The FCC is filled with more ruffled feathers this week than a henhouse in a hurricane.
Senior officials there were definitely smarting from the way the FCC’s public meeting in Nashville came together, or more accurately, didn’t come together, over the issue of must-carry status for some low-power stations. "People are pretty irritated," said one source. That was putting it mildly.
The following is from conversations with several sources on both sides of the dispute, filled with information supplied by "they who will not be named," which is why this is a blog item.
While one side sees it as Chairman Kevin Martin’s Machiavellian attempt to manipulate the process with an October surprise, the other sees it as commissioners using the process to mask opposition to the substance of an item, an opposition driven by their defense of "big media."
Even the day before this week’s Oct. 15 meeting in Nashville, where commissioner Deborah Taylor Tate was motorwomaning a one-day summit on childhood obesity, some at the FCC were unclear about where the actual FCC meeting was going to be held–at one point it was going to be in Washington, then it was going to be in Nashville at a venue separate from the obesity summit. Only the day before the meeting, Commissioner Robert McDowell told reporters he wasn’t sure of what was going down. He was not alone.
That same confusion was shared by a bunch of low-power folks who flew to Nashville to make their last-ditch pitch for the item in person, only to find no item and no chairman. The item proposed rules granting must-carry status to Class A low-power TV stations, as well as setting a 2012 hard date for their conversion to digital.
Martin wanted, and still wants, the other commissioners to vote on low-power cable carriage as part of a notice of proposed rulemaking (NPRM) given the approach of the DTV transition the item is tied to. But the other four commissioners said they wanted to separate out the must-carry part of the item into a notice of inquiry (NOI), which is a step below actually proposing the rule and, they argued, allowed for more fact finding on the impact of that carriage on cable capacity. There were also some questions about whether the FCC even has the statutory authority to mandate low-power must carry.
The other commissioners did more than want to separate it out, they did, in an edit of Martin’s proposal that the chairman argues guts it and does not help low powers. The chairman has not voted and will likely not vote it, either asking for an extension or withdraw the item, which puts the kibosh on it even with four votes on the record.
According to several officials, it was clear two days before the Oct. 15 meeting in Nashville that the four other commissioners weren’t going to support the NPRM, particularly since the item had first been proposed last February and those commissioners had similarly expressed their preference for an inquiry rather than a rulemaking. Commissioner Jonathan Adelstein told B&C this week that if they had voted the NOI in February, they might have had an NRPM by now.
A source familiar with the chairman’s thinking says he wasn’t too happy with the way things turned out either, suggesting that the fact that the commissioners did not turn in edits to his item until Monday, Oct. 13 , a federal holiday, and then only to render it meaningless, was an October surprise of their own.
"On this item, all commissioners had this before them in February 2008 and could have weighed in well before the meeting," said the source. "Moreover, they were notified three weeks before the Oct. 15 meeting that the item would be considered. They never submitted edits to the chairman until Monday Oct. 13, which was a federal holiday," he said. "In essence, the chairman’s staff could not begin to address it and the chairman could not discuss it until Tuesday. Once he saw the changes to an NOI, which made it meaningless, he immediately took action to pull that and the other items, first discussing that move with the other offices."
He then pulled the items, but, Unfortunately, that was less than 24 hours before the meeting and many low-power advocates had already made their plane reservations in an effort to help Martin help them. A source said they had testimony prepared for what would have been a lengthy pitch for carriage.
Ultimately 22 of the low-power faithful showed up in Nashville for an FCC meeting with no items on the agenda and only three of five commissioners in attendance. The absentees were Democrat Michael Copps, who had a funeral to attend, and Chairman Martin himself, who, somewhat ironically, could not attend the meeting, according to a spokesman, because he was preparing the agenda items for the next meeting, scheduled for Nov. 4. Martin did not send a statement or call in, but a source familiar with the planned arrangements said Martin did attempt to participate via phone, but was prevented due to technical difficulties.
And in a further curious twist: Martin called a press conference to discuss that Nov. 4 agenda for 1 p.m. Oct. 15, while the actual meeting he didn’t attend in Nashville was still going on. A spokesman for the FCC had told this reporter that the Nashville meeting was going to wrap up before the 1 p.m. press conference start time, but it didn’t.
"I feel badly for the LPTV folks, said one senior official of their trip to stump for an item that never
appeared. According to one LPTV exec, about 22 wound up not being able to change their plans and made the trip, where they buttonholed the three commissioners and gave them an earful. Even so, "we’re not sure the FCC understands folks with limited resources," said one LPTV exec who couldn’t cancel a flight to Nashville.
"It was needless and almost seemed by design," said the FCC official of Martin’s pulling of the item. There was also confusion about the meeting, which wound up essentially being the three commissioners–Tate, Robert McDowell, and Adelstein–attending the obesity forum at Vanderbilt University. The FCC’s public meeting was initially going to be at a different venue in Nashville, which would obviously have stolen at least some of the thunder from Tate’s forum, which had been in the planning stages for months.
"The chairman doesn’t tell anyone what he is going to do until he decides to do it," opined one top FCC official, who said it was his understanding that when Chairman Martin first called the meeting it was going to be in Washington, which would have conflicted with Tate’s long-planned event.
The other commissioners responded to Martin that they would "phone it in" if that were the case, since they planned to be in Nashville for Tate’s event. Then, said the official, Martin decided to move the meeting to Nashville and bring in a parade of low-power folks and hold a "big rally" to talk about all the great things they are doing at the same time Tate was going to be holding her forum. "He didn’t want to go to this thing. He only wanted to go to Nashville to embarrass Commissioner Tate. The only reason in the end that he made that the official meeting is because he had to do something."
Drawing reporters away from the Nashville meeting with a press conference was bad enough, said the official, but "[Martin] was actually going to hold the whole low-power rally during the time of her obesity event." It was only after he realized he wasn’t going to be able to pull the rally off–because of the childhood obesity event–that he decided to pull the agenda item, which stranded the low-power folks and left reporters scratching their heads about just what was going on.
The source close to the chairman said that he had said back in July he wanted to hold an Oct. 15 meeting, before he was aware of the obesity summit, and said he would try to work something out. But he also said that she should "remain cognizant of the issues before us that need to be addressed and that it was important that the commissioner get its work done," said the source.
The source said the chairman sees complaints about process as a diversion from the substance of his dispute with the other commissioners over granting cable carriage to low-power stations, many of them Spanish-language, after the transition to digital TV.
"They want to avoid telling the low-power station community that they don’t want to help them because big media is opposed to a rulemaking," said the source, who added that seemed inconsistent with the commissioners’ "rhetoric" about media ownership and diversity of voices. Democrats Michael Copps and Jonathan Adelstein, for example, opposed loosening media ownership rules while championing a diversity of voices.
In essence, then, it appears to come down to another of the chairman’s ongoing battles with the cable industry, which opposes the low-power must-carry item as unnecessary and a violation of its First and Fifth Amendment rights, while Martin says it is a way to help diversify voices and ease the digital transition.
The source close to the chairman suggested that "when talking about allowing entrance into video services, that seems to be something other commissioners aren’t willing to do when cable is opposed to it. In essence, they don’t want to make a decision in this area.
"Bottom line," he said. "Do they want to be helpful moving forward and make decisions on difficult issues, or do they want to continue to focus on process and stall any meaningful resolutions."
What we have here, to borrow from Strother Martin, is a failure to communicate at the Federal Communications Commission, an irony that flashes in large neon letters against the D.C. skyline.
