ADVISORY COMMITTEE ON PUBLIC INTEREST OBLIGATIONS OF DIGITAL TELEVISION BROADCASTERS
CO-CHAIRS: Norman Ornstein; Leslie Moonves
(Meeting transcript available on Committee website, www.ntia.doc.gov/pubintadvcom/pubint.htm)
TIME and PLACE: March 2, 1998, 9:08 a.m., at the University of Southern California Annenberg School for Communication, Los Angeles, CA
PURPOSE: Fourth meeting held to discuss independent programming and access in the digital age and political broadcasting, and to begin deliberating on the Committee's recommendations.
ESTIMATED SIZE OF AUDIENCE: 50 in the Annenberg School Auditorium
COMMITTEE MEMBERS PRESENT:
Leslie Moonves, Co-Chair
Norman J. Ornstein, Co-Chair
American Enterprise Institute
Chairman and CEO
Public Media, Inc.
Frank M. Blythe
Native American Public Telecommunications, Inc.
Harold C. Crump
Hubbard Broadcasting, Inc.
Frank H. Cruz
Corporation for Public Broadcasting
Robert W. Decherd
CEO, Chairman of the Board, and President
A. H. Belo Corporation
William F. Duhamel, Ph.D.
Duhamel Broadcasting Enterprises
Robert D. Glaser
Chairman and CEO
James Fletcher Goodmon
President and CEO
Capitol Broadcasting Company, Inc.
Paul A. La Camera
President and General Manager
Screen Actors Guild
Jose Luiz Ruiz
National Latino Communications Center
Shelby Schuck Scott
American Federation of Television and Radio Artists
Gigi B. Sohn
Media Access Project
Karen Peltz Strauss
Legal Counsel for Telecommunications Policy
National Association of the Deaf
Cass R. Sunstein
Karl N. Llewellyn Distinguished Service Professor
University of Chicago Law School
Lois Jean White
National Parent Teacher Association
Independent Television Service
Karen M. Edwards, Designated Federal Officer
Anne Stauffer, Committee Liaison Officer
The following brief summary of the meeting may be supplemented by the official meeting transcript.
SUMMARY OF GENERAL MEETING
The fourth meeting of the Advisory Committee on Public Interest Obligations of Digital Television Broadcasters (Advisory Committee or PIAC) began at 9:08 a.m. on Monday, March 2, 1998, with welcoming remarks from Geoffrey Cowan, Dean of the Annenberg School for Communication, as well as brief remarks from the Co-Chairs.
Mr. Leslie Moonves, President of CBS Television and Co-Chair of the Advisory Committee, convened the meeting and welcomed the members to Los Angeles.
Based on unofficial information from the White House, Co-Chair Norman Ornstein, Resident Scholar at the American Enterprise Institute, indicated that the Committee would likely receive an extension of its reporting deadline.
Mr. Ornstein also confirmed the dates for the Committee's next two meetings:
Tuesday, April 14 in Washington, DC
Monday, June 8, in Minneapolis, MN
Committee member Harold Crump shared the results of a survey of the attitudes and opinions of consumers toward digital television. This survey was commissioned by Hubbard Broadcasting and conducted by Frank N. Magid Associates. Mr. Crump reported the major research finding: that it will be very difficult to persuade consumers to purchase digital television sets. Mr. Crump cited recent projections that set manufacturers will sell approximately 3.5 million digital sets between 1999 and 2003, as compared with current sales of 24 million analog sets per year.
PANEL: Independent Programming and Access in the Digital Age
This programming panel was organized by Committee members Gigi Sohn, Frank Cruz, and Jose Luis Ruiz, and moderated by James Yee. The panelists were Kelley Carpenter, Director of the Southern California Indian Center; Gerald Isenberg, Chairman of the Caucus for Producers, Writers & Directors and Executive Director of Electronic Media Programs at the USC Annenberg School of Cinema-Television; Marian Rees of Marian Rees Associates, Inc., and Co-chair of the National Council for Families and Education; and Herbert Chao Gunther, President and Executive Director of the Public Media Center.
Testimony of Kelley Carpenter
Kelley Carpenter focused her remarks on the concerns of local communities about their lack of access to major broadcast networks. She first cited the influence that television broadcasters have on national and international viewers and noted that technological developments will increase the power of broadcasting to inspire, educate and galvanize the viewing population.
Ms. Carpenter explained that community development professionals are frustrated because of their limited access to broadcast outlets that reach large numbers of viewers in their communities.
