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FCC's Kevin Martin on the Hot Seat - Broadcasting & Cable

FCC's Kevin Martin on the Hot Seat

FCC chief Kevin Martin tries to make sense of a complex digital univers
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Now serving his second term as chairman of the Federal Communications Commission, 40-year-old Kevin Martin, has been in the hot seat lately. Since he became chairman in 2005, he has pushed for greater curbs on sex and violence. Against great resistance, he has attempted to force cable systems to carry the digital channels of local TV stations. And he has riled many more in the cable industry with his advocacy of “à la carte,” which would allow consumers to purchase only the individual channels they want.

Meanwhile, the new Democratic-controlled Congress has threatened frequent oversight hearings of the FCC. On the eve of the National Association of Broadcasters convention in Las Vegas, Martin sat down with B&C’s John Eggerton to talk about everything from TV violence to the Fairness Doctrine.

The perception is that indecency and profanity are big issues with you. Is this personal?

Under the statute, the commission is obligated to enforce its rules [prohibiting the broadcast of indecent material during the hours when children are likely to be watching]. It’s also an issue that many people are concerned about. When I first came to the commission, there were thousands of complaints; now there are hundreds of thousands. Congress passed a law in 2006 to increase our fining authority ten-fold. I think there are a lot of parents who are concerned about what’s on television and radio, and I think that Congress has demonstrated that they are concerned about it, and we have an obligation to enforce our rules.

There is nothing personal about the issue.

But you also, personally, are concerned about profanity, indecency and violence on TV?

Yes. I have strong concerns.

In the TV-violence report you are preparing to release, what advice will the FCC be giving Congress?

Several years ago, Congress had instructed the commission to compile a report on the impact of violent programming. It was due to Congress before I became chairman. The commission, unfortunately, didn’t ever complete that task. When I became aware of this after I was already chairman, we asked the Mass Media Bureau to go back and review the record and try to put together a study. It hasn’t been released yet, but generally the report says that there is evidence that violent programming can have an impact on children, particularly in the short run—a conclusion that 2001 Surgeon General’s report had reached—and that Congress could do some things to try to address it if they wanted to.

I think there are some challenges with the current blocking-mechanism technology [the V-chip]. But I continue to believe that the most important thing we should be doing in these areas is giving parents more control over content, and I think that you can do that most easily by letting them pick and choose which channels they want to buy. That is the single most important thing we could end up doing to give additional tools for parents to try to control content they are concerned about.

I’ve been trying to encourage the media companies to take additional steps to give parents more tools for several years. I actually first raised the issue in the beginning of 2003. I published an article that year in the Federal Communications Law Journal and gave a speech at the National Association of Television Program Executives convention, in which I said I thought that broadcasters should try to return to a family-viewing hour and, since much of the content was coming in on multichannel video platforms, that cable and satellite operators should give parents more tools as well.

I know you have said that you aren’t picking on cable, but some in the cable industry feel that you are. What is driving what seems to be a rift?

I’m not sure. In some ways, I think you would have to ask them.

I certainly don’t think I’m picking on them or on any industry. Almost every industry thinks the commission is picking on them when the commission decides an issue counter to what they have advocated. During my time here on the commission, I have had major issues where I have disagreed with the telephone industry. I’ve had indecency issues with broadcasters that we talked about. But I’ll continue to do what I think the commission is required to do under the Telecommunications Act.

Which includes not granting cable a waiver of the integrated set-top ban?

What we actually did in January is that we granted some set-top requests and we denied others. And we will continue to look at those on a case-by-case basis. But Congress passed a law in 1996 that required us to establish a competitive set-top–box market to make sure that other people have the opportunity to manufacture a set-top box and have them work with their multichannel video providers. This is a requirement that the commission originally adopted in the 1990s when they were implementing that statutory requirement, and it has been delayed several times. Twice the cable industry has challenged that requirement in court, and twice they have lost.

You have more than 100,000 people headed to the NAB convention this weekend. How do you plan to resolve the debate over new rules forcing cable operators to carry broadcasters’ digital channels?

I continue to think that finding a way to help broadcasters take full advantage of their digital capabilities is important and the right policy. And I think that the commission trying to put in rules that would allow broadcasters to take advantage of that technology by putting out multiple streams of programming that would help enable them to serve their communities by giving their viewers access to multiple channels.

I think that would be important to the broadcasters, it would be a good thing for consumers and it is the right policy.

What was the impetus behind the plan to let TV stations lease their extra DTV channels to women and minorities?

The opportunity for new entrants, particularly for women and minorities, to be able to get into broadcasting is an issue that has been raised at the ownership hearings, and I think that, in that context, we were trying to identify ways to provide additional opportunities for new entrants to deliver content over broadcasting.

I think that the ability of broadcasters to take advantage of their digital capacity and leasing some of that to new entrants and treating that channel like a television channel, with the same rights and obligations of regular broadcasters, is an important opportunity for new entrants—and therefore minorities and women—to get into broadcasting. Because a lot of the spectrum has already been allocated and the cost of building your own broadcast station is high, it’s particularly difficult for smaller entities to get in.

They don’t actually own the stations, though.

