From the desk of a former FCC Commissioner

Journalists need to generate a national discussion on the future of the internet
February 13, 2014

Sizzling mad When Michael J. Copps took his seat on the FCC in 2001, he joined a Democratic minority that found itself on the losing end of federal battles over media consolidation. (Jeb Harris / Orange County Register)

Dear Journalists:

You may wonder why a long-time regulator like me is writing to you. The answer is that for more than a decade I occupied a front-row seat watching government policy undermine your profession and our democracy. I worked at the intersection of policy and journalism as a member of the Federal Communications Commission and saw first-hand how my agency’s decisions limited your ability to accomplish good things. Since I stepped down two years ago, the situation has only gotten worse. I want to do something about it. I want you to do something about it, too. Let me tell you what I saw.

I was sworn in as a commissioner in 2001. “What an awesome job this is going to be,” I thought, “dealing with edge-of-the-envelope issues, meeting the visionaries and innovators transforming the ways we communicate, and then making it all happen by helping to craft policies to bring the power of communications to every American.” It was a heady time when even normally sensible people believed that technology would bring the revolutionary wonders of the open internet to all of us. New media would complement the traditional media of newspapers, radio, TV, and cable, ushering in a golden age of communications. I was on fire to make good things happen.

The FCC that I joined had a different agenda. It had fallen as madly in love with industry consolidation, as had the swashbuckling captains of big media. The agency seldom met an industry transaction it didn’t approve. The Commission’s blessing not only conferred legitimacy on a particular transaction; it encouraged the next deal, and the hundreds after that. So Clear Channel grew from a 1970s startup to a 1,200-station behemoth. Sinclair, Tribune, and News Corp. went on buying sprees, too, and the major networks extended their influence by buying some stations and affiliating with others. Gone are hundreds of once-independent broadcast outlets. In their stead is a truncated list of nationwide, homogenized, and de-journalized empires that respond more to quarterly reports than to the information needs of citizens.

I notice now in the news the stunning announcement that Comcast hopes to buy Time-Warner, the second largest cable company, for more than $45 billion. That would make this one of the biggest mergers in media history, and I fear it will run roughshod over consumers in the end.

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Let me be clear: Not every transaction is bad. Consolidation may offer some limited benefits, as when stations pool money to buy a better weather radar. But there is a huge difference between that and merged stations reporting the same news by the same reporters.

So instead of making good things happen, I would be spending untold hours listening to big media tell me how their latest merger proposal would translate into enormous “efficiencies” and “economies of scale” to produce more and better news. Meanwhile, everywhere I looked, I saw newsrooms like yours being shuttered or drastically downsized, reporters getting the axe, and investigative journalism hanging by the most slender of threads. Instead of expanding news, the conglomerates cut the muscle out of deep-dive reporting and disinvested in you.

While FCC oversight focuses most heavily on broadcast, its decisions affect newspapers, too. Numerous merger approvals have involved newspaper-broadcast cross-ownership, which almost invariably translates into combined, downsized, or eliminated newsrooms. Obviously many factors contributed to the decline, such as the earth-shaking movement of advertising to the internet and the deep recession that hit in 2007. But here, too, private sector consolidation and public policy shortfalls had a direct and damaging impact. The FCC has actually made things worse for newspaper journalism, too.

It was disheartening to realize how government–my own agency–was an accomplice in diminishing our news and disfiguring your journalism. It isn’t just the excesses of a Wall Street bazaar run wild; it is also proactive government policy-making. And while it is true that many decisions at the FCC are non-partisan, this one often pitted the 2001-09 Republican majority against the Democratic minority (of which I was a member).

So I was expecting change for the better after the 2008 presidential election and the coming of a Democratic majority to the FCC. After all, Senator Barack Obama had opposed the pace of media-industry consolidation and had affirmed that public interest considerations should drive FCC decision-making. The senator’s letters to the FCC are an eye-opening matter of public record. To this day, two years after retiring from the FCC, I pull copies from my file drawer and shake my head at what might have been if performance had matched promise.

In the very first year of the new administration, cable giant Comcast came knocking at the Commission door seeking approval to purchase majority control of the already huge and powerful NBC-Universal media complex. The proposal was daunting in both breadth and depth. The merged entity would include media and telecom; broadcast and broadband; distribution and content (the medium and the message); traditional and new media. I cast the lone Commission vote against this transaction, stating that it was “too much, too big, too powerful, too lacking in benefits for American consumers and citizens.”

TV stations are hot commodities in the wake of the Supreme Court’s infamous Citizens United decision freeing up billions of Super PAC and dark money dollars that flow down by the billions to broadcast and cable operators each election cycle. So the bazaar never closes. recently reported that nearly 300 stations worth over $8 billion changed hands last year alone, up 367 percent in value from 2012. Just recently the FCC has approved major transactions involving Tribune, Sinclair, and Gannett. To make matters worse, companies have devised clever strategies to end-run the FCC’s ownership rules through arrangements that allow them to control stations they do not technically own. The Commission needs to come down hard on these arrangements.

