"Blix, Chicks, the FCC, and Rashomon"
(Unedited version. View print version)

In his 1950 film "Rashomon", Akira Kurosawa examines the nature of truth and the philosophy of justice.

Hans Blix, Chief U.N. Weapons Inspector, accused the Bush administration of faking evidence of Iraqi weapons of mass destruction.

Natalie Maines, the lead singer of the Dixie Chicks said that she was ashamed to be from the same state as Bush.

Many in radio and on television vilified both Blix and Maines. Kurosawa shows us in "Rashomon" how different people have different versions of what they believe to be the truth. Was Blix correct in what he said? I think so, but that my opinion. Should Maines have said what she said if that was her opinion? Absolutely, but that's my opinion as well.

And now, the Federal Communications Commission (FCC) ...

No matter how many "versions of the truth" we are presented with by the media, we need "more of them". Americans need as many opinions from as many sources as possible. The FCC is trying to tell us that we have as much information as we need, so why not narrow the sources? Why would the FCC give News Corp., Disney, General Electric, and Viacom more voices than they already have?

We need an independent print media as well, one that is truly independent and does not rely on a "Diversity Index". With more diversity and more opinions we can come closer to the truth. I'm no Kurosawa, yet I know that the more opinions I am exposed to, the closer I can get to the truth.

The FCC is the "spectrum" equivalent of the Antitrust Division. They should enhance and/or strengthen the notion of competition, diversity, and localism and not do as they have done in the past, to act on behalf of the major media companies.

The FCC has invariably followed a politically motivated agenda in their rulings. For example, Howard Stringer, CEO of Sony Corp. of America, said, speaking of Larry Tisch, head of CBS until 1995, "He couldn't have known that Washington was going to step in and rescue the networks in alternate years, which is really what's happened. Every time there's a problem, they're rescued. I would have said, 'Larry, don't leave now, let's go down to Washington and see what we could repeal this week.' He would have agreed with me. We just didn't see that coming."

On June 2nd, 2003 the FCC did as everyone expected them to do and changed the station ownership caps and the cross-ownership restrictions. Their "... Report and Order adopted [on June 2nd, 2003, was] based on a thorough assessment of the impact of ownership rules on promoting competition, diversity, and localism." The FCC does what it wishes to do and labels it as "... promoting competition, diversity, and localism". Is the FCC capable of making a misstatement in this regard? I think so.

My purpose here is to review much of the FCC's June 2nd Press Release, and try to "shine a dissenting light" on their conclusions.

What follows are quotes from the FCC's press release of June 2nd, 2003 with running commentary (in italics) on what I believe to be the truth:

"FCC SETS LIMITS ON MEDIA CONCENTRATION"

It should have said: "FCC Sets Expanded Limits On Media Concentration."

"Washington, D.C. - The Federal Communications Commission (FCC) today adopted new broadcast ownership rules that are enforceable, based on empirical evidence and reflective of the current media marketplace. Today's action represents the most comprehensive review of media ownership regulation in the agency's history, spanning 20 months and encompassing a public record of more than 520,000 comments."

Empirical means verifiable by observation or experience and in fact the evidence would point in the other direction, against the new broadcast ownership rules. The FCC also failed to mention that they have a public record of more than 520,000 comments, with a majority of those comments being against increasing the station ownership caps or eliminating the cross-ownership rules.

"The FCC stated that its new limits on broadcast ownership are carefully balanced to protect diversity, localism, and competition in the American media system. The FCC concluded that these new broadcast ownership limits will foster a vibrant marketplace of ideas, promote vigorous competition, and ensure that broadcasters continue to serve the needs and interests of their local communities."

If the old limits restricting broadcast ownership were 35% and the new rulings are 45%, how could the limits be "carefully balanced to protect diversity, localism, and competition in the American media system"? Similarly, how could the new broadcast ownership limits possibly "foster a vibrant marketplace of ideas, promote vigorous competition, and ensure that broadcasters continue to serve the needs and interests of their local communities"?

