As head of the FCC, alumnus Kevin Martin has tackled issues as controversial as when to allow dirty words on television and how much to rein in cable companies. But even though he has embraced Republican orthodoxy when it comes to indecency and media consolidation, FCC watchers have been fascinated by the frequency with which he bucks his own party.
Originally published, without the expletives, in Duke Magazine.
IF KEVIN MARTIN, CHAIR of the Federal Communications Commission (FCC), was worried that the citizens of the Pacific Northwest were going to storm the podium where he was standing, his face never betrayed it.
It was November 2007. The FCC was holding the last of six hearings, in Seattle, about whether to loosen restrictions on media consolidation, established during the Gerald Ford administration. Martin, a Republican, wanted to make it easier for a single company to own both a daily newspaper and a TV or radio station in the same market. “Cross-ownership,” he believed, would boost the revenues of dying newspapers while acknowledging that consumers today have numerous options for learning about current events.
This is not a popular position. Politicians from both parties—along with media watchdogs, the public, and the two Democrats on the five-member FCC—insist there’s already too much consolidation. The ownership of newspapers and broadcast stations by out-of-town conglomerates, they say, has led to thinner news coverage, less access for local artists, and fewer opportunities for female and minority ownership. “American distrust of the concentration of power is as old as our nation itself,” Democratic commissioner Jonathan Adelstein said at one meeting.
What’s more, during Congressional hearings at the time, Senator Byron Dorgan (D-N.D.) and then-Senator Trent Lott (R-Miss.) were accusing Martin of rushing the consolidation vote. So were advocacy groups that oppose media mergers. The public’s anger came to a head at the Seattle hearing, which was called by the FCC on only a week’s notice but nonetheless attracted hundreds of people from Washington, Oregon, Idaho, and Montana.
“You’re asking, why the rush, and why no notice?” Martin said to the audience, his voice carefully modulated. “Throughout the process, I’ve been as transparent as I could be.” The room erupted in boos.
“Sit down!” one woman shouted.
“No, I’m not quite done,” Martin said quietly, holding up a hand to shush the crowd. “I’ll sit down in a second, and you’ll have your chance tonight.”
Then he did sit down—and for more than nine hours, listened as speaker after speaker pleaded with the commissioners not to relax the ownership restrictions. “I’m a Republican, and I’m a capitalist, but some areas of a private sector must be regulated,” testified King County Councilmember Reagan Dunn. “Why would we want to implement policies that could limit the diversity of our media?”
Adelstein, the Democratic commissioner, warned the audience that the meeting might ultimately prove a charade. “If you see a proposal for more consolidation made quickly after this final hearing,” he said, “you’ll know your input was dismissed.”
Indeed, the next business day, Martin rolled out his proposal allowing newspaper companies in the twenty largest markets to buy broadcast stations in those same locales, as long as they meet certain conditions. Newspapers in smaller cities could do the same if they could prove the public would benefit.
“It’s no secret the newspaper industry is struggling,” Martin explains today, noting that Americans are turning to the Internet and cable TV for their information. He says he believes the 1975 cross-ownership ban has become archaic in this new media environment, and he calls his own solution “a very modest step forward to try to find the right balance allowing for some relief but still protecting the diversity of information.” Martin’s measure passed 3 to 2 along party lines.
Democrats steamed. “Today’s decision would make George Orwell proud,” said commissioner Michael Copps. “We claim to be giving the news industry a shot in the arm, but the real effect is to reduce total news gathering.” Critics wondered if Martin had even listened to his opponents. “When it got down to the end, he aggressively rammed through his final solution,” says Andrew Jay Schwartzman, president of the Media Access Project, a public-interest law firm. The rule is now tied up in court.
It wasn’t the first time the forty-two-year-old Martin would face harsh words. During his seven years as a commissioner, including almost four as chair, he’s tackled issues as controversial as when to allow expletives on broadcast television and how much to rein in cable companies. He’s made no permanent allies: Sometimes he’s a free marketer; other times, a regulator. He has formed 3 to 2 voting blocs with members of both parties.
