October 1, 2004

Big Media Bodyslam: Another Response to the Chicago Tribune

The very first cover of Third Coast Press featured an article in which I obliterated, sentence by sentence, an editorial published by the Chicago Tribune. The topic of the editorial involved a controversial series of media ownership rule changes approved by the Federal Communication Commission (FCC). These rule changes would have made it easier for fewer companies to own more media outlets, and very likely made an over-commercialized, hyper-violent, ultra-dumb corporate media all the worse. The Tribune Company stood to capitalize on these rule changes, and editorialized last year to complain about the successful organizing efforts that had halted the rule changes and raised public awareness.

On July 17, 2004, the Tribune was at it again, this time editorializing against a Philadelphia court ruling that overturned in their entirety the FCC's media ownership rule changes. Predictably, the Chicago Tribune reacted to this major populist victory by publishing an op-ed of complaint. Time to break out the explosives again, folks.

The Federal Communications Commission has been trying for years to comply with a Congressional mandate that the agency justify its media ownership rules, modify them, or junk them.

But Congress takes a back seat to the commercial broadcasters and their fanged lobbies with their mandate that the agency make it easier for broadcasters to increase profit, increase profit, and increase profit.

The rules govern how many TV and radio stations one company may own and whether it may own a newspaper and TV station in the same market. As part of the 1996 Telecommunications Act, Congress ordered the FCC to conduct a periodic review to determine if the rules, some of them decades old, are still in the public interest. But doing as Congress demanded eight years ago has engulfed the FCC in litigation, protest, and confusion.

Yes, I remember. In 1995 and '96, the only thing everyone and their dog talked about at the water cooler was the 1996 Telecom Act. (O.J. who?) Just like in 2002 when Powell announced the FCC media ownership rule changes, and you couldn't turn on the tube without hearing some talking head prattle on about or against TV/newspaper cross-ownership.

That might be the case in some Bizarro World inhabited by Tribune management. But here in the Real World, the Telecom Act got rammed through rather quickly. And with good reason: The Telecom Act was a huge gift for Big Media, awarding vast swaths of digital media and spectrum to a handful of corporate monsters.

As far as Big Media is concerned, the public is Public Enemy Number One when it comes to media policy, because as studies clearly show, the more people know about the corruption embedded with media policies, the more they disagree with them and might work to change them. So, naturally, Big Media wants these decisions made in smoke-filled rooms behind closed doors, with zero press coverage.

And it's the Tribune that's actually confused, since they obviously seem to think that they and their Legion Of Doom are the only ones who should call the tune in this media policy song-and-dance.

A recent court order illustrates why. The U.S. Court of Appeals for the 3rd Circuit struck down the FCC's latest effort to ease the cross-ownership rules. The court said the FCC was on the right track but had used the wrong methods and developed rules that weren't restrictive enough.

To those of us who actually read the 218-page court ruling, the court confirmed that the FCC has the authority to change the media policies in question. That doesn't presume anything about being "on the right track," whatever that's supposed to mean. And that's the only thing Big Media could claim from this lawsuit. Every other rule the FCC tried to change to benefit Big Media got slammed.

As the attorneys at the law firm which filed the suit, the Media Access Project, said on the day of the victory: "We were doing high four-and-a-halves."

That ruling, though, appears to conflict with court orders issued in 2002 by the appellate court for the District of Columbia Circuit, which told the FCC it must justify keeping tighter rules or get rid of them. The D.C. appellate court's decisions prompted the FCC a year ago to approve the rules that have now been harshly criticized and remanded by the 3rd Circuit.

Thing is, the D.C. Circuit Court is notorious for being full of corporate-friendly hacks cleverly disguised as judges. We can blame them for the abolition of the Fairness Doctrine (that was that rule which mandated a variety of viewpoints on the air). That ruling gave the key to open the door for the modern-day menace known as right-wing talk radio.

So the FCC is caught between one appellate court ordering full-speed-ahead and another cautioning not-so-fast. The commission now must decide whether to appeal the latest ruling to the U.S. Supreme Court or go back to the rule-making process.

