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Extras - Commentary: Previously Unreleased FCC Reports on TV Localism Raise Questions About Media Diversity

By Beth Wellington, Published on November 17, 2006
Beth Wellington is a Roanoke, Virginia based poet and journalist. She is a contributing editor to the New River Free Press, a book reviewer for the Roanoke Times and a member of the Southern Appalachian Writers Cooperative (SAWC) and the Appalachian Studies Association. From 1980 to 1997, she was the founding Executive Director of New River Community Sentencing, Inc. in Christiansburg, Virginia and its predecessor, New River Community Action's Community Sentencing Program. She contributes to both SourceWatch.org and Wikipedia.org. Beth's blog on culture and politics is The Writing Corner.

What should have been a routine hearing of the Senate Commerce, Science and Transportation Committee September 12, 2006 gained importance when Barbara Boxer (D-CA) revealed she had received a copy of a 2004 Federal Communications Commission (FCC) report which heretofore had not been released. The report, Do Local Owners Deliver More Localism, suggests a greater concentration of media ownership would decrease local TV news coverage. Boxer received the report from an anonymous whistle-blower who worked at the FCC at the time the report was prepared.

FCC Chair Kevin J. Martin was appearing before the regarding his nomination to continue as Chairman of the FCC. His written comments are available on the FCC website. According to his biography at his former law firm, Wiley Rein & Fielding LLP, Martin, who has served on the FCC since 2001, came to the FCC via Kenneth Starr's investigation of Clinton, and served as general counsel for the George W. Bush 2000 Presidential campaign, and then on the Bush-Cheney transition team. His wife Catherine Martin's biography, on the White House site, states she is a former Cheney aide who has worked as a special assistant to the President for economic policy and now serves as Deputy Assistant to the President and Deputy Communications Director for Policy and Planning.

Democracy Now described Martin on a March 17, 2005 broadcast, at the time of his first nomination for chairman, as

"...an advocate of reducing government's regulation of telecommunication companies and increasing the monitoring and enforcement of so-called indecent content on the airwaves. Martin pleased Christian conservative groups when he dissented from an FCC decision not to fine the NBC television network for singer Bono's use of an expletive during the 2003 Golden Globe Award ceremony. He has also been in favor of stiffer penalties against media companies that broadcast indecent material."

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Martin came to mind September 10, when I decided that, rather than ABC's controversial docudrama on 9-11, I would watch the updated version of a March 10, 2002 documentary by Jules and Gedeon Naudet. The brothers originally intended to film the story of a rookie firefighter, but ended up with footage of the first airplane crash into the World Trade Center and the subsequent rescue attempts.

Here in Roanoke, Virginia, I had to wait until 11:35 p.m. to tune in. WDBJ7, the local CBS affiliate, delayed the screening in response to Donald Wildmon's Tupelo, Mississippi-based American Family Association (AFA), which had readied its 3 million members to flood the FCC and CBS with complaints of foul language if the documentary were aired before 10 p.m. In some areas, the film, which garnered a 2002 Emmy and 2003 Peabody among other awards, never aired, although it had received no complaints on its first two showings.

New York Magazine's Kurt Anderson wrote about Martin's role in FCC censorship in the June 5, 2006 edition of his Imperial City column, What the [Bleep]?! Record obscenity fines led the networks and the Hearst-Argyle group to a suit filed against the FCC in federal court in April 2006. According to the New York Times' Stephen Labaton, writing on April 17 in TV Networks Sue to Challenge F.C.C.'s Indecency Penalties:

"...the fight is certain to take more than a year, and in the meantime, the networks can expect to face a hostile commission and Congress and an uncertain environment for challenging the rules with new and risqué programs. The regulators and lawmakers have been lobbied hard by some advocacy groups that generated hundreds of thousands of complaints about programs with coarse language and explicit themes."

The AFA was able to wield a cudgel against CBS because of Sam Brownback's (R-KS) bill, S. 193, the Broadcast Decency Enforcement Act, which passed the Senate May 18, 2006, without discussion or a recorded vote. The measure passed the House on June 6. Previously, the FCC could impose a fine of $32,500 for violating indecency standards. The bill increased the maximum FCC fines for indecency violations to $325,000 with a $3 million cap. I was disappointed that this measure, passed ostensibly as a measure in reaction to Janet Jackson's wardrobe "malfunction" at the Super Bowl, is now being used to silence news coverage.

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Martin's support of media consolidation is as troubling as his fight for censorship. On June 24, 2006, under his leadership, the FCC issued proposed new rules allowing further concentration of the media. The rules passed on a June 21, 2006 vote of 3-2 along party lines, as part of the FCC's required review of ownership every four years.

Noting that some 3,300 radio and TV stations have changed hands in the last three years, Commissioner Michael J. Copps, a Democrat opposing the rules, said that even under the old rules, "consolidation grows, localism suffers and diversity dwindles."

The Stop Big Media Coalition noted,

"Limits on media consolidation have been a bulwark against the concentration of economic power in the marketplace of ideas -- a critical part of balancing the public service mission of the media with their private profit motive. Our democracy requires the free flow of information from a broad range of diverse voices.