“But wait,” you may be thinking. “Won’t the internet cure the ills of consolidation? Too bad about the shrinkage of traditional media, but they were headed for the ashcan of history anyways.” Barriers to entry are low, everyone possesses a platform on which to speak, and the news circles the globe at lightening pace. Yet we hardly live in a golden age of digital news. I don’t need to tell you that that only a few have managed to find an online model to support the resource-intensive journalism that has been so drastically diminished in traditional media. Ironically, the primary source of the news and information continues to be newspaper and TV newsrooms. In Losing the News, Harvard’s esteemed Alex Jones estimates that “85 percent of professionally-reported accountability news comes from newspapers.” The problem is, of course, that these traditional sources are providing much less news than they once did.

The internet is still an adolescent. It will produce more revolutionary changes in the news, but not by continuing down the road it is presently on. The internet is at a vulnerable crossroads, and decisions made in the public realm generally, and at the FCC specifically, will have as much to do with its success as will innovation and technology.

The challenge is two-fold. One is much greater deployment of the broadband that enables internet communications. The other is guaranteeing a truly open internet (often uninformatively called “network neutrality”). Some would have you believe that America is a veritable broadband wonderland, but stubborn facts belie their optimism. In fact, our country has fallen from leader to laggard in broadband. American consumers are paying more and receiving less than broadband customers in other industrial nations, thanks in no small part to industry-friendly FCC deregulations that passed over objections like mine. Broadband is the critical infrastructure that will fuel 21st century jobs, health, education and democracy, just as roads, bridges, railways, highways, and rural electricity fueled the earlier growth of our nation. But until we develop a sense of mission to bring high-speed, low-cost broadband to everyone –no matter the particular circumstances of their individual lives–the future will belong to others. This is partly an FCC job, but also that of our top government. Our forbears moved America forward with infrastructure often supported by innovative private-public partnerships. It is time to do this again.

In 2002 the FCC decided there would be almost no oversight of the broadband highways that deliver the internet to us, believing that the invisible hand of the marketplace would get the job done. Stunningly, the agency actually determined that broadband wasn’t even “telecommunications.” It was instead an “information service,” which meant that consumer protections (like ubiquitous service, reasonable prices, privacy, public safety, and competitive choice) that applied to previous generations’ telephone service would not be required as communications went digital. If consumers wished to enjoy such protections for broadband, they would have to start all over–in a decidedly hostile political and regulatory climate. No other nation allowed such a ludicrous debate over communications semantics to shackle its broadband development.

Equally threatening to journalists’ and others’ online future has been FCC reluctance to guarantee a truly open internet. The secret of a thriving internet is that users, not gatekeepers, control their online experiences. The core idea of the open internet is that consumers should be free to access the lawful content of their choice, run the applications they prefer, and enjoy the benefits of transparency and non-discrimination by preventing internet service providers from favoring their own businesses over others. This is not just to encourage competition; it is also to maintain a free flow of information so citizens are able to access a diversity of providers. Permitting Verizon, AT&T, or Comcast to control access to information is a direct and unacceptable threat to our democracy–and to you as journalists, since gatekeepers can separate you from your audience for any reason they choose.

Some claim that internet freedom is a solution in search of a problem. Yet there has been no lack of attempted gatekeeping in numerous cases such as AT&T’s restricting FaceTime, Madison River, and the well-known instance of Comcast throttling BitTorrent, which struck me as purposefully slowing certain applications on its networks and discriminating in a way that threatened the freedom end-users expect. Now AT&T is talking about a “sponsored data” plan wherein deep-pocketed content providers could pay for quicker carriage than small sites could afford.

The FCC that took shape when Obama became president went on-record quickly in favor of an open internet. While this was a welcome pledge, the devil was in the details. The new administration was reluctant to get into a bare-knuckle fight with powerful industries, so the incoming FCC chairman opted instead for what he thought would be the best of two worlds–mild network protections that would show the FCC was doing something, even as it avoided tough rules that would cause a fight-to-the-finish with the corporate titans. Industry was invited in to help craft the guidelines, but then took even these watered-down rules to court. This January, the DC Circuit Court of Appeals invalidated the commission’s rules. Unless the FCC responds, internet service providers are free to fashion the internet into something like cable television, with the most desirable news and information behind pricey pay-tiers. It is a very real threat to the delivery of news. Under the current rules, a big cable company could block access to an investigative report about its less-than-stellar customer service. Such frightening scenarios should galvanize anyone who cares about journalistic freedom.

Interestingly, the court said that if the commission had treated broadband as a “telecommunications” rather than an “information” service, consumer protection would have been on solid ground. Hopefully, the FCC will move quickly to reclassify these services as telecommunications–and then write tough rules to actually get the job done. But armies of lobbyists and wheelbarrows of money stand in the way. It is testing time for the new FCC Chairman and his colleagues.