He has been investigated by the House Committee on Energy and Commerce, whose Democratic staff concluded in December that “important Commission matters have not been handled in an open and transparent manner.” Martin insists the FCC under his leadership, which will end when incoming President Barack Obama names a successor, has been more inclusive, and more deliberative, than duty requires.
“I’ve been yelled at by Republican and Democratic congressmen alike,” Martin says. It’s hard to listen to such pointed criticism, he acknowledges. “But what I think is important, when you’re in a position like this, is that you try to make a policy decision based upon the facts.”
MARTIN WAS NOMINATED TO the FCC by President George W. Bush in 2001. By then, his boyish face—which inevitably evokes comparisons to Harry Potter—was well-known in the White House.
A native of Waxhaw, North Carolina, Martin had gotten his political start early-winning the student-body presidency at the University of North Carolina at Chapel Hill on such bread-and-butter issues as parking. After earning a master’s degree at Duke’s Terry Sanford Institute of Public Policy in 1993 and then a law degree at Harvard University, Martin clerked for a federal judge in Miami before heading to Washington. There he found work as a telecommunications lawyer, first with a corporate law firm and later as an FCC staffer. It was a time of sweeping changes in the communications world: Not only were cell phones and the Internet taking off, but in 1996, Congress passed its first overhaul of federal telecom law in more than six decades.
Martin took a leave in 2000 to campaign for Bush, with whom he found common ground on some key economic principles. “In general, competition in the marketplace is the means of delivering lower prices for consumers and driving innovation,” he says. “That’s not the same thing as a complete libertarian approach. I believe that government does have a role to play, a critical role, in making sure the rules of the road are set up so that you can have fair competition.” Martin believed that Bush’s “compassionate conservatism” echoed his own belief in a hands-on government. At Duke, Martin had written his master’s thesis on high-stakes educational testing, which both he and Bush support. Martin appreciated how, as Texas governor, Bush favored “setting high standards, but then providing resources to schools so they could meet those standards.”
After the election, with its butterfly-ballot debacle, Martin joined the battery of Republican lawyers dispatched to Florida to help claim the state’s twenty-five electoral votes. Then, with Bush’s victory secure, he spent six months helping the new administration form its technology policy.
Martin came to the FCC hoping to expand Americans’ electronic access. “We have a long tradition of making sure that everyone’s connected and able to take advantage of the communications network,” he says. “How do we bring that network into the twenty-first century, so that we’re not talking about voice-grade connections but broadband connections?”
Some of Martin’s initiatives in this area have received little attention. For example, when the nation’s television stations move from analog to digital broadcasting in February, they’ll leave behind an empty band of airwaves called the 700-megahertz spectrum. In 2008, the FCC auctioned off chunks of the spectrum to wireless companies, bringing in almost $20 billion for the U.S. treasury. The 700-megahertz spectrum is considered prime property: Signals at those frequencies travel long distances, easily penetrating walls and tree canopies. “These airwaves are going to be the building blocks for companies to create the next generation of wireless broadband services,” Martin says.
In an unprecedented move, Martin insisted that one block of the spectrum be sold with two restrictions. First, the winning bidders (the biggest of which was Verizon) must allow their customers to use the handsets of their choosing. “Right now, it’s difficult for consumers to switch from one provider to another, because there’s a requirement that you buy a new phone,” says Leslie Marx, an associate professor of economics at Duke’s Fuqua School of Business and the FCC’s chief economist from 2005 to 2006. “The idea was that this restriction would help reduce switching costs and promote a more competitive market.”
Second, clients must be allowed to use whatever software applications they want. For example, Verizon must let customers use Skype to make cheap international calls.
Martin’s open-access requirement drew sharp criticism from Republican commissioner Robert McDowell. Though Martin and McDowell hail from the same party—and the same alma mater—the two have clashed on some key issues involving business regulation. McDowell, a former telecommunications lobbyist, often advocates for a more hands-off approach from the government.
In the case of the spectrum, McDowell says, the free market was already moving in the right direction. “For a couple of years, the industry had been sinking a lot of money into research and development of how to have more open devices,” he says. “My concern was, Let’s be careful of the unintended consequences of a mandate like this.” McDowell feels vindicated, he says, by what happened in the auction: The smaller, less regulated parts of the spectrum became so attractive to large carriers that “a lot of smaller companies were driven out.”
