints as a journalist,
in print, on television and radio, and for 12 years I worked at
the Walt Disney Company as an Executive Screenwriter and
Producer, so I also know something from the communication
company's point of view about the need to compete in the
marketplace.
Today, most Americans say they get most of their news from
local television. Is local TV news providing voters the
information they need to know? A broadcast license is a
contract between media owners and the public. Serving the
public interest does not mean maximizing profit, however happy
that may make owners and shareholders. Nor does it mean
sponsoring charity benefits or blood drives, however happy that
may make communities. Serving the public interest, as the
Supreme Court said in Red Lion, means that the broadcaster must
give adequate coverage to public issues. That's what media
owners promise in exchange for their licenses.
Since 1998, my colleagues and I have been studying campaign
and election coverage on local television. In the 2000
campaign, we studied all the programming from 5 p.m. to 11:30
p.m., the interval, Senator McCain, in the bill you'll be
introducing, to look for candidate discourse, and we did that
in 58 markets, and what we discovered was that the average
amount of candidate discourse on stations in this country was
74 seconds, all candidates, dog-catcher to President, put
together.
In 2002, we set out to learn how much and what kind of
election news most Americans were actually exposed to. We
recorded and analyzed more than 10,000 top-rated early and late
evening half-hour news broadcasts on 122 stations in the top 50
U.S. media markets over the 7 weeks leading up to Election Day.
Again, we counted all races at all levels.
What did we find? This is how well the current marketplace
is doing. Almost 6 out of 10 top-rated news broadcasts
contained no campaign coverage whatsoever. Most of the campaign
stories that did air were broadcast during the last 2 weeks of
the campaign. Nearly half the stories that aired were about
horse race and strategy, and not about issues. The average
campaign story was less than 90 seconds. Fewer than 3 out of 10
campaign stories included candidates speaking. The average
sound bite was 12 seconds.
Even when counting U.S. House races as local elections,
only 14 percent of all the campaign stories in our sample
focused on local races, races for the State legislature, 3
percent, regional, county, or city elections, 4 percent, and
campaign ads outnumbered campaign stories by nearly 4 to 1, so
while there are some encouraging exceptions, most local
stations largely ignored the 2002 campaign on their top-rated
broadcasts.
At the same time, those stations took in a recordbreaking
$1 billion of political advertising revenue. Among the 122
stations we studied, there's a wide range of performance. For
example, 10 stations covered no local races at all during their
top-rated half-hours. Five stations devoted more than half
their political coverage to local ratings.
What explains disparities like these? They can't be
attributed to differing local appetites for public issues,
because these stations can exist side by side. In Greenville,
South Carolina, for example, WSPA, a Media General station,
aired 146 campaign stories at the top end of our country in our
sample, while WLOS, the Sinclair station, aired 40. The average
candidate sound bite at the Sinclair Station was 7 seconds,
which put it in the bottom 10 percent of our national sample,
while the Media General sound bite averaged 36 seconds, at the
top of the country.
Does ownership make a difference? Our sample wasn't
designed to study that, but it does include stations with large
owners, medium owners, and small owners, and you can make a
comparison of them. What we discovered when we did that was
that large owners in our study carried a lower percentage of
local campaign news than the national average, while the small
and midsized owners carried a higher percentage.
What causes stations to excel? A commitment by ownership
leaders can count for a lot, as demonstrated by the 10 Hearst-
Argyle stations in our study, which were impressively head of
the pack, and the priorities of individual station managers and
news directors can also make a difference, but across the
country, the murderous pressure for ratings has largely trumped
every other goal.
Politics is ratings poison. This belief, which apparently
does not extend to the airing of paid political ads, is
promoted by the television news consulting industry, whose
advice dominates local decisions. In my view, these consultants
are selling dangerous nonsense. Good reporters working for good
managers can make politics and public affairs just as
compelling to audience as news about celebrity crimes or
teasers for prime time voyeurism. Let's not blame the audience
for what appears on local television.
Programmers aren't just delivering what people want, they
are accomplices in manufacturing that desire. Americans aren't
just consumers. We're also citizens. Broadcasters have more
than an obligation to make money and win Nielsen wars. They
have an obligation to inform us about public issues. That's
what they promise in order to get their licenses. Today, the
ability of Americans to get the information they need from the
sources they turn to most about some of the most important
choices they face, that ability depends on a marketing culture
that puts sensationalism ahead of substance and dollars head of
democracy. Surely Americans deserve better from the industry
they've entrusted with the airwaves, and from the agency
they've entrusted with monitoring it.
Thank you very much.
[The prepared statement of Mr. Kaplan follows:]
Prepared Statement of Dean Martin Kaplan, Director, USC Annenberg
Norman Lean Center and Associate Dean, USC Annenberg School for
Communication
Thank you, Mr. Chairman, for the invitation to testify. The
question I want to try to answer today is this: Under current
legislation and current FCC regulations, what kind of job are local
television stations doing in fulfilling their public interest
obligations?
More than two centuries ago, Thomas Jefferson said that the
strength of our democracy would depend on how well-informed the
American electorate is. Today, most Americans say they get most of
their information from local television news. Is local TV news actually
telling voters what they need to know? How well are local broadcasters
living up to the public interest promises they made in order to get
their licenses?
My answer to these questions is based on academic research. My
academic background includes a summa cum laude from Harvard College, a
graduate degree from Cambridge University, and a Ph.D. from Stanford.
I'm now associate dean of the Annenberg School at the University of
Southern California, one of our Nation's leading schools of
communication and journalism.
But I have experience in three other realms that also bear on my
testimony.
My professional background includes eight years here in Washington,
where I was chief speechwriter to Vice President Walter F. Mondale, and
also his deputy presidential campaign manager. So I know something from
the candidate's point of view about the challenges of earning media
coverage on television.
I've also had stints in print and broadcast journalism. I've been a
columnist, feature writer, and editor at The Washington Star; a regular
contributor to All Things Considered and Marketplace on public radio;
and a commentator on the CBS Morning News. My career also includes the
entertainment industry. For twelve years I worked at the Walt Disney
Studios, both as a senior motion picture executive, and as a
screenwriter and producer. I believe that entertainment--the need to
grab and hold audiences--has come to dominate every other realm of
contemporary American life, for better and for worse, from news and
politics to education and religion. Studying the impact of
entertainment on society is the mission of the Annenberg School's
Norman Lear Center, which I direct.
So my comments this morning, while they report on empirical
research I've done, also reflect some first-hand experience in the
trenches of politics, journalism, and show business.
Since the Radio Act of 1927, the possession of a broadcast license
has been a contract between media owners and the public. In order to
use the electromagnetic spectrum, which belongs to the public, the
broadcaster promises to serve the public interest. From then to now,
serving the public interest does not mean maximizing profit, however
happy that may make owners and shareholders. Nor does it mean
sponsoring charity benefits or street fairs, however happy that may
make communities. Serving the public interest, as the Supreme Court
said in Red Lion v. FCC, means that ``[t]he broadcaster must give
adequate coverage to public issues.'' Giving adequate coverage to
public issues is what media owners promise the public to do in exchange
for getting their licenses.
Since 1998, my colleague Dr. Matthew Hale and I have been
investigating what kind of attention broadcasters have been paying to
public issues. In particular, we've been looking at the quantity and
quality of campaign and election coverage on local television.
This research is not a snap to do. Broadcasters are not required to
keep tapes of their news programming or time logs of what they cover.
Under current FCC regulations, all that stations must do is maintain in
their offices ``a list of programs that have provided their most
significant treatment of community issues.'' These lists are next to
useless for empirical research. The FCC's single study of ``The
Measurement of Local Television News and Public Affairs Programs''
under its current ownership rulemaking illustrates this inadequacy. FCC
researchers watched not one minute of local news or public affairs
programming. Instead, they simply added up the raw number of minutes
that stations labeled news or public affairs on their broadcast
schedules. No matter that anyone who has actually watched local news
knows how much of it is given over to empty happy talk, cross-promotion
of network entertainment, and coverage of serial murders half a
continent away. No matter that much public affairs programming airs not
when ratings are high, but when only insomniacs are watching. As a
proxy for quality, FCC researchers counted the number of awards given
by members of an industry trade group, the Radio and Television News
Directors Association, to itself, and by a journalism school (the
DuPont Silver Batons at Columbia). If more industry votes go to network
owned-and-operated stations than to other stations, does that really
make the O&O's better? Three-quarters of the Silver Batons the FCC
counted went to individual reporters and producers for individual
pieces, not to stations, and all the awards to stations were given for
specific stories. If the DuPont jurors aren't pretending to compare the
quality of one station's total news programming with another, why
should the FCC? Yet this is the study that the FCC Chairman frequently
cites as justification for lifting the ownership caps.
In fact the only way to conduct scientific research on the content
of local news and public affairs coverage is to get people in each
market being studied to record that programming, or to purchase it from
commercial vendors, and then to have analysts log and code every single
broadcast. That's what we've been doing.
This is the third nationwide study we have conducted. In 2000, we
studied local news campaign coverage both in the primaries and in the
general election. That research, funded by the Ford Foundation, came in
the wake of the recommendation of the Presidential Advisory Commission
on the Public Interest Obligations of Digital Television Broadcasters,
co-chaired by CBS president Leslie Moonves and American Enterprise
Institute resident scholar Norm Ornstein. Their proposal was a
voluntary five minutes of candidate-centered discourse on each station,
on each night between 5 p.m. and 11:30 p.m., for the last 30 days
before each election. To see how that voluntary standard was working on
selected stations, we taped all news coverage between those times in
the month before Election Day. We counted candidate-centered discourse
under a generous definition, which included issue-centered stories, and
we counted all candidates for all offices at every level, dogcatcher to
president.
