The Smear Campaign Against FCC Nominee Gigi Sohn – A Letter To The Senate Commerce Committee

Preston Padden

Boulder Thinking, LLC

2389 Indian Peaks Trail

Lafayette, CO 80026

January 30, 2023

Senate Committee on Commerce, Science and Transportation

Russell Senate Office Building

Washington, D.C. 20510-0411

Via E-Mail to Committee Staff

Chair Cantwell, Ranking Member Cruz and Members of the Committee:

I respectfully request that this letter be included in the record of the hearing that will be held on the nomination of Gigi Sohn to be a Commissioner of the Federal Communications Commission.  Ms. Sohn’s politics are to the left of mine, but she is a superbly qualified and experienced nominee who should be confirmed as soon as possible.

I have the greatest respect for this Committee and its Members before whom I have testified many times as President of the ABC Television Network, a founding executive of the Fox Broadcasting Company and as the head of Government Relations for both News Corporation/Fox (Murdoch) and The Walt Disney Company.  I fear that this esteemed Committee, like Ms. Sohn, is in danger of falling victim to the worst, and most cynical and baseless smear campaign ever waged against a nominee to serve on the FCC.  Ms. Sohn’s only sin is that she roots for the underdog and for consumers.  As a result, some of the dominant Cable TV companies and Internet Service Providers have stooped to lows never before seen to smear Ms. Sohn.  They correctly fear that she would be a vote to require them to compete fairly and to respect consumers.

Ms. Sohn’s opponents have planted article after article alleging that she is against Native Americans, against Hispanics, against rural communities, against police and that she is connected with illicit sex workers.  It’s all rubbish!  A total of 375 organizations, companies, elected officials and local governments, including numerous Tribes, Hispanic organizations and public safety officials have voiced their support for Ms. Sohn’s nomination!

The press stories ginned up by Ms. Sohn’s opponents are beneath scurrilous and are beneath the dignity of this Committee.  For example, one Daily Mail online story (not a Murdoch publication) began with a picture of Ms. Sohn juxtaposed next to a salacious picture of a sex worker with whom Ms. Sohn has absolutely no connection.  This is “Tabloid Trash” at its worst, all brought to you, I believe, by agents of some of the country’s biggest Cable Companies and ISP’s.

I worked for Rupert Murdoch for seven years and secured for him waivers of FCC Rules that stood in the way of the launch of Fox Broadcasting Company – the long sought fourth free-over-the-air TV Network.  Recently Mr. Murdoch sent me a note that expressed misgivings about Ms. Sohn’s nomination.  I replied by reminding him (actually, he may never have known) that because Ms. Sohn fights for underdogs (which Fox certainly was in its early days), and because she saw the pro-consumer benefits of a fourth network, she was very helpful to our efforts to fend off fierce lobbying attacks from the three established networks and to secure the waivers that we needed.  And I advised him that Ms. Sohn’s interest in requiring dominant Cable and ISP “pipe” companies to play fairly could be helpful to a company like his that has important content assets, but no bottleneck “pipes”.  Mr. Murdoch responded that he stood corrected in his view of Ms. Sohn.

Respectfully Submitted,

Preston Padden

Boulder Thinking, LLC

2389 Indian Peaks Trail

Lafayette, CO 80026

202-329-4750

Ppadden@mac.com

Limitless Optimism For Persons Who Stutter – Avoidance Reduction Therapy

Book Review For The Journal of Fluency Disorders. Book: Every Waking Moment


Author: Christopher Anderson


Review Written By: Jennifer McGuire jenny.padden@gmail.com


In Every Waking Moment (EWM), intelligence analyst and PWS Chris Anderson recounts his stuttering experience over the span of almost four decades. The book is largely a series of chronological vignettes that succinctly depict key moments in Anderson’s journey from a prisoner of his own feelings and attitudes about stuttering to an empowered, confident communicator. The economy of Anderson’s words juxtaposed with the level of detail that he is able to depict provides some insight into his skills as an analyst at the highest levels of government. He has a knack for getting to the point and moving forward, all while managing to weave in illustrative details that cut right to the heart of his lived experiences. The result is a book that is both incisive and deeply affecting.
Anderson describes in granular detail that for much of his life, stuttering and its downstream effects impacted his thoughts, feelings, and behaviors every waking moment. He depicts the all-encompassing nature of contending with a nonstop firehose of mental gymnastics, emotional pain, and relational disruptions that stuttering–when intersecting with internalized stigma–entails. EWM recounts in visceral detail the ways in which the stuttering experience felt as though it would swallow Anderson whole, but it never reads as a bitter litany of complaints. The manner in which he conveys a raw account of the pain followed by an inspiring tale of healing allows him to shine a light on the many causes for optimism that exist for the stutterer, none of which hinge upon the mythical “recovery” narrative. Critically, EWM opens up a conversation around trauma and the stuttering experience. An increasing number of PWS are resonating with the idea that developmental stuttering can give rise to complex trauma. Anderson’s descriptions of freezing and leaving his body in the moment of stuttering, and his recounting of how frequent and compounding these experiences were gives vivid color to the conversation around the relationship between stuttering and trauma.
The childhood experiences that Anderson describes in the early pages of EWM will no doubt resonate with readers, especially PWS and parents of children who stutter. As a stutterer, I found that my brain ran two parallel film reels as I read about Anderson’s childhood. One reel depicted the visuals of his life as I read about his experiences, while the other reel played complimentary scenes from own childhood. In his signature crisp style, Anderson writes, “stuttering shaped much of my early development and took over who I became.” For me, those 13 words capture a behemoth web of painful memories, sensations and fears. In this way, recounting the particulars of Anderson’s childhood becomes a mere tool to convey the shared experience of many stutterers during their formative years. Underneath the specifics of Anderson’s childhood lies the mass of confusion, isolation, and shame that characterizes the childhood stuttering experience for many. I believe this firsthand account will be tremendously illuminating for parents, siblings, grandparents, and therapists of children who stutter.