Nonetheless, Martin says he’s pleased with the results. Since the auction, he says, companies other than Verizon have moved aggressively toward open access—in part, he believes, because of the FCC’s lead. “Before we put that rule in place, the wireless industry was opposed,” he says. “They actually used to say it was technologically impossible. Now they’ve changed course.”
MARTIN HAS RECEIVED CONSIDERABLY more attention for his campaign to rid the airwaves of what the law calls indecency. Under his leadership, the FCC has taken its toughest stance ever against suggestive images and four-letter words. A father himself, Martin says he worries not just about sex and profanity on television, but also about violence and junk-food advertising, over which the FCC has less control. His own sons, three-year-old Luke and one-and-a-half-year-old Will, watch little television. Instead, Martin and his wife, former White House aide Catherine Martin, carefully choose DVDs from the library, along with video-on-demand programming. They’re partial to Disney classics and children’s shows on PBS.
Characteristically, Martin discusses the indecency issue cerebrally—without the rhetorical fire of many like-minded crusaders. “The media can have a real impact on children,” he says. “Now, parents certainly are the first line of defense. But I think that you’ve got to give them additional help in today’s media environment.” This position has made Martin a hero to social conservatives. “The broadcasters have declared war,” says Phil Burress, an anti-pornography and anti-gay-marriage activist who heads the Ohio-based Citizens for Community Values. “Kevin Martin is the general on the side of the parents.”
The commission’s most famous case, initiated before Martin took the gavel, involved the “wardrobe malfunction” that exposed Janet Jackson’s right breast for nine-sixteenths of a second during the 2004 Super Bowl halftime show. After Martin became chair, the FCC approved a $550,000 fine against CBS, noting that the live broadcast contained songs with erotic lyrics and a “highly sexualized performance” by Jackson and Justin Timberlake. Last July, a federal court in Philadelphia vacated the penalty, sending the matter back to the FCC. In November, the commission appealed the ruling to the U.S. Supreme Court, which has yet to grant or deny a hearing.
The Janet Jackson case was emblematic of Martin’s get-tough stance—not just on sexual images but also on verbal indecency. With his encouragement, the FCC strengthened its position against fleeting, unscripted expletives, and turned its sights on acclaimed TV shows like NYPD Blue. (Though the police show went off the air in 2005, the agency takes years to resolve indecency complaints.)
Before Martin became chair, the commission acted with restraint, focusing mostly on shock radio, says a legal brief filed by seven former FCC officials, including Reagan-era chair Mark Fowler and Kennedy-era chair Newton Minow. Now, they write, the agency “has embarked on an enforcement program that has all the earmarks of a Victorian crusade.” In one case, the agency proposed a $15,000 fine against a San Mateo, California, television station for airing the PBS documentary The Blues: Godfathers and Sons, which explores the relationship between traditional bluesmen and modern-day hip-hop artists. Several of the musicians, along with a former record producer, swear during the documentary. A song title depicting a sexual act also flashes on the screen. The final resolution of the case is still pending.
Martin says the problem is not just what is broadcast, but also when. Stations have more leeway to air racy material after 10 p.m., when children are presumed to be asleep. “It’s not that things that are targeted towards adults can’t be still explored,” he says. “They just need to be shown during later hours.” In the case of The Blues, Martin says the California station erred by broadcasting the documentary before 10 p.m. without issuing a language warning.
Still, critics say Martin has gone too far. “I don’t think he quite respects where government is interfering with freedom of speech,” says former FCC attorney Barbara Esbin, a senior fellow at the libertarian-leaning Progress & Freedom Foundation. “You just scratch your head and cannot believe this content is being the subject of fines.”
Fowler and Minow, in their brief, worry that Martin’s indecency campaign “will chill the production of all but the blandest” programming. There’s evidence this is happening already. A Vermont public radio station refused to carry a Senate debate because one candidate had a history of cursing in public. Some stations aired a sanitized version of Ken Burns’ World War II documentary, The War. Colorado’s public television network pulled a documentary about Marie Antoinette that contained 200-year-old pencil drawings of the queen in flagrante delicto.
