Boo Hoo!...Media Giants Say Anti-Monopoly Rules Governing the Public-Owned, but Corporate-Occupied Airwaves are Unfair...to Them
Feds bottle caps
Congloms prep deals as end to regs looms
By PAMELA MCCLINTOCK, 9/10/2001
WASHINGTON -- The forecast for the next wave of media consolidation got friendlier Friday when a federal appeals court sent strong signals that it will allow networks and the congloms who own them to add unprecedented numbers of TV stations and cable systems to their empires. Reps of the mega-companies that dominate the entertainment biz were present -- and smiling -- during oral arguments before a three-judge appellate panel in the nation's capital. Ultimately, the court's ruling could reshape the TV biz in terms of who controls both programming and distribution. It didn't take long for the robes to begin questioning the merits and constitutionality of two Federal Communications Commission ownership rules underpinning the historic balance between nets and affiliates, as well as the historic tension between broadcasters and cablers.
"You're in a jam," said Judge Harry Edwards to FCC general counsel Grey Pash. CBS, Fox and NBC want the court to scrap an FCC cap that blocks a broadcaster from reaching more than 35% of the national audience.
Counsel for the nets told the appeals court that the FCC reg is "oppressive" and a violation of the First Amendment. "Every day this rule is in effect, we are being deprived of reaching 65% of the nation's households" said Edward Warren, attorney for the Eye, Fox and Peacock.
Already, CBS parent company Viacom is at about 40%. Fox is likewise over the cap due to its recent merger with Chris Craft. Affiliates, i.e., independent station owners, argue that the rule is their last defense against the power of the networks, and that the nets shouldn't be allowed to dominate both programming and distribution. Should the 35% cap be lifted, networks will use their leverage and might to determine compensation and to buy up stations, according to the National Affiliated Stations Alliance (NASA) and the National Broadcasters Assn. (NAB). While most attention has been focused on the 35% rule, the second FCC ownership reg up before the appeals court is of equal significance. As it stands now, the FCC won't allow a broadcaster to operate a cable system in the same market. Thus, congloms like AOL Time Warner can't get into the lucrative business of operating a TV station in any of the many markets where they provide cable service. Another good example is the Walt Disney Co., which would have to dump stations in certain major markets if it wanted to pursue a merger with a cable giant such as Comcast. (While the Mouse isn't a direct party in the appeals case, top Disney lobbyist Preston Padden made sure to be on hand Friday.) During the much-anticipated hearing, AOL Time Warner general counsel Paul Cappuccio told the court that the cross-ownership cable/broadcast rule equals "ongoing suppression" and "irreparable harm."
But the three appellate robes reserved most of their questioning for FCC counsel Pash, who didn't seem to make much headway in arguing that overturning the rules would have "enormous adverse consequences." The judges said it would be more than appropriate for the court to strike the ownership rules, but let the FCC draw up new limits -- this time, with adequate justification. Consumer advocates say remanding the rules to the FCC would be tantamount to overturning them altogether, since Republican FCC topper Michael Powell has made it clear that he favors deregulation. Others disagree and say that now that he heads the regulatory agency, Powell must take a more centrist position compared to that he maintained previously as just a commissioner.
Nonetheless, it was difficult for affiliates to appreciate the witty barbs that punctuated much of Friday's legal session. "I don't mean to disturb the good humor, but please, hear me out," said attorney Bob Long, who argued for the NAB and NASA, which reps the more than 600 CBS, Fox and NBC affiliates.
Long said it was a "gross overstatement" for the networks to argue that they are being cut off from reaching 65% of the American audience, considering that nets reach virtually everyone through broadcast programming alone. What's more, companies like Viacom that own some of the nets provide vast cable programming.
But nets say the affiliates are crying wolf and that affils still enjoy enormous power, pointing out that some larger station groups, such as Tribune, are nearing the 35% limit themselves. In the competitive age of cable and satellite, networks say they shouldn't be barred from fully participating in the marketplace. Even before the oral arguments, the nets and AOL Time Warner were predicting success. Several months ago, the same appeals court struck down an FCC cable ownership rule prohibiting a cabler from reaching more than 30% of the national audience. FCC cap cast The FCC will soon launch a public probe into whether the cap should be kept in some fashion, but again, people are predicting that Powell will work toward deregulation. In the coming days, the FCC is expected to launch a similar probe into repealing a cross-ownership rule barring a broadcaster from owning a newspaper in the same major market. Powell is definitely opposed to this regulation. Meanwhile, the federal appeals court is expected to rule on the two ownership rules in the next few months.
It's not fairness
There are plenty of opinions on the airwaves; the government doesn't have to mandate equal time.
(Democrats) anger at (talk radio) demagoguery is justified, but their response isn't. They want to revive the Fairness Doctrine - a Cold War-era federal rule designed to promote balanced coverage of important isues on the public airwaves. Under this rule, broadcasters who took a side on a divisive topic could be compelled to give free airtime to opposing points of view. If they refused, they risked losing their licenses.
