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OPEN MEETING OF
THE ADVISORY COMMITTEE ON PUBLIC INTEREST OBLIGATIONS
OF DIGITAL TELEVISION BROADCASTERS
Monday, November 9, 1998
The Ronald Reagan Building and
International Trade Center
Polaris Room, Concourse Level
1300 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
Transcript of the afternoon session
(Click here to view part one
of the morning session)
(Click here to view part two of the morning
session)
AFTERNOON SESSION
(2:18 p.m.)
COMMITTEE DELIBERATIONS - CONTINUED
CO-CHAIR ORNSTEIN: We will begin this process,
I think, this afternoon by trying to, as quickly as we can
resolve the remaining issues on this question of minimum
public interest requirements.
Harold?
MR. CRUMP: Might I make a suggestion to the
group, that all this minimum public interest requirements
that we have written under section number 4, that we would
agree that we would accept the verbiage as written here in
this presentation with the exception of the last sentence
of paragraph 2, where we talk about including appendix B,
but instead that we eliminate appendix B and in its place
we put another sentence that would incorporate the titles
of all the various paragraphs as they are lettered in
appendix B and leaving out those titles which are
addressed in other portions of our report, and that we
would include them, saying that these titles are what we
were talking about, in the proper verbiage here, as being
where the minimum standards should be.
That's the suggestion.
MS. SCOTT: I'm not opposed to that idea. On
the sentence, I don't know if you mean literally one
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sentence.
MR. CRUMP: No, however many sentences it takes
to get them all in. But I wouldn't think -- I think we
can get them all in in one.
MS. SCOTT: I'd leave that to the drafters of
the report, but I would like -- some of them might need a
little explanation of just what we mean. I'm not saying
you use all the verbiage that's here, but I think we might
have to explain.
CO-CHAIR ORNSTEIN: So the suggestion is that we
incorporate into the body of the report brief explanations
of these areas, that we think that minimum requirements
should include community outreach and a little description
of that, accountability and so on, just to be sure.
MR. CRUMP: As long as we don't -- not to
address those topics which are addressed in other
sections. Why double up here again, just like the
multicasting.
MS. CHARREN: I can't really fight the
description with that sentence until I read the sentence.
CO-CHAIR ORNSTEIN: Sure.
MS. CHARREN: But I'd like to put forth an
alternate proposal, that the mandatory requirements minus
the last page in what's called attachment A I would like
to see stay just as it is, including anything that is also
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discussed in the report, since I feel that listing it as a
mandatory minimum is different than just having it in the
body of the report.
But I'm willing to give up that last page as
long as we keep the other stuff as is.
CO-CHAIR ORNSTEIN: Richard, then Karen.
MR. MASUR: I just wanted to point out, as was
pointed out earlier, there are two, at least two, sections
that really don't conform to what's in the report.
MS. CHARREN: Oh, I would fix that.
MR. MASUR: And if I may, one of them which
doesn't conform is the free political programming, which
as it's stated in the report probably doesn't belong in
the mandatory minimum requirements at this point, because
in the report we're making an effort to link it to a much
broader action by Congress, and I would suggest possibly
letting that out.
The other thing is, on the multicasting, if that
language can be made to conform in a concise way then I
would support that.
MS. CHARREN: If there's some way we could get
in the idea that linkage, that if there is the, blah,
blah, blah, then the broadcaster should have to do that.
Is it enough to leave it in the report?
MR. MASUR: I think that's absolutely apparent
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in what we've asked for.
MS. CHARREN: Okay.
MR. RUIZ: And therefore, if Congress does take
action that would be part of the action that they take, I
would think.
MS. CHARREN: I certainly think you have to keep
the report from saying two different things.
MR. BENTON: Just on this last point here,
before we find closure on this I think we ought to discuss
section 6 here, the political discourse, and then come
back to this. I think the exchange between Barry and Les
this morning on the political discourse, the challenge --
CO-CHAIR MOONVES: Speak into the mike, please.
MR. BENTON: I think the challenge, the
discussion at the very end of this morning's meeting
between you and Barry on the political discourse thing was
wonderful, and we should not -- we should revisit the free
political programming on these minimum standards after
that discussion because it needs a larger context. What
you all were saying this morning I think was very
exciting.
So let's come back to it.
CO-CHAIR MOONVES: Once again, Peggy, I do have
to comment, to disagree with Mr. Diller, and he's not here
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right now to defend himself, although he did very well
this morning. I have a problem with the redundancy of
things that are covered in other areas and I feel very
strongly they should not be included in the minimum
standards, which we dealt with, such as accountability,
which we dealt with, such as multicasting, which we've
dealt with, such as diversity, which we are going to deal
with, such as free political programming, which is going
to get its own area in our report.
Now, once again, I think there should be a very
minor number of, in terms of length, not in terms of
import, on what we deal with as an appendix to this. So I
respectfully disagree with putting that whole thing in.
Once again, as you recall -- and I will repeat
myself -- part of this is a give and take. To agree to
what's here, I need something in return.
MR. MASUR: Can I ask a question, Les?
CO-CHAIR MOONVES: Yes.
MR. MASUR: Is your objection to having it
restated in one combined way, does that have to do with
the fact that it may not be clear in the body here --
CO-CHAIR MOONVES: No.
MR. RUIZ: -- that it's a mandate?
CO-CHAIR MOONVES: Not at all.
Richard, you have to understand something. Just
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the words "minimum public interest requirement" are
lightning rods. We will have included political
discourse. We will have included accountability. To list
this under the demand that broadcasters must have is
something that will really pour salt on the wounds.
I'm trying to put a compromise here.
MR. MASUR: I'm trying to get this straight for
myself. So you're suggesting that some of these areas
like accountability not be mandated?
CO-CHAIR MOONVES: They are mandated in another
part.
MS. SOHN: I'm fine with removing the
duplication if we make clear recommendations, if indeed
that is the consensus, on accountability that we want it
to be a mandate. If indeed we want to have some extra
multiplexing obligation, if that's what we decide, as long
as it's made clear in the body it doesn't need to be here
as well.
MS. STRAUSS: I think that part of the confusion
here is the fact that section four is entitled "Minimum
Public Interest Requirements" as if those are the only
public interest requirements. In fact, what I hear
everybody saying is that there are public interest
requirements or, to use the executive order term,
obligations elsewhere in the report.
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Maybe what we should be doing is coordinating
what's contained in the appendix that's already in the
report, making sure that there's no duplicity, and then
having a section that says "Other minimum public interest"
--
CO-CHAIR ORNSTEIN: Duplication.
MR. DUHAMEL: Duplication, not duplicity.
MS. STRAUSS: I'm sorry, duplication. I'm
sorry. Freudian slip.
But do you understand what I'm saying? It seems
to me that we're just saying -- some of us are saying --
what you're saying, Peggy, is put it in the mandated
minimum requirements because it's mandated, and then what
you're saying is, well, it already is mandated elsewhere.
CO-CHAIR MOONVES: Karen, I will not sign onto
this if it enables every other section to put further
handcuffs on broadcasters. I'm trying to compromise, but
if you're saying by this that we're going to strengthen
the language in all the other paragraphs I'm going to have
a problem with that, which is why I won't vote on anything
until I see what it actually says before I sign my name on
something.
That's the problem. I am trying to deal with a
compromise. I am trying to agree on something called
"minimum public interest requirements," which by the way
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will probably make me a pariah in the broadcasting
community. I'm willing to accept that in exchange for
certain things.
If you can't give it to me that's fine and maybe
Gigi's right, we will write a dissenting report.
CO-CHAIR ORNSTEIN: Yes, Charles.
MR. BENTON: I have a new thought here. Cass
Sunstein in his I think very thoughtful report, point
number one -- maybe this is a way out because we're now
struggling with the form, I think, of this more than the
substance. His point number one, which I think is a great
idea, says -- maybe this is already contemplated, but
wouldn't it be helpful to have in bold letters a one-
sentence or two-sentence summary of recommendations for a
short overview and also before each discussion of each
recommendation.
That is, I would suggest we have a short summary
of our recommendations in bold as a separate document and
also that each recommendation is preceded by a short
summary in the body of the report. As it stands, the
recommendations are a bit hard to follow and the reader
has to work to get the specific sense of what we're
recommending.
That I think is a very good idea, and maybe by
doing this it would help to highlight what we are
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recommending, and maybe in Cass' form suggestion here,
which is a good suggestion for the board in general, we
can move beyond this impasse of form, because what I hear,
Les, what I've been hearing you say, Les, which maybe I'm
-- what I'm hearing you suggest, not say, but the
implication of what your stance is: I don't mind if this
is sort of throughout the report and in general terms, but
I don't want to have a two-page summary that can be picked
up by the regulators, by the FCC, by the consumer folks,
the public interest community, etcetera, to beat us over
the head with.
This does sound like the industry in general,
quite apart from your enlightened leadership of our group.
CO-CHAIR MOONVES: You know what, Charles. It
doesn't make me feel better to say that we are good
broadcasters and they are bad broadcasters. That doesn't
make me feel any better.
CO-CHAIR ORNSTEIN: Let me frame this a
different way. I understand very much what Les is saying.
The whole concept of mandate here is a highly explosive
concept. We are making a huge step by recommending
mandatory minimum requirements, period. We need to be
very careful about our language to make sure that we can
maintain our breadth here.
Some of these areas don't belong here, frankly.
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Diversity, we are not recommending mandates here. We
can't recommend mandates, for a host of reasons. In fact,
what we have in this suggestion is encouraging the FCC and
encouraging broadcasters. So this doesn't belong here.
We will have a separate section on diversity.
The areas of lowest unit rate and issue
advertising, I resonate to these. But frankly, these are
not minimum requirements that we're building in here.
They're areas that we address elsewhere. They don't
particularly belong here.
The same in many ways is true of multicasting as
a separate area. Some of these others, even where there
may be some overlap but where we're talking about
distinctions between mandates and suggestions, and even
where we may have disagreements about which way we ought
to go, make more sense.
So we need to narrow this down anyhow, because
in fact some of the areas that are in here don't really
belong under mandated minimum requirements to begin with.
Then the question becomes, if people understand
or agree with that, how can we best frame this so that we
make it clear what it is that we're after. My suggestion,
Les, would be that we go through and clean that up in that
fashion and then take this section without any specific
numbers and include it as an appendix, with an addition,
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if it's desirable, that says: There are some who think
either that these areas or who believe that getting very
specific, if this involves setting out specific numbers,
is simply not the right way to go.
If it's there in an appendix and what we have in
the body of the report is what we have now, which is what
everybody has agreed to, how would that satisfy you?
CO-CHAIR MOONVES: I think I'm fine, depending
on the wording of it. But it would be necessary to
mention in the body of the report, this is what the
appendix is --
CO-CHAIR ORNSTEIN: Yes.
CO-CHAIR MOONVES: -- there are people who
disagree with it, there are people who agree with it,
there are people what want more, there are people who want
less. And people can feel free to write something that
does mention that.
CO-CHAIR ORNSTEIN: Yes.
How does that sit with people? Okay.
MS. CHARREN: Depending on what it says, it sits
fine.
CO-CHAIR ORNSTEIN: Obviously it has to depend.
If the concept fits, we will immediately move to create
language.
MR. DUHAMEL: Let me ask. Before we called it
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"minimum public interest standards" and Cass in his letter
calls them "standards" rather than "requirements."
"Standards" would, I'll tell you, go a long way towards
making life easier in the broadcast community.
CO-CHAIR ORNSTEIN: I don't care if we change
the word to "standards." Fine.
MR. DUHAMEL: "Requirements" is a word --
CO-CHAIR ORNSTEIN: That's done. Now, I'm glad
we resolved that issue.
MR. DUHAMEL: Can I just, one other thing. On
the public affairs programming, this is where it says that
public affairs and news doesn't count. Remember when Gigi
was talking about her checkoff list this morning. This
one here, that's where the problem is.
CO-CHAIR ORNSTEIN: In the section on minimum
public interest standards.