We did the study twice--in the primaries, and in the general
election. In the primaries, we studied 19 top-rated stations in 11
markets around the country. Two groups of stations emerged. Typical
stations--16 of the 19--aired an average of just 39 seconds of
candidate discourse a night. Only three stations aired over 3 minutes a
night, and two of them included New Hampshire in their markets. (The
study can be found at http://www.learcenter.org/pdf/tvnews.pdf.)
During the 2000 general election, we expanded our sample to include
74 stations in 58 markets. Twenty-three of those stations had made a
public commitment to the voluntary five-minute standard; we found that
they aired an average of 2 minutes and 17 seconds of candidate
discourse a night. The remaining 51 stations, which had been silent on
the voluntary standard, aired an average of 45 seconds of candidate
discourse a night. All candidates, all races, all evening, all month:
45 seconds a night. (The study can be found at http://
www.learcenter.org/pdf/campaign
news.pdf.)
By 2002, the five-minute-a-night voluntary goal had all but
disappeared from discussion. The public interest obligation has today
essentially been entrusted to an unregulated and unmonitored market. So
in this most recent campaign, we set out to learn how much and what
kind of election news most Americans were actually exposed to in that
marketplace. Our research was funded by the Pew Charitable Trusts, and
done in collaboration with Professor Ken Goldstein of the University of
Wisconsin-Madison. (Our report can be found at
www.localnewsarchive.org/pdf/LocalTV2002.pdf.)
We recorded and analyzed more than 10,000 top-rated early-and late-
evening half-hour news broadcasts on 122 stations in the top 50 U.S.
media markets over the seven weeks leading up to Election Day. This
representative national sample is the most ambitious quantitative study
of local news coverage of politics ever undertaken. Not only were the
stories logged and coded; those video clips have also been archived
online on a unique searchable database, at www.localnewsarchive.org,
which is now available to any registered user.
Here is some of what we found in 2002. This is the how well the
marketplace is actually doing at fulfilling the public interest
obligation of broadcasters:
Only 44 percent of the more than 10,000 broadcasts we
studied contained any campaign coverage at all. In other words,
almost six out of ten top-rated news broadcasts contained no
campaign coverage whatsoever.
Most of the campaign stories that did air were broadcast
during the last two weeks of the campaign.
Nearly half of the stories that aired were about horse race
or strategy, and not about issues.
The average campaign story was less than 90 seconds.
Fewer than three out of ten campaign stories that aired
included candidates speaking, and when they did speak, the
average candidate sound bite was 12 seconds long.
Even when counting U.S. House races as local elections, only
14 percent of all the campaign stories in our sample focused on
local races. Races for the state legislature only accounted for
three percent of the stories, and stories focused on regional,
county or city offices made up only four percent of the
stories.
Campaign ads outnumbered campaign stories by nearly four to
one. While little more than four out of ten of the broadcasts
analyzed contained at least one campaign news story, eight out
of ten of those broadcasts contained at least one campaign ad.
Just seven percent of the broadcasts analyzed contained three
or more campaign news stories, while almost half of these same
broadcasts contained three or more campaign ads.
So what kind of job are local stations doing to fulfill the public
interest promises they made when they applied for their licenses? If
you look at the campaign coverage they provided in 2002, the answer is
grim. While there are some encouraging exceptions, most local
television stations largely ignored the 2002 campaign on most of their
top-rated broadcasts. At the same time, those stations took in a
record-breaking billion dollars of political advertising revenue. It is
striking that while general managers and news directors often fret that
covering politics may be an audience turnoff, they have no compunctions
about barraging that same audience with political ads.
Among the 122 stations we studied in 2002, there is of course a
wide range of performance. Some stations aired a campaign story on less
than 20 percent of their top-rated half-hours; other stations had
campaign stories on more than 70 percent of those broadcasts. Some
stations spent only 1 percent of this most-watched news time on
campaigns; other stations spent as much as 9 percent. On some stations,
an average campaign story was well over two minutes long; on other
stations, it was just 40 seconds. Ten stations covered no local races
at all during their top-rated half-hours; five stations devoted more
than half their political coverage to local races. One station's
average candidate sound bites were over half a minute long; another
station's sound bites averaged just 4 seconds. One station ran no
stories about issues; on another station, 75 percent of the campaign
stories were about issues or adwatches.
What explains disparities like these?
They can't be attributed to differing local appetites for the
coverage of public issues, because these station differences can exist
side by side in the same communities. In Greenville, South Carolina,
for example, WSPA, a Media General station, aired 146 campaign stories
on their top-rated early and late half hours of news during the seven
weeks before Election Day, at the top end of the country in our sample,
while WLOS, a Sinclair station, aired 40. The average candidate sound
bite on the Sinclair station in Greenville was 7 seconds long, which
put it in the bottom 10 percent of our national sample, while the Media
General station candidate sound bite averaged 36 seconds, at the top of
the country.
Does ownership make a difference in campaign coverage? Our 122-
station sample wasn't designed to study that. But our sample does
include 45 stations owned by large owners (with audience reach above 20
percent, based on percentage of U.S. household coverage as calculated
by the FCC, discounting UHF coverage by 50 percent), 54 owned by mid-
sized owners (audience reach between 20 percent and 6.2 percent), and
23 by small owners (audience reach below 6.2 percent). It turns out
that the large owners in our study carried a lower percentage of local
campaign news than the national average, while the small and mid-sized
owners carried a higher percentage of local stories. The same pattern
appears in individual media markets: in 16 of the 22 markets where we
can make the comparison, stations with small or mid-sized owners
provided more coverage of local elections than stations with large
owners. If a national study designed to correlate ownership with
localism came up with similar numbers, it would have inescapable
implications for the regulations now in play.
What causes some stations to excel? My school is proud to award the
USC Annenberg Walter Cronkite Awards for Excellence in Television
Political Coverage, and the journalists and stations that win it prove
what good work can be done. In our study, some stations, even in the
absence of contested political races, nevertheless did a top-tier job
of offering campaign coverage to their viewers. A commitment by
ownership-group leaders to fulfill their public interest obligations
can count for a lot, as demonstrated by the ten Hearst-Argyle stations
in our study, which were impressively ahead of the pack. The priorities
of individual station managers and news directors can also make a
difference, as can making the financial commitment of assigning
experienced producers and talented correspondents to cover a political
beat.
But the sad truth is that across the country, the murderous
pressure for ratings has largely trumped every other goal. The
conventional wisdom among general managers and news directors is that
politics is ratings poison. This belief--that public issues are boring,
that viewers would rather watch car chases than candidates--is promoted
by the television news consulting industry whose advice dominates local
programming decisions. In my view, those consultants are selling
dangerous nonsense. The truth is that good reporters working for good
managers can make politics and public affairs just as compelling to
audiences as news about celebrity divorces or teasers for prime-time
voyeurism.
Let's not blame the audience for what appears on local television.
Programmers aren't just delivering what people want. They are
accomplices in manufacturing that desire. Americans aren't just
consumers; we are also citizens. Broadcasters have more than an
obligation to make money. They have an obligation to inform us. That's
what they promise in order to get their licenses. Today, the
enforcement of that promise is alarmingly inadequate. Right now the
ability of the American people to get the information they need, from
the sources they turn to most, about the most important choices they
make together as citizens: today that ability depends on a marketing
culture that too often puts sensationalism ahead of substance, fear
ahead of reason, and dollars ahead of democracy. Surely Americans
deserve better from the industry they've entrusted with their airwaves,
and from the agency they've entrusted with monitoring it.
Thank you very much.
The Chairman. Thank you, Dean Kaplan. Mr. Bozell.
STATEMENT OF L. BRENT BOZELL III, PRESIDENT AND FOUNDER,
PARENTS TELEVISION COUNCIL
Mr. Bozell. Chairman McCain, Senator Hollings, and Members
of the Committee. I appreciate the opportunity to appear before
you to testify on this important issue. Today, I represent the
Parents Television Council's 800,000 members, and untold
millions of parents who, like me, are disgusted, revolted, fed
up, horrified--I don't know how to underscore this point
strongly enough--by the raw sewage, the ultraviolence, graphic
sex, and raunchy language that is flooding into our living
rooms night and day by media, by giant media corporations with
no concerns whatsoever for community standards.
That's why I strongly support the effort to return the
media ownership cap to 35 percent. Citizens not only have a
right, but also have a need to have a voice in their local
communities.
In 1989, the Big Three networks, NBC, ABC, and CBS, held a
17 percent ownership share in TV programming. By 2002, it had
increased to 48 percent. Now add Fox, AOL-Time Warner, and AT&T
Liberty, and these six megacorporations today control two-
thirds of all viewers on television.
Let's be clear here. Further deregulation will give them
even further control of the airwaves, and the losers are the
local communities whose standards of decency are being ignored,
completely ignored by these media giants. There will be the
same old tired voices that will say that this is only about
competition, but let's be clear on this, there is no
competition here. You can't compete against multibillion dollar
oligopolies.
There are many reasons not to give these six
megacorporations even more control of our airwaves. One of
them, which is what I'd like to speak on, is their utter lack
of attentiveness to community standards. In the last year, the
PTC has sent out over 1.5 million community standard audits, of
which 128,000 have been returned. The numbers speak for
themselves. 94.2 percent of the public believes there shouldn't
be graphic violence during children's viewing time. 94.3
percent are against descriptions of sexual encounters on
television. 94.6 percent are opposed to strong sexual language
during children's viewing times. These are no-brainers, but
guess what, all these things can be found on television
courtesy of these six megacorporations. They could care less
who they offend, and now want even more control of the
airwaves, where they can offend even more.