Ms. Carpenter urged the Committee to require broadcasters to:
Testimony of Gerald Isenberg
Gerald Isenberg addressed the Committee in his role as Chairman of the Caucus of Producers, Writers and Directors, a membership organization of 200 television professionals selected because of their creative achievements. The primary mission of the Caucus is to protect the creative rights of its members and to help fashion an industry environment conducive to creativity.
Mr. Isenberg discussed the television creative community's concerns regarding access and diversity of voices on digital television. He argued that the environment for independent creative voices in free television has never been worse. Pointing to the growing concentration of production and distribution activities in the hands of the owners of broadcast and cable services, Mr. Isenberg estimated that 90 percent of prime-time programming aired by the six national networks is owned by those networks.
Mr. Isenberg argued that the viewing public loses from lack of diversity and concentration of ownership because it negatively affects the quality of television programming. He gave several examples of movies and television series that would not have been produced but for the tenacity of the independent producer.
Mr. Isenberg urged the Committee to step in where the marketplace had failed to protect diversity of voices and independent access. He proposed that broadcast networks be required to air a majority of movie programming produced by non-broadcast or cable owners.
Testimony of Marian Rees
Marian Rees provided the perspective of the entrepreneurial independent producer. Ms. Rees argued that the challenge of digital television is to secure the opportunity to produce programming that will reach diverse viewers. She explained that independence is integral to achieving diversity because it gives the producer the ability to move about freely in the marketplace, to find an outlet for his work that will assure its creative integrity.
Ms. Rees argued that without the efforts of independent programmers who are not employed by the network some alternative programs would never be made or aired and described her personal experience with this phenomenon.
Ms. Rees urged the Committee and broadcasters to balance the explosion of opportunities created by digital television with a significant commitment to the public interest. Specifically, she suggested that a content-neutral regulatory mechanism be established to allow independent producers access to digital television airwaves during prime time.
Testimony of Herb Chao Gunther
Herb Chao Gunther shared his concerns about the commitment of commercial and non-commercial broadcasters to the public interest. He argued that the current system of viewing television as a sales tool had left entire communities and ideologies unrepresented.
Mr. Gunther urged broadcasters to reexamine their commitment to their role as public trustees. He challenged them to set and achieve higher standards of public access and diversity of viewpoints.
Mr. Gunther also proposed that the Committee restate and reformulate the public interest standard for the digital age and address the commercialization of public broadcasting.
A brief question and answer period followed these presentations. The major issues raised during that session include a specific call for local access time, the desire for access to broadcast outlets by diverse groups of Americans, and the possible explosion of interactive programming in the digital age.
PANEL: Political broadcasting
The panel on political broadcasting was moderated by Committee member Cass Sunstein. The presenters were Tracy A. Westen, President of the Center for Governmental Studies; P. Cameron DeVore, Senior Partner at Davis Wright Tremaine, LLP; and Paul Taylor, Executive Director of The Free TV for Straight Talk Coalition.
Testimony of Tracy Westen
Tracy Westen characterized the advent of digital television as an opportunity to rethink the role of television in American democracy. He reasoned that television's ability to inform the electorate has not been realized, in part, because its costs are growing beyond the reach of many candidates and the price candidates must pay to raise that money distorts the political system. In fact, Mr. Westen estimated that between 1976 and 1996, the amount of money spent by all federal, state and local candidates in the United States increased 2600 percent to 4.2 billion.
Mr. Westen argued that the FCC has the legal authority to mandate free air time under both its current jurisdiction and the First Amendment, but also highlighted the advantages of a broadcast industry-adopted solution. He also suggested that specific free air time proposals should take formatting, cost burdens on licensees, and the risk of boring the audience into consideration.
Mr. Westen urged the Committee to mix practicality and vision and then articulated seven principles for the Committee to consider:
Mr. Westen urged the broadcast industry to devise and test alternative and creative solutions. He argued that the continuation of the Nation's democratic form of government based on information is at stake.
Testimony of P. Cameron DeVore
Cameron DeVore discussed the constitutionality of proposals to provide free air time to political candidates. He outlined the current political landscape of the free air time debate and characterized the concept as a "vestige or remaining isolated proposal" of the McCain-Feingold campaign finance reform package. He concluded that there is no constitutionally-respectable rationale for the concept and argued that the central meaning of the First Amendment is offended by these plans.
Mr. DeVore provided the members a summary of his arguments, titled "The Unconstitutionality of Free Air Time for Political Candidates." He also recommended papers on the same topic prepared by Professor Rodney Smolla of the Marshall-Wythe School of Law at the College of William and Mary (Free Air Time and the First Amendment published by The Media Institute) and Professor Lillian BeVier of the University of Virginia Law School (Is Free TV for Federal Candidates Constitutional? published by the American Enterprise Institute).
