May 28, 2003  ·  Lessig

John Edwards has joined the long list of opponents to Chairman Powell’s plans to relax media ownership rules. His letter to Powell is posted below. Notice, appropriately, the punchline is a question about the FCC’s mandate: We should ask, exactly who elected Chairman Powell, and upon whose mandate is he pushing this change?

May 28, 2003

The Honorable Michael K. Powell
Chairman, Federal Communications Commission
Washington, D.C. 20554

Dear Chairman Powell:

I write to urge you not to increase the national
broadcast ownership cap and not to proceed with the
rulemaking scheduled for June 2.

Diversity in the media is enormously important to our
democracy. As consumers, Americans should have
choices in the music they can hear and the television
programs they can watch. As citizens, Americans
should have access to different ideas and points of
view. The government has a responsibility to foster
this diversity of expression. Unfortunately, the
FCC’s new rules are likely to undermine it.

The effects on rural America could be particularly
harmful. People in rural communities and small-town
America have distinctive interests, and local stations
offer programming that responds to these interests. In
recent years, local stations in rural North Carolina
have offered prime-time broadcasts of Atlantic Coast
Conference basketball games, Billy Graham crusades,
and muscular dystrophy telethons. All Americans can
appreciate the importance of offering local
programming tailored to local concerns. By
undercutting this diversity, the FCC’s new rules will
do a disservice to all Americans.

I have heard you suggest that with the growth of cable
and satellite television, broadcast diversity is no
longer important. That may be true in some affluent
communities, but many Americans do not have cable and
satellite television, especially in rural areas.
These Americans depend on broadcast news and
programming, and their programming should offer real
choices that are responsive to their interests.

I am especially troubled that your agency is
implementing these proposals without permitting
further public discussion. The FCC does not have a
mandate to make controversial decisions without giving
the public a full opportunity to comment. The fact
that two Commissioners have requested a delay should
signal to you that the prudent course, at the least,
is to postpone the vote and permit open public
discussion.

Thank you for you consideration of this request.

Yours sincerely,
John Edwards

cc: Commissioners Abernathy, Adelstein, Copps, and
Martin

  • jj

    Hey, here’s a winner for the Cynic Award of 2003:

    Michael Dreaver, former deputy chief of staff under Reagan, weighs in on the state of media and the Bush administration’s manipulation of such (Jim Lehrer NewsHour, May 23)

    http://www.pbs.org/newshour/bb/media/jan-june03/presimage_05-23.html

    “MICHAEL DEAVER: Eighty percent of the public gets all their information from television…

    .. it better be interesting, entertaining, look good or they’re going to switch off and watch something else.. it has to be believable or the people are going to say it’s not real.

    ..And they understand that because people get their information from looking at that box, those people in the White House are filling up that space around the box so it amplifies whatever the president is saying. So they’re seeing and hearing it.

    TERENCE SMITH: The public doesn’t find this as cynical or manipulative?

    MICHAEL DEAVER: I hate to tell you this, but television is an entertainment medium, not a news medium.

  • lou josephs

    Quess what, radio will get futher de-regulated. That means TEN stations to an owner in any given major market, like New York, LA etc. TEN, the don’t pay the lobbyist for Clear Channel enough.

  • Todd

    So, why isn’t traditional anti-trust law enough to deal with problems in this area (not being an expert on the subject, I will admit to not knowing that media are somehow exempt)?

    I’m sure that rural North Carolinans are crucial to Sen. Edwards voter base and are never ridiculed on this site for their, ummm…uninformedness.

  • http://homepage.mac.com/russtaylor1 Russ Taylor

    Todd, you are on to something. The issue that Sen. Edwards and others opposed to reform of gov’t media ownership limits never seem to explore is whether these ‘sector-specific’ (and ex ante) regulations that were adopted piecemeal by the FCC over the years actually hit their target, and do so in an optimal manner. It’s one thing to say we need diversity, it’s quite another to say we all have faith that the FCC made perfect predictive judgments about the future of media, technology, preferences, etc., so many years ago. Antitrust law is somewhat more ad hoc in its approach, and attempts to tackle problems that exist, not problems that are predicted — sometimes many years in advance — to exist. But I am not an antitrust expert, and I’m sure there are limits to that approach as well. I guess I just wanted to say that you are right, Todd, it’s not a simple binary (regulate or not-regulate, diversity or no diversity) issue…as these lobbying letters would suggest. It’s really an issue of calibration and approach.

  • doug

    The trouble with the traditional sherman act antitrust route is that federal courts (1) generally defer to the decisions of federal agencies on matters related to the expertise of those agencies (the doctrine of “primary jurisdiction”), and (2) are loathe to determine what market, and what market power, require a break up order.

    It would be unthinkable with the conservative tenor of todays courts for a single district judge like Judge Green to preside for years over telecom, and in fact, the 1996 Telecommuncations Act was explicitly meant to end the consent decree that gave Judge Green control over the post-AT&T baby bell activities.

