Thursday, January 22, 2009

Out With The Old; In With The New

With the inauguration of Barack Obama as President of the United States, numerous Bush appointees submitted their resignations. And so we bid a not so fond farewell to Kevin Martin as Chairman of the Federal Communications Commission in the United States. Martin's management style at the FCC has been described by a Congressional Report as a, "heavy-handed, opaque, and non-collegial management style has created distrust, suspicion, and turmoil among the five current commissioners." Michigan Congressman John Dingell of the House Commerce Committee wrote to Martin in December 2007 stating that "given several events and proceedings over the past year, I am rapidly losing confidence that the commission has been conducting its affairs in an appropriate manner." Dingell also accused Martin of "keeping his fellow commissioners in the dark in an attempt to push through policy," and this, combined with his actions in cable industry proceedings and attempts to relax newpaper-broadcast cross-ownership restrictions, led Dingell to claims that Martins actions "lead to larger concerns as to the inclination and ability of the commission to perform its core mission: the implementation of federal law to serve the public interest." Of course Martin's actions in media censorship, which seem to reflect Bush administration policy are what concern us most at this blog. It is a sad and irresponsible record of increased fines and decisions which fly in the face of decades of procedures and precedents, that took attention away from the real and important work of the FCC.

The question of course is what can we expect from the Obama administration. The new president has selected Julius Genachowski, a former Harvard Law classmate of his who was one of the editors of the Harvard Law Review when Obama was the organization's president. Genachowski graduated magna cum laude from Columbia College of Columbia University with a BA in history and magna cum laude from Harvard Law School. Following law school he clerked for Supreme Court Justices William Brennan and David Souter. He worked for the committee investigating the Iran-Contra affair, and for Congressman Chuck Schumer. He was general counsel to Reed Hundt during his term as FCC chairman until 1996. In private business Genachowski worked for Barry Diller as Chief of Business Operations at IAC/InterActive Corporation. He has also been on the board of directors at Expedia, and Ticketmaster during his time with Diller. He is one of the founding partners of Rock Creek Ventures and LaunchBox Digital, and until his appointment is confirmed serves on the boards of The Motley Fool,, Mark Ecko Enterprises, and Beliefnet. He is also a special advisor to General Atlantic, and helped found the New Resource Bank, America's first commercial "green bank." During the election campaign he led on the Technology, Media and Telecommunications working group, and headed the Obama Transition Team's Technology, Innovation, and Government Reform Group. According to Wikipedia, Genachowski "advised and guided the Obama campaign's innovative use of technology and the Internet for grassroots engagement and participation."

Genachowski's major concern upon taking office will....not be "broadcast decency" (censorship) and First Amendment. In fact broadcast decency probably won't a major concern for the FCC Chairman, nor should it be. Despite the Parents Television Council and their perpetual complaints, broadcast decency is probably the least of what the FCC does. Undoubtedly Genachowski's first major challenge will be the Digital TV conversion and the possibility of delaying the transition from February 17th to June 12th. In fact a bill was introduced by Senator Jay Rockefeller earlier this month with the support of President Obama. According to, some two million Americans are still waiting for the $40 coupons that will defray the cost of purchasing the necessary converter boxes. Further, the National Television and Information Administration announced that funding for the $1.34 billion coupon program has at least temporarily been exhausted. According to Nielsen, in December 6.8% of American households were completely unready for the digital transition, with 11.5% of Hispanic households completely unready and 9.9% of households where the head of household was under 35. Clearly this is an issue that needs to be addressed immediately as opposed to the silliness of someone being seen on live TV giving Mickey Rourke the finger at the Golden Globes.

Other issues that will be confronting Julius Genachowski at the FCC include Net Neutrality, media consolidation, the availability of high speed internet services. On several of these issues we know where Genachowski stands thanks to what has been published in the Obama campaign's Technology and Innovation Plan which was largely Genachowski's work. There were three main points to the plan: open government, open networks and open markets. His involvement in the field has given him a special interest in net neutrality, the effort to prevent broadband service providers from discriminating against services that overlap with their own business concerns, such as voice over IP (VOIP). The expansion of affordable broadband access would be an attempt to usage up to the levels of other countries which are more advanced in this area. According to, as of 2008 the United States was fifteenth in broadband penetration in terms of subscribers per 100 inhabitants (25.0 – Denmark, with 36.7 per 100 inhabitants was in first place), and fifth among G7 countries (Canada and the UK are the top G7 countries). In addition, as Ars Technica reports that "high speed" is still currently defined by the FCC as speeds greater than 200 kbps.

The question of open markets applies to media consolidation. According to Ars Technica, it is likely that a Genachowski FCC would not have approved the mergers between AT&T and BellSouth, or Sirius and XM Radio. As well the regulations regarding newspaper and television cross-ownership, relaxed in November 2007 by Kevin Martin, would not have been changed. There is also a sense that the new FCC chairman will not be as ready to pursue Martin's policy of trying to force cable companies to offer channels on an ala carte basis through a host of new regulations. These regulations have in turn led to a dozen lawsuits brought by the cable industry.

But as I have said, it is the issue of "broadcast decency" and First Amendment considerations related to it that will shape our impression of Julius Genachowski and his tenure as FCC chairman. For better or for worse – mostly for worse – it is this area where the popular perception of the FCC is formed, not in its administration of Net Neutrality, media consolidation, or definition of what constitutes high speed internet. And as we all know the Kevin Martin years – and to a lesser extent the Michael Powell years – were a period when decisions on these issues scarred that perception as the opinions of fringe groups like the American Family Association and the Parents Television Council were given far greater weight than in the past, and more fines were levied and the maximum size of the fines went up by a power of 10.