MS. CHARREN: Would you read it? Read it.
MR. DUHAMEL: It's paragraph D, public affairs
programming: "Each broadcast station also should be
required to devote a minimum amount of time to public
affairs programming with an emphasis on local issues and
needs." The one I object to is: "Segments within a
regularly scheduled newscast should not be counted toward
the minimum time requirements for public affairs
programming."
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That's the point that I keep making.
CO-CHAIR MOONVES: Well, by the way that should
be removed, however, now that there are a number of PSA's
that we're not specifying. You know, I also think the
time periods should be spelled out. It's going to depend
on how all this is worded on every one of these. We're
not going to put it on a prime time show at 9:00 o'clock.
MR. CRUMP: If I could butt in here just for a
moment here. I want to agree with Bill. If you're not
going to be able to count your news, where that's where
you're doing your public service and you're doing it on
purpose, and you're doing it in order that not only you'd
have a good news program, but from the standpoint of
delivering the information to the public, you're putting
it in the programming that gets the highest audience, it
looks like we're shooting ourselves in the foot to knock
it out.
MR. MASUR: Is this a misstatement possibly? Is
the intention of this sentence to say -- well, frankly, I
don't understand it in the context in which it's written.
MR. GOODMON: We talked about this a long time
and we couldn't -- there are some stations that don't do
news, and the idea here is that a particular effort be
made to produce local public affairs programming and that
it run in various day parts. And there are some stations
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that don't do news.
MR. CRUMP: Well, those stations that don't do
news, this doesn't hurt them at all. They've got to do
other programming then.
MR. GOODMON: That was a -- we talked about that
a long time as, what we're trying to do here is get some
public affairs programming in separate times.
MR. MASUR: I guess the question I'm getting to
--
CO-CHAIR ORNSTEIN: I think it's very easy to
change this section.
MS. CHARREN: I have a question. When you were
discussing this, were you considering public interest
programming -- and for you, too -- public interest
programming within the news as different from the newscast
as public interest programming?
MR. DUHAMEL: But there are segments that are
embedded within the newscast.
MS. CHARREN: And that's the problem with this
thing. It's a little bit of a definitional problem. You
don't want to say if you do a newscast that's your half
hour public service. Or do you want to say?
MR. DUHAMEL: No, no. But do I have a portion
of it?
MS. CHARREN: Yes, certainly, it seems to me
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this should be one. You know, it's hard, because it's
content-sensitive, to write that so it's obvious that
that's what you're talking about.
CO-CHAIR ORNSTEIN: But I don't think we even
need to get to that level. We're talking about the
recommendation for a requirement in public affairs
programming. We don't want to suggest that if you do the
news that anything you do within the news doesn't count.
MS. CHARREN: Right.
CO-CHAIR ORNSTEIN: We don't need to start
getting into the details of what within that counts or
doesn't count. That's somebody else's job.
MR. GOODMON: I agree with that. The question
that came up was could you fulfil your entire public
service affairs programming commitment with news segments,
and we sort of think, wait a minute, it ought to be a
little bit more than that, it ought to be one public
affairs program. So we didn't know what to -- that's the
reason for it.
MR. BENTON: Just to bring some facts to the
table from the most recent report about news, in general
the analysis is that 39 percent of the news is on crime,
mostly violent crime, 45 percent is on sports, weather,
and commercials, leaving 15 or 16 percent for everything
else.
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CO-CHAIR MOONVES: What is this, local news,
network news? What is it?
MR. BENTON: This is local news.
CO-CHAIR ORNSTEIN: Local news. Let's not get
into a debate now over content of local news.
MR. CRUMP: Well, Charles is on our side,
though. He points out that all of that wouldn't be
counted, so therefore you certainly should be able to
count those portions that you do that fall under this.
Thank you, Charles.
CO-CHAIR ORNSTEIN: Right, I don't think any of
us disagree that if you do good public affairs
programming, do any public affairs programming in the
context of a news show, that counts. We all agree with
that.
MS. CHARREN: I agree with that.
CO-CHAIR ORNSTEIN: Okay, let's move on.
CO-CHAIR MOONVES: Rob, you wanted to talk for a
moment about datacasting. You have a moment.
MR. GLASER: I think probably the first person
to talk with on this would be Charles, because Charles
actually wrote some things in his memo that he sent out.
Why don't you start and then I'll chime in after with
regard to sort of the notion of how much we treat
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datacasting and why it might be a separate beast. Rather
than me restating your words, why don't you start.
MR. BENTON: No, please. You are the expert. I
was coming in with rather obvious stuff in my memo.
MR. GLASER: The general point is, in a digital
spectrum world we have the ability collectively and
broadcasters have the specific mandate to broadcast zeros
and ones that are designed to be video or zeros and ones
that are designed to be interpreted as zeros and ones for
an incredibly broad range of purposes, be it sports
scores, emergency weather information, textbooks,
electronic textbooks -- anything you can possibly imagine.
There is no public policy or public interest
standard or regulatory regime or even sort of discussion
of any kind of what we ought to try to do as a society
with that capability. It's not obvious to me, given that
it's such a broad thing, what we would do as a committee,
without spending dozens and dozens of hours and having
lots of witnesses discuss all the different ways that this
can be used.
But I believe, as I think some other folks do,
that we're missing a substantial opportunity by not
calling out in a much stronger way than the report does
that, insofar as this is a data delivery medium, that is
using public spectrum, there is an affirmative public
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interest obligation to think through what the public
interest uses of data broadcasting ought to be and what
kind of provisions should be made for that data
broadcasting.
That's a fairly vague formulation, and if we
talk about specific applications, like emergency weather
information or educational information, I think we could
probably generate a level of excitement or enthusiasm.
My general proposal would be that, rather than
having a conversation at this abstract level, a few of us
very quickly, in the next couple of days, try to put
together a section that addresses the public interest data
broadcasting opportunity and needs as one of the
recommendation sections of the report. And I apologize
for missing the previous meeting, which would have been
the most logical time to make that broad a suggestion.
But that's something that I feel strongly about and I know
from Charles' letter he does as well, and perhaps others
do.
MR. BENTON: I'd like to second that and
volunteer to work with Rob on the datacasting section, if
that's okay with you.
CO-CHAIR ORNSTEIN: Yes, absolutely. And we
reserve the right to review the document that you submit.
MR. BENTON: Of course, please.
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CO-CHAIR ORNSTEIN: That would be terrific. And
obviously, the sooner you can do it so that we can
circulate it to everybody, the better. But it's going to
have to be within the next three or four days.
MR. GLASER: Right, that's fine. Good.
CO-CHAIR ORNSTEIN: The next two days, Karen is
saying.
MR. GLASER: Are there others on the committee
who would work with Charles and myself on this?
CO-CHAIR ORNSTEIN: Yes, we'll take any
volunteers to work on the datacasting section. I believe
this is very important. Those of us who saw the PBS
demonstration this morning, it becomes even more clear
that one of the major advances in digital broadcasting is
the tremendous opportunities that are going to be
available for datacasting in combination with the
broadcasting, and we have to address this in a significant
way.
Of course, Les and I will be happy to --
MS. CHARREN: I don't mind looking at it before
it comes to the committee in terms of the educational
component.
MR. GLASER: Given the rate at which we're
moving, we may well pull you in on that in terms of the
educational implications, Peggy. That's great.
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CO-CHAIR ORNSTEIN: Good idea, and why don't you
take the lead on this, Rob, if you would.
CO-CHAIR MOONVES: We look forward to seeing
your report, Rob.
This morning I gave you a discussion on the
diversity that we would like to include in the report.
MR. CRUZ: Are we through with 4?
CO-CHAIR MOONVES: Yes.
MR. CRUZ: What are we going to do with the
must-carry part, which is the last two paragraphs of that
number 4?
CO-CHAIR MOONVES: I don't think we should deal
with must-carry.
CO-CHAIR ORNSTEIN: Well, let's --
CO-CHAIR MOONVES: We can talk about it. I
would like to remove it.
MR. CRUZ: It's the last two paragraphs of page
8 and 9.
CO-CHAIR MOONVES: Yes.
MR. RUIZ: Les.
CO-CHAIR MOONVES: Yes.
MR. RUIZ: I didn't get that paper. Can you fax
it to me?
CO-CHAIR MOONVES: Yes, yes, we can. Karen, can
we get one to Jose Luis?
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CO-CHAIR ORNSTEIN: We'll get that right to you,
Jose Luis.
MR. CRUMP: I'm for leaving that last paragraph
in.
MR. RUIZ: Last two paragraphs.
MR. CRUMP: Last two paragraphs.
CO-CHAIR ORNSTEIN: That's the must-carry.
That's the must-carry part.
MR. CRUZ: I can register a concern in reference
to public broadcasting and I can get some words to David
regarding that.
CO-CHAIR ORNSTEIN: Well, let's deal with the
larger question of whether we want to make this linkage.
MR. CRUZ: Well, a couple of questions. First
of all, is there any concern that, or should we not be
concerned that, just to make this rhetorical, that since
this was not actually part of our mandate, that it will
just be ignored? That's number one.
Number two, if that's not the case and we're
assuming that it will actually be paid attention to, is
the sweetening of the pot potentially for the over the air
broadcasters in our making this recommendation helpful in
finding a way to the consensus?
Those are the two questions. And if it's not
that meaningful to broadcasters, then we should probably
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stay out of it. If it is meaningful to broadcasters and
it will have no impact, it's probably not going to sweeten
the pot that much. But if it could have some impact and
it is meaningful for broadcasters, then I'd say we should
probably keep it in.
MR. CRUMP: Richard, if I might, I think it's
not only meaningful for broadcasters, I think it's
meaningful to the public. When you consider that 70
percent of our signal comes in over cable, if we are not
being carried all of this stuff that we are saying the
broadcaster ought to do is not going to be seen. And I
think we should consider that.
CO-CHAIR MOONVES: Richard does bring up an
interesting thing. We may be stepping over the line in
all sorts of places in this report. Is this our respect,
to bring this? Newt?
MR. MINOW: I don't think there's any question
that it's helpful to the broadcasters. The FCC is going
to pay a great deal of attention to this. If we come out
with a report that says that broadcasters have an
obligation to serve the public interest and we want that
seen, we want it seen on cable, and it will be very
effective in dealing with the FCC as it makes its decision
on this question.
CO-CHAIR MOONVES: Peggy.
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MS. CHARREN: And if that's part of our
recommendations, not in an appendix, I'd like to suggest
that it creates a marketplace for this committee to get
the service to the public, which is the reason why you
have must-carry as part of the report, too. It's a kind
of a quid pro quo.
MS. SOHN: I would only say that it's a service
to the public if broadcasters are doing their public --
engaging in their public interest obligations, including
the mandatory minimums that were suggested. I actually
think that it's within our -- I can't imagine it's not
within our mandate.
CO-CHAIR ORNSTEIN: We made a link here. We
didn't recommend it without making that link. That's
important to realize.
Also we should note that we have heard from the
National Cable Television Association. We have heard from
Brian Lamb of C-SPAN, who feels very, very strongly about
these issues. He's against must-carry.
And we ought to at least recognize that we've
got two issues here. One is must-carry once digital is a
reality, a full reality. If we think down the road to
when the analog stations are given back, that's not much
of an issue. The issue is the transition period and the
issue there is whether cable networks are going to be
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required to carry two full 6-megaHertz bites and with the
digital carry all that goes with those.
MR. GOODMON: That's important.
CO-CHAIR ORNSTEIN: It's an important
distinction. Obviously, partly what we're talking about
is expediting the transition here. But we do need to
recognize that this is not a simple question, especially
now, given the hardware. If we moved immediately to a
double must-carry, you're going to end up with in most of
these cable systems a requirement that they take all kinds
of stations that they now have on the air off the air. So
this is a tricky issue.
