ADVISORY COMMITTEE ON PUBLIC INTEREST OBLIGATIONS OF DIGITAL TELEVISION BROADCASTERS

CO-CHAIRS: Norman Ornstein; Leslie Moonves

SUMMARY MINUTES

(Meeting transcript available on Committee website, www.ntia.doc.gov/pubintadvcom/pubint.htm)

TIME and PLACE: March 2, 1998, 9:08 a.m., at the University of Southern California Annenberg School for Communication, Los Angeles, CA

PURPOSE: Fourth meeting held to discuss independent programming and access in the digital age and political broadcasting, and to begin deliberating on the Committee's recommendations.

ESTIMATED SIZE OF AUDIENCE: 50 in the Annenberg School Auditorium

COMMITTEE MEMBERS PRESENT:

Leslie Moonves, Co-Chair
President
CBS Television

Norman J. Ornstein, Co-Chair
Resident Scholar
American Enterprise Institute

Charles Benton
Chairman and CEO
Benton Foundation
Public Media, Inc.

Frank M. Blythe
Executive Director
Native American Public Telecommunications, Inc.

Harold C. Crump
Vice President
Hubbard Broadcasting, Inc.

Frank H. Cruz
Vice Chairman
Corporation for Public Broadcasting

Robert W. Decherd
CEO, Chairman of the Board, and President
A. H. Belo Corporation

William F. Duhamel, Ph.D.
President
Duhamel Broadcasting Enterprises

Robert D. Glaser
Chairman and CEO
RealNetworks, Inc.

James Fletcher Goodmon
President and CEO
Capitol Broadcasting Company, Inc.

Paul A. La Camera
President and General Manager
WCVB-TV

Richard Masur
President
Screen Actors Guild

Jose Luiz Ruiz
Executive Director
National Latino Communications Center

Shelby Schuck Scott
President
American Federation of Television and Radio Artists

Gigi B. Sohn
Executive Director
Media Access Project

Karen Peltz Strauss
Legal Counsel for Telecommunications Policy
National Association of the Deaf

Cass R. Sunstein
Karl N. Llewellyn Distinguished Service Professor
University of Chicago Law School

Lois Jean White
President
National Parent Teacher Association

James Yee
Executive Director
Independent Television Service

Karen M. Edwards, Designated Federal Officer

Anne Stauffer, Committee Liaison Officer

The following brief summary of the meeting may be supplemented by the official meeting transcript.

SUMMARY OF GENERAL MEETING

The fourth meeting of the Advisory Committee on Public Interest Obligations of Digital Television Broadcasters (Advisory Committee or PIAC) began at 9:08 a.m. on Monday, March 2, 1998, with welcoming remarks from Geoffrey Cowan, Dean of the Annenberg School for Communication, as well as brief remarks from the Co-Chairs.

Mr. Leslie Moonves, President of CBS Television and Co-Chair of the Advisory Committee, convened the meeting and welcomed the members to Los Angeles.

Based on unofficial information from the White House, Co-Chair Norman Ornstein, Resident Scholar at the American Enterprise Institute, indicated that the Committee would likely receive an extension of its reporting deadline.

Mr. Ornstein also confirmed the dates for the Committee's next two meetings:

Tuesday, April 14 in Washington, DC

Monday, June 8, in Minneapolis, MN

Committee member Harold Crump shared the results of a survey of the attitudes and opinions of consumers toward digital television. This survey was commissioned by Hubbard Broadcasting and conducted by Frank N. Magid Associates. Mr. Crump reported the major research finding: that it will be very difficult to persuade consumers to purchase digital television sets. Mr. Crump cited recent projections that set manufacturers will sell approximately 3.5 million digital sets between 1999 and 2003, as compared with current sales of 24 million analog sets per year.

PANEL: Independent Programming and Access in the Digital Age

This programming panel was organized by Committee members Gigi Sohn, Frank Cruz, and Jose Luis Ruiz, and moderated by James Yee. The panelists were Kelley Carpenter, Director of the Southern California Indian Center; Gerald Isenberg, Chairman of the Caucus for Producers, Writers & Directors and Executive Director of Electronic Media Programs at the USC Annenberg School of Cinema-Television; Marian Rees of Marian Rees Associates, Inc., and Co-chair of the National Council for Families and Education; and Herbert Chao Gunther, President and Executive Director of the Public Media Center.

