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Marsha J. MacBride is executive vice president of law and regulatory policy at the National Association of Broadcasters, where she heads the nine-lawyer legal department. What is the National Association of Broadcasters, and who are your members? The NAB is a full-service trade association working to advance the interests of radio and television broadcasters before Congress, federal agencies, and the courts. Our voting members include 7,600 full-power, over-the-air television and radio stations licensed by the Federal Communications Commission. The NAB also has international and associate members, including broadcast stations in all regions of the world outside the United States and companies supplying and using broadcast, post-production, multimedia, and telecommunications equipment and services. What is the role of the legal department? We represent the NAB before federal agencies (including the FCC, the Federal Trade Commission, the Federal Election Commission, the Department of Justice, and the Copyright Office), international agencies and conventions, and state and federal courts. Representation includes providing the agencies with information as well as formal filings in proceedings. In addition, our attorneys provide legal information to our members through counsel memos and publications and by answering thousands of member calls per year. We also provide legal support for NAB’s legislative efforts and legal counsel for the association itself. What’s your background? How did you come to this job? I graduated from the National Law Center at George Washington University in 1985. After six years in private practice handling communications matters, I joined the FCC in February of 1991. I started in what was then the Political Programming Branch and was offered a variety of interesting jobs that kept me there almost continuously until 2003. (I had a brief stint at the Walt Disney Co. in 2000.) Those jobs included being legal adviser to Commissioner James Quello, legal adviser to then-Commissioner Michael Powell, head of the Y2K Task Force, and, most recently, chief of staff for Chairman Powell until I stepped down in September of 2003. While I have gained experience over the years in many of the industries the FCC regulates, the bulk of my experience is in broadcast and cable-related matters. What do you miss about working for the government? The people mostly. There are a lot of exceptional people at the FCC, and after 12 years, they feel like family. I suppose I also miss being in the middle of it all in the chairman’s office. Just a week after I stepped down, I would visit the office and see the light speed at which the staff worked all the time. When you’re in it, you don’t see it, but it’s a whirlwind all its own! How important is it in your job to have had FCC experience? Do ethics rules preclude you from working on certain issues? I think it is helpful, but not imperative, for an attorney to have had FCC experience. The FCC, in large part, is a policy organization. There is a learning curve to mastering the combination of law and policy and producing regulations that are both legally sound and foster important public policy initiatives. That experience is important to practicing before the FCC, but working there is not the only way to get it. I do have ethical limitations, though I am not subject to the one-year ban on representing the NAB before the FCC. My limitations go to specific orders or notices on which I worked. But there is always an appearance issue, and I am trying to make sure that I have a significant cooling-off period. I recused myself from all broadcast matters in September of 2003, which is roughly nine months ago. Would you describe your role as a lawyer, a lobbyist, or both? Both, without a doubt. As I stated, the FCC is both a legal and policy agency. Its mission is half-adjudicatory and half-legislative, and an effective representative must be able to exercise judgment in both those areas. They say the devil is in the details, and the details are the work of the commission. Thus, you must be versed in the details of the law, and the impact of those details on the policy you are advocating. I’ve got to ask about Janet Jackson’s Super Bowl wardrobe malfunction. How has the NAB responded to the outcry about decency standards? Broadcasters are committed to their communities and take their programming responsibilities seriously, though there are those few whose judgment is not all that it could be. Because of broadcasters’ commitment, on March 31, the NAB hosted a Summit on Responsible Programming here in Washington, D.C. More than 350 radio and television broadcasters from across the country gathered to hear from federal policy-makers, representatives of public interest groups (including some of our industry’s most ardent critics), and others about the steps that the broadcast industry could take to promote responsible programming. Following the summit, the NAB announced the formation of an advisory committee on responsible programming, which will review a number of possible options for self-regulation, including the development of industrywide “best practices” and improvements to the V-Chip and program ratings system. The co-chairs of this advisory committee have been selected, and the members are currently being recruited. Let’s talk about digital television. According to NAB President Edward Fritts, 1,200 stations are broadcasting digital signals, but only a third are carried on cable television. Are you working to get the FCC to require cable companies to carry digital signals? What about multicast signals, which would allow local TV stations to provide as many as six separate channels simultaneously? Digital television holds great promise for consumers. It will preserve a system of free over-the-air broadcasting, on which at least 104 million households still rely. With multicasting, it has the potential to provide multichannel broadcast service for free. Thus, it is one of NAB’s top priorities to obtain carriage rights for all the free digital services that broadcasters offer, including high-definition television and innovative multicast services. The value of continuing to have a free over-the-air broadcast service has been endorsed by Congress and affirmed by the Supreme Court. Nothing about going digital changes that. The burden of carrying all six megahertz of a digital signal on cable today is less than it was to carry one analog channel when “must carry” was first initiated. Therefore, cable operators should carry all free bit streams, regardless of whether it is a high-definition, or HD, signal, or a multicast signal. At a time when