Remarks by
Mark Lloyd
Executive Director of the Civil Rights Telecommunications Forum
to the
Advisory Committee on Public Interest Obligations of Digital Television Broadcasters

December 5, 1997

Washington, D.C.

MY THANKS TO GIGI SOHN AND THE OTHER MEMBERS OF THE ADVISORY COMMITTEE FOR INVITING ME TO SPEAK THIS MORNING.

IT IS AN HONOR TO SIT HERE WITH MY FRIEND AND MENTOR ANDY SCHWARTZMANN AND TO JOIN PAUL TAYLOR WHO HAS DONE SO MUCH TO ADVANCE THE DEBATE ABOUT FREE BROADCAST TIME FOR POLITICAL CANDIDATES.

I SHOULD ALSO RECOGNIZE MY FRIENDS CHARLES BENTON, AND LUIS RUIZ, AND JIM YEE. AND I WOULD BE ASHAMED NOT TO ACKNOWLEDGE THE GREAT INTELLECTUAL DEBT I OWE TO CASS SUNSTEIN AND NEWTON MINOW. PROFESSOR SUNSTEIN, WITH MARK TUSHNET'S HELP, FORMED MUCH OF MY UNDERSTANDING OF CONSTITUTIONAL LAW, AND PROFESSOR MINOW HAS INFORMED MUCH OF MY UNDERSTANDING OF THE IMPORTANT ROLE OF BROADCAST POLICY IN SOCIETY.

PAUL HAS TALKED ABOUT THE SPECIAL PUBLIC INTEREST OBLIGATIONS OF BROADCASTERS IN THE POLITICAL PROCESS, I WOULD LIKE TO FRAME MY REMARKS AROUND THE POLITICAL RELATIONSHIP BETWEEN BROADCASTERS AND VIEWERS AND WHAT PUBLIC INTEREST OBLIGATIONS THAT POLITICAL RELATIONSHIP SUGGESTS. AND I WOULD LIKE TO FOCUS YOUR ATTENTION ON THE NEEDS AND INTERESTS OF THE LOCAL COMMUNITIES THE BROADCASTERS ARE LICENSED TO SERVE.

I DIRECT A MODEST PROJECT DEDICATED TO THE PROPOSITION THAT THE WORK WHICH ENGAGES THIS COMMITTEE . . . COMMUNICATIONS POLICY . . . WILL DETERMINE WHETHER ALL CITIZENS WILL BE ABLE TO PARTICIPATE EFFECTIVELY IN THE POLITICAL PROCESS, HAVE ACCESS TO PUBLIC SPACE, SHARE IN THE FRUITS OF PUBLICLY FUNDED RESEARCH, OR MAINTAIN THE PRIVACY WE TAKE FOR GRANTED. IN OTHER WORDS, WE BELIEVE THAT COMMUNICATIONS POLICY IS A CIVIL RIGHTS ISSUE.

I AM PROUD TO LEND MY VOICE TO THIS MORNINGS SESSION ON PUBLIC INTEREST VIEWS. BEFORE BECOMING A PUBLIC INTEREST ADVOCATE I WAS A LAWYER REPRESENTING BROADCASTERS, AND BEFORE THAT I WAS A COMMERCIAL BROADCASTER. I REPORTED ON FLOODS AND FIRES IN TOLEDO OHIO, PRODUCED LOCAL AND NATIONAL NEWS PROGRAMS IN WASHINGTON D.C., AND I EVEN PRODUCED LOCAL AND NATIONAL PUBLIC AFFAIRS PROGRAMS, SOME EVEN AIRED ON PRIMETIME.

I AM A MEMBER OF A GROWING NUMBER OF FORMER BROADCAST JOURNALISTS CONCERNED ABOUT THE DIRECTION OF THE INDUSTRY WE LOVE. WE KNOW THAT TELEVISION IS NOT A TOASTER WITH PICTURES . . . AND WE KNOW THAT IT CAN BE MORE THAN A MASS ENTERTAINMENT MACHINE MAKING PROFIT FOR A FEW. TELEVISION CAN BE A POWERFUL TOOL FOR DEMOCRACY AND CIVIL SOCIETY . . . THAT IS WHAT I THINK THE PUBLIC INTEREST OBLIGATION OF BROADCASTERS REALLY BOILS DOWN TO.

