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Genachowski: FCC Still Justified in Regulating Broadcast Content

New FCC chairman confirms commission will conduct inquiry into state of journalism industry 7/31/2009 02:00:00 PM Eastern

New FCC Chairman Julius Genachowski
seems not quite settled into his new digs: a spacious corner office on the eighth
floor of FCC headquarters in Washington. It remains a work in progress, with
empty bookshelves behind his desk and walls not yet filled with mementos or
evidence of past accolades. But there is the Willis Reed-signed basketball
under glass-Genachowski is a Knicks fan with fond memories of the 1969-70
season that brought an NBA championship to New York City-as testament to one of
his great loves, one he shares with his old Harvard buddy, Barack Obama.

But there is something of a metaphor
for the size of the bureaucracy Genachowksi inherits, and of the tasks ahead of
him, in the large dead-tree dictionary that sits open next to the door. "It
doesn't have the word ‘broadband' in it, or even the word ‘Internet,'" he says,
adding that "maybe we will find a ‘green' way to be able to look up words."

Genachowski made a fine second
impression during his meet-and-greet with reporters soon after his installation
June 29. Trim, well-dressed, bright-eyed and with a firm-bordering-on "say
uncle" handshake, he seems a man secure in his own skin and convictions. The
industries he regulates will know where he's coming from, though they may not
always like where he is going. Even the well-dressed "protester"-Weigel
Broadcasting President Norman Shapiro-standing in front of the FCC with a sign
saying "Please Decide" (at issue: some low-power transfers dating from last
August) says he thinks Genachowski will make a great chairman.

The chairman made clear that he
believes broadcast content needs regulating, both because it is still the sole
source of TV for millions of broadcast-only homes, and because of its
popularity in homes with cable and satellite.

Genachowski talked to B&C's John Eggerton last week about
his vision of the media landscape, broadcast and cable regulation, the
challenge of broadband and more. While his answers were as controlled and
careful as the Harvard lawyer he is, they also revealed something of the man
and his mission.

That includes relying on his new
general counsel to help navigate indecency enforcement and make recommendations
on issues of cable programming access and carriage. Genachowski also urges the public
and industry to take the FCC's broadband plan "very seriously."

The chairman adds that the FCC will
look into the health of the news media. His predecessor, then-acting chairman
Michael Copps, proposed the inquiry.

As
for the Fairness Doctrine-it's not happening, Genachowski says. But diversity
of voices-that's in the FCC's DNA.

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Below is an edited transcript of the interview:

Onetime FCC Chairman Newton
Minow famously called TV a "vast wasteland." Updating TV to "video platform,"
how would you characterize the landscape?

I would not attempt to one-up
Chairman Minow. We have gone from a world when Newton Minow was chairman of
just a few broadcast channels going into every home to, for homes that get
cable and satellite, many, many more channels. There is certainly more variety.
There has been an incredible mushrooming of creativity on broadcast television
since the 1960s. And there have been lots of powerful examples since the '60s
of great news, great documentaries and great entertainment on TV.

It is also true that parents are
very frustrated when they turn on the TV, whether it's a broadcast-only home or
whether they are cable or satellite subscribers. They are frustrated because
they see things they don't think are appropriate for their kids, and they are
frustrated by their [lack of] ability to do something about it. There is also
frustration and confusion about all the different media platforms kids deal
with today, with dramatic changes from when Newton Minow was chairman and
raising a whole host of new issues.

Like what?

Parents today have hundreds of TV
channels in the home, they have a computer in the kitchen, they have a video
console in the basement and a mobile phone in their kids' pockets. Each of
those devices represents real opportunity for their kids and for the economic
growth of the country, and new sources for news, information and entertainment.
But they also present a whole host of new issues.

What should or can the FCC do
to help them navigate this landscape?

The first step is to look at it
seriously and be clear about what the objectives are, and to take a look at
what is actually going on in the marketplace. I don't think the objectives have
changed since the Children's Television Act was enacted in the 1990s. And
though I haven't thought about it before, I expect the objectives haven't
changed since Newton Minow was chairman [in the early 1960s] in this area
relating to kids. And those are promoting the education and health of our kids,
of protecting kids, and empowering parents.

As you know, we announced last week
that the FCC will be doing an inquiry into children and the digital media
landscape. And we are already doing an inquiry required by the Senate into parental
empowerment tools. So the first step is to understand what is going on. The
second step is for the FCC to ask what it can do to get better information in
the market.

