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Will Kevin Martin’s FCC be the Public’s FCC?

fact sheet

March 16, 2005

Will Kevin Martin's FCC be the Public's FCC?

http://www.benton.org/press/KevinMartin.html

Today, President George Bush named Kevin J. Martin as the new Federal Communications Commission Chairman. Because of controversies surrounding media ownership limits and indecent programming, many people are coming to realize the integral role the FCC plays in their daily lives due to its regulation of communications by radio, television, wire, satellite, and cable. With Martin's appointment to lead the FCC, many Americans will be asking who he is and how he is likely to serve their interests.

Who is Kevin Martin?

Commissioner Martin was nominated for an open FCC seat on April 30, 2001, confirmed by the Senate May 25, 2001, and has served as a commissioner since July 3, 2001.

Martin joined the Commission from the White House, where he served as a Special Assistant to the President for Economic Policy and was on the staff of the National Economic Council. In that capacity, he focused primarily on commerce and technology policy issues. He also served as the official US government representative to the G-8's Digital Opportunity Task Force, a government, non-profit, and private sector task force created to identify ways in which the digital revolution can assure opportunities for developing countries.

Prior to joining the Bush Administration, Martin served as a principal technology and telecommunications advisor on the Bush-Cheney Transition team. He assumed this role after serving as the Deputy General Counsel to the Bush campaign in Austin, Texas from July 1999 through December 2000. He was also part of the legal team the Bush campaign assembled in Florida after the election in 2000. [1]

From 1997 to 1999, Martin served as a Legal Advisor to FCC Commissioner Harold Furchtgott-Roth, advising the Commissioner on telecommunications and broadband issues.

What are Martin's Positions on Media Ownership?

Martin has served on the FCC during the commission's most comprehensive review of media ownership rules in history. On June 2, 2003, the FCC:

- revised the local television multiple ownership rule;

- modified the local radio ownership rule by revising the local radio market definition;

- raised the national television ownership limit from 35% to 45%;

- retained the dual network rule; and

- developed a single set of cross-media limits to replace both the radio/television cross-ownership rule and the newspaper/broadcast cross-ownership rule.

Commissioner Martin voted with the majority on the rules changes even though millions of Americans - a record number of participants in a FCC proceeding, in fact - wrote the Commission in opposition to the rules changes. At the time, Martin praised the "simple, clear rules," the "diversity index" developed by the FCC staff and the FCC's decision to allow a single entity to own both a local newspaper and television station in the same market. The rules were challenged in court and rejected by the U.S. Court of Appeals for the Third Circuit in Philadelphia.

The Philadelphia court found the FCC's diversity index "gave too much weight to the Internet as a media outlet, irrationally assigned outlets of the same media type equal market shares, and inconsistently derived the Cross Media Limits from its Diversity Index results." The court also found irrational the FCC's conclusion that all media outlets should be weighted equally. The court demonstrated the flaws in the FCC's decision, stating, "[a] Diversity Index that requires us to accept that a community college television station makes a greater contribution to viewpoint diversity than a conglomerate that includes the third-largest newspaper in America [the New York Times] also requires us to abandon both logic and reality." The court questioned the "seemingly inconsistent manner" in which the FCC adopted specific limits based on its diversity index because the FCC allowed some mergers which caused greater losses to diversity but prohibited others that caused less harm to diversity. The court also strongly criticized the FCC for failing to release the diversity index to the public for comment.

Martin's public statements have consistently been in favor of eliminating the newspaper-broadcast cross-ownership ban. In fact, when the Commission began its review of media ownership review in 2002, Martin called for a temporary waiver on the ban saying, "we could have provided broadcast stations and newspapers the same opportunity to combine that two television stations have in the largest markets, as long as a significant number of independent voices remain in the marketplace." [2] Moreover, when the FCC voted to lift the ban in 2003, Martin said:

"I am particularly pleased that, for the first time in 28 years, the Order we adopt today finally concludes a review of the newspaper/broadcast cross-ownership rule, which has prohibited a company from owning a newspaper and broadcast station in the same market. Adopted in an era with little cable penetration, no local cable news channels, few broadcast stations, and no Internet, the rule was based on a market structure that bears almost no resemblance to the current environment. Indeed, because of these marketplace changes, we have revised all our other media rules at least once since the ban's adoption. As a result, newspapers have been the only media entities prohibited from owning a broadcast station in the markets they serve, regardless of how large the market was or how many newspapers or broadcast stations were present. For example, in the large markets, two broadcast television stations have been permitted to combine and could own up to six radio stations, as well. Yet, newspapers remained prohibited from owning even a single radio station. Today we correct this imbalance, finally giving newspapers the same opportunities other media entities enjoy in medium and large markets. In so doing, we recognize that newspaper/broadcast combinations may result in a significant increase in the production of local news and current affairs, as well as an improvement in the quality of programming provided to their communities." [3]