In 2007, in a case filed by Fox, a federal court in New York ruled that the “FCC’s new policy sanctioning ‘fleeting expletives’ is arbitrary and capricious” because the agency failed “to articulate a reasoned basis.” In response, Martin issued an eyebrow-raising statement that, if read on television, would have merited a significant fine from his own commission.
“I find it hard to believe that the New York court would tell American families that ‘shit’ and ‘fuck’ are fine to say on broadcast television during the hours when children are most likely to be in the audience,” Martin said. “If we can’t restrict the use of the words ‘fuck’ and ‘shit’ during prime time, Hollywood will be able to say anything they want, whenever they want.”
He also used the occasion to champion the right of consumers to choose cable channels a la carte rather than in bundles, a goal of many social conservatives who don’t want to be forced to purchase, say, MTV.
The FCC appealed the case to the U.S. Supreme Court, which heard oral arguments this past Election Day. The high court has not yet ruled.
THOUGH MARTIN HAS EMBRACED REPUBLICAN orthodoxy when it comes to indecency and media consolidation, what fascinates FCC watchers is how often he bucks his own party. “He has not been a down-the-line conservative by traditional standards,” says Schwartzman of the Media Access Project.
The best example is Martin’s aggressive approach toward the cable industry. He has worked to slash the rates independent video programmers pay cable operators; limit how many households any one company can serve; and require cable firms with their own programming (HBO, for example, which is owned by Time Warner) to make that programming more available to satellite companies.
Martin says his goal is to curb the industry’s unchecked financial power. “Cable prices have doubled at the same time as every other communication sector’s prices have declined,” he says.
As FCC chair, his biggest battle with a cable giant, though, has not been over its television programming but rather over its Internet service.
In 2007, watchdog groups charged, and Martin agreed, that Comcast was jamming the service of its Internet customers who used file-sharing programs like BitTorrent that allow them to transfer information from one computer to another. Though these programs are sometimes misused to share copyrighted materials, they are also legitimately used to distribute videos, music, and software. Known as “peer-to-peer applications,” they sometimes hog bandwidth, slowing down others online.
According to the groups Free Press and Public Knowledge—and later the FCC—Comcast would single out customers who were using peer-to-peer applications to upload files. The company would then abort those customers’ connections. Both parties would receive forged messages blaming the other for the interruption—when it fact the culprit was Comcast. “Its tactics are precisely those used by Internet censorship systems in China,” said the groups’ formal complaint to the FCC. Critics smelled a motive: As a cable company, Comcast has a financial interest in blocking other methods of delivering video.
Comcast says it was simply managing congestion. “The amount of Internet traffic has exploded, and one of the drivers of that explosion has been peer-to-peer applications,” says a company spokesperson. “What a few users are doing can affect the consumer experience of other users.”
That’s not how Martin saw it. One of the governing principles of the Internet is “network neutrality,” he notes: Users should be able to use any application they want to access any legal content. Companies like Comcast can make sure bandwidth hogs don’t ruin the experience for everyone, but they can’t single out one application like BitTorrent. Yet Comcast was doing precisely that: penalizing peer-to-peer users, even those who were moving relatively small files during light-traffic periods. Moreover, Martin says, Comcast was acting on the sly.
“Listen, they were hiding it from their customers,” Martin says, his voice unusually impassioned. “A hallmark of a legitimate network-management practice should be that you’re willing to be open about it. Right? The fact they were lying to their customers was a sure indication that this practice was troubling.” Even though Comcast and BitTorrent settled their dispute privately, this past August, the FCC ordered Comcast to change its practices and come clean about what it had done in the past.
Martin found his majority by aligning with the FCC’s two Democrats. Republican McDowell forcefully dissented, arguing that the management of cyberspace should be left to engineers. “The Internet is the ultimate wiki environment,” McDowell says. “We all shape and share how the Internet works. We want to keep that as democratic, small ‘d,’ as possible, and not concentrate governance in the hands of sovereign states.” McDowell accuses the majority of grandstanding against Comcast. “Unfortunately,” he says, “I think the commission was headed more towards a political statement than following the law.”
