UNITED STATES DEPARTMENT OF COMMERCE
OPEN MEETING OF THE
ADVISORY COMMITTEE ON PUBLIC INTEREST
OBLIGATIONS of DIGITAL TELEVISION BROADCASTERS
Monday, March 2, 1998
University of Southern California
Annenberg School for Communication
3200 Watt Way
Los Angeles, California 90089-0281
Afternoon Session
Go to the transcript of the morning session
3 (1:34 p.m.)
4 CO-CHAIR ORNSTEIN: Why don't we get
5 started? We have most of our members here. We're
6 moving, at least at this point, maybe not
7 permanently, but past our phase of hearing testimony
8 and towards what will be an extended phase of trying
9 to consider our ideas for what we ought to put in the
10 report and what we ought to recommend and what
11 directions we ought to go in. And we will spend the
12 afternoon beginning those deliberations.
13 And Les' and my expectation is that the
14 next two sessions we will focus more intensively on
15 those things. And that will include, I hope this
16 afternoon, some discussion of what our mandate is,
17 some of the logistical issues.
18 And we have a succession of logistical
19 issues that include how we operate under the Open
20 Meetings Act, the Federal Advisory Committee Act, and
21 so on, along with the practical questions of what it
22 will take to actually draft a report and get it ready
23 to be submitted to the Vice President.
24 We have, as I mentioned earlier, informal
25 word at least, that we will get an extension until
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1 October 1, although I am not exactly sure how that
2 will be worded or what will be there. But as you'll
3 see from some of the papers you've got, even in terms
4 of a timetable, we're going to have to move
5 expeditiously starting fairly soon to begin to put
6 our recommendations together if we're going to come
7 up with any kind of a solid report even by that date.
8 So that's a word of warning.
9 And we all need to be aware of the
10 guidelines for meetings under the Federal Advisory
11 Committee Act during the drafting process when we get
12 to it. We're going to have to discuss a little bit
13 further along the way whether we want to break up
14 into subcommittees, how we want to take on some of
15 the responsibility for doing drafts. It's not clear
16 whether we will be able to have somebody, a
17 professional, help us along this process of drafting
18 or editing, although we perhaps will. Lots of
19 questions to raise.
20 Let me start with a bit of a framework.
21 Then what I'd like to do is to open it up to some
22 discussion among ourselves and try and get a feel for
23 how much people have thought about where they would
24 like to end up and see if there are points of
25 consensus around which we can start and other points
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1 where we may have to go a little bit further.
2 We clearly have a couple of mandates here.
3 We have a mandate to figure out ways to take existing
4 public interest obligations in the analog age and
5 make them work in the digital age. And that is no
6 easy task, as we have discussed numerous times,
7 because we are moving from a fixed, predictable and
8 static world of one broadcaster, one signal at all
9 times, to a fluid and unpredictable world where we
10 may end up with broadcasters doing very different
11 things all the time or different things at different
12 times of the day. And so the simple quantitative
13 approach isn't going to work in the same fashion.
14 At the same time we clearly have a mandate
15 to look at what other public interest obligations or
16 in what form these obligations will apply in a new
17 era with a new grant of spectrum.
18 And without getting into any of the
19 controversial or divisive questions about what was
20 granted, what it's worth, we clearly have a firm
21 mandate -- and it's a mandate that's in the
22 Telecommunications Act; it's a mandate that's in what
23 the FCC has said -- to look at new obligations.
24 Having said that, my own judgment is that
25 we have a tremendous opportunity here, not just to
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1 deal with these questions per se, but to try and come
2 up with a new way of looking at public interest
3 obligations, to see if we can develop a model that
4 applies the watchword that Bob Wright, the president
5 of NBC, suggested over and over again when he
6 testified in front of us, "flexibility."
7 Broadcasters want, need and, I believe,
8 deserve flexibility in an era where nobody knows how
9 it's going to work, what the revenue streams will be,
10 how the signals will operate, how consumers will
11 react, how quickly we will phase in these materials.
12 And it provides us a wonderful opportunity to apply
13 that flexibility more broadly to serve the public
14 interest, as well, and see if we can come up with a
15 win-win situation that serves the public and that
16 serves the needs of broadcasters at the same time.
17 Let me just briefly go through some of the
18 models that might apply here that are in this
19 preliminary working paper that the Aspen Institute
20 working group put together. And I'll do this very
21 quickly. You'll see it's fairly straightforward.
22 And recognizing, as well, clearly these are
23 not the only ways to go and that what we can do as an
24 alternative is simply to set out a specific set of
25 obligations and figure out ways of quantifying them
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1 or coming up with something that will work and leave
2 that there as well. Now that would be, in effect,
3 something that is not much different from the first
4 model, which is taking that current public trustee
5 model, going through those obligations, what they
6 are, what they might be, what they should be, what
7 might be added to them, what might be subtracted from
8 them, and put them down.
9 And, of course, we've had some discussion
10 of some obligations that have been dropped, like the
11 ascertainment rules that we might want to bring back,
12 some additional obligations we might want to bring
13 in, others that we might want to refine.
14 We've had some discussion about whether we
15 might want to refine -- we have closed captioning in
16 the law -- we might want to refine the video
17 description rule, just to pick one example.
18 And, obviously, the question of political
19 broadcasting is brought in to bear here, too.
20 It would be the easiest approach for us to
21 take probably, just to go through obligations
22 one-by-one and do some horse trading and do some
23 voting. I don't think it would solve a lot of the
24 problems. And, in particular, it's not going to get
25 us to a point where we can apply these static rules
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1 to an evolving and fast-paced changing system.
2 Another option which was mentioned a few
3 times this morning is one that was originally
4 proposed by Henry Geller some years ago and a
5 variation of which has been presented and pushed by
6 Billy Tauzin. In other words, it's come from the
7 left and the right.
8 And it basically is that saying that the
9 model of the obligations that we've had for all
10 these, lo these many years just hasn't worked very
11 well. It doesn't work very well for a host of
12 reasons. It's posing a set of bureaucratic
13 obligations on stations that have different
14 resources, different communities, different
15 interests. And a much better way to do this is
16 simply to assess a fee for broadcasters and take that
17 money and use it in the public interest.
18 What Mr. Tauzin has suggested is getting a
19 fee, relieving broadcasters of their obligations and
20 using it to fund the Public Broadcasting System and,
21 in effect, letting the Public Broadcasting System be
22 the repository for the vast bulk of the obligations
23 that have been out there. But there are, of course,
24 other ways to go. The money can be used in a variety
25 of ways.
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1 Now some have suggested that we shouldn't
2 have that kind of a model and relieve broadcasters of
3 all obligations. There are some obligations,
4 including access for candidates, for example. It
5 might include some public service announcements or
6 other related obligations. That you can have a model
7 to allow broadcasters to get out of some of those
8 obligations but not all.
9 And then there is a more sophisticated
10 model that would have many more options attached to
11 it, where we might suggest a list of public interest
12 obligations and let broadcasters pay to get out of
13 most of them, pay to get out of some of them, trade
14 among themselves for some of them, or do them in lieu
15 of paying, give options to broadcasters so it's not a
16 tax assessed but rather an option to provide more
17 flexibility.
18 And there are lots of ways in which we can
19 go there, and you can see this paper provides a kind
20 of pollution-rights model or a spectrum check-off
21 model.
22 And we have, if you look at this paper, a
23 grid that looks at the various goals that we want
24 that have been raised in terms of the public
25 interest, localism and community interests, a better
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1 informed electorate, encouraging and providing
2 opportunities for diversity of viewpoints, dealing
3 with children and education and the pros and cons of
4 the different ways of going about this.
5 I think this is a fairly good overall
6 assessment of some of the different models we might
7 apply here, and we ought to be considering them.
8 Let me suggest my own inclination at the
9 moment, which leans toward some variation of the
10 fourth one. And, just as an example, with our
11 discussion of free time, where most of the discussion
12 was on the constitutionality of imposing such
13 requirements on broadcasters.
14 If we were able to work out some kind of
15 flexible model where broadcasters could emphasize the
16 obligations that they felt most comfortable with and
17 not have to do some others, be able to pay in lieu of
18 others; where some CBS stations, for example, could
19 pay in lieu of putting on the children's programming
20 that doesn't particularly fit its interests, and
21 money were available that might be applied to things
22 like education through Public broadcasting, to
23 perhaps setting up a series of state-based or local
24 foundations with heavy broadcaster input, with some
25 money going to provide for locally tailored public
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1 interest needs, and then some being set aside for the
2 purposes of enhancing political communication, that
3 would, I think, not have any particular
4 constitutional questions, ought not to raise the same
5 hackles for broadcasters and yet could serve multiple
6 purposes.
7 Now getting from here to there is not,
8 obviously, very easy. But just to start things out,
9 I'd like to explore that set of options and see if we
10 could come up with a model that would put us into a
11 win-win situation. And why don't we spend a little
12 time going around and seeing if people have thought
13 about where they'd like to end up more generally.
14 Let's start with Les.
15 CO-CHAIR MOONVES: Well, there are a lot of
16 issues. And this may be the most difficult meeting
17 we have, or the beginning of it, only because the
18 formation of what we're going to end up with is going
19 to be a bear to do.
20 Before we get into this, there's also
21 something that, you know, we discussed earlier, which
22 is how do we reach a consensus. I think in an ideal
23 world we would all like to put our names on a piece
24 of paper that we all can live with, rather than
25 having a dissenting report. I hope this is possible.
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1 It may not be. But that's one of the questions that
2 has to be answered here, is how do we get everybody
3 on the same page.
4 Another question that I have -- and my
5 statement will be mostly in the form of questions --
6 are we going to be dealing with the analog world or
7 just the digital world? What is our responsibility
8 and what should we do?
9 And probably the most important question
10 for me right now, which is something that is very
11 disturbing, that's happened over the last month,
12 which Paul Taylor alluded to, which was the recent
13 events which happened with the President's statement,
14 with the head of the FCC's statement and with various
15 congressional statements going on against the FCC:
16 Have we been rendered almost -- the battle was going
17 on long before we ever go into it. Are our
18 recommendations important?
19 Obviously we all know from day one, when
20 the Vice President in his address to us stood on the
21 issue of free time for candidates, and we knew the
22 President stood there as well, this panel, and as
23 much we may want to deny it, one very important part
24 of our mission is that very issue, which I think our
25 panel this morning addressed very well.
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1 Now that the battle lines have been drawn,
2 are we rendered a lot less important, a lot less
3 effective than we would have been before? It's like,
4 as I said before, the fight is already going on six
5 months before we even show up in the arena. And that
6 is something we should all talk about. Have the
7 rules now changed for us from where they were before?
8 And, finally, and Norm addressed this
9 somewhat before, do we want to address the
10 constitutional question, or is that something that we
11 should ignore, leave that to the broadcasters and the
12 FCC and Congress to argue later on, when we make our
13 recommendations and go from there.
14 And, once again, how effective will that
15 be?
16 CO-CHAIR ORNSTEIN: Let me just address a
17 couple of those for a minute.
18 I would hope -- our goal ought to be trying
19 to come to a consensus where we all agree. And it
20 may be that we can't come to a consensus on every
21 particular. It may be that we will end up with
22 something where we have a core of agreement, and then
23 we have some areas where individual members or groups
24 want to express some disagreement on the five points,
25 and it may very well be that we'll end up with a
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1 minority report. I hope we can avoid that. And I
2 set as our goal trying to avoid it, because clearly
3 we have much greater clout the more we can come to an
4 agreement across very disparate and divergent points
5 of view.
6 There's no question that it's a trickier
7 process now after the President and the FCC have
8 spoken. But I would argue that, in fact, our role is
9 now even more significant and our power is that much
10 greater, because the fact is that what the President
11 and the FCC have done is to set out a position on an
12 issue without any specifics. And the fundamental
13 reality is they don't know what the specifics are or
14 should be and they are going to end up groping for
15 answers here.
16 If it is possible to come up with answers
17 that are innovative and not obtrusive and that do not
18 involve the kind of imposition that would cause all
19 of the broadcast members of the panel to react
20 negatively, then those recommendations, I think, will
21 have considerable resonance in Congress, with the
22 White House and certainly with the FCC.
23 So I think we actually have an even greater
24 level of responsibility now to try and work things
25 through and do it with all of us in good faith.
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1 What they have done has bearing on us only
2 insofar as we are sensitive to that issue which we
3 knew beforehand was going to be a significant part of
4 our deliberations, but not in terms of pushing us or
5 requiring us to come to any preset conclusion.
6 CO-CHAIR MOONVES: Would anybody else like
7 to comment on that one issue, the last issue
8 regarding what the President said, what the FCC and
9 what Congress has said?
10 Yes, Gigi.
11 MS. SOHN: I agree with Norm a hundred
12 percent. Also, that issue is just with regards to
13 the free time. That's not to minimize that free time
14 is a big part of this, but, --
15 CO-CHAIR MOONVES: No, I know that.
16 MS. SOHN: -- you know, there's a lot of
17 other --
18 CO-CHAIR MOONVES: I'm aware that is just a
19 free-time issue. But, as I said, I think that's what
20 their main concern with what this Commission comes
21 out with is, this free time.
22 CO-CHAIR ORNSTEIN: But remember, Les, the
23 Executive Order -- if that was the context in which
24 the President created this body, the Executive Order
25 gives us a much different mandate, a much larger and
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1 more significant mandate.
2 MR. LaCAMERA: But, Norm, does what's
3 occurred, as Les discussed, does that in some ways
4 preordain the expectation of what's to come out of
5 this Committee?
6 CO-CHAIR ORNSTEIN: Well, it may preordain
7 the expectations that some people have, but we're not
8 governed by the expectations.
9 MR. LaCAMERA: "Some people" being the
10 President and the Federal Communications Commission
11 or the Chairman of the --
12 CO-CHAIR ORNSTEIN: We're not governed by
13 their "expectations."
14 From the beginning I think all of us
15 expected we would have to address the free-time issue
16 and not address it by just saying, "Eh, forget that,"
17 but try and come up with something that was
18 constructive and that reached across these lines.
19 If anything, we have a stronger impetus to
20 do so now, and it is not that we've been given orders
21 and, therefore, we have to comply with those orders,
22 because, let me reiterate: There is nothing in what
23 the President said or what the FCC said that includes
24 any specifics. And the reason that there are no
25 specifics is because they don't know.
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1 They have a generalized idea of what they
2 want to see, but nothing beyond that. And within
3 that larger continuum, there are many, many different
4 ways to go, some of which would be clearly
5 unacceptable to broadcasters, some of which I think
6 would not be, given our discussion so far. And we
7 have lots of freedom and opportunity to range within
8 that.
9 MS. SOHN: Can I just make one point?
10 Congress has the ability to overturn
11 anything that we might recommend that the FCC enacts.
12 I mean that threat is always there. I mean you could
13 take that argument to the absurdity and say, "Well,
14 you know, if Congress could overturn whatever we do
15 by legislation, why are we even here?"
16 Right now they've decided not to act.
17 MR. LaCAMERA: We're not a congressional
18 commission.
19 MS. SOHN: Right.
20 MR. LaCAMERA: We were appointed by the
21 executive branch of government.
22 And I think some people, as Les suggested,
23 feel that whatever independence of decisionmaking
24 lays ahead of us -- and, granted, this issue I
25 imagine is going to dominate the discussion in the
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1 meetings ahead -- has been somewhat compromised.
2 MS. SOHN: No, I just don't agree.
3 CO-CHAIR ORNSTEIN: Yes.
4 MR. DECHERD: I'm trying to resist getting
5 into that discussion at the moment. But for the
6 benefit of all of us, I think it would be helpful if
7 some of us from the broadcast business talked about
8 how we came to the work of the Commission and how
9 this sequence of events affects our ability to be
10 effective.
11 When the Commission was formed, the
12 premise, I believe, was that we were going to
13 assemble a group, originally of 15, public-spirited
14 people from the broadcast industry and various public
15 interest backgrounds and others to discuss in a
16 fairly untainted environment what are very complex
17 issues. I mean there's no right or wrong to
18 virtually any of these questions, except when you
19 apply some constitutional history or history of
20 constitutional law. And I don't begin to presume
21 that I know much about that that would be helpful
22 here today.
23 But, at the same time, the members of this
24 panel who happen to be from the broadcast industry
25 are not here as official representatives of the
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1 broadcast industry. We are here as individuals
2 representing our companies and lending our expertise
3 to these discussions.
4 So, first, to look to us to speak for the
5 industry or to commit the industry is not exactly
6 consistent with, I think, the way this was formulated
7 to begin with. And I have to tell you that, as I've
8 expressed to Norm and Leslie, I felt greatly
9 compromised when, in the State of the Union address
10 the President of the United States directly addressed
11 this question; the next morning, in what I think was
12 clearly an orchestrated move, sent a letter to the
13 Chairman of the FCC, putting the pressure on the FCC
14 to act. And the Chairman of the FCC then says he's
15 going to have a rulemaking.
16 Now for those of you who know the way the
17 FCC works, it is almost preposterous to think that
18 one of us will sit at this table and commit to
19 something which is the subject of a rulemaking at the
20 FCC.
21 If I or my company have something to say
22 about free time for political candidates, it's going
23 to be submitted to the Commission under the rules of
24 the rulemaking proceeding, and I'm not going to
25 commit my company or presume to commit the industry
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1 to anything.
2 So I think that that sequence of events did
3 a great disservice to this process. And I think that
4 my views are shared, for the most part, by the other
5 broadcasters here. We are in a no-win situation as
6 of that sequence of events. And I don't think that
7 that was the basis on which any of us joined this
8 discourse. I think it's very unfortunate.
9 MR. BENTON: I'm sorry. I need help in
10 understanding what you just said better, because
11 you're a very important voice --
12 MS. SOHN: We can't hear you.
13 MR. BENTON: I'm saying I just need to
14 understand better what Bob has said because he's a
15 very important voice on this Commission and this
16 group.