MR. MASUR: But you've accounted for that -- I'm
sorry. But you've accounted for that in the language, and
that's why I raise these questions. I think the answers
that have come back say basically it's a good idea for us
to make this linkage. In a way, right now the must-carry
mandate for the analog if I understand it correctly has no
public interest obligations theoretically attached to it,
whereas here we're saying if these mandatory public
interest requirements are part of this whole package then
the must-carry should be linked, and that strengthens the
possibility that that will happen as well, I think.
So with that caveat that Norm put on, which is
already included in the language of the report, I think
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it's good.
CO-CHAIR MOONVES: Robert.
MR. DECHERD: I was just going to make a point
of clarification. We were talking a minute ago about the
cable association and C-SPAN and so forth. I think it's
fair to say that the current proposal of the NAB, MSTV,
TOC, and all other significant television licensee groups
or groups representing them believe that must-carry is
absolutely essential.
And the proposal is not for immediate clearance.
It's a phased-in approach which recognizes that different
systems have different technical capabilities and during
the transition period to digital it's simply providing
that as cable MSO's build out these systems toward their
oft-described 500-channel universe that we take advantage
of compression and all the technology associated with it
to ensure that these digital signals are carried without
causing any significant displacement to existing channels.
But this is a very, very important issue, and
the fact that NAB hasn't weighed in on that subject or TOC
or MSTV does not mean that they are not very focused on
this. Quite the contrary, this is issue one with all of
those groups.
CO-CHAIR MOONVES: I think one of the issues
also about that is that there are certain broadcasters.
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Not every broadcaster wants must-carry. I think we should
put that language in that there's not an obligation for
it.
MS. SOHN: Well, you have a choice, okay.
CO-CHAIR MOONVES: Go ahead, Gigi.
MS. SOHN: If I could be the lawyer here for a
minute --
CO-CHAIR MOONVES: Be my lawyer.
MS. SOHN: You have a choice under the law. You
can either opt for what they call retransmission consent,
which means you can tell the cable operator: You're not
going to get my signal. You want me, okay, but you're not
going to get me unless you give me either some in-kind or
money payments, okay. And a station opts for one or the
other.
Now, those stations that know they can't extract
that kind of concession, there's a: The law says you must
carry me, all right. I'm not going to try to extract
anything out of you, but you must carry me under the law.
The fact of the matter is I think the linkage is really,
really critical because the stations most in need of must-
carry are those probably also most in need of mandatory
minima. The large network affiliates, the network O and
O's, they will be the ones that can opt for retransmission
195
consent.
If anybody wants an extra school lesson
afterwards, I won't give it to you.
CO-CHAIR MOONVES: Excellent. Thank you.
That's why there should be no obligation whatsoever.
Terrific.
All right. Are we done?
CO-CHAIR ORNSTEIN: Now you want to talk about
the diversity?
CO-CHAIR MOONVES: Yes. We would like to
include in the report, obviously, address the diversity
issue. It was originally included in the mandatory
minimum requirements. We think it warrants a section of
its own. We have drawn up some language. Once again,
it's a first pass, open for discussion from anyone.
But we would like to include it in the report.
Comments, suggestions, criticisms?
MR. GOODMON: What does it say? Give us a
summary?
CO-CHAIR ORNSTEIN: The staff developed this,
four paragraphs.
CO-CHAIR MOONVES: Yes, our staff did. It's
about flexibility -- it's one page. Read it.
CO-CHAIR ORNSTEIN: Why don't we take two
minutes for people to take a quick look at it.
196
CO-CHAIR MOONVES: Right.
(Pause.)
CO-CHAIR ORNSTEIN: We can obviously amend this
at a later stage, too.
CO-CHAIR MOONVES: It's basically a statement of
principles.
(Pause.)
MR. MASUR: Can I? The one suggestion I'd like
to make is, rather than "responds to the needs and
interests of minorities," it should say "responds to the
needs and interests of underserved communities." The
reason I say that is because women are not a minority, nor
are people over 50, and both of them are severely
underserved.
MS. SOHN: It's also less inflammatory from a
constitutional viewpoint.
MR. MASUR: Right.
CO-CHAIR ORNSTEIN: Now that I'm over 50, I have
to agree with you. A good suggestion.
MS. SOHN: Norm, I want to suggest again -- and
maybe this goes in the multicast section, and hopefully it
gets cross-referenced here -- the idea of, if a
broadcaster chooses to do this as part of its public
interest responsibilities, turning over one of its
multicasted channels to a programmer who would serve
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underserved communities. I could like language to that
extent.
CO-CHAIR ORNSTEIN: What this says is: "A
multi-channel digital broadcast model could of course
include program streams that are narrowcast, aimed at
distinct audiences, including minority groups." We could
certainly add a sentence there that said something like:
If one channel were dedicated --
MS. SOHN: Right.
CO-CHAIR ORNSTEIN: -- to public interest
purposes, that channel could either be run by --
MS. SOHN: I want to get away from the notion
that the broadcaster necessarily controls every single
multicast stream. He or she could decide to lease it out
to a minority or other programmer.
CO-CHAIR ORNSTEIN: We could say we encourage
innovation in this area.
MS. SOHN: Exactly.
CO-CHAIR ORNSTEIN: Why don't we add a sentence.
Okay, we'll work on drafting a sentence if everybody
agrees.
CO-CHAIR MOONVES: That's fine.
Anybody else? Yes, Jose.
MR. RUIZ: Is there any way of doing something
that would be monetary?
198
CO-CHAIR MOONVES: Such as?
MR. RUIZ: Taxes or something like that, like
they had before with the sale of stations.
MS. CHARREN: What? Taxes?
MR. BENTON: You're referring to a tax credit,
Jose?
MR. RUIZ: Some kind of credit that would be --
I mean, if you want to encourage the broadcasters --
MR. DUHAMEL: Encouraging the selling of a
station, to give tax credits to the person.
MR. RUIZ: Monetary, some kind of monetary gain
for them. That's more encouragement.
MR. YEE: Are you talking about some kind of
economic incentives for the licensee?
MR. RUIZ: Some kind of economic incentive,
right.
MS. SOHN: For the licensee to sell his station,
like the minority tax certificate that was unfortunately
repealed by Congress a couple years ago? Or incentives to
make, let's say, a multicast channel available, or both?
MR. RUIZ: I think it's more an incentive for
the multicast channel.
CO-CHAIR ORNSTEIN: Recommending that Congress
consider some kind of an incentive to make multicast
channels available to minorities ought to be --
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MR. MASUR: Underserved segments of the
population.
CO-CHAIR ORNSTEIN: Excuse me, okay.
MR. CRUZ: But can it include a recommendation
not only in terms of employment and programming, but also
ownership? Are we alluding to that also in your comments,
Norm?
CO-CHAIR ORNSTEIN: I don't know.
MR. CRUZ: My concern is that --
CO-CHAIR MOONVES: It will be for underserved
communities and not run by them?
MR. CRUZ: That we somehow or another think in
terms of the possibility of opening up the entrepreneur
possibilities to women and minorities and underserved
communities, in light of the fact, the more I read in
terms of what the digital revolution really may bring, the
more I see where there may be 5, 6, 8, 20 extra channels.
What can we do either in leasing forms, partnership forms,
or some kind of a creative entrepreneurial device there to
encourage ownership or participation in that kind of a
context?
I'm greatly concerned as a minority on the great
concentration in lesser and lesser hands of this
particular medium and spectrum, and if we can do something
to encourage in that direction, not only programming,
200
employment, but also ownership possibilities, I think it
would carry us to that extent, where I think we don't
fully comprehend what the digital revolution has in store.
And if we don't work everyone in, in my estimation it will
be a failed revolution, and I think we should.
CO-CHAIR ORNSTEIN: How about something that
talks about incentives to make multicast channels
available to underserved communities via leasing,
partnership, or other creative means that would encourage
or lead to broader ownership?
MR. GOODMON: Ownership or participation.
CO-CHAIR ORNSTEIN: Ownership or participation.
Is that okay with everyone?
MR. RUIZ: Fine.
CO-CHAIR MOONVES: Yes?
MR. CRUZ: I've got some. I can submit it to
Karen and she in turn can disburse it accordingly.
CO-CHAIR ORNSTEIN: It will have to be within a
day or two, remember.
MR. CRUZ: Yes.
MR. BENTON: I was very taken by Jim Yee's paper
here about the independent television service. In
England, of course Channel 4 is all aimed at minority
audiences. In fact, it's a commercial channel in England
aimed at minority audience interests. And I would hope
201
that some of Jim's outstanding comments and suggestions
could be integrated into this diversity statement, because
-- I don't know, Jim; maybe you have some further thoughts
about this. But I just was taken by this paper. I think
it's great.
MR. YEE: But my only interest, my interest
basically, is, using a more appropriate term, the
underserved audiences and communities, because that would
cover the whole swath of communities of people and color
and gender as well.
Really, Charles, Thank you, but I think it's all
stated in the report. It's a matter of trying to
integrate some of those recommendations hopefully in the
final draft. Thank you.
CO-CHAIR MOONVES: Yes, Frank.
MR. BLYTHE: One of the other areas, too, that I
think is not considered in here is you have an economic
incentive for the broadcaster to offer the channel in some
form, but also, more often than not minority communities
don't have an economic power base from which to work from
in developing programming or even buying facilities or
broadcast operations or even leasing the channels.
Is there -- we talk about different forms of
funding for what we might call noncommercial broadcasting
or noncommercial programming. Could there be something in
202
this language here that offers the opportunity for
minorities to take advantage or underserved audiences to
take advantage of some of the funding apparatus that we're
sort of recommending in other areas of this report, the
fees on the spectrum or something like that that are going
to be allocated to a programming stream or a programming
fund or even, maybe not so much the trust fund, but some
of those ancillary fees that are floating around in these
reports, which haven't been designated for anything like
that, but should be open to minority communities to have
access to?
MS. CHARREN: Well, that 10 percent appears.
Where was that, Gigi?
MS. SOHN: That's in the education section. It
talks about a portion of the --
CO-CHAIR ORNSTEIN: Yes, we dealt with that very
explicitly in the education section by setting aside a
portion of whatever moneys are there for underserved
communities and independent programmers.
MS. SOHN: It's the paragraph on page 6 going on
to 7.
MS. CHARREN: Right.
CO-CHAIR ORNSTEIN: We could make a reference to
that here.
MR. BLYTHE: Yes, have some reference made in
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here that those two are connected.
CO-CHAIR MOONVES: Yes, Jim?
MR. GOODMON: "To encourage effective
participation, the Advisory Committee recommends that
broadcasters voluntarily redouble their efforts." Now, is
this in a code, our suggestion for what should be in the
voluntary code?
CO-CHAIR ORNSTEIN: If it isn't now, we intended
to put in the suggested standards of conduct a provision
of this sort.
MR. GOODMON: That's what you mean by that.
CO-CHAIR ORNSTEIN: Yes.
MR. GOODMON: Underserved participation.
Let me just point out that in our minimum
standards report we just talked about diversity in
employment, not in programming, so I'm glad, Les, you
added this. We mentioned two things that I want to point
out we're leaving out.
One is that we believe that the FCC's EEO rules
were very effective in terms of improving the employment
numbers in the industry and that's good, and that we
support their -- we support the Commission's work in the
area of coming up with some way of ensuring
nondiscrimination and participation by all in the process.
So we said that in here. I would like to see it in here.
204
But we also said this should be part of the voluntary
code. So I'm just pointing out that we are throwing that
out.
CO-CHAIR MOONVES: Okay, good point.
MS. SOHN: Could I just, a point of
clarification. You had mentioned something about taking
the diversity of employment stuff out of Jim's thing. You
were under the impression that it was -- you were talking
about taking that out. Are you still talking about taking
that out?
CO-CHAIR MOONVES: Yes, of course. It's not a
mandatory requirement.
MR. MASUR: We put it in the body of the report.
MS. SOHN: Okay, I just wanted to clarify this,
and also clarify that what the court struck down was not
the reporting requirements, it was only the numbers
requirements, just to be clear, and there's a letter on
public representation mentioned in here. I thought I
recalled you saying something about it being
unconstitutional.