But it does give them an additional voice in that market. You’re right. It’s not owning the complete station, but it’s a low-cost means of getting an additional voice in that community.

Broadcasters are concerned that, once you let unlicensed devices use the “white spaces” in the broadcast band, it could result in interference to the fledgling DTV industry.

When this issue first arose, I was still a commissioner. I actually have always said that our first priority is to make sure that we don’t do anything that in any way impedes the digital- television transition.

I continue to think that has got to be our goal. But now that we have a hard date set and we’re in the process of finalizing that table of allotments, I think that we can try to determine whether there are technologies that can identify where, in a particular community, there might be “white space” that is not being occupied by a broadcaster in that area and that is not going to cause harmful interference. And that is going to require our Office of Engineering and Technology to do the kind of testing to make sure there are devices that do that without interfering in a harmful way with broadcasters to make sure we don’t in any way jeopardize the transition.

Did the FCC pick the wrong digital-transmission standard with A-VSB now that broadcasters are increasingly looking at mobile applications?

When I became chairman, one of the first things I asked of both the broadcast industry and engineers was what were the implications of the technical challenges of being able to do mobile. I think that the opportunity for broadcasters to devote some of their digital capacity to mobile is one of the most exciting opportunities for them.

Particularly, in light of what we already talked about, if they are not able to do a multicasting strategy, then they could have spectrum that they could very easily utilize for mobile broadcasting.

When we were at the consumer-electronics show, we saw a Samsung and Sinclair demonstration of [an A-VSB] mobile-broadcasting opportunity. That has a lot of promise.

What is the timetable now for producing rewritten media-ownership rules?

I’ve committed to completing all of the ownership studies and all of the ownership hearings before the commission takes any action to make sure we are going through a process that is transparent and people have the opportunity to raise the issues of concern to them. We have committed to a total of six ownership hearings and two on localism. We have completed three of the six ownership hearings. We have another one coming up in Maine and one in Tampa at the end of April. So we’ve made some progress, but we still have some work to do. I’m not sure I can say when the earliest we could do something, because I have to make sure we finish all the hearings.

Given the rise of Internet-delivered content and the lag time before a rule rewrite, is it possible that by the time you get the ownership rules rewritten, deciding how many stations a company can own will be aiming at the wrong target?

I certainly think that the media landscape has changed dramatically. Some of the rules were updated as a result of the 1996 Act. Others weren’t. Take, for example, the newspaper/broadcast-crossownership rule. That rule was put in place in the 1970s prior to the advent of the opportunity for people to have programming on cable and prior to the opportunity to get their information over the Internet. That was a rule that wasn’t updated. The [U.S. Court of Appeals for the] 3rd Circuit, even in overturning some of our other rules, actually upheld the commission’s determination that the prohibition on owning a newspaper and a broadcast outlet in one market is no longer justified.

So I think that it will be a challenge for the commission to try to update its rules in this rapidly changing environment, but I’m still hopeful that we will be able to.

There is some talk of trying to re-institute the FCC’s Fairness Doctrine. Would you support that?

No. The commission eliminated the doctrine in 1987. Doing so has made for a lot of opportunities in things like talk radio.

There are 60 or 70 items for the commissioners’ consideration circulating these days. Why so many?

There are a large number of issues currently circulating amongst the commissioners. Many of them were pending at the commission before I became chairman. I think it is important for the commission to address these long-pending issues, and I am doing my best to see that we do.

One of those items, left over from a previous era, requires stations to put their public files online—a big headache for broadcasters. Do you support that?

Much of the debate over whether broadcasters should be subjected to additional public-interest obligations is based on whether they are serving their communities now. I think most broadcasters are doing a good job, and making public their practices will add concrete facts to this debate and should benefit them. My predecessor circulated an item on enhanced disclosure, and I recently proposed some edits to strengthen it.

With so much competition, why cap a cable company’s base at 30% of the total subscriber universe?

Congress specifically instructed us to set a limit on how large a cable operator could be. The D.C. Circuit [Court] remanded the commission’s prior attempt because it wasn’t sufficiently justified. The evidence we have now, based on two requests to refresh the record, supports a similar cap. The economic justification is based on how many subscribers a [Multichannel Video Programming Distributor (MVPD), including both cable and DBS operators,] can have before it is able to foreclose the ability of a programmer to reach consumers.

Network neutrality. You already have the guidelines and, you say, the authority to enforce them. Why not take the next step and codify them in the rules?

The commission’s Internet Policy Statement states that access to Internet content is critical and the blocking or restricting consumers’ access to the content of their choice would not be tolerated. Although we are not aware of current blocking situations, the commission remains vigilant and stands ready to step in to protect consumers’ access to content on the Internet.

Generally speaking, I do not believe in issuing regulations to correct a problem in absence of evidence that the problem even exists. And to date, we have not seen many examples of consumers’ being blocked from accessing content on the Internet. I am concerned that rules preventing operators from managing their networks may deter the very investment in broadband infrastructure that is essential to ensuring every American has access to affordable broadband services. I believe we must strike a balance between addressing concerns about access to content on the Internet and encouraging investment in broadband infrastructure. Our Internet Policy Statement and our examination of the current practices in the broadband market strikes the right balance.

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