17 We all know that the Administration felt
18 very strongly about this. Vice President Gore said
19 so upfront in his opening comments. We know that the
20 President also feels strongly about this. And he, as
21 you know, in the State of the Union speech, give a
22 laundry list of about 50 points. I mean this was
23 just one of 50. So it was lots and lots of points.
24 For him not to say something about campaign
25 finance reform, including this point which he feels
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1 very strongly about, would almost be saying, "Well,
2 he's ignoring this."
3 So looking at it from his point of view,
4 it's not unreasonable for him to get a point like
5 this out. It seems to me that whether he said it or
6 whether he didn't is really irrelevant to what we're
7 doing here, unless I'm missing a major point. I
8 don't see why this -- we know his stance. We know
9 what his position was. Gore said it upfront. He
10 said it in the State of the Union speech. I just
11 don't see what difference it makes.
12 Frankly, if he's trying to get a little
13 additional public support for this, that's -- he's
14 using the bully pulpit. That's what the President is
15 supposed to do. He's used the bully pulpit to
16 persuade the American public that his views are
17 correct.
18 Now we may disagree with those views or we
19 may agree with them. But it seems to me that that's
20 just part of the democratic process. I don't see
21 anything wrong with that.
22 You know what we do here is depending on
23 what we as informed citizens appointed to a process
24 to advise the FCC or to advise the President and Vice
25 President and the FCC, in other words, the
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1 Administration, on our best judgment as to how to
2 make progress on these issues confronting us.
3 So I don't see what the problem is. Maybe
4 I'm missing something. Please explain this to me so
5 I understand it better.
6 MR. DECHERD: Charles, we have no
7 difference about the President's prerogative in using
8 the bully pulpit.
9 MR. BENTON: Right.
10 MR. DECHERD: The problem in my mind, and
11 I'll rely on my colleagues to address the same point,
12 is that the following day he sent a very specific
13 letter to the Chairman of the FCC strongly suggesting
14 that the Commission undertake a rulemaking or some
15 proceeding to impose mandated free air time on the
16 broadcast industry.
17 The FCC, which is an appointed body and
18 which has experienced almost complete turnover in the
19 last six months, is of a mind to follow the lead of
20 the President and the Vice President. They're very
21 explicit in their views about this. And under the
22 rules of the agency or any federal agency there are
23 very precise steps that are undertaken which indict
24 public and industry comment. It is the forum wherein
25 those ideas are debated and decided.
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1 And the fact is we can publish a 600-page
2 report on this as detailed as we could possibly make
3 it, but it's up to the FCC to decide what rules are
4 created and what mandates, if any, are imposed upon
5 the broadcast industry.
6 So when you put those of us on this
7 Commission in the position of trying to address this
8 in a way that does anything other than give ground to
9 that process, I mean we're not here to speak for the
10 industry, for the NAB, for Television Operators
11 Caucus, for any of the industry groups. They all
12 have to join that rulemaking now. And it's just not
13 reasonable to expect that we are going to break
14 formation with an active rulemaking underway. Why
15 would we do that? Because everything that we do or
16 say is going to be put to a political purpose. And
17 it's fine for the bully pulpit to be part of the
18 political process. It's fine for the Vice President
19 to charge us as he did. This makes me feel like a
20 political pawn, frankly.
21 And I'd welcome the views of other
22 broadcasters. I may be the Lone Ranger on this one.
23 MR. BENTON: One more quick thought, and
24 then others. There is sure lots to say about this.
25 It is my understanding the FCC was going to
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1 be having a rulemaking on public interest obligations
2 in general in addition to the free time for
3 candidates. So that our process was going to go
4 along and the FCC process on public interest
5 obligations in general was going to go along, of
6 which this is one point.
7 So I agree maybe tactically someone in the
8 Administration acted out of sequence and
9 precipitously on this specific. But my understanding
10 was the FCC was going to have a general rulemaking on
11 public interest obligations in general. Maybe I'm
12 wrong about that, but that's was my understanding.
13 MS. PELTZ STRAUSS: No, that's right.
14 That's right. That was their intent.
15 MR. BENTON: That was my understanding.
16 Okay. So if that's the case, this is just
17 a specific point within that general framework.
18 Okay, maybe tactically they made a mistake. But
19 let's not throw the baby out with the bath water. If
20 they made a mistake, then let's say, "Well, look,
21 this has not helped the process, but the process must
22 move forward."
23 And, besides, what's the timing of this
24 rulemaking? Is the timing of the rulemaking between
25 now and October 1st? I would kind of doubt that.
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1 MS. PELTZ STRAUSS: That's what I was going
2 to say. I mean if --
3 MR. BENTON: Maybe we could suggest, "Look,
4 in order to help us do our work, why don't you wait
5 for us to come up with our conclusions and hold this
6 rulemaking after October 1st when you have our
7 report?"
8 MS. SOHN: That's what they were planning
9 on doing, Charles. They were going to issue -- I
10 don't know what their plans are now because of all
11 hullabaloo. They were going to issue a rulemaking
12 soon. But they were not going to come up with a
13 decision until they heard from us. That's my
14 understanding.
15 CO-CHAIR MOONVES: To pretend that the
16 rules are not different now I think is ridiculous.
17 They are different now. I think that's what Robert
18 is saying.
19 It's no longer the President talking. It's
20 the President sending a letter to the FCC demanding
21 action from the FCC, which was taken or the beginning
22 of it was taken. And it basically said that the
23 deliberations of this Commission are now secondary.
24 The rules are changed. You can't just say that
25 nothing is different because the FCC was going to do
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1 that anyway. I think that's a very naive point of
2 view.
3 MS. PELTZ STRAUSS: I think that, though,
4 we have a mandate. Our mandate is to develop
5 recommendations for public interest obligations.
6 That has not changed. And if the Administration has
7 issued a statement on one of these obligations, we
8 are now aware of that. And we take that into
9 consideration.
10 We can reject it; we can accept it. Right
11 now there are certainly no guidelines associated with
12 that. And chances are that even if the FCC issued a
13 proposed rule tomorrow, the way the FCC issues rules,
14 they probably would not specify the guidelines, but
15 would rather make it more in terms of a notice of
16 inquiry which would be open-ended and how do we do
17 this.
18 So I don't see we're in that much of a
19 different position, other than we are aware that the
20 President and the Chairman of the FCC would like to
21 take a certain position on one of these obligations.
22 We now, like I said, have to decide whether
23 or not we want to accept it. The FCC, we all know,
24 does not move swiftly. It's highly unlikely that
25 they are going to finish any proposed rule or any
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1 final rule by October. And it's highly unlikely that
2 they would even issue the notice of proposed
3 rulemaking by October.
4 So I just don't see how we're in that
5 different a position, other than understanding that
6 this is one of the agenda items of the
7 Administration. And we can take it and we can leave
8 it.
9 CO-CHAIR ORNSTEIN: Richard, and then Bill.
10 MR. MASUR: Yes. Just a procedural
11 question, really.
12 Is there anything that takes place in this
13 process whereby any of us have indicated that we are
14 binding our organizations to any action we take
15 individually in this room?
16 I don't believe there is, right? So I just
17 want to clarify that for myself, because I'm not here
18 on behalf of the Screen Actors Guild. I was told I
19 was being invited as an individual. And I have to
20 assume that I am, because I'm not seeking my
21 organization's approval for anything I might do or
22 say or any way in which I would act in here. So I
23 just want to clarify that for myself.
24 CO-CHAIR ORNSTEIN: You're right.
25 DR. DUHAMEL: I'm not a lawyer, but I'll
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1 ask Gigi.
2 If I were your client, and I was accused of
3 a crime, and then we go to a public hearing, would
4 you recommend that I go ahead and talk at a public
5 hearing, if the subject matter was the crime I was
6 accused of?
7 MS. SOHN: I'm not a criminal lawyer. I'm
8 not quite catching your drift. Ask it to me in a way
9 that I understand.
10 MR. DECHERD: Well, basically what I'm
11 saying is, you know, there is a rulemaking and --
12 MS. SOHN: No, there isn't a rulemaking.
13 MR. DECHERD: Well, it's been proposed.
14 MS. SOHN: The FCC has not issued a rule.
15 It has not. It has only been talked about. There is
16 no piece of paper right now. You can't pull it off
17 the Internet. You can't get it out of anybody's
18 office. There is not a rulemaking.
19 There has been discussion of having a
20 rulemaking, and that's it. So your question doesn't
21 apply.
22 MR. DECHERD: Okay.
23 MS. SOHN: Look, you know, if we're going
24 to get into technicalities here, we may not recommend
25 free time. Okay? You're saying you don't want to
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1 have a discussion, which I find very unfortunate.
2 CO-CHAIR MOONVES: Did you say you're not
3 recommending free time?
4 MS. SOHN: What's that? No, no. Come on,
5 Les.
6 (Laughter.)
7 MS. SOHN: Les, don't you know --
8 seriously. I mean, we may decide as a body -- there
9 may be a consensus or a minority opinion that we
10 don't want to do the free time; it's unmanageable,
11 what-have-you. Okay?
12 But you're saying let's not have a
13 discussion because some folks have been talking about
14 having a rulemaking at the FCC. I just think this is
15 specious, so I can't respond to it, Bob, because
16 frankly I don't get it. I don't understand how
17 you're being compromised when there's not even a
18 rulemaking happening yet. I'm just not -- I don't
19 get it.
20 MR. DECHERD: "Some folks" happen to be the
21 Chairman of the FCC. The President and the Chairman.
22 MS. SOHN: Yes, right.
23 MR. DECHERD: We're not talking about just
24 a staff member.
25 MS. SOHN: The Chairman. And he's got
171
1 strong opposition on his own Commission. I can give
2 you --
3 MR. DECHERD: It's three to two.
4 MS. SOHN: I can give you the Dingellgrams
5 of this. And it ain't a strong three to two. Okay.
6 I can give you the Dingellgrams, the responses to
7 John Dingell about doing such a rulemaking. And it
8 isn't overwhelming. It is not a sure thing, that
9 they're going to do this rulemaking. And there is no
10 such rulemaking today. And I don't know when there
11 will be one.
12 CO-CHAIR ORNSTEIN: Jose.
13 MR. RUIZ: First of all, you know, this is
14 an advisory committee. When I came on here, I
15 understood that it was an advisory Committee. And
16 any advisory committees I've ever been on, you
17 present a white paper, but that doesn't mean it's
18 law.
19 I think when we talk about the FCC, we are
20 talking about law. And as far as who we represent
21 here, I don't know how many of you are paying your
22 own way or your companies are paying your way. So I
23 think, you know, that's kind of very foggy for me
24 because if your company pays your way and you take
25 time off and they give it to you and they pay you,
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1 then I think they do have some way of thinking, "He
2 will respond or she will respond in a certain way."
3 Third, Robert asked for other broadcasters
4 to share their opinions, if he was the lone wolf.
5 And I'd like to hear from some of the other
6 broadcasters.
7 MR. DECHERD: Jose, Lone Ranger.
8 MR. RUIZ: Lone Ranger.
9 (Laughter.)
10 MR. SUNSTEIN: He's from Texas.
11 MR. LaCAMERA: I did speak on the issue.
12 And I think Bill did as well. And just to respond to
13 what Karen had to say. and, I agree, there are many
14 obligations presumably we're to look at. And I feel
15 very strongly about some of them. And in general
16 terms you know where I stand.
17 I think there needs to be a reaffirmation
18 on the part of the broadcasters to many of this
19 public interest standards, and even an expansion of
20 some of them. But this issue is agenda item A. All
21 obligations are not equal, at least the measure that
22 I've received. This is more equal than the others.
23 And that's what I think raises the concerns
24 among some of us to have -- and again the President
25 has every right to do that in whatever forum that
173
1 might be. And the President has every right to talk
2 to Les and Norm about his feelings, and the Vice
3 President.
4 When it then translates down to the
5 Chairman of the Federal Communications Commission and
6 he makes an unequivocal statement about it, it then
7 has to become a concern to those of us in
8 broadcasting and those of us as broadcasters who
9 serve on this panel.
10 MS. PELTZ STRAUSS: Again, though, I bring
11 up the point that he didn't define how it should be
12 accomplished. So aren't we still in a position to
13 discuss that and -- see, I guess I also don't see any
14 inconsistency with commenting in a rulemaking. I
15 don't equate that with the core case. I think it's
16 very, very different.
17 And I have been on other committees where
18 we have known that a rulemaking would be coming down
19 the pike and nevertheless the members of that
20 committee were able to discuss what their views were.
21 And then when the rulemaking came about, they were
22 free to take a different view, if they wanted.
23 It's just very, very different. It's not
24 like revealing a client's confidence. Maybe you view
25 it differently. I don't know. But I don't see them
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1 as being necessarily inconsistent.
2 But I guess I would ask Paul to respond to
3 the second half which is: Okay, the Administration
4 has made this statement and maybe tactically it was
5 not very tactful. Nevertheless, does that mean that
6 we now cannot discuss it, --
7 MR. LaCAMERA: No.
8 MS. PELTZ STRAUSS: -- or should we then
9 take it further and say, understanding their
10 position, what do we want to do with it?
11 MR. LaCAMERA: No. I mean not at all.
12 And, as I said before when I spoke, first, I imagine
13 that this will become the dominant agenda item. And
14 I think some of us are prepared intellectually and
15 philosophically to deal with it on that level. But
16 at least we're out on the table, the fact that some
17 of us feel the group as a whole and those of us as
18 individuals have been somewhat compromised by the
19 events of the past month.
20 MR. SUNSTEIN: Well, let's --
21 MR. CRUMP: I think you have to realize,
22 and I'm sure it is perhaps difficult for those of you
23 who are not broadcasters, that all our professional
24 lives, we have had to deal with the FCC as our
25 governing body.
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1 And when we know from public announcement
2 that we are now looking at a five-member FCC that has
3 three votes on one side and two on the other, and the
4 three are saying, "This is what we are going to do,
5 we want to do. Yes, we're going to have a
6 rulemaking," but they've already declared where they
7 stand, and then we here are going to -- we, as
8 broadcasters, know that at some point we will be
9 individually and as a whole before them to discuss
10 how we feel about it, that there becomes a great
11 uneasiness, at least for myself and it sounds like
12 for others as well, of really laying out all of our
13 thoughts totally, because when you go into the
14 rulemaking and we discuss what might come and what
15 might go, it's almost like we're playing our hand, I
16 guess is the way I feel about it, before we get
17 there.
18 And this is what causes me, at least, to
19 feel uneasy about the discussion of it and what I
20 would personally have to say in this, because I don't
21 -- as you have pointed out, yes, we can reverse
22 ourselves if we want to. I don't like to reverse
23 myself, and I don't know many companies that like to
24 reverse themselves after you have made public
25 statements and then here you go and pop back and
176
1 forth again.
2 And this is not what we're -- maybe it's
3 because we're not accustomed to doing this sort of
4 thing before the FCC. We state our case. We live
5 with the requirements that are laid down as a result
6 of the rulemaking. But it puts us in an uneasy
7 position at this moment -- it puts me.
8 CO-CHAIR ORNSTEIN: Well, let me give you
9 the couple of options I think we have here.
10 In their statements, Bill Kennard and Susan
11 Ness, when they announced this process going forward,
12 both went out of their way to say that they wanted to
13 wait and hear the recommendations made by this
14 Committee. So we have a couple of options.
15 We can as a Committee weigh in with
16 something that -- we're representing to the Vice
17 President, but obviously they're going to read it --
18 in a way that will have some impact on those
19 proceedings; or the broadcast members of the
20 Committee, and this is I think what Robert is
21 suggesting, will basically opt out of discussion of
22 this to issue a minority report.
23 And the rest of us will then have to go
24 ahead and make recommendations, in which case we will
25 have great division. And basically you're going to
177
1 end up with a recommendation that probably is going
2 to end up being much stronger than it would be
3 otherwise, which better serves your fiduciary
4 responsibilities as broadcasters.
5 And I'm baffled at the notion that
6 basically saying I'm going to take my marbles and not
7 play this game because they've changed the rules on
8 me, and end up with a set of recommendations that
9 they say they're going to be mindful to that will be
10 basically less than your own interests. It doesn't
11 make a whole lot of sense to me.
12 MR. LaCAMERA: Norm, I thought I had said
13 just the opposite.
14 CO-CHAIR ORNSTEIN: No, but that's not what
15 Robert said.
16 MR. DECHERD: Let me weigh in. I believe
17 what I said was I really didn't want to go into the
18 specifics of this now because I wanted to give the
19 other members of the panel some perspective on how
20 feel about this turn of events. I never said, and I
21 don't believe that it is inappropriate for us to
22 discuss this question.
23 What I did say was this is how at least I
24 have reacted to these events. And it's fine for us
25 to think we're here as individuals, but I spend some
178
1 time in Washington. I know all of you do. It is
2 absolutely unrealistic to think that if Leslie
3 Moonves, as the President of CBS Television Network,
4 makes a statement at this Commission or signs a
5 document which is the report of this Commission, that
6 it will not be reported as the position of the CBS
7 Television Network or that he will not have to defend
8 that point of view at this rulemaking. I'm sorry.
9 That's just not way it works. And I think we all
10 know that.
11 So it's fine that we're here as
12 individuals, but we have to look at this in the real
13 world context. And that was the spirit in which my
14 comments were made in response to the subject that
15 had been raised. I didn't say that we shouldn't talk
16 about it.
17 MR. BENTON: I would just like to pick up
18 on Les' and on Norm's excellent points. It does
19 seem to me that if the FCC is not going to conduct
20 this rulemaking until after October 1st -- which,
21 Norm, was I think what you just said was the case --
22 and, number two, if we can talk this through on a
23 sort of a multi-partisan basis, if you will, to come
24 up with the best consensus possible, and give it
25 really some deliberation and some careful and
179
1 sensitive thought and listening and come up with a
2 position that maybe -- actually some new ideas, as
3 well -- that this could have a very positive impact
4 on the hearings that will take place after our report
5 is submitted. And that would be in everyone's best
6 interest. And it's a win-win situation for us all.