CO-CHAIR ORNSTEIN: The idea is we aren't even
recommending a mandatory thing there, so it belongs here.
MR. GOODMON: Right. We were never recommending
a mandatory. Can we talk about supporting the
205
Commission's efforts to finding a way to do this?
CO-CHAIR ORNSTEIN: I think we could all be in
agreement on that. Yes, absolutely.
CO-CHAIR MOONVES: Yes, fine.
MS. CHARREN: The 10 percent is in the paper I
submitted relating to page 6, the last paragraph, which
includes a sentence about independent and minority
producers.
CO-CHAIR MOONVES: Thanks, Peggy.
MS. CHARREN: Any time.
CO-CHAIR MOONVES: Anything else on diversity?
Any other comments, questions, or additions?
(No response.)
CO-CHAIR MOONVES: Let's move on.
MS. CHARREN: Would you like to talk about your
report?
MS. STRAUSS: You mean on captioning?
CO-CHAIR MOONVES: Yes.
MS. STRAUSS: Sure. Okay, I assume you're
referring to the October 29th memo that I sent around?
CO-CHAIR MOONVES: Yes.
MS. STRAUSS: Actually, there's two documents.
One is October 29th and one is October 30th. The October
30th is just a revision of the history section. I just
wanted to clarify some of the points made.
206
Really, there was nothing in there that is --
it's basically just a clarification of the history of
captioning, beginning with line 21 going on to the
Television Decoder Circuitry Act and pretty much ending
with the Telecommunications Act of 1996 obligations for
captioning.
I thought it would be helpful for the readers of
the report to have a full understanding of what's required
and what's not required, and in the last paragraph I also
talked about video descriptions and how Congress has
directed the FCC to have a report on video descriptions,
but the FCC has chosen not at this time to require video
descriptions. That's the history of the issue. Again,
that was the October 30th memo.
The October 29th memo, what I did basically was
just to pull together the captioning and disability
requirements seemed to be all over the place. They were
in the appendix, they were in the body, and there just
wasn't any cohesiveness or continuity of thought. So what
I did was, I again started off with just a brief summary
of what's required, the first couple of sentences, and
then went on to say that the Television Decoder Circuitry
Act requires that new television technologies, such as
digital technologies, be capable of closed captions and
that digital technology will open up new avenues to
207
enhance and expand captioning, and then said that: "The
committee recommends that broadcasters take full advantage
of new digital closed captioning technologies."
This is nothing new. We've said this before. I
believe we've reached consensus on this before. Again, I
just try to redo it just to make it smooth, just to have
it be more smooth.
The third paragraph talks about how the FCC's
rules on captioning -- the FCC recently issued an order on
reconsideration on captioning. The FCC had issued its
initial rules on captioning in August of 1997 and those
rules were challenged. Amongst the challenges was a
challenge that had sought captioning of advertisements.
Just recently, just about a month ago, the FCC issued its
final ruling on captioning and rejected captioning of
advertisements.
What that means is that the various minimum
requirements that Jim and Harold and I had talked about in
the minimum public interest requirements relating to PSA's
would not apply to captions. They would not have to be
captioned under the FCC's rules. I didn't know this in
prior meetings. Now this is confirmed.
So in our discussions it dawned on me that it's
ridiculous to -- or unfair, I should say, to create these
new public interest obligations on PSA's and public
208
affairs programming and political programming and not have
it apply to deaf and hard of hearing people. So that's
why in the mandated minimum requirements there is now
another section on captioning.
There really are two ways to do this. One is to
just say under each of the sections, the public service
announcements and the political programming, that those
should be captioned. Another way to do it is to have a
separate section and, and Jim opted for a separate
section, so it seems to stand out. But really it's just
extending what applies to the general public to people who
are deaf and hard of hearing.
The third paragraph I put in to clarify why this
other news section is now contained in the minimum
mandated requirements. So what it says is that the FCC's
rules exempt certain categories of programming, including
advertisements under five minutes and some other areas,
and then I go on to say: "The benefits derived from
recommendations made elsewhere in this report on PSA's,
public affairs programming, and political discourse may
not reach deaf and hard of hearing viewers. At least
they're not required to do so."
And for that reason within that section, the
minimum requirements, a new section is added for the
gradual expansion of captioning on PSA's, public affairs
209
programming, and political programming.
Let me just say that, although the FCC has
tentatively decided not to -- what they've decided is that
programming by definition does not include advertising or,
stated otherwise, advertisements are not programming. I
think about three of the Commissioners disagreed with this
point of view. The fourth Commissioner said that he would
like to cover advertising, but he didn't find enough
legislative authority.
So this is basically just a recommendation from
our committee, despite the FCC's ruling on this, to say
that we recognize that it's very important that if we're
going to require a minimum number of PSA's and access to
political programming that this community not be
forgotten. And it's basically saying to the FCC, rethink
what you're doing or go to Congress, and if we go to
Congress this committee has made a recommendation to say
this is very, very important.
So I say that because I'm trying to preempt any
arguments that say, well, the FCC said no, so why should
we. We should because we have been asked to give our
recommendations and we should say that this is important.
The next item under disability access to digital
programming is the provision of video description. Again,
we've talked about that. There's nothing new here. All
210
it says is that -- let me just go to the next page -- that
broadcasters allocate sufficient audio bandwidth for the
transmission and delivery of video description.
It's not as I would have liked, but we decided
not to put forth any recommendations for a specific amount
of video description. This is just saying provide
sufficient audio bandwidth.
The next section talks about ancillary and
supplementary services and specifically talks about how
broadcasters should provide disability access to those
services. I've added a sentence that says "where doing so
would not impose an undue burden." I'm trying to make
this parallel to other language in the Telecommunications
Act, specifically section 255, which requires access to
telecommunications products and services, and also make it
parallel to the closed captioning section that says that
captioning has to be provided unless there is an undue
burden or an economic burden.
Then finally -- again, none of this is new. The
only thing that's new here is the PSA's and public
affairs. I've already presented this many times. It's
just rewritten.
Then the final section is just a general
recommendation of our committee to have the FCC and other
regulatory bodies work with set manufacturers so that
211
modifications in audio channels, decoders, and other
technical areas be built to ensure efficient disability
access.
I would tell you that I've been told that the
first generation of television receivers in fact may not
be capable of decoding closed captions. So this is a
particular concern. The FCC is in the process now of
creating -- or they will be proposing standards to have
television receivers, digital television receivers, be
capable of decoding the captions. But apparently the
first generation, there's some real question as to whether
they will be able to.
It shouldn't be a problem for a while because
they will be simulcast in analog and digital, programs
will be simulcast in analog and digital. But it's still
nevertheless troublesome that this didn't occur. So that
kind of takes care of that section.
MR. GOODMON: One thing we talked about here
was, on the notion of should we talk about must-carry, how
this fits into that. That is, if we're going to have
these audio channels and these data channels to do this,
then they need to be carried. So this was another reason
we talked about must-carry.
CO-CHAIR MOONVES: Ted.
MR. DUHAMEL: One question now. On the PSA's
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and public affairs, you're saying also if it doesn't cause
an undue burden? Because I don't detect that there.
MS. STRAUSS: I believe that that is not in the
current draft.
MR. DUHAMEL: It should be. It really should
be.
MS. STRAUSS: Well, it's open to discussion.
Jim felt strongly that it shouldn't be and I agreed with
him, so I would like to hear a discussion on it.
MR. DUHAMEL: It's been there all the time until
this draft.
MS. STRAUSS: No. The PSA's and public affairs
wasn't on the table before.
MR. DUHAMEL: But it's always had this undue
burden deal, and now all of a sudden we're going to add a
requirement and you pull that off.
MS. STRAUSS: Well, it's just not there. It's
not that I pulled it off. It's not there to begin with.
MR. GOODMON: This is a very sizable part of the
American community. What we said -- we gave whole lots of
time here and tried to go to where the FCC is. So what we
were trying to say is that this is really important.
Obviously, you can't do it right from the beginning. You
start small and grow and try to get to it by the mandated
213
time the FCC has.
As a statement of the importance of this, we
said -- I couldn't decide what an undue burden is, if it
costs this or if it costs that. We just said I don't know
what that is, and everybody ought to be able to get to
this by 2006.
MR. DUHAMEL: I think the obligation is to prove
that it's a burden, but leave the undue burden there and
it gets in, because there are some real problems that you
get into.
MR. GOODMON: No, this requires a real
commitment from broadcasters to do this, and we're going
to have to step up on this one. This is important.
MR. DUHAMEL: Well, the proposal in South Dakota
that the hard of hearing or deaf tried to get in there two
years ago would have cost South Dakota broadcasters a
million dollars a year. Now, to me that's a burden.
MS. STRAUSS: I'm not familiar with that
proposal.
MR. DUHAMEL: The response was nobody cared.
MS. STRAUSS: I can tell you that the cost of
captioning an advertisement is $200, just to let you know,
just so you have a ballpark figure for a PSA.
MR. DUHAMEL: I'm not worried about that. The
PSA's aren't the problem. In some of the live programs,
214
it means everything we'd have to do, we'd have to call
Colorado Springs or Washington and do everything in and
out, and that's expensive. That was a million dollars a
year to do that.
And nobody cared. They tried to pass a tax on
the cable and the cable said: What the hell are we doing
with this thing?
MS. STRAUSS: Most of that is required anyway
now under the FCC rules.
MR. DUHAMEL: Well, then let's go by the FCC
rules.
MS. STRAUSS: This fills the gap.
MR. DUHAMEL: See, that's why I'm saying, at
least we should -- you know, if there can be a million
dollars a year in a small state, I think that at least we
should leave the undue burden in there. Then at that
point if we can say it costs $200 and that's it, maybe
that's not a big problem. Now, $200 a day, it gets to be
big money, too.
CO-CHAIR MOONVES: Karen, how do you feel about
those words, "undue burden," because obviously you pulled
it out.
MS. STRAUSS: Well, Jim knows that --
CO-CHAIR MOONVES: You pulled it out.
MS. STRAUSS: Yes, obviously I would like them
215
to not be there. I think that I have less of a problem
with them being there than Jim.
MR. GOODMON: I tell you what. This is not much
different than the rules. One thing I learned about this,
and Harold maybe, too, is what the rules are about this.
And this is in the rules anyhow. I mean, we're adding to
it a little bit.
MS. STRAUSS: Let me clarify it. We are adding
to it. We are adding to it because, as I said, the rules
aren't covering advertisements, so they're not going to be
covering political advertisements and they won't be
covering PSA's.
I don't have --
MR. GOODMON: For the most part.
MS. STRAUSS: Right, for the most part.
MR. GOODMON: For the most part.
MS. STRAUSS: I have not as much problem with
including undue burden because I think that it's so
inexpensive. I think that the technologies are changing
at such a rapid pace that even live programs with speech
recognition, the costs are going to just plummet.
MR. DUHAMEL: If that happens, then there's no
problem here.
MS. STRAUSS: I would like it not in, but if it
means not having it in, this section in or not, it's not
216
essential that undue burden be left out.
MR. GLASER: Just one clarification. I do not
accept the assertion that transparent speaker-independent
speech recognition is going to happen any time in the next
15 years in a way that would substitute for human
transcript creation. There are all kinds of footnotes and
special cases and we can have a technical discussion like
that. But do not assume in your cost analysis that it
becomes transparent speaker-independent in any short term.
MS. STRAUSS: Okay. Well, even other -- there
are still other technologies, captioning technologies,
that are bringing down the costs, and captioning
competition, because the new FCC rules have created so
much competition.
MR. GLASER: I'm a big fan of captioning for
many, many reasons, but I just wanted to, on the technical
point, to weigh in.
MS. CHARREN: When you say it doesn't apply to
political advertising, you don't mean to political
discourse speech as we've been encouraging it in this
document?
MS. STRAUSS: Well, I think that some of the FCC
rules will in fact cover political discourse.
MS. CHARREN: Okay, because I think it's --
MS. STRAUSS: I think in fact most of them will.