One of the steps we will be taking
is revamping the FCC Website with respect to the Children's Television Act
information that is public, that broadcasters supply, and that is already on
the FCC Website if you look hard enough. We are going to turn that information
into something that is user-friendly and parent-friendly.

You signaled that the FCC would
ban interactive ads in kids' shows, absent a parental opt-in. Why is that
necessary?

The commission looked at this
several years ago and tentatively concluded that the risk of interactive
advertising in digital programming for kids in the absence of parental consent
was too high. This is the ability of a kid watching digital TV and clicking
through to a commercial sales site or program. If parents want their kid to
have that feature, that is fine. But if parents are concerned, kids won't be able
to easily poke around through children's television programming into commercial
sites. From what I have seen, that tentative conclusion seems correct. I want
the FCC to finish the process and analyze the record; based on what I know now,
I think the outcome will be to codify that tentative conclusion.

We want to clarify that you are
not yet concluding that three hours of educational TV per week is too much or
even too little, but that essentially everything is still on the table.

It is the right time to have
everything on the table. It has been [almost] 20 years since the Children's
Television Act was adopted. The commission over the years has taken steps to
enforce it. That shouldn't stop. Broadcasting remains a unique medium. It is
still the only source of television entertainment for millions of Americans.
But there is no question that the landscape has changed to the point where
taking a fresh look at kids in the digital media world against the objectives
that we all share is completely right and appropriate.

You used the word "unique" in
your testimony on the kids' rules, and talked about how there was more choice
"for those who could pay for it." It sounds like you are convinced broadcast
content still needs to be regulated.

Yes, I am convinced that in a world
where there are millions of Americans for whom broadcast television is their
only video medium, that the core justifications for commission action in this
area are unchanged. So, the core mission for the FCC is to enforce public
interest obligations with respect to broadcast spectrum. That does not change
in a world where so many Americans still only receive broadcast television, and
where broadcast television still is, even in many of the homes that receive
other forms of programming, the dominant and most-watched form of programming.

The FCC has essentially put the
backlog of indecency complaints on the back burner while the courts hash things
out. The Supreme Court has weighed in and said the fleeting-profanity
justification passed muster, and nudity may as well. Where is the FCC in terms
of what it can do on indecency enforcement?

The FCC's job in indecency is to
defend and enforce the laws. I spoke in my confirmation hearings about sharing
the concern parents have about what children see on TV. So the FCC's job is to
enforce the law and address pending complaints in the backlog.

Will you be working through
that backlog?

We will be. Litigation is ongoing.
Our general counsel started last week, and he has not had a chance to look into
it and make a recommendation with respect to overall litigation strategy. Our
responsibilities are to defend and enforce the law. This is an area where the
general counsel's view on what the right process is moving forward-since the
litigation still is pending-is important. He is in the middle of studying it.

What can you tell us about the
state of journalism inquiry circulated by then-acting chairman Michael Copps?

I have real concerns, as many
Americans do, about what is going on in America with respect to newspapers,
local news and information. It has been an area of ongoing interest at the FCC
from the beginning. Local news and information has been a core pillar of the
Communications Act and remains that. So I share the concern of many Americans,
and I respect the leadership the commissioner has taken. The commission will be
tackling this topic, but we haven't announced a timetable.

Let's talk about broadband for
a moment. Is it broadband plan first and everything else second, or do you have
to juggle all these balls at once?

The commission has an obligation to
juggle all the balls. I have tried in my public remarks to staff and in meetings
to outline the strategic priorities: promoting universal broadband-essential;
promoting job creation, economic growth, innovation and investment-essential;
protecting and empowering consumers, public safety, promoting a vibrant media
landscape and revitalizing and retooling the FCC. This is a manageable set of
strategic priorities that the commission can tackle and will tackle. We have to
be able to do more than one thing at once.

Weigel Broadcasting President
Norman Shapiro told us he has three low-power TV station-license transfer
applications pending that were filed last August, and that the FCC hasn't ruled
on them yet. He says all he wants is a decision. Is there hope for him?

I am not familiar with his case, but
one of the topics I raise with each of the bureaus and offices is backlog. The
public has a right to expect that the commission will expeditiously decide
matters that are before it. I have asked each of the different bureaus to look
at their backlogs to the extent that they have them and take care of matters
that are languishing.