Mr. DeVore characterized free air time proposals as a mandate to broadcasters to publish and broadcast federally selected and defined core political speech. He argued that such a direct mandate is subject to the highest form of constitutional scrutiny because it implicates two core First Amendment principles: the First Amendment wall against government compelling the media to print or broadcast certain things and the prohibition of impermissible government preferences for a particular class of speech based on its content.
Mr. DeVore also countered what he labeled as the four most common arguments supporting the constitutionality of free air time. He argued that
Testimony of Paul Taylor
Paul Taylor focused his remarks on free air time solutions. He concluded that a legislative solution is unlikely given the failure of campaign finance reform legislation in the 105th Congress and the lack of incentives for lawmakers to change the current system of political advertising. He acknowledged that free air time would work best in the context of a broader campaign finance reform solution, but insisted that it would prove invaluable on its own.
Mr. Taylor argued that free air time is not a last "vestige" but an important first step toward achieving the goals of making political races more competitive, reducing the role of money, and giving individuals more access to the system.
Mr. Taylor then exposed two conceptually-distinct models of free air time, both of which he suggested would significantly improve the current system:
Mr. Taylor emphasized the importance of improved news coverage. He shared the fundamental finding of a content analysis of local news programs in eight U.S. television markets: "coverage of government affairs, once a mainstay of local television news, now occupies just 15 percent of the news during an average program [excluding weather and sports]."
Mr. Taylor urged the Committee to send a signal to broadcasters to use their creativity to get candidates on the air, to provide political information to the broadest number of citizens, and to test the mechanisms they devise.
A brief question and answer period followed these presentations.
The Committee began deliberating on its recommendations. At the request of the Co-Chairs, each Committee member described his or her expectations about the Committee's final product.
Public Comment, Questions and Answers
Mr. Moonves opened the floor to public comment. James Peterson of Skywriter Communications and the America Voter Coalition urged the Committee to remember that news is at the heart of the public interest. He asked the Committee to seek the input of journalists on the relationship between meaningful news reports and civic and democratic participation.
Matthew Sptizer, a Professor of Law at the University of Southern California and Director of the USC Communications Law and Policy Center, also addressed the Committee. Mr. Sptizer suggested that the First Amendment would not allow the kind of oversight of news content that the previous commenter sought. Mr. Spitzer also argued that a decision by the the Supreme Court to jettison the scarcity rationale for broadcast regulation would imperil the justification underlying the federal government's ownership of spectrum and its allocation to broadcasters.
Mr. Moonves thanked the Committee members and adjourned the meeting at 4:22 p.m.
Meeting Materials (available separately)
Executive Order 13038 (3/97)
White House Press Release announcing the establishment of the Committee (4/97)
Charter of the Advisory Committee (4/97)
Radio Address by the President announcing the Co-Chairs (6/97)
Amendment to Executive Order 13038 (10/97)
White House Press Release announcing the members of the Committee (10/22/97)
White House Press Release announcing the appointment of Jose Luis Ruiz (12/4/97)
List of members of the Committee
Biographies of members of the Committee
Secretariat contact information
Guidelines for public comment
Future meeting dates
Biographies of the panelists
Remarks of Jerry Isenberg, Chairman, Caucus for Producers
Remarks of Kelley L. Carpenter, Chairman, Southern California Indian Center
Remarks of Marian Rees, Marian Rees
Associates, Inc. and Co-Chair, National Council for Families and Television
The Unconstitutionality of Federally Mandated "Free Air Time", A Summary Prepared for The National Association of Broadcasters, submitted by P. Cameron DeVore, Senior Partner, Davis Wright Tremaine LLP
ATSC DTV Format Comparison, submitted by Jim Goodmon, President and CEO, Capitol Broadcasting Company
Public Interest Obligations of Cable TV and Direct Broadcast Satellite Operators, Media Access Project
Public comment submissions
Submissions by electronic mail (January 14 to February 24, 1998)
Free Air Time for Candidates and the First Amendment, authored by Rodney A. Smolla and submitted by The Media Institute
Public Interest Obligations and First Principles, authored by Laurence H. Winer and submitted by The Media Institute
Toward a New Approach to Public Interest Regulation of Digital Broadcasting: A Preliminary Report of The Aspen Institute Working Group on Digital Broadcasting and the Public Interest, authored by Angela Campbell
Leslie Moonves, Co-Chair
Norman Ornstein, Co-Chair