217
MS. CHARREN: Because I think that's a real
problem in a democracy, that they can see everything
except --
MS. STRAUSS: The FCC rules will not cover
political advertisements.
MR. RUIZ: Karen.
MS. STRAUSS: Yes.
MR. RUIZ: I have a concern that we have not
addressed at all the Spanish language broadcaster who has
the potential of reaching 24 million, 25 million people.
MS. STRAUSS: Jose, I have really good news on
that. One of the other things that we had challenged,
that the National Association of the Deaf had challenged,
was the failure of the FCC to require captioning on
Spanish language programming, and we won. So in fact
there is a requirement in place. It's an extended
requirement. It's over a 12-year period, a 12-year phase-
in. But given that there's virtually no captioning now,
that's acceptable.
So over the next 12 years, it will have to be
actually 100 percent of Spanish language program captioned
that's not exempt. There are certain exemptions for late
night programming and other categories. But we won that
one.
We also increased the amount, just so you know.
218
The original rules had been 95 percent of all non-exempt
programming and we're now up to 100 percent. So it was a
significant victory. We just lost on the advertising.
CO-CHAIR MOONVES: Yes, Richard.
MR. MASUR: I just wanted to ask one question.
Karen, do you have enough information about the FCC ruling
to know whether or not there was a conversation that took
place making a distinction between commercial advertising
and PSA's?
MS. STRAUSS: There's no distinction. There are
certain PSA's that are covered. PSA's that are Federally
funded or produced are covered under Title IV of the
Americans with Disabilities Act, but there is no
distinction drawn.
CO-CHAIR MOONVES: What percentage of that?
MS. STRAUSS: I would think that's a fairly
small percentage. So no, I don't think there's any
distinction.
MR. MASUR: So in other words, I guess what I'm
asking is, can one make the distinction or in approaching
this do you open up the floodgates that if stations, for
example -- are you mandating that the stations have to
caption these or that the producers of the spots have to
caption them?
MS. STRAUSS: Typically the obligations fall
219
onto the broadcasters and the cable networks, and then
they can shift the responsibility to the producers.
MR. MASUR: Because I would be very concerned if
the FCC under the First Amendment or whatever takes the
position that it's only a program produced of under a
certain length, whether that's a commercial advertisement
or a PSA, and they suddenly drop this enormous burden on
the broadcasters. There has to be some way to drop the
burden on the producers of the product, not on the
broadcasters in this situation.
MS. STRAUSS: The FCC's reach is generally onto
the broadcasters. They can't reach the producers. That's
the problem. Just so that you know, it is interesting.
They did actually draw that distinction. Long commercial
advertisements --
MS. CHARREN: Infomercials, you mean?
MS. STRAUSS: Infomercials are covered. It's
only -- which makes one wonder why they drew this
distinction.
MS. CHARREN: Since they're so creepy anyway.
MS. STRAUSS: Well, I could get into political
reasoning here, except that they just did it.
CO-CHAIR MOONVES: There is a term that they use
at the FCC, "undue burden."
MS. STRAUSS: Yes, there is "undue burden" in
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the FCC. It's written into the law, actually.
CO-CHAIR MOONVES: Are we done with --
CO-CHAIR ORNSTEIN: Okay, yes. So we'll
integrate these recommendations in.
MS. STRAUSS: Thank you. And the other
recommendation, of course, is that it be pulled out of the
appendix and be put right in the report.
CO-CHAIR ORNSTEIN: I think to be in fact
consistent we'll leave some of the history. I don't want
to get into that in great detail.
MS. STRAUSS: The history is in section 2 and
the recommendations are in section 3.
CO-CHAIR ORNSTEIN: We'll figure out a way to
make this work.
CO-CHAIR MOONVES: Peggy.
MS. CHARREN: I have -- this is I think a
correction of fact which is fixed on the next page, so you
have two statements that don't quite go along. On page
22, the third paragraph, talking about the children's --
MS. SCOTT: What section are you on, Peggy?
MS. CHARREN: This is part 2, not part 3.
Sorry. It's the public interest standard in television
broadcasting. I just want to make sure I say this out
loud.
MS. SCOTT: What page, Peggy?
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MS. CHARREN: 22. It's the third paragraph, the
second sentence: The Children's Television Act didn't
exactly mandate three hours. Three hours is a guideline
and it's just an error of fact which I think we don't want
to have, and it's fixed.
CO-CHAIR MOONVES: We will change it.
MS. CHARREN: It's fixed on the next page, 23,
because it talks about guidelines on the next page.
Then there's something that I am just commenting
on as a First Amendment supporter for a long time. The
second paragraph says, and this is something you may not
want to touch, but I just want to go on record as saying I
don't sort of love this. The second paragraph says: "The
public interest in affirmatively serving children has had
a number of other expressions."
The next sentence to me is not really serving
the public interest of children and since I'm going to
sign this report I thought I might as well say that. It
says: "Broadcasters are forbidden from transmitting any
obscene, indecent, or profane language over the airways
from 6:00 to 10:00 p.m."
I didn't like the idea that the Congress and the
FCC was moving in on indecent programming. I filed on the
other side of that. I don't think it's a way of
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affirmatively serving children and I thought maybe we
could just leave it out.
MS. SOHN: Obscene programming is banned all the
time.
MS. CHARREN: Yes, but indecent isn't. Indecent
is part of -- you can cross of "indecent" maybe and I'll
feel better about it.
CO-CHAIR ORNSTEIN: I think we can take it out
safely without in any way violating the intent or the
thrust of what we're doing.
CO-CHAIR MOONVES: That's fine.
CO-CHAIR ORNSTEIN: So we will take it out.
CO-CHAIR MOONVES: Feel better, Peggy?
MS. CHARREN: I think if you're going to take it
out --
CO-CHAIR ORNSTEIN: I was afraid of what kind of
language you'd use if we didn't take it out.
(Laughter.)
MS. CHARREN: I can understand that.
MR. GOODMON: Shouldn't we leave -- I mean, this
is true. Not the connection to children's, but --
MS. CHARREN: Well, I think that that's not
true, the perception of whether or not this really serves
the public interest in affirmatively serving children. I
think you take "indecent" out of there and you take sex
223
education out of there. You can leave the rest of it
there.
MR. GOODMON: I'd suggest that we leave it, but
we separate it because it's true that we have these codes,
we have these things now.
MS. CHARREN: Otherwise you take out the first
sentence and then you can say it.
MR. GOODMON: Just disconnect them somehow.
MS. CHARREN: Right, that's all.
CO-CHAIR ORNSTEIN: We will work that through so
that there is not a connection between children and
obscenity.
MS. CHARREN: And stopping indecent programming.
CO-CHAIR ORNSTEIN: Except for my children.
CO-CHAIR MOONVES: The last major heading that
we have to discuss is political discourse. Yes, Rob?
MR. GLASER: I am not expert in this topic, but
I need to head out early, so I wanted to just add a
comment or two on this --
CO-CHAIR MOONVES: Please, weigh in.
MR. GLASER: -- and then unfortunately I have to
leave. I think this is a topic that, in terms of by
number of syllables, the report spends probably more time
on than any other single area. I just would hope that we
224
could take it a little bit from the "on the one hand, on
the other hand" mode that it's in now, to at least be a
little bit crisper about some of the things that we have a
strong consensus on.
I think earlier in today's session the statement
that the broadcasters will sort of on a matching basis do
their part in the context of overall reform. I don't
think that comes through as lucidly or as sharply as it
needs to, and I think, while what it means for this
industry to do its part may be amorphous, I don't want --
I think we will not achieve as much of our goal as we
could if we let that get lost and be seen as mealy-
mouthed.
CO-CHAIR MOONVES: Fine. Yes, Newt.
MR. MINOW: I know I'm in a clear minority on
this, but for the record: When we started out on this
task, the then head of the National Association of
Broadcasters, Eddy Fritz, made what in my opinion was a
very sensible proposal. He said: We will provide a
certain number of hours without charge to political
candidates and in exchange the candidates will not buy any
time on television.
He quickly walked away from that proposal even
though I supported it, and I still support it.
MR. MASUR: That's why he walked away, I think.
225
MR. MINOW: I do not think that simply providing
5 minutes a night for 30 days prior to the election is
going to deal at all with the fundamental problem of
political discourse in this country. We just finished an
election where the lowest turnout was accompanied by the
greatest expenditure for negative television commercials.
So I believe we should go to the system which is
true in many other countries, particularly in England,
where a certain amount of time is provided to the parties
and you cannot buy or sell time for a political purpose.
I intend to write that as a dissent. I just wanted to go
on the record and say that's what I think.
CO-CHAIR MOONVES: Thank you.
MS. CHARREN: I like that.
CO-CHAIR MOONVES: Peggy, you can join in the
dissent.
Gigi.
MS. SOHN: I'll join your dissent too, Newt.
But I also want to go on the record as saying that I'll be
filing a separate statement.
Number one, I want to agree with Rob 100 percent
that we have to be really, really strong in endorsing
comprehensive campaign financing reform legislation with a
free time component and enumerate how the broadcasting
industry is going to work with public interest advocates
226
and campaign finance reform advocates in helping that get
done.
But because I'm a cynic and skeptical, I'm going
to be filing a separate statement, to which I hope many of
you will sign on, calling for the FCC to impose some
mandate of free time as well if Congress indeed does not
take our recommendation and goes ahead and passes campaign
finance reform.
I've seen too much in the last Congress to
really, really believe -- I mean, I want to believe that
if broadcasters join with us and really push on the Hill
for this legislation that it'll happen. I'm skeptical, so
I'll be filing a separate statement.
CO-CHAIR MOONVES: Thank you.
Yes, Richard.
MR. MASUR: As much as I agree with the aim that
Gigi has here, I just also want to say for the record that
I think -- and this is just an opinion; it's not holy writ
by any means -- I think the best way to get movement is by
not offering a way out. I am glad that the consensus
opinion is in this carrot without a stick mode, rather
than the carrot and the stick, because I think the stick
is a relatively fragile one. it's not the stick that Mr.
Minow is offering, which would be a big stick, but this
stick is a relatively fragile one. But the carrot could
227
be enough of a rallying point, and I hope it will be, for
broadcasters as well as for the many, many advocates that
campaign finance reform has in this country to rally
around and say: Okay, someone has stepped up to the plate
and put something on the table, just to mix my metaphors,
and we have to force this issue, now the time has come.
I hope that that -- I'm fairly cynical as well,
but I hope Gigi's wrong about this and I hope that that
will be sufficient to get some real movement in this
Congress, which I think will not be the last Congress. It
will be a different Congress, one hopes.
CO-CHAIR ORNSTEIN: Let me address your issue,
Newt. I yield to no one in my passion for doing something
in this area, and long before Eddy Fritz made the
statement about that that you quoted he performed the
nonpolitical equivalent of calling me a putzhead.
MR. MINOW: You could have gotten elected.
CO-CHAIR ORNSTEIN: So let me say that I don't
think what you're advocating can work in a system where
there is a First Amendment. It works where there isn't a
First Amendment. There is no effective way and no
reasonable way of shutting off private political discourse
through commercial advertising here, particularly since
it's very easy to do if you simply frame it as issue
advocacy. But there's no way of doing that, and we're
228
going to have to operate and will operate within a system
in which there is private speech as well as some public
speech.
It seems to me, to be realistic and effective,
we have to look for ways of providing incentives and
opportunities for candidates who have no voice in this
process to be able to get some message across. That's
what we have tried to do here.
I happen to believe that this one element -- we
have two elements here. One is where we have this very
strong consensus that we want to suggest that where there
is comprehensive -- a challenge grant to Congress. The
other is what you are pretty dismissive of, the 5 minutes
and 30 days, and I would suggest my view is that if indeed
we move in that direction it would have a profound effect.
If all broadcasters provided 5 minutes in
innovative forums every night for 30 nights, which means
that you're talking about in most markets a whole lot
more, obviously, you're going to give candidates who now
have no message out there in races that matter, and with
the freedom to broadcasters to choose the format, the
candidates, and all the rest of it, so you're not really
imposing here, a dramatic enhancement of discourse.
