By: Jeff Chester
AlterNet
December 2001
As front-page stories gush over the accomplishments of Gerald Levin, AOL Time Warner’s CEO, his retirement has obscured the more negative part of his legacy. For under Mr. Levin, Time Warner embarked on a political and legal campaign that ultimately weakened the First Amendment rights of citizens, harmed consumers and currently threatens the future of the Internet.
Time Warner became, in the last decade, the principle political force in a communications industry that has sought to overturn public policies designed to ensure the public's right to a democratic and diverse electronic media system. In endless court challenges, Time Warner has consistently argued that its First Amendment rights as a cable operator trump the public interest. Under Mr. Levin's vision, no law or rule that placed modest limits on Time Warner corporate power could stand. In what New York University professor Yochai Benkler has termed a "moral inversion" of the First Amendment, Time Warner has cloaked an economic and political power grab in the guise of protecting free speech. In Levin's view, a cable company has the right to determine who can speak, with the ability to pick and choose programming. Anything less than "publisher" status has been anathema to Levin.
But the rules that Levin's Time Warner have fought were designed to guarantee that cable TV didn't have a monopoly over the viewpoints expressed on what are already basically local monopolies. In most communities in the U.S., there is only one cable company. (In fact, today, seven companies now control 85 percent of the nation's cable TV households. Time Warner is the second largest cable company, controlling about 25 percent of the nation's cable TV households.) In opposing a 1992 provision designed to ensure that local broadcast stations -- including public TV -- had the right to be "carried" on cable systems, Time Warner fought a rule designed to ensure that local voices in a community could also be heard.
Perhaps the most chilling example of Time Warner's misuse of the First Amendment has been its legal and political campaign to kill even very weak safeguards that placed a ceiling on the number of cable systems and channels a single company can control. Since 1992, a cable company such as Time Warner has been restricted from swallowing up more than 30 percent of the nation's cable TV households. Cable also has been limited from occupying all the programming channels. But Time Warner has argued that any limit violates the company's First Amendment rights. Not mentioned in their extensive legal briefs are the implications to the public of such a stance. Time Warner claims it has the right to own all the cable programming outlets and channels it wishes. In Mr. Levin's vision, no safeguard can stand -- even if it's designed to promote competition, content diversity and a more democratic media. This week, Levin was able to make a bid for AT&T's cable empire. If the two companies merge, then AOL Time Warner will control 50 percent of the nation's cable households. This bid for AT&T has been made possible by Time Warner's attack on cable ownership safeguards.
Of course, there is an irony here, for fueling the deep pockets supporting Mr. Levin's corporate advocacy have been millions of captive cable subscribers, who have witnessed ever-spiralling rate increases during Levin's tenure. It's also worth mentioning that, according to a Dec. 3 Ad Age report, Levin was the highest paid media executive in the U.S. last year. He made $164,387,897 in total compensation (compared to Michael Eisner, Disney's CEO, who made a paltry $72,848,842).
Finally, Time Warner has been an opponent of "open access" to broadband cable, as part of a strategy to extend cable TV's monopoly over multichannel TV in the digital world. The Net's open architecture, a hallmark of its founding, is now threatened. Time Warner lobbyists have helped to undermine any proposal that would ensure the Internet doesn't end up an extension of its cable empire. Prior to its merger with Time Warner, AOL's Steve Case was the country's leading corporate supporter of "open access" for the Internet. But once the merger was announced, Levin announced the reversal of the AOL policy, saying that the new company no longer supported an open access public policy.
Indeed, when AOL and Time Warner filed their "public interest" statement with the Federal Communications Commission (FCC) in February 2000, it revealed the narrow vision of Mr. Levin. Despite the fact that the merger involved some of the country's most important news outlets -- such as CNN and Time magazine -- what was promised to the public as a benefit from the merger had nothing to do with journalism or public service. The only "benefits" were that the merger would stimulate broadband deployment and that there would be a new generation of interactive, commercial applications.
Despite his departure, Mr. Levin's political agenda will likely continue. Time Warner has been successful in many of its lawsuits; last March a Federal Court of Appeals overturned the cable ownership limits. The future of cable is now before the FCC, which is likely to adopt Mr. Levin's perspective. If so, it is very possible that just two companies will control the nation's cable TV households, and a good part of the Internet with it. To protest this development, you can file an opposition through the Center for Digital Democracy.
While I sincerely wish Mr. Levin well as he moves on to work on social and philanthropic issues, I can't help but point out that his tenure at Time Warner -- while good for stockholders -- has not been positive for America's democratic stakeholders.
