Another Day of Digital Opportunity Denied

JULY 19, 2012

I am happy to follow Marc Morial and to tell him how much it warmed the cockles of my heart to hear his emphasis on the public interest. That’s all too rare an event in a city and among folks responsible for implementing our enabling communications statute that references the public interest some 112 times. I’ve always been of the mind that those 112 mentions mean we’re supposed to take the public interest seriously in everything we do. It wasn’t a throw-away line or a last second add-on to please any particular constituency. No, it’s at the heart of the law—right where it should be. That it has been so very often observed in the breach rather than the practice is not the fault of the public interest mandate but of a generation of policy implementers who often permitted, even encouraged, other less benign considerations to come first. So thank you, Marc Morial, for focusing our attention where it needs to be focused.

Most folks in this crowd know the state of my dissatisfaction with the performance of the Commission over many years when it comes to one critically important tenet of the public interest: ensuring that minorities and women are full participants in the communications opportunities that are so central to every citizen’s chance for success and to our country’s chance for getting its act together to overcome the daunting challenges, economic and social, that threaten—really threaten—our future.

I’m only up here for a few minutes, so let me cut directly to the chase. Every day that we fail to address the lack of minority and female ownership in our communications infrastructure is another day of digital opportunity denied. We’ve talked. We’ve studied. We’ve received all sorts of good recommendations for action. But for the decade-plus that I spent at the Commission, we’ve done precious little to improve a situation that is both dismal and appalling.

“Well, what can you do at the bottom of a business cycle?” some will ask. I say there is plenty we can do right now—both to make some short-term progress and to lay the foundation stones for the longer term. So many recommendations have been put on the table by people here at this luncheon, led by David Honig, Henry Rivera, Julia Johnson and so many others who have worked hard to formulate and vet them on the FCC’s own Diversity Advisory Committee. While still at the FCC, I suggested that a good first step would be to put one of these recommendations on the Commission’s Agenda Meeting each month for a year. That didn’t strike me as a particularly revolutionary idea, but it seems somehow to have disappeared. So I’m making it again.

Let’s look at these—and other—ideas. All the talk in town these days is spectrum auctions. Are we going to have Designated Entity rules or some kind of incentives? “Oh, that doesn’t work here,” I’ve been told. Well, prove it. Designated Entity rules don’t have a storied past, to be sure, but I remember very well in the AWS auction that was largely because we waited so long to craft them and the final product showed evidence of our haste. Had we started earlier and done it right, we would have had better results. A complicating factor here might be that the Commission still has not resolved the Third Circuit’s diversity concerns from the 2010 court opinion. Are we going to allow that delay to discourage diversity in yet another auction? I sure hope someone is looking at this now to see if anything can be done. Ditto new entrant bidding credits which I understand Commissioner Clyburn talked about here yesterday. Finding creative ways to encourage new entrants goes beyond auctions, of course, but if the Commission is redrawing so much of the spectrum map, it needs to find a place on that map for minorities and women. Where is the digital dividend for them? Isn’t there supposed to be a digital dividend for every American?

And, by the way, as spectrum rights are returned through the auctions, let’s get beyond the idea of just acquiring those rights from Big Media only to turn around and assign them over to Big Wireless. In the broadband as well as the broadcast spectrum there has to be room for minorities, women, small business competitors, and independent entrepreneurs. The hedge funds have done pretty well finding their way onto the spectrum map. They need some company.

How about some creative thought on using unlicensed spectrum for diversity broadcast stations? OMB won’t love that, but the FCC’s obligation is not to provide maximum revenue for the Treasury. It is to provide maximum benefit for the public interest. And powerful as those folks at OMB may be, they do have to report up, don’t they?

There are so many possibilities. Much of the spectrum at channels 5 and 6 continues to lie fallow. This could be home to a lot of NCEs and diversity outlets. Another idea is a prime-time set-aside for independent programming from non-network, non-affiliated producers. I see some wonderful potential here to create diversity, commercial opportunity, and new businesses for minority and female entrepreneurs.

Overcoming Disadvantage, the current-generation version of the Full-File Review that never got off first-base at the Commission, is still waiting for action. Let’s get on with it. In addition to its many short- and mid-term benefits, it might also provide some good under-pinning for a renewed Tax Certificate program from the Congress. It was encouraging to hear the Tax Certificate issue raised at the recent House oversight hearing and by Commissioners here yesterday. My take-away is that it is time to begin a real push. A tax certificate should be, of course, in addition to FCC action, not instead of.

For the longer-term, when we will hopefully work toward even more aggressive solutions, we have to have our legal justifications at-the-ready. We don’t. We need to update the Adarand studies that were done under the leadership of Bill Kennard. This hasn’t been done and it hasn’t, to my knowledge, even been funded. The Commission knows what is needed from these studies and it needs to get them done in a targeted, prompt way. There should be a deadline of June 1, 2013, to have these very focused studies done, vetted and ready-to-go.

It’s also time, to be very frank, to get some commitments from not just regulators, but the Executive and Legislative branches, too. As I wrote in my recent Benton blog, electing officials from whom we haven’t asked commitments is not how good legislation usually gets enacted. Just hoping we can bring our issues up later, after the campaigns are over, is a prescription for inaction. Not speaking out now, not taking these issues to the candidates, wherever they are running, is sentencing important public needs to an Inside-the-Beltway fate where the power of big money so often trumps the needs of the people.

It’s late, inexcusably late, but it’s not too late. We’ve got public interest direction from the law. We have people like David and Henry and Marc and Wade Henderson and Reverend Jackson and so many, many others—not to mention the tremendous grassroots support that can be harvested from a country that is now almost one-third minority and over 50 percent women. I don’t know about you, but all that enthuses me!

When you have a compelling cause, when you have visionary leaders, when you have millions of potential recruits who I think will stand up and fight for diversity in our communications and media, why hesitate? No one responds to the call of an uncertain trumpet. Sound that trumpet. Sound it now. Sound it together. Sound it clearly, loudly, everywhere. Do that, and I’m betting the response would move us mightily toward redemption of the Promise of America for each and every one of our citizens.

By Michael Copps.