by Joseph Miller, Esq
The FCC’s media ownership rules have never resulted in commercial programming that fully reflects local communities. Local newscasts make up only a small portion of local radio and television broadcast schedules. The vast majority of other programming is national, network programming and syndicated shows. While radio stations have more of a “local feel” than television, their most popular news programming is often syndicated, and music formats are programmed based on national sales of music recordings.
Public media is critical to filling the void left by commercial broadcasters. But several structural changes have threatened the ability of public media to thrive and provide local content.
Newark, New Jersey’s WBGO 88.3FM “Jazz 88” is a prime example both of public media done well and what we stand to lose if public broadcasting is not preserved. Founded in 1979, WBGO was New Jersey’s first public radio station. While WBGO is based in the predominantly African-American city of Newark, it can be heard in all five New York City boroughs, north of the city in Rockland and Westchester Counties, Long Island, and parts of Connecticut. The station now streams its broadcasts on the Internet and boasts membership from listeners around the world. Despite its far flung reach, WBGO has never lost sight of its mission to provide programming aimed at residents of the City of Newark.
But WBGO has also moved its antennae transmitter to Manhattan. Some are worried the move will result in less Newark-specific programming. This is not inconceivable. The precipitous decline in the mainstream popularity in jazz (see the latest Recording Industry Association of America data here) and resulting listening attrition could pressure WBGO to seek to widen its audience base by increasing its New York-specific content. But this hasn’t happened – yet.
Meanwhile, the state of New Jersey has decided to exit the public broadcasting business altogether. Earlier this year, New Jersey Governor Chris Christie signed off on a deal to transfer the operations of the New Jersey Public Television Network to New York’s WNET. New York Public Radio has also acquired four of New Jersey’s state-owned radio licenses. Philadelphia’s WHYY has acquired another five of those licenses. Some advocates have fought to ensure the new owners will continue to program these properties with local, New Jersey content. WNET is contractually required to program New Jersey Public Television and Radio (“NJN”) with New Jersey-based content. But the term of the deal is only five years. What happens after those five years have expired is anyone’s guess, and the fates of the radio properties now owned by entities in New York and Philadelphia remain uncertain.
Congress has also sought to end public broadcasting. Last year, Republican legislators pushed two bills to defund National Public Radio (NPR) and the Corporation for Public Broadcasting (CPB). The bills failed after significant public outcry, but the effort brought public broadcasting to a precipice, and there is no reason to conclude that Congress will pass up the next opportunity to defund public broadcasting.
The incentives for public media and those of commercial media are quite different. Media companies must program their stations in a way that generates profits, and with advertising dollars moving farther away from traditional, broadcast-only media outlets, especially radio, and toward multi-platform brands that engage across different platforms, one can expect less localism from the private sector – not more. Public broadcasting doesn’t have those same kinds of constraints because their mandate is to fill the void left by commercial media in exchange for tax incentives.
Mass appeal formatting is a no-brainer for large media companies—it is easy to produce and control. Reinforcing this is the fact that our public institutions–courts–have deemed mass-appeal approaches to be most consistent with what the Founders envisioned.
In Lutheran Church Missouri-Synod v. FCC, Judge Silberman, writing for the DC Circuit Court of Appeals, struck down the FCC’s Equal Employment Opportunity rules, reasoning that even considering racially based differences among station owners is antithetical to the Constitution and to democracy. In her famous dissent in Metro Broadcasting v. FCC, Justice O’Connor questioned whether diverse media ownership correlates with diverse programming. Justice O’Connor reasoned that broadcasters, irrespective of their race, would respond to what the market dictates. But the commercial market dictates mass appeal content.
Meanwhile, commercial media has become less local not more. If we lose public broadcasting, we will lose an important source of local content that is unconstrained by the need to be mass appeal.