June 2003
US media regulation.

US media regulation.

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 before them.

The opposition argument.

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."

Where the US really was.

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 should go.

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 financial interest.

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 its rules.

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.

After the study.

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.

News reporting.

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 become void.

In your dreams maybe, but even putting such an idea forward would in our view benefit the wider interests of Americans.


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