This is a First Amendment issue. It's about the right of
citizens to speak up about what they want coming across the
broadcast airwaves they own in their local communities, where
their voice should count the most, without being silenced by
the corporate executives in New York and Los Angeles. This is
how the networks feel about local community standards.
In a PTC survey of network-owned and operated affiliates,
not one told us it had willingly ever preempted network
programming on the basis of community standards. Some told us
that because of network contractual obligations, they could not
preempt network programming. In fact, some Fox and CBS
affiliates said they weren't even allowed to see the advance
copies of reality programming they were going to have to put on
television.
When NBC aired Maxim's Top 100, which Senator Hollings
referred to, 26 independent NBC affiliates chose not to
telecast the program that many believe bordered on the
pornographic and which was certainly not in keeping with the
community standards, and yet not one NBC owned and operated
affiliate preempted it based on community standards. In a 43-
page petition brought to the FCC on behalf of more than 600
affiliates nationwide, the Network Affiliate Stations Alliance,
NASA, complained that under virtually every current affiliation
agreement, an affiliate risked losing its affiliation if it
preempts more than a few hours of network programming without
approval. The president of NASA said this: We are partners with
the networks, but we cannot stand by and let them control our
local stations. We know what works best for our local
communities, and by law these decisions cannot be made in
Hollywood or New York.
Now ask those New York or Hollywood media behemoths how
important the issue of indecency is to them. I wonder if you'll
find one executive--I don't know of one--who will even speak
out about it publicly, much less do anything to stop it.
Consider Keen Eddie, a new show on the Fox Entertainment
Network, which aired on June 10 at 9 p.m. I don't mean to
offend--Senator Dorgan brought this up. I don't mean to offend,
but you must know what is being broadcast over the public
airways to millions of impressionable children, perhaps your
own children or your own grandchildren in their living rooms.
Keen Eddie featured a plot about a band of thugs
trafficking in horse semen and hiring a prostitute to perform a
sex act with a horse so as to extract the semen from it. Here's
the actual dialogue.
Prostitute: No, that's not natural.
Thug: Extraction for insemination? If you look at the
picture on page 45, you'll see how natural it is.
Second Thug: You're a 40-year-old filthy slut. You'll
do anything.
Prostitute: With a human.
But the prostitute agrees to go through with it, except the
horse suddenly drops dead, at which point she says, ``I never
laid a finger on it. I lifted up my blouse, that's all. He
needs to get aroused.''
A horse, on national television, in front of millions of
impressionable children, over the public airwaves, into the
family home, the one place, according to the Supreme Court,
quote, ``where people ordinarily have the right not to be
assaulted by uninvited and offense sights and sounds.''
Chairman Powell has called it, quote-unquote, ``garbage
that anyone would suggest the FCC cares as little about
community concerns as the networks it's meant to be
monitoring.'' Well, let's see about that. Over 10,500
complaints were sent to the FCC about Keen Eddie. Now, it's
actually 11,000. I've got the numbers right here, and the
names. 11,000 complaints. Not one person, to my knowledge, has
heard back, not one. Now, this show aired on June 10. How long
does it take to decide that this is indecent? Apparently,
they're still debating it.
And guess how many stations the FCC has fined for indecent
broadcasting in the history of the FCC in the continental U.S.?
Answer, not a single one. In other words, according to the FCC
nothing, but nothing on television has ever been indecent.
You'd be hard-pressed to find a parent anywhere in America to
agree with that assessment. It's not garbage to say that the
FCC doesn't care and is not doing its job. There are some in
the FCC who are trying, but they are the minority. You heard
one of them, Commissioner Copps, today.
It's my fervent hope that Congress will tell the FCC that
it will not permit its Pontius Pilate-like decisions to allow
these media titans, who have so badly abused their privilege to
broadcast on the public airwaves, even more access to them.
It's my further hope that the Congress will demand that the FCC
instead start doing its job.
Thank you.
[The prepared statement of Mr. Bozell follows:]
Prepared Statement of L. Brent Bozell III, President and Founder,
Parents Television Council
Chairman McCain, Senator Hollings and Members of the Committee, I
appreciate the opportunity to appear before you to testify on this
important issue.
Today I represent the Parents Television Council's 800,000 members,
and untold millions of parents who, like me, are disgusted, revolted,
fed up, horrified--I don't know how to underscore this enough--by the
raw sewage, ultra violence, graphic sex, and raunchy language that is
flooding into our living rooms night and day by giant media
corporations with no concerns whatsoever for community standards.
That's why I strongly support the effort to return the media
ownership cap to 35 percent. Citizens not only have a right but also a
need to have a voice in their local communities.
In 1989 the Big Three networks--NBC, ABC, and CBS--held a 17
percent ownership share of TV programming. By 2002 it had increased to
48 percent. Now add Fox, AOL/Time Warner, and AT&T/Liberty, and these
six megacorporations today control two-thirds of all viewers on
television. Let's be clear here: further deregulation will give them
even further control of the airwaves. And the losers are the local
communities whose standards of decency are being ignored, completely
ignored, by these media giants. There will be the same old tired voices
that will say this is about competition. Lets be clear on this--there
is NO competition here. You can't compete against multi-billion dollar
oligopolies.
There are many reasons not to give these six megacorporations even
more control of our airwaves, one of them being their utter lack of
attentiveness to community standards. In the last year the PTC has sent
out over 1.5 million community standard audits, of which over 128,000
have been returned. The numbers speak for themselves: 94.2 percent
believe there shouldn't be graphic violence during children's viewing
time, 94.3 percent are against descriptions of sexual encounters, and
94.6 percent are opposed to strong sexual language during children's
viewing times. Guess what? All these things can now be found on
television, courtesy of these six megacorporations. They could care
less who they offend and now want even more control of the airwaves
where they can offend even more.
This is a first amendment issue. It's about the right of citizens
to speak up about what they want coming across the broadcast airwaves
they own, in their local communities, where their voice should count
the most, without being silenced by corporate executives in New York
and Los Angeles.
This is how the networks feel about local community standards. In a
PTC survey of network owned-and-operated affiliates, not one told us it
had willingly preempted network programming on the basis of community
standards. Some told us that because of network contractual
obligations, they could not preempt network programming. In fact, some
Fox and CBS affiliates said they weren't allowed to see advance copies
of reality programming.
When NBC aired Maxim's Top 100, 26 independent NBC affiliates chose
not to telecast the program that many believed bordered on the
pornographic and which was certainly not in keeping with their
community standards. And yet not one NBC owned and operated affiliate
preempted it based on community standards.
In a 43-page petition brought to the FCC on behalf of more than 600
affiliates nationwide, the Network Affiliated Stations Alliance (NASA)
complained that under virtually every current affiliation agreement, an
affiliate risks losing its affiliation if it preempts more than a few
hours of network programming without approval.
The president of NASA said, ``We are partners with the networks,
but we cannot stand by and let them control our local stations. We know
what works best for our local communities, and by law those decisions
cannot be made in Hollywood or New York.''
Now ask those New York and Hollywood media behemoths how important
the issue of indecency is to them. I wonder if you will find one
executive--I don't know of a one--who will even speak out about it
publicly, much less do a thing to stop it.
Consider Keen Eddie, a new show on the Fox entertainment network
which aired on June 10, at 9:00 p.m. I don't mean to offend, but you
must know what is being broadcast over the public airwaves to millions
of impressionable children--perhaps your own children--in their living
rooms. Keen Eddie featured a plot about a band of thugs trafficking in
horse semen and hiring a prostitute to perform a sex act with a horse,
so as to extract the semen from it.
Here is the actual dialogue:
Prostitute: ``No, that's not natural!''
Thug: ``Extraction for insemination. If you look at the picture
on page 45 you'll see how natural it is.''
Second Thug: ``You're a 40-year-old filthy slut, you'll do
anything.''
Prostitute: ``With a human.''
But the prostitute agrees to go through with it, except the horse
suddenly drops dead, at which point she says, ``I never laid a finger
on it. I lifted up my blouse, that's all . . . He needs to get
aroused.''
On national television. To millions of impressionable children.
Over the public airwaves, into the family home, ``The one place,''
according to the Supreme Court, ``where people ordinarily have the
right not to be assaulted by uninvited and offensive sights and
sounds.''
Chairman Powell has called it ``garbage'' that anyone would suggest
the FCC cares as little about community concerns as the networks it is
meant to be monitoring. Let's see about that.
Over 10,500 complaints were sent to the FCC about the Keen Eddie
sewage. Not one person, to my knowledge, has heard back. Not one. And
guess how many stations the FCC has fined in the continental United
States for airing indecency in the entire history of the FCC? Are you
ready? Not a single one. In other words, according to the FCC, nothing,
but nothing, on television has ever been indecent. You would be hard
pressed to find a parent anywhere in America to agree with that
assessment. It is NOT ``garbage'' to say the FCC doesn't care and is
not doing its job.
There are some at the FCC who are trying to do their job regarding
the filth coming across our airwaves, but as a whole, this Commission
has failed.
It is my fervent hope that Congress will tell the FCC that it will
not permit its Pontius Pilate-like decision to allow these media
titans--who have so badly abused their privilege to broadcast on the
public airwaves--even more access to them. It is my further hope that
the Congress will demand that the FCC start doing its job.
The Chairman. Thank you very much, Mr. Bozell.
Mr. Davis, have you ever preempted network programming
because you didn't believe it met your community standards?
Mr. Davis. If you're talking about an entire entertainment
programming, not since I've been general manager in 1997. We
have asked on occasion and received from the network if they
had copies to look at in their discussions about certain
scenes----
The Chairman. My question was, have you ever preempted
network programming because you didn't believe it met your
community standards, yes or no?