Just as children who stutter contend with shared internal experiences as a result of their stutter intersecting with the world, family systems often play out in similar manners as well. Thus, not only did Anderson’s feelings of isolation and shame resonate with me, so did the dance that his family and speech therapists engaged in. A concerned mother advocating for her child, well-meaning SLPs drilling fluency techniques because that is what they had been taught to do; all of it hit home. What makes Anderson’s perspective so compelling is that he is able to hold two things true at once. He acknowledges that neither he nor those who loved him employed effective coping strategies, and at the same time, he expresses loving compassion toward his younger self and the loved ones and SLPs who unwittingly did more harm than good in their quest to help him. This duality is one of the most powerful elements of EWM. Anderson can describe what hasn’t worked for stutterers in the past and what still isn’t working in service of our healing, while also expressing empathy and compassion for those who misstep. Expressing empathy toward current norms is a much more effective way to lead change than criticizing and shaming the people and practices that do not serve us. The moment in which we live does not seem to prize this sort of nuance, but Anderson’s narrative exemplifies the power of allowing understanding and forgiveness to coexist with advocacy for change.
EWM progresses from Anderson’s childhood to his young adult years. In these pages, the reader encounters three themes that will feel intimately familiar to young adult stutterers. First, the paralyzing fear of not being a worthy partner and the accompanying choice to settle on–and cling to–a relationship that isn’t working. Second, crippling anxiety about being able to make it in the professional world and the accompanying terror of trying to cleave from one’s family of origin and become self-reliant. Third, contending with the societal stigma that is reflected back on stutterers by professors, career counselors, and potential employers.
What is so impressive about this phase of Anderson’s life is the relentlessness he exhibits in the face of these obstacles. Anderson’s ascent from college to professional life exemplifies a level of tenacity and perseverance that I could have only dreamt of. He identifies his “dream college” and a specific program within that institution. During an interview, the program director revealed his stigma-informed reservations about Anderson when he queried, “if Christopher can’t effectively communicate, how will he be able to meet the academic requirements?” Incredibly, Anderson agrees to matriculate on a conditional basis with the understanding that he will be reevaluated in a year. What bravery it took to willingly consent to being placed under a microscope when the aim of the intense scrutiny was to evaluate how much stuttering impacted his success as a student. It is during this time that he really starts to challenge the limiting beliefs that he and others have used to hold him back, a practice that continues to serve him to this day. For me, these pages read like a biography of an underdog athlete who has decided to excel and commits mind, body and soul to his goals despite a lack of faith from those around him. Cue “Eye of the Tiger” and play it on repeat.
These muscles that he built during his college years serve him well in the professional journey that follows. While still mired in self-stigma and grappling with many of the debilitating fears that plagued his childhood, Anderson now has a seed of perseverance that has taken root in his
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mind. This is no orchid seed that requires perfect conditions to grow; Anderson’s seed is more akin to that of a dandelion–a weed, really–that is destined to take hold and thrive despite the ravages of stuttering stigma that aim to choke it out before it can even sprout. By this point, Anderson has developed a regular practice of forward momentum that will not stop in the face of doubt. The fruits of this practice are jaw-dropping. After securing his dream job at the FBI, a young Anderson begins to regularly find himself called to give intelligence briefings to senior officials including none other than then Bureau Director James Comey. When Anderson struggled mightily during his initial introduction to Comey, the Director responded by maintaining eye contact, smiling calmly, and asking Anderson to sit next to him at the table. There is a growing conversation in stuttering circles about stuttering gain. If being invited to the most privileged seat at Comey’s table is not stuttering gain, then I don’t know what is.
Having established how he would respond to Anderson’s way of speaking, Director Comey’s treatment of Anderson remained consistent. Anderson explains, “when I briefed, he waited patiently again and asked questions that did not let me off the hook even though he recognized how difficult it was for me to speak.” This sentence prompted me to pause and take a few deep breaths. I wanted to let the underlying message permeate my body. Anderson and Director Comey’s interactions exemplify what a conversation with a stutterer looks like when both the PWS and communicative partner move past a reflexive bias toward fluency and focus instead on the many other elements of communication that fuel an exchange. Comey valued Anderson’s contributions because of the numerous attributes that Anderson brought to the table, including deep knowledge of his subject matter and diligent work ethic. For his part, Anderson leads the reader through a master class of how to put self-stigma in the backseat by his very choice to place himself in such high-feared, high-stakes situations. Anderson and Comey’s interactions provide compelling models of what de-stigmatized conversation can look like with a PWS.
With his professional life no longer being dragged down by self-stigma around stuttering, Anderson shifts his focus to personal goals. He had gained momentum in his practice of pushing through fear to achieve success at work, and it was time for him to deploy these skills in the service of finding his soulmate. He begins training to compete in an Ironman competition around the same time that he begins a new kind of stuttering therapy–avoidance reduction therapy for stuttering (ARTS). The tenets of ARTS dovetail nicely with his own growing instincts to push past his communication fears to achieve his goals. ARTS takes place in a group setting, so it also introduces him to a community of like-minded people. He meets stutterers of all ages who are unified by their shared desire to break the chains stuttering has on their psyches. For the first time in his life, he is in relationship with others who stutter, and moreover, they are all working toward stuttering with abandon.
This therapy accelerates his momentum, and he is ready to take a risk on love. As a reader, I smiled through the pages depicting him falling in love with his wife, Maria. Efforts to suppress stuttering often lead to disconnection and isolation, so it is particularly gratifying to read about Anderson’s success in pushing past these impulses to hide, choosing instead to embrace authentic connection with a human who excites him– mind, body and soul. Much like Anderson’s intentional avoidance of a happily-ever-after narrative around stuttering, he is
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deliberate in his description of married life. Like so many, the couple experiences fertility issues. In the face of these struggles, Anderson is able to paint a picture of how the strength and resilience that he has honed throughout his stuttering journey continues to serve him in all areas of life. He has a deep confidence in his and Maria’s ability to get through the painful and discouraging medical interventions and come out triumphant on the other side. And so it is that we come to the last developmental milestone depicted in EWM–Anderson becomes a father.
Despite the fact that Anderson has achieved personal and professional success by all standard measures, his journey is not complete. He has a deep reservoir of empathy for other PWS, parents of kids who stutter, and clinicians who want to help their clients in more authentic and effective ways. In many ways EWM is a love letter from Anderson to the stuttering community. Through the pages, he offers his story as a stepping stone, so that others might feel empowered to cross the terrifying waters of stigma and find their wholeness on the other side of that treacherous river. Indeed, having found a way to allow personal and professional success to live alongside his stutter, he hopes to inspire others that there is happiness and fulfillment to be found outside of the quest for fluency.
Still not convinced? Read the book. Anderson’s experiences as depicted in EWM lend credence to this lofty idea that success and stuttering do not need to be held in opposition to one another. After all, the broad strokes of Anderson’s present-day life represent the outcome that we dream about for our kids–and he stutters. For those who remain attracted to the safety presumed to lie within fluency, it is worthwhile to ask: Would Anderson have ended up (a) an FBI analyst with access to the senior most officials at the agency, (b) married to the woman of his dreams, and (c) a father, had he not run toward stuttering instead of away from it? EWM is a revolution because it writes a playbook for how to get there by breaking out of the old paradigm that prizes fluency. It is a stuttering-ever-after-story, not a happily-ever-after story, and thus provides “proof of concept” to the rumblings about a reimagining of stuttering and its treatment that have been stirring in the community for years.

