Remarks of FCC Commissioner Jonathan Adelstein

Social Science Research Council Media Policy Research Pre-Conference
Memphis, TN
January 11, 2007

Well thank you. That was a tremendous introduction and I might add that the Malaysian hockey team is gonna actually win the Olympics next time. But all that Bob has done for this movement, I want to thank you and Free Press and everybody who organized this, along with you, Craig, and Joe, bringing this together. I really did want to come to this important pre-conference because I think the work you do is so important to the work that we do. And I wanted to explain a little bit how. And also have a chance to talk to all of you, to see you all at lunch, and of course throughout this event. And I know about half of you, too, are…the other half, I guess, that Bob doesn’t know, so I guess between the two of us we know you all.

You know, I, this morning, if you happened to…you talked about the two newspapers, the national newspaper. It’s hard to get localism in this hotel.  You know, you have to pay for the Commercial Appeal if you want it, but they’ll give you the free McPaper. But if you read the localism, the local paper, there’s actually a nice article today about this event there. And in it I describe this conference as the Superbowl of the media reform movement. And if this is the Superbowl, than this I guess right here is the kickoff we’re doing. So we’re going to drive it deep into the back there, and then we’re going to nail ‘em.

It’s really great to have an opportunity to do this, because I guess Bob and Craig described this as “my privileged perspective” on the academic and empirical research policymaking that we do at the Commission and how it affects us. But I’m not sure you’ll consider it privileged after you hear what really happens at the FCC.

We can all certainly agree that there’s a pressing need today for progressive thinkers to really come together with policymakers. All of this movement that we have sprung up, you’re the brain trust of it. And that’s why it’s so important that I come here and talk to you and I hear from you, as well as from those people that we hear, you know, late into the evening, in cities across the country, who often give incredibly articulate, basic, gut instinct answers that is reflected in a lot of the empirical research that all of you do. We need to work together now to develop a positive agenda going forward, to think about how we work together, and not just play defense, at the same time that we do an incredibly good job of defense as we have in the past.

If you think about it, you know, after several years here of uncoordinated efforts, without this kind of collaboration, without really working together as closely as we could and thinking about it, we’ve done incredible. The media democracy movement has made huge strides. We’ve awakened the sleeping giant, the American people, and they are galvanized now into what you really could describe as a mass movement: a new civil rights movement which is critical in this modern day. Through old grassroots activism and lobbying, we’ve made state, local, and federal officials aware of the importance of this issue of media concentration, that wasn’t even on the radar screen in 2001 when all of this began. And we’ve also raised the level of interest in things like Network Neutrality, and community wi-fi. And you’re the ones that explained in intellectual ways what it all means, but the people basically get it, but they need somebody to articulate that.  And on top of all of that, we have the great legal minds and academic minds that came together to win that appeals court case in 2003 that stopped one of the most powerful industries in America dead in its tracks.

Now, of course, these incredible accomplishments weren’t just the outgrowth of happenstance: it was through the research of a lot of the people here today, and the activism of a lot of the people here today, and certainly those who will be here over the next few days – too many to mention – and of course the American people, who weighed in to the tune of three million. But it was really so important that we have the academic research that we did have. And those pieces that we had, those sometimes slivers that we relied on – I’d like to talk about a couple examples – but you think about the hundreds of other scholars, activists, lawyers, and committed local broadcasters who fought to prevent what would have been the greatest wave of consolidation in the history of American broadcasting. Now if that’s what we did with an uncoordinated effort, imagine what we can do with a lot more coordination.

And the incredible turnout here today, I think all of you making the effort here to join us, and I know it’s a big effort, with all of your busy lives, should make the media giants quake in their boots at the sight of this much brainpower arrayed in one room. We need the help of everyone here today because in 2003 the industry was taken, I think, somewhat off-guard. But they’re better-prepared this time around. They’re lobbying the Hill and the FCC, plying the halls in their Gucci loafers, and they’re ready for you. But we’re more ready for them than we ever have been.

So this work is going to see the light of day on Capitol Hill, and I think we should use that opportunity to maximize our effectiveness through an offensive strategy as well as a defensive strategy, with maximum collaboration and coordination between research and advocacy.

Now, the FCC’s review of media ownership rules is well underway here, and there’s a more welcoming leadership now on Capitol Hill, that will listen to what you have to say, that will call you up there and actually hear it. And we’ll see if the media reflects it. But that kind of debate is going to be joined in a way that we haven’t had the opportunity in previous Congresses to do that. So this work is going to see the light of day on Capitol Hill, and I think we should use that opportunity to maximize our effectiveness through an offensive strategy as well as a defensive strategy, with maximum collaboration and coordination between research and advocacy.