Given Martin's past statements on the newspaper-broadcast crossownership ban and the Philadelphia court's conclusion that the FCC rationally decided that the original ban should be repealed, the new chairman may make a priority of attempting to change the rule again. To do so the Commission must address the court's decision that the FCC "employ[ed] several irrational assumptions and inconsistencies" due to reliance on the diversity index.

Like his predecessor, Chairman Martin believes that "[p]eople today have access to more information from more diverse sources than at any time in our history." [4] He may, then, believe that the FCC's media ownership rules are unnecessary to maintain a vibrant media marketplace. Congress directed the FCC to conduct reviews of media ownership rules to determine whether they are "necessary in the public interest as the result of competition," and to "repeal or modify any regulation it determines to be no longer in the public interest." Martin disagrees with the Commission's decision to interpret this mandate to mean that "necessary in the public interest" means merely "useful" or "appropriate." In 2002, he said, "I believe interpreting "necessary in the public interest' as meaning merely "in the public interest' inappropriately reads the critical word "necessary' out of the statute. Congress included the term, and I believe we must give it more significance. "Necessary in the public interest must mean more than "useful' or "appropriate.' I believe the term "necessary' should be read in accordance with its plain meaning to mean something closer to "essential.'

Martin has expressed some sympathy for those for have argued against raising the ceiling on the reach of large TV station owners. "[T]he decision regarding the national ownership cap was particularly difficult," he said in 2003. "The record contained strong evidence on both sides of this issue. I believe the affiliates made a compelling case as to why a national limit needs to be retained. I agree that a balance between the affiliates and the networks is important to maintaining localism, and thus I did not support proposals in the record to eliminate the cap altogether. Yet, the networks also made persuasive arguments that a 35 percent cap is not necessary -- in particular, that we do not have sufficient evidence to conclude that the two networks currently reaching over 40 percent of the country have caused actual and significant harm today."

Commissioner Martin has also echoed concerns that media ownership consolidation might be linked to an increase in indecent programming as we see below.

What are Martin's Positions on Indecent Programming?

Martin has been a consistent critic of the "increase in offensive programming on broadcast television." [5] In testimony delivered to Congress in February 2004, Commissioner Martin laid out a four point plan to protect children from violent and indecent programming:

1. Aggressively enforce the law against obscene, indecent and profane language. Our fines have been inadequate. "We need to make the decision to air indecent or profane language a bad business decision," Martin told Congress suggesting that lawmakers should increase the limit on fines and that the the Commission levy higher fines by fining violators "per utterance," not per program, enforce the statutory prohibition against profanity, and respond to the hundreds of thousands of pending complaints. "It doesn't matter how tough our fining authority is if we don't actually enforce the rules," he said

2. Affirm local broadcasters' ability to reject inappropriate programming. Martin believes network affiliates provide a better, natural check on the control of network programming in the marketplace, than direct government oversight of network content. He supports the network affiliates' request to clarify that FCC rules protect a local broadcaster's ability to refuse to air programming that is "unsuitable" for its local community. "This ability is critical to those local broadcasters that want to keep coarser network programming off the air in their communities," he told Congress

3. Urge broadcasters to reinstate the family hour. Martin has urged broadcasters to devote the first hour of prime time to family-friendly programs that parents and children could enjoy together. He would like to receive public comment on a Paxson Communications's proposed voluntary Public Interest Code of Conduct, which includes the concept of a Family Hour. [6]

4. Address cable and satellite programming. With more than 85% of homes receiving their television programming from cable and satellite, Martin has urged these operators to address indecency. He'd like to see cable and satellite operators offer an exclusively family-friendly programming package or offer programming in a more a la carte manner, permitting parents to request not to receive certain programming and reduce the package price accordingly. He favors regulatory parity. "If cable and satellite operators continue to refuse to offer parents more tools such as family-friendly programming packages," he told Congress, "basic indecency and profanity restrictions may be a viable alternative that also should be considered."

Martin has expressed sympathy to broadcasters and cable operators First Amendment rights, but says, "these rights are not without boundaries. They are limited by law. They also should be limited by good taste. Broadcast networks, in particular, have a higher duty to use the public airwaves in the public interest." [7]

What are Martin's Positions on Children's Programming?