It is one of the ways in which you can have a
win-win situation, and it shouldn't be the only thing that
229
we strive to do. But realistically within the context of
our political system, it I think is much more realistic
than looking for a system in which there is all the time
provided and nothing else. I just don't think that's
workable.
MR. MINOW: I take and respect your point, but I
would answer it this way. No one has the constitutional
right to be on television, even the President of the
United States. The President of the United States can ask
the networks for time; they can say no. Ross Perot found
out in 1996 when he went to the networks with a check and
said, I'd like to buy time. He was told no.
No one has a constitutional right to be on
television. Television is unique in that respect. There
is nothing -- radio as well. There's nothing like it. So
it's a very different area. We ought to take it to the
Supreme Court and find out whether that's correct or not.
CO-CHAIR ORNSTEIN: I would take issue with you
in this respect. There is a statutory requirement that
has been out there for a long time -- no one's suggested
that it is unconstitutional -- that reasonable access be
provided to candidates to buy time.
MR. MINOW: Because it's never been challenged.
First of all, "reasonable access" has not been defined and
it's never been challenged.
230
CO-CHAIR MOONVES: Frank.
MR. CRUZ: The unique thing in this area that
we're working in is that -- I understand the purity of the
First Amendment arguments and I understand the
significance of them and how important they are. Yet the
broadcast industry in the past has in some manner, way,
shape or form said no to tobacco, in some manner, shape or
form has said no to advertising to hard liquor. Yet we
modified --
MS. SOHN: Congress said no to tobacco.
MR. CRUZ: What I'm saying is I'm not
necessarily sure of the purity and the applicability in
the pure legal sense of the First Amemdment to something
like this, when you have an industry already that has had
those kinds of impositions put on them and no one has
said, hey, First Amendment, let me advertise all the
tobacco I want, let me advertise all the condoms on the
air that I want.
CO-CHAIR ORNSTEIN: The Supreme Court, Frank,
has made very firm distinctions many times between
commercial speech and political speech. So there is a
very real distinction to be made here.
MR. CRUZ: But it's advertising.
CO-CHAIR MOONVES: Who else?
MR. GOODMON: Let me make sure I understand
231
that. We included this as mandatory in our minimum
standards and we're saying it's not going to be mandatory,
it's voluntary, it's not going to be in the minimum
standards. Is that it?
CO-CHAIR ORNSTEIN: I think what we'll do in the
minimum standards is we'll try and work out a section that
doesn't get into the specifics of a specific proposal, but
talks about political discourse.
CO-CHAIR MOONVES: No, I think we had agreed
earlier on that we were going to take it out and it would
have its own section. That was my understanding.
MR. BENTON: No, I think we postponed the
discussion until we had this discussion.
CO-CHAIR MOONVES: This is our last meeting.
When are we going to postpone it 'til?
MR. BENTON: No, I mean earlier when you were
trying to bring closure to it.
CO-CHAIR MOONVES: I thought we determined that
the areas that have their own sections would have their
own sections. If I'm mistaken in that, then we can
reverse the whole thing.
Yes, Richard.
MR. MASUR: I think when we were discussing
that, and maybe I was not paying close attention, I
232
pointed out the fact that the way this was laid out in the
body of the document was a recommendation that -- and I
quote -- "this need not be mandated by the Federal
Government; it can and should be a voluntary standard
agreed to and promoted by the industry" for the 5 minutes
for 30 days concept.
And then there is the later concept which is the
linkage between, which is, as Norm refers to it, as the
matching grant offer, which is also certainly not a
mandate at this point. The concept being that if Congress
were to act on campaign finance reform in a way that took
into account the involvement of some kind of contribution
by broadcasters to seeing that happen, that that would be
incorporated into the law, there would be no need to have
that as a mandate in here.
I would like to recommend that we stick with
that right now because I think it's been fairly clearly
laid out that this is too complex an issue to incorporate
into a short paragraph in any kind of meaningful way in
the mandate section in the appendix, number one; and
number two, frankly, that it creates sufficient problems
for a sufficient number of people. And I will point out
that Shelby's one of them, and I might be one of them,
too, based on the language that's incorporated in the body
here, which unless we were to pick up that language almost
233
in toto, which really would be dilatory and ridiculous --
just to be redundant -- I think that we should probably
leave it out of the mandate.
CO-CHAIR MOONVES: When this Commission was
formed, this probably was the most important issue that
faced us at the time. I've said this to some of you and I
really believe this. If this Commission is to have any
legacy whatsoever, it will be tieing what we are doing
here on political discourse to real meaningful campaign
finance reform.
If you want to put it in the mandatory minimum
requirements, it waters it down, it becomes ridiculous,
and I for one will not support it there. I think here we
have something that really can mean something, and it can
mean something ten years from now, not two months from now
when half of these reports are going to be thrown in the
garbage by the people that read them.
I really feel very passionately about this
point.
CO-CHAIR ORNSTEIN: Charles.
MR. BENTON: Two points. First, I think Cass
Sunstein's tenth point here is right on the mark and
should be included. Basically, Cass Sunstein's tenth
point is right on the mark here. He's essentially saying
that the section that deals, our political discourse
234
section, the context of it is campaign finance reform and
to it should be added a section on democratic benefits of
an informed citizenry, which he lays out in a very good
paragraph here. I think that should be included, very
important.
The second point. Les, I hear what you're
saying, but I'd like to test the theory here because we've
kept talking about Jim's minimum public interest
standards, not requirements, standards for digital
television now. And section E on page 2, I'd like to know
what's wrong with this. What do you not like about this?
Let's go specifically to the content.
CO-CHAIR MOONVES: I just told you.
MR. BENTON: What is wrong with this? If you
don't like anything here, then let's talk about it. But
let's go to the specific instead of just saying, I don't
want to talk about it and I don't want anything mandatory.
I think this is irrational. Let's look at the specifics.
If you don't like it, fine; let's talk about it.
CO-CHAIR MOONVES: I've talked about it twice,
Charles. I'm not going to talk about it any more. I've
made my point about why I don't like it in there.
MR. BENTON: Why?
CO-CHAIR MOONVES: If you haven't heard it, then
obviously you haven't heard it.
235
MR. BENTON: But what's wrong with it? What's
wrong with the specifics here? Deal with the specifics.
CO-CHAIR MOONVES: I don't want it in the
minimum mandatory requirements.
MR. BENTON: Why?
CO-CHAIR MOONVES: I don't.
MR. BENTON: Why?
CO-CHAIR MOONVES: I don't because it's
offensive, okay.
MR. BENTON: Offensive why?
CO-CHAIR MOONVES: Charles --
MR. MASUR: If I may, it's at direct variance
with what we have on the body of the report, which is not
-- it's not a mandatory requirement.
MR. GOODMON: It's not a mandatory requirement.
It's giving a choice, either this or that.
MR. MASUR: No, no, no. But if I may, Charles,
this is minimum public interest standards, okay, and in
the body of the report it's specifically laid out that the
5 minutes over 30 days is meant to be a voluntary program.
So how can you include it in a minimum standard? It's
contradictory.
MR. GOODMON: We need to reconcile the two, is
the reason I brought it up.
CO-CHAIR ORNSTEIN: And it is the case that at
236
this point if we include a mandatory standard in political
discourse it dilutes if not undermines the broader notion
of we want Congress to act in a comprehensive way and
broadcasters will do their part. There's no reason for
them to do any part if you impose something mandatory, at
least at that stage.
So I'm very much inclined to not put this into
the mandatory section.
MR. MASUR: Can I ask a question to that,
because Robert's here now, and if this would be
comfortable for you to answer. I'm operating under the
assumption that there is interest in the broad broadcaster
community, in the NAB and the wider broadcaster community,
in promoting a better way of doing campaigns in this
country, political campaigns. Is it accurate, is our
assumption accurate, that if Congress were to act in a
comprehensive fashion on campaign finance reform, that
broadcasters would come to the table to participate in
that in a positive way, to try and throw something into
the mix that would encourage Congress to move forward?
Would that be accurate or are we just blowing smoke here?
And I know you can't, you're not empowered to
speak for everybody on earth.
MR. DECHERD: I'm empowered to speak for no one
other than myself, which I think the challenge with
237
everything we're discussing here is there is a presumption
that the broadcast community is unified on all these
subjects, that there is a consensus or a series of
consensuses or consensi, whatever the plural is. That's
not the case, and I think it would be a real mistake for
us to make any assumption or speculate about what a group
of broadcasters, which does not necessarily mean the NAB -
- there are other groups. I have mentioned some of them.
MSTV of course is mostly concerned with
technical matters, but the Television Operators Caucus
represents most of the large group operators. There are
certainly individual station owners. There are smaller
group owners, all of whom are very individualistic in how
they view these matters and, depending on how campaign
finance reform or any number of other things we're
discussing are brought forward, would take more or less
active roles depending on the framework in which these
issues are brought forward and the manner in which
broadcasters, broadly defined, are invited into a
discourse.
My concern, which I've said to the point of
being tedious, is that there is in my mind an inverse
relationship between the specificity of this committee's
report and its likely impact. The more specific we
become, the more highly targeted issues we try to address,
238
the more the word "mandate" or "expectation" or
"requirement" is used, all of the aforementioned people
are less likely to take this seriously.
And I'm not talking about the NAB. I'm talking
about companies like ours and Harold's and Paul's and I
think many others who are represented here. But we're
not, as you noted, empowered to speak for anyone.
I'll only say this once today and I apologize
for being late and missing the last meeting. In terms of
the impact of our work, the less said the better. The
fewer ideas, the broader the framework, that I believe
will have an impact. I think this is going to be an
exercise I futility for many people here, and that's
really my answer to your question.
I can't tell you what happens if in a new
Congress John McCain and all of the other people who have
been so courageous about campaign finance reform bring
forward the issue. I don't know if the NAB will meet them
halfway, no way, or some way, maybe later. I don't know.
And I don't know what I would do until I see how the
question's framed.
But I know this, that if I'm hit over the head
with this committee's report it's going to be a bad
starting point.
239
MR. MASUR: Thank you.
MS. CHARREN: Can I ask you a question, Robert.
MR. DECHERD: Sure, of course.
MS. CHARREN: That sounds like -- to take it
away from campaign financing and just talk about
requirements versus stepping up to the plate, why did it
seem to take a requirement from the FCC to get the
industry to start to step up to the plate in a significant
way about children? Because they're doing it now. It's
not all perfect and everybody isn't delighted, but things
are a lot more interesting than they were for the previous
30 years, and it's being said out loud by producers, who
are finding a place that they didn't find before, not just
me.
Why did it take interest the case a very
specific rule when they had a long time to get their act
together on that?
MR. DECHERD: Peggy, my opinion is that the
FCC's rulemaking is one of several things that caused that
to happen, and therein lies my anxiety about specificity
in this case. We're trying to anticipate an environment
that is changing so fast that forces we don't even fully
understand are going to cause there to be a greater
interest in children's programming and I think far more
diverse programming, and so forth and so on.
240
Part of it's human behavior. Part of it is how
the industry had developed up to that point. But since
then the friendliness you're talking about I think has a
lot to do with the marketplace generally, how people's
standards and mores are changing. We're all benefiting
from more competition.
MS. CHARREN: But a lot of that was in place in
a different way in the seventies and into the eighties,
and it took a rule.
MR. DUHAMEL: Peggy, there was a chicken and egg
problem there, because I tramped around two years at NAPE
trying to find decent children's programming, and the crap
they were trying to dump on me -- the supply wasn't there.
Now, I couldn't get it because there was no supply. Now
you're saying, well, the supply wasn't there because
nobody demanded it. But it was a chicken and egg thing.
MS. CHARREN: I hear you, but I don't sign onto
that.
MR. DUHAMEL: Well, you should have been around
NAPE with me.
MS. CHARREN: I was. I was at NAPE every year.
I was even in the little plays they put on.
