New Commissioners named

The FCC has three new Commissioners, who join incumbents Michael Powell and Gloria Tristani. They are: Kevin J. Martin, Kathleen Q. Abernathy and Michael
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The FCC has three new Commissioners, who join incumbents Michael Powell and Gloria Tristani. They are: Kevin J. Martin, Kathleen Q. Abernathy and Michael J. Copps. In addition, Andrew Levin, telecommunications counsel to the House Commerce Committee, is likely to be nominated by the White House to replace Commissioner Gloria Tristani, who has indicated she will leave by the end of the year. Also mentioned as a candidate for the fifth spot is Julie Rones, who is with the United States Telephone Association.

Martin, a Republican, was legal adviser to outgoing Commissioner Furchtgott-Roth. He is currently the special assistant to the president for economic policy. He also was deputy general counsel for the Bush-for-President Committee. Martin will be nominated for a five-year term expiring in June 2006.

Abernathy, also a Republican, is a lawyer who worked both in private practice and at the Commission before taking positions in the wireless industry. Recently she was vice president for public policy of BroadBand Office Communications. While at the FCC, Abernathy was a legal advisor to both Commissioner Sherry Marshall and Chairman Jim Quello. Abernathy's term will expire on June 30, 2005.

Copps, who will fill the open Democratic seat, has spent 15 years in the office of Senator Fritz Hollings in a number of positions, including chief of staff. Most recently, he served as assistant secretary of commerce for trade development and as deputy assistant secretary of commerce for basic industries.

Abernathy and Copps assumed their positions at the end of May. Martin will take office by July 1. The new Commissioners should give Chairman Powell the majority he needs to implement his agenda.

Broadcast TV an outdated technology?

Over-the-air TV may be in for drastic changes, according to FCC Chairman Michael Powell. At a press conference in April, Powell raised questions as to what extent the FCC should further protect over-the-air television, because 85 percent to 90 percent of Americans now receive their programming through either cable or satellite distribution.

While Powell is fully in support of DTV and the transition process, television stations may lose some current protections. For instance, the effort by the networks to do away with the 35-percent national ownership cap, in order to further enhance their power vis-à-vis their affiliates, may get a favorable FCC reception. Powell does not think ownership caps work because, he said, government is not very good at “calibrating market decisions” for the long term.

The White House also had bad news for television broadcasters on possible analog spectrum fees. The Bush budget calls for a delay in the Channel 60-69 auction until 2004 and would postpone the Channel 52-59 auction until 2006. The problem for station owners, however, comes in a companion proposal to levy an analog spectrum fee pending completion of the transition to DTV. Although broadcasters have a friend in House Commerce Committee Chairman Billy Tauzin, all bets are off when Congress is considering a new budget.

TV renewal denied, challenger awarded license

An FCC administrative law judge (ALJ) recently issued a decision denying the license renewal application of a Pennsylvania television station and granting the competing application of the renewal challenger. The ALJ's decision is subject to appeal, but it nonetheless points to a number of areas that should be of concern to all broadcasters.

The ALJ decided the licensee was not entitled to the “renewal expectancy” that was awarded under the former renewal standards to stations that showed their performance during the previous license term was substantial and meritorious. The ALJ denied a renewal expectancy based, in part, upon the station's failure to broadcast public service programming.

The decision to award a renewal expectancy is based upon five factors: (1) the efforts made to ascertain community needs and interests; (2) the programming response to those needs and interests; (3) the incumbent's reputation in the community for serving the needs and interests; (4) the record of compliance with the Communications Act and the Commission's rules and policies; and (5) evidence of community outreach in providing a forum for the expression of local views. Here, the ALJ found that the licensee had failed to meet all of these necessary standards.

As a result of changes to the Communications Act adopted in 1996, renewal challenges are unusual. Now a licensee must be found unqualified for renewal before a challenger's application can even be submitted. Moreover, the new standards for renewal, which arguably do away with the renewal expectancy tests outlined above, are vague and untested. However, in a petition to deny or FCC investigative proceeding, the 1996 law's public interest standard would likely be interpreted in accordance with at least some of the former renewal expectancy elements.

Harry C. Martin is an attorney with Fletcher, Heald & Hildreth PLC, Arlington, VA.

Dateline

July 10, 2001, is the deadline for all stations to place in their public files their problems/programs lists and quarterly Form 398 (Children's Programming Report) for Jan. 1-March 30.

Send questions and comments to: harry_martin@intertec.com