Diversity of voices and opinion
was part of the president's overarching communications policy position. Can you
draw a distinction between the Fairness Doctrine, which you oppose, and
promoting diversity of voices?

That's a good question. I would ask
those who think they are related to explain to me how they are. The Fairness
Doctrine ultimately has the huge risk of getting the government involved in
censoring speech on the basis of political views and opinion. And that is not
acceptable to me. Chilling speech was the core reason that the Fairness
Doctrine was repealed. The commission, as long as I am here, won't have any
interest in reinstating it and doing anything to censor speech based on
political views and opinions.

The interest in diversity goes back
to the beginnings of the Communications Act. It goes back to core principles
underlying the First Amendment. We benefit as a society when we have a vibrant
marketplace of ideas representing different points of view. And that is a
proposition that I don't think has been disputed.

Do you have any concerns in the
area of access to, or carriage of, cable programming?

As you know, some complaints and
petitions have been filed, and it wouldn't be appropriate for me to comment on
specific ones or pre-judge them. But in thinking about the areas, I will be
focused on competition and consumer choice. I don't think there is any dispute
that competition and consumer choice will drive innovation and, ultimately,
service to consumers. That is the frame in which the commission will be looking
at specific disputes. There are statutory issues that we will have to wrestle
with as part of that, but the core purposes underlying the original statutory
provisions are those principles, competition and consumer choice.

When you are doing that
wrestling, do you think the so-called "terrestrial loophole" will get pinned or
have its arms raised in victory?

Well said. Whatever happens, we will
use that framing. I think it is appropriate to let the bureau and the general
counsel's office look at it carefully, especially since there are pending
matters.

Have you looked at the
broadband comments and reply comments?

I have had them summarized.

[FCC broadband czar] Blair Levin said recently that
the comments were aspirational, but he was looking more for action plans. Was
that your sense of it?

We are a country in need of a
national broadband strategy 10 years ago. But we are where we are. It is a
terrific thing for the country that the president and Congress instructed the
FCC to develop a broadband strategy.

There is a very wide interest and
support for the country pushing forward on broadband. This is our generation's
major infrastructure challenge. It's what we need to get right to have an
enduring engine for economic growth, job creation and innovation in this
country.

Why do I say all this? It is very
important for the process and participation to "meet the moment." We need to
make sure that everyone who has data and ideas that can help the country meet
this real challenge is participating in the process and taking it seriously. I
am happy to send the message that we want the entire community of people who
have an interest here to take it very seriously because it deserves to be taken
that way.

Do you see the broadband report
hard date being moved to June 12, 2010, or can you commit to Feb. 17?

We are going to hit our target.

This week marks your
"monthiversary" at the commission. I know you have walked these halls as top
aide to then-chairman Reed Hundt. What has surprised you about being chairman?

I am pleasantly surprised by the
desire of the staff at the FCC to work to revitalize and re-tool the agency.
This is not a staff that needs to be convinced that our communications
infrastructure is vital to the success of the country, and that the FCC has a
powerfully important role to play as the nation's expert agency. With respect
to the staff that is here, they are up for the challenge of revitalizing and
re-tooling the agency, and there is widespread understanding that there is a
lot of work to do to make sure the agency functions in a way that meets the
challenges of the day.

The other thing that has been a
pleasant surprise is the quality of the new senior staff that we have been able
to recruit. An extraordinary number of talented people have become part of this
effort to work together with the staff that is here.

Is this going to be an Ivy
League commission?

If you look, you will see a great
mix of backgrounds and experiences. I wouldn't say this is a surprise, but one
of the things I have enjoyed about meeting with the bureaus and offices is that
you find yourself in rooms with lawyers, economists, technologists, M.B.A.s,
physicists, people from military backgrounds, from industry, people who are
coming here out of college. To me, this is one of the exciting things about the
agency.

I feel very strongly that the best
policies don't come from a group of like-minded people with similar backgrounds
and similar training looking at the same issue. They come from a group of
people trained in different ways, with different backgrounds and experiences,
coming together and really pushing each other on what's the right answer for
the country. We take personnel and staff very seriously against this
background.

So I am thrilled to have a lot of
people here who have extraordinary credentials. But what really excites me
about the team that we are putting together is the mixture of backgrounds and
experiences and disciplines. The clear instruction that they have gotten from
me is to respect each other's backgrounds and work together, and stay focused
on our strategic priorities and what we really need to do to serve the public
interest.

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