What Comcast Is Doing To Gigi Sohn Is Wrong!

I am no virgin on the dark arts of lobbying.  But what Comcast is doing to Gigi Sohn – President Biden’s nominee to the FCC – is egregious.

I highly respect Comcast and it’s head lobbyist who is a former colleague and friend.  Comcast is a company with impeccable Democrat credentials.  It’s former Executive VP is President Biden’s Ambassador to Canada.  All of this makes Comcast’s extremely targeted campaign against President Biden’s FCC nominee harder to accept.

Politico reports that “Comcast retained Larry Puccio, who was Manchin’s top aide as governor of West Virginia and has remained close with the Swing vote senator”.   https://www.politico.com/newsletters/politico-influence/2022/01/10/former-manchin-chief-signs-2-799790 I am advised that, as of today,Senator Manchin is the only Democrat who has not yet committed to support Sohn’s confirmation.

One might think that Comcast just hired Puccio on general telecom issues.  But another Comcast lobbying hire let the cat out of the bag!   ArsTechnica reports that Comcast hired Kirk Adams of Consilium of Phoenix, AZ.   ArsTechnicia further reports that on Federal Lobbying Disclosure forms,  Adam’s clumsily listed  the purpose of his hiring as “FCC Nominations”. https://arstechnica.com/tech-policy/2022/01/comcast-trying-to-torpedo-biden-fcc-pick-gigi-sohn-advocacy-group-says/

One Democrat leaning company should not be able to block President Biden’s FCC nominee with micro- targeted lobbying hits.  Maybe Biden’s FCC nominee Sohn should call Biden’s Ambassador to Canada and ask for some “Biden family” help in breaking the confirmation logjam!

TRDaily – Padden Urges Senate to Confirm Sohn

Padden Urges Senate to Confirm Sohn

 

Former TV broadcast industry lobbyist Preston Padden urged the Senate today to confirm Gigi Sohn as an FCC Commissioner, calling her “one of the most prepared and experienced nominees in the history of the FCC.”

 

“Many of my friends who represent established companies and their trade associations are trying to throw sand in the gears of Ms. Sohn’s confirmation. These are good and honorable people just doing their job as I did for decades. But the question before the Committee is not whether established industry companies agree with Ms. Sohn’s views. The question is whether she is qualified. The answer to that is an unequivocal ‘yes,’” Mr. Padden said in a letter to Senate Commerce, Science, and Transportation Committee Chair Maria Cantwell (D., Wash.) and ranking member Roger Wicker (R., Miss.).

 

“Ms. Sohn is one of the most prepared and experienced nominees in the history of the FCC. I have worked with, and against, her for more than 30 years. She knows the issues in front of the FCC better than almost anyone I know,” Mr. Padden added. “Ms. Sohn has been a particularly effective advocate for competition and new market entrants.”

 

“I would like to mention two specific issues that have been raised regarding Ms. Sohn’s nomination—Net Neutrality and Locast. Personally, I oppose Net Neutrality. I think the absence of any harm since the rules were repealed demonstrates that those rules were not necessary. But a Democrat FCC majority is almost certain to reimpose those rules regardless of the name of the third Democrat Commissioner. Therefore, the issue of Net Neutrality is not relevant to Ms. Sohn’s confirmation. The real answer to Net Neutrality is for this Committee to lead the Congress in finding a compromise statutory solution that will end the ‘ping-pong’ between Democrat and Republication FCC’s,” Mr. Padden argued.

