Given my current insane workload, I can only rejoice at the last minute decision by the FCC to pull from this morning’s meeting agenda a new rulemaking that would start the broadcast media ownerhsip fight all over again. Contrary to what I’m sure will be the popular wisdom, I think this demonstrates a healthy, functional agency rather than the usual partisan sniping. My analysis below.
To recap our story so far. In June 2003, the FCC under Michael Powell, on a party-line 3-2 vote, issued an Order to eliminate most of the rules controllng who may own what radio and television stations in a given market area, and whether you can also own a daily newspaper where you own a broadcast television station.
We and others challenged this and, in June 2004, the Third Circuit court of appeals issued a decision in Prometheus Radio Project that found the FCC had failed to come up with rational new rules, kept the old rules in force, and remanded the matter to the FCC to try again. Significantly, the Prometheus Court said the FCC could deregulate the existing rules on a proper record and with a suitable rationale. In June 2005, the Supreme Court declined to hear the appeal of the broadcasters, placing the ball firmly in the FCC’s court.
FCC Chair Kevin Martin has said he wants to move expeditiously to get the ball rolling again and resolve the uncertainty about the rules. He has also made it clear that he wants to relax or eliminate the current rules, but only in a way that will survive court scrutiny.
Martin pressed his staff to get a Further Notice on the agenda for the July meeting. This was extraordinarily ambitious. The way the FCC works is that the relevant bureau (here, the Media Bureau) develops a draft based on the record and the general direction of the Chairman. The draft goes to the Chairman’s office. When he is satisfied, he circulates the draft to the other Commissioners and, if he has a majority of votes, schedules the item for a vote at the FCC’s regular open meeting. (Please note that the meeting is not where decisions get made. Those are all made before. The open meeting is a fairly scripted affair. Its virtue is not that it allows the public direct input in the formulation of a rule or a view of the decisionmaking process. It’s value is that it requires every Commissioner to take a public position and gives those who disagree with the order a platform to state their objections.)
But the FCC is 2-2 at the moment. Eventually, the President will name a replacement for Powell and will find someone to replace Commissioner Abernathy (who wants to leave, but is staying on to prevent the Dems from having a majority). So to bring up an item, Martin must have the support of at least one Democrat.
Now we get to personal style. Michael Powell was notorious for his running the FCC in a very top-down fashion. He reportedly did not consult other Commissioners during the drafting stages, even his fellow Republicans. He would circulate orders with very little lead time and saw no value in making concession to the Democrats to get a collegial 5-0 vote. As a Commissioner, Martin was reportedly highly critical of this style, and worked to maintain good relationships with the Democrats and emphasize points in common.
OTOH, everyone recognizes that there are very real differences of opinion about what kind of rules to have. The question in a 2-2 Commission therefore becomes, what is it worth to Martin to get something done now, versus waiting until the Commission is 3-2 again? And what is it worth to the Democrats to exercise influence over the Order versus refusing to sell out a principle and writing a strong dissent? There are also political considerations. Copps and Adelstien, the two Democrats, were able to rally popular support against Powell for his refusal to engage the public and refusal to even consider the modifications requested by the Democrats. If the Democrats vote for the Order, they compromise their ability to criticize it in the court of public opinion. This gives additional incentive to Martin to reach a compromise that will get him a 2-2. At the same time, Martin knows that, even if he must wait months, he will eventually have a majority Republican Commission and can press a more agressive deregulation proposal.
Now in all this, the opportunity for partisan sniping and the dirty fighting that has become all too common abounds. On the Dem side, they could simply shut down the Commission by refusing to vote on anything. On Martin’s side, he could make all sorts of promises to the Democrats, particularly on his willingness to do a unified order addressing all the rules rather than peeling off each rule individually to slip them under the public radar (a big sticking point for the Dems, based on their comments at the Media Reform Conference), then screw them over when he has a Republican majority.
Instead, we’ve seen a lot of healthy and honest debate within the agency and the rare sight these days of folks on opposite sides of the political divide enagging each other and respecting each other. The FCC has remained mercifully free of the Dems. v. Rs rhetoric that infects all other areas of politics. The Commissioners speak respectfully of each other, and speak about philosophies on the merits rather than “liberal” v. “conservative.” In the first few months, the Republicans and the Democrats have made an effort to appear in the audience of events where the other is a featured speaker to show collegiality.
I have no doubt that some will read today’s actions as a standard political gridlock. The conservative press will inveigh against “obstructionist Democrats” (and calling for the President to name another two Republicans quickly before the Supreme Court nomination ties up Congress), while the liberal and progressive press will inveigh against Martin’s “rush to serve his corporate masters” by trying to get an Order out right away. But I see today’s action as a sign that the agency is actually working the way it should. Democrats standing on principle, and the Chairman dealing in good faith.
I expect the Commissioners will continue to try to resolve this for the August meeting. Or it might go on the back burner until there is a Republican majority. I have no illusions that Martin has philosophically come around to a better understanding of why we need continued limits on media ownership. And, frankly, Powell’s high handedness was one of our better organizing tools. But as a repeat player at the FCC, and as one who likes to believe that we can still make democracy and public policy work, I hope we can continue to walk this path on the High Road.
Stay tuned . . .