"Full speed ahead?" "Not-so-fast?" Are we on a one-way street or something? And more importantly, where is it ultimately headed?

The rumor is that the FCC will appeal to the Supreme Court, but just on statistics alone, the odds are stacked more than 70 to 1 against the FCC ever getting to the Supreme Court.

There's more. Congress has further clouded the landscape by injecting itself into this ongoing regulatory and judicial debate. One of the FCC rules would allow TV companies to buy stations that reach up to 45 percent of the viewers in the country. The current limit is 35 percent. But Congress earlier this year decreed that the limit should be 39 percent. That law, naturally, has been challenged in court.

Strike One: That TV ownership cap included a proviso for exempting UHF stations, which could have made that ownership limit more in the range of 70 to 90 percent. And since the Tribune is trying to wedge its way into buying lots more TV outlets, they were paying close attention to this rule, and lobbied hard to have it changed.

Strike Two: The 35 percent limit got changed to 39 percent when Republican politicos met and announced the new percentage as a "compromise." That number was chosen because Viacom (owner of CBS) and News Corp (owner of Fox) were both violating the 35 percent ownership rule, and 39 percent was enough to prevent them from having to sell any more outlets.

Strike Three: What right does Congress have to make laws, anyway? What do they think are, getting in the way of my quarterly profit margins?

Three strikes. Guess who's out?

The U.S. Senate last month voted to overturn other FCC rules allowing companies to own TV and radio stations and newspapers in the same market, and raising the limits on how many they could own. (The Senate tried that last year, too, but the House never went along and likely won't this time either.)

We can pin much of the blame for that on a local boy from Illinois: The Fourteenth District's own Dennis Hastert. As Speaker of the House, he makes the call about what legislation can come to a House vote, and he's naturally sitting on this legislation because (a) even the Republican-controlled House will probably approve it, and (b) he doesn't want George W. Bush to have to contend with a volatile veto situation over an issue that has bipartisan support, particularly with a close election at hand. (If Bush uses the veto, it'll be his first time.)

So there you have it. The future of these media ownership rules is clear as mud. That's frustrating to media companies such as Viacom, Gannett, News Corp, and the parent of this newspaper, Tribune Co., which don't know whether or when they'll be allowed to expand into more markets.

Aw, poor baby is crying over the sound of investors walking out of the room. Well, now you know a little taste of what it's like to be frustrated at every turn. As one who's been involved in media activism, now you understand a bit of the frustration inherent in the work. I'm just amazed that we can chalk up this dramatic victory. Let's keep this winning streak going.

It's also frustrating to the majority of FCC members, particularly Chairman Michael Powell. The latest court ruling, he said, "sets near impossible standards for justifying bright-line ownership rules." The result, he hinted in a Washington Post interview, might be an FCC that decides to tackle each of these rules separately going forward. Or it may jettison sweeping rules altogether and decide each request for expansion on a case-by-case basis.

Or the FCC may force the Tribune to divest its cross-ownership rule holdings in New York, Los Angeles, South Florida, and Hartford, Connecticut. In each of those areas, the Tribune owns a TV station and a newspaper, and in doing so they are breaking the law. Small wonder the Tribune was lobbying to have this rule changed.

This Just In From The Chutzpah Department: In August, the Tribune Company asked the Philadelphia court to overturn the June 2004 decision for cross- ownership in New York and Los Angeles. On September 2, to nobody's surprise, the court declined the request.

Either way, the result is going to be more hearings, more studies, more delay, and no certainty at all for the foreseeable future about regulatory policy. Eight years after being ordered to review the rules, the FCC remains caught in the crossfire of political debate about corporate dominance of the public airwaves. This uncertainty increases the incentive for more news and entertainment to migrate away from the public airwaves -- and the purview of the FCC. It's hard to see how that's in the public interest.

That's a headline: "Tribune cares about public interest." It's funny how the Tribune invokes the public interest when it can't fulfill its private mandate.

And news on the public airwaves? It reminds me of a joke I once saw: "We're watching the news. We'll let you know if we find any."