Broadcast Law Blog : Broadcast Lawyer & Attorney : Davis Wright Tremaine Law Firm : Broadcast Law Blog : Seattle, Los Angeles, Washington D.C., New York, San Francisco, Shanghai

The Commission, while clearly having a mandate to foster broadband development, seems to be taking steps that look toward possible intervention in the technological development of the video marketplace - seemingly standing ready to help pick winners and losers through regulatory actions.  The proposals in this proceeding, if the Commission were to follow through with mandates that are mentioned in this Request for Comments, could impose costs on MVPD providers and others to assist in providing access to potentially competing video - video that developments from other companies (both Apple and Microsoft, for instance, having introduced systems over the years to make TV and Internet content available on a television screen) seem to demonstrate that the marketplace is quite capable of providing if there is consumer demand. 

The questions asked in the first of the paired Requests for Comments, the one looking at whether to reclaim the television spectrum, adds to this perception that the Commission is looking to select winners and losers in the video environment.  The questions asked in that proceeding raise so many fundamental issues about over-the-air television in a manner that seems to indicate a preference for other uses of the television spectrum that, by just asking the questions it does, the Commission could scare off vital investment just as the television industry is looking for ways to utilize the digital television spectrum that has just so recently been fully deployed (e.g. though the mobile digital television deployment which is only just beginning).  While we wrote about some of the general questions asked in that proceeding here, there are many complex, specific issues on which the Commission seeks detailed comment in just over two weeks.  These include:

• The factors that the Commission should review in assessing relative spectrum needs
• The impact on the US economy of increased wireless broadband and of any decrease in the amount of spectrum used by television broadcasters.
• The current and future uses of the digital capacity of television stations
• The views of the financial community on mobile TV broadcasting
• Whether over-the-air television could be more efficiently used through more co-location of facilities and though other compression technologies that could allow more services in less spectrum, and the costs of developing and implementing such changes - both to stations and consumers
• Whether better antenna standards or more use of MVPD retransmission could lessen the need for spectrum currently used by TV stations
• What benefits do over-the-air television stations provide in terms of local news, education, emergency information and political coverage
• What market-based solutions could be used to encourage broadcasters to be more efficient with spectrum and to potentially  free some of that spectrum.

Perhaps the most loaded question was one which started with a premise that appeared to contain a conclusion for all of the other questions asked:

Consumers are migrating away from mass-market “appointment” viewing to more fragmented and time-shifted viewing. What impact will this trend have on the television broadcasting industry? What can the Commission do to help broadcasters participate in this evolution?

This question alone seems to conclude that "appointment television" is dead - despite the fact that even on the Internet, appointment television seems to be continuing to play a big role - whether through coverage of a political speech, preliminary games of March Madness, a live U2 concert, or a swimsuit photoshoot.  Even on the Internet, appointment television seems to be alive and well - so a conclusion that its death is imminent seems difficult to reach at this time, and perhaps presumptuous for the Commission to even posit.  Even if one were to conclude that television broadcasters were the buggy whip manufacturers of the 21st century (and, given the continued reliance of advertisers - both political and commercial - and viewers on programming provided by such broadcasters, that seems a difficult conclusion to reach), should the Commission be encouraging or potentially be mandating their demise by pulling spectrum out from under them - when the stations and consumers have just spent billions of dollars to foster the digital transition that was only completed in June - before television broadcasters have even been given the opportunity to prove their ability to operate and function in the digital world?  Particularly in smaller television markets, these very broadcasters may well be the ones who are most likely to bring video programming innovations to their service areas - both in connection with their over-the-air operations and on other digital platforms.  Should the Commission presumptuously label their business model as one that is being replaced?

This Commission, in may ways, has striven to be an open one - seeking public comment on many topics, including broadband innovation and even the broadcast multiple ownership review that is coming next year, encouraging diverse and robust debate, as early in the process as possible.  Yet on these fundamental questions facing the television industry, there seems to be a rush to judgment - asking pointed questions where it is suggested that answers have already been reached, and giving interested parties such a short time frame to answer such fundamental questions that the Commission cannot possibly expect searching, detailed responses.  While we understand the Commission's need to meet it mandate to report to Congress on broadband deployment by February, must it really engage in this rush to judgment on questions concerning all video operations?  The history of the television digital transition shows the bumps in the government's handling of a basic change in just one portion of the video industry - and that was part of a 15 year process.  To reform the entire video industry at the speed with which the Commission now seems to be moving can only invite trouble.  We hope that affected parties file comments in response to these two Requests for Comments that fully state their cases by the December 21 deadline in a way that makes the Commission recognize that there need not be government anointed solutions to the major industry development issues now facing the various industries involved.  The evolution of the television industry is a process that needs to be allowed to develop in response to consumer demands - not in response to government mandates. 