Testimony of Kelley Carpenter

Kelley Carpenter focused her remarks on the concerns of local communities about their lack of access to major broadcast networks. She first cited the influence that television broadcasters have on national and international viewers and noted that technological developments will increase the power of broadcasting to inspire, educate and galvanize the viewing population.

Ms. Carpenter explained that community development professionals are frustrated because of their limited access to broadcast outlets that reach large numbers of viewers in their communities.

Ms. Carpenter urged the Committee to require broadcasters to:

• form community development panels within networks to accept, evaluate, and produce story ideas submitted by local community organizations;
• package these community stories as weekly, one-hour documentaries; and
• substitute these documentaries on one day each week for one of the two hours of local news programming aired by many networks.

Testimony of Gerald Isenberg

Gerald Isenberg addressed the Committee in his role as Chairman of the Caucus of Producers, Writers and Directors, a membership organization of 200 television professionals selected because of their creative achievements. The primary mission of the Caucus is to protect the creative rights of its members and to help fashion an industry environment conducive to creativity.

Mr. Isenberg discussed the television creative community's concerns regarding access and diversity of voices on digital television. He argued that the environment for independent creative voices in free television has never been worse. Pointing to the growing concentration of production and distribution activities in the hands of the owners of broadcast and cable services, Mr. Isenberg estimated that 90 percent of prime-time programming aired by the six national networks is owned by those networks.

Mr. Isenberg argued that the viewing public loses from lack of diversity and concentration of ownership because it negatively affects the quality of television programming. He gave several examples of movies and television series that would not have been produced but for the tenacity of the independent producer.

Mr. Isenberg urged the Committee to step in where the marketplace had failed to protect diversity of voices and independent access. He proposed that broadcast networks be required to air a majority of movie programming produced by non-broadcast or cable owners.

Testimony of Marian Rees

Marian Rees provided the perspective of the entrepreneurial independent producer. Ms. Rees argued that the challenge of digital television is to secure the opportunity to produce programming that will reach diverse viewers. She explained that independence is integral to achieving diversity because it gives the producer the ability to move about freely in the marketplace, to find an outlet for his work that will assure its creative integrity.

Ms. Rees argued that without the efforts of independent programmers who are not employed by the network some alternative programs would never be made or aired and described her personal experience with this phenomenon.

Ms. Rees urged the Committee and broadcasters to balance the explosion of opportunities created by digital television with a significant commitment to the public interest. Specifically, she suggested that a content-neutral regulatory mechanism be established to allow independent producers access to digital television airwaves during prime time.

Testimony of Herb Chao Gunther

Herb Chao Gunther shared his concerns about the commitment of commercial and non-commercial broadcasters to the public interest. He argued that the current system of viewing television as a sales tool had left entire communities and ideologies unrepresented.

Mr. Gunther urged broadcasters to reexamine their commitment to their role as public trustees. He challenged them to set and achieve higher standards of public access and diversity of viewpoints.

Mr. Gunther also proposed that the Committee restate and reformulate the public interest standard for the digital age and address the commercialization of public broadcasting.

A brief question and answer period followed these presentations. The major issues raised during that session include a specific call for local access time, the desire for access to broadcast outlets by diverse groups of Americans, and the possible explosion of interactive programming in the digital age.

PANEL: Political broadcasting

The panel on political broadcasting was moderated by Committee member Cass Sunstein. The presenters were Tracy A. Westen, President of the Center for Governmental Studies; P. Cameron DeVore, Senior Partner at Davis Wright Tremaine, LLP; and Paul Taylor, Executive Director of The Free TV for Straight Talk Coalition.

Testimony of Tracy Westen

Tracy Westen characterized the advent of digital television as an opportunity to rethink the role of television in American democracy. He reasoned that television's ability to inform the electorate has not been realized, in part, because its costs are growing beyond the reach of many candidates and the price candidates must pay to raise that money distorts the political system. In fact, Mr. Westen estimated that between 1976 and 1996, the amount of money spent by all federal, state and local candidates in the United States increased 2600 percent to 4.2 billion.