Mr. Davis. No.
The Chairman. Thank you.
As general manager, how do you decide whether Disney's
programming meets Philadelphia's community standards?
Mr. Davis. Well, we obviously serve a very large community.
We have 2.8 million homes. As Mr. Hollings----
The Chairman. My question is, how do you determine whether
it meets Philadelphia's community standards?
Mr. Davis. Based on my 13 years of living there, working
there, raising my family there, talking to people in the
community, which I avail myself--I answer every piece of mail,
every phone call, every e-mail from viewers, we have a
Community Advisory Board that I talked about, I'm on boards of
four or five nonprofit organizations involved in the community,
I encourage other employees to do the same thing, we tend to
hire people who are part of the community, who stay there. We
have a very stable workforce and work very hard to reflect the
community.
I don't operate the station in how I personally, my own
personal standards and tastes. Those would be rather narrow,
compared to our total audience, so I try to operate in such a
way as to give the viewers the benefit of the doubt, to choose
the programming that they want to watch. We are very careful.
If we don't think the network has done a good enough job of
notifying people ahead of time about some content within the
shows, we do that ourselves.
I remember when NYPD Blue started, we got a lot of concern
ahead of time before it even aired, from interest groups, from
citizens. We responded to all those complaints. We looked at
the episodes ahead of time, talked to the networks, and after
it aired, we have yet to receive any large complaints about the
quality of that show.
The Chairman. Thank you, Mr. Davis.
Mr. Faber, Sinclair's CEO, David Smith, is quoted in the
article in the Washington Post dated May 31 as stating, and I
quote, ``if I go into the marketplace with an old-line view of
how to do news, I don't see how it works. The first analysis is
the business analysis. The second one is, how does what we're
doing serve the public?''
How in the world do you justify a statement like that, Mr.
Faber, when you are receiving the spectrum for free, and you
are committing in writing to serve in the public interest? How
do you justify a statement, the first analysis is the business
analysis? We're talking about news now. According to Mr. Smith,
if I go into the marketplace with an old-line view of how to do
news, I don't see how it works. The first analysis is the
business analysis--of news. The second one is, how does what
we're doing serve the public?
Mr. Faber. Well, I think that our view is that generally
those two goals are very compatible with one another.
Typically, serving the public interest leads to better
viewership, which we leads to, you know, the business running
better. We find them very compatible goals.
The Chairman. But that's not what Mr. Smith said. That's a
wonderful response, but it's not what Mr. Smith said.
Mr. Smith says, if I go into the marketplace with an old
line view of how to do news, I don't see how it works. The
first analysis is the business analysis. The second one is, how
does what we're doing serve the public, and the reason why I
ask that is because you've done really incredible things with
local news, having the broadcaster dress up and say, here we
are in--I've forgotten, I'll find it here--weatherman Vigus
Reed is bundled in a black overcoat and plaid muffler as he
delivers a frigid forecast on Fox 66 in Flint, Michigan.
Although he was forecasting for Central Michigan, Reed was
actually hundreds of miles away in a TV studio north of
Baltimore. Is that how you make it business work first?
Why don't you have a local weatherman at these stations,
Mr. Faber? That's localism at its best.
Mr. Faber. I'm not sure I agree with that. I mean, a local
weatherman at a television station typically is relying on
weather data that's provided from a weather service that's not
located in his market.
The Chairman. Sometimes he's relying on somebody like
Senator Dorgan says who is out there outside, watching the
weather.
Mr. Faber. And in every market where we do news we have
local people in that market. We're not simply sitting in
Baltimore doing the news from there.
The Chairman. Do you have local weather people in that
market?
Mr. Faber. No, we don't, but if you can let me answer the
question, the weather person is in contact every day with the
people in that station, so to the extent that weather people
need the reality check of looking outside and seeing what the
weather's like, that reality check goes on every single day.
The data that they use to predict the weather and do their
weather report is, as I said, it' s not coming from that
market. It's coming from a National Weather Service that is
located in another market, and we use the exact same data in
Baltimore.
The other thing that's important to remember with a company
like Sinclair, of the 62 television stations that we own or
provide services to, 46 of them, I believe, are affiliated with
the Fox, WB, or UPN networks, and two of them are independent,
so 48 of our 62 stations that we either own or provide services
to are not Big Three affiliates. It is very difficult to
justify having a weather person at a television station when
you're going to have 1 hour of news a day. It's very
different--as Mr. Davis said, they have 30 hours a week on a
Big Three affiliate so they can afford to have somebody doing
weather, because they're doing 4-1/2 hours of news a day.
The only way we can even make this work economically,
typically, is to have an hour of news a day, to give people a
choice an hour earlier from the normal network news, which airs
at 11 East Coast Time or 10 Central, and we air news typically
on those stations, the Fox-WB-UPN stations, at 10 or 9 Central,
and that's the only news we do during the day. It's too
expensive.
The Chairman. The New York Times quotes Scott Paget, a
Sinclair anchor located in Baltimore, stating, there will be a
high of 57 for us here in Flint, during a broadcast submitted
to Sinclair's Flint station.
Mr. Kaplan states, in his testimony, that the Media General
station in Greenville, South Carolina aired 146 campaign
stories 7 weeks before Election Day, compared to the Sinclair
station in that same community that aired 40 stories.
Dean Kaplan also stated the average candidate sound bite on
the Sinclair station in Greenville was 70 seconds, which places
that station in the bottom 10 percent of the national sample,
where the Media General station candidate sound bite averaged
36 seconds.
Would you like to respond to that finding?
Mr. Faber. Well, it's difficult to respond because I
haven't looked at the facts of all of our stations.
The Chairman. I just gave you the facts.
Mr. Faber. Well, you've given me one station.
The Chairman. Would you like to respond to that station?
Mr. Faber. Well, that station, just so you know, is not a
News Central station, so it has nothing to do with the News
Central operations, and no, it's a decision that's made by the
local news director there as to how to best serve the needs of
this community.
The Chairman. Does Sinclair broadcast any public affairs
shows in its local stations, such as Mr. Davis' station does?
Mr. Faber. I don't have a list of them. Some of our
stations do present public affairs programming.
The Chairman. Please provide us a list for the benefit of
the Committee. I thank you. My time has expired.
Senator Hollings.
Senator Hollings. What is a News Central station, because I
know those stations. LOS is up in Asheville. It covers the
Greenville--actually, SPA is over in Spartanburg. It covers the
Greenville area, but what do you mean--the excuse you gave, it
wasn't a News Central station. What does that mean?
Mr. Faber. Well, it wasn't intended as an excuse. It was
just simply that I was talking about News Central, and I wanted
to make clear that that station was not News Central.
What a News Central station is, is a station that has a
locally based group of reporters and producers and a news
director focusing solely on local news in that community. Then
they also present as part of their news programming when they
go to the national and international news, that comes out of a
central location in Baltimore.
So for example, just to give you an example, I watched last
night--I went to our station in Baltimore. I watched them
produce it. I also watched on a computer the news coming from
each of our different News Central stations. We currently have
six of them, I believe, and in Flint, Michigan, which never had
news before, it starts out, there is a local person in Flint,
Michigan reporting on the day's events in Flint, Michigan and
the surrounding area.
At the same time, in Rochester, New York, there is a local
Rochester-based anchor, and as well as Rochester and Flint-
based reporters that are included as part of this, who will
say, now we go to so-and-so, reporting at the city council
meeting, or whatever you have. In Rochester during that same
period that Flint is reporting on what's going on in Flint,
they're reporting in Rochester about what's going on in
Rochester.
After a certain period of time where they've presented the
amount of local news that we have time for, they say something
along the lines of, now for a national----
Senator Hollings. Mr. Faber, I'm sorry I asked that
question.
[Laughter.]
Senator Hollings. I mean, you have me lost between three
communities. All I know is that LOS and SBA compete in the same
market, and now there's all this News Central and stuff, and
everything else like that, and one is given 40-some and the
other is given only 7 and to go right to the point, on your
Sinclair stations I have just a regular news release of a
business journal here in March, where it says Sinclair's KOAH
station, Oklahoma City, instead of local news and Sinclair's
Baltimore-based News Central, the station aired Andy Griffith
when they suffered a major meltdown last night while a tornado
swept through the town.
Otherwise, you have again in Oklahoma City, one Oklahoma
station said tennis ball-size hail was raining down in the
southwest part of the viewing area, and power poles were
snapped, and I turned it over to the Sinclair station to find--
nothing. No map, nothing. It went on that way until later on.
Again, I can go to Raleigh, North Carolina, I can go to
Pittsburgh, the news director Poister is leaving Sinclair's
station there, Sinclair recently dropped weekend weather at the
station, and many believe that Poister's jumping ship before
the company guts the entire news department. Alan Frank has
told his staff that Poister's leaving has nothing to do with
the news, but in Oklahoma City they canned at KOAH the entire
sports department, the entire weather department, one
photographer, one reporter, six other full-time, part-time
workers--I can go right on down to Rochester and all of these
other things--I'm just quoting, Sinclair is becoming the expert
on news light. That's the problem. That's the problem.
Mr. Faber. Well, Sinclair's increased--by the end of this
year we will have increased by over 200 people the number of
people working for us in the news operation.
Senator Hollings. Well, they must be turning into witnesses
to come to Washington, because they're not putting on the
news----
Mr. Faber. No, that's not true, because we're adding news.
Senator Hollings.--I can tell you that.
Mr. Faber. No, News Central is allowing us to add news in a
large number of markets that otherwise would not have any news
on those stations.
