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 SEPARATE  STATEMENT  OF  COMMISSONER  KATHLEEN  Q.  ABERNATHY 
 Re:  2002  Biennial  Regulatory  Review,  Review  of  the  Commissions  Broadcast  Ownership  Rules  and  Other  Rules  Adopted  Pursuant  to  Section  202  of  the 
 Telecommunications  Act  or  1996,  Cross-  ownership  of  Broadcast  Stations  and  Newspapers,  Rules  and  Policies  Concerning  Multiple  Ownership  of  Radio  Broadcast 
 Stations  in  Local  Markets,  Definition  of  Radio  Markets,  Order  and  Further  Notice  of  Proposed  Rulemaking  (adopted  June  2,  2003). 


 Today  the  Commission  faces  another  historic  decision  affecting  free  speech  where  it  must  decide  whether  to  be  guided  by  facts  or  by  fears.  For  literally  years,  this 
 Commission  has  struggled  in  a  highly  politicized  environment  through  Democratic  and  Republican  administrations  to  strike  an  appropriate  balance  in  its  media  ownership  rules. 
 Many  have  argued  that  this  proceeding  is  about  the  core  of  our  democracy    and  I  agree.  And  nothing  is  more  fundamental  to  democracy  than  following  the  rule  of  law  as  given  to 
 us  by  Congress  and  as  interpreted  by  the  courts.  Our  success  will  ultimately  be  judged  not  by  a  public  relations  assessment,  but  by  the  rigorous  demands  of  judicial  review.  It 
 is  a  heavy  responsibility  and  I  believe  we  have  exercised  it  well. 
 I.  Legal  Framework  of  Todays  Decision 
 I  began  my  review  of  the  FCCs  media  ownership  rules  with  three  inescapable  realities:  the  Telecommunications  Act  of  1996,  the  judicial  decisions  interpreting  it,  and 
 the  U.  S.  Constitution. 
 First,  the  Act  requires  the  Commission  to  conduct  a  review  every  two  years  to  determine  which  of  our  broadcast  ownership  rules  can  be  justified  in  the  modern 
 world  of  media.  For  those  who  want  us  to  delay  this  proceeding,  I  cannot  do  it.  In  fact,  we  are  already  five  months  behind  schedule  and  therefore  unfaithful  to 
 congressional  intent. 
 Second,  judicial  decisions  in  this  area  have  struck  down  every  broadcast  ownership  rule  the  courts  have  reviewed  since  the  1996  Act.  Each  time  the  courts 
 found  the  FCC  had  failed  to  justify  the  limits  it  continued  to  place  on  broadcast  ownership.  For  those  who  want  the  Commission  to  maintain  all  the  rules  in  their 
 current  form,  you  are  asking  me  to  defy  the  federal  courts.  This  I  will  not  do. 
 Third,  the  First  Amendment  to  the  Constitution  protects  the  rights  of  free  speech  and  free  press  and  tells  me  that,  in  my  capacity  as  an  FCC  Commissioner,  I 
 cannot  tell  the  American  people  what  they  should  believe,  what  they  should  read,  or  what  they  should  watch  or  listen  to  for  their  own  good.  Any  restraint  placed  on 
 broadcasters  free  speech  rights  must  be  a  reasonable  means  to  further  our  public  interest  goals.  The  federal  court  opinions  specifically  tell  me  that  any  restrictions 
 we  place  on  ownership  must  be  based  on  concrete  evidence    not  on  fear  and 
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 speculation  about  hypothetical  media  monopolies  intent  on  exercising  some  type  of  Vulcan  mind  control  over  the  American  people. 
 Within  these  parameters,  I  want  to  emphasize  that  we  have  undertaken  an  enormous  study  of  the  reality  of  the  modern  broadcasting  marketplace.  We  have 
 accumulated  a  record  of  unprecedented  breadth  and  depth,  including  hundreds  of  thousands  of  public  comments,  12  independent  studies,  and  testimony  from  a  number  of 
 broadcast  ownership  hearings.  Ken  Ferree  and  the  Media  Bureau  staff  have  invested  countless  hours  in  research  and  analysis. 


