News Articles

Leave Programming out of the Media-Ownership Debate

4/27/2003 08:00:00 PM Eastern



Author Information
Corn-Revere is a First Amendment attorney with Davis Wright Tremaine and former legal assistant to FCC Commissioner James Quello.

The FCC's broadcast-ownership proceeding has become a public referendum about the quality of media content.

When the FCC launched the omnibus proceeding to review its various ownership rules, it did so under a congressional mandate to "determine whether any of such rules are necessary in the public interest as the result of competition." A critical question is whether the commission must show that the rules are "indispensable" to the public interest or merely consistent with the public interest. Traditionally, three issues are included in the public-interest calculus supporting restrictions: competition, localism and diversity of information sources.

In the current proceeding, though, another issue occupies a prominent position: whether ownership rules are needed to promote "good" broadcast content. Arguments are being made that sex and violence on TV, a lack of creativity in entertainment programming, and the quality of newscasts are all related to media concentration.

Commissioners Michael Copps and Jonathan Adelstein have asked whether media concentration has contributed to an increase in indecent and violent programming. Copps has suggested that media bigness has spawned a "race to the bottom" and that such trends might change if media owners were located closer to their communities of license.

In fact, the theory that community pressures would force local owners to clean up their acts has no real-world support. In the 1990s, the FCC abandoned its policy of giving competing broadcast applicants extra credit for integrating ownership with local management after courts found that the FCC had accumulated "no evidence to indicate it achieves even one of the benefits that the commission attributes to it."

The local market for recorded video products similarly cuts against Commissioner Copps's theory. National chains Blockbuster or Wal-Mart do not rent or sell videos with hardcore sexual content, for example. To get the harder stuff, you need to go to your local mom-'n'-pop video store.

The debate also considers the quality of local newscasts. A Project for Excellence in Journalism study submitted to the FCC suggested that large-group ownership is associated with lower-quality newscasts. It examined such factors as whether newscasts on various stations covered the whole community, were significant and informative, demonstrated enterprise, were authoritative, were fair and balanced, and had a local orientation.

Its conclusions, though, were roundly criticized in an analysis submitted on behalf of three of the four largest broadcast networks and suggesting that none of the Project's findings were statistically significant, that the raw data was not made available, and that the results were erratic. Among other things, the critique noted that newscast quality (as graded by the study) varied in different dayparts even among stations owned by the same group and that the study offered no explanation for this phenomenon.

Most significant, the study based its evaluation of newscast quality on broad subjective criteria. Even if such generalized values—whether a newscast is "significant," "informative," "authoritative" or "fair"—can be measured accurately, the more important question is whether this is a legitimate basis for government action. The FCC got out of the "fairness" business 16 years ago, and there is no justification for getting back in under the guise of structural rules.

A third faction injecting content considerations into the debate over ownership includes writers and producers who advocate a return to a form of the financial-interest and syndication rules (fin-syn). They argue, among other things, that network concentration has promoted the proliferation of reality programming to the detriment of creative, high-quality scripted dramas and sitcoms. They urge the FCC to adopt a "content-neutral" form of the fin-syn rules to combat "blandness" in prime time programming and to promote an environment where viewers can see "feisty females in lead roles on sitcoms."

Even if the current infatuation with reality programming could be legitimately tied to anything other than changing audience tastes, the professed interest in promoting certain types of program formats is anything but content-neutral.

Nor does the demand for non-network–production quotas have anything to do with "diversity," a key touchstone of the FCC's ownership inquiry. Producer Stephen J. Cannell wrote in the pages of this magazine ["How Networks Can (and Do) Stifle Producers," 2/24/03, p.16] that the broadcast networks passed on a proposal for a show that became The Sopranos, which then was successfully pitched to HBO. The show that finally aired, Cannell wrote, "went on to redefine the face of television."

If nothing else, this example proves that the increased choices for producers and viewers alike has lead to an increase
in diversity and a reduction in televised blandness—not the other way around. It is difficult to imagine what The Sopranos
would have looked like as a broadcast-network show (Kingpin, perhaps?) and even harder to fathom how Hollywood's take on the broadcast-ownership proceeding can be squared with Commissioner Copps's interest in reducing sex and violence on TV.

The lesson here is that the FCC should scrupulously avoid injecting programming quality into its review of the ownership rules. As hard experience with the courts has shown, to avoid problems with the First Amendment, both the means and the ends underlying FCC rules must be free from content considerations.



Author Information
Corn-Revere is a First Amendment attorney with Davis Wright Tremaine and former legal assistant to FCC Commissioner James Quello.

 

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