7 What's wrong with that?
8 MR. DECHERD: Charles, there's absolutely
9 nothing wrong with that. And I think that would be a
10 terrific outcome.
11 And I want to remind all of my fellow
12 members here, our company is a leader in this
13 subject, maybe the leader.
14 MR. BENTON: You bet.
15 MR. DECHERD: So I'm not afraid to talk
16 about this. But unless we are going to go in the
17 direction of general principles which guide future
18 actions of the FCC, the Congress and others, this is
19 a nonstarter.
20 And if we can all be comfortable that doing
21 just what you're describing, which is agreeing on
22 what needs to be done in general and what principles
23 should apply, that's one kind of discussion. To
24 drill down into specifics, and we need to do this,
25 this, this, this and that, is just not going to work.
180
1 MR. GLASER: Is that because of the
2 rulemaking phenomenon or --
3 MR. DECHERD: Exactly right. Because if we
4 sign up for that, it's going to be submitted -- well,
5 it will be. We've just said here, we're trying to
6 influence that proceeding.
7 If we're talking about enriching the
8 political debate in this country in preserving
9 democracy, sign me up. That's why we are a leader in
10 this respect, but --
11 CO-CHAIR ORNSTEIN: Robert, if the FCC --
12 MR. DECHERD: -- but turning -- putting us
13 in the position, as someone holds a document up in
14 front of Paul or Harold or the NAB and says, "Huh-uh.
15 No, no. This is what the industry thinks. See?" We
16 can't do that.
17 CO-CHAIR ORNSTEIN: If the FCC withdraws
18 the rulemaking and moves considerably back, does that
19 mean you then would be willing to discuss the
20 specifics and move forward with the report?
21 MR. DECHERD: Norm, if you can pull that
22 off, you -- I mean --
23 MS. PELTZ STRAUSS: I don't understand the
24 question. There is no rulemaking.
25 CO-CHAIR ORNSTEIN: No. If they withdraw
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1 from the intent to move to a rulemaking?
2 MR. DECHERD: Well, if the Chairman is
3 going to say that, for the remainder of his tenure,
4 there will be no rulemaking on the subject and stand
5 by it, that would be unprecedented in the history of
6 regulatory agencies --
7 CO-CHAIR ORNSTEIN: No. But if --
8 MR. LaCAMERA: No, just between now and the
9 time that our report is issued.
10 MS. PELTZ STRAUSS: Right.
11 CO-CHAIR ORNSTEIN: Yes, in the coming
12 year.
13 MR. DECHERD: Oh, well, that's six months,
14 a year. I mean what's the difference? The
15 rulemaking is going to occur.
16 MS. PELTZ STRAUSS: But we knew that when
17 we started. We know that we were going to --
18 MR. DECHERD: No, we did not. No, we did
19 not.
20 MS. PELTZ STRAUSS: That there would be a
21 -- but that there would be a public interest.
22 CO-CHAIR MOONVES: If we want to come to a
23 consensus of this group, people on this Committee
24 have to realize that certain people have different
25 obligations than other ones. And if you want to sit
182
1 here and worry about your own special interest group,
2 we're going to get nowhere.
3 What Robert said is absolutely correct
4 about my position, and I will stand up for it. And,
5 yes, I will take my marbles and go home and say,
6 "Regarding free time for candidates, I'm out of the
7 debate. I'm out of the discussion." That's not what
8 I want to do. That's not what Robert wants to do.
9 That's not what Paul wants to do.
10 But we have to stop just thinking about
11 your little piece of the pie or what matters if we're
12 going to try to get a consensus here. That's not
13 going to work. It's just not going to work. We all
14 have to be a little bit more open to what other
15 people's points of view are. And I know I represent
16 a big corporation. I'm sorry for that. I know
17 certain people hate me for that. That's the way my
18 life is.
19 But I am here not only as Co-Chairman of
20 the Commission, but I am here as the President of the
21 CBS. And what I say will be represented out to the
22 broadcast world, and that's the facts of life. I
23 know it would be nice to have a little company of
24 three people and be able to say exactly what I want.
25 I'm not in that position.
183
1 So if we want to get anywhere, I think we
2 have to start finding a consensus.
3 CO-CHAIR ORNSTEIN: Jim.
4 MR. GOODMON: Yes. I thought we were
5 making progress here a minute ago. Now let's back up
6 a second.
7 (Laughter.)
8 MR. GOODMON: We've got these different
9 models, sort of overall models of how we should do
10 this, my notion of the next step was going to be that
11 there are areas that we need to discuss in terms of
12 the public trustee notion and that we ought to have
13 committees and move ahead and do that. I never had
14 the notion that what this Committee does means that I
15 agree with this. I don't -- I'm trying to -- I'm
16 working on this a little bit to see. I mean I'm the
17 -- President Clinton in his first press conference,
18 his first term -- first press conference, first term,
19 first thing: Free time. I said, "Oh, no. Here we
20 go."
21 So I mean I've known he's in on it. I mean
22 I care how the President feels. I care how the Vice
23 President feels. I care how the NAB feels. I care
24 how my fellow broadcasters feel. But I don't -- I
25 mean I still -- I want to talk about my views of what
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1 the public interest obligations of digital
2 broadcasters ought to be. And I think everybody at
3 this table ought to do that. And didn't we write a
4 report? And it's over. I mean I haven't -- I don't
5 know what the problem is.
6 And I'm being supportive now, not -- not
7 supportive. I'm saying let's go. Whatever the areas
8 are we need to talk about, let's talk about them and
9 come up with them and vote on them and issue a report
10 and off we go. And I'm -- the notion of who -- I
11 don't know who I'm -- you know, I'm a citizen. I
12 don't think a broadcaster is a special class or
13 unusual class of anything. I mean I'm just a
14 citizen. We're all here as citizens trying to talk
15 through what should the public interest obligation of
16 broadcasters be. And let's all express our opinions
17 and let's write a report and let's send it and then
18 go home. And I want to talk about it. Don't quit
19 before I get to tell you what I think that should be.
20 CO-CHAIR ORNSTEIN: Well, I don't quite
21 know where we take this. I mean it seems to me --
22 yes, Cass.
23 MR. SUNSTEIN: One thing I have been struck
24 by is the extent of agreement on the aspirations of
25 our system of mass media. I think we have pretty
185
1 much a hundred percent enthusiasm for the educational
2 and democratic aspirations of the media. That was
3 Les' speech. Rob just talked about that about two
4 minutes ago. So if we have agreement on that and can
5 actually say that, that's something. That's the
6 first point.
7 The second point. There are two other
8 options in addition to this Aspen Institute report.
9 One is complete deregulation and another voluntary
10 self-regulation, which overlaps with complete
11 deregulation, but a little bit different tone. I
12 think those should very much be among the options
13 that we talk about, even if we don't -- even if some
14 people don't like this. Those are two options. And
15 reasonable people believe in them.
16 I'd guess I'd say that I have sensed, from
17 some of the tenor of the discussion, that the winners
18 so far are voluntary self-regulation and some version
19 of this option 4, which is much more sophisticated
20 than the FCC. Both the voluntary self-regulation and
21 the pay-or-play idea, are much more sophisticated and
22 creative than anything the FCC has done or anything,
23 pardon me, that the President has suggested in the
24 State of the Union Address. So I think we could make
25 a big contribution by focusing on something a little
186
1 more imaginative than what the broadcasting system
2 has -- the system of regulation has been about.
3 So just a suggestion. Those are the two
4 things that seem to be able to attract support.
5 They're pretty good ideas. They're pretty new ideas,
6 in their way. And maybe we could make some progress
7 on them.
8 MR. MASUR: Just to that, something came up
9 for me on a pay-or-play, that because I'm the missing
10 person on this Commission I apologize to everybody
11 for my lack of attendance, and maybe you have
12 discussed this more fully or maybe you have gotten
13 testimony on this, that the thing about the
14 pay-or-play that I don't quite understand or that
15 raises some concerns for me is, let's say you had a
16 market with three television stations in it. And two
17 of them wanted to opt out of providing any children's
18 broadcasting and the third one was willing to accept
19 the children's broadcasting.
20 Is there any kind of -- I mean, first of
21 all, what if all three wanted to opt out of
22 children's broadcasting, then you would have a market
23 with none, which seems like a potential problem; or
24 if two opted out and one decided to do it, don't you
25 have a real narrowing of possibilities in terms of
187
1 you have one set of decisionmakers choosing the sum
2 total of the children's programming that would be
3 available through broadcast to that market? And
4 isn't that a potential problem?
5 I'm just raising this question and to see
6 if anybody has addressed that. I know it's a very
7 narrow element of this, but maybe it's a way to get a
8 discussion started.
9 CO-CHAIR ORNSTEIN: Well, presumably, the
10 way a good pay-or-play model would work is that as
11 people pay you're going to have resources available.
12 And those resources can be used to smooth out
13 inconsistencies and difficulties either by having
14 more resources available for public broadcasting to
15 provide good quality programming or resources in a
16 local area for production of programming that might
17 then be brought back to purchase time on stations or
18 to supplement time on other stations.
19 So you'd be able in some ways to have
20 flexibility to tailor to the needs of the local
21 community, some of which might have much more
22 interest in children's programming and others of
23 which might have less interest because of
24 demographics or other reasons.
25 The whole notion here is to try and build
188
1 in a flexibility but do it in a way that provides
2 something to broadcasters as well as something to the
3 community standards and interests.
4 MR. GOODMON: I want to get back to what we
5 were talking about just a second ago. Let's say we
6 get down to the political broadcasting rules and the
7 majority of this group feels something, that
8 candidates should be given something. Now those that
9 disagree, what is the forum for stating another
10 position? Isn't that what we're talking about now?
11 I'm trying to get back to what we were really talking
12 about. What --
13 CO-CHAIR ORNSTEIN: That's a part of it.
14 I --
15 MR. GOODMON: What is the forum for stating
16 another position about that issue that's available to
17 Committee members?
18 CO-CHAIR ORNSTEIN: As you mention that,
19 let me just quote a paragraph from a letter that
20 Robert Decherd sent to Les and to me last week.
21 "I'm assuming the final report will include
22 majority and minority reports. The
23 President's" --
24 It's okay if I quote from this letter,
25 Robert?
189
1 MR. DECHERD: Sure.
2 CO-CHAIR ORNSTEIN: "The President's State
3 of the Union reference to free broadcast air
4 time for federal candidates was followed up the
5 very next day by the FCC's rulemaking
6 initiative. It's obvious that the
7 Administration and its regulatory appointees are
8 in favor of a federal mandate for free air time.
9
10 At the same time the Committee is devoting a
11 substantial amount of time to discussing
12 mandated free air time. Because Belo can't see
13 any circumstances where we would endorse a
14 recommendation for federally mandated free
15 television air time for political advertising,
16 I'm interested in how we will have the
17 opportunity to articulate our position."
18 So that's kind of setting out I think in
19 starker terms what you're suggesting. And I guess
20 there would be two answers to that.
21 The first answer would be that in any area
22 where there is a significant disagreement, of course
23 there will be an opportunity with space in a report
24 for a minority view. But I would also say that if
25 one wants to come to the conclusion, before we've
190
1 started these deliberations, that we will recommend
2 mandated free air time, I think that is very much a
3 misreading of the entire deliberations that we've had
4 or the intention of the vast bulk of us; that what
5 we've tried to suggest throughout is there are lots
6 of way to try and accommodate all of our interests as
7 part of a broader rubric.
8 So I would hope none of us would start with
9 a belief that we have a preconceived conclusion and
10 therefore we're not going to be a part of it, because
11 the only way to get that is basically by starting
12 with that judgment, and then you will probably ensure
13 that we will get to that point.
14 Yes.
15 DR. DUHAMEL: A question. Now, see, the
16 campaign finance reform has been taken off the table,
17 but do we necessarily have to take it off the table?
18 Can we discuss anything that we want in the context
19 of saying that's a part of a campaign finance reform
20 and not just coming out and saying, "Well, that's off
21 the table so we're in this little, narrow area"?
22 CO-CHAIR ORNSTEIN: Campaign finance reform
23 is not off the table. They will be discussing it and
24 voting on it in the House of Representatives in two
25 weeks. So it's very much on the table. But whether
191
1 it's on the table in Congress, it has little to do
2 with our deliberations, just as whatever is on the
3 agenda of the FCC should have little to do with our
4 deliberations.
5 DR. DUHAMEL: So we could say, though, that
6 any recommendation we have might be tied to that?
7 CO-CHAIR ORNSTEIN: Of course. Absolutely.
8 Yes.
9 MR. GLASER: I think in reading Robert's
10 letter you raised what I think is a very important
11 question that could maybe get us to be in the most
12 sort of constructive path that I can see, which is
13 given that there are, a number of topics, divergent
14 views when you drill down from sort of the abstract
15 principle to the detailed implementation, I think
16 just have a conversation about whether or not and
17 under what circumstances it's possible to have
18 partial majority/minority splits and a full Committee
19 might be a way to go. Because it might turn it out
20 that at a set of general principles, which is what
21 Les was talking about, we can reach very strong,
22 meaningful common ground.
23 And then when you get into specific
24 characteristics and implementations for one or a
25 number of areas, and this whole issue of free air
192
1 time I'm sure has been at least somewhat polarized by
2 what the FCC and the President are engaged in, we
3 might say, "Hey, we have a choice." We can either
4 have broad agreements that we all share or we can in
5 a specific area, if a majority feels that a specific
6 detailed proposal is meaningful and a minority can't
7 be comfortable with that, either for substantive
8 reasons or procedural reasons, that we just say, hey,
9 that's okay. And that does not tear the whole fabric
10 apart to say in specific measured areas we will have
11 minority and majority conclusions.
12 And so perhaps I'm being a little bit naive
13 to think that that sort of, you know, a part-of-the-
14 way-with-LBJ," if you will, view, would not be
15 somewhat painful at times, but I think that might get
16 us to where we can have a process where we get
17 through the broad set of recommendations that we
18 hopefully can reach common ground on and then have
19 some more specific recommendations that have
20 meaningful majorities but also meaningful minorities.
21 CO-CHAIR ORNSTEIN: Well, I think there's
22 ample precedent in reports of this sort for a core
23 which is accepted by everybody and then areas where
24 there are some disagreement. We might even want to
25 do a variation of that which is to try and reach an
193
1 agreement even on a lot of details and then have a
2 minority report at the end which says,
3 "Notwithstanding anything else in this report, we
4 want to make it very clear that we are opposed to
5 mandated free air time."
6 Perhaps that would give broadcasters the
7 flexibility to have a broader discussion and still be
8 on record to fulfill your fiduciary responsibilities
9 so that you're right there saying no mandated free
10 air time, and then maybe we can discuss some of the
11 other options that fall short of mandated free air
12 time. Maybe that's a possibility.
13 Yes, Frank.
14 MR. CRUZ: One of the reasons I came on
15 this Committee was that I was really interested in
16 seeing how much the public impact might have in the
17 comments they provide us. And we've heard some good
18 things over the last four months.
19 And the other thing that seems to be sort
20 of forgotten in the considerations here, when we say
21 free political air time, I think we sort of forget
22 the economic impact of what we're talking about on
23 some of the public interest obligations, no matter
24 whether it's free time, whether it's obligated
25 children's programming, or whether it's dedicated
194
1 channels or any other comments that we've heard.
2 And it seems to me that some of those
3 economic issues are going to be part of our overall
4 consideration as to what we recommend or don't
5 recommend, depending on who's for it and who's
6 against it, whether the industry is or the industry
7 isn't, or the public is or the public isn't.
8 I guess I'm sort of in a quandary here now
9 as to -- and one of the fears I had, too, early on
10 was that the political agenda, the outside influences
11 of the political agenda like free time would sort of
12 override some of our ongoing discussions like the
13 last hour has on free political time.
14 Somewhere along in the process as we
15 deliberate what we should consider, particularly from
16 the public comments as we had, is how much weight do
17 we give to those outside comments we've heard that
18 are sort of nonpolitical in nature, I guess, or don't
19 have as big an impact on the industry as free
20 political time or children's programming, which are
21 the two predominant ones that sort of started this
22 Committee out.
23 Also I guess, again, what's the economic
24 impact of those things and how do we propose those
25 things? But I think there's some specific ideas that
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1 we heard from the public over the four months that
2 somehow I'd like to find out if we -- I don't know if
3 Karen and Anne can put together a sort of a report of
4 what were the primary recommendations that came out
5 of that that are food for thought for us to use. I
6 know I've read them all. But that would be one thing
7 I would recommend that we try to get a handle on, at
8 least to add to the discussion of what
9 recommendations, what public interest obligations the
10 public seems to want.
11 I don't recall any of them saying free
12 political time is high on their agenda, and it's
13 coming from other sources. But that's what I would
14 like to see as we move forward here. Then maybe some
15 of the subcommittees can deal with those issues a
16 little bit more.
17 MR. LaCAMERA: Just to follow up because it
18 was a thought I had, and that is if there was a theme
19 that seemed to emerge over these many months, it was
20 the concept of access.
21 And I speak as a single broadcaster. I
22 don't have group responsibility. I'm not an owner.
23 I run one single television station. But I continue
24 to believe that it's a fair expectation and measure
25 of a television station's performance, the degree of
196
1 access it provides, whether that's access to the
2 public, community interests, special needs,
3 individuals, independent suppliers, producers or to
4 political voices. I mean I don't think that's a
5 unfair expectation and measure one can look. And
6 there I speak in general broad terms.
7 Let me take this opportunity to also
8 address a very specific issue that came up, and
9 that's the so-called pay-or-play. Of all the
10 concepts I've heard in my 26 years as a broadcaster,
11 it's perhaps the most repugnant.
12 I can't imagine anything shredding what's
13 left of the idealism and responsibility of local
14 broadcasting than that concept. I also can't think
15 of a precedent short of rich Northerners paying poor
16 Northerners to fight for them in the Civil War. I
17 would hope that this would not be a direction that we
18 would pursue or, if it is one, I intend to fight to
19 the end to ensure that it's not part of at least the
20 formal recommendations of this group.