 

“Regarding Locast, I am a copyright hardliner who agrees with the plaintiffs in the Locast case. But these are legitimate questions of copyright law about which reasonable people can, and do, disagree. Locast was the first company to test the nonprofit exemption to copyright law,” Mr. Padden said. He added that years ago, “highly respected entertainment and Internet entrepreneur Barry Diller backed a company called Aereo that launched a for-profit business nearly identical to Locast that also tested the bounds of the law. The resulting copyright litigation went all the way to the Supreme Court. My point simply is that being associated with Locast no more disqualifies Ms. Sohn from being confirmed for the FCC than being associated with Aereo would disqualify Mr. Diller.”

 

The Senate Commerce Committee last week removed Ms. Sohn’s nomination from the agenda for an executive session in the wake of an announcement that Sen. Ben Ray Luján (D., N.M.) was hospitalized after a stroke. It scheduled a second hearing on the nomination for Wednesday (TR Daily, Feb. 2). —Paul Kirby, paul.kirby@wolterskluwer.com

Media Post: Former Fox Exec Backs Biden’s Nominee For FCC By Wendy Davis – Credit Media Post

Media Post: Former Fox Exec Backs Biden’s Nominee For FCC
By Wendy Davis

The Senate Commerce Committee should “overwhelmingly” vote to confirm net neutrality advocate Gigi Sohn to the Federal Communications Commission, former industry lobbyist Preston Padden told the Senate Commerce Committee on Monday.

“The question before the Committee is not whether established industry companies agree with Ms. Sohn’s views,” Padden said in a letter sent to the committee. “The question is whether she is qualified. The answer to that is an unequivocal ‘yes.’”

“I hope the Committee finds a way to produce an overwhelming bi-partisan vote for her confirmation,” Padden, a former senior executive and lobbyist for Fox and ABC, wrote.

He added that Sohn is “one of the most prepared and experienced nominees in the history of the FCC,” and “has been a particularly effective advocate for competition and new market entrants.”

Padden’s letter comes two days before the Senate Commerce Committee plans to hold an unusual second hearing on Sohn’s nomination.

The FCC is currently deadlocked with two Republicans and two Democrats. Until a third commissioner is appointed, the agency is unlikely to advance Chair Jessica Rosenworcel’s goal of restoring the Obama-era net neutrality rules, which prohibited broadband carriers from blocking or throttling traffic and from charging higher fees for prioritized delivery.

President Joe Biden first nominated Sohn to the agency last year, then re-nominated her last month, due to the Senate’s failure to vote on her confirmation.

Sohn, currently a distinguished fellow at the Georgetown Law Institute for Technology Law & Policy, previously served as counselor to former FCC Chair Tom Wheeler, who led the agency during President Obama’s second term. She also co-founded the advocacy group Public Knowledge in 2001.

Padden says in his letter to lawmakers that even though he opposes net neutrality, an FCC with a majority of Democrats “is almost certain to reimpose those rules regardless of the name of the third Democrat Commissioner.”

“Therefore,” he writes, “the issue of net neutrality is not relevant to Ms. Sohn’s confirmation.”

Some Republicans have voiced opposition to Sohn because she has publicly criticized Fox News.

On October 28, 2020, while the Senate was holding a hearing about Facebook’s content moderation policies, she tweeted: “For all my concerns about #Facebook, I believe that Fox News has had the most negative impact on our democracy. It’s state-sponsored propaganda, with few if any opposing viewpoints. Where’s the hearing about that?”

The Wall Street Journal, which called attention to that tweet, suggested that Sohn would attempt to censor conservative media outlets.

But some prominent conservatives including Brad Blakeman (formerly a member ex-President George W. Bush’s senior White House staff) support Sohn’s nomination.

“Even when other liberals wanted to shut down conservative voices, Gigi stood up for free speech,” Blakeman wrote recently in Newsmax.

Sohn also has faced questions about her role on the board of streaming service Locast — which shuttered last year after a federal judge ruled the company infringed broadcasters’ copyrights.

At her hearing in December, Sohn said she thought she thought the service benefited viewers as well as local broadcasters.

Locast, created by the nonprofit Sports Fans Coalition NY, captured over-the-air broadcast signals and streamed them to people within specific geographic areas.

“I thought it was a good thing … for local broadcasters. And local broadcasters didn’t sue. The networks sued,” she said in response to questions from Senator Roy Blunt (R-Missouri). “I also thought it was good for viewers.”

Padden told lawmakers that he is a “copyright hardliner” and agrees with the plaintiffs that sued Locast, but said the case raised “legitimate questions of copyright law about which reasonable people can, and do, disagree.”

He also noted that entrepreneur Barry Diller had backed Aereo, a streaming company that also lost a lawsuit brought by broadcasters.

“Being associated with Locast no more disqualifies Ms. Sohn from being confirmed for the FCC than being associated with Aereo would disqualify Mr. Diller,” Padden wrote.***

Confirm Gigi Sohn To FCC

February 7, 2022

The Honorable Maria Cantwell
Chairperson, Committee On Commerce, Science & Transportation United States Senate

The Honorable Roger Wicker
Ranking Member, Committee On Commerce, Science & Transportation United States Senate

Re: Nomination Of Gigi Sohn To The Federal Communications Commission

Gentlepersons:

I write in strong support of the nomination of Gigi Sohn to serve on the Federal Communications Commission. I respectfully request that this letter be entered into the record of the Commerce Committee’s February 9 hearing.

Presently retired, I held senior executive and advocacy positions at Disney/ABC and Newscorp/Murdoch. I have testified before the Commerce Committee many times (on one memorable occasion then Chairman McCain sent me crawling out of the room with my tail between my legs). Ranking Member Wicker’s request for this hearing and Chairperson Cantwell’s agreement with that request both are consistent with the long history of admirable bi-partisan comity on the committee.

Many of my friends who represent established companies and their trade associations are trying to throw sand in the gears of Ms. Sohn’s confirmation. These are good and honorable people just doing their job as I did for decades. But the question before the Committee is not whether established industry companies agree with Ms. Sohn’s views. The question is whether she is qualified. The answer to that is an unequivocal “yes”.

