Abernathy Reflects on Media Ownership, TRO Decisions at FCC

If Comr. Abernathy had to list one disappointment in her 4-1/2 years at the FCC it’s that agency efforts for a media ownership rule didn’t fare better, she told us. “I wish we could have created better certainty in that market regardless of what the numbers are,” Abernathy said in an interview: “That was not to be -- for lots of reasons, including directions from different courts, very significant political issues and the unbelievable complexity of figuring out what are the right numbers.”

Reviewing the heated 2003 debate over UNE rules as part of the Triennial Review Order, Abernathy said Sunshine Act reforms might have helped commissioners compromise. “Had all the commissioners been able to meet together and walk through some of the concerns, we could have forged a compromise,” she said. Problems occur “when you can’t do that, and have to talk through intermediaries and the parties feel strongly,” she said. Even with an updated Sunshine Act, Commissioners might have had to agree to disagree, she said: “It was an important proceeding and people felt strongly.” The bottom line is “we couldn’t talk about it and understand where there was some flexibility and where there wasn’t,” Abernathy said. The FCC adopted the UNE order 3-2 with then-Chmn. Powell in the minority and issuing a strongly-worded dissent. Asked about reports of dissension at the agency after that vote, Abernathy said “I'm not even going to go there.”

Abernathy cast few dissenting votes during her service, which she deems a positive: “My belief is if I were to be effective, I shouldn’t have dissents.” Scarcity of dissents “means I was able to work… with the majority to forge an opinion I could support. The nature of a 5-member commission is none of us gets exactly what we want.” She said she’s particularly pleased to have served on the FCC “at a time when there was a technology leap… into a world where not only is everyone comfortable with the Internet and what it can do but is also embracing broadband and now IP as a new competitor for both data and video.” As a result, “this competitive model we all hoped for, we've got that now or it’s very close in every market,” she said.

Commenting on media ownership and indecency, Abernathy said Congress may give the FCC guidance on contentious rules long bogged down at the Commission. After court losses in 2001 on cable limits and on media ownership rules in 2003, the FCC has shied away from those topics. “We'll have to refresh the record and try again,” said Abernathy. She has said a new media ownership examination could take a year as rules undergo piecemeal reviewed (CD July 1 p4). That’s what industry executives and Commission officials expect Chmn. Martin to do (CD June 16 p3). “It almost ends up having to move to a case by case approach,” said Abernathy.

Setting ownership rules requires a precarious balance between free speech and diversity - making it hard for the Commission to provide firms with fixed guidelines, Abernathy said. “Most companies want hard and fast rules” to help gauge a particular merger’s chance of regulatory approval, she said. Yet the matter “doesn’t lend itself to a very neat and easy” approach, she said. One possibility for guidance is a public interest exemption letting radio and TV broadcasters exceed ownership limits if they show it would serve the public, she said: “That’s about the best guidance you probably can give.” Some analysts have said the Commission may put such an exemption in cable ownership rules, which must be revisited after a remand in Time Warner v FCC.

The FCC may review the rules as part of approving sale of Adelphia systems to Comcast and Time Warner, analysts have said. Industry executives have said Martin may ask the firms to carry a family programming tier as a condition of approving the $17.6 billion cable deal (CD Nov 30 p1). But transaction reviews should be limited to the deal at hand, said Abernathy: “Mergers should be judged by the specifics of the merger.” If the intention is to change regulations, applying that change only to the merger parties “doesn’t really accomplish what you want to,” she said. If the FCC thinks the change important, then “start a rulemaking proceeding and apply it to everyone,” she said. As for Martin’s family tier concept, she said it’s “subjective,” as shows suitable for 7 year olds differ from those for 12 year olds.

The indecency debate makes it even more important to give parents better ways to search for kids’ shows, Abernathy said: “TV Guide is not enough,” nor are existing interactive program guides (IPGs). Abernathy said she wants to search TV shows not just by genre, as IPGs allow, but by content. “I don’t have a Google for TV,” she said. “What are the ways to navigate that space and direct me to what I want?”

“When I look at the number of programs actually found to be indecent versus how many good programs I can’t find, I almost think the bigger problem is I'm not getting bang for my buck,” Abernathy said. Cable operators know of the issue and working on solutions such as tailored remote controls, she said. “They are looking at possibly remotes just for kids.” “All of this debate has led us to a better appreciation of what we need to do to have media better utilized.”

Gemstar-TV Guide is testing search functions akin to what Abernathy wants. In the trial, some Comcast customers can search for keywords in program descriptions, titles and actor names, said Todd Walker, senior vp-TV Guide Interactive. Via onscreen keyboard, viewers can search VoD and traditional content, he said. The product may be sold in the 2nd half of next year, said Walker: “One of the biggest things that is driving demand for this product [is]… it’s just very hard to navigate [VoD] through traditional linear or tree type navigation.” In 2007, the company may start selling another product recommending shows by viewer age, using a traditional rating and another one from Gemstar-TV Guide. “It would be more of a family safe zone for parents to direct their kids,” said Walker: “It’s a way to help them define programs in a world where there are just so many titles that it’s hard to make decisions.”

Abernathy, seated amid moving boxes in her office, said she hasn’t had a chance to think about her next job. “It’s virtually impossible to do this job if you're thinking about what you're going to do next,” she said. Searching for a job offers too many opportunities for conflict of interest, she said: “I don’t know what I'll end up doing, and that’s okay. It’s the holidays. I'm going to decorate the house.” It won’t be long before she’s back in the workforce, she said: “I love working.”