Responding to Kevin Martin and Other Reflections On Yesterday's FCC Broadcast Ownership Vote

(As you may have seen from John’s post, we lost several days worth of material yesterday and couldn’t get this posted promptly. So forgive me for posting what is literally yesterday’s news. And hopefully I will be able to get back or reconstruct the other posts.)

So the day has come. Martin has crossed the ownership Rubicon, and we now move on to the campaign to force Congress to over-rule the FCC vote while simultaneously fighting in the courts. (And if you want to see us stay in the fight and have a chance of winning, I highly recommend making a tax deductible contribution to my employer (and lead counsel for the case) Media Access Project).

First, a hearty congratulations to the Commissioners, and Kevin Martin in particular, for starting only an hour late from the announced time! This is quite the improvement from the last meeting. Who says FCC reform doesn’t work? Second, if it is going to take 2 hours for everyone to read their statements, please let us know so we can use the bathroom first. Third, if the FCC is going to make a habit of this, I recommend putting in a concession stand so we can buy snacks during the intermission.

That out of the way, a few more serious reflections below….

Martin and Process: Chairman Martin makes an eloquent and cogent statement in response to his critics. He deserves an eloquent and cogent response. Sadly for him, what you have here is me. But here goes.

In his statement, Martin shot back at his critics by arguing that the fight over process and the “rush to judgement” was basically a delaying tactic. Martin recounted how he had done studies at the explicit request of critics, how he had continued to give time to respond, how he had made public his proposed rule as had been requested – only to find that each time there were new requests for more procedures and extensions of time. “Every time, you move the goal post further,” Martin accused.

Of course, no one misses the fact that opponents of media consolidation would be delighted to have this continue until the next FCC, where it may very well be a Democratic majority with different ideas about what rules need to be modified top better serve the public interest. But the demand for a clear path from beginning to end, a path that includes reliable research, meaningful opportunities for comment, and a chance to see the official proposed rules and have reasonable time to comment on those goes back to the beginning of this process, well before anyone could have hoped to drag this out until after the ‘08 elections.

What is fundamentally at stake here, and what Kevin Martin sadly does not get, is the idea of clearly defined processes implemented from the beginning as a matter of right, not of grace. At every stage, Martin has sought to define the dimensions of the research, the comments, the procedures, and all other aspects of the FCC’s inquiry. But this is not about studies for the sake of studies, or hearings for the joy of sounding off. By making this a matter of negotiation at every stage, Martin has poisoned his own processes by giving every appearance that this has been a pro forma exercise done for the sole purpose of throwing a bone to the masses rather than a genuine part of the FCC’s deliberative processes. Worse, by making each stage a struggle in which proponents must come on bended knee to seek permission, Martin has transformed the procedures from a matter of due process right to a matter of grace granted by a generous Philosopher King.

But while the Chairman of the FCC is first among equals, he is not a Philosopher King. It is not now, and never has been, the prerogative of the Chairman to dictate the outcome of an inquiry based on his own determination of what best serves the public interest. While the Chairman has a responsibility to ensure that the process runs smoothly, and decides when to circulate a matter for a vote, the Chairman still sits as first among equals presiding over a process that is ultimately accountable to the people. In believing that he has generously yielded to unreasonable demand time and again, Martin misconceives his function and his purpose. It is the role of the Chairman to assure the public that the agency has genuinely considered all material facts. Perhaps more importantly, the public must believe that everyone has had a fair chance to be heard on equal terms with everyone else. This cannot be accomplished by grudgingly providing a handful of people the opportunity to wait hours to speak at an open mike, or by agreeing to conduct studies but holding the ultimate control over what studies the agency will conduct, how it will conduct them, and how it will share the data with the public. That the public must struggle and demand at every stage for what should be a matter of right further undermines the credibility of the entire process.

And this is the tragedy of Kevin Martin’s media ownership proceeding. I continue to believe that Martin genuinely intended to make the process open and fair, and genuinely believes that he has done so. But the fact that Martin always, at every stage, made it clear that it lies entirely with him on how to conduct this proceeding made that impossible. And Kevin Martin, for all that he may very well be one of the smartest and most talented men to hold the office of Chairman, doesn’t get that. And it is this inability to understand that legitimacy can only come by giving up ultimate control that has proven his undoing.