 II.  Ownership  Restrictions 
 Based  on  my  review  of  the  record,  I  am  persuaded  that  several  ownership  limitations    in  their  current  form  or  with  some  modifications    remain  necessary  in 
 the  public  interest  1  to  preserve  competition,  localism,  and  diversity.  These  rules  thus  meet  the  legal  standard  demanded  by  Congress  and  the  courts.  Rules  that  do  not  meet 
 this  standard  may  not  be  retained. 
 First,  in  the  process  of  retaining  our  current  limits  on  ownership  of  radio  stations,  we  have  tightened  our  definition  of  radio  markets  to  ensure  that  it  more  accurately 
 reflects  the  level  of  competition  in  these  markets.  Second,  our  television  ownership  rules  continue  to  maintain  the  prohibition  of  mergers  among  any  of  the  top  four  networks. 
 Third,  for  other  matters  such  as  restrictions  on  local  television  ownership,  the  national  television  cap,  and  our  cross-  ownership  rules,  we  have  preserved  structural  limitations  in 
 revised  forms.  2  We  have  modified  these  restrictions  because,  not  only  do  the  former  rules  fail  to  promote  competition,  localism,  and  diversity,  but  they  may  actually  be 
 harming  these  goals.  For  example,  the  record  has  demonstrated  that  combinations  of  two  television  stations  actually  produce  more  local  news.  The  record  also  demonstrates  that 
 newspaper-  owned  television  stations  provide  more  news  and  public  affairs  programming  and  receive  more  industry  awards  for  such  programming  than  unaffiliated  stations.  If  we 
 kept  our  existing  rules  unchanged,  we  would  artificially  restrict  such  benefits  to  local  communities  with  no  countervailing  advantages.  I  emphasize  that  our  restrictions  are 
 grounded  in  actual  evidence  of  harm,  as  required  by  the  courts,  not  in  merely  hypothetical  fears.  3 


 1  Pub.  L.  No.  104-  104,    202(  h),  110  Stat.  56  (1996);  see  also  47  U.  S.  C.    161;  Joint  Statement  of 
 Chairman  Michael  K.  Powell  and  Commissioner  Kathleen  Q.  Abernathy  in  2002  Biennial  Regulatory  Review,  FCC  02-  342,  GC  Docket  No.  02-  390,  (rel.  March  14,  2003)  (explaining  that  biennial  review 


 standard  in  section  11  and  section  202(  h)  is  best  interpreted  as  requiring  an  affirmative  justification  of  covered  rules  based  on  the  same  substantive  standard  that  applies  upon  adoption  of  the  rules  in  the  first 
 instance). 
 2  While  I  would  have  preferred  to  address  cross-  media  mergers  in  small  to  middle  markets  on  a  case-  by-case 
 basis,  I  support  the  decisions  we  reached  in  this  Order.  Indeed,  bright-  line  rules  have  the  benefit  of  providing  more  certainty  to  the  marketplace  and  increase  the  transparency  of  our  process. 


 3  Moreover,  the  modification  of  these  prophylactic  rules  does  not  strip  us  of  our  continuing  obligation  to 
 review  transfers  of  media  licenses  to  ensure  they  are  consistent  with  the  public  interest. 
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 III.  Facts  and  Fears 
 Those  who  oppose  our  decision  will  continue  to  fear  a  mythical  media  monopoly  that  will  descend  upon  our  media  landscape  without  any  regulatory  review  of  its  power. 
 But  the  reality  is  that  under  todays  order  there  will  continue  to  be  hundreds  of  pathways  into  the  American  home  in  the  average  American  city  or  town.  The  reality  is  that  we  are 
 continuing  to  impose  a  national  television  ownership  cap  in  recognition  of  the  important  role  affiliates  play  in  promoting  localism,  competition,  and  diversity.  The  reality  is  that 
 todays  order  will  prevent  media  companies  from  owning  more  than  one  of  the  top  four  stations  in  a  market  and  will  similarly  forbid  consolidation  to  fewer  than  six  voices  in  the 
 markets  serving  the  vast  majority  of  Americans.  Democracy  and  civic  discourse  were  not  dead  in  America  when  there  were  only  three  to  four  stations  in  most  markets  in  the  1960s 
 and  1970s,  and  they  will  surely  not  be  dead  in  this  century  when  there  are,  at  a  minimum,  four  to  six  independent  broadcasters  in  most  markets,  plus  hundreds  of  cable  channels 
 and  unlimited  Internet  voices. 
 Those  opposing  todays  order  have  also  emphasized  that  four  companies  air  the  programming  that  is  chosen  by  approximately  75  percent  of  viewers  during  prime  time. 
 To  me,  the  critical  fact  is  that  these  providers  control  no  more  than  25  percent  of  the  broadcast  and  cable  channels  in  the  average  home,  even  apart  from  the  Internet  and  other 
 pipelines.  Given  these  other  viewing  options,  I  can  only  presume  that  this  means  that  Americans  are  watching  these  providers  because  they  prefer  their  content,  not  because 
 they  lack  alternatives.  It  would  be  anathema  to  the  First  Amendment  to  regulate  media  ownership  in  an  effort  to  steer  consumers  toward  other  programming.  By  the  same  token, 
 concerns  about  the  degradation  of  broadcast  content  do  not  justify  government  manipulation  of  consumer  choice.  Degradation  is  just  an  elitist  way  of  saying 
 programming  that  one  does  not  like.  While  I  support  adopting  prophylactic  regulations  in  the  interest  of  ensuring  that  consumers  have  ample  choice    as  we  have  done  today    I 
 refuse  to  pour  one  ounce  of  cement  to  support  a  structure  that  dictates  to  the  American  people  what  they  should  watch,  listen  to,  or  think. 


