STATEMENT OF

COMMISSIONER MICHAEL J. COPPS,

DISSENTING

*Re:* *2002 Biennial Regulatory Review -- Review of the Commission's
Broadcast Ownership Rules and Other Rules Adopted Pursuant to Section
202 of the Telecommunications Act of 1996*

I dissent to this decision. I dissent on grounds of substance. I dissent
on grounds of process. I dissent because today the Federal
Communications Commission empowers America's new Media Elite with
unacceptable levels of influence over the media on which our society and
our democracy so heavily depend.

This morning we are at a crossroads -- for the Federal Communications
Commission, for television, radio, and newspapers, and for the American
people. The decision we five make today will recast our entire media
landscape for years to come. At issue is whether a few corporations will
be ceded gatekeeper control over the civil dialogue of our country;
content control over our music, entertainment and information; and veto
power over the majority of what we and our families watch, hear and
read.

Two very divergent paths beckon us forward.

Down one road is a reaffirmation of America's commitment to local
control of our media, diversity in news and editorial viewpoint, and the
importance of competition. This path beckons us to update our rules to
account for technological and marketplace changes, but without
abandoning core values going to the heart of what the media mean in our
country. On this path we also reaffirm that FCC licensees have been
given very special privileges and that they have very special
responsibilities to serve the public interest.

Down the other road is more media control by ever fewer corporate
giants. This path surrenders to a handful of corporations awesome powers
over our news, information and entertainment. Here we treat the media
like any other big business, trusting that in the unforgiving
environment of the market, the public interest will somehow magically
trump the urge to build power and profit for a privileged few. On this
path we endanger time-honored safeguards and time-proven values that
have strengthened the country as well as the media.

So the stakes are high -- higher than they have been for any decision
the five people sitting here today have ever made at this Commission.
How do we decide which path to choose?

I start with three principles. First, look at the law and see what
Congress instructs us to achieve. Second, look at practical, real world
experience rather than cling to some prefabricated mind-set or ideology.
And third, when faced with the automatic consequences that will follow
such a far-reaching decision, act cautiously rather than rashly, and
trust in the wisdom of the American people.

What does the law tell us? The Communications Act tells us, very
clearly, to use our rules to promote the public interest, and to that
end, for decades we have promoted the goals of localism, diversity and
competition. The statute tells us that the airwaves belong to the
American people, and that corporations are given a temporary right to
use this public asset only in return for their pledge to use it in the
public interest. No broadcast station, no company, no single individual
owns an airwave in America; the airwaves belong to all the people. The
law tells us that the last time Congress legislated on this topic, it
thought that restrictions on how big a single media corporation could
get and how much power one company could amass were important and
necessary. And the Supreme Court has upheld media protections, stating
that "it is the purpose of the First Amendment to preserve an
uninhibited marketplace of ideas in which truth will ultimately prevail,
rather than to countenance monopolization of that market, whether it be
by the Government itself or a private licensee."[^1] Finally, on the
larger issue of media power, Judge Learned Hand instructed us that "The
hand that rules the press, the radio, the screen, and the far-spread
magazine, rules the country."[^2] His words remain true today.

What practical, real world experience do we have to guide us? Radio
deregulation gives us powerful and relevant lessons. When Congress and
the Commission removed some of the radio concentration protections, we
experienced massive, and largely unforeseen, consolidation. Very quickly
after taking actions for radio like those we will take today for
television and newspapers, there was a 34 percent reduction in the
number of radio station owners. Diversity of programming suffered.
Homogenized music and standardized programming crowded out local and
regional talent. Creative local artists found it evermore difficult to
obtain play time on the air. Editorial opinion polarized. Competition in
many towns became non-existent as a few companies \-- in some cases a
single company \-- bought up virtually every station in the market. This
experience should ***terrify*** us as we consider visiting upon
television and newspapers what we have inflicted upon radio. "Clear
Channelization" of the rest of the American media will harm our country.

What about seeking out the counsel and trusting in the wisdom of the
American people? Begin by realizing that every American has a stake in
this decision. ***Every American***, not just the companies that have
temporary license to use the public's spectrum. Commissioner Adelstein
and I have attended public hearings in many cities across the country.
We have met with conservatives and liberals, broadcasters and creative
artists, concerned parents and civil rights activists, church leaders
and educators. Our Commission has seen a flood of opinions from every
state in the nation. Close to three quarters of a million people have
registered their views now -- more than for any proceeding in Commission
history. And in a nation that can be deeply divided on important issues,
these citizens are almost unanimous on the question of whether this
Commission should allow further media concentration. They are imploring
us to protect local broadcasting, diversity of programming and opinion,
and the ability to compete with the huge companies. We should heed their
conservatism -- their urgent call to refrain from abandoning
time-honored protections when so much is at stake and so much is unknown
about the consequences of what we are doing here today.

The majority instead chooses radical deregulation -- perhaps not quite
so radical as originally intended a year ago before so much pressure was
brought to bear upon them -- but radical nevertheless. This decision
allows a corporation to control three television stations in a single
city. Why does any corporate interest need to own three stations in
***any*** city, other than to enjoy the 40-50 percent profit margins
most consolidated stations are racking up? What public interest, what
diversity, does that serve? This decision also allows the giant media
companies to buy up the remaining local newspaper and exert massive
influence over some communities by wielding three TV stations, eight
radio stations, the already monopolistic newspaper, and potentially the
cable system. What public interest, what new competition, is enabled by
encouraging the newspaper monopoly and the broadcasting oligopoly to
combine? This decision further allows the already massive television
networks to buy up even more local TV stations, so that they control up
to an unbelievable 80 or 90 percent of the national television audience.
Where are the blessings of localism, diversity and competition here?
***I see centralization, not localism; I see uniformity, not diversity;
I see monopoly and oligopoly, not competition.***

Take away the protections against concentration that still remain and
one company could dominate a region's access to information by
controlling its radio stations, television stations, newspapers and
cable system. Where once it was commonplace to have two, three, or more
daily newspapers in a city, today most communities are one-paper
monopoly towns. Local broadcast television and radio are both
concentrated oligopolies in communities across this country. And the
story is not much better on a national level. The conglomerates that own
the networks control 70 percent of the prime-time audience. Their
audience share of television households is approaching -- and could soon
surpass according to analysts -- the share the three networks had during
the 1960s and 1970s. And today, those conglomerates are more vertically
integrated, controlling the production of most of their programs as
well.

What about the vaunted 500-channel universe of cable TV saving us? Well,
90 percent of the top cable channels are owned by the same giants that
own the TV networks and the cable systems. More channels are great. But
when they're all owned by the same people, cable doesn't protect
localism, editorial diversity, or competition. And those who believe the
Internet alone will save us from this fate should realize that the
dominating Internet news sources are controlled by the same media giants
who control radio, TV, newspapers, and cable. So, how does it promote
localism, diversity and competition to allow, as we will allow by our
action today, more media concentration in the more than 175 markets with
over 90 percent of the American population?