"The Report and Order adopted today is based on a thorough assessment of the impact of ownership rules on promoting competition, diversity, and localism. This careful calibration of each rule reflects the FCC's determination to establish limits on broadcast ownership that will withstand future judicial scrutiny."

What "careful calibration" are they speaking about? Calibration means "the action or process of calibrating an instrument or experimental readings" and how can they use the word "calibration" in this matter? If the Commission was unable to justify a 35% cap to the courts, how could they justify a 45% cap?

"New Limits Protect Viewpoint Diversity"

The FCC strongly affirmed its core value of limiting broadcast ownership to promote viewpoint diversity. The FCC stated that "the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public." The FCC said multiple independent media owners are needed to ensure a robust exchange of news, information, and ideas among Americans.

The FCC developed a "Diversity Index" in order to permit a more sophisticated analysis of viewpoint diversity in this proceeding. The index is "consumer-centric" in that it is built on data about how Americans use different media to obtain news. Importantly, this data also enabled the FCC to establish local broadcast ownership rules that recognize significant differences in media availability in small versus large markets. The objective is to ensure that citizens in all areas of the country have a diverse array of media outlets available to them."

How can you affirm the value of limiting broadcast ownership to promote viewpoint diversity by allowing fewer points of view? If you want to have multiple independent media owners then why would you give existent media owners the right to own more? "Diversity Index"? "Consumer-centric"?

"New Rules Promote Competition and Choice for Americans"
The FCC also explained that because viewpoint diversity is fostered when there are multiple independently owned media outlets, the FCC's competition-based limits on local radio and local TV ownership also advance the goal of promoting the widest dissemination of viewpoints."

How can you have the widest "dissemination of viewpoints" if you increase the limits of radio and television ownership for existent companies?

"Localism Affirmed as Important Policy Goal"
The FCC strongly reaffirmed its goal of promoting localism through limits on ownership of broadcast outlets. Localism remains a bedrock principle that continues to benefit Americans in important ways. The FCC has sought to promote localism to the greatest extent possible through its broadcast ownership limits that are aligned with stations' incentives to serve the needs and interests of their local communities.

To analyze localism in broadcasting markets, the FCC relied on two measures: local stations' selection of programming that is responsive to local needs and interests, and local news quantity and quality. Program selection is an important function of broadcast television licensees and the record contains data on how different types of station owners perform. A second measure of localism is the quantity and quality of local news and public affairs programming by different types of television station owners. This data helped the FCC assess which ownership structures will ensure the strongest local focus by station owners to the needs of their communities."

Professor Irwin Corey (if you remember him) would be proud of these two paragraphs. It would appear that the FCC is indicating that it is evaluating content. The FCC must promulgate regulations that are totally content neutral. They should not get into areas such as measuring localism by the quantity and quality of the news and public affairs programming. When the regulators become censors, the rulings are not content neutral.

"TV Limit Enhances Competition and Preserves Viewpoint Diversity"
The FCC determined that its prior local TV ownership rule could not be justified on diversity or competition grounds. The FCC found that Americans rely on a variety of media outlets, not just broadcast television, for news and information. In addition, the prior rule could not be justified as necessary to promote competition because it failed to reflect the significant competition now faced by local broadcasters from cable and satellite TV services. This is the first local TV ownership rule to acknowledge that competition."

Local stations are indeed local, while cable & satellite services primarily deliver national content. Why not allow greater local ownership that is, indeed, local?

If the Commission is concerned about the financial viability of smaller television broadcasters, I would suggest that they introduce into the record the balance sheets of such local broadcasters. If the FCC is saying, if more local broadcasters are not acquired by major media companies, these organizations will founder and be unable to serve the public, then let them cite statistics to support this. The FCC failed to indicate that it had any evidence to support such a conclusion.

"National Cap Protects Localism and Preserves Free Television"
The FCC determined that a national TV ownership limit is needed to protect localism by allowing a body of network affiliates to negotiate collectively with the broadcast networks on network programming decisions.