21 MR. BENTON: Well, I'd try to shift the
22 discussion here because it's quarter of 3:00 and time
23 is proceeding. And we've got our next meeting in
24 mid-April. And by that time we've really got to get
25 down to business in figuring out how we're going to
197
1 divide up the labor to get this report done on time.
2 It seems to me I hadn't seen this Aspen
3 paper before now. We moved our office, and I think
4 the packet got to an old address. But I think the
5 spectrum of this chart at the back is really
6 wonderful. The goals, the four goals. There are
7 four, for those who don't have this chart, there are
8 four types or four models which I think it would be
9 really interesting to discuss in depth today and the
10 four goals, which I think are outstanding and
11 outstanding of a breakdown of the content, localism
12 and community, informed electorate, diversity of
13 viewpoints and children's educational programming.
14 This pretty much covers everything we've been talking
15 about from a goals' perspective.
16 And so I like the content, the breakdown of
17 the content here very much. I have not given much
18 thought at all to these four different models:
19 Public trusteeship, the spectrum, the pay access or
20 pay-or-play, but I'd love to hear the background or
21 the thinking that went into this and how these models
22 were developed, how they relate one to the other.
23 And perhaps if we can get a full understanding of
24 that today, then between now and April we could be
25 thinking about how we divide up the labor, or maybe
198
1 you have some other plans that you wanted to discuss
2 and share with us now.
3 But in the end of the day, for us to get
4 productive we've got to get into smaller groups and
5 what's the structure of how we divide ourselves up.
6 That's the key question, I think. And if we don't do
7 that, then we're just going to continue this general
8 palaver and not get down to work. So, my suggestion.
9 CO-CHAIR ORNSTEIN: Well, I think some of
10 the areas we clearly have to air because they reflect
11 intensely-felt viewpoints, and we have to get them
12 out there.
13 And we'll, I think, within a short while
14 begin to discuss the process that will follow. I
15 think we are at least agreed that we'll try and work
16 towards a consensus of the core, at least of areas
17 where we can agree. And it may be from Paul's
18 statement that that consensus is not going to include
19 everybody.
20 I was interested in what you said about
21 that model being repugnant, because in some ways the
22 discussion that we've had in the past of children's
23 television, that Les lead, was a pay-or-play model.
24 And many broadcasters --
25 MR. LaCAMERA: I'm talking from a local
199
1 perspective.
2 CO-CHAIR ORNSTEIN: Yes. Many broadcasters
3 have --
4 MR. LaCAMERA: I'm talking from the
5 perspective of one local television station.
6 CO-CHAIR ORNSTEIN: Okay.
7 Many broadcasters have thought that
8 building that flexibility in where some are just not
9 particularly well suited to doing some areas and
10 letting others do it and then finding ways to smooth
11 it out in the community was anything but repugnant.
12 So I think there's at least some division in the
13 broadcast community about that.
14 But we've got those --
15 CO-CHAIR MOONVES: Although Paul brings up
16 a good point. But, Gigi, the point you made at lunch
17 I think was the significant one.
18 We have to talk about local stations.
19 That's what this is about. It's about local
20 stations, about individual markets.
21 MR. GOODMON: Right.
22 CO-CHAIR MOONVES: And I think we have to
23 from here on in go from that point of view, you know,
24 and talk about Paul's station in Boston and how that
25 affects him directly, and I think --
200
1 CO-CHAIR ORNSTEIN: Sure.
2 CO-CHAIR MOONVES: -- we should attack it
3 from that point.
4 CO-CHAIR ORNSTEIN: Clearly we have these
5 models. And I think Cass suggested something that's
6 very significant. Indeed, there are other models and
7 indeed we have had very significant discussion. And
8 Paul raised it today with the issue of broadcast
9 time, about where we can go in a voluntary way.
10 And we have had discussion in the past
11 about recreating a set of standards and, in some
12 ways, putting the onus back on the National
13 Association of Broadcasters in a much more direct and
14 heavy way as a part of this process. I think we need
15 to have some very serious discussion of that, not as
16 the only way we go, but we may want to adopt more
17 than one model here.
18 And what we may want to do is -- and I hope
19 what we would do this afternoon is to see if there
20 are other models out there, other general approaches
21 that people thought would be worth considering and
22 worth taking, and seeing where we could reach that
23 consensus.
24 I think we're not yet ready to -- until we
25 have a sense of where we have a general agreement and
201
1 where we're going to have to specific disagreements,
2 we're not yet ready to break up into subcommittees.
3 Maybe that will evolve a little bit more. But by the
4 end of the day we ought to at least be talking about
5 what we want to do in preparation for the next
6 meeting and start to work towards where we can find a
7 consensus.
8 Yes.
9 MS. SOHN: I just wanted to raise an issue
10 with regards to these pay models, the 3 and 4 models.
11 And the one thing that makes me a little bit
12 uncomfortable, and I think this has just generally
13 been a fundamental misunderstanding about public
14 broadcasting -- this is with all due respect to Frank
15 -- I would be uncomfortable with the pay model that
16 just gives either PBS or the local broadcast stations
17 the money, if we could even do that. I mean there's
18 a definite jurisdictional question.
19 And I think one of the things we have to
20 keep in mind in our deliberations is: Can the FCC do
21 some of the things we want them to do. That's not to
22 say we shouldn't make recommendations to Congress.
23 But in my mind if all we do is make recommendations
24 to Congress to change laws, then we haven't done
25 anything, because the chance that that's going to
202
1 happen are probably nil.
2 But I just want to express my discomfort
3 with the notion of just giving public broadcasting --
4 and I think there's some people on this Committee who
5 are uncomfortable with the way public broadcasting --
6 just giving the money to public broadcasting to do
7 with what they want.
8 There was a discussion, Bob brought up, I
9 thought, a good point in the last meeting about
10 paying the public broadcasters to maintain some sort
11 of civic space. That's something I would have a
12 little less discomfort with, because you're just not
13 throwing the money at them and saying do what you're
14 doing already.
15 And while public broadcasting is a great,
16 you know, great American gift and it does a lot of
17 good things, I think there's a lot of bad things,
18 too, and I wouldn't be comfortable. So I think we
19 need to think broader, to the extent that we like the
20 pay ideas, need to think more broadly than just
21 giving the money to PBS, which is a network and not
22 local stations, do not own local stations, or to the
23 local stations themselves.
24 CO-CHAIR ORNSTEIN: I think that we would
25 have a general agreement there.
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1 Let me suggest that part of the reason for
2 considering these kinds of models -- and that
3 includes, by the way, what -- and, remember, our
4 recommendations go to the Vice President. They will
5 presumably reach out elsewhere, but we're not making
6 specific recommendations to anybody else.
7 We're trying to find ways to see if we can,
8 without imposing more on broadcasters than will be
9 acceptable more broadly, to satisfy some of these
10 other larger public interests. We've talked about
11 making a recommendation that the revenues from the
12 ancillary and secondary uses of the spectrum, fees
13 that will have to be paid anyhow, be channeled back
14 into the public interest.
15 If we can find a way of building a model
16 where broadcasters get more flexibility in terms of
17 what specific obligations they do in return for some
18 fee, and can add those resources in, they don't have
19 to simply go to public broadcasting. They can go for
20 in part for a broadcast bank. They can go for local
21 interests to make sure those local interests are
22 served. And if money gets channeled back to
23 broadcast for free time that way, that's not imposing
24 anything on broadcasters, as long as you've given
25 them flexibility in return for some of these other
204
1 purposes.
2 So my hope would be that we can find some
3 way of coming up with resources that would, in fact,
4 offer something in the way of flexibility to
5 broadcasters in return, and then turn around and make
6 recommendations about how those resources can be used
7 to serve a lot of these larger interests that
8 wouldn't require swallowing bitter pills.
9 MR. LaCAMERA: Look, Norm, I mean if you're
10 talking about the ancillary or the additional
11 services, yes, I'm in agreement on that. I have no
12 difficulty.
13 If you continue to talk about local
14 broadcasters being able to buy their way out of their
15 obligations, I remain very much opposed to that
16 concept philosophically.
17 MR. GOODMON: Back to the self-regulation
18 model.
19 At the first meeting I gave to everybody a
20 copy of the NAB code that we used to have. And I'm
21 wondering if could you put together a group, or how
22 would we come up with a recommendation that we need
23 to allow broadcasters to establish a code? I mean
24 how as a Committee would we do that? How did
25 somebody bring it up and say, "I think we ought to
205
1 have the code?" Coach.
2 CO-CHAIR ORNSTEIN: I think it's clearly an
3 idea that many of us share as one that ought to be
4 pursued, and maybe even to the point of taking that
5 code and revising it and coming up with a recommended
6 new code and putting together a subcommittee, as we
7 move along, to begin that process that represents all
8 the different interests here.
9 MR. GOODMON: So you'll appoint a group
10 then to work on that?
11 DR. DUHAMEL: Well, except if you're going
12 to have the NAB code, wouldn't you expect the NAB to
13 develop it?
14 MR. GOODMON: Well, I brought my code.
15 DR. DUHAMEL: It's just that we develop a
16 code and hand it to them.
17 MR. GOODMON: Okay.
18 CO-CHAIR ORNSTEIN: That doesn't mean that
19 they're going to be forced to take whatever we give
20 them as recommendation.
21 MR. GOODMON: A code, a mechanism under
22 which broadcasters can work together.
23 DR. DUHAMEL: Well, see, there were some
24 legal questions on the NAB code. That's why it was
25 disbanded.
206
1 CO-CHAIR ORNSTEIN: We have nothing that
2 prevents us from making a recommendation that --
3 DR. DUHAMEL: There be a new code.
4 CO-CHAIR ORNSTEIN: Yes.
5 -- and making a suggestion that the legal
6 issues are not serious ones. I think most of us
7 would agree that they were overstated.
8 DR. DUHAMEL: I don't think they were
9 overstated.
10 MR. GOODMON: It was thrown out because
11 they said it was an antitrust, was the problem.
12 CO-CHAIR ORNSTEIN: Right.
13 MR. GOODMON: Broadcasters wanted it. And
14 to this day a number of broadcasters still adhere to
15 it, --
16 DR. DUHAMEL: Yes.
17 MR. GOODMON: -- but simply on their own
18 personal basis.
19 CO-CHAIR ORNSTEIN: We might very well be
20 able to make a case, and I suspect we could, that
21 this is not really an antitrust issue any more. And
22 if that were a recommendation, that clearly
23 broadcasters wanted, then it might be something that
24 lots of members of this Committee would be willing to
25 go along with, seeing flexibility here in many ways,
207
1 perhaps.
2 MR. GOODMON: Two Senators have proposed
3 legislation to give us whatever exemption we need in
4 order to have that. I just want to see if we can get
5 to work on that.
6 DR. DUHAMEL: Would we make the code or
7 would the NAB draw up the code?
8 MR. GOODMON: We would just suggest that
9 there's a mechanism for --
10 DR. DUHAMEL: The vehicle --
11 MR. GOODMON: That there can be a code.
12 DR. DUHAMEL: I understood Norm to say or
13 you were saying, somebody was, that we should have a
14 subcommittee and write the code. I thought, "My
15 god," I mean here we're asking for a voluntary code,
16 and then we're here to say, "Here it is. Do you guys
17 want it?" I mean I don't think that's what we want
18 to do. I mean you can say the mechanism, that we can
19 talk about it, --
20 CO-CHAIR ORNSTEIN: If all you want to do
21 is say, "Let's have a code. We don't care what's in
22 the code. You just do a code," I don't think we'd
23 get very far.
24 DR. DUHAMEL: We can talk about some
25 principles, --
208
1 CO-CHAIR ORNSTEIN: Yes.
2 DR. DUHAMEL: -- but I mean not write the
3 code.
4 CO-CHAIR ORNSTEIN: I'm talking about --
5 well, what Jim gave us was the code that existed
6 before.
7 DR. DUHAMEL: Right.
8 CO-CHAIR ORNSTEIN: To take that code and
9 to sit and try and figure out how it might be applied
10 to the digital age is something that seems to me
11 perfectly appropriate for us to do and a reasonable
12 thing to do. And if we can make some suggestions
13 that would be considered by the NAB, what's wrong
14 with that?
15 And it would take us further along the way
16 toward resolving some of these knotty issues, if we
17 can do it in a fashion that suggests not that they be
18 mandated, but rather strongly recommend that the NAB
19 do this through a voluntary code.
20 DR. DUHAMEL: If they --
21 CO-CHAIR ORNSTEIN: If you have a problem
22 with that, Bill, then we're not going to get anywhere
23 here.
24 DR. DUHAMEL: Okay. But they're free to
25 modify it if it's a voluntary code?
209
1 CO-CHAIR ORNSTEIN: Well, how can we
2 possibly mandate what the NAB does?
3 DR. DUHAMEL: Well, it sounds to me like
4 we're writing it and handing it to them.
5 MR. GOODMON: That's right, but then they
6 don't have to accept it. We're just making a
7 suggestion.
8 CO-CHAIR ORNSTEIN: Jose.
9 MR. RUIZ: Certainly part of the task here
10 is to come up with something else that makes economic
11 sense. And Les, at the beginning of the meeting,
12 when he talked about children's programming, talked
13 about something that was losing million dollars of
14 dollars. Is that from the network?
15 CO-CHAIR MOONVES: Yes.
16 MR. RUIZ: How does that trickle down to
17 the locals?
18 CO-CHAIR MOONVES: It doesn't really except
19 they're -- you know, once again, they are not going
20 to be making any money during that day for it and
21 they're going to be losing money if the ratings are
22 as low as they are.
23 When you get a .5 rating nationally, I mean
24 at a local level, it's going to be pretty disastrous
25 as well, so...
210
1 MR. CRUMP: And it replaces the time that
2 you could have used for other purposes to generate
3 income.
4 CO-CHAIR MOONVES: Right.
5 CO-CHAIR ORNSTEIN: Those local stations
6 would love to be out of it, too.
7 CO-CHAIR MOONVES: And it's there purely to
8 accede to the FCC's wishes.
9 MR. RUIZ: As we go through this process
10 and we get into children's programming, can we depend
11 on you and others to chime in on what is at real risk
12 there economically?
13 CO-CHAIR MOONVES: Where it's appropriate,
14 certainly. Where I feel it's confidential, obviously
15 not. But I have no problem sharing with you a model
16 of how last year CBS got killed in children's
17 programming because of the three hours of FCC
18 regulation.
19 I'm glad Peggy's not here because she'll
20 tell me how to reprogram it and do better, but
21 certainly those things that do affect -- once again,
22 I deal on the network level. And it's hard to know.
23 I think Paul and these other gentlemen can
24 help more on a local level how the failure of a type
25 of programming or the success of a type of
211
1 programming would affect their local stations a lot
2 better than I could.
3 MR. RUIZ: And when you carry a
4 presidential debate in prime time, say, or six
5 o'clock on the West Coast, --
6 CO-CHAIR MOONVES: Right.
7 MR. RUIZ: -- you also lose money on that?
8 CO-CHAIR MOONVES: Of course. It's an hour
9 or a half-hour where we could be selling advertising
10 time.
11 MR. RUIZ: Because I think for us to make
12 decisions here that will also be palatable for the
13 commercial broadcaster, we have to be knowledgeable
14 of how it's effective.
15 CO-CHAIR MOONVES: Right.
16 MR. RUIZ: And I think sometimes we're
17 working in a real tremendous vacuum.
18 CO-CHAIR MOONVES: Right.
19 In the last presidential debate -- let me
20 give you a slight example of what happened -- there
21 was five minutes given to each one of the
22 presidential candidates at the end of "Dan Rather's
23 Evening News." "Dan Rather's Evening News," the
24 ratings are fortunately a little better now, coming
25 in second. But it literally dropped off 80 percent.
212
1 I mean we did a whole thing announcing at the end of
2 that. So when those numbers come down, our
3 advertising rates come down for that half-hour. We
4 will lose money on that five minutes of time.
5 On a presidential debate, on a State of the
6 Union, you know, it is money that is lost. Once
7 again, don't anybody jump down my throat. We're
8 happy to do it. It's important that we do it. But
9 it would be better to run "Chicago Hope" than the
10 State of the Union Address.
11 MR. RUIZ: But you also do it because it
12 gives credibility to your news department and --
13 CO-CHAIR MOONVES: Absolutely. No. And it
14 is public service. And, believe it or not, that is
15 something that significant to us.
16 MR. LaCAMERA: It's the right thing to do.
17 CO-CHAIR MOONVES: Yes.
18 CO-CHAIR ORNSTEIN: We will be having at
19 our next meeting at least a brief presentation that
20 the National Association of Broadcasters will give us
21 based on survey they have been doing of the local
22 stations in terms of what they have done for the
23 public interest. And I assume they will include some
24 costs associated with them. So --
25 MR. RUIZ: Because the cost part to me is
213
1 very important, without being very specific to what
2 network or something like that, but just what is at
3 play here, how many million, how does it affect?
4 CO-CHAIR MOONVES: Well, I thought Tracy
5 had some very interesting things to say this morning,
6 where he said, "All right, these are ways that
7 broadcasters can get some of it back." You know,
8 some tax consequences perhaps. Some other ways that
9 by giving up time, the economic hit is not as great.
10 That's what a lot of broadcasters deal with. They
11 want to do the right thing, but not at the point of
12 losing their business, like any other businessman.
13 MR. CRUMP: Let's also not forget that all
14 markets are not the same size. And the smaller the
15 market, the larger the impact that these small
16 amounts of time seemingly makes on them. And if you
17 stop to consider the fact we have, what, 245 or '50
18 various television markets now.
19 And once you get outside of probably the
20 top 100, every dime that you lose really means
21 something to you. And it doesn't mean that they are
22 any less willing to do so. It's just that the
23 smaller the market, the larger the impact. And
24 that's something we need to keep in the front of our
25 minds as well when we're talking about all these
214
1 things we have to do, creating programming, et
2 cetera, there's some basic costs involved in the
3 creation of anything that are going to be there
4 regardless of market size. And it has great impact
5 over a huge number of various stations and markets.