This reliance on the new media, and the mantra that is being chanted regularly by the new Commission, seemingly approaches media issues from a position where there is an assumption (perhaps rebuttable, but there nevertheless), that the new media is where all the action is and where all the attention should be placed.  This is reflected by the proposals (about which we wrote here, and which have gained much press since we wrote about these ideas) to re-allot television spectrum to broadband, with the idea that this will serve the new media at the expense of the dinosaurs in the broadcast industry - exchanging a sure thing that serves virtually the entire country for a promise of service in the future.  It also ties into a feeling that seems to be pervading government, that the "traditional media" can no longer be counted on to serve the needs of the public.  Not only is there this appointment, but there is also the upcoming workshop at the FTC on how newsgathering will survive in the future in light of the technological and economic challenges to newspapers and other traditional media.  Perhaps, in the words of Monty Python, it's time for the broadcast industry to rally and cry - "not dead yet" - as a vibrant though challenged industry is being almost assumed by the regulators to be out of business.

The Capital Formation workshop is perhaps a good sign that the Commission has not totally abandoned the broadcast industry, as the Public Notice announcing that event does specifically refer to the broadcast industry.  The lack of financing to acquire broadcast stations has been cited by many observers as the biggest impediment to minorities and other new entrants getting into broadcast ownership.  We are bound to hear those issues discussed in this week's workshops on the new multiple ownership proceeding.  While the Capital Formation workshop may be one way to address that deficit, we do note that the companies who are identified as participating do not seem to have a broadcast background, but from their descriptions in the public notice, they all seem to be more invested in technology companies.  Will potential owners who attend the session be disappointed by the lack of broadcast investors who are present?

These actions show the conflicted nature of the FCC when it comes to broadcasting.  What kind of reform is possible, and what kind of broadcast industry will we see in the future?  Will regulation recognize the change in technology and allow broadcasters to adapt to the changes, or will regulation force that change, or will broadcasters continue to be regulated as they always have been (or as they once were 25 years ago as some proponents of more regulation seem to suggest)?  These will no doubt be questions addressed on these pages many times in the coming months. 

The FCC itself abolished the Fairness Doctrine in the last century finding it unconstitutional, especially in light of the growth in the number of media outlets.  Since the abolition, the number of available media outlets has increased exponentially.  Just look at the recent elections, when blogs and other websites often drove the political conversation, identifying issues that were later picked up by the mainstream media, and debunking arguments and talking points that were disseminated by the mainstream media.  The growth of the Internet alone shows how communications has become so diverse that there is no scarcity that could justify the imposition of a fairness requirement only on the broadcast media.  There is so much other media that is delivered to any home - whether by new broadcast outlets, or by satellite or cable delivery, or even in print, that there can no longer be any scarcity justification for the Fairness Doctrine.  Earlier this week, I attended the Future of Television Conference in New York City, where much of the conversation was on the delivery of television programming to cell phone handsets or other mobile devices.   There is simply an explosion in the number of media outlets - and no justification for the return of the Fairness Doctrine.

Those who even discuss the return have to consider what it would mean.  We have written about how it would be a prescription for the return of bland programming.  Stations that run talk programming - whether it be Rush or Air America, would have to avoid the opinionated messages that they now air so that all sides of issues could be presented on every station.  Why force every station to air the same opinions, when with the number of broadcast outlets available in most markets, there can be a real diversity of voices among the competing stations?  I've heard some broadcasters say that the return of the Fairness Doctrine and the end of opinionated programming would effectively signal the end of the already ailing AM radio band which now relies very much on talk radio, compelling to niche audiences, to bring in audiences.  Others forget that issue-oriented commercials also had to be "fair" - so if one side of an issue was able to buy advertising time on a station and the other side could not afford to buy time to respond, the station had to give the other side airtime - for free!  Just imagine if such a requirement were put on newspapers, magazine or websites.  In a moment, the Courts would declare any such government requirement unconstitutional.

So let's hope that, in this multichannel universe with almost unlimited media outlets, the rumors of the return of the Fairness Doctrine are just that - rumors.  In an administration looking to bring about change and take America into the future, let's not look at yesterday's rules to further imperil broadcasters in a very competitive, very uncertain time.