Senator Hollings. Well, put a release out on it, because
I'm only reading the release. With respect to Mr. Bozell,
that's outstanding testimony. Here--and have that filth on
television, and you say not one, not one has been fined for
indecency, yet the Supreme Court has confirmed that
responsibility in the Federal Communications Commission.
And Mr. Kaplan, right to the point, I'll never forget
during that campaign my California friends say, they just don't
cover politics any more. They all hire a helicopter. They all
hire a helicopter and they run out and they cover some kind of
wreck, or whatever it is, or crime story, because they just
don't cover it any more, and what you've done is, you've given
me the actual studied fact that the large owners carry a lower
percentage of news than the national average, while the small-
size owners carry a higher percent of the local story, so as we
get larger, what we are allowing is an elimination of news
coverage and localism and everything else like that, and that's
coming from your expert study.
Thank you, Mr. Chairman.
The Chairman. Senator Lott.
Senator Lott. I'll pass.
The Chairman. Senator Dorgan.
Senator Dorgan. Mr. Chairman, thank you very much.
Mr. Davis, first of all, I enjoyed your testimony, and it
seems to me your station does a lot of good things, and let me
ask you a question, because the chairman asked you a question
about local standards, and your judgment about these programs.
You heard Mr. Bozell talk about a program called Keen Eddie
and describe part of the dialogue in Keen Eddie. Would you have
aired that on your station, had you taken a look at that prior
to its airing?
Mr. Davis. Fortunately I wouldn't have to make that type of
decision. We would not air it because I don't believe our
network would produce a program that contained that material. I
have good faith. I know the people that run our network, and I
just don't think that that would be something that they would
produce.
Senator Dorgan. So, because you feel that way, you would
not have run Keen Eddie if it had been presented to you?
Mr. Davis. No, I would have to make that decision once I
saw the entire program in context.
Senator Dorgan. But the reason I'm asking the question is,
Senator McCain, you say you make a decision based on 13 years
of your experience living in the area, and I think Senator
McCain was trying to get at the notion of how do you make that
judgment?
Mr. Davis. I don't want my answer to Senator McCain to give
you the impression that I don't feel that I have the
independence or the ability to make those decisions. We happen
to run the network. I think Disney has established itself. We
certainly exceed the amount of quality and quantity of
children's programming.
The Disney Corporation in Florida as far as its regard to
family dealing has been well-established, and fortunately I
don't work for a company that has to make those type of
decisions, but if I were, if that were presented to me, I would
certainly have the ability to not air something that I did not
think----
Senator Dorgan. Mr. Davis, the reason I asked the question
is, this hearing is about localism, and standards, and so the
question has been asked about standards, and a specific example
was given. You came here as a broadcaster and I was hoping you
might use that specific example and tell me whether it's
something you thought you would air in your market or not.
Mr. Davis. Just based on what I heard, it doesn't sound
like something that I would look forward to presenting to the
viewers in the Greater Philadelphia region, no.
Here's the--I remember, we heard earlier about the NAB code
of conduct. My understanding, and my history may not be
entirely correct, but I think a producer named Norman Lear was
instrumental in a lawsuit that specifically did away with that
code, and do you remember All in the Family? And some of those
shows at the time were considered very controversial, had
language, and I'm not defending this show or this dialogue.
Senator Dorgan. I understand.
Mr. Davis. It's not produced by our company.
Senator Dorgan. I understand, but you're here as a
broadcaster. I was just trying to get a sense of that.
Also--and as I said when I started, it sounds to me from
your recitation of what you do, your company does a lot of
public-spirited things. Would you do me a favor with respect to
your company as well. We have this publication, ``Profiteering
on Democracy.'' Would you take a look through this and then
give the Committee an analysis of what your company does with
respect to rates for campaign ads?
Mr. Davis. Sure.
Senator Dorgan. I think one of my colleagues suggested that
what is happening to politicians and to campaigns for elective
office in this country is, they are being fundraisers now for
broadcast companies who deliberately and in a very concerted
way raise their rates in order to profiteer with respect to
election campaigns. Just take a look at this. I'm not
suggesting that your company's involved.
But Mr. Faber, this is most interesting to me, your
discussion of Central Casting. You said, you can't justify a
weather person for 1 hour a day. Well, I come from North
Dakota. Bismarck, North Dakota is a town of about 40,000 to
50,000, now it's over 50,000, but Bismarck has always had a
weather person. From the day it started, KFOR television had a
weather person, a colorful, interesting person whose job it was
to present the weather. In North Dakota weather sometimes in
the middle of the winter with a fast-moving, devastating
snowstorm can be life or death.
So most television stations around the country have always
had a weather person. When did it become something that is a
part of the discussion that it's too expensive to have a
weather person? When did that become a part of the discussion
about owning a television station?
Mr. Faber. I don't know the station that you're referring
to in Bismarck, but I'm going to assume that it's an NBC, ABC,
or CBS affiliate. I'm also going to assume that it has several
hours of news a day, and what Sinclair typically owns, again,
are these Fox, WB, and UPN.
We typically borrowed the third or fourth or fifth rated
newscaster in the market. It is a difficult proposition when
you're only polling 1 hour a day--I mean, I will tell you, when
I got to Sinclair--I've been at Sinclair for 7 years, and when
I started at Sinclair our corporate offices were located in the
same building where one of our stations broadcast in Baltimore,
Maryland, the Fox affiliate there, and at the time that station
had 1 hour of news at 10 during the day.
I'd never been in the industry, and I would spend a little
bit of time wandering around the building and the people who
were running the television station, trying to learn the
industry, and I have to tell you, I couldn't imagine--I mean,
from being in Washington and being down there, I remember
asking somebody, what does a weather person do all day, and the
answer was, not much. I mean, there's just not enough time.
When you're only doing an hour of newscasting a day, it doesn't
justify it.
And I remember, when you have a major news weather story,
if we're having blizzards in one of our markets or any serious
weather, we cover that as a news story, locally in the market.
I mean, Senator Hollings----
Senator Dorgan. You could do your weather from Singapore,
couldn't you?
Mr. Faber. We could do weather from anywhere you want, just
like the Weather Channel does, for example.
Senator Dorgan. So then what about Senator Hollings'
description--well, I think he was describing one of your
stations from a viewer saying, on one station we see the
devastation of this storm, we see the physical impact of this
storm, the effect on people of this storm, it's being broadcast
live by people who are explaining the consequences of it, and
you have a meteorologist describing where the storm is moving,
what it might mean to people, and on your station, what do you
have on there? I hope it's not Keen Eddie, but you're running I
love Lucy rerun as if there is a storm.
Mr. Faber. Well, you're relying on, I guess, one e-mail
from somebody. In Oklahoma City we covered the tornados that
happened in Oklahoma recently extensively with local newscasts,
so it's just not true what you've been told, it's simply not
true. We covered it extensively in Oklahoma City.
Senator Dorgan. Well, are you going to believe me, or your
own eyes? I mean, is that what you're telling me? We've got the
evidence here, and you said yourself that somehow--you said,
the fact is, news in some cases too extensive. It seems to me
that part of the ability that the American people give you to
use the airways encumbers you with the responsibility to
provide certain things to the people. One of them, in my
judgment, is localism, and that means news coverage.
Mr. Faber. But you don't require every television station
in this country to have news. We're moving in the direction of
putting news on, unlike other companies, who own WB and UPN and
Fox affiliates who don't put them on. We're increasing the
news.
I mean, the alternative isn't having a full-blown news
staff with an anchor there and a weather person there. The
alternative is having no news there.
Senator Dorgan. Mr. Faber, the point of this hearing is
about the FCC rules and about localism and how you're
antithetical to each other, and the fact is, you know and I
know that we're moving in the opposite direction. We don't have
massive amounts of stations out there adding people to the
newsrooms. We have virtual news rooms these days with nobody
present. That's why we're concerned about it.
Mr. Faber. Not on television that I know of.
Senator Dorgan. I understand your testimony. Your testimony
is, this is a business, the question is, are we making money,
and that's all that matters.
Mr. Faber. That's not my testimony.
Senator Dorgan. Well, that's what I heard, and what matters
to some of us is, there are public interest requirements, and
requirements of localism and diversity from a public policy
standpoint that we must be concerned about, and there are some
out there owning these stations that don't give a rip about it,
don't give a rip, and we are moving so far away from it, and in
fact the majority of the FCC doesn't care about it, and that's
why the folks, Mr. Bozell, that have complained with respect to
your issue haven't received a postcard back, because we've got
people that don't understand they're supposed to be referees
here, and there are basic requirements of localism.
I appreciate your testifying, Mr. Faber, but in my
judgment, Central Casting is part of the problem that we
confront here in losing localism in broadcasting, and you say--
let me just make one final point. You say, if you have a news
story, and you can Central Cast it to 39 stations, it's more
efficient. What about, in one of those 39 stations, having
somebody interpret that national news story in terms of what
does it mean to Charlotte, what does it mean to Bismarck, what
re its consequences for Tulsa? What about that interpretation
of local news?
Mr. Faber. I think that the important thing, the point I'm
trying to make is, in the absence of Central Casting, with the
type of news stations that we have, the type of television
stations that we have, there has to be--we believe news is
important. We believe in the public interest, and we believe
providing news is an important thing that we do to serve the
public interest of our communities. We truly believe that.
Unfortunately, at some point the business of running
television stations has to enter into the picture, and from an
economic standpoint the choice becomes in many instances, have
news with the Central Casting model that we're using, or don't
have news at all. If you look in markets of similar size, where
we're starting the news on a Fox or a WB or a UPN, and you
stop, and you look at other owners who own a WB or Fox or UPN
in a similar size market, you'll find they simply don't have
news.