If we were just starting down the road to media concentration, maybe we
could have a different kind of discussion today. But we have already
traveled dangerously far down that road, and the need now is to slow the
headlong rush to media monopoly until someone can prove it is taking the
media, and the country, anywhere worth going. This is a huge and
foolhardy gamble with the future -- every American's future.

Let us remember that this is only the latest, most radical step in a
twenty-year history of undermining the public interest. Step by step,
rule by rule, bit by bit, we have allowed the dismantling of public
interest protections and given a green light to the forces of
consolidation, until now a handful of giant conglomerates are in the
saddle.

The Commission has allowed fundamental protections of the public
interest to wither and die -- requirements like ascertaining the needs
of the local audience, the Fairness Doctrine, teeing up controversial
issues, providing demonstrated diversity in programming, ensuring decent
quality programming for our children, to name a few of the safeguards we
had once but have abandoned.

At the same time, the Commission has pared back its license renewal
process from one in which it examined whether the broadcaster was
actually serving the public interest to one where companies need only
send us a postcard every eight years and nothing more. Unless there is a
major complaint pending against a station, the license is almost
automatically renewed.

The Commission cut back on its structural regulations that limited both
horizontal (or distributional) concentration ***and*** vertical (or
production) concentration, so that the same network distributing
programs increasingly owned them. The worst monopolies in American
history were built on this model. Then the Commission went further,
eliminating outright the vertical safeguards that protected against a
few conglomerates controlling all of the creative entertainment that we
see.

Over the years, the Commission has dismantled all of these provisions
and more, relying instead on marketplace forces as a proxy for serving
the public interest. Along the way, make no mistake about it, localism,
diversity and competition suffered grievous wounds. Worse, the heart and
soul went out of much of our media. And we are left with only the
current rules governing control of ownership structure as a means to
safeguard our public interest obligations. They can't do the job by
themselves, even if we were to keep them as they are. By emasculating
them today, we only make the problem worse. And by neglecting to do
justice to proposals that could supplement our ownership rules, such as
requiring more independently produced programs and enforcing real public
interest performance standards on our stations, we come perilously close
to taking the "public" out of the public airwaves.

Don't tell me that those of us who feel strongly about this are being
too emotional or are laying too much on one set of decisions. Some would
have us believe that this is merely an ordinary examination of our rules
that we conduct every two years. Let's not kid ourselves. This is the
granddaddy of all reviews. It sets the direction for how the next review
will get done and for how the media will look for many years to come. As
for the emotion, I have seen the concern, the deep feeling and outright
alarm on the faces of people who have come out to talk to Commissioner
Adelstein and me all across this broad land. Are they emotional? You
bet. And I think they are going to stay that way until we get this
right.

**I. The Commission's Decision-Making Process and Record Development Was
Deeply Flawed.**

Good, sustainable rules are the result of an open administrative process
and a serious attempt to gather all the relevant facts. Bad rules and
legal vulnerability result from an opaque regulatory process and
inadequate data. Unfortunately, today's rules fall into the latter camp.

The Commission launched this biennial review proceeding in September
2002. I went into this last year believing that if the Commission really
worked at it, got around the country looking at various markets, talking
to people, collecting data and really reaching out, we had a shot at
building an adequate record for today's vote.

Unfortunately, we have not succeeded. I am concerned that this
proceeding has been run as a classic inside-the-Beltway process with too
little outreach from the Commission and too little opportunity for
public participation in this far-reaching review of critical media
concentration protections. This is the way the Commission usually does
business, we are told. Well, I submit this is too important to be
treated on a business-as-usual basis.

Let's look at the facts. In October, we released the results of a dozen
FCC-sponsored studies. We gave commenters a mere 60 days to analyze the
six separate media consolidation rules and to sift through the twelve
studies. A number of these studies are incomplete and contested,
criticized because of allegedly faulty methodologies and unwarranted
conclusions. Yet today's item returns to them again and again, according
them what I believe is more deference than merited, to the exclusion of
other expert studies. I criticize the studies no more than the
Commission's operating premise that in this far-reaching rulemaking that
will affect tens of billions of dollars in industry business, we could
understand its implications and its consequences through a small number
of meagerly financed inquiries that ignored many of the most critical
questions.

I was also saddened last Fall that we failed to open our own studies to
public scrutiny by not releasing the methodology or underlying data,
notwithstanding that some of the studies were based on proprietary data
that parties criticized as being created for and manipulated by the
media industry. Finally, a month later, while the clock for comments
continued to run, we provided limited release of the underlying data,
but only to those who could come to our headquarters in Washington, D.C.
Requests for further extensions of time to assess these studies and
provide additional record data were denied.

We then sought to promote the broader national dialogue and debate that
these issues so clearly merit. Proceeding on an assumption that all
expertise does not reside within the Beltway, I sought to have the
Commission hold a series of forums and roundtables around the country
that would include significant input from both traditional and
non-traditional stakeholders. After an initial flat denial we were given
only one official hearing, and it was less than 100 miles outside the
Beltway in Richmond, Virginia.

That was a start, but at the time we held that hearing, a survey
indicated that three-quarters of all Americans were not aware that this
critical issue was being decided at the FCC. We had not told them, nor
had Big Media told them. I sought additional hearings and forums. Again,
no success. I sought resources to hold my own hearings and to attend
forums. Again, requests for both staff assistance and funding were
denied.

Using my limited office resources, I have traveled across the country to
attend as many hearings and forums as I could. I commend Commissioner
Adelstein for his very active participation in this hearing process.
Between us, we have held hearings and attended forums in New York,
Seattle, Austin, Durham, Phoenix, Chicago, Burlington, San Francisco,
Los Angeles, Philadelphia, Marin County, Detroit and Atlanta. All told,
there have been over a dozen gatherings to discuss media ownership.

With resources and institutional dedication, a full-fledged process
involving more Commissioners could have given us the information and
insight needed to craft rules that both took account of technological
and market changes and fulfilled our responsibility to protect localism,
diversity and competition. But we had too few resources and too little
dedication. So, we are left, unsurprisingly, without the record or new
ideas we need to do our job well.

More recently, the Commission has even refused to publicly disclose the
rules we are voting on today. What possible harm comes from
transparency? How can telling Congress and the public what we plan to do
possibly be bad? I see no legitimate purpose for casting our votes in a
shroud of secrecy except to insulate the FCC from public scrutiny.