Any public policy seeking to protect diversity in the media must recognize the simple fact that ownership matters. Media consolidation has already led to declines in local and minority ownership as well as the homogenization of content in radio and television. Permitting cross-ownership of newspapers and broadcast stations, or allowing further concentration in local television markets, will only worsen the problems we already have."

Media companies that own both newspapers and broadcasting outlets have long pressed for a removal of a FCC ban on cross-ownership, arguing it is outdated due to greater competition among media outlets. Previous heads of the FCC sought to get the cross-ownership ban lifted and the agency finally adopted rules allowing media conglomeration in June 2003. The FCC had to defend its rules in a brief filed December 9, 2003 in the case of Prometheus v. FCC, brought by the Media Access Project.

In January 2004, Congress, reacting to public opposition to the rules, included a roll-back of market share limits from the proposed 45% to 39%. It had previously stood at 35%.

The U.S. Court of Appeals for the Third Circuit, in a June 24, 2004 opinion in Prometheus written by Judge Ambro, joined by Judge Fuentes, and with a partial dissent by Chief Judge Scirica, stayed the FCC's relaxed ownership rules. According to a summary of the decision posted by the Media Access Project, the opinion:

"...adopted almost every argument put forward by the Citizen Petitioners, rejected the FCC's analysis in support of more relaxed media ownership rules, and rejected industry pro-consolidation arguments that media ownership limits were inappropriate or unconstitutional."

On January 31, 2005, the Newspaper Association of America and broadcast groups filed an appeal. The Supreme Court declined to intervene in June 2005. On July 14 of that year, at its monthly meeting, Republicans and Democrats on the FCC could not agree on how to develop new rules and shelved the issue minutes before it was slated to be discussed. The swearing in of another Republican, Robert McDowell on June 1, 2006, led to the majority, which allowed Martin to get the new proposed rules passed.

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I learned about the suppressed FCC localism report two days after Martin's hearing before Commerce on September 14. On that day, the AP's John Dunbar reported in Lawyer Says FCC Ordered Study Destroyed that former FCC Attorney Adam Candeub, now an assistant professor of law at Michigan State University, says that senior managers ordered "every last piece" of the 2004 localism report be destroyed.

Candeub told the LA Times' Jim Puzzanghera, for his story FCC Lawyer Says TV Study Was Hushed:

"The initial results were very compelling, and it was just stopped in its tracks because it was not the way the agency wanted to go...he order did come down from somewhere in the senior management of the media bureau that this study had to end … and they wanted all the copies collected."

On September 14, Free Press, Consumers Union and the Consumer Federation of America, all members of the StopBigMedia coalition, sent a letter to the Federal Communications Commission (FCC) requesting that Martin:

"...immediately seek an independent investigation, through the Office of the Inspector General, to determine the circumstances under which the public was denied access to this important, taxpayer-funded research."

Josh Silver, of Free Press, commented, "The FCC can no longer pretend Big Media does a better job of serving local communities. As millions of have told the FCC time and again, they want more local news and a diversity of voices on the public airwaves. Maybe now they'll finally start listening."

According to Dunbar's September 15 follow-up story, "Powell Denies Seeing Media Ownership Study," the former FCC Chairman Michael Powell (son of Colin and now an consultant) said through his assistant Judy Mann, that "he never saw the report, he never heard of the report until yesterday and he certainly never ordered anything destroyed or stopped."

In response to Boxer's questioning, he sent an undated letter posted to the FCC website on September 15, saying that the report was now public. While he had served as a Commissioner since 2001, he wrote,

"As I indicated at the hearing, I was not Chairman at the time that this report was drafted. I had not seen - nor was I aware of - this draft report before you brought it to my attention. No one on my staff had seen this report nor were they aware of it.

I am not aware of any other commissioners, past or present, who knew of the report.

It is unclear why this report was never released to the public. I am attempting to determine why, but the senior management of the Media Bureau and the Chairman of the Commission at the time are no longer at the Commission.

In the meantime, the report appears to cover issues relevant to both our open localism proceeding and our recently commenced media ownership proceeding. Accordingly, we included it in the record for both of those proceedings on Tuesday. This made the report publicly available on our website through the Electronic Comment Filing System. Also on Tuesday, we emailed the report widely to members of the media."

But Martin's problems with lack of disclosure were not over. Another FCC study on the negative impacts of media consolidation came to light September 18. The draft study, "Review of the Radio Industry," also leaked to Senator Boxer, covered the period through 2003 and would have been the fifth of its kind since passage of the 1996 Telecommunications Act, which lifted national radio ownership caps. It was never released, and no subsequent studies on the topic had been conducted.

Concerned about report suppression at the FCC, Senator Boxer wrote to Martin on September 18:

"In light of this new discovery, I will ask the Inspector General of the FCC to thoroughly investigate not only the draft 2003 "Review of the Radio Industry" and the 2004 localism study, but also to examine whether it was then or is now the practice of the FCC to suppress facts that are contrary to a desired outcome. Although I understand that you were not Chairman at the time these documents were produced, I wanted to bring this new incident to your attention and urge your office's full cooperation with the Inspector General."