During my 10 years at the FCC, I took part in literally scores of town hall meetings and community forums all across America to tell people what I saw happening and to learn more about their personal experiences with our communications ecosystem. Several of these sessions lasted over six hours and drew hundreds of citizens.

In some places these meetings would attract media attention; in others they would go uncovered. It didn’t take me long to figure out why the disparities. If a community’s media was under consolidated control–with a large and distant company owning the major broadcast and, often, newspaper outlets–the coverage would usually be somewhere between slim and none. But if I was visiting a town where independent media still existed and locally employed journalists were on the beat, there would be advance notice that a meeting was going to happen; there would often be live TV coverage; and the event would be reported in detail, often on the front page of the local paper.

I am not a conspiracy theorist. I don’t see these issues as good guys vs. bad guys. Yet there is more than sheer coincidence involved in the differentiated coverage that I, and many like-minded advocates, received in different media marketplaces. I see what happened as the sadly predictable results of a system where the Wall Street mantra is: play the game or be voted off the island. The dismal options for the small, independent owner too often reduce to selling out to a giant or watching the business fail. It’s what happens when public interest oversight goes AWOL.

While still a commissioner, I went one day to visit the editorial page editor of a major newspaper. I had noticed an editorial chastising the excesses of big oil companies, and I urged the paper to run a similar critique about the excesses of big media. The response I got was a negative shake of the head and an explanation that the editor had complete freedom to cover any issue–except one. That issue was media ownership. I nearly fell through the floor at this stark admission, but then I realized that the explicit statement I had just heard only validated what I had been experiencing.

Many in the news business told me that the future of our media is not a sufficiently compelling popular issue to justify its coverage. Yet how well I remember three million citizens writing in to oppose the FCC’s loosened media ownership rules that were approved in 2003 over my dissent. This outpouring of public sentiment caused Congress to go on record against those rules. (Soon a federal court, equally unimpressed with the FCC handiwork, sent them back to the agency.) The commission tried again to loosen the rules in 2007 and 2012. But it’s a beat not covered, so most of the country didn’t have a clue that these rules changes were still in play.

You will not be surprised to learn that I believe there is much the FCC should be doing to revitalize America’s media. The FCC’s job, by statute, is to protect “the public interest.” The idea is that the airwaves are a public resource, belonging to all the people. No business, no individual, actually owns them. Rather, broadcasters are granted licenses to use the airwaves in return for serving the common good.

The FCC could usher in a new “Era of the Public Interest” by learning to say “No!” to merger proposals that will wreak further havoc on our news and information infrastructure. This is the essential first step.

Next, the FCC should implement a credible broadcast licensing system. An automatic, no-questions-asked eight-year extension is nothing more than conferring monopoly power with no public oversight. For years, the FCC had licensing guidelines–performance measures the agency considered when a station’s license was up for renewal. They emphasized opportunities for local self-expression, public affairs programs, news, service to minority groups–an issue of grave neglect–and limitations on advertising. Stations were expected to consult with local audiences about what issues merited coverage. The commission never did a credible job of implementing these guidelines and, as the power of big media grew, the agency basically abandoned them.

As for new media, I have already emphasized the critical need for the FCC to guarantee an open internet and to ensure ubiquitous broadband. Here’s another suggestion and it involves both the FCC and you as journalists. How about generating a national discussion on the future of the internet? Not fear-mongering about “regulating” the internet, but a reasoned discussion on how the country should deal with it as so many of life’s experiences and opportunities go online. Perhaps the current controversy about an open internet will stimulate a broader discussion. Given your stake in how the internet evolves, who better to help generate this dialogue?

I have heard the arguments about the need to keep reporters from becoming part of the story and being tainted by involvement in public policy formation. But journalism, like government, is not a purist’s redoubt. Consider the issue of government surveillance. Battles over protecting news sources were frontpage news during the dramatic National Security Agency revelations. Journalists are obviously part of that story–in some ways they are the story–advocating for stronger legislative safeguards to protect themselves and their profession when they disclose controversial national security information.

Yet national security source protection is one component of a wider range of privacy challenges growing out of an environment where advertisers, content producers, and politicians want to know everything about us. Frankly, most citizens I meet worry as much, or more, about their personal privacy than national security disclosure. It is difficult for me to detect a bright line between these two privacy issues, yet one seems to elicit more journalist advocacy than the other.

An old axiom has it that decisions without you are usually decisions against you. Journalists can refuse to be part of the story, but that means they won’t be part of the solution either.

Best wishes,
Michael J. Copps

Michael J. Copps is a special advisor for Common Cause’s Media and Democracy Reform Initiative. He served as a member of the Federal Communications Commission from 2001-11.