Therefore, Commissioner Adelstein and I sought to have the specific
proposals put out for public notice and comment. We believed that the
country would be much better served by putting the proposals out for
comment for a limited period, say 60 or 90 days, so we could get it
right, understand the consequences of the new rules (both the intended
consequences and those invariably more troubling unintended ones) and
let these ideas bathe in the sunshine of national debate. Such
discussion would have the important additional benefit of enhancing the
sustainability of any Commission decision in court by providing concrete
input, analysis, and testing on specific proposals. Sound policymaking,
perhaps even the law, requires no less. But the request was denied.

When a draft proposal, ***not including the proposed text of the new
rules themselves***, was circulated to Commissioners a mere three weeks
before today's vote, we formally requested that the Commission postpone
today's meeting to provide additional time to study more thoroughly the
impact of the proposals and their interplay, and to see if common ground
could be found. Under long-standing Commission practices, such requests
from Commissioners have generally been honored. That request was also
denied.

And so, we arrive at today. Citizens across this country will hear for
the first time the proposals that we are adopting. Some of the details
of the rule changes have leaked to the press. Even with this incomplete
information, the public reaction against the proposed changes has been
unlike anything the FCC has ever experienced. This proceeding has
generated three-quarters of a million comments now -- more than any
other proceeding that I am aware of in the history of the FCC. Of those
comments, all but a few hundred are from individual citizens. And of
those, nearly every one opposes increased media consolidation -- over
99.9 percent!

We've heard bipartisan concern from more than 150 Members of Congress,
including the Congressional Black Caucus, Congressional Hispanic Caucus,
and the Congressional Asian Pacific American Caucus, asking us to slow
down and put these proposals out for public comment before we vote. Some
of those Members of Congress are here today.

Dozens of organizations have weighed in with their concerns about media
concentration. Among others, we have heard from Children Now, the
Writers Guild of America, the Parents Television Council, the
Communications Workers of America, AFTRA, the National Association of
Hispanic Journalists, the National Association of Black Journalists, the
Conference of Catholic Bishops, the Center for the Creative Community,
Common Cause, the American Civil Liberties Union, the National Rifle
Association, the American Civil Liberties Union, the National
Organization for Women, the Family Research Council, the National
Association of Black Owned Broadcasters, Rainbow Push, the Media Access
Project, Consumers Union, the Consumer Federation of America, Move On,
the Center for Digital Democracy, United Church of Christ, the Minority
Media and Telecommunications Council, the Leadership Conference on Civil
Rights, and many, many more across a broad political and geographic
spectrum. City councils across this country in such places as Chicago,
Seattle, Philadelphia, San Francisco, Atlanta, and Buffalo, as well as a
whole state \-- Vermont \-- have gone on record against media
concentration. Note, please, that several of these are cities where Big
Media would have us believe that all is well with the consolidation they
have introduced.

As Brent Bozell of the Parents Television Council so aptly put it, "When
all of us are united on an issue, then one of two things has happened.
Either the Earth has spun off its axis and we have all lost our minds or
there is universal support for a concept." Well, it's the concept -- a
transcending, nationwide concept. This issue is not Republican or
Democratic. It is not liberal or conservative. Not North or South. Not
young or old. It is an all-American issue.

The FCC is not, of course, a public opinion survey agency. Nor should we
make our decisions by weighing the letters, cards and e-mails "for" and
the letters, cards and e-mails "against" and awarding the victory to the
side that tips the scale. But even this independent agency is part of
our democratic system of government. And when there is such an
overwhelming response on the part of the American people and their
representatives in Congress assembled, we ought to take notice. Here the
right call is to take these proposals, put them out for comment and then
\-- only then \-- call the vote. Plausible arguments have been put
forward that the letter of the Administrative Procedure Act requires
this. Other legal experts demur. I do know this: the spirit underlying
notice and comment is that important proposed changes need to be seen
and vetted before they are voted. Today we vote before we vet.

Now the only opportunity all these concerned citizens have to comment on
the specific rules is to file reconsideration petitions after the
decision is already made. Given that such petitions are unlikely to be
resolved for months, the impact of this decision by then will likely be
irreversible. In such a situation, we ought to establish a longer
timetable and procedure for implementation of these changes to the
rules, just as the Commission did when it dismantled the financial
interest and syndication rules a decade ago. Such a procedure would
allow the Commission to consider petitions for reconsideration on these
specific rules to protect against irreversible, unintended and
unforeseen negative consequences. This would also allow the Commission
to examine its proposed rules and determine if additional measures are
needed to protect the public interest before consolidation occurs, and
it would allow Congress opportunity for any input that it may deem
appropriate.

**II. The Record Does Not Support the Majority's Decision To Undermine
Media Concentration Protections.**

In reviewing our first biennial review, the D.C. Circuit faulted the
Commission for its failure to provide an adequate explanation for its
rules.[^3] Importantly, the court did not indicate that a relaxation of
the concentration limits is warranted or required.[^4] On the contrary,
the Commission could choose, if so inclined, to ***tighten*** its
ownership rules. What the court demands is that the Commission provide
more analysis and empirical data to justify the rules it adopts. And I
do not believe the courts want only granular, data-driven
justifications; I think they would welcome justifications more deeply
grounded in history, macroeconomics, political theory and the philosophy
of democratic government. In any event, we are obligated to present
reasoned rationales with more compelling explanations than we have thus
far presented. But we are ***not*** instructed to radically restructure
the rules.

My overarching reaction to the record before us is this: first, the
evidence we have gathered does not justify such loosening of the rules
as the majority approves today and, secondly, we have not asked a
sufficiently diverse range of questions to do justice to so important a
public issue. The evidence we have amassed points to the need for
maintaining existing media concentration protections.

The court was particularly troubled by inconsistencies in our previous
decisions. Yet, in this Order, the majority once again fails to provide
coherence and internal consistency to the rules and rationales we adopt.
I am concerned that these inconsistencies will undermine the decision on
appeal and will open the decision to the charge that it was made to
reach the result sought by companies that want to consolidate. I provide
below a few examples of these inconsistencies.

**A. The Majority Ignores the Lessons of Radio Concentration.**

In 1996 Congress and the FCC eliminated the national cap for radio
concentration. Over the years the Commission has loosened its local
radio concentration rules so that one corporation can now own up to
eight stations in a market. These deregulatory changes provide the FCC
with a record to study the impact of fewer media concentration
protections on localism, diversity and competition.

The largest company owned less than 75 stations before deregulation.
Today one company, Clear Channel, owns more than 1,200 stations. In many
cities, this company owns eight stations. In some markets, it owns even
more. And in some towns, it owns virtually all the stations available.
The number of radio station owners has decreased by an incredible 34
percent since 1996. The number of minority owners has dropped by a
shocking, and nationally embarrassing, 14 percent. A Future of Music
Coalition study shows that music has become more homogenous and that
many stations are now programmed by computers hundreds of miles away
rather than by local DJs, leaving no local content. In our hearings
around the country, Commissioner Adelstein and I have talked to many
capable young musicians and creative artists who are simply unable to
secure air time in the new consolidated radio environment. Real news
radio is dying outside the largest cities, and viewpoint diversity has
given way to a constant drumbeat of one-sided talk shows.

