Originally published on May 08, 2009
Wiley Rein law firm
As chairman of the FCC’s diversity committee, the former commissioner pushes for race-neutral ways to expand minority and female ownership
Henry Rivera is an internationally recognized communications expert, author, speaker and conference leader in the communications field. The former FCC commissioner is listed in the 2009 Washington edition of the “Super Lawyers” directory and in the 2009 edition of “The Best Lawyers in America.” He has also been singled out as a “leading lawyer” by legal rankings guide Chambers USA and named among the top 12 U.S. telecom experts by Legal Media Group’s “Best of the Best.” He was recently named chairman of the FCC Advisory Committee on Diversity for Communications in the Digital Age, which consists of a broad spectrum of men and women from various backgrounds and companies
What does the rechartering of the Advisory Committee on Diversity for Communications in the Digital Age mean?
Like all Federal Advisory Committees, this FAC has a term. When the term expires, the Advisory Committee goes away unless it is rechartered pursuant to the Federal Advisory Committee Act. The FCC rechartered this FAC at the end of 2008. I very much appreciate chairman [Michael] Copps asking me to chair it.
What is the goal of the committee?
To provide the FCC with recommendations to enhance ownership by, and employment of, minorities and women in industries regulated by the FCC.
What tangible steps will the committee take to work toward the goal?
The committee will divide itself into subcommittees that will specialize in developing recommendations for specific industries and legal areas. It will also invite people who are experts in these areas, as well as the public, to assist it in developing these recommendations.
What are the biggest barriers for minorities and women to achieve parity in the communications industry?
Lack of available capital has always been the single biggest barrier for women and minorities to achieve any kind of foothold in the communications industry.
What are the short-term and long-term solutions?
The creation of financial incentives—e.g., the Tax Certificate Policy—for the capital markets to provide minorities and women with the capital they need to get into the communications industry is both the short-term and long-term solution. Government can help by creating reasons to do business with minorities and women.
Has the the digital age leveled the playing field?
Absolutely not. One only needs to look at the number of radio and TV stations owned by minorities and women to understand that the playing field is far from level.
Like the concept of voter fatigue, are people tired of diversity groups? Are there individuals who think it’s not needed, especially now with President Barack Obama in office?
Yes. However, I do not find people saying diversity is not needed. Rather, I find that this sentiment manifests itself in a point of view that holds that achieving diversity in the communications industry is “too hard” because the Supreme Court in the Adarand case [Adarand Constructors v. Peña held that racial classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests] and its progeny has set up barriers that are insurmountable. Therefore, we should stop trying. What this point of view fails to recognize is that there are a host of yet untried race-neutral—and, thus, constitutionally noncontroversial—methods of promoting diversity.
Why is it good for the communications and telecommunications industries to pursue diversity?
In 1973, the U.S. Court of Appeals for the D.C. Circuit in a case called TV9 v. FCC noted the Supreme Court’s recognition that diversity of ownership of the mass media and diversity of ideas and expression were connected and required by the First Amendment. The TV9 court held that it is upon ownership that public policy places primary reliance with respect to diversification of content, and that historically ownership has proven significantly influential with respect to editorial comment and the presentation of news. In other words, diversity of ownership of the electronic mass media is in the public interest because it provides the public with diversity of editorial comment and news, the bedrock of a functioning democracy.
You were an FCC commissioner from 1981 to 1985. Are you surprised that nearly 25 years later indecency is still an issue?
No. There are many issues in the communications field that are currently being debated that were on the table when I was a commissioner. So, unfortunately, this is not surprising.
Having seen the dramatic changes in the radio industry since deregulation, has it hurt, helped or had no affect on diversity in radio?
I do not think that it can be debated that proportionately fewer radio stations are owned by people of color than owned radio stations prior to deregulation. What can be debated is whether deregulation by itself or some combination of other factors also contributed substantially to the dilution of minority ownership.
You also serve as the volunteer chairman of the Minority Media and Telecommunications Council. What is the MMTC doing to promote diversity in ownership of radio stations?
MMTC, on behalf of 30 national organizations who care about diversity, has placed before the FCC nearly three dozen specific and race-neutral proposals to advance minority ownership and employment. MMTC operates the only minority-oriented media brokerage, which since 1997 has helped arrange sales to minorities of over 60 radio stations worth nearly $1.7 billion. And, every July, we hold the nation’s pre-eminent media and telecom financing conference. This year’s conference will be held July 21-22 in Washington. Details will be available shortly on our Web site, MMTConline.org.
‘The creation of financial incentives for the capital markets to provide minorities and women with the capital they need to get into the communications industry is both the short-term and long-term solution.’—Henry Rivera