By: Jeff Chester and Gary O. Larson
Association of Independent Video and Filmmakers website
December 2001
Now you see it, now you don’t. For a while, it seemed as if the old, scarce media economy would no longer apply with digital television (DTV) on the horizon and broadband Internet poised to become the on-line onramp of choice for millions of households. Independents clamoring to have their voices heard could look to DTV to open up hundreds of new channels. Cable systems would expand accordingly with new interactive features, and the World Wide Web, no longer merely a static, text-driven bulletin board, would blossom into a thriving repository of streaming audio and video.
And then stark reality reared its ugly head and spoiled everything. Now more than ever it seems like there is less diversity on the air and only a few sources of information that are tightly controlled. The transition to DTV has been painfully slow, and there is still no guarantee that any of the new channels that multicast digital transmission (including those of public broadcasters) will be devoted to noncommercial and independent fare. Most cable systems have been upgraded to full, two-way digital communications, but these new networks have turned out to be as closed and controlled as cable operations have always been. And while the Web has become a lot more colorful and flashy, its traffic patterns have begun to look more and more like those of network television, with a similar handful of giants (AOL Time Warner, Yahoo, and Microsoft, et al.) dominating the online marketplace.
So what’s a poor independent film or videomaker to do? For starters, indies will have to tend to more than their craft for a while. They’ll have to spend a little time in the telecom trenches, monitoring the rules and regulations, the federal agencies and legislative proposals, that one way or another will determine the new media environment for the 21st century. With the long-touted convergence of television and the Internet finally at hand, it behooves the independent media community to stake its claim now, demanding a new-media environment that will prove more hospitable to alternative and creative voices than the existing broadcast regime.
Here’s a quick checklist of four telecom questions that need to be addressed, along with some suggestions on how to make sure we get the right answers:
•Spectrum: Who owns it, and what will they do with it?
•Web access: Who gets to drive on the new broadband expressways?
•Consolidation: Why are there more channels, but fewer real choices?
•Set-tops: What really goes on inside that black box on top of your TV?
Spectrum Politics: Bandwidth Bait and Switch
In 1996, each of the nation’s 1,600-plus TV stations were lent 6 MHz of additional spectrum (equal to what they already had for their existing analog broadcasts) for the purpose of making the transition to digital transmission. The deal was a good one for broadcasters (free use of spectrum worth upwards of $70 billion at the time, perhaps as much as $300 billion now), and they wouldn’t have to surrender their old, analog spectrum until the transition was complete. Originally that deadline was scheduled for 2006, but it appears certain that the FCC will have to extend that date. And now the broadcasters are angling for an even sweeter deal, lobbying to be allowed to keep their old spectrum, auctioning it off themselves or putting it to some other revenue-generating use. Even overlooking the fact that the airwaves are a natural resource that belongs to all of us (which the stations are licensed to use by the FCC), the broadcasters’ bait-and-switch offer is galling.
What can be done? Independent artists, with as much to lose as any group if the broadcasters’ bid to have their cake and sell it too is accepted, need to weigh in on this matter. A good place to start is the New America Foundation’s Public Assets Program (www.newamerica.net/frames/fr_programs_2k.html), which details the public-interest implications of spectrum management. Congress is already considering various plans for using the proceeds of the spectrum auction, but the most imaginative is that of the “Digital Promise” project (www.digitalpromise.org). Under this plan, a Digital Opportunity Investment Trust, funded by $18 billion in revenue from the spectrum auctions, would support a range of on-line educational, civic, and cultural programming. Indies with new media skills could hardly ask for more, but persuading Congress to back such a visionary plan won’t be easy.
Public broadcasting also bears watching in this regard, since it has a “digital promise” of its own to fulfill. Unfortunately, the pubcaster’s lobbying group recently persuaded the FCC to allow PTV stations to use some of their new digital capacity for commercial purposes. That doesn’t augur well for public broadcasting’s digital plans, and independents will need to demand that the PBS community think more expansively with its digital future than it did with its analog past.
Broadband Access: Who’s in and Who’s out?
Once it finally reaches a critical mass of U.S. households, high-speed Internet delivery will be a boon to anyone interested in streaming media—those bandwidth-hungry audio and video files that are currently constrained by dial-up modems’ modest transmission speeds. Gaining access to the broadband platforms is another matter, however. A handful of cable operators and local telephone companies currently enjoys a stranglehold on high-speed Internet connections, and in the absence of meaningful competition in the broadband marketplace, diversity of expression will surely suffer. Content producers and consumers alike will soon face tiered levels of service, with escalating fees for faster transport speeds, and favored status granted to proprietary and affiliated programming. The real danger—absent adequate open-access regulations—is that some producers will be excluded from participation altogether.