6 MR. RUIZ: But we do have good
7 representation here from the medium in small markets.
8 MR. CRUMP: Yes.
9 MR. DECHERD: Norm?
10 CO-CHAIR ORNSTEIN: Yes.
11 MR. DECHERD: I'm not sure this is the time
12 to do this, but I think it would be very useful if
13 soon in this process we literally went one by one
14 through our membership and asked each of us to say
15 what his or her expectation is for the outcome,
16 because I think what's running through all of this is
17 not only the fact that we're in different places in
18 terms of our knowledge and comprehension of issues
19 from both sides of these questions. This isn't, you
20 know, that Jose doesn't know the network television
21 business any more than it is that I don't know a lot
22 about the public interest organizations represented
23 here and not represented here.
24 I mean there's a huge learning curve that
25 we've all been trying to climb. But the thread
215
1 that's running through all of this is, I think,
2 probably some fairly significant differences in
3 political ideology and views towards the role of
4 government in this business.
5 And if, for example, we all agreed that
6 what we wanted to do was express these general
7 principles we've talked about and leave the detail to
8 the government, that's going to lead to one kind of
9 process.
10 On the other hand, if a majority of us
11 believe that we should have very specific
12 recommendations on each and every one of the
13 questions that have been brought before this panel,
14 then I think those ideological differences are going
15 to be a very serious issue for all of us. I mean
16 Cass in his list of possibilities mentioned
17 deregulation. Well, the fact is there are some
18 people who could argue very persuasively that
19 deregulating the whole industry is a perfectly valid
20 concept. That may or may not be helpful, though, to
21 us reaching a consensus about what the real public
22 interest obligations of broadcasters are today and
23 should be as digital becomes reality.
24 Without asking people to commit, I think
25 you and Leslie should consider some way to draw us
216
1 out on having heard all this, having come this far.
2 Do you want to see a five-page report or a fifty-page
3 report, and what's in those two documents, depending
4 on your personal point of view? Because there is an
5 individualistic aspect to this that's perfectly
6 valid.
7 CO-CHAIR ORNSTEIN: I had hoped, in fact,
8 that we would go around the table today and get the
9 people's sense. And that makes perfect sense, and
10 let's do it. And let's start here.
11 MR. RUIZ: What my expectations are?
12 CO-CHAIR ORNSTEIN: What are your
13 expectations? What would you like to see emerge as
14 the final product here?
15 MR. RUIZ: Well, let me first say what my
16 concerns are in broadcasting. And certainly I'm
17 representing a minority constituency in the broadcast
18 area, but yet I don't see them as a minority in the
19 population. They're 10 percent.
20 I think it's questions of service and
21 access. Given the changes in technologies, can
22 minority communities be better served, have more
23 access to an extremely powerful medium?
24 And I did start in commercial broadcasting
25 with a gentleman by the name of Alton Rule and later
217
1 on with Bob Howard at KNBC. But it was a different
2 part of commercial broadcasting that I was in, which
3 was public service. And I've always been on the
4 programming side. I never sold commercials or
5 advertising. So then later on I went to the
6 production side.
7 But I don't think minorities in this
8 country are receiving the quality of programming that
9 they should be. The fact that on Les' network one of
10 my favorite programs is "Touched by an Angel," but
11 all the kids want to know why there's never any brown
12 angels or why they never visit brown families. And
13 that's a concern because part of the social problems
14 I think in the Latino community is their own self-
15 esteem. And I think they get a low self-esteem from
16 what they see on television. And that contributes to
17 our drop-out rates, our teenage pregnancy rates, our
18 prison rates, and things like that. If they see
19 themselves more as part of the American experience, I
20 think they will rise to the occasion.
21 CO-CHAIR MOONVES: Jose, one slight
22 clarification. This year we added an 18-year-old
23 Latino angel --
24 MR. RUIZ: See, great.
25 CO-CHAIR MOONVES: -- who has recurred and
218
1 was in six or eight episodes.
2 MR. RUIZ: There is hope.
3 CO-CHAIR ORNSTEIN: Paul.
4 MR. LaCAMERA: I apologize if I become
5 redundant here, but again I have been struck over
6 this exercise by that common re-emerging theme of
7 access. And I still believe that that holds great
8 worth in a measure of any television station. And I
9 think we should spend some time looking at that.
10 And, again, that access ranges from public access to
11 political voices to community interests, minority
12 interests, special needs and whatever.
13 When I say "political voices," that doesn't
14 necessarily mean free political time, but it could
15 mean the model of the Belo stations, as an example.
16 The secondary issue, and that is with this
17 transition to digital, we're going to be delivering a
18 primary service. If there are secondary or ancillary
19 services that bring with them additional revenue
20 streams or fees or whatever, I have no difficulty at
21 all seeing a sharing of that. And if that's the
22 recipient -- or the beneficiary to that is public
23 broadcasting, all the better.
24 And then, as I've said already twice, the
25 third concept of that pay-or-play is something that I
219
1 have little if no interest in.
2 CO-CHAIR ORNSTEIN: And just to clarify, in
3 your desire to get access addressed, where do you
4 want to end up, with a leave it all voluntary or have
5 a stronger set of a guidelines? Do you have any
6 sense of a model that you would find acceptable?
7 MR. LaCAMERA: I don't, but I imagine as
8 the discussion progresses over the coming meetings,
9 that it will become more formalized in my thinking.
10 I mean I don't want to go back, as an example, to
11 something that's been raised to what was that
12 sometimes artificial exercise of ascertainment, not
13 that we didn't learn something from that process, but
14 you know you better be learning something all along.
15 It's the end result. It's what you're delivering at
16 the end which I think is much more important, and
17 that it often does translate into access.
18 And, as I said, that expectation, whether
19 it's from the Federal Communications Commission or
20 whatever, or that measure is something that I think I
21 could at some point arrive at with a degree of
22 comfort. And I don't know exactly what form that
23 might take, but I'm sure other people have ideas
24 about that.
25 MS. PELTZ STRAUSS: I'm going to pick up on
220
1 the word "access," but it's a very different -- has a
2 very different meaning for us. It's not access to
3 the airwaves; it's access by the consumers to the
4 programming.
5 And, as I've said in earlier meetings, our
6 primary goal is just being able physically to have
7 access to whatever programming is provided. But even
8 more importantly what concerns me here is the fact
9 that there will be this array of additional
10 alternative uses, that there will be the possibility
11 that the computer software and sports information and
12 telephone directories and all endless types of
13 information could be used in the digital era. And
14 the question is what obligations would be imposed on
15 the providers of this information or the licensees to
16 make it successful to people with disabilities.
17 I look at these models. It's interesting.
18 You know, I don't know when this was put together,
19 but accessibility issues by people with disabilities
20 was not contemplated in the Aspen Institute report.
21 There is no way that any of the models except for the
22 public trustee model would work for us. Obviously
23 paying one station to provide access is not going to
24 work. So for us the only one that works is the
25 public trustee model.
221
1 As to whether I want to be specific or
2 general, obviously the more specific for my
3 clientele, the better. Whether I think we can attain
4 that, I'm beginning to have more and more doubts.
5 But ultimately some promise that there are
6 populations out there that right now don't even have
7 the fundamentals of access to the programming, some
8 recognition, at a minimum. And whatever we can build
9 on that, hopefully we can build a lot more on that.
10 CO-CHAIR ORNSTEIN: Robert.
11 MR. GLASER: Well, in terms of specific
12 public policy issues, I think I look forward to the
13 deliberations of the Committee before forming a firm
14 opinion on what modes of public interest obligation
15 are most appropriate in specific.
16 I have an openness, as Norm has
17 articulated, to looking at whether there are
18 alternate models of trade-offs associated with
19 specific statutory commitments or economic
20 equivalents of commitments. Because I think that in
21 an environment that's as flexible or that's as
22 dynamic as the digital environment, having something
23 that's not cast in concrete is going to be very
24 important.
25 Having said that, I don't think that we
222
1 would be doing the best job we could have if we just
2 stayed at the level of platitude that everyone can
3 agree with because if that's all we do, then I think
4 we will not have leveraged all the expertise that's
5 in the room here and all the expertise that we have
6 heard to really come up with something that might be
7 more substantive, and if being more substantive means
8 that, as discussed early, we need to have some parts
9 of the report that are not consensus reports.
10 I think that does our charter full of
11 service than having only sort of fairly watered-down
12 elements. I guess the only substantive things that I
13 would say is, I guess one thing I contribute or
14 endeavor to contribute is making sure that our
15 technology orientation is not naive with regard to
16 the kinds of things that can happen technologically
17 while avoiding being overly specific, and there's a
18 predicting what things will happen.
19 And then secondarily for me that leads to a
20 second specific conclusion which is that we look at
21 the implications of the public interest obligations
22 that we perceive as relate to traditional
23 broadcasters and compare that with other technologies
24 and other methods of transmitting audiovisual
25 information based on the view that in an all digital
223
1 world the melding together of those different media
2 will even be more confusing and blurred than it is
3 today.
4 So any implications or recommendations that
5 we have that only speak to nominal digital
6 broadcasters I think will be highly incomplete or
7 would be rendered highly incomplete relatively
8 quickly. So I don't know if that's more tangential
9 than core on in terms of what, you know, what
10 programs we use for which methods of public interest
11 obligations. But those are the kinds of things that
12 I want to make sure are in there in addition to what
13 most other people are saying here.
14 MR. SUNSTEIN: Tentatively four, and right
15 now, four things.
16 First, an emphatic statement of the social
17 role that should be followed by the media without
18 government regulation. This would be platitudinous
19 but emphatic, heartfelt. It would include a
20 statement about democracy, like the reference to the
21 State of the Union Address, a statement about
22 education, and a statement about diversity, Jose's
23 point, Paul's point and Karen's point. And this
24 would be about what ought to be done without any
25 government.
224
1 And several of the people in the room have
2 given speeches that have had the guts of this. I
3 think to do that would be a great service. I should
4 we think have pretty much have a consensus on that.
5 Second, I would favor general, but not too
6 general, suggestions about the appropriate content of
7 a code for the modern era. That is something that
8 would update this, an old NAB code. And it would be
9 a way of particularizing some of the platitudes
10 specifying a little bit democracy, education and
11 diversity.
12 Third, and more limited, I would favor in
13 some context either fees or pay or play. The context
14 would be either involving kids or involving
15 elections. I'm kind of taken aback by Paul's point
16 because it's clear that he has some knowledge here
17 that I don't.
18 What I'm thinking is in the environmental
19 area a lot of people are very skeptical of both fees
20 and the environmental equivalent of pay or play. But
21 they work not so bad in the environmental area.
22 Now it may be a bad analogy, but the kind
23 of concern about people buying out of their public
24 interest obligations, in practice it's worked a whole
25 lot better than people expected. Maybe this is
225
1 different. If not pay or play, then maybe fees.
2 That's the third point.
3 Fourth, I would want us to say, because of
4 the dynamic nature of the industry, that there should
5 be limited or no direct mandates.
6 MR. DECHERD: I think Cass and I have been
7 sitting together too much. With the exception of
8 your third point, Cass, I think that you outlined a
9 very responsible approach. The word "flexibility"
10 has been used here at numerous times, going back
11 going back to Bob Wright's presentation. I think
12 that's essential to how we address these questions.
13 The voluntary concept has come up
14 particularly with respect to political time, and I
15 think it's a compelling approach and one which we can
16 articulate in a way that will be very useful.
17 Generally, I think as dynamic as this
18 environment is per Rob's point, the less regulation,
19 the more realistic our recommendations are going to
20 be. My guess is in five or ten years, the changes in
21 these businesses will be so dramatic that much of
22 this will be obviated, because we'll be talking about
23 different sources of information, different channels
24 and pipes to the home, and so forth.
25 And I would hope that whatever we do is
226
1 platitudinous would be intended to apply to all of
2 those players, whomever they may be and however they
3 may influence citizens in years to come.
4 What I really think this comes down to,
5 aside from political ideology and views about
6 regulation or deregulation, is audiences and funding.
7 And I would hope that we'll be very honest with
8 ourselves about this, because the truth is we can
9 deliver in a digital model unlimited amounts of
10 information that would satisfy every public interest
11 in the United States. But what no one knows is how
12 large is the audience.
13 So this is a matter of how people access
14 the audience and how they fund their own operations.
15 That's a perfectly understandable perspective, but I
16 think we need to be straightforward that that's part
17 of what's at work here, and it should influence
18 whatever report we have.
19 MR. YEE: I believe there has to be a
20 formal reiteration or certainly a more futuristic
21 affirmation of the democratic compact broadcasters
22 had with the communities. And those of us, in my
23 case as I work with independent producers, for better
24 or for worse, in making and shipping our programming
25 that they also have similar forms of accountability,
227
1 the issue of access, economics, and the public
2 knowing where to find the program is very important
3 to us.
4 I think one thing this Commission should
5 also recommend at least, you know, if we are going to
6 be imaginative and innovative that we also recommend
7 a period of experimentation of prototypes of
8 hybridization where we can work together. I think
9 there are more things in common than not. I think we
10 have let our conventional thinking and perhaps our
11 history inhibit us a little bit more.
12 And also maybe we're not used to talking
13 publicly amongst ourselves. But I do think we have
14 to look for ways of allowing things to happen for a
15 period of time and come back to adapt, you know, this
16 commitment in many ways.
17 As someone who works in public
18 broadcasting, and I do not represent the public
19 television stations in any way, to my relief, is I do
20 believe that they will, indeed, welcome an
21 opportunity. But they also will welcome an
22 opportunity to work with the other stations as well
23 and civic groups.
24 To expect them to take it on, I think it is
25 both premature. It needs a lot of work. There needs
228
1 to be a lot of, shall we say, real deep thinking in
2 that regard. I welcome that possibility. But I
3 think, again, it needs to be more of a clear thinking
4 of engagement and reality, both by economics more
5 than anything else, economics and, again, the
6 changeover of audience.
7 MR. CRUMP: Well, having been to several
8 meetings listening to what has already been said at
9 this point around here, I've got to tell you, to me
10 what I'm doing is I'm having ascertainment on a grand
11 scale. That's exactly what is occurring here.
12 I believe what we've got in this Committee
13 is the opportunity for mutual education because,
14 again speaking for myself, I have been fascinated to
15 hear what those of you who are not broadcasters have
16 to say because you're the guys that I know, but I
17 haven't known personally in the years preceding this,
18 you're the ones who are talking, who are working, who
19 are lobbying in Washington and who are going to have
20 some sort of an effect. And you have had in the past
21 an effect on our business.
22 I think also, then, it presents the
23 broadcasters here on this Committee with a tremendous
24 opportunity to tell you about how we operate, just as
25 Jose was asking earlier some specific questions about
229
1 what happened in local stations. We have the ability
2 then to include you in on things that we think that
3 everyone knows simply because we deal with it every
4 day and yet there's no reason you should know the
5 problems that we face or where we find our little
6 triumphs as we go along.
7 I think it's also very important as we
8 deliberate to make certain that everyone understands
9 not only the potential that we have with the advances
10 that we're making and the transition into digital
11 television, but also to let everyone know what our
12 potential problems are and what our very real
13 problems are with this.
14 And, as a result of all of that, I would
15 hope as the Committee continues to deliberate that
16 then what we're going to do is create an atmosphere
17 that will hopefully help for a better transition into
18 this new digital television world and that the result
19 then will be better not only for the broadcaster, but
20 much better for the public. Because if we have a
21 frank exchange of ideas, whether we agree with each
22 other or not, I'm sort of like Paul or how I'm
23 reading you, Paul, into this. I'm not trying to put
24 words in your mouth. But that sometimes I find that
25 I disagree with someone rather vehemently. And then
230
1 when I think it over, I begin to see that, you know,
2 there is some truth in what they had to say, and
3 maybe there's some way of wiggling a little bit,
4 moving a little bit about here. And we come up with
5 an answer that is better than it would have been had
6 either one of us arrived at the answer by ourselves
7 without any conversation.
8 MR. BENTON: I spent a mixed life in
9 business and nonprofit and public service, and yet
10 I've had very little exposure to broadcasters
11 directly. And being on this Committee, it's been a
12 wonderful opportunity. So to do it, I'm very
13 impressed.
14 I wish you were truly were representative
15 of everyone out there, but I think you are an
16 extraordinary group of broadcasters. Broadcasting is
17 so enormously important in our society. And I, while
18 I disagree with some of the points in the first panel
19 this morning, he pointed out by having turned over
20 broadcasting largely to selling, it is true. It is
21 the engine that drives the consumer society. And I
22 have spent much of my life in various ways trying to
23 promote broadcasting for education, for information
24 and for cultural purposes and uses.
25 And I see in the goals here that have been
231
1 reiterated by the Aspen group and that we talked
2 about a lot in our Committee, these four goals as
3 being really terrific. The localism and community
4 idea which the broadcaster -- the local broadcasters
5 have uniquely in their power to serve better than the
6 notion of the ascertainment procedure of bringing
7 this back in a stronger way so that it would not be a
8 threat to the NAB but, in fact, could be very useful
9 at its best in reconnecting or strengthening the ties
10 between local broadcasters and the community needs
11 that they are in theory meant to serve.
12 The informed electorate point is a critical
13 point, and we've gotten sort of hung up on this free
14 time for candidates as with so many other things, in
15 improving informed electorate, not the least of which
16 is improving the news, which has been trivialized and
17 commercialized, overcommercialized. So there's a lot
18 of things to talk about in the broadcasting
19 contribution to an informed electorate.
