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The dawn of the new century is an especially propitious time for broadcasters, cable operators and new-media leaders. With the changes in the broadcast landscape over the last decade, the paths of communications and communications law are unclear. Will convergence between the Internet and broadcasting occur? Will digital television be the standard of the times? Will the government be more proactive in adhering to the public interest standard and reimpose access rules? Or will the FCC throw up its hands and let the marketplace take care of these matters? These are hardly academic questions. Rather, they affect the landscape for the media in the new millennium. As this year’s elections head into the final weeks, the respective positions of George W. Bush, Al Gore and their parties on broadcast law issues offer a glimpse of what kind of communications policies each candidate will implement after the victor takes the oath of office. And that is only a glimpse, as neither candidate has been specific (or communicative) about his views on the subject. Because of the paucity of coverage and lack of priority, it has been difficult to gauge the candidate’s opinions — much less specific proposals — on these subjects. But an examination of speeches, web pages and the party platforms shows that fundamental policy differences exist between the Democratic and GOP standard-bearers and their respective parties on various communications law issues. This article will examine those differences. The general conclusion is that a Gore administration would produce more government involvement and regulation; a Bush administration would be more industry-friendly, with the notable exception of indecency. Let’s examine the issues. ACCESS: ELECTIONS In a throwback to the past days of broadcast regulation, Mr. Gore has advocated the availability of equal airtime to candidates “targeted in issue advertisements.” A cross between the old fairness doctrine and Section 315 of the Communications Act (the so-called “equal time” provision), Mr. Gore proposes that the FCC require broadcasters to provide candidates in campaigns targeted by issue advocacy advertisements with an equal amount of free broadcast time. He said that he would petition the FCC to issue a ruling that recognizes this requirement as part of broadcasters’ obligation to serve the public interest. In addition, the Democratic candidate “strongly endorses” a voluntary standard of free broadcast time during elections. Specifically, he is asking broadcasters to offer five minutes a night of candidate-centered discourse in the 30 nights preceding an election. Although the free airtime agreement is not a statutory or regulatory mandate, it does echo a 1988 bill introduced by then-Sen. Gore, D-Tenn., requiring that broadcasters give candidates free television time as a condition of their license renewals. This is a notion that probably will not be met with favor from broadcasting interests. Mr. Gore also advocates measures requiring all interest groups airing “issue” advertisements broadcast within 60 days of an election to disclose their sources of funding. From the information gathered, Mr. Bush has not proposed any such regulations involving airtime before elections. It is safe to say that he would keep the status quo. FAIRNESS DOCTRINE While neither candidate has taken any position on the reinstatement of the now-departed access rule, which required broadcasters to air opposing viewpoints of controversial issues, the Democratic party platform calls for FCC reinstatement of the policy. With the exception of the so-called “Zapple doctrine,” the fairness doctrine was rejected by the commission in 1987, a decision met with approval by most broadcasters. Public interest groups have sought reinstatement in the past, but the issue seemed dormant in recent years in view of the greater diversity of news sources. TV VIOLENCE The 1980s crusade by Mr. Gore’s wife, Tipper, against “offensive rock lyrics” resulted in a voluntary rating system for recordings. More recently, in 1998, Mr. Gore participated in a news conference highlighting a study of the television ratings system that he helped negotiate with the entertainment industry. At the conference, Mr. Gore “. . . blasted the TV industry for indulgence in violence, citing the exposure of the average child to 20,000 fictional TV murders by the end of high school.” For more than a generation, since the 1969 hearings by then-Sen. John Pastore, D-R.I., violence on the airwaves has occupied the Democrats’ agenda more than the Republicans’. The antiviolence crusade is not likely to end if Mr. Gore is elected. Mr. Gore supported V-chip technology to assist parents in controlling what their children watch on TV. He led the Clinton administration’s efforts to pass the Telecommunications Act of 1996, which included a provision mandating the inclusion of the V-chip in new television sets. On the subject of children, Mr. Gore advocated the three-hour-per-week requirement of educational programming for children. The selection of Sen. Joseph Lieberman, D-Conn., as the vice presidential nominee provides additional moral cache: criticism of sexually oriented programming as well as violent content. Sen. Lieberman has made no secret about the lack of civil discourse in society, and, while he has not made any specific proposals, his influence within a Gore administration may add the possibility for public criticism of sex on the airwaves. FCC APPOINTMENTS Appointments to the FCC require members of both parties to ensure some evenhandedness. But the administration in power does get to appoint the majority of the five commissioners and set the policy of the agency. Whether it was Mark Fowler (Reagan administration), Al Sikes (Bush Sr.) or Reed Hundt (Clinton), all appointees made their imprint. I see a Bush administration’s FCC following a similar route as the Sikes-oriented commission. That is, a Bush FCC would encourage some deregulation, notably on the television ownership cap, but not a wholesale dismantling of long-standing rules a la Mark Fowler. It’s a good guess that the cap, presently at 35 percent of the television homes, will either be increased or scrapped entirely. Also, the newspaper cross-ownership limitations would likely be eliminated. Such a commission would be loath to expand regulation in most areas. While Mr. Gore’s general views on broadcast regulation mirror those of former FCC Chairman Hundt, Mr. Bush’s may revolve around those of Michael Powell, who may be the new FCC head in his administration. The only major area where a Bush administration would be more “regulatory” could be broadcast indecency. While sexually indecent programming merited criticism during the Clinton-Gore years, the FCC did not take a particularly aggressive enforcement stance. With social conservatives clamoring for action against such broadcasts, as was the case in the late 1980s, Bush appointees may look at 18 U.S.C. 1464 (the applicable statute) with greater interest. MERGERS AND ACQUISITIONS The issue of broadcast/cable/ Internet acquisitions is considered on two fronts: The Federal Trade Commission (which decides the general antitrust issues) and the FCC. It is safe to assume that a Gore administration would keep the FTC’s relatively activist policy, while a Bush administration would be more sympathetic and permit mergers with less governmental scrutiny. Of course, no one can definitively predict the course of the nation’s communications policy in a future administration. We will simply have to wait and see. Mark Conrad is the editor-in-chief of Broadcast Law Report and associate professor of legal and ethical studies at Fordham University’s Schools of Business Administration. E-mail: Broadcast Law Report

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