Even supporters of today's decision have been heard to say that the
state of radio is troubling \-- yet the Commission charges ahead to
deregulate TV and newspapers without comprehensively studying the
results of radio concentration. The failure to do so ignores critical
information that is both relevant to these rules and that suggests the
rules we vote on today are a mistake.

Even worse, although the majority claims it is taking steps to limit
radio concentration, in fact the majority today launches a new round of
consolidation in radio. First, the majority eliminates in the vast
majority of the country the radio/TV cross-ownership rule which limited
the number of commercial radio and television stations one company could
own in a market. Without these cross-ownership limits, companies can
expand their reach even further. In addition, in the name of helping
small businesses, minorities, and women, the majority creates a huge new
loophole for consolidation above even the limits set today. The majority
grandfathers any clusters that are above the caps. It further allows a
company to transfer those licenses to a small business. After only three
years, the majority allows the small business to sell those stations to
anyone else without restriction \-- even if it is to Clear Channel or
some other giant media conglomerate. This decision will encourage a
regulatory shell game that threatens to make a mockery of the radio
limits.

B.  **The Decision To Raise the National Ownership Cap to 45 Percent
    is**

    **Arbitrary.**

Current protections limit TV networks to controlling 35 percent of the
national TV audience. Today we increase this limit to 45 percent,
encouraging what Merrill Lynch calls a "Gold Rush" of acquisitions of
local stations by the big four networks. The Communications Act insists
that the Commission protect localism, diversity and competition. In
reviewing the last biennial review, the D.C. Circuit held that diversity
and localism are valid public interest goals and that the Commission
could determine that the national ownership cap is necessary in the
public interest if it serves either interest. The court held, however,
that the Commission had failed to provide sufficient evidence that
either objective was served.[^5] The majority today correctly determines
that a national cap is needed to serve the statutory goal of having
independently owned affiliates continue to serve local community needs
and to act as a counter-balance to the national networks. The majority,
however, arbitrarily determines that the cap should be raised from 35
percent to 45 percent without adequately justifying this new number,
seeking comment on this specific number, or presenting their rationale
for arriving at it. The courts may exact a heavy toll on the majority
for these omissions.

The National Association of Broadcasters, the Network Affiliated
Stations Alliance, and other parties favoring retention of the 35
percent cap submitted exhaustive and largely uncontested evidence
including economic studies, station surveys, in-depth analyses, and
numerous market-specific examples to justify retention of the 35 percent
cap. The record evidence demonstrates, among other things, that
independently owned affiliates are better able to preempt network
programming networks based on community standards and needs; that the 35
percent cap ensures a critical mass of affiliates necessary to perform
this role effectively; and that a substantial majority of affiliates are
experiencing increasing pressure from the networks not to preempt
network programming. Yet, the majority largely ignores this evidence and
arbitrarily chooses a number that tips the balance further in favor of
the national networks and away from the local stations. The majority
fails to explain how a 45 percent cap -- in reality a 90 percent
national cap with the illogical UHF discount as discussed below -- meets
Congressional goals.

The majority justifies an increase in the cap to 45 percent based on the
assertion that affiliates preempted networks with a national reach of
over 35 percent as often as those with less than 35 percent. It does so
without accounting for the weight of evidence in the record that
supports retaining the 35 percent cap. The majority further reasons that
the 45 percent cap could accommodate all existing combinations. But this
goal could have been met with a 40 percent cap as well. Yet the majority
concludes that it needs to allow conglomerates to grow further without
any explanation for this particular number. I repeat: the prospects for
successful judicial scrutiny are not well served by this approach.

Some have argued that the only way to preserve free over-the-air
television is to let the big conglomerates get even bigger. Unless we
allow even more concentration, the argument posits, over-the-air
television is doomed. I find the arguments regarding the networks'
financial distress to be far-fetched, more likely totally ludicrous. The
facts tell such a different story. The networks, with their ability to
deliver a large number of viewers across the country, have become even
more valuable. They not only reach consumers over the air through their
own highly profitable stations and through affiliates, but they are also
guaranteed carriage to cable subscribers. Indeed, they own much of
cable. The record demonstrates that the top four networks maintain the
greatest reach of any medium of mass communications. I find no
convincing evidence in the record of network poverty or financial
distress. Although it is difficult to break out a precise measure of one
part of these large conglomerates' operations, it is clear that their
broadcast operations are profitable. Moreover, the network operations
enhance the profitability of other parts of the conglomerate. The
Commission itself recently concluded that, "Broadcast television is
certainly a survivor, even a vigorous survivor." [^6] The networks
command an enormous advertising premium. They recently received a record
\$9.4 billion in up-front prime-time advertising for the next season.
They have ownership in most of their profitable programs, and these are
subsequently put into syndication or "repurposed" -- the fancy new term
for a re-run. These companies know how to move costs around, shift
assets and make things look good or bad as they need to do for various
audiences. Sometimes regulators hear a very different story than Wall
Street analysts hear. I believe the argument that the only way for the
less well-off among our citizens to continue receiving free,
over-the-air television is through allowing already powerful networks to
grow more powerful would have been better left unsaid.

I would add a point on the much-touted economies of scale and the
alleged efficiencies of bigness, because it may be that the networks do
have a longer-term reason to worry. This country has witnessed the
unraveling of huge mega mergers and acquisitions across economic sectors
during the past couple of years, while other such ventures are
struggling to make it. We should have learned by now that size is no
guarantor of success, even though the urge to grow larger continues to
motivate so many industries. Suppose we whittle down the media world to
an even more precious few, and some of these begin to implode like other
huge deals have imploded. Talk about stations going dark! Talk about
striking at the heart of the country! Sometimes I think the networks
need to be protected from themselves.