Mr. Westen argued that the FCC has the legal authority to mandate free air time under both its current jurisdiction and the First Amendment, but also highlighted the advantages of a broadcast industry-adopted solution. He also suggested that specific free air time proposals should take formatting, cost burdens on licensees, and the risk of boring the audience into consideration.

Mr. Westen urged the Committee to mix practicality and vision and then articulated seven principles for the Committee to consider:

• Some free broadcast time for political candidates is essential to improving the integrity of elections; it would increase the amount of electoral information available to the public and allow both affluent and poor candidates to present their ideas.
• Therefore, the Committee need not wait for comprehensive campaign finance reform before proposing a free air time plan. Free air time is important even without such reform because it would create a minimum level playing field, help challengers compete, enhance the overall dialogue in the campaign, and help voters understand the issues.
• Free air time proposals should include format restrictions to encourage a more robust debate and engage audience interest. Candidates could be required to appear in at least 75 percent of their time slots. Some alternative formats might include mini-debates with candidates responding to questions from random voters, or airing all spots on a particular topic during a given day or week.
• The Committee's discussions of free air time should include candidates at all levels, including state and local candidates where applicable. This dialogue should focus on how to prevent broadcasters from being overwhelmed by free time requests--for example, a system where candidates at the federal, state, and local level receive 13 minutes per day for the 60 days before an election.
• Limited amounts of free broadcast time should be available on both digital and analog television to allow those who cannot afford to purchase digital television sets to benefit.
• Reasonable amounts of free time and reasonable format restrictions will not violate the First Amendment rights of broadcasters. In an interference-based medium, the government can adopt rules to share time.
• Policymakers should try to minimize, wherever possible, the costs and burden of free air time on the broadcast industry. For example, the lowest unit rate might be repealed, equal time obligations could be suspended in elections in which candidates receive free time, tax deductions for the cost of free time could apply, and must-carry of digital signals on cable television might be considered as a partial offset.

Mr. Westen urged the broadcast industry to devise and test alternative and creative solutions. He argued that the continuation of the Nation's democratic form of government based on information is at stake.

Testimony of P. Cameron DeVore

Cameron DeVore discussed the constitutionality of proposals to provide free air time to political candidates. He outlined the current political landscape of the free air time debate and characterized the concept as a "vestige or remaining isolated proposal" of the McCain-Feingold campaign finance reform package. He concluded that there is no constitutionally-respectable rationale for the concept and argued that the central meaning of the First Amendment is offended by these plans.

Mr. DeVore provided the members a summary of his arguments, titled "The Unconstitutionality of Free Air Time for Political Candidates." He also recommended papers on the same topic prepared by Professor Rodney Smolla of the Marshall-Wythe School of Law at the College of William and Mary (Free Air Time and the First Amendment published by The Media Institute) and Professor Lillian BeVier of the University of Virginia Law School (Is Free TV for Federal Candidates Constitutional? published by the American Enterprise Institute).

Mr. DeVore characterized free air time proposals as a mandate to broadcasters to publish and broadcast federally selected and defined core political speech. He argued that such a direct mandate is subject to the highest form of constitutional scrutiny because it implicates two core First Amendment principles: the First Amendment wall against government compelling the media to print or broadcast certain things and the prohibition of impermissible government preferences for a particular class of speech based on its content.

Mr. DeVore also countered what he labeled as the four most common arguments supporting the constitutionality of free air time. He argued that

• free air time for political candidates is content regulation and that, in response to a constitutional challenge, the government would be unable to prove that there are no alternatives with a lesser impact on speech;
• given the proliferation of outlets and spectrum compression, scarcity is not a valid rationale for imposing free air time obligations on broadcasters; there are many ways for political voices to be heard;
• there is no nexus between curing the campaign system in this country and regulating frequencies; and
• the First Amendment is not a source of affirmative authority for the government to provide for or sponsor any particular kind of speech, even if the goal is to level the playing field and promote diversity of voices.