Stop the Media posted a copy on September 18. By the next day, Martin had posted "Review of the Radio Industry" to the FCC's website. The report shows that for the period since the passage of the Federal Telecommunications Act of 1996 through 2003, there had been a 35% decrease in the number of radio station owners and a dramatic increase in the number of stations owned. In 1995, the largest network had fewer than 65 stations; as of March 2003, Clear Channel owned 1233.

Such a large consolidation of ownership, at least in the case of Clear Channel, has led to charges of strong-arm tactics and mediocre programming by writers such as Eric Boehlert, now a senior fellow at Media Matters for America, but at the time a senior writer for Salon.

In the Roanoke-Lynchburg market, for instance, Clear Channel owns the country station, two sports stations, 2 soft rock stations, 1 rock station and two Christian stations. Readers can check out the ownership in their own markets at the Clear Channel website station finder, here. The Center for Public Integrity has media ownership and lobbyist tracking tools here.

And apparently, Clear Channel's reaction to new proposed rules is to urge the FCC to allow even more consolidation, as Jeffrey Yorke and Carol Archer reported in their Radio and Records August 31 story, "Clear Channel Presses FCC To Raise Ownership Caps In Largest Markets".

Clear Channel's executive VP and chief legal officer Andrew Levin, senior VP of government affairs Jessica Marventano, and outside legal counsel John Fiorini III of K Street law firm, Wiley Rein & Fielding (remember, that's where Kenneth Martin worked) held separate meetings with Commissioner Deborah Taylor Tate and her legal assistant Chris Robbins, and with Commissioner McDowell and his legal assistant, Cristina Chou Pauze. According to Robbins, "There was no specific proposal. They just talked about the possibility of further expansion in the largest markets."

In the face of the disclosure of two reports, the FCC has extended its deadline for the public comment period on proposed new rules by a month, to October 23, 2006. According to the order of extension, a motion requesting the extension had also been filed by Ion Media Networks (formerly Paxson Communications), a television company owning 60 stations. And after Boxer's letter and campaign organized by Stop Big Media, Martin has asked the Inspector General of the FCC to conduct an investigation, as revealed in his September 18 letter responding to Boxer.

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Martin received a unanimous vote on September 19 from the Commerce Committee to report his nomination to the Senate floor. As I write this on September 20, Free Press has released a report today, "Out of the Picture," which looks at the effects of FCC Policy and media consolidation on US television station ownership by minorities and women:

"In the landmark Prometheus v. FCC decision, the Third Circuit chastised the FCC for ignoring the issue of female and minority ownership. But since 2003, the FCC has done very little to address the issue. The FCC has abdicated its responsibility to monitor and foster increased minority and female broadcast ownership. In fact, the Commission cannot account for the actual state of female and minority ownership."

Among the report's findings:

 

 

 

 

 

 

The report's authors are S. Derek Turner, research director for Free Press and Mark Cooper, research director for the Consumer Federation of America and a fellow at Fordham University's McGannon Communications Research Center, which was founded in 1986 to research communications policy and ethics, particularly with regards to the public interest dimensions of media performance. They conclude:

"he FCC should seriously consider the effects on minority owners and viewers before it moves to enact policies that will lead to increased market concentration. The implications of this study should be clear: Further industry consolidation will diminish the number of minority- and female-owned stations. If just a handful of female and minority-owned stations were lost to consolidation, these already anemic numbers would fall precipitously."

Stop the Big Media has outlined its arguments against consolation at its website. Media conglomerates stand to make huge new profits from the public airwaves as they begin to broadcast digitally and can fit six or more stations where they have previously fit only one. Meanwhile,

"If a corporation like News Corp. can buy multiple media outlets in a single city or town, it gains immense influence over what information is available. Consolidated corporations strip local newsrooms of staff, while pushing aside competing points of view. That means less diversity of voices and a narrower range of debate….In exchange for their free and exclusive use of the public airwaves, broadcasters such as Sinclair are supposed to serve the public interest. Yet they frequently ignore important local issues, pander to sensationalism, provide biased coverage of elections, and stifle diverse viewpoints. Corporate media conglomerates like Tribune Company are more concerned with profits than responsible programming. Coverage of issues important to people of color, the working class and rural citizens are squelched or ignored because these people aren't advertisers' target audiences."

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Those wishing read more about media consolidation and the problems entailed can check out Consumer Union's analysis of what is at stake. Stop Big Media has designed a form to submit your comments to the FCC regarding the rules. For more information, check out the sites of the Coalition's charter members:


As Al Gore said, when he traveled to Scotland to talk August 27, 2006 at the Media Guardian Edinburgh International Television Festival about his alternative network Current TV, according to the AP's Jill Lawless in her story on that date, Gore Lashes Out at Media Consolidation, "Democracy is a conversation, and the most important role of the media is to facilitate that conversation of democracy. Now the conversation is more controlled, it is more centralized."