What’s needed, then, is an assurance that the public Internet—the “most participatory form of mass speech yet developed,” in the words of the Supreme Court—will retain in the broadband era the same openness and diversity that made the dial-up system what it is today. The FCC, which has the authority to adopt open-access regulations, needs to hear from artists and other citizens, not only on the broadband-access issue, but also on the currently unregulated arena of interactive television (ITV). Currently occupying a regulatory limbo somewhere between telecommunications services and video delivery, ITV demands the same open, nondiscriminatory guarantees that have kept the Internet diverse and competitive, lest the new system become simply another showcase for AOL Time Warner, Viacom, and the other media giants.
Media Consolidation: The Rich Get Richer
And speaking of the media giants, they’re attempting to become even more powerful. Moving forward on a variety of fronts that affect television, cable, and newspaper ownership, and spending vast sums on lawyers ad lobbyists, the conglomerates have taken aim at some of the basic safeguards of media diversity in the U.S. Specifically, five longstanding regulations have come under attack:
• No broadcaster may own TV stations reaching more than 35 percent of the nationwide audience.
• No cable operator may own systems that reach more than 30 percent of cable homes reached nationwide.
• No cable company may have any ownership affiliation with more than 40 percent of the programming that it carries on any of its cable systems with up to 75 channels.
• No company may own a newspaper and a broadcast station in the same market.
• No company may own a cable station and a broadcast TV station in the same market.
Given the deregulatory mood in Washington these days, and the avowed fondness that FCC Chairman Michael Powell has for “marketplace solutions,” it seems likely that most of these safeguards will be eliminated or severely weakened. But it’s not too late to protest this evisceration of our media democracy, and to expose the duplicity of the industry’s claim that its First Amendment rights have been violated by ownership constraints. Contrary to industry claims, the ownership rules neither ban protected speech nor prevent competition. On the contrary, these rules simply preserve a modicum of diversity and competition in fields that threaten to become a single mass-media oligarchy. The big media lobbyists are attempting to rewrite history, ignoring both the massive consolidation that has already taken place over the past 20 years, and the growing concentration of power in fewer and fewer hands. There may be more media outlets today, given the expansion of cable systems and the introduction of niche publications, but there are far fewer owners of these outlets—and far fewer choices for consumers and producers who wish to reach beyond the homogenized mainstream.
Set-Top Surprises: Ghosts in the Machine
Often described as the most valuable square foot of real estate in the world, the box that sits atop your television set—either a cable box or other device—is about to become even more valuable as the centerpiece of a new system of interactive television, e-commerce, and high-speed Internet services. The set-top box is seemingly beyond the control of Washington, and certainly beyond the ability of most consumers to understand. Among the mysteries are software programs that monitor what viewers watch, which ads they skip, and what Web sites they visit. Some newer boxes feature hard-disk recorders that reserve space for network operators to download targeted ads, based on analyses of compiled viewer behavior. And these boxes will eventually include the cable modems that will lead viewers—depending on built-in software or network protocols—down paths that favor certain brands of programming over others.
Can we afford to cede that much control to network operators, who, literally left to their own devices, will transform the intelligent set-top box into a vending machine for proprietary content and closely monitored transactions? Here again the FCC can, if it so chooses, open a formal inquiry into the emerging world of ITV.
Fortunately, there is still time for activism to shape the contours of the digital media landscape, and to seize back from commercial interests at least a measure of control over our digital destiny. It will take a great deal of effort to do so, criticizing industry plans, developing our own technical approaches, fostering greater awareness of what’s really at stake, and of course continuing to make valuable content. It won’t be easy, but the alternative—a digital media system that offers more of the same and less of what we need—is simply unacceptable.
By: Jeff Chester
AlterNet
October 2001
Summary : In the wake of the 9/11 tragedy, the FCC wasted no time in opening rulemaking proceedings to deregulate the media industry, a move applauded by the media industry and decried by advocates for a less concentrated media.
Just two days after the terrorist attacks in the U.S., the Federal Communications Commission moved ahead with plans to end or weaken several long-standing policies designed to promote diversity of media ownership. Under the leadership of the new FCC Chairman Michael Powell (son of Secretary of State Colin), the commission released two proposed "rulemakings" that will have a major impact on the country's newspaper, broadcasting and cable TV industries. One TV network executive has already called for more deregulation as a way of helping the TV business recover from economic losses related to the attacks. If these proposals are approved, there is likely to be major consolidation, dramatically reducing still further the number of companies in control of major U.S. media outlets.