I WOULD ALSO LIKE TO SHARE WITH YOU MY PARTICULAR PERSPECTIVE AS ONE OF THE VERY FEW MINORITIES ALLOWED TO PRODUCE LOCAL AND NATIONAL NEWS AND PUBLIC AFFAIRS PROGRAMS. LET ME START BY SAYING THAT I OWE MY OPPORTUNITIES TO THE CIVIL RIGHTS MOVEMENT, AND PERHAPS ESPECIALLY TO THE WORK OF A LIVING CIVIL RIGHTS LEGEND, DOCTOR EVERETT C. PARKER OF THE UNITED CHURCH OF CHRIST.

PERMIT ME TO TELL THE STORY. IN MARCH OF 1964 REVEREND PARKER TOOK A GROUP OF IDEALISTIC STUDENTS FROM THE NORTH DOWN TO JACKSON, MISSISSIPPI. THEY BEGAN TO RECORD THE PRACTICES OF THE LOCAL TELEVISION STATIONS THERE, WLBT AND WJTV. THERE THEY FOUND THE RESULT OF AN UNREGULATED MARKET, SOUTHERN STYLE.

THOUGH BLACKS COMPRISED 45 PERCENT OF THE AUDIENCE, THE STATIONS IGNORED THEM. THE WHITE CITIZENS COUNCIL COULD GET ON THE AIR TO EXPRESS ITS OPINIONS, BUT THE LOCAL BLACK MINISTERS COULDN'T BUY TIME. WHAT LOCAL NEWS THERE WAS EITHER IGNORED OR INSULTED THE BLACK COMMUNITY. WHEN THE NETWORKS RAN A DOCUMENTARY ABOUT THE CIVIL RIGHTS MOVEMENT, OR AN INTERVIEW WITH THURGOOD MARSHALL OR MARTIN LUTHER KING THE NETWORK TRANSMISSION WAS REPLACED BY A SIGN THAT SAID NETWORK SIGNAL PROBLEMS.

PARKER JOINED WITH THE LOCAL NAACP AND CHALLENGED THE LICENSE OF THE JACKSON STATIONS. WHILE THE FCC EXPRESSED REGRET AT THE ACTIONS OF THE TELEVISION STATIONS, THEY APPROVED THE LICENSES ANYWAY. AMONG OTHER THINGS THE FCC ARGUED THAT THE LOCAL VIEWERS DID NOT HAVE THE RIGHT TO CHALLENGE THE LICENSE OF THE LOCAL TELEVISION STATIONS.

PARKER THEN TOOK THE FCC TO COURT. IN A THUNDEROUS OPINION WRITTEN BY WARREN BURGER, THE COURT RULED THAT THE FCC FAILED IN ITS DUTY TO PROTECT THE INTEREST OF THE COMMUNITY. BURGER RIGHTLY NOTED THAT BY NOT FULLY AIRING ISSUES OF PUBLIC IMPORTANCE THE STATIONS FAILED BOTH THE BLACK AND THE WHITE CITIZENS OF JACKSON.

I BEGAN THIS STORY BY SAYING THAT I OWE MY CAREER TO THESE CIVIL RIGHTS LEADERS. YOU SEE, ONCE THE COURTS MADE IT CLEAR THAT THE LOCAL STATIONS HAD TO SERVE THE ENTIRE COMMUNITY, EVEN THE BLACKS AND LATINOS AND ASIANS AND WOMEN AND THE DISABLED, THE LOCAL STATIONS BEGAN TO HIRE MORE OF US. SOME OF US ACTUALLY WERE ASSIGNED TO TALK TO THOSE COMMUNITY PEOPLE WHO MIGHT NOT BE FOUND ON THE GOLF COURSE.

I WAS HIRED TO TALK TO SOME OF THESE PEOPLE, AND TO COMPILE THE REPORTS OF ALL THE INTERVIEWS . . . ASCERTAINMENTS . . . AND THEN TO REPORT TO THE FCC AND TO PLACE IN OUR PUBLIC FILE HOW OUR LOCAL CBS AFFILIATE ACTUALLY WENT INTO THE COMMUNITY IT WAS LICENSED TO SERVE, FOUND OUT WHAT THE IMPORTANT LOCAL ISSUES WERE, AND CREATED TV PROGRAMS ABOUT THOSE ISSUES. IMAGINE.