20 The children education programming is one
21 of my favorites specifically because it's where I
22 have spent much of my life. And, as I said this
23 morning, the central problem here in our country is
24 money on this front, especially on the educational
25 side. We are so far behind the rest of the world in
232
1 mobilizing the powers of this great medium for
2 teaching and learning and getting this into the
3 teaching and learning mainstream, quite apart from
4 general education, which is the PBS pitch. But PBS
5 itself has largely turned its back on broadcasting in
6 the educational mainstream. And the diversity of
7 viewpoints. Lots of people have talked about this.
8 I think the central challenge and what I
9 hope comes out of this Committee is some new ideas
10 about structure and about money, because I think we
11 need -- and that's why I'm interested in really
12 digging into these different regulatory models and
13 learning more about them because there's got to be
14 some combination of government and private sector
15 working together on this.
16 The idea that the government's got all the
17 answers, of course, they don't. And the idea that,
18 you know, let's shut it off and turn it over to the
19 NAB and let them figure it out? No, I'm totally
20 opposed to that. So I mean there's got to be some
21 mix of government and private sector relations here.
22 And incentives. The more we can do
23 incentives and have it voluntary, I think maybe the
24 final point -- and then I'll stop, because we'll all
25 wind up giving long speeches and we use up the rest
233
1 of the day, and we can't do that -- is that I know
2 we're going to make our report to be done hopefully
3 on time, on October 1st.
4 But a body like this Commission -- and
5 we're making our report before digital television
6 really starts, for God's sake. That's where I really
7 think Jim's idea about an ongoing experimentation and
8 learning by doing, not just theorizing about things.
9 There ought to be an ongoing group that
10 advises whatever administration is there, Republican
11 or Democratic, Democratic or Republican, on not just
12 the public service obligations but looking at these
13 obligations in a flexible way. Speaking of
14 flexibility. And looking at their performance so
15 that we get some report on their performance of how
16 broadcasters are, in fact, meeting their public
17 service obligations and responsibilities.
18 They do have a public asset. The air waves
19 do belong to the public. There is a quid pro quo,
20 and there ought to be an ongoing mechanism for
21 looking at that.
22 This is not something that's going to come
23 today and go away, and we're going to make our report
24 and it's all over. No. We're a small speck and we
25 need to look upon what we do in a larger continuum.
234
1 MS. WHITE: Let me preface my statements by
2 saying I would certainly hope that this Committee
3 could reach a consensus on its recommendations or its
4 report for public interest obligation for digital TV.
5 I think the report or the paper would be a much
6 stronger one for our having done so.
7 I'm particularly interested in the
8 children's educational programming, and I would hope
9 that the transition from analog to digital TV would
10 be an equitable one.
11 I also had some concerns, and I had a
12 question for Mr. Gunther this morning, who was one of
13 our panelist, and I wasn't able to ask it publicly.
14 But I did corner him as he went out of the room. And
15 Les and Norm, you would be interested in knowing -- I
16 think he alluded to the fact that most of us were
17 industry heads. And I did inform him that I was not
18 an industry big wheel, but the President of a
19 National PTA representing just 6.5 million members.
20 The concern that I had was his charge to
21 this Committee to define a process whereby the public
22 could signal its participation in or its unhappiness
23 with programming. And I thought that was a good one.
24 I asked him if he had any suggested
25 formats, and I gave him two examples. I said, "Do
235
1 you mean like reporting weekly or letter write-ins?"
2 And he came back to me with my own answers
3 or my own suggestions and he said, "Yes, I mean
4 reporting weekly or letter write-ins." I think that
5 this is something that we could probably suggest or
6 define, a process by which the public could enter its
7 suggestions and its signals and what-have-you.
8 DR. DUHAMEL: I'm awed. I've got thousands
9 of things, and so little time to do it. Let me just
10 go over three points, although Lois brought up a few
11 more.
12 First of all, I think that we really need
13 to be looking at general principles, because if you
14 go back to when the original Communications Act came
15 out in the '30s before I was born, you know the
16 topics, the things they were faced with then have no
17 relation to where we are today.
18 And, you know, if you try to get so
19 specific, you know, it's even like Karen with the
20 role of the hard of hearing, the handicapped, you
21 know, the perception of those in the '30s compared
22 with where we are today is decidedly different.
23 And you need flexibility. You need to have
24 an evolutionary format and not have a bunch of rigid
25 rules. And that's why we get back to trying to come
236
1 up with some general principles that can evolve and
2 things that maybe were important. Say, when I was a
3 kid, polio was vital. It's gone. You know, that's
4 what I'm trying to say on that area.
5 The second area that concerns me, and I
6 alluded to it in the initial meeting, is the whole
7 question of the economic costs, the cost of
8 conversion. This is not a give-away. You know, all
9 we're really talking about is giving the broadcasters
10 an opportunity to spend billions of dollars.
11 As I said at the beginning and I stand by
12 it, the cost of this will -- the conversion is 50
13 percent of the value of our company. And we're not
14 alone. We're not unique. You can go out through the
15 Dakotas and Montana and Idaho and Wyoming and find
16 all those broadcasters are in the same boat. But we
17 have to do it for competitive reasons because the
18 cable is going to do it. The satellites are going to
19 do it. And we don't have any choice. But, you know,
20 I don't know where the -- I couldn't get in there
21 this morning either with his gift and his give-away.
22 He irritated the crap out of me.
23 But the other concern that I have is the
24 annual implementation costs. You know, as we get
25 into this, we can talk about only 13 minutes a day.
237
1 That 13 minutes a day, if we're talking about the
2 model of the free political, that drives 13 minutes
3 of advertising time out that I don't have to sell. I
4 have to have time to sell. I'm not like a newspaper,
5 I can add extra sections to get more space to sell.
6 And so 13 minutes a day might not sound like a hell
7 of a lot, but it's significant in the small markets.
8 And finally, the question that I'm still
9 bothered by and it really has only been alluded to a
10 couple times here, but what does the public really
11 want? Now I mean I'm in contact. I read every
12 letter that comes to the station. And you know, I'm
13 not getting any great letter-writing campaigns.
14 Occasionally I see organized letter-writing
15 campaigns.
16 I happen to be Catholic and the local
17 bishop roasted me from the pulpit over "Nothing
18 Sacred." And I got a letter-writing campaign. But
19 that was obviously a letter-writing campaign because
20 I wasn't getting -- I was only getting it from one
21 diocese. I wasn't getting it from the other dioceses
22 that we broadcast in.
23 But nobody seems to be concerned. You
24 know, as Les got into it, when we talk about when
25 they gave the candidates for president, the last five
238
1 minutes, 80 percent of the audience disappeared.
2 Now to me the people are voting. The
3 people are saying we don't want to hear this. Now we
4 can talk about implementing, coming up with some
5 ideas, and that's why I think we get into some broad
6 guidelines because I think I can sit down with our
7 news director and talk about some of these things and
8 maybe we can develop something that we can do.
9 We've had debates, political debates for
10 candidates for federal and the governor since 1968.
11 The biggest problem I always have is I have to
12 personally talk the incumbent into doing it. Three-
13 fourths of the time I can do it. But most of the
14 time -- well, I mean the incumbent is the one I
15 always have to get. But the thing is these aren't
16 big rating getters. The only way that we really do
17 it is we -- we act like there's going to be a fight
18 and somebody's going to punch somebody in the nose
19 and people tune in to see blood.
20 But, you know, I agree that the electorate
21 needs to be informed, but doing this is not just
22 mandating so many minutes, because the public isn't
23 going to go there. They have cable. They have other
24 places to go, and they'll watch an old movie. And, I
25 mean, we get back to what does the public want? And
239
1 the public votes every day by their viewing.
2 And if they aren't watching, they're saying
3 we don't give a damn what you guys are doing. We're
4 going to go see what we want to do. And I don't hear
5 this. Where's the public on this? What's the public
6 want? Because I think the public is voting. We
7 dismiss ratings. The ratings are vital. The ratings
8 tell us where the public is. And then -- I guess
9 that's about it. Lois brought up a couple things
10 that I kind of agreed with. But, anyway, that's it.
11 MR. CRUZ: I knew when I took on this
12 assignment back in October that it was going to be a
13 daunting task that we were facing as members of this
14 Commission. I mean, I did then, and I still do now.
15 However, I sense that, given the nature of what we
16 were taking on, that there was nevertheless a
17 possibility that we could begin to collectively, as a
18 group, see a lot of the potential changes that are
19 coming down the road. And that, as things have
20 existed in the analog world, that it will change in
21 the digital era.
22 As rapidly as the technology is changing,
23 almost like a mutating virus, I think it behooves us,
24 whatever our end product is, is to make sure that we
25 have flexible models. We can no longer, I don't
240
1 think in my estimation, see public interest
2 obligations in the same sense that we did in the old
3 analog world.
4 And I think we should -- we will do
5 ourselves and the rest of the country, what it's the
6 FCC, Congress, the President or the Vice President or
7 whomever, I think we will do them a great service if
8 they hear from us creative, flexible, outstanding
9 solutions that we have thought out and have proposed.
10 Whether they're accepted or not is immaterial.
11 But I think we need to do that creative,
12 difficult process as it is. I have worn two hats in
13 my life, quite a few of them, but one on a commercial
14 side as well as one now on the public broadcasting
15 side.
16 The public broadcasting side really sees
17 enormous potential in terms of the possibilities with
18 digital. We meet our obligations and then some when
19 it comes to democracy, when it comes to political
20 debates, when it comes to education, especially as it
21 pertains to children and cultural democracy and
22 public affairs. We are well poised there.
23 The reason I raise it sometimes is during
24 the course of our conversations here is because there
25 are some members on both sides of the aisle and on
241
1 both houses who seriously have pushed the idea of the
2 deregulation of this industry. It may very well be,
3 some say, that the time has come that the commercial
4 industry should really be deregulated. And it is
5 posed by members of Congress who say, perhaps,
6 allowing you to deregulate that some of those
7 obligations could be taken on possibly, perhaps by
8 public broadcasting, but also by other entities.
9 So I raise that one periodically, and I
10 know it's been a recurring theme with me because I've
11 worn both hats, the commercial and the public
12 broadcasting. And I see those opportunities. I wish
13 we would remain flexible at the tail end, not
14 necessarily to mandate them, but certainly to come up
15 with some creative solutions as we go through in that
16 process.
17 Thank you.
18 CO-CHAIR ORNSTEIN: Okay, Frank.
19 MR. BLYTHE: Somebody talked about general
20 principles going back to 1934 when licenses began to
21 be issued to broadcasters. Licenses were a privilege
22 to broadcasters, in return for which they would
23 operate in the public interest, convenience and
24 necessity. That's pretty flexible right there. And
25 that's the way it's been for the last 65, 63 years.
242
1 And now we're taking a look at what does
2 this public interest of broadcasters entail? For me,
3 I would hope that we would come out of this, this
4 report that maybe redefines public interest for
5 public broadcasters or broadcasters, digital
6 broadcasters.
7 But also in defining it, I think we also
8 need to because of -- even though we've talked about
9 flexibility and openness here and leaving a lot of
10 what might be perceived as gaps in whatever
11 recommendations that we come out with, I think there
12 needs to be some determination, though, of some
13 values placed on what's being done here.
14 In return for digital channels,
15 broadcasters again are being asked to provide even
16 more services in the public interest, if that's
17 possible. And we've seen a lot of material showing
18 what broadcasters are currently doing here. And I'll
19 be looking forward to the report at the next meeting
20 to see what that entails.
21 But I think there's two things that I'm
22 looking for. One is determining the quantity of
23 public interest obligations that we need to list as
24 far as our report and then having some accountability
25 tied to it.
243
1 How do we account for those, or how do the
2 broadcasters account for those in some way? There
3 was that attempt in the '70s and the '80s with the
4 ascertainment report that I heard somebody else
5 allude to earlier that, when I was working in
6 broadcasting at the time, seemed to be a pretty fair
7 assessment of what broadcasters needed to find out
8 what was going on in their communities.
9 When it went out the window, at least the
10 station I was working with, so did a lot of public
11 interest obligations go out the window. And I don't
12 know if that's true across the board or not, probably
13 not. But that's one example of accountability that
14 went with it also.
15 So I think the two areas that I would like
16 to see written into our report here are determining
17 some quantity that needs to be provided to the public
18 and determining some of the accountability and how
19 that is provided and how broadcasters do it.
20 MR. GOODMON: Well, let's see. I may
21 repeat what I said just a second ago here quickly.
22 My interest is in the future of the free over-the-air
23 broadcasting system, which I think has really served
24 this country well. The bedrock of that is localism,
25 our ability to serve the local community. That's why
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1 we have it. That's why I have all these stations is
2 because they're supposed to serve the local
3 communities.
4 What I want to see come out of here is a
5 report that affirms the public interest, public
6 trustee notion because I think that has served us
7 well, and I think we need to discuss what those
8 issues are.
9 Now my own notion is that is not
10 regulation. The concept that we are given these
11 licenses to operate in return for the public
12 trusteeship to me is eminently reasonable. I mean, I
13 can't argue -- I don't know how you argue with that.
14 I don't know how you argue with that. I think all
15 we're supposed to talk about is what should these
16 obligations be. I think they should be minimum.
17 As a matter of fact, the ones that I think
18 we should have I don't know a station's not already
19 doing it. But I do think we should have minimum
20 standards. And then I think the industry should be
21 allowed to have a voluntary code to work on these
22 things for the stations that want to.
23 So I am -- I know I think -- well, the one
24 thing is going on is the -- you know, "regulation" is
25 a bad word. And everybody wants to deregulate and no
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1 regulations and unnecessary regulations. I don't
2 think that these public interest standards are
3 regulation or unnecessary regulation. I think it's a
4 deal. I think it's a compact that we make with the
5 citizens in return for getting the license.
6 Now I think a concern is it's sort of like
7 the income tax. Once you say, well, okay let's
8 quantify these and let's do these, then the next
9 thing you know it's not two hours, it's four hours,
10 then it's eight hours, and then it's ten. I mean, I
11 sense that part of the concern is that if we do this,
12 it's starting something that could really be bad for
13 us.
14 But I think that we're talking about the
15 right thing. I think that this digital that we've
16 got and what's going on is the best thing that ever
17 happened to broadcasting. It can be the best for the
18 citizens of the United States, and I'm very positive
19 about it.
20 I just want -- you want to go over my list?
21 I won't go over my list. But there are eight or ten
22 areas that I think we should talk about in terms of
23 our minimum public interest responsibilities and move
24 on with that. I agree with Paul. I'm insulted you
25 think I would want to sell my children's obligations.
246
1 I didn't mean anything like that. But the notion
2 that stations can't -- that the stations won't
3 fulfill their public obligations, I don't think will
4 work.
5 And stacking it up on other stations and
6 all that, I'm with the public trustee model, and
7 let's talk about them and issue the report. Thank
8 you very much.
9 MS. SOHN: Now I want to do the ultimate
10 ego, and to give you an idea of where I'm at, I'm
11 going to quote myself from Today's Broadcasting and
12 Cable where I'm responding to a new NAB study, which
13 you'll see the results of next month, which shows a
14 lot of how many food drives they do and how much
15 money they give to charity and lots of good stuff
16 like that.
17 My quote is, says Gigi Sohn, "Supermarkets
18 Giant and Safeway also do charity work but they don't
19 receive licenses for it. What broadcasters need to
20 do to justify their free licenses is to offer
21 programming that addresses issues of importance to
22 the local communities."
23 And Paul mentioned it, Luiz mentioned it,
24 Jim mentioned it. It's been raised in several
25 different meetings. I care about access to local
247
1 voices and discussion of local issues, including
2 access for local candidates. Federal candidates are
3 doing just fine. That's not to prejudge what I think
4 about free time. But it's local and municipal
5 candidates, statewide candidates that are having
6 trouble getting access, and local communities,
7 communities of color, disabled communities that are
8 having trouble.
9 And I think this is where some
10 broadcasters, of course not the ones seated at on
11 this table, are really falling down. And what I
12 would like to see, one of the things I've been
13 thinking of -- again and I don't want to get too far
14 ahead of myself -- is how can we create what I call
15 civic space. A space where, you know, local
16 community leaders, local candidates with a minimal
17 editorial intrusion of broadcasters both public and
18 commercial can be heard. And that's what I really
19 care about.
20 And I want to, just to continue this for
21 another minute, want to address some of the sort of
22 more process-oriented things.
23 I think if you want to come up with a
24 voluntary code, that's great. If that's all we come
25 up with, I think this Committee will have been a huge
248
1 failure. The same thing with broad principles. You
2 know, we can come up with some broad principles we
3 all agree on, but if we don't come up with some
4 specifics, I think this Committee will have been a
5 failure. And when I say "specific," I'm not
6 necessarily talking about quantified.
7 We can have a flexible menu of things that
8 broadcasters could do if they choose. That's not the
9 same thing as saying 15 minutes of this or four
10 megabits of that. That's not the same thing. So I
11 want to clarify that. But if all we're going to say
12 is we want democracy and we want access and thank
13 you, FCC, take our principles and implement it, I
14 just don't know why we should even continue.
15 The last point I want to make sort of
16 responds to what Rob said about different
17 technologies. Maybe I didn't quite understand him.
18 We've had a lot of discussion about, well, you know,
19 if we're going to suggest public interest obligations
20 for broadcasters, then we have to do it for satellite
21 and cable and on and on and on.
22 Well, first of all, I'll point you to the
23 handout I put in your packages this morning that
24 defines the many public interest obligations of cable
25 and satellite. But I just want to remind people the
249
1 name of this Committee is the Advisory Committee on
2 Public Interest Obligations of Digital Television
3 Broadcasters. That's all we should be discussing.
4 If we want to have some appendix to the
5 report that talks about, you know, what Tracy Westen
6 was talking about, other things we'd like to see the
7 cable and satellite industries do, that's fine. I'm
8 all for it. But if these deliberations get bogged
9 down and why isn't HBO doing this, and why isn't TCI
10 doing this, it's going to be a morass and that's not
11 what we're tasked to do.
12 The last thing I want to mention is, I want
13 to come up with a politically possible result. I
14 know if this Committee's recommendations is too one
15 way or another, the FCC's probably going to reject
16 them. I'd like to see something that works for
17 everybody. It may not be possible, but that's what
18 I'm going to be working towards. And I hope we can
19 sort of all keep that in mind.