(Laughter.)
MR. DUHAMEL: And didn't you see all the crap
that they were trying to pass off as children friendly?
241
MS. CHARREN: Yes, but there was other stuff
that sort of didn't make it in the marketplace.
Anyway, I didn't want to have too much about
that, but I heard you and there's a part of me that wishes
that was more true than I think it is, is all I was
saying. Thank you.
CO-CHAIR MOONVES: Anything further on political
discourse?
(Mr. Sunstein enters.)
CO-CHAIR MOONVES: Cass, do you want to give us
a --
MR. SUNSTEIN: President Gore will be taking
office --
(Laughter.)
CO-CHAIR ORNSTEIN: I hope you'd at least agree
that talking to Dick Morris should be an impeachable
offense.
MR. SUNSTEIN: There was unanimous consent to
that.
MR. LA CAMERA: Richard, just to respond from my
singular perspective to your question. While it's always
uneven, I think the performance of broadcasters during
this last election across the country was somewhat
commendable, both in terms of special programming they
offered and certainly debates in virtually each and every
242
city, and also increasing examples of free political time
being offered. Again, this precedes our report and I
think it's very encouraging for what's on your mind.
MR. MASUR: I agree.
CO-CHAIR MOONVES: Anything further? Yes,
Charles?
MR. BENTON: I hope -- I don't know how we're
going to put or talk about the things you and Barry were
talking about this morning of putting our recommendations
in the context of campaign finance reform. The House
passed the bill earlier this year. Of course, it dies
with this Congress. Elections happen.
I think it's astonishing to see this election,
which has spent twice as much money in buying time, with
the lowest turnout since 1934, the point that Newt has
mentioned. 55 percent of all money being spent in
national campaigns is money being spent buying back the
public airways from the broadcasters for commercials. The
broadcasters obviously have a central role to play in the
improvement of political speech, which is mentioned in the
cable thing, political speech, their major legal
obligations, in the addendum to the cable talk.
I don't know how we can be more explicit and
more provocative in rising above the forest in linking
these issues in our report. I think we can do better than
243
we've done. I'm not sure how to do it, but I just think
we can do better than we've done on this.
It needs to be more compelling than what we've
got here. I'm not satisfied with the rhetoric, let alone
the specifics.
CO-CHAIR ORNSTEIN: Well, we'll go back and try
and do what we can. Then we'll see if we satisfy you.
MR. MASUR: Just very quickly to that. I want
to point out that two other interesting things happened in
this election. Two states which are widely divergent from
each other in terms of their politics and what have you,
Arizona and Massachusetts, both passed clean money
referenda which frankly go way beyond anything anybody's
talked about in Congress or anyplace else.
Also, Rus Feingold, running on the principles
that he laid out, that are laid out in the McCain-Feingold
bill, prevailed in his election, though different people
are spinning that different ways depending on which
station you happen to be tuning in to at any given moment.
But I think there's definitely a signal that's
being sent by people that they want something to change.
I think that will impact this Congress and I think a lot
of this Congress is coming in with that at least in the
back of their heads, if not in the front of their brains.
So I think it's a very opportune moment to put this kind
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of thing in front of them.
CO-CHAIR ORNSTEIN: Well, there's one other
development in this election and that is this was the
first billion dollar Congressional election, but only a
quarter of the money spent was spent by candidates. We
are seeing candidates becoming minor figures in the
discourse of campaigns. One of the major reasons that we
are promoting the ideas that we are in this report is to
find ways with broadcasters as partners to get candidates
more of a voice in this process. So we can hope that we
can move that along.
And if it doesn't move along, obviously then
something else is going to happen and it isn't going to be
anything that will satisfy either broadcasters or others
in this process. So that we need to remember.
All right. If there are other comments that
people have. Otherwise, we will go back and take into
account all of these suggestions.
I want to reiterate the timetable here. We need
to have work in this area done within the next three or
four days, including the amendments and suggestions that
people have made. There are two weeks altogether and you
should have at least a week having this next draft. But
you should begin now, obviously, with a pretty good clue
as to what should be there, working on your own individual
245
statements. And the individual statements, I hope,
including some in this area of campaign finance reform,
will have some power themselves.
Then we will move from there to make sure that
what we have is what we've hoped to have, which is a
consensus on the thrust of the report, with individual
views in most cases I think confined to individual areas,
but not necessarily in every case. And we will move on
from there.
We do want to show the cover if we have it. I
don't think we did that, just so people can see.
MS. SOHN: Could I just get back to substance
just for a half a minute?
CO-CHAIR ORNSTEIN: Yes.
MS. SOHN: The section that Jim had in his
appendix about issue advertising and improving the
disclosure -- you just mentioned how most of the money is
being spent on issue ads, third party ads. Could that be
moved? It's not really controversial.
CO-CHAIR ORNSTEIN: Yes, we can do that.
MS. SOHN: At least by my standards.
CO-CHAIR MOONVES: Yes?
MR. DUHAMEL: On the date, you know Friday is
the deadline for major edits. Could we make that Monday,
because I'm on the road. There's a holiday this week and
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then I'm on the road until I get home this weekend.
MS. STRAUSS: Also, what you produce is going to
be pretty different, at least in some areas, from what we
have seen, and we haven't seen it yet.
MR. MINOW: He'll circulate the individual
comments to all the committee?
CO-CHAIR ORNSTEIN: I think we'll have to. But
remember that, given our time frame, that'll come after
we've done all of this other work.
MR. MINOW: Yes, I understand.
CO-CHAIR ORNSTEIN: Then obviously you can't
change anybody else's comments. But we'll definitely
circulate everybody's comments as soon as we get them.
MR. DECHERD: Norm, as a point of clarification
-- and again, apologizing for not being here this morning
-- what is the structure of this report? Is it the four
parts and appendices? Was there any change?
CO-CHAIR ORNSTEIN: We have a new part.
MR. DECHERD: I saw that, yes.
CO-CHAIR ORNSTEIN: The history of the
committee, the history of digital television, the history
of the public interest obligation, our recommendations,
individual views, and then some appendices.
MR. DECHERD: So that the structure is
essentially what was distributed earlier, including
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section 2 and the appendices?
CO-CHAIR ORNSTEIN: Yes.
MR. DECHERD: All of the things that were
distributed are in the appendices?
CO-CHAIR ORNSTEIN: Well, some of the appendices
are going to change as a consequence of our discussion.
MR. DECHERD: But for example the Aspen report?
CO-CHAIR ORNSTEIN: Will be in there as an
appendix, yes. It's just there to offer information.
MR. DECHERD: Well, if I may, without engaging
this whole conversation again, in the letter I sent in
anticipation of this meeting I want to be very clear and
be on record that many of us have a very different view of
some of the points made in section 2 having to do with the
public interest standard, red line, and so forth. It's
not time to debate them again. I regret all of that's in
there because it attempts to codify things that we do not
believe to be exactly correct.
I for one think there is no room in the
appendices for third party reports which this committee
did not solicit, unless we're going to put them all in
there. So if the Aspen report goes in, my question is
where's the Media Institute and Ten Recruits? I don't
understand the purpose that's served there insofar as
focusing the report on what we, the majority of us, have
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agreed should be the final report, and that's whether or
not I subscribe to all of the report.
I think it's a diversion.
CO-CHAIR ORNSTEIN: The basic reason for that,
Robert, is that we had a very vigorous discussion last
time on pay or play and agreed that we would basically
offer alternatives so that people could see what the
alternatives were without us as a committee taking a
position on those. So that was a part of the compromise,
rather than force that.
MR. DECHERD: Fine. My point about structure is
I think you can say in the report --
CO-CHAIR ORNSTEIN: If you want to include
something else in that area, that's fine.
MR. DECHERD: Well, I'd go the other way. I
would say there was this discussion, there was a
compromise, and this report was referenced. But why do we
have to attach it in the public record? In today's techno
world you can find that a thousand ways on line in a
minute.
I just think it skews the work of the committee
to have any third party organization playing a formal
role, if you will, through the appendices.
CO-CHAIR MOONVES: How many third party reports
are in there right now?
249
MR. DECHERD: None.
CO-CHAIR ORNSTEIN: That's the one.
MR. DECHERD: That's it.
CO-CHAIR ORNSTEIN: But it basically, it doesn't
take positions. It lists options.
MR. SUNSTEIN: Would you like one of us to
generate our own version of that, which would be simple
and scaled down?
MR. DECHERD: Yes.
CO-CHAIR MOONVES: Yes, I think that would be
more appropriate, that there are no third parties. That's
a good point.
MR. SUNSTEIN: I volunteer.
CO-CHAIR ORNSTEIN: You're on. If that's the
price we have to pay to get Robert to sign onto the rest
of the report, I say fine.
MR. DECHERD: We clearly weren't communicating.
CO-CHAIR ORNSTEIN: Let's show everybody the
cover, just so you can see the goal toward which we are
striving (indicating).
CO-CHAIR MOONVES: Newt, we can vote on the
cover.
(Laughter.)
MR. MINOW: Les says we can vote on the cover,
so put your hands up.
250
CO-CHAIR ORNSTEIN: I want you to know this is
high definition.
MS. STRAUSS: So Norm, when can we expect to see
the revised version?
CO-CHAIR ORNSTEIN: Well, let's see. If we move
to a Monday, what we have now is the last major edits or
contributions, the major contributions here rather than
the individual views or small comments, have to be to us
by the 13th. That's Friday.
MS. STRAUSS: So when will we get the report,
because we can't comment until we have it.
CO-CHAIR ORNSTEIN: We get that on Friday and
basically we're going to --
MS. STRAUSS: Okay, so by Friday are the
comments --
CO-CHAIR ORNSTEIN: I think we have to leave
several days. That's Friday. We will try by the 18th.
Would that be reasonable to get a draft?
MR. SUNSTEIN: Then we should have some days to
get the last edits contributions.
MS. EDWARDS: I think that's a little
optimistic. I'm happy to try to redo this a little bit to
allow time for the committee to look at another version
since so much has shifted around.
CO-CHAIR ORNSTEIN: Why don't we say this. We
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will give five days from the time you get the version of
the report to the time you have to submit your final
individual views, okay. So five days from the time you
receive the report to when your individual views are due.
And you can give edits, obviously, any edits to this now.
Any suggestions that flow from our meeting you should give
now.
MS. STRAUSS: And realistically, when do you
think that five days will begin? In other words, when do
you think you'll be getting us the report?
CO-CHAIR ORNSTEIN: I think we targeted the 18th
or so, so we can hold to the deadline of the 23rd. But if
it slips by a day or two, then the other will slip by a
day or two.
MS. EDWARDS: If I can just jump in here for a
moment and say how absolutely tight the time line that I
have distributed, with everybody's input here, is. So
that means when we say last edits by November 13th, that
means received by that day. It is absolutely imperative.
MS. STRAUSS: But those are edits on what we
already have.
MS. EDWARDS: Exactly.
CO-CHAIR ORNSTEIN: Before we turn to our public
comment period, since this may be the last meeting we have
where we actually talk among ourselves -- the final
252
meeting presumably is going to be where we provide the
report to the Vice President -- I don't want to end, as
long as most of us are here, without thanking Karen and
the rest of the staff for what has been an enormous amount
of work.
(Applause.)
CO-CHAIR ORNSTEIN: I don't think most of you
realize what an effort, while they have carried on other
responsibilities, they have made to get everybody
materials in a timely way, especially when we've had some
difficulty getting the materials produced or agreed to
ourselves. And they've handled everything in a most
professional manner. We have been extremely well served
by these public servants and we are all very appreciative.
Yes, Charles.
MR. BENTON: Norm, I wrote a two-page memo on
the legacy project, which essentially is tracking the
recommendations, helping to coordinate members'
participation in public hearings, the Congress, the FCC,
providing media kits, etcetera. Maybe we could get
reactions, either now or later, from the group on this.
