What Worries 1st Amendment Watchdog

One of the critical roles that the Radio Television Digital News Association fills for the ever-widening world of electronic news is watching out for its First Amendment rights. This can mean anything from challenging an FCC ruling in court to demanding access to public documents or meetings.

At the center of that continual effort is Kathleen Kirby, a partner at Wiley Rein and RTDNA counsel since the mid-1990s.

In this interview with TVNewsCheck Editor Harry A. Jessell, Kirby discusses what she would do if she were calling the shots at the FCC. She also comments on the FCC’s Future of Media Initiative and the state of sports access and cameras in the courtroom.

An edited transcript:

What do you make of Steve Waldman and the FCC’s Future of the Media Initiative? Where do you think he is going with it?

My take is that this commission is not particularly focused on media issues. He was charged with conducting this investigation. There was a lot of discussion about it when it was launched in 2010 and then we haven’t heard much since.

If we take him at his word, he is saying the First Amendment is his guide star, he won’t be overreaching and he will take an honest look at FCC rules and policies. We think he probably is not going to have a lot of solutions for any problem he determines there is with journalism.

He will just report his findings?

Right. That’s my best guess.

If you were in his place, what recommendations would you make to enhance the quality of local TV news?

My position is that the government has no business making any recommendations as to how to enhance the quality of local TV news.

Well, what law or regulation would you tell the FCC or Congress to do away with?

I would tell the FCC to take away things that make it harder for broadcasters to do their jobs. I don’t think most broadcasters would take issue with the notion that they do have certain public interest obligations. Most take that to heart and do a very good job of serving the public, but they should be free to decide how best to do that. The system is working fairly well, although there may be stations that are not doing as well.

What I am hearing from my clients is that the rule that is limiting their ability to increase efficiencies and expand news is the TV duopoly rule. We have seen instances [in larger markets] where stations have been allowed to combine under common ownership and they have increased local news and even produced news on multicast channels that are targeted to particular niche audiences. That seems to be working fairly well. But in small markets where there may be some kind of local news failure, if you will, it’s very difficult for stations to combine and achieve efficiencies. The commission is really scrutinizing shared services agreements in these markets. So, I think to relax the media ownership rules there would be of great benefit to local news.

The FCC may scrutinize those shared services agreements, but it seems to approve every one. As a matter a fact, we have had a steady flow of these deals where one station combines with another and one newsroom disappears. How can the disappearance of a newsroom be good for anybody?

There are two sides to that story. Based on my own experiences and also with some RTDNA members, that’s not always the case. I have seen instances where you have stations that are struggling, a company with perhaps more resources and an established news operation comes in and does a shared services agreement. Suddenly, you’re seeing news on that struggling station where you didn’t have it before.

But in some cases the market losses one of its voices, right?

I don’t know that you have definitely lost a voice. To me, that’s a fairly common assumption. When you look at the facts, maybe you have increased news to the Hispanic population; maybe you have increased news to some other niche audience.

OK, you would relax the duopoly rules. So, what else would you do at the FCC to make things better for local TV?

The FCC took a small step towards relaxing newspaper-broadcast crossownership. But at this point that train may have left the station. I can’t really predict what kind of positive impact combining newspapers with television or radio operations would have, but that rule should be further relaxed.

I would also shy away from imposing any additional localism obligations or any rules causing stations to divert resources toward having to complete complicated and really unnecessary FCC paperwork. That, in my estimation, is what the enhanced disclosure forms would do.

That was an initiative of the [Chairman Kevin] Martin FCC. Is anything happening on that front?

No. It’s sitting there. There was some talk at the time of the Future of Media inquiry was launched that the FCC’s localism proceedings and the enhanced disclosure forms would kind of sit on the back burner pending the release of the results. If there is any notion that they might be revived, the industry would be poised to challenge them. They are bad ideas.

What about the fines against the two stations for not disclosing the source of their VNRs. How big a deal is that?

I think it’s a very big deal. Again, when the government decides to poke its nose into the editorial discretion of newsrooms, whether they could be criticized for poor judgement, poor exercise of their discretion or whatever, it’s a very bad idea. I think the VNR situations are a good example of that. The government necessarily is making a value judgement about newsrooms that took material presented to them for free and decided to air it. The government is making the value judgement that what they actually put on the air amounted to something that was promotional rather than newsworthy. The FCC in those situations is saying, listen, we’re just imposing disclosure requirements, we’re not imposing any kind of content restrictions. I don’t think that’s necessarily true.

Is Red Lion going down in our lifetime?

I don’t know. They keep trying and I think we will have an indecency case that may or may not make it to the Supreme Court.

Do you think that makes a good case?  

I just don’t know that we have the case yet. I was hoping some years back it was the personal attack and political editorializing cases, but it was too easy for the court to avoid the constitutional questions.

Let’s talk about access. One of the problems I see for broadcasters is access to sporting events. Any hope on that front?

We have been involved in any number of fights over getting credentials access to sporting events. It’s a difficult First Amendment battle because you need to have a state actor and the law is not in our favor on those grounds. But I think we have made some progress because leagues — this is everybody from the NFL to the NCAA to the regional leagues who are increasingly protecting their intellectual property — have an interest in local coverage and building their fan base. They have made certain concessions, but it’s an ongoing struggle and it’s not an easy legal issue to resolve. So I think most progress has been made based on individual relationships between stations and the local franchises or the local schools.

So you just sort of talk your way into the ballparks?

That’s what seems to be working the best.

You say there’s no state actor. What if the stadium is partially or primarily owned by the municipality?

Believe it or not, the law is not good even on those grounds. That’s why you haven’t seen any lawsuits really coming down the pike over these issues. We did make some effort at one point to try to have Congress change the law in that regard, but those efforts have ceased because of the progress that’s being made between individual stations and clubs.

What about opening courtrooms to cameras? Where does that stand?

We’ve made definite progress on a state level. Most states now do allow cameras and microphones to cover trials, sometimes from trial level right up through appellate. The Senate Judiciary Committee has voted out legislation that has been pending in the past couple of sessions that would open federal courts to cameras. We have never been able to get the Senate and the House to vote it off the floor at the same time, but we’re still continuing to push those efforts

There is also now a new federal experiment underway. The last time there was a federal experiment was back in the early 1990s and the results of that experiment were quite positive indicating the benefits of having electronic coverage of court proceedings. But, of course, we then had the O.J. Simpson trial, which I think it’s fair to say sort of iced efforts to get federal judges to agree to have presumption in favor of electronic coverage of their courtrooms for a variety of reasons.

So we’re hopeful as technology improves and time passes and we get a couple of decent high profile trials under our belts that we will see federal legislation pass. I think a number of courts now are doing webcasts of their court proceedings. The Supreme Court is fairly routinely issuing same-day audio of its proceedings. So we’re making tiny steps toward opening federal courts to cameras.

What about the Supreme Court? Any movement there?

The Supreme Court is part of that same legislation. Unfortunately, we have lost Senator [Arlen] Spector [D-Pa.] who was a great champion of trying to open the Supreme Court to cameras.

What’s the level of interest among the Justices themselves?

We make an effort to have the question asked during confirmation proceedings as to their views on cameras. Chief Justice Roberts seems at least amenable to the idea at some point. Justice Kagan more recently made very favorable comments about cameras.