Now the people here today, I think, are the ones – the fact that you came here for this, you understand the importance of it, you’re sort of – to some extent, you’re the group that needs this talk probably the least of any of the people in the academic community, because you’re here, and that represents such an important step. But you’re the ones who need to take it back and explain these issues to folks. So I wanted to give you a little bit of a first-hand perspective of what it’s like, from my position, trying to deal with these issues and these incredibly powerful forces.

When it comes to issues like research, I like to think of myself as a proud member of the “reality-based community,” as we call it. Where we deal with the complexities of the facts. We consider the public interest and not just what powerful, self-interested companies tell us, when it comes to competition, or localism, or diversity. And we develop reasoned regulatory options that are based on facts and principle, not pure ideology.

Now too often, on the other hand, the Commission engages in what Marty Kaplan from USC has called “faith-based decision-making,” where academic and empirical research is just ignored. They can mold reality to their own view as they think they can, as they unfortunately are not able to do so far in the Middle East. The outcry of millions of Americans, from red states, blue states, purple states, completely ignored. No matter the fact that the law says the public interest – what does it matter what the public thinks? And the only view of reality convenient to the wishes of the most powerful companies happens to be the ones that get considered in policymaking.

Too often, only those elements of competition that benefit their predetermined policy positions that they want to accomplish are worthy of discussion and consideration. So when an FCC radio industry study – our own study – finds out that the largest firm in each radio metro market has, on average, 46% of the market advertising revenue, well, the report vanishes. When an internal FCC study finds that local TV owners provide more local news, it vanishes, too.

Now the beauty of our position here is I really think, and I think you all would agree, that the truth is on our side. When we discover complexities that merit reconsidering our views, we do that. We do it based on facts, because we care about the truth. After all, if our goal is really to serve the public interest, anything other than the truth would merely inhibit our goal of getting this right. Now on the other side, the policy analysts that they’re looking at, the policy analyses that promote the goals of competition, and diversity, and localism, to the other side are just inconvenient truths, as our elected President once said.

To be honest, our own willingness to engage in battle and fight hard to protect the values of this country has contributed to this heated environment that we see. I mean, I have to admit that. We’ve played a part in that. We know how to play politics with the best of them, but we do it because we’re fighting for truly what I consider to be justice. And while we shouldn’t allow ideology to drive policy, we can make no mistake about it, I think we have to fight fire with fire.

For those who seek to justify the positions that are in their corporate or their pecuniary interests, they have the means and the incentives to distort the truth, or try to make the facts fit the viewpoints that promote their own self-interests and their own goals. And as we all know, the fact of the matter is they have vast resources, and it gives them more access already than they should have, and a greater chance than regular Americans to affect the outcome. So they’ve got all that already, and then they’ve got all this power, and they are perfectly capable and willing of buying their own think-tanks, paying off their own researchers. And when their hired guns pump out their outcome-driven reports, they hire the finest PR machines to foist their views on the world. And of course, they own the very media that spreads the word while all too often ignoring the views of real experts that really are trying to get at the facts. The result is that the process, including academic research, has been politicized.

The rampant politicization of research that we’re experiencing today, though, isn’t unique to the FCC or to the field of communications. It began decades ago and it’s simply getting worse and worse. I mean, there also seems to be a direct correlation, I think between the amount of this partisanship on Capitol Hill and the politicization of data-gathering, analysis, and ultimately the policy outcomes. I mean, it goes back many, many years. In 1981, to quote Ronald Reagan – which I don’t do very often – he said that “government is not the solution to our problem, government is the problem,” as we know, and industry reporting requirements became a useless regulatory burden. How could we ask these giant companies to spend a few thousand dollars to gather data? What a waste of their time, when it should all, you know, be going into the free market and to, you  know, basically shareholders.

So these reporting requirements were gotten rid of, not really because they were a burden. I mean, they would cry, “Oh, this is terrible, how could I possibly do this?”, when they provide infinitely more reams of data to their shareholders, the SEC – they have the data in many cases already available but they didn’t want to provide it. So the government willingly was an accomplice in saying we don’t want to burden businesses with this data-gathering anymore. And so all of you are deprived of so much of the kind of data you need to do basic research. And now, 20 years later, we see Grover Norquist from Americans for Tax Reform proudly declare that his ambition is to “starve the government down to the size where we can drown it in a bathtub.”