In normal times, similar deregulatory proposals could be viewed as media industry special-interest lobbying as usual. For over 20 years, the TV and cable industries have told policymakers to eliminate most federal rules on media ownership, arguing that success in the free market should be embraced as the ultimate public-service test. In FCC Chairman Powell, the industry now has a critically important ally who has endorsed the idea of further deregulation. Powell has placed these proposals on a very fast track.
But such policy changes are likely to have a major impact on journalism, potentially weakening the news media's ability to cover the current crisis and future developments effectively. Since the initial media deregulation of the Ronald Reagan-era, changes in FCC ownership policy have brought about drastic budget cutting in the news departments of the TV networks. There have been major reductions in staffing, including curtailing investigative units, closing of foreign bureaus and the emergence of an eviscerating bottom-line mentality that has often replaced serious reporting with a focus on ratings-generated infotainment. The print press has sometimes also been victimized by similar cost-cutting strategies, often as a consequence of media mergers by larger conglomerates.
The question must now be asked whether a new wave of media deregulation might further weaken and erode the resources of network TV news and major newspapers, just at a time when we need them to both cover the breaking news and effectively serve as a guardian of the public's right to be fully informed.
There are two federal media ownership rules now under-review. The first would either eliminate or change a 25-year-old policy that prohibits the ownership of a TV station and a newspaper in the same community. The goal for this so-called "cross-ownership" safeguard has been to ensure a community has some diverse editorial perspectives, with no single owner able to dominate with its viewpoint. The second rule under review currently places limits on the size and clout of a single cable TV company. Under one FCC proposed change, a single company might be able to control two-thirds of the nation's cable systems. Several other FCC policies, including those that limit the total number of TV stations the big networks can own, have come under legal and regulatory attack from the networks themselves, including AOL Time Warner, Viacom/CBS, NBC and Fox. If the FCC and the media giants are successful in weakening the ownership safeguards, a single owner in a community could control several TV and radio stations, a cable system and a newspaper. The networks would control more TV stations across the country, which has already raised protests from affiliates who feel such a move would threaten local programming needs.
Nowhere in its proposals on media ownership, however, does the FCC ask whether media deregulation in the past has negatively affected the quality of our news media, especially from the broadcast TV networks. But it has.
Twenty years ago, the FCC began its first major deregulatory thrust while under the leadership of Mark Fowler. Fowler terminated many of the FCC's public interest policies, suggesting that TV be viewed as a "toaster with pictures," a simple household appliance requiring little oversight. Public service requirements were ended. TV stations could renew their lucrative public license by simply sending in a postcard. Rules that had prevented the fast turnover of stations and networks were abandoned, leading to takeovers at the then-three major TV networks. Since networks could now buy more stations, their new debt-burdened owners began looking for ways to economize their operations. First on the chopping block were their news divisions, whose budgets had been protected for decades as a way of fulfilling their formerly required public interest mandate.
Hundreds of TV journalists lost their jobs. Network documentary and investigative units disappeared. Foreign bureaus were also closed or had their staffing reduced. Management consultants were brought in to help turn the news operation into a profit center. Out of this morass arose tabloid TV and soft news magazines, easy on both the budgets and ratings. With reduced staffs, the network news divisions had to band together to report on election coverage, ultimately creating the Voters News Service, which in last year's election erroneously called Florida for Al Gore.
There are more recent examples of the negative impact of media ownership changes on news. For example, last year, right after giant AOL swallowed Time Warner, the newly merged, largest media company laid off more than 400 CNN staff.
Earlier this month, while remarking on the loss of ad revenue related to the terrorist attacks, Viacom president Mel Karmazin suggested there could be a "silver lining" for his company due to the weakened position of other media companies. He called for more federal media deregulation so Viacom could purchase additional television stations and other media properties. He suggested that, in a time of war, the government should be supportive of such a move.
While there have been major changes in our media landscape over the last two decades, we have seen more outlets and channels, but with fewer owners. And despite the rise of the Internet, most Americans still rely on television as the principal source of information. That's one reason why the FCC should delay its ownership proceedings. Before we rush headlong into a new series of deregulatory moves, we must discuss, carefully and publicly, how this will affect journalism and the flow of information to the public. We need the news media more than ever today, to carefully examine what went wrong with government anti-terrorism plans, for example. There needs to be an abundance of local and national in-depth reporting, and a commitment to investigative efforts. The self-serving call for greater deregulation from Karmazin and Michael Powell need to be tempered with analysis and debate.
By: Jeff Chester
Tech Review
June 2001
Summary : Left unchecked, cable firms will funnel Internet traffic to their own content—and the Web won't be worldly or wise.