Senator Dorgan. Mr. Chairman, I regret my time is up. I had
wanted to ask Mr. Kaplan something, but I think your
testimony--I read it last evening, Mr. Kaplan. I think you do a
real service in the studies that you prepared and presented to
us, and I mean, I think we have to track these further. We need
more national analysis of the kinds of studies that you have
begun to present this morning, and look, I think these are
really, really important issues.
It just is not satisfactory to me, especially coming from a
State that has some weather issues out there from time to
time--rarely, I should say, for the tourism standpoint.
[Laughter.]
Senator Dorgan. But we do have some weather issues, and it
is not satisfactory to say there's only one set of weather data
and that comes from some national source. If that's the belief,
you can just go to the Internet and broadcast from Singapore
and tell us what the weather is going to be in Mission Ridge,
South Dakota, or New Town, North Dakota, but it is not
satisfactory to me, so that's what localism is about.
So I'm so pleased, Mr. Chairman, that you've decided to
hold this hearing. It's the first one I've seen of this type
since I've been on this Committee, and we need to keep pushing
on these issues, because otherwise this inevitably moves in the
wrong direction, and localism gets lost because it's tirelessly
old-fashioned, and this is all about profit and business
practices, and the American people lose because they owned the
airwaves in the first place, and there ought to be some payback
with respect to the use of those airwaves.
The Chairman. Senator Lautenberg.
Senator Lautenberg. Yes, thanks, Mr. Chairman. I wanted to
ask Mr. Davis, who I do know, and over a long period of time,
and I never saw a bias in your campaign reporting that favored
me, but----
[Laughter.]
Senator Lautenberg. But we did well, and I thank you for
your hard work, and I was kind of musing with my colleague over
here as you were talking about all the parades and all the
other things you do. The question is, do you have any time left
for revenue-producing programming?
But your presence, of course, in my state is critical in
terms of the population there, because we don't have the
television coverage in that part of our State.
How do you decide how you cover New Jersey? Is there a
percentage of the effort that is devoted there? You have an
office in Trenton, I think.
Mr. Davis. Yes, we know approximately 28 percent of our
television homes are in the southern half of New Jersey. As you
know, our coverage area goes from roughly Trenton over to the
coast, and we try to make sure we have the distance of, like I
say, the two news bureaus with dedicated reporters and
photographers in Trenton and in Margate, on the Jersey Shore.
We also have Philadelphia-based Kathy Gandolfo, who covers
parts of New Jersey to Philadelphia, and in addition to the
half-hour public affairs show we focus on New Jersey, so we're
certainly sensitive to New Jersey, who through no fault of its
own doesn't have its own Philadelphia television stations, and
of course our station in New York, Channel 7 is responsible for
covering the northern half of New Jersey, and has the same
commitment to the State through their facilities.
Senator Lautenberg. I noted one thing here with your sister
station, and that is that campaign time, that in PBI your rate
over a period of time from August, September to just before the
election takes place October 28, November 4, the rate per 30-
second candidate had reduced by 8.8 percent. Your New York
affiliate, or vice versa, the New York headquarters main
station, went up by 67 percent in the same period of time. Was
business bad down in your area, or what happened up in the New
York area that did this to those who wanted to have the news
and those who wanted to give some of the news about the
campaign?
Mr. Davis. Well, I would say, without knowing specifically
the time periods and those stations, I've always said, if you
all can schedule elections in August and January, you would
probably have a certainly lower demand for advertising. The
fall and the spring when primary and general elections are held
are the same times you have back to school and retail
operations, local merchants advertising the most, the heaviest.
You know, on political advertising, I can honestly say
we've never gone out and solicited or made presentations to
media buyers to buy political advertising. We obviously give
discounted rates. It's not necessarily the best way to operate
from a business standpoint. I don't know the particulars about
WABC. I do know they have the policies that they work very
closely to make sure we're within every FCC guideline on
campaign and political advertising, so I suspect that it is a
reflection of that particular marketplace and the demand of the
marketplace in that timeframe.
Senator Lautenberg. Well, what happens when we have, let's
say, a gubernatorial campaign in New Jersey? It doesn't
necessarily run in the same cycle--it doesn't run in the same
cycle as Pennsylvania. Do you then stretch that percentage of
coverage of New Jersey because the event is that much more----
Mr. Davis. Oh, sure. Oh, absolutely. When there's a high
profile race, or a high profile, a major story in New Jersey.
We don't look every day and say, only 28 percent of our story
can be from New Jersey. That goes up or down throughout the
year.
Senator Lautenberg. What kind of latitude do you have as
you try to meet the audience views of what's taking place? Have
you made your statement about your personal involvement in
community and so forth. Are you in New Jersey when that's being
done, too?
Mr. Davis. Oh, absolutely.
Senator Lautenberg. Are the appetites are exactly the same?
Mr. Davis. Absolutely, and we have a good number of our
employees that live and work in New Jersey, who are members of
the New Jersey Association of Broadcasters. We worked in the
New Jersey League of Women Voters on the debates and on the
campaign coverage so absolutely, very sensitive, and also to
Delaware, I should say. We're responsible for the northern two
counties of Delaware.
Senator Lautenberg. I want to thank you for your
presentation. I thought it was very good.
I want to ask Mr. Bozell a question here, and that relates
to--and I couldn't agree with you more in your statements about
what's appropriate and so forth, and the example that Senator
Dorgan used is disgusting. I mean, it's just awful to put that
kind of material out there for, I don't know how it generates
any interest, but it's just vulgar, I think.
But here's where I find a little inconsistency. Shows, for
instance, on the Fox Network are widely regarded as leading the
way in defining deviancy and indecency. Now, ironically, Fox
News and the network's founder, Rupert Murdoch, are unabashedly
conservative. Is there a contradiction here, or have you taken
your fellow conservatives at Fox to task for claiming family
values while working for a network responsible for so much of
the trash that's currently on TV?
Mr. Bozell. Well, sometimes I think it's a network badly in
need of lithium, but you have to understand, Senator, it is two
very different operations. What goes on on the East Coast is
completely different than what goes on on the West Coast. It is
two completely separate management entities. At the very top
you have an owner who does control both who ought to be held
accountable, and as a conservative myself who has been very
supportive of many things he may have done in a political
sense, I'm appalled at what he's done with the popular culture,
and I think that fairness demands that one say that.
It's not just Keen Eddie. I mean, there are plenty of other
shows on that network where there are programs that, Senator,
are aimed at children. They're not aimed at adults. They are
not aimed at you, they're aimed at your children. Do you know
what preceded this show that led the viewing audience into Keen
Eddie? American Juniors, I believe it is, which is another one
of these American Idol things, but now aimed at teenagers. It
was designed to bring that audience into the 9 hour for Keen
Eddie.
There is something almost sick about this, and I think that
it's extraordinary that the Federal Communication Commission
that is empowered by law to do something about this has never,
ever said anything about any program ever, and every survey in
the world shows you, 97 percent or more of the public is fed up
with this, and yet the FCC won't do anything.
Senator Lautenberg. Thank you, Mr. Chairman. Thanks to all
of you.
The Chairman. Thank you. Senator Cantwell.
STATEMENT OF HON. MARIA CANTWELL,
U.S. SENATOR FROM WASHINGTON
Senator Cantwell. Thanks, Mr. Chairman, and I'd just like
to add my appreciation for you holding this important hearing
on this issue. It's something that the State of Washington
cares a great deal about.
I guess Mr. Faber and Mr. Davis had a recent experience in
our media market where there was a story about the signing of
the President's tax package, and at the signing of that tax
package the broadcast said, the President's signing the tax cut
passed by Congress today, and it showed a picture of several of
my colleagues, some from Washington State, some not from
Washington State, who did not support that tax package. Do you
think that that's accurate broadcasting, or in the public's
interest?
Mr. Faber. I'd have to see it, I think, before I could
comment on that.
Senator Cantwell. Because showing a picture of a Member of
Congress at the same time the content says the President's
signing the tax package isn't clear?
Mr. Faber. I just feel like I'd have to see it. I don't
quite--I mean, I understand what you're saying, but I don't----
Senator Cantwell. Do you think it would be inaccurate if
you made a statement that the President was signing the tax
package and it showed a picture at the signing of the White
House of another bill and it was, in fact, giving the viewers
the impression----
Mr. Faber. I'm sorry, so it was showing another bill. There
were people there standing next to the President----
Senator Cantwell. Yes, they would show the President
signing a bill, and it showed Members of Congress standing next
to him.
Mr. Faber. It doesn't sound--I mean, again, I wouldn't want
to criticize them without actually seeing it, but it doesn't
sound like good journalism, no.
Senator Cantwell. Do you think that's in the public's
interest, when you have inaccuracies?
Mr. Faber. Absolutely I don't think it's in the public
interest to have inaccuracies in your news, no, I don't.
Senator Cantwell. A recent study by Children Now found that
the hours of programming for children's content in Los Angeles
decreased by half between 1998 and 2003, and at the same time
in that media market, the number of station owners in the media
market went from seven to five. Do you think that the decrease
in that amount of content is in the public's interest?
Mr. Faber. I don't know what is the right amount of
children's programming on broadcast television.
If I can--you didn't quite ask this question, but you
mentioned the decrease in the number of owners.
Senator Cantwell. No, increase in the number of owners,
decrease in the amount of children's programming during that
same period.
Mr. Faber. I thought it was a consolidation you were
talking about.
Senator Cantwell. Oh, yes, sorry. Sorry.
Mr. Faber. And I just, I will comment that I don't believe
that the consolidation of the industry has anything to do with
the reduction of children's programming on broadcast
television. I believe the growth and tremendous popularity of
children's programming on cable networks has led to the
decrease of children's programming on broadcast television.
Senator Cantwell. But availability in that market actually
decreased.