I KNOW COMMUNITY LEADERS FELT EMPOWERED BECAUSE LOCAL STATIONS FINALLY HAD TO LISTEN TO THEM. THIS LED DIRECTLY TO AN INCREASE IN LOCAL PROGRAMMING, MUCH OF IT CHANNELED TO SUNDAY MORNING, BUT SOMETIMES NOT. MY ASCERTAINMENT WORK IN FACT LED TO DOCUMENTARIES I PRODUCED FOR PRIME TIME.

THE BURDEN OF ASCERTAINMENT AND PROGRAM LOG REQUIREMENTS GENERATED THE BENEFIT OF CREATIVE PROGRAMS AND LOYAL ENGAGED VIEWERS. I BELIEVE THE COST OF NOT DOING ASCERTAINMENT IS SIMPLE- MINDED BLOOD AND GUTS NEWS AND ANGRY VIEWERS.

BUT THE REAGAN/FOWLER FCC ELIMINATED ASCERTAINMENTS IN 1984. WITH LITTLE MORE THAN FAITH TO SUPPORT THEIR ARGUMENTS, THEY CLAIMED THAT THE MARKET WOULD PROTECT THE INTEREST OF THE LOCAL COMMUNITIES. THE RESULT HAS BEEN THE DEATH OF A GREAT DEAL OF LOCAL PUBLIC INTEREST PROGRAMMING.

NEWS PROGRAMMING, NON-CONTROVERSIAL, EXCEPT FOR THE VIOLENCE, MAY HAVE INCREASED BUT REPORTS ON ISSUES OF IMPORTANCE TO LOCAL COMMUNITIES IS HARD TO FIND. FOR EXAMPLE, WE JUST HAD AN ELECTION HERE IN THE NATION'S CAPITOL, ISSUES WERE ON THE BALLOT, YOU WOULDN'T KNOW IT BY THE LOCAL NEWS COVERAGE. AND THE SINGLE DIGIT TURNOUT WAS THE RESULT.

IN ADDITION TO THIS HARM TO DEMOCRATIC DELIBERATION AND PARTICIPATION . . . WOMEN, MINORITIES, AND THE DISABLED CONTINUE TO BE BADLY STEREOTYPED AND UNDER-REPRESENTED IN DECISION MAKING POSITIONS IN LOCAL TV.

I COME HOWEVER, NOT TO BELABOR THE OBVIOUS PROBLEMS WITH LOCAL TELEVISION. AS PROFESSOR MINOW SAID 35 YEARS AGO, JUST SIT DOWN IN FRONT OF YOUR TELEVISION SET AND WATCH FOR YOURSELF. NO I DON'T WANT TO WASTE THIS OPPORTUNITY COMPLAINING ABOUT THE PAST OR PRESENT. I COME TO PROPOSE A FUTURE.

AS THE GOVERNMENT PREPARES TO GIVE PUBLIC SPACE TO EXISTING BROADCASTERS THIS COMMITTEE SHOULD RECOMMEND THAT THE BROADCAST LICENSE BE CONDITIONED UPON AT LEAST TWO OBLIGATIONS.

ONE, AT A BARE MINIMUM, AS A START, THE LOCAL BROADCASTER SHOULD BE OBLIGATED TO FIND OUT, RECORD, AND REPORT TO THE FCC WHAT ALL SEGMENTS OF THE LOCAL COMMUNITY ARE INTERESTED IN.

AND, TWO, THE LOCAL STATIONS SHOULD FIND THE DIRECTOR OF THE LOCAL SENIOR CENTER, AND THE HEAD OF THE YWCA, AND THE LOCAL UNION LEADER, AND THE DIRECTOR OF THE LOCAL MEDICAL CLINIC, AND OTHER COMMUNITY LEADERS, AND GIVE THEM THE MICROPHONE. AUTHENTIC COMMUNITY VOICES NEED TO BE GIVEN AN OPPORTUNITY TO SPEAK TO ISSUES OF CONCERN TO THE LOCAL COMMUNITY. THE NATIONAL DIALOGUE ON RACE WILL NOT SUCCEED IF IT IS NOT FIRST A LOCAL DIALOGUE .

LICENSES ARE FREELY GIVEN TO LOCAL STATIONS TO SERVE LOCAL COMMUNITIES, IN EXCHANGE THOSE STATIONS MAKE MILLIONS. COMMUNITY SERVICE CANNOT BE MEASURED IN ADVERTISING REVENUES AND NEILSEN RATINGS. AND TO LET THE LOCAL BROADCASTERS GET AWAY WITH EMPTY CLAIMS OF KNOWING AND SERVING THEIR LOCAL COMMUNITY IS WORSE THAN LETTING THE FOX GUARD THE CHICKEN COOP.