Well, this is the kind of movement that we’re up against. And indeed, over the last 20 years, government has been starved to the point where it’s unable to make policy decisions based on quality, transparent public data. Phil Napoli did a little study that some of you might have read in preparation for this, about what’s happened to the data that you all rely on, and particularly in the communications field. So we internally at the FCC don’t get much data. We get little access to data from government, from academic research, and little policy analysis from the so-called “expert government agency,” the FCC.

The end result is that our own studies, the FCC studies, now fall into two categories as I see it. They’re either void of meaningful of policy analysis or blatantly political and outcome-driven. In the first category, you have studies like the Commission’s broadband report, the video competition report, the cable price survey, just to name a few – I could go on. I’ve repeatedly complained, and so has Commissioner Copps, about the inadequacies of these reports because they simply recite information submitted by industry, purchased from private sources in some cases. It doesn’t even ask any questions, doesn’t audit the data. We don’t provide our own in-depth analysis of the state of competition, consumer expectations. And we’re supposed to make legislative recommendations and provide information to Congress based on just passing along industry tells us without digesting it.

We no longer gather and aggregate the relevant data; we generally have either nothing to contribute to the intellectual debate; or we have to make important policy decisions on all of these fields – not just media, but wireline and wireless and broadband – based on privately-funded data, or, as I said, based on faith.

I think as an expert agency we should strive to make sure that we’re doing all that we can to adequately grasp the complexities of the industries that we regulate and the policies that we enforce, and that we relay a range of thoughtful ideas about these dynamics to Congress. But we’re not doing that job. We no longer gather and aggregate the relevant data; we generally have either nothing to contribute to the intellectual debate; or we have to make important policy decisions on all of these fields – not just media, but wireline and wireless and broadband – based on privately-funded data, or, as I said, based on faith.

In the second category, of course, those studies that are blatantly political and outcome-driven, they’re just advocacy pieces sometimes. Prime examples, I think, are studies developed to justify the 2003 media ownership order, the second a la carte report, the 621 video franchise item we just did a little while ago, which we voted on in the final days of last year. In all of these we ignored the vast body of academic and empirical research, discounted the record of evidence and the Congressional intent behind the law. Instead we engaged in what I determined, based on Marty Kaplan, was our own faith-based regulation. I don’t think the Chairman liked it too much when I said that, but that’s what it felt like to me.

Because you think about the video franchise item. We’re saying, we’re going to change the whole local franchise process that’s existed across the country for years, that Congress enacted, because there’s this big problem out there. That these local governments are slowing down, they’re unreasonably refusing to award franchises. But we didn’t have one example in the entire order of any local government impeding any local franchise. Not one. I asked our staff. I said, “Is there one city that you can site, like say, you know, Davenport, Iowa, or someplace in the country where there’s a problem?” They said, “Well, there’s hundreds of places where there’s discussion about delays, and we hear about delays and problems.” Can you give me an example of a city, let’s say, you know, someplace in Minnesota? I asked four times, they couldn’t come up with one city, because there wasn’t one example in there.

So we changed the entire federal policy, and we don’t look at any independent fact-finding. We don’t verify allegations made by the largest companies. But we accept everything that big companies say, and we ignore everything all of these local officials have to say. Like every time the big telephone company’s right, and every time the local governments, elected by the people and accountable to them, are wrong. This is an amazing, you know, breathtaking act of just disrespect for our local government partners, but also of a lack of respect for the truth and what really happens. I mean, maybe there is a problem out there but we certainly couldn’t prove it. And those telcos had every opportunity to give us all the examples they could. But they had obviously a different goal, and so did the FCC, it wasn’t to deal with that problem.

And we use these outcome-driven studies sometimes to advance the drive for whatever policy is in the interest of the companies that we regulate, not the public interest. For example, in the drive for media consolidation in 2003 we did that. And the process, unfortunately, is well underway once again. I wanted to bring that to your attention a little bit here. As you probably heard, that we’ve announced a series of 10 studies that we’re doing, or that we’ve commissioned to be done. I see that one of the authors, Alan Hammond, is here, who I think was there through the good graces of Commissioner Copps – I was never asked, myself, for the name of anybody. They never consulted me about it, they never told me what they’re doing, they still haven’t explained to me why they selected who they selected. I know we got one good one. The other folks I’m not so sure about, because a lot of them have no background in the field. I don’t know what the truth is. I asked our internal folks, who told us that, well, you know, these were good people, and they were selected for whatever reasons they couldn’t tell me. But I was told by somebody here last night that very good academics in the field of communications who have actual expertise in this area weren’t willing to do it because of the parameters that were suggested. You can decide what you believe about those two, I’m not going to make a judgment here.