Ms. Sohn is one of the most prepared and experienced nominees in the history of the FCC. I have worked with, and against, her for more than 30 years. She knows the issues in front of the FCC better than almost anyone I know. Ms. Sohn has been a particularly effective advocate for competition and new market entrants. Even those sending unhelpful comments to the Committee acknowledge her expertise. For example, in his letter to the Committee my friend Michael Powell, CEO of NCTA, said, “She is a respected and accomplished public interest advocate”.

I would like to mention two specific issues that have been raised regarding Ms. Sohn’s nomination – Net Neutrality and Locast.

Personally, I oppose Net Neutrality. I think the absence of any harm since the rules were repealed demonstrates that those rules were not necessary. But a Democrat FCC majority is almost certain to reimpose those rules regardless of the name of the third Democrat Commissioner. Therefore, the issue of Net Neutrality is not relevant to Ms. Sohn’s confirmation. The real answer to Net Neutrality is for this Committee to lead the Congress in finding a compromise statutory solution that will end the “ping-pong” between Democrat and Republication FCC’s. But that is a longer conversation for another day.

Regarding Locast, I am a copyright hardliner who agrees with the plaintiffs in the Locast case. But these are legitimate questions of copyright law about which reasonable people can, and do, disagree. Locast was the first company to test the nonprofit exemption to copyright law. A few years ago, highly respected entertainment and Internet entrepreneur Barry Diller backed a company called Aereo that launched a for- profit business nearly identical to Locast that also tested the bounds of the law. The resulting copyright litigation went all the way to the Supreme Court. My point simply is that being associated with Locast no more disqualifies Ms. Sohn from being confirmed for the FCC than being associated with Aereo would disqualify Mr. Diller.

I do not have a vested commercial interest in this confirmation. I am someone who has battled Ms. Sohn at times and worked with her at other times. Hers is an important voice that belongs at the FCC. I hope the Committee finds a way to produce an overwhelming bi-partisan vote for her confirmation.

Very truly yours,

Preston Padden 202-329-4750 

Ppadden@mac.com

CC: All Members Of The Committee

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Trump Echoes Nixon in Targeting Twitter

WSJ – By Preston Padden………….

May 31, 2020 03:39 p.m. EDT

Pres­i­dent Trump signed an ex­ec­u­tive or­der Thurs­day that would have the Fed­eral Com­mu­ni­ca­tions Com­mis­sion judge de­ci­sions made by Twit­ter, Face­book and oth­ers to mod­er­ate speech. Un­der Mr. Trump’s or­der, the FCC could re­voke li­a­bil­ity pro­tec­tion if a so­cial-me­dia plat­form hasn’t acted “in good faith.” The or­der amounts to a con­tent re­view and is rem­i­nis­cent of past re­stric­tions on broad­cast net­works.

The Fair­ness Doc­trine, in­tro­duced in 1949, re­quired broad­cast­ers to air op­pos­ing views on is­sues of pub­lic in­ter­est. The FCC de­ter­mined whether broad­cast speech was fair to both po­lit­i­cal par­ties. In the 1980s, con­ser­v­a­tive FCC Chair­men Mark Fowler and Den­nis Patrick worked to re­peal the doc­trine, over­com-ing op­po­si­tion in both par­ties, and suc­ceeded in 1987.

White House staff, Mr. Fowler re­called in 2009, ar­gued to Pres­i­dent Rea­gan that “the only thing that re­ally pro­tects you from the sav­age-ness of the three net-works . . . is the Fair­ness Doc­trine, and Fowler is propos­ing to re­peal it.” But Messrs. Fowler and Patrick stood for prin­ci­ple, not pol­i-tics. In 1987 Mr. Patrick said, “We seek to ex­tend to the elec­tronic press the same First Amend­ment guar­an­tees that the print me­dia have en­joyed since our coun­try’s in­cep­tion.”

Pres­i­dent Nixon was ob­sessed with the net­works’ bias. In a 1972 White House memo, Nixon aide Pat Buchanan wrote: “Shall we ac­qui­esce for­ever in left-wing con­trol of com­mu­ni­ca­tions me­dia from which 50 per­cent to 70 per­cent of the Amer­i­can peo­ple de­rive their in­for­ma-tion and ideas about their na­tional gov­ern­ment? The in­ter­ests of this coun­try and the fur­ther­ance of the poli­cies and ideas in which we be­lieve de­mand that this mo­nopoly, this ide­o­log­i­cal car­tel, be bro­ken up.”

Nixon re­tal­i­ated against the net­works by sup­port­ing FCC rules to re­strict their air­time and own­er­ship of pro­gram­ming. He di­rected the Jus­tice De­part­ment to mir­ror the FCC rules, cre­at­ing a dou­ble layer of re­stric­tions.

Be­cause Nixon taped his White House con­ver­sa­tions, we don’t need to spec­u­late about his mo­tives. “Our gain is more im­por­tant than the eco­nomic gain,” he said in 1971, brush­ing aside the le­git­i­mate com­plaints of pro­gram pro­duc­ers. “Our game here is solely po­lit­i­cal. . . . As far as screw­ing [the net­works] is con­cerned, I’m very glad to do it.”

tIn Nixon’s rail­ing against the lib­eral bias of the net-works, one can al­most hear Mr. Trump rail­ing against so­cial-me­dia com­pa­nies. And the new ex­ec­u­tive or­der reads like the Buchanan memo. But what Nixon & Co. said be­hind closed doors, Mr. Trump says in pub­lic.