The FCC also found that the current 35% level did not strike the right balance of promoting localism and preserving free over-the-air television for several reasons:

1. The record showed that the 35% cap did not have any meaningful effect on the negotiating power between individual networks and their affiliates with respect to program-by-program preemption levels.
2. The record showed the broadcast network owned-and-operated stations ("O&Os") served their local communities better with respect to local news production. Network-owned stations aired more local news programming than did affiliates.
3. The record showed that the public interest is served by regulations that encourage the networks to keep expensive programming, such as sports, on free, over-the-air television."

Affiliates have rarely been able to negotiate with a broadcast network about programming decisions. Does the Commission believe that by allowing the networks to own more stations that they are possibly enhancing the possibilities for such negotiations? It is surprising that the FCC finds "that the public interest is served by encouraging the networks to keep expensive programming, such as sports, on free, over-the-air television". The Super Bowl, World Series, and NBA Finals are carried by broadcast television. If the FCC is interested in retaining this content for over-the-air television, let them reintroduce anti-siphoning rules or at least explain their position.

The network "O&Os" are in the larger markets and have higher revenue bases for their news, and are able to invest more money in news programming than smaller network affiliates or independents.

"CROSS-MEDIA LIMITS"
This rule replaces the broadcast-newspaper and the radio-television cross-ownership rules. The new rule states:

• In markets with three or fewer TV stations, no cross-ownership is permitted among TV, radio and newspapers. A company may obtain a waiver of that ban if it can show that the television station does not serve the area served by the cross-owned property (i.e. the radio station or the newspaper).
• In markets with between 4 and 8 TV stations, combinations are limited to one of the following:
  1. A daily newspaper; one TV station; and up to half of the radio station limit for that market (i.e. if the radio limit in the market is 6, the company can only own 3) OR
  2. A daily newspaper; and up to the radio station limit for that market; (i.e. no TV stations) OR
  3. Two TV stations (if permissible under local TV ownership rule); up to the radio station limit for that market (i.e. no daily newspapers).

In markets with nine or more TV stations, the FCC eliminated the newspaper-broadcast cross-ownership ban and the television-radio cross-ownership ban.

PROMOTES DIVERSITY AND LOCALISM
The FCC concluded that neither the newspaper-broadcast prohibition nor the TV-radio crossownership prohibition could be justified for larger markets in light of the abundance of sources that citizens rely on for news. Nor were those rules found to promote competition because radio, TV and newspapers generally compete in different economic markets. Moreover, the FCC found that greater participation by newspaper publishers in the television and radio business would improve the quality and quantity of news available to the public.

Therefore, the FCC replaced those rules with a set of Cross-Media Limits (CML). These limits are designed to protect viewpoint diversity by ensuring that no company, or group of companies, can control an inordinate share of media outlets in a local market.

The FCC developed a Diversity Index to measure the availability of key media outlets in markets of various sizes. The FCC concluded that there were three tiers of markets in terms of "viewpoint diversity" concentration, each warranting different regulatory treatment."

A newspaper is primarily devoted to NEWS. Newspapers are viable because they satisfy their constituency by giving them news. Newspapers provide a significant and valuable news alternative to NBC, CBS, ABC, and cable news outlets. It does not matter how many stations exist in a market, the existence of independently controlled publications allows greater diversity, competition, and localism. For the Commission to say, "...greater participation by newspaper publishers in the television and radio business would improve the quality and quantity of news available to the public", is irrelevant and not true.

When the FCC allowed CBS to operate UPN their conclusion was that such a ruling did nothing to interfere with the FCC's stated goal of encouraging diversity and competition. They have now conjured up another scheme to reduce competition and diversity in this ruling. They have divined "Cross-Media Limits (CML)" as well as a "Diversity Index" and have created "viewpoint diversity". Will regulators be running around using their CML, Diversity Index, and viewpoint diversity? I would ask the Commission how American citizens are helped by these cross-ownership media changes. I would also ask how reducing competition, diversity, and localism serves the Commission's stated goals of increasing competition, diversity, and localism.

Hopefully Congress will persevere by finding a way to rescind these changes. The giant American media companies should be made smaller and not given greater power. Cross-ownership rules should be reinstated in their entirety. The FCC's rulings are not justifiable, but rather unreasonable and most important of all, un-American.

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