But I will say that the Chairman unilaterally released the public notice without consulting us about its contents. We looked at it, and the notice contained the most scant descriptions of the studies you can imagine. As academics, I’m sure those of you who saw it were appalled. Literally one or two sentences. Description lacked any sense of the Commission’s expectations, the studies’ scope, proposed methodology, or the data sources that were being used. Most notably, the Commission outsourced seven of the 10 media ownership studies to economists with little or no experience in media, with the exception of the distinguished Professor Hammond.

I’m saying today exactly what I said then: that the legitimacy of these studies is really directly correlated to the transparency of the process undertaken to develop them and to select the authors. And the truncated period of time to complete the studies – they’re talking about trying to get them done by this spring – and the inexperience of the researchers that were selected in these fields, don’t engender public faith or confidence at all.

Now I would like to say that we have – you want to see more information, we brought to you today – we did get copies, after many requests, of a full paragraph on each study. So while, you know, not a lot it’s still I think about a 400% increase than what you had before, from one sentence to five sentences. So we make these available today to you – they’re in the back on the table back there – they weren’t available earlier, so afterwards if you’re interested make sure to get a copy of these. But needless to say, these are not satisfactory to us, and we need to respond. There’ve been members of Congress that have asked about this. They’ve now been promised, fortunately, that they will give some good information back to Congress, but we have no idea, you know, what to expect from these studies, and there’s obviously little transparency on this at the FCC as there should be.

So the challenge is, in this kind of environment, this kind of depressing environment I’ve laid out for you, how do we respond, and can we make a difference, and have we made a difference? I’d like to just lay out some approaches that I think we can take if our fight for truth is to prevail in a world where too often propaganda wins out.

Now, it’s politically astute, but not politically-motivated, for us to criticize the legitimacy, the transparency, and the validity of any research they tout that’s genuinely biased. I mean, if it’s good research, we’ll call it what it is. And if it’s not, we need to take a page from the Clinton war room, and that’s to respond quickly, tactically, and loudly. One of the things about the academic world, I know it’s a slow-moving process and people want to think about things for a long time, but they’re going to come out with this with a politicized process, and if they do, we need to respond in kind. And those of you who are experts need to get out to your communities and explain what the truth is, or what the flaws are, if there are flaws, in fact, in the final studies.

For example, back in 2002, through the development of a lot of outcome-driven studies the Commission created and attempted to justify the infamous “diversity index,” to weigh all forms of media using the same metric, attributing the same significance to all forms of media. So that, you know, as Mark Cooper said, “the FCC cooked the books to come up with the result they wanted, and the books weren’t even half-baked.” Well, you know, they’d weigh the New York Times the same as the Multicultural Radio Corporation in New York City. It made no sense. And the courts, of course, saw through this. But we lucked out, in a sense, in that we had great, of course, legal skills at stake, but we could have lost that one just as easily. And the fact is that when they come up with something nonsensical like that we need to respond quickly. They come up with studies that would justify that kind of thing we need to respond quickly, and who better than the academics here to help us do that?

Another thing to remember, of course, is that process arguments really resonate with people, and with members of Congress. Because, sadly, these abuses of trust do get attention in the press, because so many citizens have come to expect it from their government, too often with good cause, as we’ve talked about here today. The most recent example of this was the progressive community’s response to the purported response to the FOIA request that was made by the Institute for Public Representation. On the eve of the New Year’s Eve holiday weekend, while everybody was gone, the Commission announced it was providing copies of all the studies and reports, draft or final, regarding media ownership, minority ownership, localism and related issues that the Commission worked on over the last several years. But soon after the holidays, it was beginning to become clear that, albeit just in the trade press, that the Commission was withholding over a thousand pages of documents that many which surely should have been produced, given the Commission’s public statement that it was producing all responsive documents, even those that were FOIA-exempted.

[W]e’ve got to demand that the Commission make publicly available and accessible all of the data on which its study is based, so that you can do your own independent analyses and then really cut to the chase as to whether or not what they did was biased or not.

In addition to rapid response, we’ve got to demand that the Commission make publicly available and accessible all of the data on which its study is based, so that you can do your own independent analyses and then really cut to the chase as to whether or not what they did was biased or not. We’ve already made some progress on that front. I don’t think it’s been made public, but in a letter to Senator Dorgan, Chairman Martin recently committed not only to complete the localism inquiry and localism report before concluding the media ownership proceeding, which is something we’ve been demanding for a long time, but he also committed to make the data on the radio localism study, which cost taxpayers $350,000, available to the public. So there you go. This is going to be good. And I hope that you’ll take that and really use it to good advantage, because that data’s going to be used, I think, in a lot of these studies that are now underway.