Testimony of Paul Taylor

Paul Taylor focused his remarks on free air time solutions. He concluded that a legislative solution is unlikely given the failure of campaign finance reform legislation in the 105^th Congress and the lack of incentives for lawmakers to change the current system of political advertising. He acknowledged that free air time would work best in the context of a broader campaign finance reform solution, but insisted that it would prove invaluable on its own.

Mr. Taylor argued that free air time is not a last "vestige" but an important first step toward achieving the goals of making political races more competitive, reducing the role of money, and giving individuals more access to the system.

Mr. Taylor then exposed two conceptually-distinct models of free air time, both of which he suggested would significantly improve the current system:

• a government mandate to broadcasters to provide candidates or parties free broadcast time with minimal editorial intrusion; and
• a voluntary solution devised by the broadcast industry to improve coverage of political campaigns, including debates and interview programs, and to increase news coverage of politics and government.

Mr. Taylor emphasized the importance of improved news coverage. He shared the fundamental finding of a content analysis of local news programs in eight U.S. television markets: "coverage of government affairs, once a mainstay of local television news, now occupies just 15 percent of the news during an average program [excluding weather and sports]."

Mr. Taylor urged the Committee to send a signal to broadcasters to use their creativity to get candidates on the air, to provide political information to the broadest number of citizens, and to test the mechanisms they devise.

A brief question and answer period followed these presentations.

Committee Deliberations

The Committee began deliberating on its recommendations. At the request of the Co-Chairs, each Committee member described his or her expectations about the Committee's final product.

Public Comment, Questions and Answers

Mr. Moonves opened the floor to public comment. James Peterson of Skywriter Communications and the America Voter Coalition urged the Committee to remember that news is at the heart of the public interest. He asked the Committee to seek the input of journalists on the relationship between meaningful news reports and civic and democratic participation.

Matthew Sptizer, a Professor of Law at the University of Southern California and Director of the USC Communications Law and Policy Center, also addressed the Committee. Mr. Sptizer suggested that the First Amendment would not allow the kind of oversight of news content that the previous commenter sought. Mr. Spitzer also argued that a decision by the the Supreme Court to jettison the scarcity rationale for broadcast regulation would imperil the justification underlying the federal government's ownership of spectrum and its allocation to broadcasters.

Mr. Moonves thanked the Committee members and adjourned the meeting at 4:22 p.m.

Meeting Materials (available separately)

Executive Order 13038 (3/97)

White House Press Release announcing the establishment of the Committee (4/97)

Charter of the Advisory Committee (4/97)

Radio Address by the President announcing the Co-Chairs (6/97)

Amendment to Executive Order 13038 (10/97)

White House Press Release announcing the members of the Committee (10/22/97)

White House Press Release announcing the appointment of Jose Luis Ruiz (12/4/97)

List of members of the Committee

Biographies of members of the Committee

Secretariat contact information

Guidelines for public comment

Future meeting dates

Meeting agenda

Meeting transcript

Biographies of the panelists

Remarks of Jerry Isenberg, Chairman, Caucus for Producers

Remarks of Kelley L. Carpenter, Chairman, Southern California Indian Center

Remarks of Marian Rees, Marian Rees

Associates, Inc. and Co-Chair, National Council for Families and Television

The Unconstitutionality of Federally Mandated "Free Air Time", A Summary Prepared for The National Association of Broadcasters, submitted by P. Cameron DeVore, Senior Partner, Davis Wright Tremaine LLP

ATSC DTV Format Comparison, submitted by Jim Goodmon, President and CEO, Capitol Broadcasting Company

Public Interest Obligations of Cable TV and Direct Broadcast Satellite Operators, Media Access Project

Public comment submissions

Submissions by electronic mail (January 14 to February 24, 1998)

Free Air Time for Candidates and the First Amendment, authored by Rodney A. Smolla and submitted by The Media Institute

Public Interest Obligations and First Principles, authored by Laurence H. Winer and submitted by The Media Institute

Toward a New Approach to Public Interest Regulation of Digital Broadcasting: A Preliminary Report of The Aspen Institute Working Group on Digital Broadcasting and the Public Interest, authored by Angela Campbell

CERTIFICATION:

(Signed)

Leslie Moonves, Co-Chair

Norman Ornstein, Co-Chair