BROADCASTING AND THE UNABASHED REGULATOR

It could happen. FCC Commissioner Michael Copps could be the next chairman of the agency.

All it would take is for a Democrat to win the White House next year (an increasingly likely event) and to promote Copps (not so likely, but possible).

For most broadcasters, he’s a reason to vote Republican.

During his six years as a commissioner, Copps has vigorously opposed loosening ownership regulations and made it clear that any new privileges the FCC grants broadcasters will be laden with serious, new public interest obligations.

Copps isn’t inclined to give anything away.

Copps has also been an enthusiastic regulator of broadcast programming, a sure vote for tough indecency fines. And he’s now indicated he would follow the same path on TV violence, if given the authority by Congress.

What really bugs broadcasters about Copps is that even as a member of the FCC’s Democratic minority he has been highly effective in pushing his personal agenda.

Working with outside groups, Copps has managed to slow FCC Chairman Kevin Martin’s effort to relax ownership restrictions to a point where many believe it may not happen at all.

In this interview with TVNewsCheck Editor Harry A. Jessell, Copps shares his regulatory philosophy, which holds that broadcasters must do more to earn the privilege of using the public airwaves and must be actively policed to make sure they don’t harm children.

Let’s say the Democrats don’t screw it up in 2008 and you become the next chairman of the FCC. What’s on your agenda?

Well, that is such a presumption. Even to try to answer something like that might be interpreted to be a little bit overreaching, but, if you want to engage in fantasy land for a couple of minutes, I guess it would be the same priorities I’ve been talking about since I got here.

No. 1 would be I want to get something done on media and reinvigorating some public interest responsibilities that have almost completely disappeared since the 1980s.

I’d like to do something on the United States’s historic performance with regard to broadband penetration. I say that not just from the standpoint of social do-goodism, but from the standpoint of the competitiveness of the country because I think we’re paying a horrible price for the sorry job we’ve done.

And then the other issue would be homeland security. I supposed in a way that’s always got to be a priority because the safety of the people is the first obligation of a public servant. The sad fact is that we are not appreciably better prepared for the next terror attack or the next big hurricane than we were when we had the last one of each of those.

I don’t think the American people are going to be in a mind to listen to excuses from the private sector or from regulatory agencies or from anybody else if we don’t have interoperable communications and a little better disaster preparedness and public safety backup.

Those would be my big three.

In terms of public safety, I would argue that broadcasters are the ones that did their jobs on 9/11 and after Katrina. They were there. It was the government that didn’t show up.

I’ve gone out of my way to praise what the broadcast industry did. After 9/11, they were on the air commercial free, broadcasting for days and days and it brought a lot of people together.

Of course, we’ve got to make sure that we’ve got those stations as resilient and robust as they can be. They’re an important part of the equation, absolutely.

Given what you just said, why do you look at broadcasters’ public interest obligations as something that needs to be fixed or reinvigorated?

We used to have a minimal set of public interest obligations. When broadcasters came in to be re-licensed, we made an affirmative judgment that they were going out and talking to their listeners and their peers about the kind of programming they wanted to hear, they had been doing real local news, they were covering community events, community sports, they were encouraging localism, they were encouraging diversity.

I think we’ve gotten away from some of that, and I don’t just blame the industry. I blame the government, too, for letting that happen.

I’m not proposing anything that’s supermicroregulatory. I’m not proposing something just like we did in the 1950s because this is the 21^st century now. But there’s got to be a way to get this system back on track a little bit and infuse it with a little localism and diversity.

You don’t think there’s localism out there now? You don’t think all those TV stations out there are running around covering local events?

I think there are a lot of broadcasters in whose breasts the flame of public interest still burns brightly. I think, in the environment we live in now, it’s more difficult for those broadcasters, who are ever fewer in number, to be the captains of their own fate. More and more are they captives of the unforgiving expectations of the marketplace.

We’ve certainly got to do something with regard to presenting the diversity of this country on the airwaves. When you have a television system where people of color own 3.26% of all of the full-power commercial television stations, it shouldn’t surprise us that some minorities, most of them, feel that their issues are not adequately covered and their people are often caricaturized or stereotyped, that they don’t even get the kind of advertising that they might be interested in.

Over the years, the government has tried several different schemes to increase minority ownership in broadcasting. All have failed. In a lot of cases, the minorities have come in, bought stations and then turned around and sold them. Have you seen any kind of mechanism that would work?

We don’t have the tax certificates anymore. That was taken away. I think that was working. If you look at what happened when that was in effect, you’ll see we had a rising number of stations at that particular time. And if you look at what’s happened since then, you’ll see a decline.

