Now that the Federal Communications
Commission (FCC) has spoken, albeit through a 3-2 vote on party
political lines, on future US media regulation, we are in a position
to comment on a basis of fact rather than speculation.
At the heart of the matter, even within the FCC it seems, is politics
and the first comment we would make is that chairman Michael K Powell
is completely correct when he points out that the Commission is
constitutionally bound to follow the lead set by the lawmakers.
He also pointed out accurately that the Courts had overturned regulation
upon regulation when they had ruled on regulations that had gone
The Democrat Commissioners, however, felt that
they were still following congressional guidelines in their
opposition to the new regulations, particularly in terms of
the aims set down by the 1996 Communications Act whose mandate
that each regulation had to be justified every two years set
the tone for the debate.
Here we think it worth putting down the crux of the argument
made to the Senate Commerce Committee by Democratic Commissioner
Michael J Copps.
"The Communications Act tells us to use our rules to
promote localism, diversity and competition, " he wrote.
"It reminds us that the airwaves belong to the American
people, and that no broadcast station, no company, no single
individual owns an airwave in America. The airwaves belong
to all the people."
"The law tells us that the last time Congress legislated
on this topic -- and keep in mind this was only seven years
ago, not in the 1940s or the 1960s, but in 1996 -- it thought
that restrictions on how large a single media corporation
could get and how much power one company could amass were
important and necessary."
"And the Supreme Court has upheld media protections,
stating that "it is the purpose of the First Amendment
to preserve an uninhibited marketplace of ideas in which truth
will ultimately prevail, rather than to countenance monopolization
of that market, whether it be by the Government itself or
a private licensee."
To us those words and arguments sound fine, but the reality was
that US courts, which increasingly the current administration
appears to be trying to pack with young and conservative nominees,
were throwing out the FCC regulations.
The practicalities therefore are that, without some legislative
changes and political backing, Powell could rightly see himself
between a rock and hard place were he to try and retain many of
the regulations; even those that are retained are likely to face
legal challenge and we suspect that the fight could be hard unless
sufficient political backing is mustered to amend the Act and
set down the rules in ways that cannot but be clear in the courts.
We would note here that some of the decisions recently made, as
regards copyright for example, do seem to set down clearly a Supreme
Court view that Congress can change rules; a two-edged sword in
this case since a future Congress could (and in our view, should)
significantly cut the time for which copyright is valid and equally
need not compensate any of those who thus lose out.
In fact in our view it would, in general, be unacceptable that
compensation be paid since many of the changes to the benefit
of business do seem to have been influenced by the largesse of
those business to politicians (what many Americans call corruption
in other countries, albeit a little less blatant).
Where things could or
In view of the above, we tend towards going
along with the regulations passed but hoping that enough politicians
feel strongly enough about democracy to rewrite legislation
so that the big media companies cannot tie up the courts and
FCC for years with arguments in the courts for overthrow of
rules to allow further deregulation in which they have a vested
We also think that the politicians should accept the logic
of the arguments put against taking irreversible actions that
could damage US democracy and legislate accordingly in terms
of escape routes.
The big companies have not argued that they are against diversity
of voices but that they favour it and that deregulation has
provided it. Fine! Let Congress set up and fund formal studies
with defined rules on what they consider diversity, especially
in terms of the root sources of information, and a system
to regularly examine the effects of the new regulations just
as they set up a requirement on the FCC to regularly justify
In other words, Congress should ensure a regular review of
the arguments from two points of view, not just one.
Congress should also mandate the FCC, in line with defined
aims on localism, diversity and competition, to consider fully
how far and licence holder has improved or degraded the situation
in each locality when subsequently considering licence renewals.
Once such legislation were passed, companies should then face,
not a nod-through renewal of a licence but a considered review
of its performance in line with defined aims that could also
lead to loss of licence for those who abuse the public interest.
We would also suggest that licence terms should be set as
the same duration as the review of regulations required of
the FCC: In other words, if the media magnates felt that two
years was fair for regular FCC reviews of regulations, they
should now have to worry about having to justify their licences
every two years.
Thereafter, if they felt a longer period is required to be
fair to them, let them support the same for the FCC reviews
but in the meantime, on the basis that sauce for the goose
should also be sauce for the gander, it would be thought-provoking
for them to suddenly find that they have to justify their
licences far sooner than they had anticipated.
For those who are performing in the public interest there
would be no worries; the others deserve to worry- and see
their stock valuation fall.
We also note that the dropping of the "Fairness"
doctrine significantly altered the tenor of US reporting during
the Reagan administration.
Some politicians with a little far-sighted self-interest have
realised how the combination of this and too much domination
of media reporting in an area could affect them. Let them
therefore take that argument where it should go in aid of
the protection of both democracy and free speech.
We cannot see it as likely that a new fairness doctrine be
impose, even if it were desirable, but would suggest that
some baseline standards of accuracy, as opposed to fairness,
could be set.
Allied with these should be suitably severe penalties including
revocation of licence for repeated breaches that a jury -
not a regulator - considers to be a gross abuse of licence
terms, albeit the regulator should bring the case when it
has collated complaints and considers court action to be likely
to result in a "conviction."
Such penalties should in our view also be applicable to each
station that continues to air reports that should reasonably
be known to be incorrect or comment - whether from a syndicated
or station source - that is likewise repeatedly based on information
that should reasonably be known to be incorrect.
This would protect comment, including that from syndicated
hosts, but punish those careless with the truth - including
syndicated hosts who would find stations self-regulating when
they felt a host was being too cavalier with facts and that
they either had to do something about it or risk losing their
whole broadcast holdings.
We have little problem, whatsoever, for example with biased
comment from sources whose bias is known but every problem
with arguments developed from premises known to be incorrect.
One is freedom of speech, the other abuse of it; one is invaluable
to a democracy, the other destructive of it.
In that a private company genuinely furthers the development
of the first, its lease on public airwaves is justified but
when it moves to the latter there seems a corollary that the
lease conditions have been broken and thus the lease should
In your dreams maybe, but even putting such an idea forward
would in our view benefit the wider interests of Americans.
What you think?