Getting a Share of the Air: An Independent's Guide

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.