FCC Commissioner Robert McDowell is all for promoting diverse license ownership of FCC regulated assets – but he wants to make sure that regulatory devices to achieve greater diversity will hold up in court. He also warned that some other proposals, such as certain requirements aimed at bolstering localism, could do more harm than good.
McDowell made his remarks before the Rainbow PUSH Coalition and Citizenship Education Fund Media & Telecommunications Symposium.
“As I work on these issues, I tend to follow two general tenets,” said McDowell. “First, I am interested in exploring options for fostering minority ownership that are legally sustainable. Second, with respect to specific proposals for new regulation, I take a ‘first do no harm’ approach. I am mindful that new rules – however well intentioned – may carry unintended consequences that operate in the real world to thwart the ability of small businesses, including those owned by minorities, from entering markets or from succeeding after they’ve launched.”
He said that Adarand v. Pena, a 1995 Supreme Court case, “sets a very high legal hurdle that any race-conscious laws and rules must clear in order to survive, whether they are in the context of broadcasting, auction bidding credits, or other ownership constructs.”
He was critical of some of the measures designed to promote localism, but which in practice would be morel likely to harm broadcast service. He mentioned specifically reinstating the requirement that stations be staffed 24/7, pointing out that in real-life all the requirement would do is force stations to sign off over night.
He also said that when it comes to promoting ownership diversity, the operative color is green, and said he was completely supportive of any steps that help improve access to capital for all small entrepreneurs who are looking to enter the communications field.
RBR-TVBR observation: The words “arbitrary and capricious” must be etched on the FCC’s collective eardrums by now. It seems exceedingly difficult to find the combination of words and statistical underpinnings that will get past the judges.
McDowell is correct – and we believe the other commissioners agree – that any actions taken by the FCC that are just going to get skewered the instant they are challenged will only prolong the search for a workable program.
He is also correct that it would be a very bad idea to set up a whole menu of new – and old — requirements placed on broadcast licensees that will threaten the economic viability of the stations, particularly those of new operators whose entry into the business is what we’re trying to encourage.