The threat to talk radio is clear. If the rule were reinstituted, stations that carry Rush Limbaugh could be forced to broadcast commentaries favoring everything that Limbaugh derides, from greenhouse gas controls to same-sex marriage. With hundreds of provocative talk-show hosts on the air, federal regulators could soon be awash in demands for rebuttals.
But the danger posed by the Fairness Docttrine Is broader and more fundamental than an attack on a radio format. No matter what your point of view might be, you have free or inexpensive outlets available today to express It - maybe not a radio or TV station but certainly a website, a video blog, a podcast or an e-mail newsletter. At the same time, the public has unprecedented access to a diverse array of opinions. Just as the government shouldn't decide what you say on the channels you create, nor should it be able to dictate the range of opinions people hear over the air.
The Federal Communications Commission instituted the Fairness Doctrine in the late 1940s as a compromise of sorts - it wanted broadcasters to pay attention to local issues but feared they would exert undue influence over them. It abandoned the rule in 1987 on grounds that the rise of cable TV networks had diluted broadcasters' sway over public opinion. The proliferation of media sources has made that dilution even more pronounced today.
Granted, broadcasters remain the most powerful voices because they're the ones with the largest audiences. But that's because the public chooses to tune them in, not because there are no alternatives. Restoring the government's power to monitor broadcasters' fulminations and splice in opposing views seems more likely to tame speech than to enlighten listeners.
What can we own?
MEDIA COMPANIES IN THIS COUNTRY face unreasonable government restrictions on their activities. Yet for the Federal Communications Commission, rewriting the ownership limits for television and radio stations has been a labor fit for Sisyphus. The commission updates the rules every few years, as required by law, only to have a federal appeals court or Congress smack them down.
The latest go-round started when the Commission announced in June that it would reconsider some of its rules limiting what companies can own. The FCC had tried to ease or eliminate these limits in 2003, only to have its actions blocked by the
Media ownership restraints seek to preserve a healthy competition of distinct voices, but the rules developed over the decades are woefully outdated. If anything, what the FCC tried to do three years ago was too modest. In an age of cable and satellite TV (not to mention an age of You Tube. com -It's no longer justifiable for the government to impose any limits on how many affiliates broadcast networks can own, given that CBS, NBC and ABC no longer control the distribution of their programming the way they did when American families gathered around their sets to watch "I Love Lucy," captured by their rabbit-ear antennas.
And yet the FCC only sought to raise the percentage of the national audience that network-owned at affiliates can reach from 35% to 45%. This would have been a radical move - in 1960. Three years ago, It was laughably meek. After a compromise raised the limit to 39%, these rules aren't even on the table for review this time around.
A different set of rules limiting the number of media outlets one company can own within the same city do remain relevant. Here again, the FCC was rather prudent in its ill-fated 2003 ruling. The Commission would have let TV groups control three stations in markets with at least 18 outlets, and two stations in markets with five to 17 outlets - although only one of the stations could be among the four most popular in that community. It also proposed to allow TV, radio and newspaper owners in a community to consolidate to varying degrees, depending on the number of TV stations in the market.
Full disclosure: Tribune Co., owner of this newspaper and KTLA-TV Channel 5, would benefit from a relaxation of these rules. Indeed, its purchase of The Times in 2000 was allowed because of the widespread assumption that the so-called cross-ownership rule banning ownership of a broadcast station and newspaper in the same city would soon be retired, as it should be.
More cities might still have a competitive newspaper market if more broadcasters had been allowed to buy newspapers in the past.
Studies show that those broadcasters that do operate local newspapers through waivers or exemptions offer more news and public affairs programs, on average, than competitors that don't. Moreover, the business challenges facing media giants such as Tribune and Time Warner Inc., which had hoped for greater "synergy" dividends, underscore the ever-changing media landscape and the fact that Americans have a growing number of media choices. The number of people who regularly watch local TV news is down from 77% in 1993 to 54% today. It's in their interest that the FCC press ahead with liberalization.
(Editor's note. This claim that letting TV station operators also buy up daily newspapers will lead to a competitive newspaper market is totally bogus. In fact, only a few companies control most of California's daily newspaper subscribers.
See http://greedwatch.blogspot.com/search/label/Newspapers, for list showing that 40% of California daily newspapers are owned by one company, MediaNews Group, which is also partners with Hearst Corporation, a large owner of TV stations and cable TV channels. Two of the other largest daily paper owners in California, Tribune company and Freedom Communications also own lots of TV stations. With this control of California daily papers by TV station owners, you'd think that most towns would have two or more daily, competitive papers, based on the L.A. Times' logic. Not so. In fact, it's very hard to find a city in this state where one paper isn't totally dominant. )