The recently consummated merger of America Online and Time Warner concluded a year-long struggle over the nature of monopoly power and open access in the broadband age. This battle, which pitted consumer advocates and corporate competitors alike against the twin media giants, ultimately yielded several important safeguards. Chief among these: the guarantee of open access to the cable network for rival Internet service providers, a similar provision barring discriminatory treatment of interactive television traffic, and a monitoring system to handle complaints from the new AOL Time Warner's competitors.
But despite such safeguards, another even more important battle looms on the horizon. At stake is the future and form of the Internet for millions of Americans whose access to the online world comes through the set-top portals of cable television. Instead of the multivaried pathways of the World Wide Web, these users will be provided easy access to a much smaller subset of items and options that reflect the network owner's online programming, as well as the offerings of its content partners. Dubbed "walled gardens" by supporters and skeptics alike, these new "managed-content areas" will therefore offer the illusion of online choice, while leading subscribers down well-worn paths of proprietary content and affiliated programming—in stark contrast to the great diversity of expression the Web seemed to promise in its heyday, way back in, say, 1997.
In their filings with the Federal Communications Commission during the merger-review process, AOL and Time Warner offered a chilling glimpse into this new online world by speaking rhapsodically of "next-generation branded content" and "powerful e-commerce applications." Presumably, these will be the financial fruits—for the cable networks and their content partners—of the new walled gardens.
But AOL and Time Warner were much less forthright concerning the nature of these services—because their very existence puts up walls that will separate cable subscribers from the vast expanses of the Internet (or, at the very least, discourage all but the most adventuresome users from straying too far). This is because the underlying architecture of the new cable broadband networks, offered through sophisticated set-top boxes under the guise of "interactive television," will permit network owners to favor their own online fare over that of their competitors. Menus, on-screen icons and the local caching of featured content (to speed its delivery) will all come into play, as the once-level online playing field is tilted sharply toward the network owner's interests.
It was none other than the Walt Disney Company (itself no stranger to aggressive behavior in the media marketplace) that warned of the potential abuse of this power during the AOL-Time Warner merger review. By controlling both programming and the pipes through which that programming is delivered, Disney pointed out, the merged company would have "undeniable economic incentives and opportunity...to favor its own affiliated content and to discriminate against unaffiliated content providers."
That argument worked, at least in part. The strictures ultimately imposed on AOL Time Warner by the Federal Trade Commission—forcing it to provide unrestricted access to other Internet service providers and interactive television traffic—all but precluded it from exercising such control over its competitors. But the newly formed company reaches only 20 percent of all cable households in the United States, while the rest of the vast and still-growing cable market continues to operate without these restraints. Moreover, judging from the claims of those who will actually be building new interactive TV systems—the networking hardware, software and "middleware" vendors whose products will likely establish the ground rules for the broadband future—the potential for abuse is great.
Consider, for example, ICTV, a Silicon Valley company that makes software for digital set-top boxes. In courting cable company customers, ICTV enticingly extends the walled garden metaphor to include "walled jungles" and "fenced prairies." These virtual gated communities, it unabashedly states, will reach "beyond a proprietary network to content partners on the Web, while circumscribing access to a defined range of approved Web pages."
A competing firm, Transcast, promises to create a "seamless consumer experience," in which "each component is branded with the partner's logo and identity, enabling the partner to promote their brand for the duration of the user's Internet experience." More brazen still is Cisco Systems (the largest supplier of networking hardware and software), which boasts of technology that will allow network operators to create "captive portals." These will give a cable system owner "the ability to advertise services, build its brand, and own the user experience." Not to be outdone is mighty Microsoft itself, which gets straight to the heart of the brave new online world. Promising full "walled garden support" with its new TV Server platform, Bill Gates's ever-ambitious enterprise promotes the possibilities of "whitelists, blacklists, and auto-generated cookies," the means, presumably, of determining who gets to see which programming, and under what terms.
For millions of households, therefore, the World Wide Web will be neither worldly nor wide. The real danger, of course, is that the online marketplace of ideas under cable's control will become as encumbered with gatekeepers and tollbooths as the world of cable has become. If the Internet follows that sorrowful path, what was once a vast library of information on the Web—good, bad and indifferent, certainly, but also diverse and democratic—will begin to resemble the orderly, limited shelves of a chain bookstore. Bestsellers will abound (especially those with corporate ties to the media conglomerates), but alternative and independent voices may find themselves pushed so far to the margins that we'll lose sight of them altogether.
That's just too high a price to pay for the speed and simplicity of what amounts to little more than Internet Lite. In the interests of our democracy, broadband cable companies must be held to a higher standard than that—and the carefully constructed safeguards that preside over the AOL-Time Warner merger should be applied across the board to every cable system that offers telecommunications services.
