Media Regulation

MM front cover Faithful readers will recall that, several months ago, I penned a 7-part “Media Metrics” series that took a hard look at the health of the media marketplace. Today, the Progress & Freedom Foundation is releasing a greatly expanded version of these essays that I have put together with my PFF colleague Grant Eskelsen. In this 100-page special report, “Media Metrics: The True State of the Modern Media Marketplace,” we begin by noting that heated debates about the state of the media marketplace continue to rage in Washington, and opinions seem to range from grim to outright apocalyptic. As we note on pg. 1:

Many people—including a large number of legislators and regulators—argue that America’s media marketplace is in a miserable state. Some claim that citizens lack choice in media outlets and that options are just as scarce as ever. Others believe that media “localism” is dead or that many groups or niches go underserved because of a lack of true “diversity” in media. Others argue that the market is hopelessly over-concentrated in the hands of a few evil media barons who are hell-bent on force-feeding us corporate propaganda. And still others say that the quality of news and entertainment in our society has deteriorated because of a combination of all of the above. It all sounds quite troubling, but is any of it true?

After taking an objective look at the true state of America’s media marketplace, we conclude that such pessimism is unwarranted. Indeed, a careful review of the facts reveals that—contrary to what those media critics suggest—we have more media choice, more media competition, and more media diversity than ever before. Indeed, to the extent there was ever a “golden age” of media in America, we are living in it today. The media sky has never been brighter and it is getting brighter with each passing year.
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There’s an interesting discussion going on over at Editor & Publisher in which E&P columnist Steve Outing and Mark Potts of the now-defunct Backfence.com are debating media localism and recent efforts to give dying newspapers a new lease on life by focusing on the “hyper-local” coverage and community services. Potts obviously didn’t take too kindly to Outling saying of Backfence that: “We know from its experience that relying too heavily on non-paid citizen contributors isn’t a winning strategy.” And that the: “content is often of low quality and boring, and dull just doesn’t fly in the hyper-competitive Web environment. In response, Potts suggests that other factors were responsible for the site’s demise and that hyper-localism and user-generated local content is the future of the industry:

It’s also unfair to suggest that hyperlocal content is “of low quality and boring,” as Steve does in his column. Low quality? To a professional editor, maybe, but the fact is that most participants in user-generated sites can communicate very well. It may not be “journalism,” but it’s still quite readable and interesting. And “boring” is in the eye of the beholder. To an outsider, any hyperlocal information is probably boring. It may be to a transient resident, too. But to someone with a stake in the community, kids in the schools, paying taxes, dealing with community services, patronizing local merchants, etc., those arcane town council meetings, zoning disputes, tips on finding good pizza and kids’ sports scores are incredibly important — more so than just about anything a lot of us think of as journalism.

I think they both make some interesting points, [and there is a running exchange going here] but I want to add a few other frequently overlooked points about the whole “media localism” debate, which continues to stir up so much controversy within the industry and especially here in Washington policy circles. There are two fundamental realities about “localism” that few industry analysts or media critics bother discussing that I want to focus on:
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Today we should remember not only Virginia planter and lyricist of American libertarianism Thomas Jefferson’s 1776 Declaration of Independence, but also Wyoming cattle-rancher and Grateful Dead lyricist John Perry Barlow‘s 1996 Declaration of the Independence of Cyberspace. While everyone can find something to quibble with in it, especially given the changes of the last twelve years, Barlow’s Declaration remains the best creed of Internet Freedom yet written. Now more than ever, as Internet regulation gathers steam under the banner of preserving “Net Neutrality,” it is well worth re-reading as a stirring call against regulation:

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Some surprising news from the folks at Broadcasting and Cable magazine: Barack Obama is now against restoring the Fairness Doctrine.  In an email Wednesday to B&C, press secretary Michael Ortiz wrote: “Sen. Obama does not support re-imposing the Fairness Doctrine on broadcasters.”  With John McCain already firmly in the anti-fairness regulation camp, that means that both major presidential candidates are now on record against reinstituting the former FCC policy.

So is it time for fans of the First Amendment to break open the bubbly?   Well, not quite.  While welcome, the Obama statement was hardly a vigorous denunciation of the doctrine, or its chilling effect on speech.   In fact, it doesn’t seem the senator actually opposes the rule, as opposed to not supporting its return.  (Notably, he hasn’t yet signed onto the “Broadcaster Freedom Act,” which would ban its re-imposition). According to Ortiz, the reason for the senator’s non-support is that he “considers this debate to be a distraction from the conversation we should be having about opening up the airwaves and modern communications to as many diverse viewpoints as possible.”