YES, I AM TALKING ABOUT BRINGING BACK THE ASCERTAINMENT REQUIREMENT. THIS IS THE BASELINE, I THINK. AND, YES, I AM TALKING ABOUT FORCING BROADCASTERS TO GET REAL COMMUNITY PEOPLE ON THE AIR TO TALK ABOUT SOMETHING OTHER THAN CRIME. NO, I AM NOT TALKING ABOUT CONTENT REGULATION.

THE NEW DIGITAL, MULTI-CHANNEL ENVIRONMENT AND COMPUTER- BASED INTERACTIVE COMMUNICATIONS TECHNOLOGIES OUGHT TO MAKE IT MUCH EASIER TO ACCOMPLISH THESE THINGS THAN EVER BEFORE.

SERVICE SHOULD IMPROVE FOR THE DISABLED BEYOND CLOSED- CAPTIONING. INCREASED CHANNEL CAPACITY SHOULD CREATE OPPORTUNITIES TO PUT MORE VOICES CAN GET ON THE AIR. BROADCASTERS HAVE PROVEN MARVELOUSLY INVENTIVE WITH THE PROPER INCENTIVES.

AS I SAID EARLIER BROADCAST JOURNALISTS UNDERSTAND THAT TELEVISION IS MORE THAN A TOASTER WITH PICTURES, WE UNDERSTAND THAT IT CAN BE A POWERFUL TOOL FOR DEMOCRATIC DELIBERATION. IT WILL NOT BE THAT TOOL IF ORDINARY CITIZENS ARE NOT EMPOWERED IN THEIR POLITICAL RELATIONSHIP WITH LOCAL BROADCASTERS, AND GIVEN SOME OPPORTUNITY TO TAKE THE MICROPHONE AND SPEAK THEIR MINDS.

AS PROFESSOR SUNSTEIN REMINDS US, WHILE WE PURPORT TO HONOR FREE SPEECH WE HAVE LEFT IT MOSTLY TO A SYSTEM OF UNREGULATED MARKETS. THE FEDERAL GOVERNMENT HAS THE POWER TO CORRECT THIS. UNDER THE FIRST AMENDMENT, WITH REGARD TO BROADCASTING, IT IS THE FREE SPEECH RIGHTS OF CITIZENS WHICH ARE PARAMOUNT, NOT THE FREE SPEECH RIGHTS OF PRIVATE INDUSTRY. THE FREE SPEECH RIGHTS OF VIEWERS IS HARMED IF THE GOVERNMENT CONTINUES TO LEAVE DIVERSITY OF EXPRESSION TO THE PREROGATIVE OF BROADCASTERS.

IF SPECTRUM IS NO LONGER SCARCE SURELY THERE IS ROOM FOR THE LOCAL COMMUNITY ACTIVIST TO FIND A BROADCAST PLATFORM. IF SPECTRUM IS SCARCE, AS I BELIEVE IT IS, THE BROADCASTER SHOULD BE OBLIGATED TO PUT A PRIORITY ON CREATING A VITAL PLACE FOR PUBLIC DISCUSSION, EVEN AT THE COST OF MAKING POTENTIAL ADVERTISERS UNCOMFORTABLE.

THAT MEANS SETTING ASIDE TIME PERIODS WHERE LARGE NUMBERS OF VIEWERS ARE WATCHING, DEVOTING PRODUCTION TIME AND CREATIVE PRODUCERS TO MAKE PROGRAMS WATCHABLE, AND PROMOTING THOSE PROGRAMS.

THE BROADCASTERS WILL FOLLOW THIS PANEL AND MOAN ABOUT THE GREAT COSTS OF FREE TIME TO CANDIDATES, AND THE NEEDLESS BURDEN OF INTERVIEWING COMMUNITY LEADERS, AND THE IMPOSSIBILITY OF MAKING INTERESTING PROGRAMS BY PROVIDING A PLATFORM TO LOCAL LEADERS.

REMEMBER WHAT NEWTON MINOW SAID IN 1961: NEVER HAVE SO FEW OWED SO MUCH TO SO MANY. IT WAS TRUE IN 1961, IT IS DOUBLY TRUE TODAY. AND THE DEBT WILL GROW WHEN BROADCASTERS GET EVEN MORE PUBLIC SPACE TOMORROW.