By: Jeff Chester
The Independent
May 2001
As we move forward, however haltingly, into the digital future, public broadcasting represents our best hope of staking a genuine public-interest claim in the emerging new medium of interactive television (ITV). Admittedly, no one is certain exactly what ITV will turn out to be—some combination of electronic program guide, video-on-demand, online shopping, multi-player games, and Internet access, no doubt—but the danger that ITV will become a thoroughly commercialized platform is a real one. And that’s why public broadcasting’s moves in this area are so important.
Most of the nation’s cable companies, seeking to cash in on the e-commerce revolution, have upgraded their systems to full, two-way digital communication, ushering in a new era of “enhanced” or interactive television. Tied to intelligent set-top boxes and other household and personal appliances, the new system will marry the simplicity and emotional impact of television with the depth and diversity of the Internet, producing what Deutsche Bank has called an “advertising nirvana.” More to the point, as Broadcasting & Cable magazine pointed out, “interactive advertising dollars will position broadcasters to capitalize on the rewards of target marketing, allowing them to take aim at the best of both worlds, i.e., the TV and the Internet…, [with] the ability to track what a user is viewing and then target advertising to pique a consumer’s interest.”
But the new interactive, broadband platform that cable will deliver to millions of American homes could turn out to be much more than a televised shopping spree. For the full public-interest potential of ITV to be realized, however, public broadcasters will have to move ahead on three broad fronts—as advocates, as exemplars, and, recalling the original Carnegie Commission on Educational Television mandate for public broadcasting in 1967, as “a voice for groups in the community that may otherwise be unheard, . . . a forum for debate and controversy.”
First things first. The Federal Communication Commission has launched an inquiry into ITV in order to determine (among other things) how and whether this new platform should be regulated. While the pubcasters’ troika—the Public Broadcasting Service, Corporation for Public Broadcasting, and the lobbying organization known as America’s Public Television Stations—has never been particularly vocal in Washington (beyond making occasional pleas for increased federal support and fending off attacks from right-wing politicos, that is), it needs to take a strong stand now for an open ITV platform. As the recent AOL Time Warner merger review made clear, there is no end to the mischief that the cable giants can engage in, free as they are from direct competition, if they seek to discriminate against unaffiliated online content providers. The safeguards that the Federal Trade Commission insisted upon in its approval of the merger (prohibiting AOL-TW from interfering with the ITV “trigger” signals that make viewer interactivity possible, and opening up their platform to competitive Internet service providers) should now be extended to the 80% of the cable market beyond AOL-TW’s reach. Even though it’s likely that PBS, for its “halo effect” alone, will be welcomed into cable’s ITV fold, as trustees of the public interest, pubcasters should advocate for an open ITV platform that will allow other noncommercial programmers to participate in this important part of the digital revolution.
Second, in launching its own ITV service, PBS must resist the “t-commerce temptation” that has captured the imagination of the cable operators, who seem determined to transform the set-top boxes sitting in our living rooms into entertainment vending machines. More importantly, PBS must reach beyond its own “more-of-the-same” inclinations—merely using the content-rich ITV platform, that is, to raise funds, flatter underwriters, and repeat past successes. Early reports of the creation of six PBS “walled gardens” (closed online content areas that restrict browsing to specified sites), based on Nova, Zoom, Mr. Rogers, and other PBS staples, do not sound promising. Nor did the press release that PBS issued late last year heralding an agreement with RespondTV that will enable viewers “to join their local PBS station, interact with program sponsors, and purchase educational products through their television.” In the overheated ITV marketplace, full of product tie-ins and impulse shopping, PBS will have to set a better example than that. Communication rather than commerce should be the key to the interactive public television revolution.
Finally, public broadcasters should recall their own past. Our system of public broadcasting was founded, after all, on the principles of openness and diversity, and that’s still a standard by which public broadcasting must be measured. “We seek for the artist, the technician, the journalist, the scholar, and the public servant freedom to create, freedom to innovate, freedom to be heard in this most far-reaching medium,” wrote the Carnegie Commission in 1967. “We seek for the citizen freedom to view, to see programs that the present system, by its incompleteness, denies him.” When PBS, just over a decade ago, was judged to have fallen far short of that ideal, advocates pressed for the establishment of the Independent Television Service, which continues to address the issues of diversity and inclusiveness. And now, with the slate wiped clean by the shift to the interactive, digital platform, public broadcasting has an opportunity to re-invent itself, and to re-discover its roots in the process.