The bias was and is real. But the ques­tion is whether the First Amend­ment per­mits gov­ern­ment lead­ers to judge pri­vate speech that ir­ri­tates them. Mr. Trump’s de­fend­ers ar­gue that he is only con­di­tion-ing on­line plat­forms’ “unique” pro­tec­tions. But most me­dia en­joy some unique pro­tec­tion: copy­right li­censes for ca­ble sys­tems, “must carry” rights for broad­cast sta­tions. Con­di-tion­ing key pro­tec­tions on com­pli­ance with a gov­ern­ment con­tent re­view would be cen­sor­ship by a dif­fer­ent name.

Mr. Pad­den is a com­mu­ni­ca-tions con­sul­tant who held ex­ec­u­tive po­si­tions at the Fox and ABC broad­cast net­works.    

The Perversity of the FCC’s Ownership Limits

For decades, rules meant to promote diversity stood in the way of a fourth major television network.


By Preston Padden
November 13, 2017 06:19 p.m. EST


The FCC is re­con­sid­er­ing some of its rules on the own­er­ship of TV sta­tions. These reg­u­la­tions date back to a by­gone era of scarcity—pre­dat­ing ca­ble tele­vi­sion, the in­ter­net, video down­loads, stream­ing, so­cial me­dia and other in­no­va­tions that give con­sumers an ar­ray of com­pet­i­tive op­tions.
I have friends who be­lieve that the pub­lic in­ter­est re­quires the FCC to keep its TV own­er­ship rules. But my per­sonal ex­pe­ri­ence in the in­dus­try for over 40 years has shown me that TV own­er­ship lim­its in­tended to en­hance di­ver­sity of­ten sti­fle com­pe­ti-tion and in­hibit in­no­va­tion and growth in the in­dus­try.
My first job, in 1973, was at Metro­me­dia Inc., a com­pany that had emerged out of the ashes of the Du­Mont Tele­vi-sion Net­work. In the late 1940s, tele­vi­sion pi­o­neer Allen Du­Mont warned the FCC that it must as­sign at least four VHF sta­tions to each ma­jor mar­ket to en­sure the sur­vival of the four tele­vi­sion net­works. The FCC ig­nored his ad­vice and proved Du­Mont right—his net­work folded, leav­ing the na­tion for decades with only three com­mer­cial TV net-works. Read­ing this his­tory was my first les­son in how well-mean­ing FCC rules can have un­in­tended con­se­quences for com­pe­ti­tion and di­ver­sity.
As the Du­Mont Net­work was go­ing out of busi­ness, it spun off to share­hold­ers the TV sta­tions it owned in New York and in Wash­ing­ton. Busi­ness-man John Kluge ac­quired de facto con­trol of the new com­pany and named it Metro­me-dia. Kluge strug­gled to cre­ate a fourth net­work. He ag­gres­sively sought to ex­pand Metro­me­dia’s port­fo­lio of owned tele­vi­sion sta­tions—the in­dis­pens­able foun­da­tion of any net­work. But his ef­forts were thwarted by the FCC’s own rules lim­it­ing own­er-ship. One par­tic­u­larly prom­inent ob­sta­cle was the FCC’s “top 50” pol­icy, which re­quired a “com-pelling pub­lic in­ter­est show­ing” to own more than three sta­tions, or more than two VHF sta­tions, any­where in the top 50 mar­kets. Of course, the three en­trenched net­works owned more than that, but they were grand­fa­thered in.
The first decade of my life in the in­dus­try was con­sumed draft­ing and ad­vo­cat­ing for waivers of the FCC’s TV sta­tion own­er­ship lim­its and its top 50 pol­icy to ad­vance Metro­me­dia’s quest for a fourth net­work. De­spite spend­ing mil­lions of dol­lars on in­no­v­a­tive pro­gram-ming, Metro­me­dia could not over­come the hand­i­cap im­posed by the FCC’s TV sta­tion own­er­ship rules. Kluge failed to ful­fill his ob­jec­tive—and the FCC’s—of cre­at­ing a fourth net­work.
So in 1985, Kluge sold his TV sta­tions to Ru­pert Mur­doch, who also ac­quired the then-bank­rupt 20th Cen­tury Fox film stu­dio. To­gether with Barry Diller and Jamie Kell­ner, Mr. Mur­doch set out to cre­ate the long-sought fourth net­work. Again, FCC rules got in the way. On be­half of Fox, it fell to me to seek waivers of sta­tion own­er­ship lim­its and other rules in­tended to pro­mote di­ver­sity, such as the ban on cross-own­er­ship of news­pa­pers and the Fi­nan­cial In­ter­est and Syn­di­ca­tion Rules. The ef­fort to cre­ate mean­ing­ful di­ver­sity re­quired the FCC to waive its rules that were in­tended to cre­ate di­ver­sity. (Mr. Mur­doch is ex­ec­u­tive chair­man of News Corp, which pub­lishes this news­pa­per.)
Be­cause the ben­e­fits of grant­ing the Fox waiver re­quests were so ob­vi­ous, even sup­port­ers of TV own­er­ship reg­u­la­tion such as Sen. Ted Kennedy (D., Mass.), Gov. Mario Cuomo (D., N.Y.) and Sen. Dan In­ouye (D., Hawaii) sup­ported our waiver re-quests. Fox even­tu­ally suc-ceeded in be­com­ing the fourth ma­jor com­mer­cial net­work. But it is per­verse to keep in place rules in­tended to pro-mote com­pe­ti­tion and di­ver-sity if they have to be waived in or­der to achieve that ob­jec­tive.
I of­fer this his­tory be­cause I lived it. On many oc­ca­sions I thought: Why can’t the FCC see that these sta­tion-own­er­ship re­stric­tions are pre­vent­ing the cre­ation of mean­ing­ful en­ti­ties of scale that could bring to view­ers the ben­e­fits of greater com­pe­ti­tion and di­ver­sity? In to­day’s world—with hun­dreds of ca­ble and satel­lite net­works, the in­ter­net and myr­iad au­dio, video and other con­tent providers—that ques­tion is more com­pelling than ever. And at a time of es­ca­lat­ing TV costs and cord-cut­ting, en­abling the cre­ation of ad­di­tional free over-the-air pro­gram­ming would be a great pub­lic ser­vice.
Some op­pose re­peal of the TV sta­tion own­er­ship rules be­cause one ben­e­fi­ciary of re­peal might be Sin­clair Broad­cast­ing Co., which has con­ser­v­a­tive views. Those crit­ics would be the first to in­sist that fed­eral li­cens­ing de­ci­sions can­not—must not—be based on po­lit­i­cal views. And for all we know, the next ben­e­fi­ciary of dereg­u­la­tion could have lib­eral views. That is what free mar­kets, com­pe­ti-tion and di­ver­sity are all about. My ex­pe­ri­ence with the tele­vi­sion own­er­ship rules leaves no doubt that con-sumers will be well served by their re­peal.