C.  **Maintaining the 50 Percent UHF Discount In the Face of**

    **Technological and Marketplace Changes Is Arbitrary.**

Understanding the so-called "UHF Discount" is critical to understanding
how the new 45 percent cap will actually work. Under the UHF Discount
policy, UHF stations are considered to reach only 50 percent of the
households that a VHF station reaches in a market for purposes of
determining whether a company has exceeded the national ownership cap.
When established in the mid-1980's, this discount was designed to take
into account the technical limitations of over-the-air UHF stations. The
Commission found that over-the-air UHF stations reached fewer viewers
than VHF stations because their signals were different and weaker. But
UHF and VHF stations reach an identical number of viewers when delivered
over cable TV facilities. The differences between UHF and VHF only
manifest themselves when they are broadcast over the air. Why didn't the
Commission consider this in the 1980's? Because at that time cable
penetration was only around 35 percent, so the vast majority of
Americans received their television signals over the air. Today over 85
percent of consumers receive their signals from cable and DBS. Cable
signal carriage rules ensure that consumers receive the UHF signal, and
DBS operators are required to carry all UHF stations in any market where
they carry any local channel. According to the record, these changes in
the market are reflected in the valuations of UHF licenses which are
approximately 10-15 percent less than VHF licenses with similar
affiliations. Indeed, the Commission itself in previous proceedings has
recognized that the growth of Multichannel Video Programming Distributor
(MVPD) subscribership has reduced the UHF signal handicap.[^7]

With 85 percent of Americans experiencing no difference between UHF and
VHF stations, the discount no longer makes sense. Eliminating the entire
discount may be warranted, but at a minimum it requires replacement with
a number that reflects the reality of today's technology and
marketplace.

Notwithstanding the majority's repeated admonishments that the
Commission must take into account changes in the marketplace and in
technology and must provide empirical data for the rules it adopts, the
majority inexplicably, and I believe wrongly, retains the UHF discount
in its present form without performing the comprehensive review that is
required.

Adding to the inconsistency in this decision, when the majority conducts
its analysis of the cross-ownership and local television rules, it
counts the number of television stations in the market. All stations --
whether UHF or VHF \-- are counted equally in this analysis and assumed
to be available throughout the market. How can it be that, in one part
of the decision, UHF stations are determined to reach the entire market,
and in another part of the same decision, those stations are determined
to reach only half the households?

Eliminating or changing rule after rule to allow further consolidation
on the basis of changed technology and market conditions, yet refusing
to change the one rule that the networks approve will lead many to
believe that this decision is results-oriented, that it is designed to
ensure that no station group exceeds the national cap, and that
conglomerates may continue to grow no matter what technological or
marketplace changes may occur.

**III. The Majority's Rules and Reasoning are Arbitrary and
Inconsistent.**

As described above, I believe that the majority has made serious errors
in its high-level decisions to restructure media concentration
protections. It is also important to recognize that when one digs into
the details of today's action, it becomes clear that it is riddled with
arbitrary decisions and inconsistencies. I describe a few of them here.

A.  **The Majority Protects Against Mergers of the Top Four Television**

    **Stations in a Market but Inconsistently Allows a Monopoly**

    **Newspaper To Purchase Even the Top Television Station.**

In the local television ownership rule, the majority recognizes that a
single entity can achieve excessive market power through consolidation.
The majority therefore precludes one company from owning two of the top
four television stations in a market. The majority further treats news
sources as interchangeable in its "Diversity Index" that counts
different media news outlets available to consumers. Yet, although the
majority constrains two of the larger local news voices in the market
from combining in the local television rule, the majority arbitrarily
provides no similar constraints in its cross-ownership rules. The Order
allows a newspaper -- clearly a significant news voice in the market --
to purchase one of the top four television stations, thereby potentially
harming consumer welfare and eliminating a voice just as surely as
allowing two of the top four stations to merge. The majority does not
explain this inconsistency. Nor does it explain how allowing a newspaper
with say 80, 90, or even more of the circulation in a community to merge
with the top station in that market would help a smaller newspaper or
television station survive. Indeed, such a merger could allow the
creation of a dominant news outlet in the market against which no other
entity could compete. Yet, the majority does not explain how eliminating
one strong local news voice through consolidation will benefit
diversity, localism or competition in that market.

An additional problem concerns the majority's method of counting news
voices in the market. The Diversity Index counts television, newspapers,
radio, and the Internet as local news outlets. It weighs television most
heavily, and gives Internet sites the least weight, based on where
consumers ***actually*** obtain their news. The majority, however, then
counts all outlets within a medium equally in assessing the level of
consolidation allowed. This inconsistency between using actual news
sources in one part of the Diversity Index and potential news sources in
another leads the majority to count a television shopping channel as
heavily as a station with local news programming when assessing news
outlets within a community. In sum, the majority bases its Diversity
Index on where consumers supposedly obtain news, but then arbitrarily
allows cross-ownership based on all television stations, not just those
providing news.

B.  **The Majority Inconsistently Accepts "Highly Concentrated"
    Markets**

> **and Arbitrarily Treats All Television Stations as Equals.**

In its local television ownership rule, the majority allows one entity
to own three stations when there are at least 18 stations in the market.
The majority reasons that requiring 18 stations will preserve at least
six independent voices and therefore, ensure the market is at most
moderately concentrated. The *Merger Guidelines* of the U.S. Department
of Justice and the Federal Trade Commission categorize any market with
fewer than the equivalent of 10 equal-sized independent entities as
"concentrated," and any market with fewer than 6 such entities as
"highly concentrated."[^8]

But the new rules go even farther, permitting even more concentration by
allowing duopolies in markets with as few as five stations. Thus,
broadcast television in many markets across the country may be highly
concentrated. Moreover, given that all stations do not provide local
news, the market for broadcast television newscasts will be even more
highly concentrated. The majority does not take account of this fact.

Why does the majority believe that allowing concentrated local markets
is acceptable? Why does it believe that allowing even highly
concentrated markets is acceptable in markets with 5 to 6 stations? Why
does it treat all TV stations as equals, from the Home Shopping Network
to the local NBC station, whether or not they have local news?

A similar problem of concentration occurs in the context of the local
radio rule. At present, we not only limit the overall number of stations
one entity can own, but we also flag mergers that will result in one or
two entities dominating a market, thereby initiating a public interest
review by the Commission. The majority would have the Commission rely
only on a station limit, without any examination of the audience or
advertising share. Without such limits, one company could acquire all of
the top stations in the market, with the result being that one entity
dominates, or even monopolizes, that market.

C.  **The Majority Arbitrarily Fails To Account for Local Market**

    **Conditions in its Bright-Line Rules Undermining Localism,
    Diversity**

> **and Competition.**

The record demonstrates that every local newspaper market is "highly
concentrated" according to the Department of Justice's
Hirfindahl-Hirschman Index. Indeed, most communities have become one
newspaper towns. The vast majority of local television and radio markets
are tight oligopolies, with even higher levels of concentration for
local news. I do not find that the majority accounts for this extreme
level of concentration in its decision, ignoring quantifiable data in
the process.

A rulemaking that met our statutory obligation to safeguard localism,
diversity and competition would have examined the voices available in
specific local markets and whether proposed transactions would undermine
these principles in specific communities. The majority's reliance on
national bright line rules does not allow us adequately to take into
account different situations in local markets. The majority
inconsistently allows parties to seek waivers of our rules where local
conditions mean a transaction that violates the bright line rules would
in fact not offend localism, diversity and competition; but it does not
similarly accept petitions to deny transactions that undermine these
core principles even if they meet our bright line rules. This one way
ratchet is arbitrary and irrational.

