THE FCC'S REGULATION-WARY REGULATOR

Shortly after Commissioner Robert McDowell arrived at the FCC is 2006, he made clear that he would be no rubber stamp for fellow Republican and Chairman Kevin Martin.

He refused to go along with Martin’s proposal to impose multicast must-carry obligations on cable operators, forcing Martin to withdraw the item from an open meeting agenda. It was a declaration of independence for McDowell, an embarrassment for Martin.

So, it has come as no great surprise that McDowell has been resisting Martin’s latest efforts to heap new localism regulations on broadcasters.

He dissented on the FCC’s enhanced disclosure rules requiring stations to file quarterly reports on their local programming efforts. What’s more, he has sharply questioned proposals to require stations to set up community advisory boards and meet minimum local programming quotas.

Two weeks ago, in a speech at the Quello Communications Law and Policy Symposium in Washington, McDowell reiterated in his strongest language yet his opposition to Martin’s localism initiatives and his skepticism about regulation in general.

“Simply put, government cannot outsmart an unfettered and competitive market,” he said.

In this interview with TVNewsCheck Editor Harry A. Jessell, McDowell elaborates on his problems with the localism push, expresses sympathy for those who would like to see less broadcast ownership regulation at a national and local level and touches on other issues of importance to broadcasters.

An edited transcript:

You used a series of rhetorical questions during your speech at the Quello symposium. I would like you to take a stab at actually answering one of them: “Why are we considering placing these proverbial albatrosses around the necks of traditional media precisely at this tipping point in history when they can least afford a regulatory disadvantage vis-à-vis unregulated platforms like the Internet?”

The answer to that question is, I think we should not be foisting regulations upon them. You don’t want to hand a drowning man a rock. The Internet is unregulated and other platforms may emerge that allow people to pull content of their choice from whenever and wherever they want. That’s revolutionary. So why are we disadvantaging one platform that has diminishing top-line revenue?

But the question is where is this desire to regulate broadcasting coming from at the commission?

That might be a better question for the chairman. I can only speculate. Certainly some of these issues were raised in the context of our media ownership proceedings—the 2003 proceedings and the ones that we concluded last December. While I don’t think there’s harm in asking questions, my concern has also been with the [enhanced disclosure] order that we came out with earlier this year as well.

This Form 355 requires TV stations to ascertain the programming needs of various segments of their community and to list all their programming in various categories such as local news, religious programming, programming aimed at underserved communities and programming that is produced by independent producers and so forth.

It requires very granular detailed information from all stations across the country on an ongoing basis, on a routine basis. There are a number of concerns. First of all, from what I’ve heard, from what’s in the records, stations will have to hire half a person or maybe even a person and a half to comply with it. So it means basically a full time job to comply with this. Second of all, why do we need all this information all the time? Is there another way to derive this information—at renewal time, for instance?

There are other ways to drive information rather than just collecting warehouses full of information all the time, putting a burden not only on the broadcasters, but on the commission as well.

You also said in that same speech that the FCC is “regulating with a wink and a nod” by requiring broadcasters to list the types of programming that they air. What do you mean by that?

This is an implicit and maybe backdoor way of regulating content and going back to the old ascertainment of rules of the 1970s when we had much less competition. So, while the commission is explicitly saying, oh, we’re just collecting this information, it’s really subtly telling broadcasters that they need to air a certain kind of content. So that troubled me from a variety of perspectives. It’s certainly a First Amendment concern, No. 1. No. 2, with many, many more media outlets now than ever before, and broadcasters facing more competition than they’ve ever had to face, won’t the market respond. Nobody has more of an incentive to respond to the needs of the local communities than the local broadcasters. That’s how they differentiate themselves in the marketplace.

Some of the old-line Republican communications policy makers believe that Martin is the most regulatory chairman of the last 30 years. What do you think, considering where he’s been on cable, where he’s now going on broadcasting?