This is a positive sign because we’ve got to start demanding that the ten studies that will provide the basis for the Commission order in a few months also have all of the underlying data revealed to you. So we need to start demanding that now. In addition to public comment, there is a need for a 60-day peer-review cycle. And who’s going to be the peer reviewer on these things? We’ve asked, we haven’t been told, we don’t know what the peer-review process is yet, we’re still trying to figure that out. But I’d like to see a lot of people here serve on those peer-review committees, and if it’s not a legitimate process let’s call it for that, and let’s do real peer-review of those studies, and not some validation that is by people that were predetermined would agree with the conclusions.

Third, I think we have to undertake studies that are responsive to the shallow or biased work the other side is undertaking. This can be especially effective when your research refutes a specific point upon which the other side has relied. We saw that in 2003: a good example of a study that worked, just because it met all these criteria – was timely, was responsive to the issue, and it undercut their biased research – there’s a lot of good examples, but a good one is a 2002 Future of Music Coalition study that showed the industry’s and the Commission’s claim that radio consolidation wasn’t a problem. It was pretty good.

It basically said that the other studies that the Commission had asked for, the Federal Communications Commission, was that there’s all these new formats out there. All these wonderful proliferation of formats. So don’t worry about it; radio consolidation’s not hurting anything; plenty of formats. So the Future of Music actually looked at the empirical data and found that while there are a lot of new formats, guess what, they’re playing the same songs! With a lot of songs overlapping on various format playlists. So it might be a different format, but it’s the same darn songs. And that’s the point we’ve been making all along. So their little shallow approach of looking at formats wasn’t working. So now, best of all, they got all these findings out in the press, they got a nice set of press clippings, and they made a real impact in the decision-making process. I really believe that that study helped kill any effort to allow further radio consolidation, because it cut the legs out under the one phony study that could have been used to justify it.

Last, but not least, I really think we have to focus our intellectual firepower on the key policy issues that are on the front burner in the industry, for what they want, and what the Commission’s looking at doing, and what Congress is looking at. Let me highlight one issue that undercuts their approach on a lot of fronts: it’s minority ownership. The Third Circuit made a lot of the Commission’s elimination of the one rule designed to address minority ownership. It seems there’s no way for the Commission to avoid addressing the lack of minority ownership in this country in the court decision or, when me and Commissioner Copps talked about it, or Congress. Now surely the Commission will try to pass the buck, they’ll say, oh, you know, this is Congress’ problem, they’ve got to come up with a tax credit program or something else. But we need the Constitutional analysis, the market-structure analysis, the regulatory proposals that could be implemented by the FCC to counter that. I mean, no matter which rule the Commisison chooses to address, we’re going to run head-on into that issue of minority ownership. I mean, for example, you try to eliminate the newspaper-broadcast cross-ownership rule – what’s that going to do for minority ownership? I’d like to see the argument that they twist it like a pretzel to say that it helps, and we can come up with evidence that it won’t. Anything they try to do, we need to address.

I mean, another good example is the duopoly study that was done recently by Children Now that showed that children’s programming is reduced when duopolies happen. The duopoly rule, front and center in front of the FCC – that’s the kind of study when it turns out that when duopolies get together, less children’s programming – that is perfect. Now that begs the question, what happens to all the other programming? Children Now did their job and they got that study done, and it’s going to have an impact. It’s going to be hard to argue for duopolies with that out there, but what happens to news and local affairs? What happens to minority ownership when there’s duopolies? All of these things we need empirical facts on, like that duopoly study, and it’s very hard for the big media giants to get around the truth.

I think given the success that we had in 2003 it’s impossible to feel anything but some hope and optimism, even knowing that we’re up against this incredible machine, knowing that we have the kind of intellectual firepower that we have here at this conference, arrayed against their hired guns. Our media democracy movement is deep and it’s wide, and it’s a real civil-rights issue of the day. So the kind of papers, the studies and reports that people here generate make an incredibly important contribution to the work we do at the Commission, and if they’re ignored by some on the Commission, they won’t be ignored in Congress and they certainly won’t be ignored by me. And we’ll make sure that your voice is heard if you give us the kind of data that we can use to fight those who would distort the truth to promote their own interests.

The other side’s working harder this time around, and they’ve got money to burn, so we’ve got to work harder this time around too. So to repeat, we’ve got to think strategically, we’ve got to act quickly, and we’ve got to be responsive to the efforts of those who distort the facts to mislead the American people. Our strength is that we have the truth and the American people on our side. So we have a lot of hope. Hope is alive and well in this movement, and the fact that you’re all here and so engaged in this gives me hope that justice will in the end prevail. So thank you for coming here today and I really appreciate your participation.