MEDIA CONCENTRATION BENCH REMARKS

COMMISSIONER MICHAEL J. COPPS

JUNE 2, 2003

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 ideas and information upon
which our society and our democracy so heavily depend.

This morning we are at a crossroads -- 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 enhanced gatekeeper control
over the civil dialogue of our country; more content control over our
music, entertainment and information; and veto power over the majority
of what our families watch, hear and read.

Two very divergent paths beckon us.

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 implores us not to abandon core
values going to the heart of what the media mean in our country. On this
path we 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. 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?

We should begin by examining the law. What does the law tell us? The
Communications Act tells us to use our rules to promote localism,
diversity and competition. It reminds us that the airwaves belong to the
American people, and that no broadcast station, no company, no single
individual owns an airwave in America. The airwaves belong to all the
people. 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]

We should then look at the world of experience. 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
radio concentration protections, we experienced massive, and largely
unforeseen, consolidation. We saw 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. Editorial opinion polarized. Competition in many towns became
non-existent as a few companies 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.

We should, finally, seek out the counsel and wisdom of the American
people. Commissioner Adelstein and I have attended public hearings
across the country with conservatives and liberals, broadcasters and
creative artists, concerned parents and civil rights activists, church
leaders and educators. Our Commission has seen close to three quarters
of a million people register their views -- more than for any proceeding
in Commission history. And in a nation that can be deeply divided on
important issues, these citizens are uniquely unanimous on the question
of whether this Commission should allow further media concentration.
They are ***screaming*** that we should 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 Americans found out
what was going on and began to speak out -- but radical nevertheless.
This decision allows a corporation to control three television stations
in a single city. ***Why does any company need to control three
television stations anywhere?*** The decision allows the giant media
companies to buy up the remaining local newspaper and exert massive
influence over a community by wielding three TV stations, eight radio
stations, the cable operator, plus the already monopolistic newspaper.
The decision further allows the already massive television networks to
buy up even more local TV stations, so that they could control up to an
unbelievable 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.***

Will the vaunted 500-channel universe of cable TV save 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 advance 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.

Don't tell me that those of us who feel strongly about this are being
too emotional. 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
country. Are they emotional? You bet. And I think they are going to stay
that way until we get this right.

Why did the Commission get this so wrong? 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. This proceeding has been run as
a classic inside-the-Beltway process with too little outreach from the
Commission and too little attention paid to the public. 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. So
Commissioner Adelstein and I traveled across the country to attend as
many hearings and forums as we could.

I am also troubled that the Commission has refused to publicly disclose
the rules we are voting on today. What possible harm can come from
transparency? How can telling Congress and the public what we plan to do
possibly be bad? Isn't the animating spirit of our "notice and comment"
procedure to make sure our people know as much as possible about the
specifics of what is being proposed?

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. Of the nearly three
quarters of a million comments we have received, nearly all oppose
increased media consolidation -- over 99.9 percent.

We've heard bipartisan concern from more than 150 Members of Congress,
including the Congressional Black Caucus, the 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 and I thank them for
coming.

Dozens of organizations -- from the National Rifle Association to the
National Organization for Women have weighed in with their concerns
about media concentration and the process by which we are dealing with
it. 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.

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.

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. The spirit underlying the "notice and
comment" procedure of independent agencies is that important proposed
changes need to be seen and vetted before they are voted. We haven't
been true to that spirit. Today we vote before we vet.

And what are we voting on? The majority decides to allow TV networks to
control up to 45 percent of the national audience -- up to 90 percent
once the strange decision to keep the UHF discount is considered.
Merrill Lynch predicts this decision will result in a "Gold Rush" where
the national networks buy up the remaining local broadcasters. This
decision is made without an adequate explanation for why 45 percent is
not just an arbitrary number pulled out of a hat, and despite exhaustive
and largely uncontested evidence supporting the existing cap by local
broadcasters. I frankly doubt the courts will be impressed.

Some have argued that free over-the-air television is doomed unless we
allow more concentration. The facts tell a different story. The networks
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
networks command an enormous advertising premium, recently receiving 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. This argument that the only way for the poor
among us to continue receiving free, over-the-air television is to allow
already powerful networks to grow more powerful would have been better
left unsaid.

The majority inexplicably, maintains the UHF Discount. Under the UHF
Discount, UHF TV stations are considered to reach only 50 percent of the
households that VHF TV stations reach for purposes of determining
whether a company has exceeded the national cap. Once upon a time, that
was warranted. The Commission found that over-the-air UHF stations
reached fewer viewers than VHF stations because their signals were
different. But UHF and VHF stations reach an identical number of viewers
when delivered over cable TV facilities. Today, over 85 percent of
consumers receive their signal from cable and DBS. Program carriage
requirements ensure that cable consumers receive the UHF signal, and DBS
operators are required to carry all UHF stations in any market where
they carry any local channel.

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.

The more you dig into this Order, the worse things get. The Order finds:

-   That further concentration in already highly-concentrated markets is
    acceptable.

-   That in a town with only four TV stations, it is acceptable for the
    top-rated

> television station to buy the only daily newspaper.

-   That consolidation going forward will enhance news programming,
    despite considerable record evidence showing that increased
    concentration more often than not reduces quality news.

There are other things this order could have done. 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. In addition to the obvious loss of
diversity, this has also entailed the loss of thousands of jobs,
including creative artists, technicians and many, many others. Years
ago, we had protections against this kind of program ownership. Now that
the majority is loosening outlet ownership rules, we ought to be looking
at the consequences of having no limits on who owns the programming.

The Order could have addressed having a legitimate license renewal
process to partially protect against the risks of further consolidation.
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 our other rules put
together.

The Order could have analyzed the impact of media concentration on
indecent and excessively violent programming. Some have suggested that
there may be a link between increasing consolidation and increasing
indecency on our airwaves. The Commission fails to address this issue in
its analysis. It seems plausible that there is such a connection. I
don't 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.

The Order could have addressed the impact of media concentration on
women and minority groups. 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.

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. ***And our media need to reflect this diversity and to
nourish it.***

Today's Order puts most such questions off into the future, with the
exception of a curious plan to allow a small business, perhaps a
minority firm, to buy a consolidated block of outlets from an incumbent
who exceeds the limits. That would require deeper pockets than most such
firms could afford. I would prefer to look for real opportunities for
small entrepreneurs instead of encouraging them to buy large
consolidated properties.

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. The obscurity of this issue
that many have relied upon in the past, where only a few dozen
inside-the-Beltway lobbyists understood the issue, is gone forever.

I believe, after traveling almost the length and breadth of this land,
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,
the chances have improved that we can yet settle this issue of who will
control our media and for what purposes and to resolve it in favor of
airwaves of, by and for the people of this great country.

Thank you.

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