Between 1975 and 1998, the number of minority owners, according to the figures I got, went from 40 to 350. The percentage of radio and TV stations owned by minorities increased from about 1% to about 3% so that was some meaningful progress, but now we’re not headed in that direction anymore. That’s because it’s not a priority here.

I’m not denying the reality of the marketplace. But the industry needs to look at itself a little bit here because, if you look at just about any other industry here in America and how female ownership and how minority ownership are doing, broadcast comes out pretty darn poorly in that equation.

What exactly would you propose—bringing back the tax certificate?

Bringing back the tax certificate would have to be something that Congress does, but I think we have to, No. 1, make it a priority here and, No. 2, we have to be serious that there’s going to be no discrimination when you have a transaction.

There’s other stuff you can do. If you’ve got a minority person who’s doing a station, maybe you could extend the construction build-out deadline a little bit or maybe you could give a little bit more time for that person to go and raise some money or maybe there’s even a way that, if a station was selling to a minority, that you cut them a little bit of slack on one thing or another.

I’m going to scope that out, but first you make this a priority and find commissioners that will say, damn, we’ve got to do something about this. Then, I think there’s plenty of room for innovation and plenty of room for good ideas so that then we can make progress working with the industry to get this done.

You have been opposed to further consolidation of broadcasting, which in TV pretty much means you’re opposed to duopolies in the smaller markets.

No. I think you’re reading a little more into what I’ve said. I have never said that I’m opposed to all consolidation and I think if stations can come and say, look, we’re really on death’s door here, or we’re going to have to turn out the lights and pull the plug, then certainly we ought to look at those things on an individual basis.

That’s not what [former FCC Chairman] Michael Powell tried to do. When he was chairman, he wanted to flash the green light at just about any kind of consolidation that the mind of man or woman could conceive. That’s not a responsible position for a regulatory agency to take. That’s why I opposed that.

Why not allow these small markets to consolidate, two stations in a market, so that they can maintain their margins, maintain their profitability?

I’m not convinced that we’re dealing with a lot of distress here. You can probably cite some examples where stations are hard-pressed, but, the fact of the matter is, I think most broadcast stations are still doing pretty good whether you’re talking 20% or 30% or 40% on margin. I mean, that’s not bad. I wish I had some investments like that.

But doesn’t a business have a right to grow its profitability?

I think it has a right to grow its profitability and we decided in this country a long time ago that broadcast enterprise was going to be a part of the great capitalistic system. I’m not trying to undo that.

At the same time, I would emphasize that this is a little different industry than most. This is an industry that’s predicated on the use of the public airwaves and there is a solemn obligation that is undertaken by the broadcaster when he gets those airwaves for free to serve the public interest.

If you look at the record since 1980, one by one, by a not always so slow process of attrition, those public interests and obligations have been whittled away and we need to be a little bit serious about getting them back.

You’re also a big proponent of regulating indecency and, I think, violence now on broadcasting. Does a time come when broadcasting gets the same First Amendment rights as a newspaper, where the government can’t tell a broadcaster what to put in its “pages”?

I took an oath of office to administer and implement the Telecommunications Act, which has an indecency section in it that says you’re supposed to be active in making sure that there’s nothing indecent on the airwaves. So, it’s not my job to sit here and debate the merits so much as it is to enforce the law.

One of the reasons we got into the mess we are in is not just because the industry is pushing the envelope every step of the way. It’s also because when that happened there was no reaction from the commission.

Early on, if we had just done our job and helped flush out what was indecency and what wasn’t, by now you would probably have a pretty good idea of what was and what wasn’t. We wouldn’t be in court screaming and hollering at each other with all these high visibility cases.

But you personally believe in this idea of the government regulating indecency in broadcasting? I mean, you’re not just doing your job?

I believe that we have a responsibility to implement the law. The law says that, when kids are likely to be watching programming, nothing deemed indecent should be on the air waves.

If some adult wanted to come into your house and spend six hours a day with your kids talking about sex and violence and drugs, you probably wouldn’t allow it. But yet we allow the media to come in and do that day in and day out. So, yes, there can be concern.

Government has always taken a special role toward the welfare of children, whether it’s special rules on driving or alcohol consumption or whatever. So I don’t think there’s a great problem finding legal justification. But again, that’s not my job to opine about the legal justification. My job is to enforce the law.

So broadcasting continues to be a second-class citizen in America. You’re discriminating against broadcasters.

It has nothing to do with being a first-class citizen or a second-class citizen. In many respects, broadcasting is a privileged citizen in America right now. I don’t deny broadcasting that privilege, but Congress and the courts have thus far told us that that is the public interest and that’s the reality of the exercise of broadcaster citizenship. It has nothing to do with second-class citizenship or anything like that.