Mr. Pad­den is a con­sul­tant and for­mer me­dia ex­ec­u­tive. This ar­ti­cle is adapted from an Aug. 28 blog post for Broad-cast­ing & Ca­ble. “

Consistent With A Long Line Of FCC Precedent, The C-Band Carriers Should Receive 100% Of The Proceeds From The Sale Of Their Spectrum Usage Rights

These are my views and do not implicate any former or current employer or client.  In particular, this blog has not been approved by CBA.  Rather the views below reflect my personal outrage that the government is changing the rules just because so many chose to “pile on” in the C-Band proceeding.

 Some have argued that the C-Band Satellite Carriers should not be allowed  to receive 100% of the proceeds of an FCC sale of a portion of their spectrum usage rights because they received their spectrum for free.  In the case of SES and Intelsat, this argument is factually incorrect.  And regarding all C-Band licensees, this argument is contrary to the history of secondary market sales of FCC authorized spectrum usage rights and 60 years of evolving Coasean theory of spectrum allocation.  Other than “bad actors”, all FCC licensees who sold their spectrum usage rights in secondary market sales have received 100% of the proceeds – not 10%, not 50% – 100%.

For decades the Federal Communications Commission awarded usage rights to bare spectrum (an ephemeral “asset” of no value to the public without massive investments in related infrastructure) for FREE.  If there was only one applicant for a specific spectrum band, she/he got it and paid nothing to the government.  If there were multiple applicants, the usage rights were divided among the applicants or awarded to one applicant based on comparative hearings or lotteries – but in any event, the party awarded the spectrum usage rights paid nothing to the government.

For example, America’s great over-the-air broadcast system was built this way by risk-taking visionaries.  The spectrum usage rights for every Radio and TV station in America were granted for FREE without payment to the government.  These private sector risk takers invested vast sums in transmitters, towers, personnel and programming to make the spectrum useful to the public. Later, as stations were bought and sold – with the spectrum usage rights being the most valuable asset transferred – 100% of the proceeds went to the seller, not to the government.  That continues to be the case for every broadcast station in America today – including transactions approved by the FCC as recently as a few weeks ago.  Broadcast spectrum sellers who paid nothing to the government receive 100% of the proceeds when they sell.

The same is true regarding early wireless spectrum usage rights.  In the early 1980’s the FCC granted the first cell phone usage rights in the 30 largest U.S. cities.  Two licenses were granted in each city – one to the local wireline telephone company for FREE and the second to another applicant, also for free.  Through a comparative hearing victory in Chicago and lottery outcomes in other big cities, my first employer, Metromedia, was granted a number of these non-wireline phone company licenses – paying nothing to the government.  I know because I filed the applications.  Metromedia’s principal, John Kluge, invested vast sums to build out the cellular systems for which demand at the time was thoroughly uncertain.  His risk-taking was rewarded when Metromedia sold those systems – including most importantly the spectrum usage rights– for $Billions to Southwestern Bell (now AT&T which uses those spectrum usage rights to this day).  Metromedia received 100% of the proceeds of that sale.

Eventually the FCC changed its policy and began to auction NEW wireless spectrum usage rights instead of giving them away for free.  But, except for “Bad Actors”, existing wireless spectrum usage rights holders (both those who initially received the rights for free and those who purchased the rights in private market transactions) universally were permitted to sell those rights and retain 100% of the proceeds. That continues to be the case today.  For example, when America’s Cable TV Companies sold their wireless spectrum to Verizon, they kept 100% of the proceeds.  When XO Communications sold their spectrum to Verizon, they kept 100% of the proceeds.

Which brings me to the current debate over the so-called C-Band spectrum.  Initially these spectrum usage rights were granted, for free, to companies such as GE Americom, Loral and PanAmSat that  invested vast sums to build satellite distribution systems primarily for radio and television programming.  In 2001 Intelsat paid $1 billion for Loral’s C-Band facilities and in 2006 Intelsat paid $3.2 billion (plus the assumption of over $3 Billion of debt) for PanAmSat’s C-Band assets – including in each case the spectrum usage rights.  SES paid $5 billion when it bought GE Americom’s C-Band business – including the spectrum usage rights – in 2001.  All of these private market sales of spectrum usage rights were approved by the FCC.  The sellers who had received their spectrum from the government for free received 100% of the sale proceeds.

Some have argued that the sale of a portion of the C-Band is different because the buyers of the spectrum would be using it for a purpose – wireless – that is different from the use for which it was originally licensed – satellite communications.  But, sound spectrum policy should encourage all spectrum holders – private and Federal – to be willing give up some of their spectrum for a use of higher value to society.  Therefore there is even more reason why the C-Band sellers should receive 100% of the proceeds.