 IV.  New  Initiatives 
 The  defining  characteristic  of  todays  decision  is  balance.  As  I  have  said,  we  have  undertaken  affirmative  steps  to  retain  limits  on  ownership  where  they  can  be  shown 
 by  actual  evidence  to  promote  competition,  localism,  and  diversity.  We  have  resisted  merely  hypothetical  fears.  In  the  process  of  reaching  this  balance,  we  have  also  taken 
 some  additional  steps. 
 First,  I  was  concerned  that  allowing  an  entity  to  own  more  than  one  television  station  in  a  market  could  decrease  the  amount  of  childrens  educational  and  informational 
 programming  available  to  families  in  those  communities.  I  did  not  want  to  see  the  amount  and  diversity  of  such  programming  diminished  if  stations  that  are  commonly 
 owned  in  the  same  market  simply  re-  run  the  same  shows  on  each  station.  Accordingly,  I 
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 am  pleased  that  we  have  clarified  in  this  Order  that  commonly  owned  stations  in  a  market  must  air  distinct  childrens  programming  to  comply  with  our  rules. 
 Second,  this  Order  also  leads  the  Commission  down  a  path  of  providing  more  opportunities  for  small  businesses,  many  of  which  are  minority-  and  woman-  owned.  The 
 Order  restricts  transfers  of  most  existing  combinations  that  fall  out  of  compliance  with  our  new  rules  unless  the  purchaser  is  a  small  broadcaster.  In  doing  so,  we  are  creating 
 new  opportunities  for  participation  in  broadcasting  without  threatening  diversity  or  competition  in  these  markets. 


 Third,  I  also  am  pleased  that,  as  part  of  this  decision,  we  decided  to  issue  a  Further  Notice  of  Proposed  Rulemaking  to  explore  opportunities  to  advance  ownership 
 by  minorities  and  women  in  broadcasting.  Furthermore,  I  commend  the  Chairman  on  his  formation  of  a  Federal  Advisory  Committee  to  assist  the  agency  in  creating  new 
 opportunities  for  minorities  and  women  in  the  communications  sector. 
 V.  Conclusion 
 It  goes  without  saying  that  none  of  us  wants  to  see  media  ownership  concentrated  in  the  hands  of  a  few.  While  reasonable  minds  can  differ  about  which  particular 
 restrictions  might  best  promote  this  goal    national  ownership  caps  that  vary  by  only  five  percentage  points,  a  minimum  of  six  versus  eight  owners  of  local  television  stations 
 in  a  market,  and  so  forth    we  should  recognize  that  these  are  in  fact  issues  on  which  reasonable  people  may  disagree.  For  me,  given  the  rules  we  adopt  today,  the  breakneck 
 pace  of  technological  development,  and  the  ever-  increasing  number  of  pipelines  into  consumers  homes,  it  is  simply  not  possible  to  monopolize  the  flow  of  information  in 
 todays  world.  Indeed,  the  fall  of  Communism  in  the  1980s  and  of  military  dictatorships  in  the  1990s  shows  that  diverse  viewpoints  cannot  be  suppressed  even  by  authoritarian 
 governments,  much  less  by  private  media  companies. 
 The  net  result  of  our  Order  is  balance:  We  have  preserved  core  values  by  maintaining  safeguards  to  protect  against  undue  concentration,  we  have  altered  rules  as 
 necessary  to  respond  to  the  dramatic  changes  that  have  occurred  in  the  marketplace  since  the  adoption  of  our  media  ownership  rules  many  years  ago,  and  we  have  provided  a 
 rigorous  justification  with  an  exhaustive  study  of  the  record.  Sometimes  the  facts  have  led  us  to  strengthen  former  restrictions;  sometimes  they  have  led  us  to  relax  them  in  part. 
 But  in  all  cases  our  decisions  were  based  on  facts  rather  than  fears.  That  is  what  Congress  statute  requires,  that  is  what  the  courts  require,  and  that  is  what  the  First 
 Amendment  requires. 
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