Given the trouble that the commission has had with industry regulation over the years, do you think it should be pushing into regulating violence?

What we told Congress was that there is, indeed, a problem with violence. I think we’ve got 50 years of studies and reports that indicate there is a connection. Whether it’s causal or correlative or whatever, people can debate that. You have to have some guidance from the Congress and some action from the Congress.

There have been those here who said we could take our present definition of indecency and expand it [to cover violence]. But, I think right now, our report says that we think there is a problem. Some options were teed up, although I don’t think we [endorse] any particular option or any particular definition of violence.

I’ve got to tell you from walking around up there [on Capitol Hill] that there’s a fairly widespread interest in tackling this issue. They’re hearing a lot about it and I think it’s a totally nonpartisan issue.

We’re coming up on the 20th anniversary the FCC’s decision to get rid of the Fairness Doctrine. Would you like to see that come back?

Do I want to see some sort of public interest responsibilities and obligations that open up the air waves to a lively exchange of different viewpoints on the issues and teeing up controversial issues? Yes, I do.

Does that mean I necessarily want to bring back the Fairness Doctrine as it existed 25 or 30 years ago? I think that’s open to debate and discussion.

We’ve got to find a way to serve some of those ends that the Fairness Doctrine was trying to achieve in a way that comports with the reality of the immediate environment that we live in 2007.                 

Earlier you talked about the privileges that broadcasters have. Now broadcasters, or a lot of them, want another privilege—digital must carry. Do you think broadcasters should get that?

I’ve invited them to come in I don’t know how many times—whether it’s [former NAB President] Eddie Fritts or current NAB President [David Rehr] or other people—to get some kind of all-industry dialogue going on some of these things.

But the broadcasters are afraid. They don’t want a quid quo pro in the form of new public interest obligations.

I think the FCC under Chairman [Michael] Powell and Chairman Martin has done a more than credible job in working the mechanics of the DTV transition. That’s fine.

But, on the central questions of the DTV transition—what’s in this for the consumer, what’s the public interest benefit of this—they don’t want to step up to the plate and talk about them. We need to have that discussion.

And I have always said, if we’re talking programming that covers local arts, local government, community events, local sports, political races, local news, that’s really serving the public interest. I would be fully supportive of having a must carry for that kind of programming.

I don’t think that’s necessarily the same thing as hanging cameras out of every window focused on whatever it might be or carrying every home shopping channel or something like that. I think you have to differentiate.

I have tried to engage in that kind of discussion since I got here. It would be wonderful if the broadcasters and the public interest groups could sit down and have a reasoned discussion as they did on children’s television on what might be workable and viable and bring some good ideas to the commission. They probably would have a warm and hospitable reception.

But there’s been nothing along those lines. Nobody’s made that move yet, right?

It isn’t because I haven’t asked.

Because of your outspokenness of indecency, some of your fellow Democrats in Washington—lawyers, lobbyists—have told me that they see you as sort of an enabler of the Republican religious right wing.

Wait a minute. What are they saying? What am I enabling? I’m enabling the religious right wing?

Yes, its assault on civil liberties.

Well, it’s just not religious right or secular left or anything like that. This is a broad-based issue. It’s like this issue of media consolidation. Those who would say this is Republican versus Democrat, red state versus blue state, just haven’t been outside of the town. If that’s what some of the members of the communications bar are telling you, maybe they ought to come along with me next time I go out in some of my hearings and they’ll get a little broader view of it.

A Democrat is supposed to be against consolidation, for diversity. That’s a traditional role, but for a Democrat to be out there leading the charge on indecency enforcement is a little bit unusual.

Did you look at the vote at all on increasing the indecency fines that went through Congress? I don’t think that was an especially partisan there.

I’m talking about from the FCC point of view.

From the FCC point of view? One of my predecessors here was Gloria Tristani. She was pretty involved in this issue too, you may recall, and there have been others. So, no, I just don’t buy into that, that this is a partisan or right versus left kind of thing. This is much broader based than that.

You’re also considered to be one of the more effective minority commissioners the FCC has had in a long, long time. Are you still having fun?

Thank you. I am.

We’ve got really important issues to decide in the months ahead. I can’t think of a more intellectually exciting or challenging place to be. When you’re a minority commissioner, you can have some influence from within and occasionally you do. And, then, it’s also a responsibility of an agency like this to talk to the people since we have jurisdiction over a pretty wide assortment of issues. It’s incumbent to get out and do that. So I’ve tried to blend those two obligations of being a commissioner.