Mr. Faber. Locally, I mean, yes, it sounds like it did.
They reduced the number of hours. I'm just saying it had
nothing to do, in my view, with the fact that it was
consolidation of the industry. It had to do with the fact that
it has become tremendously difficult to find advertisers for
children's programming on broadcast television stations because
they're putting all their money on cable.
Senator Cantwell. Well, shouldn't something like that be
part of how you would measure public interest in programming of
content, a variety of content?
Mr. Faber. I think it is. I think it is, and I think that
again I'm just saying that I don't know how many hours they
started with and how many hours they ended up with, so I don't
know that necessarily reducing the number of hours that they
had--they may have had too much. I mean, I don't disagree that
it's in the public interest to have a certain amount of
educational children's television programming on television
stations. I don't know the exact right number. The FCC has
rules about what you should have on. Whether that's the right
number or not, I mean, we comply with those rules and sometimes
exceed them.
Senator Cantwell. Would you be willing to put your content
that you think meets the public interest standard, would you be
willing to put that in some sort of documentation, or online,
that shows this is how you're meeting the public interest?
Mr. Faber. Well, with regard to children's programming,
there's actually a form that every television station completes
quarterly detailing how they've met what is called core
programming, which is programming aimed at children between the
ages, I believe of 2 and 12--2 and 16, and that's educational
and informative in nature. This is called a form 398. Every
television station in the country does it quarterly, and those
are filed with the FCC and are available publicly on the FCC's
database currently.
Senator Cantwell. Are you willing to put other content, Mr.
Faber and Mr. Davis, online as to what you think your stations
are meeting the public interest standard with?
Mr. Faber. I'd certainly look into it. I mean, we also did
what's called a quarterly programming report that is similar to
the children's--I believe Commissioner Copps mentioned it
earlier, that all stations do, and put in their public file
quarterly detailing the programming that they believe met the
public interest during that quarter and what their plans are
for the upcoming quarter, and I just need to look into
whether--I mean, it would be a lot easier if the FCC frankly
made that so that you could just do it like the children's--we
don't have any problem with making that available.
I mean, it's on the public file, which is available to any
member of the public. It's just a question, again, we are
running a business, and before I'd say yes, we'll go do that,
I'd be interested to find out from our intellectual technology
people what the cost and difficulty of doing that would be.
As I said, if the FCC could just set it up so that you'd do
it just like you do the children's I think it would be much
easier, and every television station in the country could do
it.
Senator Cantwell. I know my time has expired, Mr. Chairman,
but Mr. Davis, would you like to comment on that?
Mr. Davis. Well just, this is our most recent quarterly
programming report. Obviously it's in the public file and we
could submit it to the Committee or anybody else that wants to
look at it. We're proud of it. We have no reason not to let
anybody see it.
Senator Cantwell. That's all your programming you think
meets the public interest----
Mr. Davis. It's the quarterly listing of community related
programming. It's an FCC-directed form where we document all of
the programming and things that we do within the news and
public affairs programming that we have that in our opinion
serves the public interest.
Senator Cantwell. Thank you. Thank you, Mr. Chairman.
The Chairman. Thank you very much, Senator Cantwell.
According to this study, conducted by the Alliance for
Better Campaigns, they studied 37,000 political ads on 39 local
television stations in 19 states, and found that the average
price of a candidate ad rose 53 percent from the end of August
to the end of October of last year, and of course we all know
that we passed the lowest unit charge statute in 1971, where
broadcasters are prohibited from charging candidates more for
ad time than they charge their high volume year-round
advertisers. Obviously, that's not working, because no
candidate now can have their spot guaranteed, so therefore they
will not take advantage of the lowest unit rate rule.
Mr. Corn-Revere, do you think we ought to tighten the law,
and Dean Kaplan, in order to make sure that candidates can get
the lowest unit rate?
Mr. Corn-Revere. I really don't have an opinion on whether
Congress should make changes in that law.
The Chairman. You have no opinion?
Mr. Corn-Revere. No.
The Chairman. Thank you. Dean Kaplan.
Mr. Kaplan. Certainly the law should be enforced. Whether
it requires tightening beyond stringent enforcement, I don't
know.
The Chairman. Well, it's very unfortunate that the law
seems to be avoided because no one who's running for office
wants to have their commercial run at a time when nobody is
watching.
Mr. Corn-Revere, Dean Kaplan states, ``the public interest
obligation has today essentially been entrusted to an
unregulated and unmonitored market.'' Do you believe this
unregulated market is performing in a fashion that serves the
public interest?
Mr. Corn-Revere. Well, again, that goes back to the
question of defining the public interest in the first place,
and as a regulatory matter it's something that the FCC and the
courts have tried to do case by case.
When you look at the various mechanisms that have been
employed over time, ranging from direct content regulations
that have more of a First Amendment difficulty with them to the
option that you describe at the outset of the hearing, of
providing more spectrum for low power FM stations, for example,
all of those are ways of providing greater public interest
programming. Some of them present more constitutional
difficulties than others.
The focus of my testimony was to suggest that the closer
you get to content regulation, the closer you increase the
tensions, the constitutional tensions between the law and the
Constitution.
The Chairman. You heard Mr. Bozell's example of sexual
innuendo being aired at 9 p.m. on Fox. Do you believe that
there's anything Congress can or should do to prevent this?
Mr. Corn-Revere. Well, rather than just look at that one
example, this opens up a whole additional area that we could
spend a great deal of time with.
To begin with, Mr. Bozell is incorrect when he says that
there have been no indecency fines for television broadcasts. I
know of at least two, one in 1988 and one in the mid-nineties,
and part of that goes to the difference between television
programming and radio programming.
It is true that most of the indecency cases have involved
radio programming. There have been a number of other cases
where the FCC has investigated, and it goes to the difficulty
of applying the kind of standard that the FCC has employed.
I'll give you a good example. In 1990, the FCC investigated a
San Francisco public television station for broadcasting the
miniseries, the Singing Detective. This was produced by BBC. It
was a winner of the Peabody Award.
The reason it came to our attention, and I was at the FCC
at the time, was because in the course of 7 hours there were
maybe three scenes that had questionable material, questionable
depending on your perspective.
The Chairman. Of course, that was 13 years ago, Mr. Corn-
Revere, and things have changed rather dramatically.
Mr. Corn-Revere. But because of the FCC's investigation,
which required the station to spend about a year responding to
it, that miniseries has not appeared on television in America
since. It is the application of that standard, no matter how
bad a particular example you may want to talk about here today
maybe, but it is the application of that standard that creates
significant constitutional tensions.
The Chairman. Do you believe Congress could legislate a
family viewing hour that could stand a constitutional
challenge?
Mr. Corn-Revere. No, I do not.
The Chairman. On the issue of cross-ownership very briefly,
the reason why I'm very concerned about it is I have a letter
from a gentleman who is running for office, and in his case--a
quote from his letter--a Baltimore TV station involved in a
campaign of misleading and false allegations about my Navy
service a few days before the 2002 elections. Instead of
exercising journalistic integrity, the station, using blatantly
intimidating tactics, made the charges even after authoritative
Navy documents were given to the station showing the
allegations were false.
But then he goes on to say, of great interest, the station
tried unsuccessfully to persuade local newspapers to print the
same false charges. I wonder, if the television station had
owned the newspaper, whether those false charges would have
been printed in the newspaper, and that is an issue of, I
think, significant concern.
Mr. Faber. Can I respond just very briefly to that?
The Chairman. Sure.
Mr. Faber. Just so you know, we stand by the allegations.
The person that you're talking about----
The Chairman. Stand by the allegations?
Mr. Faber. Yes, absolutely.
The Chairman. Even though the United States Navy responded?
Mr. Faber. The United States Navy responded by--the
candidate that you're talking about stated on his website that
he had won the Silver Star. It was not true. What he had won
was--and I'm not a military person, and I know you have a
history and a background in that, but my understanding is there
are certain medals that you can win, and then you can get a
silver star added to those ribbons. It's different from what
people generally think of as a Silver Star.
The Navy technically said that--and he changed his website
because of the reports. He also said that he had served in
Desert Storm, which he had never served in.
The Chairman. Well, I didn't particularly want to get into
it, but the Navy's official response, quote, allegations that
the captain wore unearned military decorations proved to be
unsubstantiated.
[The information referred to follows:]
Sinclair Broadcast Group
Cockeysville, MD, August 13, 2003
Hon. John McCain,
Chairman, Committee on Commerce,
U.S. Senate,
Washington, DC.
Dear Senator McCain,
I am writing in regards to recent statements you made during a
hearing before the Committee on Commerce, Science and Transportation on
July 23, 2003. During the hearing you repeated unsubstantiated
allegations from a letter addressed to you. This letter included
allegations made against me. I am not aware of any attempt by your
office and/or the Committee staff to verify these unsubstantiated
allegations. Accordingly, I believe it only fair that I have an
opportunity to respond and that you have an obligation to include this
letter in the official hearing record.
You referenced a letter addressed to you from Mr. C. Richard
D'Amato. Mr. D'Amato is not the first, nor will he likely be the last
politician that is unhappy with an investigative news story that
reported on the veracity of campaign claims he made.
In his letter, Mr. D'Amato referred to WBFF-TV as having ``. . .
used false information . . .'' in a news story regarding his claims of
military service. The facts are simple. Mr. D'Amato claimed in campaign
material to having won three Bronze Star and the Armed Forces
Expeditionary Medals for service while serving on board the USS King
(DLG-10) off the coast of Vietnam between 1971 and 1973. He also
claimed in his official Maryland House of Delegates website to having
``served in . . . Operation Desert Storm'' and to having received the
Southwest Asia Service Medal for this service.