Jeffrey Chester directs the Center for Digital Democracy. He helped direct the campaign which established ITVS and co-led the successful effort to impose open access and content safeguards as a condition of the AOL-Time Warner merger.
By: Jeff Chester and Gary O. Larson
The American Prospect
December 2001
With the rise of so-called reality television in recent years (proving that truth is tawdrier than fiction, too), it might well be asked what all of the TV writers are up to these days. Some, it would seem, have lent their fertile imaginations to a TV-industry lobbying and litigation campaign that, like the medium itself, often strains credulity.
How else to explain industry's argument that the modest federal caps on ownership of stations and other media outlets violate corporate free-speech rights? Never mind the public's right to "the widest possible dissemination of information from diverse and antagonistic sources," in the words of the Supreme Court, which in 1945 deemed that such a free flow of information is "essential" to our welfare. That principle, apparently, is now to be superseded by a corporation's right to corner whatever markets it can.
This raises the specter that other media will follow the path of radio and publishing toward oligopoly. Five conglomerates command 80 percent of all book sales, while a mere two radio giants--with well over a thousand stations between them--control more than a third of all radio advertising revenue nationally, and up to 90 percent in some markets. Even a cursory tour up and down the radio dial reveals the homogenization that has leveled that medium--a sobering portent of what may soon become television's fate.
"Radio is the model," warns Reed Hundt, former chairman of the Federal Communications Commission (FCC). "That's the harbinger for what's going to happen to TV." And if that sounds implausible, it shouldn't. For once the safeguards preventing further consolidation and sale of broadcast, cable, and newspaper empires are dismantled entirely--and they are currently under court challenge and FCC review--the "Let's Make a Deal" live tour will be off to a rousing start.
Wave the Flag, Waive the Regs
If any additional evidence of life imitating entertainment is needed, look no further than Mel Karmazin, president of CBS's parent, Viacom, whose company's profits will merely match last year's $5 billion rather than reaching its projected $5.6 billion. In a recent stand-up routine at a Goldman Sachs investor briefing, Karmazin suggested that given the current state of war (with media advertising revenues dropping faster than bombs over Afghanistan), his industry merits special consideration from Washington regulators. Such consideration would include relaxing the restrictions that bar companies such as his from owning stations that reach more than 35 percent of the viewing public (or from owning a TV station and a cable system, or a TV station and a newspaper, in the same community). Ever the optimist, Karmazin not only expressed confidence that Washington would accede to these demands but also managed to find a silver lining in the tragic events of September 11, citing the depressed media stock prices that will allow Viacom to scoop up new acquisitions at bargain-basement rates. If it wasn't exactly "What's good for Viacom is good for the country," Karmazin's remarks nonetheless made clear that his conception of the public interest revolves narrowly around the interests of Viacom shareholders.
And so it goes at the corner of Hollywood Boulevard and Pennsylvania Avenue these days, a time when the terrorist attacks have become a convenient leitmotiv to the media titans' expansionist plans. It's a not-so-subtle quid pro quo--we'll wave the flag, you waive the regulations--that couldn't ask for a cozier setting than contemporary Washington. After lining the campaign coffers of both sides of the aisle (contributing more than $131 million in the 2000 election cycle alone), the media and technology giants are now answering the government's call for more patriotic, responsible fare in the ongoing war against terrorism. And the conglomerate soldiers couldn't have asked for a kinder, gentler drill sergeant over at the FCC than they have in the person of Michael Powell, son of Secretary of State Colin Powell. The media companies haven't had such a friend in Washington since Ronald Reagan appointed Mark Fowler as FCC chairman. (It was Fowler who deflated expectations all around, calling television a mere "toaster with pictures" that didn't really require regulatory oversight and defining the public interest as "whatever interests the public.")
Seemingly bent on trumping Fowler and becoming the James Watt of the electronic environment, Powell was named the new administration's FCC chairman in January of this year (having been one of President Clinton's Republican appointees to the commission three years earlier). With some clever writing of his own, the 37-year-old Powell is clearly one of the rising young Republican stars in Washington. Eager to distance himself from his predecessor, William Kennard (also black, but whose maddeningly cautious FCC stewardship now appears almost radical in retrospect), Powell dismissed the "digital divide" that separates minority households and poorer neighborhoods from the fruits of the technology revolution as little more than a "Mercedes divide": "I would like to have one," he scoffed. "I can't afford one." Powell has made clear his misgivings about the FCC's traditional regulatory function. He discounted the broadcast-ownership cap as one based on "a romantic notion... an emotional one," for example, suggesting that such limits on corporate market size "are almost always poorly calibrated." According to Powell, "there is something offensive to First Amendment values about that limitation."
