WAOD Exclusive:Common Cause’s Opposition to Bob Johnson’s Urban Television

Yes. Yes. Another post about mass communications law. Why? Because this affects you and is being done in your name. Yesterday we linked to the comments of Civil Rights groups who gave their enthusiastic, UNCONDITIONAL support of swift approval of Bob Johnson’s request in the name of diversity. I think that was an abdication of their responsibility to look out for what was in the best interests of their constituencies as opposed to Bob Johnson. In fact, Common Cause pointed out that Urban Television’s current application is not in the public interest.

I went through the trouble to obtain a full copy of Common Cause’s comments to the FCC that were referred to in several news articles and my earlier post.

The comments from Common Cause say that they are in support of the Johnson’s request, but in their conclusions, their prayer is that the Commission deny Johnson’s application. Unless Bob Johnson does more that offer promises of rainbows and ponies, the application should be denied.

Read the comments from the NABJ, National Bar Association, National Urban League, Rainbow PUSH, Lawyers Committee for Civil Rights and others, and compare them with these comments from Common Cause. Yes I am posting common Cause’s comments in their entirety because you can’t find them anywhere else on the web since people haven’t gotten back in to the swing of things post-holiday:

Comments
Common Cause applauds the initiative and creativity of the applicants in designing this
proposal, and looks forward to being able to support the grant of these applications. Although Common
Cause is confident that once the record in this matter is fully supplemented it will be able to
offer unqualified support, it understands that the applications cannot yet be granted in the form submitted.
Common Cause stresses that it strongly supports prompt and favorable action on these
applications once these technical matters are clarified.1
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One of the FCC’s most important responsibilities under the Communications Act is “to make
available, so far as possible, to all the people of the United States, without discrimination on the
basis of race, color, religion, national origin, or sex, a rapid, efficient, Nation-wide wire and radio
communications service….” 47 USC §151. See also, 47 USC §257 (directing the FCC to work
toward elimination of market entry barriers in order “to promote the policies and purposes of this
Act favoring diversity of media voices, vigorous economic competition, technological advancement,
and promotion of the public interest, convenience and necessity.”)

The concept underlying the applications is sound, and their grant could materially assist the
Commission in fulfilling its obligations under Sections 151 and 257. They address a fundamental
dilemma of communications policy, which is how to increase the number and diversity of broadcast
licensees and, thereby, the diversity of the programming they carry. As the applicants point out,
existing practices have not successfully created a significant number of minority licensees. Nor have
existing policies resulted in adequate amounts of programming addressing underserved audiences.

The ION/Urban plan has distinct advantages over traditional time-brokerage, under which
a programmer has no ownership interest, and no licensee responsibilities. Assignment of a license
of fixed duration and controlled by the programmer facilitates financing, and eliminates confusion
over control of programming which has been endemic to time-brokerage. Indeed, the Commission’s
stated policy is to encourage share time licensing because it is one way to “encourage minority group
involvement in broadcasting.” Petition for Issuance of Policy Statement or Notice of Inquiry on
Part-Time Programming, 82 FCC2d 107, 118 (1980).

Common Cause also notes that the applications closely resemble the “Class S” licensee
proposal presented to the Commission by the Advisory Committee on Diversity for Communications
2The recommendation can be viewed at:
http://www.fcc.gov/DiversityFAC/adopted-recommendations/s-class-licenses-102808.pdf
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in the Digital Age. The Advisory Committee’s recommendation, adopted on October 28, 2008, calls
for the Commission to adopt a scheme under which “a DTV licensee could voluntarily assign the
right to operate a DTV sub-channel to another entity, and thus essentially monetize the channel.”2
Although the ION/Urban plan is somewhat different, grant of the applications would be consistent
with the scheme endorsed with the Advisory Committee.

The Record is Incomplete
As noted above, Common Cause does not believe the applications can be granted in the form submitted. There are several aspects as to which supplementation is necessary before the Commission can make the requisite public interest finding under Section 309(a).

First, the parties have not submitted information pertaining to how ION will be compensated
for providing transmission services to Urban. Because the operator of a transmisser could exert
excessive control over a share time operator’s practices by conditioning access to its transmitter, or
by charging exhorbitant fees, the application must spell out a mechanism which insures that Urbanhas full control of its facilities.{ In other words, Urban Television appears to be a SHAM and front for ION Media]

Second, the parties have not submitted information confirming the absence of any reversion
rights, rights of first refusal, liquidated damages, put agreements or other mechanisms under which ION could effectively control or inappropriately influence Urban’s programming and operations. [In other words, Urban Television is a "minority owned" station in name only]
Third, the parties have not fully addressed programming issues. Common Cause welcomes
the Urban’s December 22, 2008 amendment to Exhibit 4 of the application which promises no less   than seven hours per week of national or local public affairs programming per week. Even as
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amended, however, the applications do not provide an adequate basis for the Commission to
determine that grant of the applications is in the public interest. Common Cause believes that the Commission should rule that grant of shared time applications such as the one now before it are in the public interest only if the grant is conditioned upon the assignee providing significantly more news, public affairs or other programming addressing community needs and/or addressing otherwise unmet programming needs than would be the case in the absence of the shared time arrangement. [IN other words, Johnson is promising less "public affairs programming" than other similarly situated applicants]

Moreover, the Commission should rule that operation of shared time licenses carrying programming substantially devoted to sales presentations is not in the public interest. It can issue such a ruling in the instant docket or by resolving the same question now pending before the Commission in Docket
93-8.
Finally, it is possible that Urban may be subject to restrictions on its programming pursuant
to a “Station Agreement for Overnight Programming, Use of Digital Capacity, and Public Interest
Programming” (“Station Agreement”) entered into between ION’s successor, Paxson Communications
Licensee and the Christian Network, Inc. See Paxson Communications License Company,
LLC, 22 FCCRcd 4248 (2007). It appears that a June, 2005 amendment to that agreement eliminates
the most onerus obligation imposed thereunder, but even as amended the Station Agreement may
apply to certain of Urban’s activities essentially in perpetuity. The enforceability of this contract is
in doubt, subject to the outcome of a pending Media Bureau investigation. See, Letter from W.
Kenneth Ferree to John P. Feore, (released March 10, 2003). Common Cause has previously
disputed the legality of this agreement in a challenge to Paxson’s assignment of a television station
in Minden, LA, see Letter from W. Kenneth Ferree to Andrew Schwartzman (released April 14,
2004), which remains pending before the full Commission. The Commission should end the
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indefensible delay in resolving this matter and definitively rule that the Station Agreement is
unlawful.

Conclusion

WHEREFORE, Common Cause respectfully submits that the applications should be dismissed
or denied in the form submitted, but asks that the Commission accept additional information
which will enable it to find that grant the applications will be in the public interest.

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