D.  **The Majority Arbitrarily Concludes that All Consolidation Will**

    **Enhance News and Informational Programming.**

The majority arbitrarily concludes as a general nationwide matter that
efficiencies created through consolidation will enhance news and
informational programming. They therefore, *a priori*, determine that
all mergers that cause concentration levels up to our bright line rules
will serve the public interest, without any individualized examination
of the facts of a particular merger. There is no record to support such
a sweeping conclusion. The majority, without such support, bases its
rules on the hope that companies will use some of the money they save
through consolidation to invest in more news and informational
programming. But the record shows that instances where companies have
provided more news and informational programming following consolidation
are overwhelmed by instances where news voices and news programming in a
market were eliminated.

E.  **The Majority Arbitrarily Treats Television Stations, Newspapers,**

    **Radio Stations and Internet Sites Equally For Purposes of
    Analyzing**

    **Diversity and Competition in the Local Market.**

The majority treats broadcasters as just one voice among many, no
different from a website. The majority's analysis depends upon treating
different types of media as equally important "voices" in the local
market. Clearly, different types of media are not identical in providing
localism, competition and diversity. This analysis ignores that
broadcasters play a distinct role in our media. They are granted the
right to use a public resource and, in exchange, they commit to serve
their local communities. Notwithstanding the majority's assertions about
new technologies and the availability of alternative sources of
information, the fact remains that there is still an inadequate number
of frequencies to accommodate all those who wish to broadcast to local
communities.

We should recognize and reaffirm the proud heritage of local
broadcasters, many of whom are strongly committed to serving the public
interest. Unfortunately, consolidation has meant that broadcasters are
less and less captains of their own fate and more and more captives to
Wall Street and Madison Avenue expectations. One large station owner
reportedly stated that, "We\'re not in the business of providing news
and information. We\'re not in the business of providing well-researched
music. We\'re simply in the business of selling our customers
products.\" Another large station group's "local" news is actually
"distance cast" from one central location hundreds of miles away. During
the hearings and forums that Commissioner Adelstein and I attended, we
heard time and again from small, local broadcasters that consolidation
has had a direct and detrimental impact on their ability to compete
against the large conglomerates that cut costs by consolidating
operations outside of the community. Although there are few such
poignant examples, it is not only such places as Minot, North Dakota
that are feeling the effects.

F.  **The Majority Arbitrarily Subordinates Diversity and Localism**

    **Concerns To Competitive Concerns.**

The majority subordinates the statutory goals of localism and diversity
to competition throughout its analysis. The principles of localism and
diversity are deeply rooted in our history. Since the earliest days of
our nation, access to a diversity of viewpoints on issues of public
importance has been considered essential to democracy. Maximizing the
number of independent owners increases the likelihood of a wider range
of viewpoints. And Congress mandated that we protect localism because
local media tailor their programming to the needs of their communities.

Yet, the majority time and again relies only on measures of economic
efficiency to justify rule changes, but does so at the expense of
viewpoint and ownership diversity. It is clear that it would be less
expensive to have one owner control all of the news outlets and to have
the local broadcaster merely act as a passive feed for a national
network. But the American broadcast system is based on more than just
market forces. Any rule changes must be evaluated in diversity and
localism terms, and not just economic terms.

I am pleased that the majority at least acknowledges the important goal
of having adequate minority and female ownership in the broadcast
industry. But I am disappointed that it then fails to take
well-considered action to try to achieve this goal. Minority ownership
is vitally germane to this proceeding. I fail to see how we can
perpetuate diversity of viewpoint, for example, without addressing
minority ownership. Ownership matters to diversity. The issue of its
impact on women and minorities should not be relegated to a Further
Notice at some indeterminate time. It is not enough to allow dominant
clusters that exceed our limits to be transferred to small businesses
and then, after a few years, be transferred to a large media
conglomerate. How does it benefit minorities and women to maintain such
high levels of concentration in a market? How will minority- and
female-owned businesses break into a market if the stations are already
locked up? Wouldn't these businesses be better served if there were more
opportunities for ownership and we addressed such problems as access to
capital?

Other facets of diversity fare even less well. The majority concludes
that market forces will ensure adequate program diversity, and it
dismisses outlet diversity and source diversity as independent goals.
There is inadequate record support for these sweeping decisions. Lacking
record support, the majority merely offers us unproven beliefs for
comfort.

In the end, this decision also disserves competition. In a media world
already well down the road toward high levels of consolidation,
questions of preserving small, independent voices and of encouraging
conditions conducive to new market entry should be a top Commission
priority. Instead, I hear around the country, and I read in newspapers
almost every day, the anguish of independent stations facing the
prospect of imminent absorption by one of the media Goliaths. Some of
these independents serve very diverse audiences and what they fear most
is that the first casualty of a buy-out would be their very diversity.

**IV. The Order Fails To Consider Several Relevant Concerns and To
Include Several Important Proposals.**

The previous section describes a number of problems with the contents of
the Order. But equally troubling are the Order's omissions. The
Commission has not conducted adequate analysis to make an informed
decision on the impact of the additional consolidation we allow today.
The studies the Commission conducted are a start. But, even putting
aside the myriad criticisms of the conclusions and methodology employed
in these studies, the Commission only examined a few questions.
Amazingly, we did not even attempt to consider the prospective impact of
the consolidation that would occur following these rule changes. Nor
have we ascertained how these rule changes interact and work in concert,
instead apparently assuming that each rule is an island, and that the
interactivity of rule changes will not have important effects on the
media landscape. These studies also do not consider what the impact of
these rule changes will be on local communities across this country.

This section details several relevant specific concerns that are not
adequately addressed in the Order, and several important proposals that,
if included in the Order, would have greatly improved it.

A.  **The Order Should Address the Impact of Undermining Concentration**

    **Protections on Independent Programmers.**

Commenters addressed the need to require more independent programming on
our airwaves so that a few conglomerates do not act anti-competitively
to control all of the creative entertainment that we see. These
proposals should have received the serious attention they deserve in
***this*** decision. Over the past decade, we have witnessed a
substantial increase in the amount of programming owned by the networks.
Where once independent production accounted for much of what we saw, we
now have huge vertically-integrated conglomerates that own the vast
majority of the programming they deliver.

As we loosen the concentration limits, we should have addressed whether
there is a need for independent programming requirements to ensure that
we do not end up with national vertically-integrated conglomerates that
control the distribution channels ***and*** all of the content we see
and hear. The powers of vertical concentration in today's broadcast
industry are part and parcel of the power that accompanies ownership.
Network ownership of the full range of prime time programming constrains
competition, consigns independent production to oblivion or, at best,
minor and marginal roles, and it cripples the production of diverse
programming. It also entails serious job losses for thousands of
workers, including creative artists, technicians and many, many others.
I am disappointed that the majority dismisses out of hand the issues
raised by independent content producers. The majority expresses doubt
that it had notice to act and then finds that changes to our rules are
not warranted in any event.