20 I don't know who it was that said it, but
21 if we all stick to our little niches -- I hate the
22 term "special interest," Les, but you used it, so
23 I'll use it -- and aren't willing, you know, to walk
24 a little, you know, to either the right or left,
25 depending on where you sit, I think we're going to
250
1 have a lot of minority reports and we're going to
2 have a confused FCC. So I think we should work --
3 you know, I could give you all my ideas what I think
4 broadcasters could do. But with this Congress and
5 even with this FCC, which some describe is very
6 liberal, and I tell you I will dispute you on that.
7 Would it work? No.
8 So let's try to get to somewhere that the
9 FCC is willing to go and that Congress, you know,
10 won't go crazy and try to pass legislation to block.
11 MS. SHELBY SCHUCK SCOTT: I came to this --
12 spilling my water. The public trustee thing is what
13 I basically came for. I think many broadcasters have
14 sort of dropped the ball. I used to be an employee
15 of broadcasters, the person that you saw on the air
16 carrying out their commands. And when they dropped
17 ascertainment and things like that, I saw program
18 after program of local community interest go off the
19 air. They're no longer there.
20 And I really feel the community -- and this
21 is a local issue, not the networks. The networks
22 can't do community issues. They can do a
23 presidential campaign, but they can't do every
24 mayoral race in the country, nor can they do the
25 Asian community in Woburn, Massachusetts. Those are
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1 things that only local stations can do.
2 As for free time for candidates, I don't
3 want any more 30-second spots. I'm sorry. They
4 don't inform the electorate. I don't care if they're
5 paid for or free. I'm really on the fence on that
6 one.
7 I'm sure you all got the same questions I
8 did when you were being considered for this
9 Commission asking where you stood on that issue. And
10 I told them I don't know, because I don't know if you
11 put on two minutes will anybody watch it? Will that
12 help inform our electorate? I don't know the answer
13 to that.
14 I know in Britain they're stopping free
15 time because nobody was watching. So that one I came
16 here to be convinced about. I really don't know. I
17 know that our electorate is not informed; our
18 electorate is not voting. And that's a terrible
19 thing. And I was hoping someone here would have a
20 brilliant idea how we could make it more interesting
21 for Americans to try to figure out which candidates
22 they want to vote for. But in no way am I for more
23 30-second spots. I'm sorry. They don't tell our
24 voters anything.
25 I just hope, too, as Gigi said, we can come
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1 to something that's workable that we could all agree
2 on because I'm really scared about the future of our
3 country if we go on the way we are now. I don't
4 think we have -- not just on politics, but on many
5 issues -- an informed public. And that scares me
6 more than anything.
7 MR. MASUR: It's great to be the completely
8 ignorant one in the room because I have a totally
9 fresh view of everything you're saying here. I mean,
10 I've done a lot of the reading, but I haven't heard
11 people speak on these issues, and I don't know where
12 anybody stands -- well, I know better now that we've
13 just gone through this process.
14 But it seems like one of the things that we
15 have to recognize here is we've been given a
16 relatively impossible task. And there's a dynamic
17 which has always existed between the commercial
18 nature of broadcasting and this theoretical public
19 responsibility. And it's absolutely true that the
20 voting that was being described earlier, the process
21 of weekly signals coming from the public, happens
22 every day several times a day through the ratings.
23 It's absolutely true. That is the public responding
24 to the commercial nature. Okay?
25 But one of the things that we have to try
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1 to take into account here, it seems to me, is is
2 there a way to, as Shelby just said, taking the
3 political process, taking children's broadcasting, is
4 there a way to do that better so that more people
5 will be interested.
6 Now that's a heavy responsibility. You
7 can't legislate that. We can't regulate that. On
8 the other hand, I'm extremely concerned, as Gigi just
9 mentioned, about the possibility of leaving here with
10 nothing other than voluntary -- I've seen voluntary
11 things in this country go so sour so many different
12 times because you have this other driving force which
13 is commercial.
14 And anyone sitting in this room who says,
15 "Oh, no, but we're good scouts and we'll always be
16 good scouts," isn't being completely forthright
17 because you have to respond to the commercial needs
18 of your organization.
19 It's been said here. It was an opening
20 comment about the whole electoral issue, you are --
21 you carry your organizations into this room. So I
22 think that leads us to something like what Cass was
23 talking about which was -- and what I've heard Norman
24 talk about -- which is a kind of an amalgam of things
25 that do take voluntary code into account, but also
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1 where tremendous pressure is brought by the peer
2 group to collaborate in seeing that that code is held
3 to.
4 And a very strong affirmative statement. I
5 think the pay-or-play system might have the same
6 problems -- that's why I asked the question I did --
7 have the same problems that Paul has.
8 The idea that three local stations are all
9 going to buy out of their children's local
10 programming is a real possibility, or that one of
11 them will get it and they will be defining everything
12 that children in that market see. That's a terrible
13 idea as far as I'm concerned.
14 I understand, Norman, what you were saying
15 about different ways to try and help smooth that out,
16 but that doesn't seem completely sensible to me. I
17 think every local station has to have some
18 responsibility to provide intelligent programming to
19 children. I'm not saying how much. I'm not saying
20 when it has to be on. I'm just saying there has to
21 be some basic concept like that and some very strong
22 inclusionary concept as well, which has been talked
23 about by everybody in terms of access.
24 But again, one of the things we do, my
25 organization and Shelby's, we have very, very strong
255
1 affirmative action policies. And ours are the kind
2 that even a good Republican can love, which is they
3 are about access. There are no penalties for not
4 adhering to them. It's moral assuasion is what we
5 work on. It's in our contract. It's been agreed to
6 by our employers. And what it says is if someone is
7 appropriate to the role, if it's a specified role, be
8 it of an ethnic group, be it of a certain kind of
9 disability, our employers have an affirmative
10 responsibility to afford access to those people
11 coming in and competing.
12 Now that has not really achieved the result
13 we're looking at a situation. And this is the thing
14 about the commercial aspect of this industry I will
15 never understand, where you have what will arguably
16 be the largest single population group in the country
17 in 25 years, which is the Latino/Hispanic population,
18 effectively seeing no programming except on Spanish
19 language television.
20 Now how this market is being missed by all
21 these broadcasters around the country is a mystery to
22 me. I mean, it's waiting out there to be seized
23 upon. These guys don't just speak Spanish. I mean a
24 lot of them watch English language television.
25 The largest single group controlling the
256
1 greatest amount of money in this country are seniors.
2 They have disappeared from television except on Les'
3 network. And even there -- even there --
4 CO-CHAIR MOONVES: You were vilified for
5 it.
6 MR. MASUR: Yes. You could -- exactly.
7 You got smacked for that.
8 CO-CHAIR MOONVES: The old guy did it here.
9 MR. MASUR: And so what I'm saying is if
10 there is something that we can do in this, and this
11 may reach a little bit beyond what our mandate is,
12 but if there's something that we can do in the spirit
13 of what was mentioned before of this
14 cross-educational process to affirmatively state that
15 part of this process should be to review the
16 possibilities available to broadcasters to reach
17 audiences that they're not reaching, to address
18 specific needs, 28 million deaf or hard-of-hearing
19 people in this country who not only deserve to have
20 access, but also deserve to be seen and represented
21 on camera. And that's another major issue.
22 So I'm not being very specific because it's
23 my first shot. But I just want to lay those things
24 out and see if there isn't some way we can get that
25 philosophical message across, which I don't think
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1 anyone in this room disagrees with. It's just a
2 matter of trying to figure -- you can't legislate
3 that. You can only try and inform and raise people's
4 consciousness and hope that they'll act in their own
5 best interests and reach out for these markets that
6 aren't being tapped.
7 CO-CHAIR ORNSTEIN: Thank you, Richard.
8 It's good to have you with us, by the way. Good
9 voice.
10 MR. MASUR: I get paid for that, my voice.
11 (Laughter.)
12 CO-CHAIR MOONVES: And paid very well, may
13 I add.
14 MR. MASUR: Not for this job.
15 (Laughter.)
16 CO-CHAIR MOONVES: As we go around the
17 room, I'm struck as I was when I first at our first
18 meeting together about what an accomplished group of
19 people are on this panel. However, to agree with
20 Gigi, which isn't often, unless we really do, and
21 other people here, unless we really do find something
22 that we all can live with, and no matter whether it
23 is voluntary or it is mandated that we all can go out
24 and support wholeheartedly, we probably will have
25 failed in a lot of ways. If there is not something
258
1 that the broadcaster can live with and at the same
2 time be strong enough for Gigi to live with, we will
3 not have achieved what we would like to achieve.
4 There are people here who do represent
5 smaller groups. I won't use that word, Gigi, that
6 have needs that should be addressed and I think they
7 will be addressed. But, once again, everybody here
8 has to realize there's going to have to be a great
9 deal of compromise and something that I'm scared of,
10 and I'm nervous about, and I worry whether we can get
11 there. And it's going to take a lot of hard work to
12 get there.
13 We also have to address something that's
14 very important. If our mandate is to deal with what
15 is the future in digital television, we have not done
16 a very good job of defining that. Truly, if a local
17 station has six channels, he's going to be dealing
18 with one world. If he has two, he's going to be
19 dealing with another. It's very easy to say if he
20 has six channels one of which should be devoted to
21 public service. And that's a fair statement. If
22 there are two channels, it may be a different world.
23 I think there is, on the part of certain
24 people, a failure to realize the huge economic
25 consequences as we are talking about stations, not
259
1 all of which are in Los Angeles or in New York but,
2 as been mentioned before, are the mom-and-pop
3 stations. And there are a lot of them out there that
4 extra six minutes of time will make a big difference.
5 That extra 30 minutes of an access public service
6 program will make a difference between their survival
7 and not.
8 So we do have to define some of the
9 economics of what our business is. But, most
10 important, I think we have to find a common ground,
11 and that's what our main task needs to be.
12 Norman.
13 CO-CHAIR ORNSTEIN: Well, we found at least
14 one thing we can agree on, which is that if we end up
15 deeply divided, we will have a meaningless exercise
16 which will have taken a substantial amount of our
17 time and a lot of our money too along the way. So we
18 have an incentive to do that.
19 I would suggest a couple of things. I
20 think Cass was on to something as a general model
21 that we can agree on at least major components of it,
22 and there may be parts of it where we will have areas
23 of disagreement. I think we can all agree that
24 starting with a strong statement about the public
25 interest and public trustee model and some of the
260
1 elements that we have all talked about and agreed
2 upon, access the diversity of voices, all of those
3 different elements that we talk about, not in terms
4 of a mandate, but in terms of what broadcasting
5 represents in this democratic society.
6 And if we make that strong statement and
7 put it in those terms, we will bind ourselves
8 together, but I think we also make a very strong
9 statement to the community at large and to the
10 political community. What follows from that should
11 be some sense of how we can improve the
12 self-regulatory mechanism in the broadcast community
13 and try and build in much more of a sense of what
14 obligations are within the community and how they can
15 be enforced through peer pressure and through other
16 mechanisms.
17 And I would suggest to you, Les, that
18 there's another reason for that. There are small
19 mom-and-pop stations, but the larger trend in this
20 society has been to move from local mom-and-pop
21 stations to faceless, large entities buying large
22 groups of stations with no tie to the local
23 community.
24 That's not what we have represented on this
25 panel, but it is certainly a larger factor out there.
261
1 And building in the kind of peer pressure that
2 suggests that you have to be tied to the local
3 community is going to take some effort. And it may
4 have to move beyond just saying you should do this,
5 too.
6 With that, I would, as Cass would,
7 recommend that we explore some of those options
8 because we are moving into a world that we cannot
9 define, that maybe we have a model that involves,
10 particularly if it doesn't involve specific large
11 sums of money, since we don't know what the revenues
12 are going to be early on or later on, where there
13 could be a kind of trade would work.
14 And I would say to you, Richard, if you go
15 back to the issue of children's television, some of
16 the discussions we had earlier, I think if we look at
17 the way this process has worked, nobody would agree
18 that it has worked exactly as intended and if you
19 have everybody have to do the same thing.
20 What's ended up as happening is, first of
21 all, you have CBS, which simply doesn't have that
22 audience, producing very high quality programming
23 that nobody's watching. You have Fox come in and
24 basically buy, because it had the dollars, quality
25 programming from public broadcasting, and there
262
1 wasn't money there to replace that. So it didn't add
2 to the store of good quality broadcasting.
3 And if you look at the pollution rights'
4 model, there are other ways in which you can smooth
5 this process out and end up with a better procedure.
6 It's not just CBS. Those local stations, many of
7 them, that are getting no revenue. If you could --
8 many of them, I think, would be willing themselves to
9 pay something in return for having that space over
10 and you could actually end up with better quality
11 programming.
12 So it's worth exploring. Maybe we can't
13 find an entire consensus, but maybe we can find a set
14 of models to describe that ought to be carefully
15 considered.
16 Now I'd offer a couple of specifics that
17 have flown or that have come from our deliberations
18 as well that I think we ought to consider. We
19 clearly have to, as we talk about mandates or
20 whatever mandates there are, we have to address, and
21 these are trivial things in terms of the commitment
22 of broadcasters, the Emergency Broadcast System. We
23 now have a way of doing that.
24 We're talking about something that is the
25 equivalent of a human hair across the six-lane super
263
1 highway in terms of the commitment, but it's there.
2 The closed caption is already there in the law, but
3 we need to be sensitive to what happens with those
4 future channels and as well with video description
5 which we had discussed.
6 We had a suggestion made at the last
7 meeting that I believe has enormous merit, and that
8 is to recommend that public broadcasting, when the
9 conversion occurs, be able to keep its analog space
10 and therefore have a lot of additional capacity to
11 transmit programming and data. That is not something
12 that has been factored into the scoring and the
13 budget, and it's a way, in effect, of providing an
14 additional benefit to public broadcasting that would
15 not come at any direct cost to others.
16 I would suggest that we consider a
17 recommendation that when stations multiplex, which
18 may come at different times of the day, that they be
19 required to give one of those six or eight channels
20 over to local access processes.
21 Now that's not a huge price to pay. And,
22 in fact, we might very well be able to increase,
23 without a tremendous additional cost, the kind of
24 local access and opportunities that we've been
25 talking about. We ought to consider whether there's
264
1 a way of trading lowest unit rate in return for some
2 provision of free time, and which is not mandating
3 anything, but, in fact, providing a tradeoff that
4 could be a win-win situation here.
5 And I would suggest that it is probably
6 visible to return to a mandate of ascertainment,
7 particularly given the tendency to have stations no
8 longer have the local ownership or control. That may
9 be a useful way to go.
10 So there's specifics that we might want to
11 address even separate from the larger and more
12 general model. But within that, we may be able to
13 narrow our areas of disagreement or areas of great
14 contention and we might well in a report want to in
15 the end have some separate sections with some of
16 these areas of controversy and maybe even with a
17 dialogue and a give-and-take representing different
18 points of view. That may be another way in which we
19 can express our viewpoints and get them out there.
20 With that, we really need to spend a few
21 minutes talking about our logistics for the next
22 time. I want to mention a couple of things. We have
23 calendars that people have given us for June, July,
24 August and September. Some people have not given us
25 calendars, and we have calendars for you to fill out.
265
1 We have Frank, Paul. We have Richard
2 Masur. Let's see. Who else do we have here? We
3 have James Yee. We have Jose Luiz Ruiz and Shelby
4 Scott. So if you will fill out the calendars.
5 Frankly, we're not ready to set a schedule, I think,
6 beyond the June meeting at this point.
7 MR. BENTON: We have a June date already.
8 CO-CHAIR ORNSTEIN: Yes. Beyond the June
9 meeting that we have.
10 MR. BENTON: Right.
11 CO-CHAIR ORNSTEIN: So it's the early part
12 of June.
13 MR. BENTON: Right.
14 CO-CHAIR ORNSTEIN: And we may have to come
15 back to you with an undated schedule. I think in
16 April, we'll consider these.
17 Yes.
18 MS. SOHN: Can I just ask a question about
19 the schedule? Do you know if we're going to be
20 meeting both summer months?
21 CO-CHAIR ORNSTEIN: No. I think what we
22 need to do is we have an April meeting of which we
23 will have a very small share taken up by this
24 presentation by the NAB and some discussion that will
25 follow, and then we're going to continue these
266
1 deliberations.
2 And I hope what we will do at the April
3 meeting is very specifically block out subcommittees
4 to move towards the process of working on sections of
5 the report. Then I would hope by the June meeting we
6 would actually have circulated some drafts of things
7 and we can begin to move towards seeing where we can
8 fill things out.
9 And at that point, we will have to decide,
10 I think -- or by April we'll know, I hope, whether we
11 really need to block out -- how many further meetings
12 we need to block out before we actually get to -- for
13 the group as a whole. We certainly will need one
14 more at least. But when that will come, I'm not
15 sure. So we're not quite there yet. We have one
16 more item that --
17 DR. DUHAMEL: But everything that's on the
18 calendar --
19 CO-CHAIR ORNSTEIN: Yes.
20 DR. DUHAMEL: You know, right now it's
21 awfully early in March to talk about the summer.
22 CO-CHAIR ORNSTEIN: Yes.
23 DR. DUHAMEL: And I would think sometime
24 like about mid-May before the June meeting so we know
25 where we're going. I mean, I have commitments
267
1 popping in all the time.
2 CO-CHAIR ORNSTEIN: Yes.
3 DR. DUHAMEL: So whatever I fill out right
4 now would not be --
5 CO-CHAIR ORNSTEIN: Well, it may be that
6 we're better off just waiting then because things
7 will change.
8 MR. JAMES GOODMON: Then May's a little
9 late to plan any --
10 CO-CHAIR ORNSTEIN: Yes. We can't wait
11 till -- till mid-May. But it may be that we can wait
12 until the April meeting to do the calendars.
