Honolulu Weekly

Angela Campbell / In October, local advocacy group Media Council Hawaii filed a lawsuit aimed at halting the consolidation of local television stations KHNL, KFVE (K5) and KGMB, on the grounds that it violated federal antitrust law. The Media Council asked the Federal Communications Commission to issue an emergency order to prevent the grouping, which went forward as planned on Oct. 18. Now that the FCC has responded to the claim, Honolulu Weekly caught up with Angela Campbell, lead attorney representing Media Council Hawaii and director of the First Amendment and Media Law Project at the Institute for Public Representation at Georgetown Law.

Last time we spoke about all of this was in October. What’s the latest?

The latest is that the FCC asked on November 10 for Raycom [the company that partnered with MCG Capital to consolidate the three operations] to submit additional documents about the arrangements, and right before Thanksgiving, they did submit those documents. The Commission asked for unredacted copies and they did apparently give unredacted copies, but only to the Commission and asked the Commission to treat them confidentially. Right now we’re in the process of going through [a redacted version of] those documents and we have until next week to file a response but we will want to look at the confidential information.

So did you file a FOIA [Freedom of Information Act request] to see the “confidential” documents?

We haven’t made a final decision yet but I think we will ask the Commission to make them public because we think they ought to be public.

Regarding what you have reviewed of the documents so far, what can you tell me?

Well, it’s much more complicated than I originally thought but it doesn’t change the basic claim, which is that [the consolidation] is a clear violation of FCC rules. Basically, they’ve exchanged, they’ve flopped the two stations. K5 and KGMB, they’ve swapped everything except the license themselves, so that’s their basis for claiming there hasn’t actually been a transfer… K5, which is now owned in name by MGC Capital, is not actually going to be running the station. They’ve basically contracted all of their positions for running a station to Raycom. They have only two employees and one of them is John Fink who is a former manager for Raycom. They’re not producing any programming. They’re getting sales people from Raycom to sell the advertising time and they have no facilities, no studio, no transmitter, no anything except what they’re sharing with Raycom.

So Raycom has more or less found a loophole, which allows the company to ignore the principles that Media Council Hawaii is committed to protecting?

The only thing that they haven’t transferred is the licenses. They have transferred the call signs as well as all the intellectual property rights… I would say–and the FCC has to address this–they have violated the FCC rules. The Commission is not looking just at labels, they’re looking at what’s really happening, who’s controlling the programming, who’s controlling the finances and who’s controlling the employees, and for every one of those factors, for all three stations, it’s Raycom.

Last time we spoke, I asked you about precedent–what other cases in the country reflect what’s going on in Honolulu now?

Well, after we filed the claim, the stations responded. Raycom and MCG responded and said, “This is just like these other deals that the FCC’s Media Bureau has approved,” so we took a careful look at those cases and what we found is that they weren’t the same and this one is worse in a lot of ways…The Media Bureau makes licensing decisions but all of those decisions can be appealed to the full commission. This happened in 2004, 2005 and 2007, and the Commission just never dealt with them. So one of the things we said is the Commission needs to address those applications for review because, really, what this does, as is it now, is it gives the broadcasters a way to get around FCC regulations.

Does the FCC often take its time with this sort of thing?

Yes, they do actually [laughs]. You know, the fact that they’ve already asked [Raycom and MCG] for documents twice now is relatively fast. Just because they’ve gone ahead with the deal doesn’t mean the FCC can’t tell them, “too bad, you’re going to have to undo this deal,” or possibly they could even lose their license because they’ve violated very important FCC rules and licenses here. The other thing is the FCC has changed. There are five commissioners–three from one party and two from the other–three from the party of the president. Since June, President Obama appointed a new chairman and two other commissioners, so the majority of the commissioners have now changed. I think they’ll be very interested in looking at this, perhaps more so than an earlier FCC would have.

Anything else you’d like to add that we haven’t discussed?

The other thing we talked about this morning was how Raycom has amended the deal twice now, each time when they were filing responses to the FCC. This time in particular, they had to amend their contract because they said it was a drafting error, but that really raises our suspicion about what is going on.