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The philosophical issue of whether or not regulation was necessary, and whether regulation can be accomplished in a manner that avoids constitutional issues, was a focus of much back and forth.  All panelists seem to concede that it was problematic for government to regulate content directly.  Several of the panelists suggested that the structural rules embodied in the multiple ownership restrictions were necessary to accomplish the ends that could not be directly mandated consistent with the First Amendment, like encouraging more local programming and more coverage of local issues.  Ken Ferree, the former head of the Media Bureau and now affiliated with the Progress and Freedom Foundation, asked some of the more regulatory-minded panelist how, if the purpose of this structural regulation was to accomplish goals that could not be directly mandated, could the indirect regulation be justified when done for a purpose that admittedly was prohibited.  That question did not seem to have a direct answer.

The Media Bureau representatives who were conducting the panel asked whether regulation should take into account the current economic conditions of broadcasting.  The more regulatory public interest members suggested that the current economic problems of broadcasters were not an intrinsic problem with the industry.  Instead, these representatives suggested that broadcasting, on a cash flow basis, was still a successful business, and that the current problems of broadcasters were due to their high debt loads.  Based on this belief, the representatives of several of the groups felt that, because broadcast owners had put themselves in the situation that they are in, the Commission should not concern themselves with their current economic plight when making regulatory decisions.  One panelist went so far as to say that, if broadcasters don't like the regulations that may be adopted, they don't have to operate under them - they can sell their stations or turn in their licenses.

While there is no doubt some truth to the contention that high debt burdens have caused some broadcasters current economic issues, it seems that these public interest representatives far understate the structural issues facing broadcasters.  We have written about the licenses for television stations which have been surrendered because there is no one who was willing to face the costs of the digital conversion, and of AM stations that simply can no longer make a go of their operations.  These are not imagined problems, or problems caused by debt burdens, but instead real economic issues that have caused stations to go dark and licenses to be surrendered due to changes in the media marketplace.

Several of the panelists suggested that the decisions made by the Commission be data driven - based on research and factual data.  However, many complained that sufficient data was no available to make the necessary determinations.  Suggestions on data accumulation included the Commission's rapid implementation of the Form 355 for television (which it has already been approved but not yet implemented) and for radio (where it was proposed as part of the localism proceeding).  There was other discussion about bringing back FCC Form 324, which required the reporting of annual financial information about the costs and revenues of broadcasters until the form was abolished in the early 1980s.  When asked about the paperwork burden of requiring this information, the suggestion was made that this was simply a cost of doing business in a regulated industry, and broadcasters needed to provide the information for the FCC to make good decisions.   Clearly, these individuals have never run a small market radio station, where such burdens can be crushing. 

These proposals don't reflect anything more than the views of the parties who were represented.  But, as referenced above, these are parties active in Washington and accustomed to dealing with the FCC.  They will be filing comments in the Quadrennial Review and lobbying the Commission on these matters.  And, from the fact that they were included on the panels, they have at least some attention of those within the FCC.  So broadcasters must note their concerns, and be prepared to respond to these issues when they are formally presented to the Commission. 

In addition, one would hope that the changes in the business outlook for the advertising supported media brought on by the current economic climate would change some of the Commissioner's past positions on some of the issues facing broadcasters (see this Hollywood Reporter article on a Stanford Group analysis of public media companies, including a sell recommendation on "just about anything related to radio.")  Just as the Obama administration has recognized that the economic conditions have meant that it must postpone some of its legislative initiatives (like tax increases on high income individuals), it would seem that imposing additional costs on broadcasters when their revenues are on a dramatic downturn, when their staffs are being cut, and when a number of major broadcasters have already declared bankruptcy and others have current stock values far less than their outstanding obligations, would not bring about increased public service, but instead might well bring about more station's going off the air or further limiting their service.  Now is not the time to be counterproductive by damaging the economic health of an industry that, more than just about any other, produces virtually all of its jobs here in the United States.