We know what the Parents Television Council wants. In their press release "congratulating" Julius Genachowski on his selection to be head of the FCC they stated that, "We call on the FCC to focus squarely on its legal obligation to uphold broadcast decency standards, despite the fact that the TV networks seem determined to ignore the written law, the intent of Congress, and the will of the American people at every turn. We also encourage the new FCC to continue to work toward ensuring consumers' access to the quality cable programming of their choice and to provide consumers and families the ability to choose and pay for only the TV programming they want coming into their homes." They reiterated this when they called on the Senate Commerce Committee to "ensure that Mr. Genachowki is questioned fully about his commitment to enforce federal broadcast decency law and to resolve the tens of thousands of indecency complaints received by the Commission before being confirmed." They can hope, but there is ample evidence that they won't get what they're hoping for. As we've already noted, Genachowski is viewed as not being a proponent of ala carte cable pricing, and is being seen as at least partly being pro-consumer in this aspect (not surprisingly; from experience I know that ala carte pricing tends to be more expensive for consumers than bundling of cable channels). But where does he, and the Obama administration, stand on "broadcast decency" (or censorship). There are some interesting clues, which would probably be regarded as negative by the PTC and others with their point of view but hopeful for those of us who believe that the Martin FCC has gone too far in this area.

"Broadcast decency" as an issue seems to cross party lines. While Kevin Martin is strongly associated with the issue, his Democratic colleague on the Commission, Michael Copps, has been strong on the issue as have Democratic Senators Jay Rockefeller and Daniel Inouye. Still broadcasters hope that Genchowksi's appointment will mean a return to the more restrained enforcement, and they have some reason for hope. Genachowski is after all a founding board member of Common Sense Media, a non-partisan organization focussing on "parental education and control issues." Common Sense Media's ten point mission statement may give a huge hint about the direction his administration of the FCC will take:

  • We believe in media sanity, not censorship.
  • We believe that media has truly become "the other parent" in our kids' lives, powerfully affecting their mental, physical, and social development.
  • We believe in teaching our kids to be savvy media interpreters -- we can't cover their eyes but we can teach them to see.
  • We believe parents should have a choice and a voice about the media our kids consume. Every family is different but all need information.
  • We believe that the price for free and open media is a bit of extra homework for families. Parents need to know about media content and need to manage media use.
  • We believe that through informed decision making, we can improve the media landscape one decision at a time.
  • We believe appropriate regulations about right time, right place, and right manner exist. They need to be upheld by our elected and appointed leaders.
  • We believe in age-appropriate media and that the media industry needs to act responsibly as it creates and markets content for each audience.
  • We believe ratings systems should be independent and transparent for all media.
  • We believe in diversity of programming and media ownership.

While I suppose that the statement about appropriate regulations about time, place and manner and the need to uphold these may be worrying, given the way tht the PTC has used the current "safe harbour" regulations to demand fines for shows that air after 10 p.m. (the safe harbour time) in some areas of the country and at 9 p.m. in the Central and Mountain time zones, it is also heartening that the organization advocates "sanity not censorship." As part of an article on Genachowski's appointment The Hollywood Reporter spoke to Common Sense Media CEO Jim Steyer: "'As a devoted dad, he will always take the interests of parents and kids into consideration when important decisions are made at the FCC,' Common Sense Media CEO Jim Steyer said in an interview. However, he said he expects Genachowski to avoid ideological fervor. 'Our motto is "sanity, not censorship,'" he said. "Julius is a First Amendment scholar and will be a great voice for sanity."

Certainly a visit to the Common Sense Media website is a far better experience than the PTC website. Set aside the whole question of web design a search for any TV show provides a far more helpful experience. They don't accept the proposition – common for the PTC – that content that the organization finds unacceptable totally destroys any relevance or quality that the show would have. Take for example Family Guy, a show that the PTC has consistently and repeatedly attacked as being practically too lewd to be seen on TV at any time is given a three star rating as far as being "any good" as well as a scale that shows how acceptable content is for kids (for Family Guy the "minimal acceptable age" given by the site is 14 – exactly what it's Parental Guideline rating is). In addition they have a section on parent and kid reviews, warnings about content in the areas of sex, message, violence and language, and probably most importantly a "Parents need to know" section that not only states what the reviewer thinks about the show but also discussion issues for parents watching shows with their kids (an example from the Family Guy review: "Families can talk about when politically correct attitudes are helpful and when they can be harmful. Peter Griffin's love of television above and beyond everything else could also be discussed -- is this the way anyone should look at the world?"). Where the PTC would – and does – judge every show based entirely on how much objectionable content there is in the show, Common Sense Media will acknowledge that while a show may be unsuitable for kids (although many TV-MA shows get a "minimal acceptable age" rating of 16) it can still be a great show.

I doubt that Julius Genachowski will adopt the suggestion made by TV Week columnist and deputy editor Josef Adalian that, "Ideally, Mr. Genachowski would declare the FCC is getting out of the business of regulating what broadcasters can and cannot air at certain hours. He would recognize the lunacy of trying to protect kids from so-called obscene content on a few channels when the rest of their media universe offers easy access to such content." On the other hand I sincerely believe – or maybe just hope – that someone who has had the experience with the FCC that he has had will recognise the damage that Kevin Martin has done to the FCC through his crusade on broadcast decency which has unleashed a climate of fear among network and local broadcasters. Broadcasters need to know that what was acceptable last year, or a decade ago or thirty years (and longer) ago is acceptable today. Under Martin the lines weren't clear – broadcasters were famously afraid to air Saving Private Ryan (for example) even though the movie had aired uncut a year before because they were afraid that doing so would lead to a fine of over $300,000. Hopefully, under Genachowski, complaints and situations will be evaluated on a case by case basis the way they were before Kevin Martin.

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