13 Nevertheless, if those of you who haven't filled out
14 the calendars would fill them out now, at least we
15 can have a sense now of what dates are absolutely out
16 for enough of the group that we can narrow down the
17 possibilities. It would be useful even though we
18 recognize there's a caveat here that everybody's
19 schedule will change between now and the beginning of
20 the summer.
21 What I guess I would like you all to do in
22 the meantime is to think about the areas that we've
23 been discussing that you might want to be involved in
24 in terms of subcommittee activity. And recognize
25 there are going to be some other sections.
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1 Clearly we're going to want to have a
2 section that provides the history of the public
3 interest obligation as we had discussed at our first
4 meeting or two. And we have some presentations that
5 we could use to build upon as a base. We're going to
6 have some discussion of the whole nature of the
7 digital technology, and what we know about it, and
8 what we don't know about it, where we are and where
9 we're going. And we'll need some people to help out
10 in that area.
11 And then if in the end we're agreed that we
12 want to work with the kind of framework that provides
13 a sense of what the public interest and public
14 trustee role should be in this democracy, where we
15 might want to go with the code, some of these models,
16 some of the specific issues, think of what areas you
17 believe your interest and expertise would take you so
18 that we can start tentatively to put together
19 groupings to consider at the next meeting.
20 Jim Goodmon had a couple of minutes he
21 wanted to spend.
22 Should we do that first?
23 CO-CHAIR MOONVES: On what?
24 CO-CHAIR ORNSTEIN: Jim handed out a chart
25 here, which we all have, which is unintelligible
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1 until he tells us about it.
2 MR. JAMES GOODMON: I'm going to spend just
3 a minute on this because I think it will be very
4 helpful. Then I want to summarize a couple of things
5 just to get you all to think about it.
6 CO-CHAIR ORNSTEIN: Okay.
7 MR. GOODMON: Sort of the watch -- the
8 byword now in moving to this digital format really is
9 confusion. And the confusion is represented by the
10 14 different formats that are on this form, four of
11 them I left off. There are really 18. I left the
12 bottom four off. But I'm showing you this for a
13 couple of reasons.
14 First of all, on the first page, look at
15 HDTV 16 by 9. There are two formats that are now
16 officially called HDTV. That's the 1920 by 1080, and
17 the 1280 by 720. I just -- I just wanted you to see
18 that. One thing we've already seen in the newspapers
19 is our TV sets are HD ready. They can't be HD ready.
20 I mean this labeling is something I want to talk
21 about.
22 But these are the two HD formats. And what
23 I wanted to mention to you is pixels because I've
24 decided, and I can't get everybody to agree with
25 this, but the best way to talk about how good the
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1 picture is the number of pixels in it. That's the
2 resolution. That determines how good the picture is.
3 It's just like on a printed page. It's the
4 number of pixels. And I wanted you to see how many
5 pixels we can actually display in these different
6 formats and what the video transmission bit rate is.
7 To do 1080i at the top there, it takes 18.8 megabits,
8 and you can see the different formats.
9 Now the video transmission bit rate, we've
10 got 19 megabits that we divide up. You can just take
11 some of these things and put them in there. But the
12 first point us -- then -- before -- look at SDTV 4 by
13 3 on the back page, SDTV 4 by 3. What we do now is
14 704 by 480, 60 fields, the second one. That's what
15 we do now.
16 Now if you look out at the display pixels,
17 236,000. What I want everybody to understand is that
18 we're going from 236,000 pixels to two million pixels
19 to 800,000 or a million four pixels. This is a
20 gigantic leap forward in terms of quality.
21 And so the first problem we've got is
22 should we tell the public what we're televising, what
23 we're broadcasting. And I'm suggesting that there
24 ought to be some kind of symbol to tell everybody
25 what they're getting since there are 18 different
271
1 things.
2 And then the second problem is that in
3 terms of demonstrating this to people we have not
4 found a picture tube that will show more than 900,000
5 pixels. The TV sets I showed you HD on did about
6 800,000 pixels, and it was a two million pixel input.
7 So it's going to be even better than what
8 we've been seeing. Okay. Where am I going with
9 that? I'm also wondering if television set
10 manufacturers shouldn't be required to tell us how
11 many pixels they'll do. I mean, I checked on ten at
12 Circuit City. And you can buy a TV set for $700 or
13 $3500, 35-inch, and you can get ten different pixel
14 levels.
15 So I'm just saying things are different
16 now. In this one thing that we're doing we got these
17 different formats, and I'm suggesting that we should
18 put a code to tell the public what we're
19 transmitting. And I'm also suggesting that the
20 public should have some notion as to how many pixels
21 their set will do when they buy it. And that might
22 not have anything to do with this Committee. But
23 it's a notion.
24 CO-CHAIR ORNSTEIN: Charles, you wanted 45
25 seconds?
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1 MR. BENTON: I was in Canada last week
2 visiting City, Strum City, City TV. Canada has been
3 historically, because of it being the most wired
4 cable country, has invested in its media
5 disproportionate to its population because of the
6 giant 5,000-pound gorilla to the south. So they've
7 been very attuned to media, media literacy, the
8 nature of television, philosophical questions.
9 Marshall McCluen probably is the most famous critic
10 and philosopher of all this.
11 I'm going to send to you, everyone, a video
12 called "TV, TV, the Television Revolution," and a
13 booklet called "TV, TV the Debate," which argues with
14 video done by Moses Zymer. And it really is the most
15 provocative program I've ever seen about the nature
16 of television. So look at it and think about it as
17 we're thinking about the nature of television in the
18 next century.
19 CO-CHAIR MOONVES: Thank you, Charles.
20 Karen?
21 MS. EDWARDS: Yes. I just wanted to talk
22 briefly, sort of emphasize something what Norm had
23 said about subcommittees. And I'm not going to
24 prejudge the issue of whether that's the way the
25 Committee is going to work. But I do want to remind
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1 everyone that if that format is chosen that there is
2 this approval process and that the committees, these
3 subcommittees, have to be approved before they
4 convene.
5 So what that means is we need to think a
6 little bit ahead to make sure that the approval
7 process does not slow this down. So when Norm says
8 start thinking about whether you want to do this and
9 on what committee you want to serve, I want to say:
10 Yes, do it and get that feedback back to us so that
11 we can make sure that when you are ready to start
12 going, we're ready to do it as well.
13 MR. CRUMP: Karen, who has to approve it?
14 MR. RUIZ: And how long does approval take?
15 CO-CHAIR MOONVES: Six months.
16 MS. EDWARDS: Well, it has to be approved
17 by the Assistant Secretary for Communications
18 Information, a long title for my boss, Larry Irving.
19 CO-CHAIR MOONVES: Larry Irving.
20 MS. EDWARDS: And you ask how long it
21 takes? I don't know. But I think that the smart
22 thing to do is to allow sufficient time. So that
23 means, you know, the week before you want to meet, it
24 would be great not to know that one week before.
25 MR. RUIZ: But a week is substantial?
274
1 MS. EDWARDS: I wouldn't say so. And I'm
2 guessing now, Jose. I'm guessing that, you know, we
3 should think more in the range of three weeks or so.
4 MR. RUIZ: So are we going to have to meet
5 to decide these committees? Is this like something
6 on the agenda for April?
7 CO-CHAIR ORNSTEIN: No, we may not. I
8 guess what probably the import of what Karen is
9 suggesting -- Larry travels a lot so we can't count
10 on him always just being right there. You should
11 probably get back to the two of us or to Karen and
12 Anne if you have strong preferences here. And then
13 we will try and work out some tentative possibilities
14 before our April meeting. And then perhaps try and
15 make it work at the April meeting so that we can get
16 them going so that you can meet very soon thereafter.
17 MR. MASUR: Norman, have you all defined
18 what the subcommittees are going to be?
19 CO-CHAIR MOONVES: No.
20 CO-CHAIR ORNSTEIN: No, we haven't. We
21 have these general -- we have areas --
22 MR. BENTON: This is a little premature.
23 CO-CHAIR ORNSTEIN: Tell us what areas you
24 want to pursue?
25 DR. DUHAMEL: But the April meeting is when
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1 you define the committees, and then you go to Larry
2 and say, "Here's what we want to do."
3 CO-CHAIR ORNSTEIN: Yes.
4 DR. DUHAMEL: And then you got a week or
5 two weeks after that.
6 CO-CHAIR ORNSTEIN: Right.
7 DR. DUHAMEL: But I mean now if we give
8 three weeks' format lead time, we got one week now to
9 decide what committee we're supposed to be on. We
10 don't even know what the committees are.
11 CO-CHAIR ORNSTEIN: We're asking you, Bill,
12 just to indicate the areas you have interest in
13 pursuing. That's all you have to do.
14 DR. DUHAMEL: When?
15 CO-CHAIR ORNSTEIN: As soon as you can.
16 DR. DUHAMEL: I mean, within a week?
17 CO-CHAIR ORNSTEIN: Think about what area
18 -- you don't have to -- we don't have a specific
19 subcommittees. We have areas that I suggested that
20 include the code, that include the models, that
21 include the technological issues, that include the
22 question of defining the broader public interest and
23 making our statement.
24 Just give us a sense if you have any
25 particular strong feelings about being on or not on
276
1 one or more of those. And then we will have a better
2 idea about how we might shape them when we get to the
3 April meeting. That's all.
4 DR. DUHAMEL: Okay. So we aren't going to
5 set the subcommittees until the April meeting?
6 CO-CHAIR ORNSTEIN: Right.
7 DR. DUHAMEL: Then we go to Larry with them
8 afterwards.
9 CO-CHAIR ORNSTEIN: Right. We're just
10 trying to move this process along as quickly as we
11 can.
12 MR. RUIZ: Karen, doesn't Larry trust us?
13 Can't we get it preapproved?
14 MS. EDWARDS: Yes. This isn't Larry's rule
15 actually. This is the Federal Advisory Committee
16 Act.
17 CO-CHAIR ORNSTEIN: And, believe me, you'll
18 get a subpoena if you don't get follow this Act.
19 MR. MASUR: Norman, is there any concept
20 that's been laid out about how these subcommittees
21 would work? Can they meet in telephone conference or
22 must they meet --
23 CO-CHAIR ORNSTEIN: Yes.
24 MR. MASUR: Oh, they can. Okay.
25 CO-CHAIR MOONVES: They would have to.
277
1 MS. EDWARDS: Well, --
2 CO-CHAIR MOONVES: No?
3 MS. EDWARDS: As you know, sort of whether
4 a subcommittee or the Committee, you know, has to
5 meet in an open forum like this one depends on the
6 content of what they're doing. And this is why I've
7 prepared this sort of two-pager to talk about when
8 the full Committee or subcommittees do not have to
9 meet in an open forum.
10 In other words, the Federal Advisory
11 Committee Act, as you know, defines what a meeting
12 is. And there are certain things that are not
13 meetings. If a subcommittee or the full Committee
14 meets to draft the report, in other words, put down
15 on paper the thoughts or the principles that the
16 Committee has already approved, then that does not
17 require a public meeting. And all of that is laid
18 out here, so I won't take time to go over it. But
19 you can certainly read it, ask me any questions.
20 CO-CHAIR ORNSTEIN: The operative paragraph
21 here, Richard, is this does not qualify as an
22 official meeting, which means you can do it over a
23 telephone conference. "Meetings of two or more
24 Advisory Committee members or subcommittee members
25 for the sole purpose of gathering information,
278
1 conducting research or drafting position papers or
2 recommendations for the Committee."
3 Now we have to present whatever emerges
4 from that at the full Committee. So the purpose of
5 the subcommittees would be to discuss -- pull
6 together information about what might be included in
7 a section of the report and then work to draft the
8 report. That presumably can be done through a
9 telephone conference. Then whatever emerges from
10 that, as you go through these iterations, we must
11 present at the Committee. So it doesn't require
12 everybody to meet together for every part of it.
13 MS. SOHN: Norm, could I just suggest to
14 the extent that you were looking at ascertainment and
15 local access separately that they are really of a
16 piece. If you have ascertainment but nothing comes
17 of it in terms of access for local communities, it's
18 a hollow requirement. I mean, it could also lessen
19 your subcommittees. Just a suggestion.
20 CO-CHAIR ORNSTEIN: It's a good idea.
21 CO-CHAIR MOONVES: All right. Now is the
22 exciting time when the public comment, questions and
23 answers from anybody out there.
24 Please, anybody would like to say anything?
25 Ask us any questions?
279
1 MS. EDWARDS: Anne.
2 CO-CHAIR MOONVES: Yes. Please address
3 yourself.
4 CO-CHAIR ORNSTEIN: There's a microphone
5 here, if you'll wait.
6 MR. PETERSON: Right.
7 CO-CHAIR MOONVES: Name and any
8 organization that you may be representing?
9 MR. PETERSON: Hi. My name is James
10 Peterson. I'm with Sky Writer Communications.
11 Arthur Kent has contacted most of you, I think, with
12 some issues regarding the news and the news issue
13 before this group. I'm also the president of a group
14 called the America Voter Coalition. So I'm involved
15 in both democratic participation but also the news
16 issue.
17 And the two concerns that I have is that
18 though you've talked about free air time for
19 candidates, which presumably the goal of that is to
20 have higher democratic turn out and democratic
21 participation. Elections only occur every two years
22 at the national level. And you were talking about 60
23 days of potential advertising.
24 Well, the news happens every day. And
25 despite that and despite that being the factor that
280
1 really motivates civic and democratic participation,
2 it's not even being addressed by this Commission.
3 Despite the efforts of our organization, we've tried
4 to ask you to bring a journalist before the
5 Commission and talk about journalistic issues
6 because, as Newton Minow said way back in the 1960s,
7 news is at the heart of the public interest.
8 But if you look at the news today a couple
9 of weeks ago, you saw a car chase which lasted for
10 hours on local L.A. television. That took place of
11 CBS news. It ran over it. The local broadcast then
12 aired ten minutes of the national broadcast later.
13 You have issues like that. You have O.J. Simpson.
14 O.J. Simpson coverage thousands of minutes, is that
15 really in the public interest, or Marv Albert, or any
16 of the other tabloid TV issues?
17 But still at what time is this group going
18 to consider those issues of the news and journalistic
19 input? So far, there is no scheduled time for that.
20 And as you're approaching the end of your deadline, I
21 don't know when you plan to do that. This directly
22 reflects on voter turnout. And, as we saw on the
23 last election, voter turnout is becoming alarmingly
24 low.
25 This is a trend that's been going on for
281
1 over 50 years. At what point, whether it's -- is it
2 45 percent, 40 percent, 35 percent? When does a
3 group like this that has an opportunity to address
4 issues as far as voter participation, a democratic
5 participation, at what point do you become alarmed
6 and do something about it? When will you start
7 talking about the news?
8 The other issue that I wanted to address is
9 that virtually no one knows that you exist. It's a
10 very inside industry issue. If you look at the list
11 outside, the only people, the only reporters here
12 that I saw listed were from trade journals, from the
13 Hollywood Reporter, from Variety. The New York Times
14 isn't here. CBS, though I applaud the fantastic
15 efforts compared to NBC to bring up valid hard news,
16 where are their cameras?
17 I just want you to address that and do what
18 you can to bring this before the public and not just
19 have this a private meeting between industry
20 executives and nonprofit groups.
21 Thank you.
22 CO-CHAIR MOONVES: Anyone else?
23 Yes.
24 Thank you, by the way.
25 MR. SPITZER: My name is Matthew Spitzer.
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1 I work for the University of Southern California.
2 I'm a Professor in the Law School. And I'm the
3 Director of the USC Communications Law and Policy
4 Center. I want to address two things.
5 First, I think it's pretty clear that if
6 this group, or the FCC, or any other administrative
7 body were to attempt to exercise the degree of
8 oversight over news gathering and reporting that I
9 thought I heard in the previous comment, it would
10 almost certainly fall under the First Amendment.
11 And so there are probably good reasons why
12 you haven't spent a lot of time considering just how
13 detailed the oversight of news reporting should be
14 with respect to making sure that the electorate is
15 fully informed.
16 An attempt to force broadcasters to stop
17 covering car chases with O.J. Simpson and start
18 covering more public interest regarding news events
19 would certainly be struck down by the Court.
20 Second, with respect to the argument that
21 you heard from Mr. DeVore regarding the
22 unconstitutionality of free time, I see absolutely no
23 way that he can make the argument in a way that also
24 continues to support the justifications for the
25 regulatory regime in the following sense. Red Lion
283
1 is not a case caught in amber in 1969. It's
2 repeatedly been affirmed by the Supreme Court both in
3 Metro Broadcasting and in Turner 1.
4 And, in fact, the Supreme Court may be the
5 only group left on earth that seriously believes in
6 the scarcity rationale as a justification for the
7 regulation of broadcasting. But since they have all
8 the votes and the rest of us out in academia and in
9 trade magazines and so forth don't, for the time
10 being, it's still a good case.
11 If the Supreme Court have to jettison Red
12 Lion, they would basically have to jettison the
13 scarcity rationale at the same time. But if they
14 were to jettison the scarcity rationale, the
15 rationale for federal ownership of the spectrum and
16 the rationale for the U.S. government allocating it
17 to the broadcasters would be in grave jeopardy at
18 exactly the same time.
19 And so I see absolutely no way that the NAB
20 can continue to assert that it's unconstitutional to
21 demand free time without at the same time more or
22 less proving that the licenses that they hold are
23 also unconstitutional, which is a very odd sort of
24 situation to find the NAB in. And that's the only
25 comment I have.
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1 CO-CHAIR MOONVES: Thank you.
2 Anyone else? Questions? Comments?
3 Norman, anything further?
4 CO-CHAIR ORNSTEIN: No.
5 CO-CHAIR MOONVES: Well, we shall adjourn.
6 Thank you, everybody.
7 Once, again, thank you, Jeff, for your
8 hospitality.
9 (Whereupon, the Committee meeting was adjourned
10 at 4:22 o'clock p.m.)
11
12 ---o0o---
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