B.  **The Order Should Establish a Legitimate License Renewal Process
    To**

    **Partially Protect Against the Risks of Further Consolidation.**

Some commenters suggested the need for an effective license renewal
process under which the Commission would once again actually consider
the manner in which a station has served the public interest when it
comes time to renew its license. The Commission formerly did exactly
that. But the system has degenerated into one of basically post-card
license renewal. Unless there is a major complaint pending against a
station, its license is almost automatically renewed. A real,
honest-to-goodness license renewal process, predicated on advancing the
public interest, might do more for broadcasting than all these other
rules put together. Such a process, properly designed, would avoid
micro-management on a day-to-day basis in favor of a comprehensive look
at how a station has discharged its public responsibilities over the
term of its license. Such an approach is most certainly within the scope
of this proceeding, if for no other reason than the objective of our
ownership rules is to benefit the public interest. It would certainly be
a welcome supplement to achieving the goals Congress established for the
ownership caps.

C.  **The Order Should Require Licensees and Those Seeking License**

    **Transfers To Periodically Report To the Public How They Serve
    the**

    **Public Interest.**

From the earliest days of broadcasting, the Commission has sought to
promote localism and obligated licensees to serve the needs and
interests of the local communities. Why not require licensees to
disclose more publicly how they are serving the public interest and the
needs of their local communities? Such information, perhaps made
available on the Internet, would give the public an overview of how its
airwaves are being used and might provide incentives to produce more and
better local news and community programming. At a minimum, it would
allow us to analyze whether our rules are actually achieving their
desired goals so that future Commissions can make better decisions.

In addition, special disclosure rules ought to apply to buyers and
sellers seeking to transfer a license. They ought to specify the
tangible, concrete ways in which the transaction would serve the public
interest. The merged entity would then have to disclose after the
transaction how it fulfilled its public interest benefits. Such a step
would allow the Commission to identify those transactions that serve the
public interest, convenience, and necessity, as required by the statute.
The majority claims that consolidation could lead Big Media to produce
more and better local news and community programming. Let's take some
action to make sure this expectation is met and to hold conglomerates
accountable after mergers. Moreover, this procedure would allow us to
identify those transactions in all markets \-- including smaller markets
\-- that serve the public interest.

D.  **The Order Fails To Analyze the Impact of Undermining**

    **Concentration Protections On Children, On Families, and on**

    **Indecent Programming.**

In our hearings, we heard from parents fed up with the rising tide of
indecency and violence on the airwaves and repulsed by programming's
race to the bottom. We also heard from broadcasters who had managed
network-owned and operated stations and were unable to preempt
programming that they believed was not suitable for their community.
These broadcasters told us that programming decisions were often made by
distant network executives rather than by local station managers. In
contrast, we heard from independent local broadcasters who had stood up
to programming they and their communities found inappropriate.

Some have suggested that there may be a link between increasing
consolidation and increasing indecency on our airwaves. Yet, the
Commission failed to address this issue in its analysis. Has
consolidation led to an increase in the amount of indecent programming?
When programming decisions are made on Wall Street or Madison Avenue,
rather than closer to the community, do indecency and excessive violence
grow more pervasive? I do not know the answer to this question. I do
know this: we have no business voting until we take a serious look at
the matter and amass at least a credible body of evidence. We owe it to
our children, and their parents, to explore this question before voting
on whether to allow more consolidation.

I say again: ownership matters. If it is not germane for this proceeding
to ascertain whether there is a possible relationship between indecent
content and the fact that a shrinking Media Elite controls that content,
then I do not know what is germane.

In addition to its failure to consider the impact of consolidation on
indecency, the majority does not look at the relationship between
concentration and ***positive*** children's programming. We now have
some data on this subject in the record. The news unfortunately is not
good. A recent study analyzed the market in Los Angeles and found that
the number of broadcast TV programs for children dropped sharply after
independent local stations were swallowed up in media mergers. This
study found a 47 percent drop in children\'s programming with duopolies
accounting for the largest decreases. Another recent survey found that
80 percent of parents think the FCC is doing a poor to fair job of
protecting families and children. Unfortunately, we do not take actions
today to gain their confidence. Although the Commission does take a
positive step today to ensure that duopolies and triopolies will not
merely rebroadcast the same children's programming, we do nothing to
examine how Big Media will serve our youngest viewers and listeners
before allowing further consolidation to take place.

Some believe that the First Amendment does not allow us to consider
these subjects in relation to our concentration rules. But there are
laws in force today on both of these subjects and courts have upheld
special responsibilities for broadcasters related to these goals. If
there is a question of whether the Commission can constitutionally try
to use concentration restrictions to reduce indecency and increase
children's programming, let us have that debate on the record rather
than ignore these clear Congressional goals.

E.  **The Order Fails To Analyze the Impact of Undermining**

    **Concentration Protections on Women and Minority Groups.**

Twenty-five years ago, in the FCC's Statement of Policy on Minority
Ownership of Broadcast Facilities, the Commission said, "It is apparent
that there is a dearth of minority ownership in the broadcast industry."
A quarter of a century later, there still is. Although today's Order
recognizes the importance of minority and female participation, we fail
to conduct rigorous analysis of the impact of today's rules on
minorities and women.

We know that there are substantially fewer radio station owners today
than there were before the rules were changed in 1996. People of color
now make up less than four percent of radio and television owners. The
National Association of Black Owned Broadcasters tells us that the
number of minority owners of broadcast facilities has dropped by 14
percent since 1997. People of color are under-represented not only in
boardrooms, but in newsrooms as well. Maybe that's why a study from
Fairness and Accuracy in Reporting found that 92 percent of sources
interviewed on the nightly network news were white and 85 percent were
male. A handful of huge companies stand astride the media world and it
is not helping diversity of viewpoint, diversity of ownership, or just
plain old American diversity.

It is not surprising therefore that among those opposing the relaxation
of ownership rules are the Congressional Black Caucus, the Congressional
Hispanic Caucus, the Congressional Asian Pacific American Caucus, the
Leadership Conference on Civil Rights, the National Organization for
Women, the National Association of Black-Owned Broadcasters, the
National Association of Hispanic Journalists, the National Association
of Black Journalists, and many others who are afraid that additional
media concentration wlll reduce opportunities for minorities and women.