regulators are embracing all that new technology can do for consumers, it is unfathomable to me that they would artificially limit broadcasters to carriage of a single channel in an overwhelmingly multichannel world. Do you have a digital television set? No, but I see digital and high-definition TV every day in the NAB lobby. I am seriously shopping now. (Stepping out of the public sector helps!) I am one of those annoying people who asks sales people more questions than they have the answers for, because I will not buy one without a DTV tuner. I want to be able to see all of the HD content currently broadcast. Do you think the digital transition will happen by 2009? If the FCC adopted a cable DTV carriage mandate, the answer is yes. The FCC’s decision to require DTV tuners in sets starting this summer will be important in meeting the goal of 85 percent of households that must be able to receive a digital signal before the analog spectrum can be turned off. TV is a very personal thing, and turning it off too soon will only alienate the consuming public. In addition, as an advertiser-based system, broadcasters must always maximize viewers. As a result, the transition must proceed in a manner that does not result in loss of viewership. Is election law a big issue for you these days, especially in the wake of the McCain-Feingold campaign finance reform law? Are elections a potential minefield for broadcasters when it comes to dealing with things like political ads, issue ads, and equal time requirements? Yes and yes. McCain-Feingold took a complicated regulatory regime and added new, and often very confusing, sponsorship identification and public filing requirements. Because the FCC has not had time to issue new rules on McCain-Feingold and the FEC has not had a chance to clarify all of the nuances of the law, there are times when there is no single correct answer to some of the issues that have been raised in this election year. NAB has been working closely with the FCC, with whom we have a very good relationship, to ensure that (1) broadcasters are well-informed of the new requirements and (2) broadcasters are not punished for their good-faith efforts to comply with the new law. Additionally, the NAB produced Election 2004. Every NAB member has a copy of this guidebook, which is designed to support stations’ efforts throughout the 2004 election cycle, and includes a variety of ideas for voter education, public service announcements, and promotional ideas to help broadcasters spread the word about the importance of casting an informed vote. One of the constant challenges broadcasters face as an industry is getting politicians to actually accept our free airtime offers. But our role with respect to our members is to provide them with information, not to give specific legal advice. We are counsel to the association only, and do not represent individual stations before the FCC. What about satellite radio? Satellite radio companies like XM and Sirius have been broadcasting local weather and traffic reports. What’s the argument for requiring satellite to be a strictly national service? Think of it this way. Broadcasters, because of their very local nature and the potential for shaping thought and opinion, are limited in ownership, have public interest obligations, indecency limitations, and a host of other requirements aimed to make sure that no one voice has too much power. The current dialogue at the FCC and in Congress is all about how to keep broadcasting local. How many satellite providers are there? Two. How many channels do they broadcast? Hundreds. How many voices does that account for under traditional FCC analysis? Two. If consumers cannot distinguish between a local service and a pseudo-local service, what will be the impact? How will they get emergency information? What will be the responsibility to cover local elections? What will be the power of one 200-channel voice over a local community? These are serious issues that the FCC has never addressed-in fact, specifically did not address because it stated it was not authorizing a local service. It is also contrary to the FCC’s explicit understanding of the limits on satellite radio service-limits that were critical to the FCC’s decision to authorize satellite radio service in the first place. In lieu of the promised niche audiences, foreign language services, senior and children’s programming, [satellite radio] has instead devoted substantial bandwidth to compete directly with local broadcasters with local content. Bring on competition, but not when broadcasters have so many limitations and obligations and satellite broadcasters have none. What other issues are at the top of your mind? The NAB is currently awaiting the decision of the 3rd Circuit Court of Appeals in the consolidated challenges to the FCC’s order issued last year that revised the broadcast multiple ownership rules. We are very much involved in the ongoing congressional reauthorization of the Satellite Home Viewer Improvement Act, Low Power FM, and the transition of the radio industry to digital audio broadcasting using in-band-on-channel technology. We are also closely watching the FCC’s interest in authorizing unlicensed devices in the broadcast bands. Spectrum integrity is extremely important, so it is concerning to me that the same regulators who say that broadcasting is the foundation of democracy continue to poke holes and nibble away at the spectrum so that foundation no longer exists. Do you use outside law firms? Under what circumstances? While I have attorneys in-house that cover every legal field in which we practice, my needs fluctuate depending upon the issue and the proceeding. Therefore, I have staff to cover most, but not all, occasions. If, for example, I was asked to address a specific IRS rule, or handle a difficult employment matter, I would look to outside counsel. The NAB uses outside law firms for some of our litigation, including appeals of FCC orders (such as the media ownership order) and, occasionally, challenges to congressional enactments (such as the Bipartisan Campaign Reform Act). The NAB also uses outside counsel in a few specialized areas, including antitrust, which is an issue of concern to all trade associations. Have you ever been on TV? Yes, mostly CNN and news shows covering specific FCC rules or issues. Though there are hundreds of hours of me sitting behind the chairman in the many Hill hearings he has attended, trying to keep an aloof but not uninterested look on my face! What’s your favorite TV show? To be honest, it is “Extreme Makeover” in all of its iterations. It gives me hope that someday I will again be a size 4!

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