Republican Hypocrisy On Process: While Martin tried to provide an open process and failed, I can hardly say the same for his Republican colleagues. Once again, we see that the other Republicans only care about process when industry is on the receiving end. Last month, Tate and McDowell were just appalled — appalled I say — that the Commission would move from a general inquiry on cable treatment of independent programmers to actual rules, despite the fact that independent cable networks are dying in droves. But when it comes time to vote for deregulating cross-ownership, no problem! At least Martin is consistent in always pushing the Administrative Procedure Act envelope.

No Presumption On Deregulation: As someone involved in the initial Third Circuit case on remand here, Prometheus Radio Project v. FCC, I have to say that McDowell is just dead wrong when he says that the statute has a “presumption in favor of deregulation.” The Third Circuit definitively held that the relevant statute, Section 202(h) of the Telecommunications Act of 1996, has absolutely no presumption in favor of deregulation or modification. This issue was extensively litigated last time. After a lengthy analysis, the Prometheus Court concluded:

Though our standard of review analysis is lengthy, it is in the end amenable to a straightforward summing-up: In a periodic review under § 202(h), the Commission is required to determine whether its then-extant rules remain useful in the public interest; if no longer useful, they must be repealed or modified. Yet no matter what the Commission decides to do to any particular rule–retain, repeal, or modify (whether to make more or less stringent)–it must do so in the public interest and support its decision with a reasoned analysis.

Accordingly, I take considerable issue with Commissioner McDowell’s suggestion that we in the public interest community are ignoring the statute and its mandate to relentlessly relax ownership limits. To the contrary, it is Commissioner McDowell who misreads the statute and clings to an interpretation explicitly rejected by the Prometheus Court.

Brilliant and eloquent dissents by the Democrats: Commissioner Copps reached new heights of eloquence in his dissenting statement. That’s no knock on Adelstein, who also produced a powerful statement (including recognition of his long-suffering media adviser Rudy Brioche, and the toll that this non-stop workload is taking on the advisers and their families). I can’t really add much on what they said, particularly on a central economic point. Allowing consolidation to progress this far is part of what crashed the quality of the mass media in the first place, by draining away qualified news reporters and needed resources in the never ending quest for short-term cost savings. As a result, people are abandoning newspapers and radio because their product sucks. Letting these corporate imbeciles, whose pursuit of savings and desire to grow their corporate empires has hamstrung the industry, keep merging is like giving heroin addicts unlimited access to heroin on a theory that if they just get enough drug they’ll satisfy their craving and get on with having productive, happy lives. And while we normally let businesses go belly up for such foolishness, we are talking about critical infrastructure necessary for self-governance, and which impacts every aspect of our culture. Pardon me for not wanting to roll the dice and hope that this time the megacorps and the executives running them will have learned their lessons and will now behave in a rational, mature fashion that will foster a healthy and diverse media system.

I also agree with Copps and Adelstein that while the localism and minority ownership items are a good start, they do not compensate for permiting further consolidation — or even address the current dismal state of affairs with any certainty. And, finally, I’ve written fairly extensively on the constitutional standard and beleive that current case law permits a more race-conscious and gender-conscious approach. Anyone interested in my analysis can read our comments in the proceeding here.

The cable ownership vote. Needless to say, I wholeheartedly approved of the Order limiting cable ownership to 30% of subscribers. As usual, I feel compelled to point out that McDowell and Tate have it wrong on what the DC Circuit actually said. Anybody interested in my endless arguments on the subject can read the several hundred pages of comments we submitted. I’m just glad the FCC finally issued an Order. Now e go back to the DC Circuit and get this resolved one way or another.

I also have to say I found it particularly annoying to hear McDowell and Tate explain that the FCC’s carriage compliant process for independent programmers (more details on what this is here) makes the ownership limit unnecessary, after the two of them did such a splendid job last month killing much needed reforms. That McDowell should parrot the cable industry line after his active role in defending independent channels in the Adelphia Transaction is particularly disappointing.

Stay tuned . . . .

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