Not because it is a violation of free speech principles, or because it is insidious government censorship, not even because it is counter-productive, but because it’s a “distraction.”

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Human Events’ John Gizzi is reporting today that House Speaker Nancy Pelosi “signalled her strong support” for revival of ‘The Fairness Doctrine,'” yesterday at a breakfast meeting hosted by the Christian Science Monitor.  The report sparked a flurry of activity by supporters of Rep. Mike Pence’s stalled Broadcaster Freedom Act, which would permanently ban re-institution of the regulation.  

The reaction to Pelosi’s comment is rather surprising, given that its hardly news that the Democratic leader would support the doctrine.   Last year, in fact, it was reported that she would “aggressively” pursue reinstituting the doctrine.   That never happened, and in fact the House ended up voting for a one-year appropriations rider banning the FCC from reviving it.   

News or not, the renewed attention for the Pence effort is welcome.   Still, supporters of free speech shouldn’t fool themselves into thinking that this is the whole of the battle, or even the main theater of conflict.  In truth, while many still give lip service to the Fairness Doctrine, the real battle over media regulation is moving forward — with closed lips — elsewhere.   Free Press and the Center for American Progress laid out the strategy last year in a report on how to balance the “conservative bias” on talk radio.   Their recommendations ranged from media ownership restrictions to vague “public interest” requirements enforced by the FCC.  Tellingly, the report dismissed the Fairness Doctrine itself as ineffective.

The battle over stealth fairness regulation may already underway at the FCC, which has already launched a proceeding to consider imposing rules on broadcasters to ensure local content and diversity on radio and TV, giving regulators renewed powers to control what is said and heard.     And, as Cord Blomquist has pointed out: “Localism will compel speech of which FCC Commissioners … approve. In a world of limited broadcast hours, compelling one sort of speech means sacrificing speech of another, effectively censoring speech.”

We’ve heard that song before.

XMSirius As James Gattuso noted last week, the XM-Sirius merger review has now entered the realm of the theater of the absurd. It’s not just that the FCC has lapped its 180-day merger review shot clock two-and-half times already (we’re over 450 days into the proposed merger, after all), but it’s the fact that there seems to be no end to the list of conditions that some regulatory advocates or policymakers want to extort out of the firms. After all, according to the latest press reports, the FCC has already managed to extract the following “voluntary” concessions out of them: a price cap on programming for potentially 3 years; a la carte programming requirements; new interoperability standards for satellite radio receivers; capacity set asides of something like 4 percent of their spectrum capacity (apparently about 12 channels) for non-commercial educational programming; and potentially the lease of another 4 percent of capacity to minority or women-owned enterprises.

These are astonishing concessions, and one is forced to wonder if the merger was really worth it and whether the merged firm will really be able to survive the intensely competitive media landscape it finds itself in with such constraints in place. Let’s not forget, although both firms have grown their subscriber rolls, they have NEVER found a way to turn a profit! And new audio options continue to pop up seemingly every week and bombard our ears with evermore news, information and entertainment.

Alas, all those concessions appear not to be enough to satisfy some on Capitol Hill. According to today’s Washington Post:

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WASHINGTON, June 15 – In an effort to increase the data that the Federal Communications Commission has available as it designs broadband policies, on Thursday the FCC ordered broadband providers to provide the agency with more detailed information.

For the past eight years, broadband providers had to provide the FCC with semi-annual information about the number of subscribers that they have in each ZIP code. Now, they will need to provide the number of subscribers in each Census tract, too.

In a last-minute change sought by AT&T and the non-profit group Free Press, the FCC decided to also require broadband carriers to separate out the number of business from residential customers.

Additionally, under a new form created by the broadband data order, carriers must also say how many of their subscribers within each Census tract fit into each of eight separate speed tiers.

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Washington Post columnist Harold Meyerson has a truly outrageous editorial in today’s Post comparing Sam Zell, the investor who just took the Tribune Co. private, to a domestic terrorist. Meyerson suggests that Zell belongs behind bars for his attempt to restructure the Tribune’s struggling newspaper business:

On Oct. 1, 1910, a bomb set by James McNamara, an operative of the Iron Workers union, then embroiled in a ferocious dispute with the Los Angeles Times, blew up the Times building, killing 21 pressmen. McNamara was arrested the following April, convicted and later sentenced to life in prison. He died in San Quentin in 1941.

