POWELL DISAVOWS BIG STICK ON COMPLIANCE WITH DTV PLAN

LAS VEGAS -- Compliance with FCC Chmn. Powell’s DTV plan is purely voluntary, he emphasized to reporters Tues. after speaking at NAB convention here: “The question of further government action lurking in the wings is not before us.” However, industry officials continued to speculate that industries that didn’t comply with plan to accelerate DTV transition (CD April 5 p1) could face retaliation either in Commission decisions or as result of congressional action on issues such as setting deadline for cable compatibility or defining what portion of broadcast signal must be carried on cable.

FCC believes it is seeing “very positive movement in every industry segment” on plan, Powell told reporters, citing comments by CEA Pres. Gary Shapiro on DTV tuners (CD April 9 p8). He said FCC’s DTV Task Force was setting up industry meetings to get more detail on reaction. Powell also said FCC didn’t directly consult with Congress in setting his plan, although it did emerge as result of series of DTV meetings organized by House Commerce Committee Chmn. Tauzin (R-La.).

There’s “a lot of room for progress” on DTV, Powell said at FCC Chairman’s Breakfast at convention. He said transition was “not just important to broadcasters, it’s important to America” and all parties “have to step up to the plate.” He said FCC wouldn’t just put plan out there, “we will drive it.” DTV is part of “very serious, fundamental changes” that are taking place through communications industries, Powell said: “You have to get on the train or it will run over you.” He said industries’ long-term success would depend on how creatively they used digital resources.

FCC, meanwhile, faces big job on ownership issues, Powell acknowledged. He told reporters that recent court decisions meant “we can’t do any media ownership rules in isolation at all.” He indicated process of creating conceptual basis for ownership rules wouldn’t be quick: “We have got to inhale and make sure we understand what the courts are saying.” Although FCC has lost virtually every court challenge to ownership rules in last 5 years, Powell told convention that “everyone shares the basic goals” of diversity of ownership and voices. But FCC must write ownership rules in way that meets needs of new century, not 1960s, he said: “We have got to take our time and develop empirical evidence to sustain any decision.”

Asked whether ownership consolidation was inherently bad, Powell said media always had told Commission that its public service role made it “different,” and FCC agreed. As result, on consolidation issues, media should be treated differently from other industries, he said. “You can’t have it both ways.” Powell reaffirmed that FCC must deal with different media consolidation issues than traditional Justice Dept. antitrust review.

Same antitrust review will apply to EchoStar acquisition of DirecTV, Powell said: “That means the judgments could be different.” He said FCC wouldn’t necessarily wait for Justice Dept. action before making its decision: “We'll be done when we're done.’

Powell rejected suggestion that broadcast standards for such things as indecency were getting laxer. He said Supreme Court also was struggling with defining indecency in era where everyone has different tastes and morals, making it difficult to define what meets community standards. “This is an increasingly diverse society,” he said. “Claiming there is just one community today is just not true… There is no way to avoid subjective judgements.” Powell said, however, that he strongly believed in marketplace of ideas and First Amendment and “our society is supposed to be strong enough to sustain” diversity of views.

On terrestrial repeaters for satellite radio, Powell said he didn’t believe FCC ever intended to allow repeaters to be used for local origination of programming. “I don’t think broadcasters need to worry much” about Commission’s approving local origination, he said: “I think a lot more would have to happen for that to happen.”

Powell said he remained confident that FCC could craft new EEO rules that would withstand court scrutiny. He said Commission never intended rules to be highly intrusive, and there was “room for rules that are not offensive to the Constitution or particularly burdensome… There is nothing that is more in the public interest than to commit to removing the burden of past discrimination.”