Powell took no such offense, curiously enough, when his agency slapped a $7,000 fine on a Colorado radio station for playing an expurgated version of an off-color Eminem rap song. That little dent on the Bill of Rights was presumably designed to curry favor with more conservative Republicans, whose strict-constructionist constitutional scruples never extended to either political protest or artistic license. Chairman Powell's explanation was uncharacteristically simple: "I don't believe [the First Amendment] is some cynical 'Get out of jail free' card for broadcasters."
But what's truly cynical is Powell's apparent complicity in idly watching as a handful of mass-media giants invoke the First Amendment in an effort to gain even greater sway over the airwaves. First recognized by the Supreme Court in 1976, the free-speech rights of corporations were traditionally accorded less protection than traditional speech. But through court challenges and extensive lobbying campaigns, the First Amendment has gradually assumed its place, along with tax credits and government contracts, as a key weapon in the corporate arsenal. "Increasingly," notes AOL Time Warner CEO Gerald Levin, who should certainly know about such things, "through the help of the courts--that is, the reach of the First Amendment--we'll have opportunities." And that, of course, is a euphemism for the enormous payoff that companies such as AOL Time Warner will reap from their constitutional sleight of hand. First they succeeded in stretching the concept of commercial speech to include virtually any transaction, however pedestrian or crass, and then they managed to elevate such putative "speech" over the public's right to choose from the broadest possible range of speakers.
"Corporations are artificial entities," observes Andrew Schwartzman, president of the Media Access Project and a longtime public-interest advocate. "Yet they are being afforded speech rights as if they were living, breathing, voting citizens." Of course, they do have living, breathing, free-spending lobbyists. Under the First Amendment, Schwartzman explains, it's reasonable to argue that the government may not block companies from expressing viewpoints that it finds offensive. But it's unreasonable to interpret the First Amendment as blocking government regulations designed to protect the range of voices that can be heard. Courts taking that view, notes Hundt, "defeat the very goal of the First Amendment by putting the free-speech rights of powerful companies ahead of the free-speech rights of everyone else."
Time Warner Entertainment (TWE) attempted as much in its recent oral arguments before the U.S. Court of Appeals in a case challenging the FCC's broadcast-cable cross-ownership rule. TWE attacked the policy (which, in the interest of preserving a measure of diversity, prevents a company from owning a television station and a cable system in the same market) as a "ban on speech." And with logic that effectively stood the First Amendment on its head, the company went on to chastise the FCC for daring to promote "speech of a particular content: news and public affairs programming with regard to local issues and events." That was a patent effort by the government, or so Time Warner claimed, "to manipulate speech."
In support of their rereading of the First Amendment, media moguls are apt to point to the emerging new media system. With its seemingly unlimited sources of online information and opinion, and with the broadband revolution nigh upon us, we are supposedly relieved of the obligation to monitor the concentration of power and control in the old media. It's a handy brush-off of responsibility, made all the more deceitful by the media giants' designs on the Internet, too. The vast majority of Americans, in any case, still get their news from television and the daily newspaper, and that's not likely to change anytime soon.
"The recent explosion of media and communications technology was expected to deliver consumers a brave new world of competition across all telecommunications and media markets," explained the Consumers Union's Gene Kimmelman in congressional testimony last July. "There is no doubt that today, consumers have the option of receiving news, information, entertainment from a far greater variety of media--newspapers, radio, television, the Internet--than ever before. Unfortunately," Kimmelman told the lawmakers, "this growth in variety has not been accompanied by a comparable growth of independent, diversely owned competitive communications services and media voices."
The Internet may yet provide a viable platform for such diversity and competition, fulfilling its potential to be the "most participatory form of mass speech yet developed," as the Supreme Court once described it. But right now it seems headed in quite the opposite direction, with AOL Time Warner controlling fully a third of all user time spent online and Microsoft and Yahoo angling to bring the total share of the top three up to 50 percent or more. As New York Times columnist Frank Rich once asked: "If you believe that the Internet is the greatest explosion of free expression and cultural resources of the past century, what happens when it is merchandised as a mass-market product by the biggest corporations in history?"
The current spate of deregulation in Washington, unfortunately, will only hasten this merchandising trend, with the broadband Internet increasingly falling into cable's closed marketplace of subscription, pay-per-view, and premium services. "If our only media policy is enthusiastically pro-consolidation," the Consumer Federation of America's Mark Cooper has observed, "it is unlikely that this new technology will ever achieve its real potential." The battle for a more democratic media in the digital age is not over, certainly, but the political and legal challenge is daunting.