Commissioner Martin supported FCC rules adopted in September 2005, clarifying how digital broadcasters should serve children. The FCC ruled that broadcasters must provide three hours of educational programming for children per week for every digital TV channel they air. The rules also limit the amounts and types of advertising that can air during these programs. "I recognize that the action we take today will increase the obligations placed on broadcasters," Martin said when the rules were adopted, "but I also recognize the vital role that broadcasters play in serving the interests of children-and their parents." [8] He also used the occasion to again call more family-friendly programming in prime time:

"Parents often complain that there is not enough broadcast programming that is suited for family viewing. This is why I have long advocated a return of the Family Viewing Hour. While the new guidelines we adopt today may not increase the amount of programming that appeals to the whole family, it is certainly a step in the right direction for parents and their children. It is my hope that broadcasters take advantage of improvements in technology and compression to devote even more time and ingenuity to family or children's programming. For example, they might create an exclusively "family TV" or "kids TV" channel on one of their multicast streams. Such a channel could also employ exciting, educational interactive features. I therefore look forward to exploring ¡K ways in which we can encourage flexibility and interactivity without sacrificing the accessibility of children's programming or opening the door to creeping commercialization." [9]

What are Martin's Positions on the Transition to Digital Television?

Commissioner Martin recently dissented from his colleagues on a decision related to the transition to digital television. While the majority decided that cable operators should not be required to provide all of broadcasters' digital TV signals over their cable systems, Martin disagreed, arguing that the public would benefit more from more free programming. By denying cable carriage to all but one of the potential broadcast streams, Martin warned, the Commission is effectively preventing broadcasters relying from investing in free programming services like local news, local weather, local sports, coverage of local elections and government proceedings, and foreign language programming. [10] He noted that the burden on cable of a requirement to carry multicasted channels would be significantly less than it was in the analog world, thanks to compression technology and dramatically expanded cable capacity. Moreover, he said, the burden on cable capacity is capped by statute-a cap that has been upheld by the Supreme Court. He warned that the decision will have the most adverse impact on small, independent, religious, family-friendly and minority broadcasters.

Earlier statement Martin indicate that he sees the digital "must carry" decision as the "last critical step" in the transition to digital television. Many public interest advocates disagree. They are asking Martin and the FCC to more clearly spell out what broadcasters should be doing to benefit the public in return for the use of the public's airwaves. As the nation transitions to digital television, they argue, we must decide whether our newest television technologies can support our oldest and most time-honored values of democracy, diversity, localism, and education.

FOOTNOTES:

[1] Martin was a judicial clerk for U.S. District Court Judge William M. Hoeveler, Miami (Florida) earlier in his career.

[2] Separate statement by Commissioner Martin, 2002 Biennial Regulatory Review - Review of the Commission's Broadcast Ownership Rules and Other Rules Adopted Pursuant to Section 202 of the Telecommunications Act of 1996. (Sept. 12, 2002).

[3] Separate statement by Commissioner Martin, 2002 Biennial Regulatory Review - Review of the Commission's Broadcast Ownership Rules and Other Rules Adopted Pursuant to Section 202 of the Telecommunications Act of 1996 (June 2, 2003)

[4] Ibid.

[5] Martin letter to Brent L. Bozell III, President of the Parents Television Council (December 5, 2003).

[6] Paxson suggests that the FCC should adopt a voluntary Public Interest Code of Conduct for television licensees which would be written by the industry. The Code would include five minutes of candidate-centered discourse per day in the 30 days prior to an election, programming addressing civic responsibilities and the political process, programming reflecting and addressing the diverse interests of viewers, involvement in community activities including fundraisers, and public service announcements. (see http://www.benton.org/publibrary/digitalbeat/db041300.html)

[7] Letter to Bozell.

[8] Separate statement On Children's Television Obligations of Digital Television Broadcasters, Report and Order, MM Docket No. 00-167 (September 9, 2004).

[9] Ibid.

[10] Separate statement on Carriage of Digital Television Broadcast Signals: Amendments to Part 76 of the Commission's Rules (February 23, 2005).

(c) Benton Foundation

Benton Foundation 1625 K Street, NW, 11th Floor Washington, DC 20006

Phone: 202-638-5770 Fax: 202-638-5771

Email: info@benton.org www.benton.org

http://www.benton.org/press/KevinMartin.html

Last updated: 16 March 2005 kjt


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