    We live in a day and age where MS can dictate 80-90% of a clearly defined market using conduct that, under any traditional definition, constitutes restraints of trade and still get away with it.

    Common sense suggests that ClearChannel, for one obvoius example, has monopoly power (ad prices through the roof, vertical control of independent (payola) music marketers, concert venues, almost 2000 stations (when you include the ClearChannel phantom holding companies)), and the result of this concentration is harmful to competition and very harmful to consumers.

    But no Court would get through all the hurdles of defining the relevant market, showing market power, showing harm to consumers, and determining the proper remedy–in this case a breakup–without reversal or getting hauled before the court of public opinion… or worse, getting hauled before the Senate.

  • http://www.bennett.com Richard Bennett

    Edwards’ remark: That may be true in some affluent
    communities, but many Americans do not have cable and
    satellite television, especially in rural areas
    boggles the mind. CATV was invented because rural customers don’t have access to broadcast, and DirecTV goes everywhere.

    But why let the facts stand in the way of Class Warfare?

  • http://www.federalreview.com Winston

    Edwards anti-consolidation rant is an uninformed attempt to go on record on an issue to please some left-wing constituency. I more thoroughly attack his letter and address media ownership consolidation at the link below, if interested. But if you are against consolidation, don’t parrot Edwards’ arguments because they are weak.

  • Lessig

    Winston, I didn’t see the link below. And while I’m sure there is much that Senator Edwards says that pleases people on the left, and right for that matter, this thing he says resonates with the right (Safire, Reynolds, NRA) as well as the left.

  • DrFrankLives

    Winston

    I read your criticism of Edwards’ letter on your blog, on which, I note, you have no identifiable place for comments. So, allow me to respond here.

    Your argument would be stronger without ad hominem personal attacks on Edwards. Is your argument strengthened by claiming that Edwards can lie easily because he is a lawyer? No, it is cheapened.

    Furthermore, while you do some clever research into who owns what station in the Eastern North Carolina markets, you fail to identify which stations or which market you are taling about. If you are talking about the stations broadcasting from the Raleigh market, you’re hardly talking about rural America.

    Edwards’ point, that locally owned and managed stations have been centers of community information and entertainment, is not debatable. It is locally owned WBT radio which pioneered coverage of Carolina basketball in the 1940s and 50s. It is Jefferson Pilot and WFMY Channel 2 that made ACC basketball a Thursday night staple.

    When those stations, like the Clear Channel robot radio stations, are controlled from Los Angeles via satellite, a vital piece of local and rural life will be lost.

    That was Senator Edwards’ point, and your “thorough” attack was both weak and not all that thorough.

  • http://www.federalreview.com Winston

    DrFrankLives:

    Thanks for the response and, no, we don’t have a comment section on Federal Review, but are looking into it. I understand your point that innovation my be stifled by consolidation (and think this has already happened in radio and popular music, but that may just be a function of my age), but I find your argument much better reasoned and demonstrating a much greater understanding of the issue than Sen. Edwards. But neither of you seemed concerned about the business realities and the fact that stations will cease to broadcast in smaller markets without the ability to combine forces with other stations in the market. Not just in Raleigh, but de facto duopolies exist from Wilmington, NC to Anchorage, Alaska to Fargo, ND to Joplin, Missouri. Surely, one of those markets counts as “rural.” Search the FCC website for “Local Marketing Agreement” or “Joint Sales Agreement” or “Time Brokerage Agreement” or “Shared Services Agreement” and you will find many more.

    My point about Sen. Edwards and his ability to lie was a cheap, but valid, shot. See the cross-examination of Judge Pickering to better understand his lawyerly lying in an important public venue.

    And you know I didn’t represent my Edwards attack as “thorough”, but “more thorough” than my post here. But that’s splitting hairs.

    Also, check out http://businesslawyer.blogspot.com where I found more discussion of the issue (on the pro-consolidation side — a rarity among blogs), and there’s a reference to a good article at the Heritage Foundation.

  • criticalnow

    What Edwards said is true.

    CABLE TELEVISION IS NOT FREE!!!

    A lot of people in rural America cannot even afford cable. All of this consolidation, like ABC and ESPN is not working. THE REASON THE RATINGS FOR THE FINALS WAS DOWN IS THE SWITCH OF THE NBA FROM NBC TO ABC!!!

    You cannot believe how difficult it is to get ABC in rural NC without cable. Believe me, I know. CABLE ISN’T EVEN OFFERED in a lot of rural areas. We are forced to get a satellite, and they don’t include local channels in the basic package. You have to pay extra, which we cannot afford, to get local channels.

    So, it is a struggle to try and get ABC, and then halfway through the games the televisions start acting crazy or whatever. NBC plays without even having an antenna.

    No one can sit up here and say that all of this media consolidation is not going to hurt, because it is. It is going to keep a lot of information from reaching rural areas…AND AS A RESULT…they are not up to speed with what is going on in the world.

    THAT FAVORS BUSH for reelection…

    …and I hate it.