The question for today is: Would a similar sentence be appropriate for Sam Zell? Zell, for those of you fortunate enough not to follow news of the newspaper business, is the Chicago real estate magnate who last year purchased the Tribune Co., which owns the Times, the Chicago Tribune and a number of smaller papers. At the rate he’s going, he’s well on his way to accomplishing a feat that McNamara didn’t even contemplate: destroying the L.A. Times.

This is absurd and insulting on its face since Zell can hardly be equated with someone who engaged in an act of violent terrorism that killed people. Attempting to restructure a struggling business is hardly on par with that. But let’s ignore Meyerson’s ridiculous analogy and instead just look at the facts about what Zell is doing and why he is doing it. Meyerson is apparently oblivious to the fact that the newspaper industry finds itself facing something akin to a marketplace perfect storm. Advertisers are flocking to alternative platforms. Classified ads are being cannibalized by CraigsList and Google. Readers have discovered myriad other media platforms and forms of content to occupy their time. And policymakers still won’t give newspapers an ounce of regulatory relief that might let them restructure their business by partnering with others in their local communities who might help them stay afloat. [I thoroughly documented all of this bad news in part 7 of my ongoing “Media Metrics” series, “An Uncertain Future for Newspapers.” ]

Meyerson is undeterred by these pesky facts and instead shifts all the blame of downsizing at Tribune papers to Zell. Has Sam Zell gone too far in suggesting that papers may need to get slimmer, trim staff, find a way to run more ads, and so on? Some would say yes, and I might even agree with them to some extent. You can’t have great papers without great journalists and editors, after all. And if the whole paper is full of nothing by ads and recycled content, no one will read it.

Others, however, would argue that Zell isn’t going far enough fast enough to retool and restructure for a digital future. Regardless, despite Meyerson’s attempt to paint him as a pariah, Zell is only doing what most industry analysts have suggested must be done–at least in some measure–to keep newspapers alive going forward. And make no doubt about it, the evidence (which is presented down below the fold) makes it clear that newspapers are in serious trouble. Instead of offering even one constructive solution, however,  Meyerson inappropriately channels his rage about the demise of the daily paper at a man who is doing his best to make sure that the daily paper will even continue to exist ten years from now. Is that really akin to an act of terrorism? I think not, and shame on Harold Meyerson for suggesting as much.

Incidentally, what I found somewhat ironic about Meyerson’s piece is that he is ranting about what he regards as the over-zealous effort of an individual owner to restructure a private company. (Again, Zell took Tribune private not that long ago). And yet, that model—individual or family ownership of newspaper vs. public / shareholder ownership—is what most media critics claim is part of the salvation for media markets! That is, many media critics constantly complain about “Wall Street pressures” or “shareholder influences” on newspapers and claim that individual or family ownership shelters papers from unreasonable marketplace demands (namely, the need to make money). Well, that theory was always highly dubious as we now see quite vividly with Tribune and other media properties as they go private. Private owners end up taking most of the same steps publicly-owned enterprises do in an attempt to restructure or save their struggling business.
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Michael Powell seems to have finally found his political voice. Reed Hundt probably never lost his. But both former FCC chairmen got into the spirit of debate at the Federalist Society gathering today at the National Press Club. Reporters William Korver and Cassandre Durocher, of BroadbandCensus.com, were present to record the exchange.

The story is just the most recent of a stream of news articles on broadband-related subject available for free at BroadbandCensus.com. As TLF readers may be aware, the goal of BroadbandCensus.com is to collect user-generated data — otherwise known as “crowdsourcing” — through inviting individual Internet users’ to contribute to our publicly-available database of local broadband information, all sorted by ZIP code.

Now, we’re pleased to announce that we are also following technology and communications policy news in Washington, and elsewhere, through daily reporting. If you haven’t been to BroadbandCensus.com, I encourage you to do so. And don’t forget to Take the Broadband Census!

Read Net Neutrality Disagreement Between Two Former FCC Chairmen at BroadbandCensus.com

MINNEAPOLIS, June 6 – The Internet has opened up so many possibilities for communication that the most important concern about the media isn’t broadcast television ownership, but about threats from cable and Bell companies, said Free Press Executive Director Josh Silver.

“The conferences of yesterday [dealt with] blocking consolidation of media ownership, and trying to reform the media,” said Silver, speaking at a press conference at the National Conference for Media Reform at the opening of the conference here on Friday.

Today, by contrast, the non-profit advocacy group Free Press finds that “we have to embrace the reality that every Web site can be a TV network, or a radio network, and that we have an opportunity to fundamentally break the bottleneck” of the media, said Silver.

Continue reading Media Reform Now About Internet, Not Broadcast Ownership, says Free Press