CO-CHAIR ORNSTEIN: I will tell you my reaction:
that if the Benton Foundation wants to take on a role
tracking what we've done and seeing where it goes, I think
it's entirely appropriate and we can all be happy that
253
you'll do that. There maybe others doing the same thing
independently. A thousand flowers can bloom, but I think
it's terrific that you take on a specific role in this
area.
If there is no other reaction to that --
MS. EDWARDS: Before you do that, just following
on this point on sort of time line and so forth, I'm going
to be a bit of a bear on this. I will and so will the
staff that's working with me. And on this point, I would
suggest, either Les or Norm, if you'd sort of clarify your
vision of what David is going to do so that the members
are prepared to either get requests from him or receive
materials from him.
I think it's very important to clarify his role
at this point.
CO-CHAIR ORNSTEIN: That's fine. We have
several things that we're going to do from this point on.
First, we are going to go back and make sure that the
different sections agree with one another and that they
are integrated together better than they have been. These
have been done as separate individual stand-alone sections
for the report. We want to make them more chapters rather
than separate stand-alone sections.
We clearly have to go through and make a number
of changes in the body of the report itself, which Les and
254
I will take a sizable responsibility for along with some
of the others on which you have all volunteered.
In addition, we want to be prepared and we will
work closely with David to make sure that all of those
things are integrated together. I hope you will all be
available if as we go along either of us and-or David, and
most particularly David, either needs something, needs
clarification, or may need you to draft something that he
can then use, to take his calls and respond very quickly.
It is important to recognize that the process of
turning this into a draft manuscript is tough enough. The
process of turning it from a draft manuscript into a
nicely bound published report with this beautiful cover in
a very short period of time is very, very tricky. So the
timing does become important here.
MS. CHARREN: If we are on the road can we use
Karen as a place to send where we are and the fax numbers
for where we are, so that if there's any kind of
interchange we can do it through it?
MS. EDWARDS: Absolutely.
CO-CHAIR ORNSTEIN: Yes.
MS. EDWARDS: We really need that.
CO-CHAIR ORNSTEIN: Use Karen. If you want to
send things, if you can't send them to each of us
individually, you can send them here and Karen will get
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them out to the rest of us. And if you're not going to be
around, then it is important that you let Karen know. And
if you need to reach somebody and can't, then presumably
you can try through Karen.
MS. CHARREN: Norm, are we supposed to be here
December 18th in Washington?
CO-CHAIR ORNSTEIN: No, we have not set -- we
have set that as the date that we will give the report
over. But we will work with the Vice President's office,
I am assuming, to find a time, which may not happen until
after the holidays, for a formal ceremony. I think we
want to have a formal ceremony and I think he would as
well.
MS. CHARREN: How about a press conference? No?
CO-CHAIR ORNSTEIN: The same thing. It's
possible we will do something less formal before that.
MS. CHARREN: You're going to give it to him on
the 18th and have a press conference afterwards?
CO-CHAIR ORNSTEIN: Giving it to him doesn't
necessarily mean that that's the end of the process.
CO-CHAIR MOONVES: If it's a press conference on
the 18th nobody'll be there anyway.
MS. CHARREN: No, I don't mean that. But
everybody will have the report.
CO-CHAIR MOONVES: Read the paper on Christmas
256
Eve.
CO-CHAIR ORNSTEIN: But having that happen and
then follow it with a formal ceremony doesn't necessarily
mean we get less attention. It may very well mean we get
more attention. So we'll work this out in ways that fit
everybody's schedule.
MS. CHARREN: Let me ask the question a
different way. When is this available to the public
besides on the web?
CO-CHAIR MOONVES: It will appear in Barnes and
Noble January 3rd for $2.95.
MS. EDWARDS: We'll try to figure that out.
CO-CHAIR ORNSTEIN: We'll figure that out.
MS. CHARREN: Because that's important, dealing
with the press.
CO-CHAIR ORNSTEIN: Yes.
MR. CRUMP: Since I erroneously thought that we
would be coming back on the 18th and we have not asked
anyone about our plans for the month of January, how soon
will we know this so we can get squared away on a date in
January? Do we have any feel for that?
CO-CHAIR ORNSTEIN: I think the first thing
we're going to do is get this together. When we get it
together in a form where we can then move it towards
production and we have a pretty clear idea that in fact
257
the 18th is a reasonable date or somewhere around that
point, then it will be appropriate to communicate with the
Vice President's office and get some alternative dates
there.
In this case his schedule is the most
significant element.
MR. CRUMP: I was thinking that we could meet
him in London, you know.
CO-CHAIR ORNSTEIN: We'll get options. We'll
get options and we will then make sure that those options
fit.
MR. BENTON: So the 18th is not --
CO-CHAIR ORNSTEIN: No, the 18th was not -- am I
correct, Karen?
MS. EDWARDS: I think what we should do is just
have Les and Norm think about this a little bit, talk with
the Vice President's office. If there is a date that
emerges, you know that we will call you and try to work
out something that works for everyone. We're happy to do
that.
MR. DUHAMEL: Where did December 18th come from?
MS. EDWARDS: Well, December 18th comes because
the next week is Christmas, so if we're going to get this
out before the 31st, if we're actually going to have
something printed and done, you have to do it before the
258
week of Christmas. You realize Christmas is the very next
week.
MR. DUHAMEL: Yes.
MS. CHARREN: I would just like to put my two
cents in. When you get something out is when it's nice to
talk about it, because if you wait to talk about it for
two weeks everybody's out with it. It becomes a very
loose process that's not very pleasant, like you feel like
you're leaking every time you open your mouth.
CO-CHAIR ORNSTEIN: We'll try and strike the
right balance.
CO-CHAIR MOONVES: Yes, Frank.
MR. CRUZ: Since this is our last public
meeting, I think I would be remiss and I know all of us
would if we didn't thank the two of you for your
leadership and the hard work that you have done.
(Applause.)
CO-CHAIR ORNSTEIN: And we've been very well
compensated for it.
MR. CRUZ: Right.
CO-CHAIR MOONVES: And every moment's been a
total joy for all of us. I want to thank all of you. It
really has.
PUBLIC COMMENT, QUESTIONS AND ANSWERS
CO-CHAIR MOONVES: Should we open this up? Is
259
anybody ready, Norm?
CO-CHAIR ORNSTEIN: Yes, public commentary.
CO-CHAIR MOONVES: Anybody. Please state your
name and your affiliation.
MR. HATCH: David Hatch with Electronic Media
Magazine. A couple questions.
Mr. Ornstein, you mentioned earlier that the
mandate of this committee is to develop public interest
requirements for digital broadcasters. Yet you folks
appear to be planning to recommend digital must-carry
requirements for the cable industry. I'm just wondering,
how does that fit in with the mandate of this committee,
and are you essentially overstepping your bounds making
that type of recommendation?
CO-CHAIR ORNSTEIN: Well, we had some discussion
of that this afternoon, actually, and whether it was
within our bounds or not. Of course, we do have a mandate
that deals with digital television broadcasters. Part of
that mandate is figuring out ways in which digital
television gets out and actually reaches the public, and
we recognize fully that this involves intersecting circles
and some of those circles are not within our specific
mandate. But inevitably in the world there's an
intersection.
Obviously, we put a recommendation out there in
260
this case, A, linking must-carry to a set of other
obligations and, B, recommending that this be done in a
fashion that doesn't create the kinds of larger problems
that could occur so that we can work through a smooth
transition period. And if people want to oppose them,
including opposing them on grounds that we've overstepped
our mandate, then they are free to do so. They're just
like all of our other recommendations; they're out there
as advisory opinions.
MR. HATCH: Well, is it fair to make a
recommendation about an industry when you don't have
direct representation of that industry on the committee?
CO-CHAIR ORNSTEIN: We do have direct
representation of that industry on the committee. Barry
Diller, as was pointed out several times today, has cable
interests.
MR. HATCH: But not interests in terms of a
cable MSO.
CO-CHAIR ORNSTEIN: Almost every recommendation
that we make is going to involve people and interests that
aren't on the committee. That's the way these things go.
This is not an industry without a voice. It is free to
get out report and say whatever it wants vigorously about
this, and they already have. Indeed, they were out there
very quickly with comments. I got several calls from many
261
people, maybe you included, David, before I'd even seen
the letter, a couple days before I'd seen the letter.
MR. HATCH: Finally, just along the same note, I
was wondering how your proposals to recommend that both
the DBS industry and the cable industry adopt voluntary
codes, how that fits within your mandate, or does that
also not fit within it?
CO-CHAIR ORNSTEIN: I think you could answer it
the same way. It is important to recognize that even now,
but especially as we move to the future, we're going to
have fewer distinctions among and between these different
elements of the spectrum, and that's going to make it
harder and harder to make firm and clear distinctions
between these different elements.
CO-CHAIR MOONVES: David, also let me add to
that. The cable industry has no problem when they take
shots at the broadcast industry. We're trying to level
the playing field a little bit and make them subject to
the same rules and regulations as the rest of us are.
MR. HATCH: All right. Thank you.
MR. MASHON: My name is Mike Mashon. I'm with
the Motion Picture Broadcasting and Recorded Sound
Division of the Library of Congress. The Library has been
leading the effort to preserve our, to use a kind of
hackneyed phrase, our television heritage, which frankly
262
is at great risk right now.
Last year the Library released a report, a
comprehensive report outlining the need for television
preservation. I have volume one here and would be
delighted to send you a copy of the whole thing if you'd
like.
But I would like to respectfully submit to the
committee a suggestion, if you would be amenable to
recommending in your final report that perhaps a modest
fraction of some of the funds as outlined in the
multiplexing section of the draft report be dedicated to
saving television history. This is something that we feel
very, very strongly about. In a sense what we're asking
is that "for preservation" replace the phrase "in some
other fashion" here in the multiplexing section.
Thank you very much.
CO-CHAIR MOONVES: Thank you.
MR. DONOHUE: My name is Hugh Donohue and I'm
here from the Annenberg Public Policy Center at the
University of Pennsylvania. My question concerns what
will happen with appendix E. In the absence of third
party entries, will the committee summarize the
submissions of people who have put in recommendations or
not?
CO-CHAIR MOONVES: I'm not sure -- for those who
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don't know, which includes most of us, appendix E was the
Aspen paper. So what you're asking, Hugh, is what's going
to happen to all the public comments that have come in.
MR. DONOHUE: Well, I'm sure not all of them
concerned that precise area. The body of the report only
mentions E under the rubric of number 9, "A new approach
to public interest obligations."
CO-CHAIR ORNSTEIN: Yes.
MR. DONOHUE: And Mr. Decherd just a few minutes
ago very cogently and articulated indicated he didn't
think third parties had any position in the report, and
you folks have agreed. Together with an associate of
ours, a fellow named Nolan Bowie at the Kennedy School, we
put in an idea, and I'm just curious. Are they going to
be summarized, are they going to be ignored?
CO-CHAIR ORNSTEIN: What we'll try to do is to
reframe that suggestion and others that have come in that
relate to this area, all in a fashion that comes from one
of our own members, so that they are there in the public
record. That will include that particular proposal.
MR. DONOHUE: Earlier in the morning I had some
conversation with the NTIA staff that it might be useful
for me to follow up the submission that I had put in
electronically two or three weeks ago with a letter
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expressly encouraging its inclusion in E. So now I assume
the timely and appropriate gesture as someone from outside
would be a letter urging its consideration in some form in
appendix E and that I'd be remiss in not so doing.
CO-CHAIR ORNSTEIN: I don't think it's
necessary. We have the proposal, it's here, and we'll be
sure that that along with other ideas are incorporated
into what we put in that appendix.
MR. DONOHUE: Thanks very much for your
consideration. We appreciate it. And also, thank you
very much because we did come in very late last month, and
we know that a goodly amount of the thinking had been done
well before.
CO-CHAIR MOONVES: Anyone else?
(No response.)
CO-CHAIR ORNSTEIN: If there is no other public
comment, I wish to thank everybody for their diligence and
we all need to get to work on it.
(Whereupon, at 4:21 p.m., the meeting was
adjourned.)
(Click here to view part one
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