We have not even attempted to understand what further consolidation
means in terms of providing Hispanic Americans and African Americans and
Asian-Pacific Americans and Native Americans and women and other groups
the kinds of programs and access and viewpoint diversity and career
opportunities and even advertising information about products and
services that they need. America's strength is, after all, its
diversity. America will succeed in the Twenty-first century not in spite
of our diversity, but ***because*** of our diversity. Diversity is not a
problem to be overcome. It is our greatest strength. ***And our media
need to reflect this diversity and to nourish it.*** It takes no rocket
scientist to understand that changing the rules of media consolidation
is likely to have far-reaching effects on different groups.

The decision today states that we will address minority and female
ownership proposals in the future and will establish a new Advisory
Committee on Diversity. An advisory committee is a good step, but we
should not be deflected from tackling the ownership diversity questions
that are central to the media concentration item before us now. I am
reminded of that old bureaucratic sleight-of-hand of foisting
controversial issues onto a new government commission or task force to
get them out of the way. In any event, solutions to this problem will be
harder to come by if media conglomerates proceed now to lock up control
of the scarce licenses to use the public's airwaves. That is why these
problems need solutions now, not somewhere far down future's road.

Where the Commission has acted in this decision, it is not to the
benefit of minority communities. The majority even determines that those
who speak Spanish or any language other than English do not deserve the
limited protections the Commission adopts today. The cross-ownership
rules apply only to English-language newspapers unless it can be
demonstrated that another language is dominant in that market. Thus,
these safeguards are not even triggered by a merger between a
broadcaster and, for example, a Spanish-language newspaper in most
communities in this country. This decision allows even higher levels of
media concentration for the millions of Americans who depend on
non-English media for their news and entertainment.

F.  **The Order Fails to Analyze the Impact of Consolidation on Small,
    Local Broadcasters.**

Increasing consolidation threatens the very survival of small, local
broadcasters. Media analysts expect that the only option for local
broadcasters will now be to sell. They conclude that those that want to
remain will face an extremely tough road. During our hearings, we heard
from small broadcasters that had already been squeezed out of the
market. These rule changes can only accelerate this trend. These changes
could spell the end for such uniquely local stations as WCIU TV in
Chicago and many other small, independent broadcasters. Yet, we have
failed even to consider the impact on these local broadcasters.

G.  **The Order Fails To Analyze the Impact of Undermining Concentration
    Protections On Small Businesses and Advertisers.**

Changes to media concentration rules also threaten small businesses. As
fewer and fewer companies control our media outlets, small local
broadcasters will find it harder and harder to compete. Other small
businesses will find it harder to produce and sell programming as
national vertically integrated conglomerates control local distribution.

Concern has been expressed in the hearings that Commissioner Adelstein
and I conducted that consolidated media markets are more expensive for
advertisers. We have also heard concerns relative to consolidated media
companies forcing advertisers to run ads in all their media assets and
stations, not just the ones the advertisers really want. This means that
even if per-eyeball ad rates look stable in a market, real-life
advertising expenses may be rising significantly. And small businesses
may not be able to afford advertising on multiple outlets, even if the
rates in one particular market are not rising. This is another of those
circumstances that need study before we proceed to vote.

Moreover, we have heard that consolidation may lead to homogenization
and media geared to certain and limited demographics. Already, we have
seen a reduction in children's programming due to consolidation. This
means that advertisers who want to reach minority groups or niche
communities may be stuck without a way to access them.

Small businesses have been, and will continue to be, the engine of
growth in our country. Yet we fail here to analyze how media
consolidation will affect small businesses. The Office of Advocacy of
the Small Business Administration strongly urged the Commission to
conduct such an analysis prior to rushing ahead with a decision.

**V. Conclusion.**

I began this proceeding hopeful that we would take a balanced, measured
approach, engage in fact-finding and open discussion, and reach out to
stakeholders across this land. Instead, in the face of (1) a record that
simply does not support the changes being proposed, (2) a record that
fails to do justice to the larger implications of these issues, (3)
overwhelming public opposition, (4) widespread and bipartisan concern
about both the substance and the process that have been followed here
and (5) the potential for great and irreversible consolidation before we
fully understand the consequences of our actions, I am convinced this is
the wrong decision. It is wrong for the media industry, wrong for the
public interest, and wrong for America.

All this means that I am deeply saddened by the Commission's actions
today. Some have characterized the fight against this seemingly
pre-ordained decision as quixotic and destined to defeat. But I think,
instead, that we'll look back at this 3-2 vote as a pyrrhic victory.

This Commission's drive to loosen the rules and its reluctance to share
its proposals with the people before we voted awoke a sleeping giant.
American citizens are standing up in never-before-seen numbers to
reclaim their airwaves and to call on those who are entrusted to use
them to serve the public interest. In these times when many issues
divide us, groups from right to left, Republicans and Democrats,
concerned parents and creative artists, religious leaders, civil rights
activists, and labor organizations have united to fight together on this
issue. Senators and Congressmen from both parties and from all parts of
the Country have called on the Commission to reconsider. The media
concentration debate will never be the same. This Commission faces a far
more informed and involved citizenry. The obscurity of this issue that
many have relied upon in the past, where only a few dozen
inside-the-Beltway lobbyists understood this issue, is gone forever.

I believe, after traveling the length and breadth of this country, that
our citizens want, deserve, and are demanding a renewed discussion of
how their airwaves are being used and how to ensure they are serving the
public interest. I urge my colleagues to heed the call. I want to thank
the hundreds of thousands of people who have attended hearings, filed
comments, written letters to the editor, and contacted the Commission.
You have made a difference. And if you stay the course now, we have a
chance to settle this issue of who will control our media and for what
purposes, and to resolve it in favor of public airwaves of, by and for
the people of this great country.

[^1]: *Red Lion Broadcasting Co. v. FCC*, 395 U.S. 367, 390 (1969).

[^2]: Learned Hand, Memorial Service for Justice Brandeis, December 21,
    1942.

[^3]: *Sinclair Broadcasting Group, Inc. v. FCC*, 284 F.3d 148, 168-69
    (D.C. Cir. 2002); *Fox Television Stations, Inc. v. FCC*, 280 F.3d
    1027, 1041-45 (2002), *rehearing granted*, 293 F.3d 537 (D.C. Cir.
    2002).

[^4]: *Sinclair*, 284 F.3d at 162.

[^5]: *Fox*, 280 F.3d at 1042-43.

[^6]: Jonathan Levy, Marcelino Ford-Livene and Anne Levine, *Broadcast
    Television: Survivor in a Sea of Competition*, Federal
    Communications Commission, Office of Plans and Policy Working Paper
    37, 309 (Sept. 2002).

[^7]: *See, e.g.,* Review of the Prime Time Access Rules, 60 Fed. Reg.
    44773 n.101 (1995).

[^8]: Horizontal Merger Guidelines, 57 Fed Reg. 41552 (1992).