But consumer advocates applauded Martin, noting that his stand was a savvy departure from the White House’s anti-regulatory bent. “Kevin Martin is an extraordinarily smart politician,” says Josh Silver, executive director of Free Press. “He understood that, amidst the least popular administration in the history of modern poll-taking, it was critical that he do something that leaves a legacy that he could stand on—that would show that he indeed is a steward of the public interest.”
BARACK OBAMA’S ELECTION is Kevin Martin’s setback. The incoming president can immediately create a Democratic majority on the FCC by filling the seat held by Republican Deborah Taylor Tate, whose term expired in December. No doubt Obama will craft a majority that shares his strong opposition to media consolidation.
Obama, who has singled out Martin for criticism on the cross-ownership issue, will also name a new leader of the FCC. Traditionally, the chair leaves the agency entirely when a new president takes office. But Martin doesn’t have to: His term as commissioner runs for two more years.
Anticipating Martin’s next move has become a Washington parlor game. But it’s a game Martin refuses to encourage. “I don’t have any plans,” he says, echoing his usual response to reporters. “Listen, the chairmanship is at the discretion of the president. My term runs through 2011. Other than that, I don’t have any comment.”
Note: On January 20, 2009, Kevin Martin stepped down as chair of the FCC. He eventually became a Washington lobbyist.
SIDEBAR: Say What?
Here are five of the highest-profile television shows that have upset the FCC enough to spark enforcement actions during Kevin Martin’s tenure as chair. Each of the episodes in question aired between 2002 and 2004—it takes the commission years to adjudicate indecency complaints.
The FCC objected to a scene in which a woman, facing away from the camera, removed a robe before stepping into the shower. A small boy walked into the bathroom, saw her naked, then backed out in embarrassment and closed the door. The commission levied fines against fifty-two ABC stations totaling $1.43 million.
“The scene in question revolves around the woman’s nudity and includes several shots of her naked buttocks,” according to the commission. “The material is thus dwelled upon and repeated.” ABC paid the fines and has filed a challenge in federal court.
Other episodes of the police drama were declared indecent for using the word “bullshit.” The FCC did not propose fines in these cases, noting that it had toughened its policy since the episodes first aired.
Without a Trace
The “Our Sons and Daughters” episode told the fictional story of a young woman’s disappearance and the FBI investigation that ensued. During a witness interrogation, a flashback scene depicted an orgy. “Although the scene contains no nudity,” the FCC said, “it does depict male and female teenagers in various stages of undress. The scene also includes at least three shots depicting intercourse.” The commission proposed $3.6 million in fines, then settled with CBS for $300,000.
Married By America
The Fox reality show featured scenes from bachelor and bachelorette parties where strippers performed various suggestive acts. A male stripper licked whipped cream off a woman’s leg. A groom-to-be knelt on all fours and received a spanking from a female stripper whose breasts had been pixilated. “The scenes in question were imbued throughout with highly charged sexual content,” the FCC declared, levying fines against thirteen stations totaling $91,000. The case is under appeal.
Billboard Music Awards
While accepting an award in 2002, Cher used the F-word to tell her critics to take a hike. The following year, Simple Life actress Nicole Richie said, “Have you ever tried to get cow shit out of a Prada purse? It’s not so fucking simple.” The FCC insisted that, no matter how it’s used, the F-word “inherently describes sexual activity.” Though the commission did not fine Fox and its stations, it sent out a warning that unscripted expletives, broadcast live, could lead to penalties in the future.
The Early Show
During an early-morning interview, Twila Tanner of CBS’s Survivor: Vanuatu described a fellow contestant as a “bullshitter.” No other objectionable words were used. Still, the FCC said, “Because the interview dealt with the outcome of one of the most popular prime-time shows on broadcast television among children, it is foreseeable that young children not only would be in the audience at that time of day, but also that they would be attentive listeners to the interview with Ms. Tanner.” The agency did not issue a fine, acknowledging that it had toughened its policy after the interview aired.