The wireless industry has coveted the C-Band spectrum for years because it represents a “Goldilocks” balance between low band spectrum (great for distance) and high band spectrum (great for capacity).  Reallocating at least some of the C-Band for wireless is the key to keeping America competitive with China in the “Race To 5G”.

After years of fighting any reallocation, the C-Band satellite carriers have stepped forward with a voluntary plan to sell off 60% of their private spectrum usage rights – rights for which they paid $Billions and in which they have invested vast additional sums.  The response from commercial vested interests and other critics has been in the worst tradition of the Washington, D.C.  Despite the long tradition of private market sales of spectrum usage rights, the critics scream “four foreign companies want to sell spectrum that belongs to U.S. taxpayers”.  It is a great sound bite, but does not begin to fully and fairly inform the listener.

The “foreign operators” have made billions of dollars of contributions to the U.S. economy and treasury by employing over 1,500 U.S. staff, have bought dozens of satellites and launches from U.S suppliers and continue to provide mission critical services to the U.S. DoD and civilian agencies and U.S. media and telecom companies.  Over 70% of Intelsat shareholding is U.S. based.  And, the “National Treatment” clauses in all U.S. trade deals require each country to treat foreign nationals (including companies) the same as they treat their own citizens.

There are many public policy reasons to permit the C-Band carriers to receive 100% of the proceeds when their usage rights are sold – like all other spectrum usage rights holders have done.  First, the active cooperation of the C-Band carriers will enable the FCC to conduct the sale in 2020 – immediately sending the buyers to place equipment orders to keep pace with China.  Second, the value to the economy of getting 5G deployed quickly dwarfs the value of any U.S. Treasury proceeds from a government sale.  And, the sale of C-Band spectrum will serve as an incentive for other spectrum use rights holders to step forward and allow their spectrum to move to its highest and best use for American consumers.

The Coasean history is clear:  (1) radio and TV stations who sold their spectrum in secondary market transactions (whether they were the initial free recipient of the spectrum or bought that spectrum in FCC approved secondary market transactions) received 100% of the proceeds; (2) wireless companies who sold their spectrum in secondary market transactions received 100% of the proceeds; (3) companies like XO, originally licensed for services other than mobile wireless who sold their spectrum for mobile wireless and were not “bad actors” received 100% of the proceeds.

So the question posed is, if the FCC wishes to be consistent with a long, long line of Coasean precedent and wishes to encourage both private and government parties with spectrum usage rights to allow their spectrum to move to its highest and best use for our society, how in the world would the FCC justify allowing the C-Band carriers to receive less than 100% of the proceeds from the sale of their spectrum usage rights as all other sellers have received?  Why are the rules changing just for C-Band?

With not just China but other major players, including Japan and South Korea poised to overtake the significant early investments of the United States and lead the way on 5G, mid-band spectrum remains the elusive input U.S. carriers need to keep apace with Asia.  It is a dangerous time for the FCC to abandon history, precedents, and its principles that encourage investment, risk taking and facilitating the transfer of licenses for higher uses.

Renewal Expectancy In FCC Licenses

The views expressed here are mine and do not implicate current or former employers or clients.

Hundreds of Billions of Dollars have been invested in, and loaned to, commercial enterprises that operate pursuant to FCC spectrum licenses.  These include radio and TV stations, wireless carriers, satellite carriers and others.  It would come as quite a shock to these enterprises, and to their investors and lenders, to learn that, as some recently have asserted, the spectrum usage rights upon which their businesses depend are merely “a 30 day month-to-month lease” that can be yanked back at anytime by the FCC.  Fortunately for consumers and for our economy, that is not the case!

It is true that the Communications Act provides that licensees shall enjoy the use of, but not the ownership of, their licensed spectrum.  But as often is the case, recitation of this simple fact is the beginning, not the end, of the story.  Provisions of the Communications Act, FCC Regulations and FCC case law make crystal clear that absent bad conduct, FCC licensees are entitled to the legitimate expectation that their licenses will be renewed.  FCC licenses are not 30 day month-to-month leases.

For example, Section 309 (k)(1) of the Communications Act states that the FCC is required to grant a broadcast station’s application to renew its 8 year license if (A) the station has served the public interest convenience and necessity; and (B) the licensee has committed “no serious violations” of the Communications Act or FCC rules, or (C) no other violations that “taken together, would constitute a pattern of abuse”.  That is not a month-to-month lease.

Similarly, 47 CFR 1.949 specifies that wireless licenses shall be renewed if the licensee has met its build-out requirements by the deadline, continued service, and certified compliance with all FCC rules and policies and the Communications Act.

And, in a policy statement (In The Matter Of Assignment Of Orbital Locations To Space Stations In The Domestic Fixed Satellite Service, 3 FCC Rcd. 6972, n.31 (1988)) the FCC made it clear that satellite licensees also enjoy renewal expectancy (“given the capital-intensive nature of the domestic satellite industry, there should be some assurance that operators will be able to continue to serve their customers”).

The statutory, regulatory and case law provisions described above just scratch the surface of the very substantial legal and equitable rights of FCC licensees.  For example, Section 316 of the Communications Act, and case law under that section, severly restrict the FCC’s ability to modify or take back licenses.

The renewal expectancy afforded to all FCC licensees (except “bad actors”) is just common sense.  The essential services that the broadcast, wireless and satellite FCC licensees provide to consumers require substantial equity investment and debt financing.  That critical financial support would evaporate if, as some have asserted, the spectrum usage rights upon which these businesses depend could be yanked back by the FCC on 30 days notice.  In short, simply incanting the soundbite that “the airwaves belong to the public” does not begin to tell the whole story.