May 8, 2003
The Honorable Michael K. Powell Dear Chairman Powell: We write to you with regard to the pending review of the Federal Communications Commission’s (FCC) rules governing media ownership. As you are aware, the set of rules that emerge from this proceeding will substantially affect not only the degree of competition in the broadcast marketplace but also the level and quality of political discourse in our democratic society. For this reason, we share your concern that the rules be legitimate in the eyes of the public and be able to withstand judicial scrutiny. Unfortunately, if the Commission continues on its present course, neither of these goals will be achieved. Its refusal to permit public comment on a specific set of rules can only be interpreted as masking a fear that the new rules might engender a great deal of opposition. Its reliance on flawed studies -- one of the study’s authors publicly stated that her study should not be used as a basis for weakening the rules -- will not be viewed kindly by a reviewing court, and the appearance of a backroom deal with a major broadcasting company to gain that company’s support for raising the national ownership cap will leave an indelible cloud over the proceeding’s integrity. 1. Rulemaking Process. Given the importance of this proceeding, we urge the Commission to afford the public an opportunity to comment on a specific set of proposed changes to its present rules before it promulgates a final set of rules. Your current media ownership proceeding is among the most important the Commission has ever undertaken, and the American public and Congress deserve an opportunity to review and comment on your changes before they go into effect. If you plan to specify a new national broadcast ownership cap level that you believe satisfies the objectives of localism, diversity, and competition, please lay out the new rule and the rationale behind it and allow for public comment. Similarly, if you plan to issue a new set of rules governing the media marketplace in local communities, please permit public comment on the new rules. The Notice of Proposed Rulemaking in the present proceeding did not do this. It simply asked a series of questions regarding the current rules and whether certain societal values that the rules are designed to protect could otherwise be protected through less restrictive means. While there is certainly value in these general questions, they do not adequately form the basis of a large-scale change in the current rules nor do they permit the public the opportunity to understand precisely what the Commission is contemplating and to respond accordingly. Unelected regulatory entities work best when they act in a fully transparent and predictable fashion. With less than a month until your announced vote on significant changes to our country’s media ownership rules, however, few inside or outside the FCC can predict what changes are in store. Your April 10, 2003, letter to several Members of Congress states that it would be "unprecedented" to afford the public an opportunity to comment on a specific set rules. We find this explanation curious because, as you must be aware, federal administrative law specifically contemplates such opportunity for notice and comment, and the FCC often follows such procedure. Given the particular importance of this proceeding, please explain to us why you believe the public is not entitled to have knowledge of and comment on a specific set of proposed rules before they are adopted by the Commission. 2. Public Comments in Hearing Record. Your April 10 letter indicated that no further public input is required in the current proceeding because there are "over 18,000" comments already in the record.
3. FCC Media Concentration Studies. We understand that in attempting to develop a greater understanding of the media marketplace, the Commission worked closely with outside researchers to conduct a set of studies on media concentration in our society. Indeed, you had an opportunity to briefly discuss these studies during your appearance before the Subcommittee on Telecommunications and Internet on February 26, 2003. Unfortunately, as questions by Subcommittee members are time limited, Mr. Dingell and Mr. Markey did not have the opportunity to fully discuss our concerns, which are as follows:
4. Belo and Other Potential Unrelated Side-Deals. We are particularly concerned by a April 16, 2003, letter forwarded to you by Mr. Robert Decherd, the Chairman of Belo Corp., urging the Commission to raise the national television ownership cap to 45%. Until April 16, 2003, Belo had made no secret that its priorities in the present proceeding were the elimination of the newspaper-broadcast cross-ownership rule and the relaxation of the duopoly rule. Belo filed Comments on January 2, 2003, and Reply Comments on February 3, 2003, both of which focused exclusively on those two rules. Mr. Decherd also filed ex parte letters dated March 12, 2003, and April 11, 2003, describing meetings with you and your staff in which you discussed the media ownership proceeding "focusing on points contained in Belo’s Comments and Reply Comments." Therefore, based on the proceeding record, at no point either in its written or oral presentations did Belo see reason to discuss the national ownership cap. Then, curiously, six days following its most recent meeting with you and your staff, Belo urged the Commission to raise the cap to 45% "in return for favorable Commission action on the ‘right to reject’ and affiliation agreement assignability matters raised in the pending NASA petition." To say the least, we are puzzled by Belo’s sudden interest in the national ownership cap, and greatly dismayed by Mr. Decherd’s suggestion that you should raise the cap "in return for" favorable action on an unrelated matter.
We ask that you respond to our questions by Friday, May 16, 2003. We also request that you make this letter and your response part of the proceeding record. Sincerely, John D. Dingell David R. Obey Edward J. Markey José E. Serrano cc: The Honorable W. J. "Billy" Tauzin, Chairman The Honorable Fred Upton,
Chairman The Honorable C. W. Bill
Young, Chairman The Honorable Frank R. Wolf, Chairman The Honorable John McCain, Chairman The Honorable Ernest F. Hollings, Ranking
Member The Honorable Kathleen Abernathy,
Commissioner The Honorable Kevin Martin, Commissioner
The Honorable Michael Copps, Commissioner The Honorable Jonathan Adelstein,
Commissioner
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