A Freedom of Information Act request was filed for his service
record. A thorough review of his service record was made, inquiries
were made of the Navy Awards Office, his service record was reviewed by
Mr. B.G. Burkett, a recognized expert in reviewing suspect military
service claims, telephone discussions were held with Mr. D'Amato and
his attorney, and Mr. D'Amato provided additional military records for
our review. The following was learned.
(1) Mr. D'Amato never received one Bronze Star Medal, let alone
three.
(2) According to the Navy and Marine Corps Awards Manual (SECNAVINST
1650.1G), Navy units were not eligible for the Armed Forces
Expeditionary Medal for Vietnam service between July 3, 1965
and April 29, 1975. The Navy Awards Office confirmed this
exclusion.
(3) Mr. D'Amato did not serve in Operation Desert Storm. He did
perform part of his annual two weeks of active duty for
training in August 1990, the period of Operation Desert Shield,
onboard the USS Dwight D Eisenhower (CVN-69), but he did not
have the minimum 30 days necessary to have earned the Southwest
Asia Service Medal as a Naval reservist. The USS Dwight D
Eisenhower did not participate in actual combat operations so
the time minimum could not have been waived.
(4) Mr. B.G. Burkett who authored the book Stolen Valor conducted
the independent review of Mr. D'Amato's service record. Mr.
Burkett questioned the authenticity of some of the documents
provided by Mr. D'Amato. In addition, Mr. D'Amato refused our
request to provide the DD-214 covering his six years of active
duty service, the period of time in which he claimed to have
originally won the three Bronze Star and Armed Forces
Expeditionary Medals. While the news investigation was
underway, Mr. D'Amato deleted these various claims from his
campaign material, changed his campaign and official House of
Delegates websites and issued a statement referring to these
unsupported claims as ``minor ambiguities.''
Finally, while we appreciate Mr. D'Amato's assertion that no
investigation was launched by the Navy regarding his wearing of
unauthorized medals, no such claim was ever made. However, during the
course of our inquiries, the Commander, Naval Reserve Forces Judge
Advocate General (CNR JAG) requested certain documentation from us,
which we provided. The CNR JAG informed us that he had forwarded the
documentation to the Navy Inspector General's office with a
recommendation it be forwarded to the Department of Defense Inspector
General's office to begin an investigation. CNR JAG officials were
concerned over the unusual circumstances regarding Mr. D'Amato's return
to active duty for two brief periods of time after he had retired. The
Navy IG office recently informed us that it will discontinue pursuing
the investigation as it does not investigate retired officers below the
rank of rear admiral except under extraordinary circumstances.
In conclusion, we continue to stand by the investigative news
story. Extensive research and independent, third party review of his
military records found that several of Mr. D'Amato's claims of military
service and military decorations were unsupported by Navy records or by
his military service records. We have enclosed just a sampling of some
of this extensive documentation.
The fact that Mr. D'Amato deleted these claims from official state
government and campaign material and ceased making these claims while
campaigning speaks volumes.
Sincerely,
Mark E. Hyman.
Attachments
Mr. Faber. That's not the allegation we made on the air. We
did not make an allegation that he wore decorations he had not
earned. We made an allegation that he stated he had won
decorations that he had not.
The Chairman. Well, I'd be glad to pursue it later on, but
it seems to me that the Navy's official response is important
here, but I won't go into it.
Mr. Bozell, what do you want Congress to do?
Mr. Bozell. Senator, I think there are certain steps that
can be taken. First, I think Congress needs to signal to the
FCC that it needs to start doing its job, and since my data was
questioned, I have to say that the data that I used, when I say
that no station in the U.S. has ever been fined, that comes
from the FCC. Go to the FCC. That's what they claim. If they're
wrong, then that's something we ought to ask them. The only
station that's ever been fined was one in Puerto Rico, which I
found rather interesting.
First of all, the Congress should go to the FCC and tell
the FCC that it wants it to get serious about it. It should
raise the fines that you, Senator, are pushing, from that silly
$27,000 figure, which is utterly inconsequential, to $250,000,
as you've suggested, and then make those fines applicable to
every affiliated station that carries something that is
finable, that is found to have been worthy of a fine. If that
were to happen, those affiliate stations immediately would stop
airing this garbage on television. They would stop abusing the
privilege. They would do it immediately if they knew the FCC
was going to be serious.
But in fact, every time the FCC comes forward and says
anything, within minutes, guaranteed that talk radio is just
having a field day. The Howard Sterns are laughing on the air.
They're laughing at the FCC, and, Senator, they're laughing at
you. They're laughing at this whole idea that they might be
constrained from what they're doing, and they continue doing
it.
The Chairman. Final comments. Dean Kaplan.
Mr. Kaplan. I believe sunlight is the best disinfectant.
Right now, stations are required to file quarterly reports on
paper and keep them in their offices that talk about their
public interest programming. They're not required to keep
program logs with time codes. As a consequence, it's next to
impossible for anyone to do the kind of research to create the
kind of public pressure to encourage or shame stations to live
up to their obligations. I believe that asking stations to
disclose what their public affairs programming is, not in
general terms but in specific terms with time codes, and to put
that on the Internet, is a small step that will serve the
public.
The Chairman. Mr. Corn-Revere, final comments?
Mr. Corn-Revere. When I was invited to testify at this
hearing, and heard that it was sort of a review of the good old
days of regulation, and whether or not those days should be
brought back, there tends to be sort of a gauzy memory of how
well that regulation worked.
For those of us that have been at the FCC and seen it
first-hand, I think it bears a closer examination of whether or
not the various mechanisms that you would use to bring
broadcasters to account to see how well they worked in the past
just to see where there was greater participation in the
renewal process and the ability of interest groups to challenge
renewals, that led to a process of green mail, where people
were essentially in the business of challenging license
renewals until they got their payoff. That was something that
the FCC was called upon to address and finally was able to put
a stop to that.
If you take any one of these proposals, whether it's
greater oversight of programming or other measures that you
would sort of reimpose to enforce a vision of the public
interest, you have to consider the unintended consequences of
those actions.
The Chairman. Well, I thank you, Mr. Corn-Revere, and I'm
sorry if you were given the impression that this was a desire
to return to the old days. It was not. The purpose of this
hearing is to ascertain whether the licensees who receive
spectrum for free, which are owned by the taxpayers of America,
were living up to their public interest obligations as we see
them, so I'm sorry you were misinformed as to the intent of
this hearing.
Mr. Faber, a final comment?
Mr. Faber. Yes. I would just like to veer off slightly from
the News Central topic that I focused on in my comments and
just mention something in regards to something Commissioner
Copps said, which is, he has mentioned on numerous occasions,
including today, the 2 million public comments and 99 or
something percent of them are opposed to further deregulation,
and several Members of the Committee seem impressed by this and
impressed by the idea of this rising up of this national
interest against this.
I will tell you, having gone through an awful lot of what's
on the FCC's website that's available, what I believe probably
99 percent of them are, are simply the exact same form letters
that were created by three or four organizations. Hundreds of
thousands of these simply came from members of the National
Rifle Association, who sent out a mass e-mailing to their
membership saying, we have to stop media consolidation, here's
an e-mail, please just click here and this will send it to the
FCC. I don't believe there was a national uprising.
The Chairman. Well, as an elected official I can tell you
that everywhere I go, I'm astonished to hear about the concern
that people have, and that's been voiced on this issue,
including the one that Mr. Bozell raises, so you and I have a
very different view of public opinion and their concern on this
issue, but I appreciate your view.
Mr. Davis.
Mr. Davis. Thank you, Mr. Chairman. I was born in 1952,
about 15 miles south of Cleveland, Ohio. I remember seeing a
little black-and-white television. We could get maybe one or
two channels if the wind was blowing in the right direction.
There was no UHF stations. There was no FM radio. There
certainly was no DVD, VCR, satellite television, satellite
video. All of those things I believe were created by private
industry, who had the benefit of people like yourself creating
the proper atmosphere for those things to grow, and technology
to develop. I would just like you to consider some of those
things going forward, and I appreciate the opportunity to be
here.
The Chairman. I thank the witnesses. It has been a very
interesting hearing. This hearing is adjourned.
[Whereupon, at 12:02 p.m., the Committee adjourned.]
A P P E N D I X
Prepared Statement of Hon. Daniel K. Inouye, U.S. Senator from Hawaii
I want to thank Chairman McCain for holding today's hearing on
media ownership. This hearing is especially timely in the wake of the
FCC's June 2 decision, which relaxed many of the remaining structural
limitations imposed on broadcast companies. Given the alarming
implications of this decision, it is extremely timely that we begin
today to review the behavioral as well as the structural limitations
that serve as a check on large media conglomerates.
Over seventy years ago, broadcasters were made trustees of the
public spectrum. In return for this privilege, came a responsibility to
use the public's airwaves in a manner that would principally serve the
public, not the balance sheets of publicly traded companies. Toward
that end, reasonable limits on media ownership coupled with
requirements encouraging broadcasters to cover issues that are
important to their local communities have historically helped to
maintain a critical balance between the drive for commercial success
and the preservation of a free marketplace of ideas.
Over the last twenty years, there have been sweeping deregulatory
changes in the broadcast market. In the 1980s, the FCC eliminated many
of its public interest rules based on the rationale that competition in
the market would forcebroadcasters to serve the public interest. With
the significant relaxation of the rules since that time, I question
whether the lack of both structural limitations and behavioral
obligations on broadcast companies can continue to be justified.
I look forward to the testimony of the witnesses today and hope
that this hearing will result in recommendations that will be examined
by the FCC and the Congress to ensure that America's broadcast system
continues to serve the people of this diverse nation. Thank you, Mr.
Chairman.