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PUBLIC HEARING ON INTERNET COMMUNICATIONS - NOTICE OF PROPOSED RULEMAKING - JUNE 28, 2005

PREPARED TESTIMONY OF MICHAEL KREMPASKY

I thank the Commission for allowing me to participate in these hearings. You are each due a great deal of credit for your tremendous sensitivity to the issues of speech and freedom as you contemplate these rules.

Today you consider rules that will affect millions of people. Not just the eleven million blogs currently indexed by the search engine Technorati, but the millions of people who currently have the freedom to take a few minutes, join the blogosphere and add their voice to our political conversation.

I’ll focus my testimony this morning on the media exemption. My hope is that the Commission will take specific and discrete steps to ensure that no blogger, no amateur activist, and no self-published pundit ever need consult with legal counsel in fear of the regulatory might of the federal government.

Our current campaign finance regulations touch nearly every area of political participation by associations, corporations, candidates, political parties and individuals. But one group is notably and, for practical purposes, completely exempt – the news media. The Commission is now considering the proper scope of that exemption. As it has asked, “Should the exemption be limited to entities who are media entities and who are covering or carrying a news story, commentary, or editorial?”

With respect, the question properly formed should have been, “can the exemption be limited?” The answer must be an emphatic no. There is no doubt that bloggers are media entities. Nor is there any doubt that the tradition of citizen journalists is a long accepted part of our national culture. From before very founding of our country, individuals and relative unknowns have contributed to this great conversation. More below the fold...

The boundaries defining who or what is a quote-unquote media entity have eroded to the point of irrelevance. No longer do we have limited number of easily-defined outlets or a restricted professional community. Government rules and regulations granting media bona fides (and all the associated privileges) to some while denying those credentials to others would be like building a new laptop computer with vacuum tubes. The old ways simply cannot keep up.

Presumably, this media exemption is rooted in the notion of the intrinsic value of trusted, objective, and comprehensive information in the hands of the citizenry. Unfortunately, when we look at our traditional media today – it is neither trusted, nor objective, nor comprehensive.

A Pew study released just this week showed that, “The percentage [of respondents] saying they can believe most of what they read in their daily newspaper dropped from 84% in 1985 to 54% in 2004.” Worse yet, another study by Columbia University showed that among journalists themselves, 45% are less trusting of the professional behavior of their own colleagues – just two years ago, only 34% had such doubts.

As far as the objectivity of the established and bona fide press is concerned, we need not look very far to see a deep distrust of our mainstream media. Organizations on both the right and on the left raise and spend millions of dollars documenting examples of bias in coverage when it comes to campaigns and elections.

Moreover, the popular established media in this country is anything but comprehensive. Large majorities of Americans believe that news organizations are more concerned with gathering large audiences than informing the public with facts.

Time and time again, it is the new media – these bloggers – that fill the information gap. The vast resources of the blogosphere as a whole, its expertise, creativity and motivation – dwarf any newsroom in the country. Indeed, free of the constraints of bureaucratic hierarchies and concerns of column inches, blogs can provide news coverage that is both faster and more in depth than anything the mainstream media can hope to provide.

Minutes after the reports of the tsunami that struck Southeast Asia, bloggers were collecting, sharing, and distributing first-hand reports of the devastation, hosting sought-after documentary video footage, and even lent help to relief efforts. In a news cycle measured in tiny increments, bloggers were hours ahead of their mainstream counterparts.

This very rulemaking is an even better case in point. What newspaper or television station could afford to devote time and space every day to covering the actions or potential actions of a relatively small government agency? None did, and none could. Meanwhile, bloggers wrote thousands of words about the Commission’s rulemaking, educating their readers and encouraging them to participate in the process.

There is no doubt that the Commission recognizes the difficulty in extending the media exemption to these citizen journalists. It is imperative that it does so. What goal would be served by protecting Rush Limbaugh’s multimillion dollar talk radio program – but not a self-published blogger with a fraction of the audience? How is the public benefited by allowing CNN to evade regulation while spending corporate dollars to put campaign employees on the airwaves as pundits, while forcing bloggers to scour the Record and read Commission advisory opinions?

Worse yet, if the Commission were to adopt a policy of examining individual blogs on a case-by-case basis, how is that to be distinguished from a government license to publish free of jeopardy – only granted (or denied) after the fact? Unlike previous Commission investigations in the offline world, these cases would affect not large corporations or interest groups with the ability to hire the best firms in Washington, but instead unsophisticated and unfounded individuals poorly suited to navigate the Commissions regulatory process.

In the explanation and justification for this rule, the Commission identifies Slate.com, the Drudge Report, and Salon.com as entities presumably deserving of the exemption. But if the Commission grants credentials to these three – how can the Commission then deny the same privilege to AndrewSullivan.com, Joshua Marshall’s TalkingPointsMemo.com, or Kevin Aylward’s Wizbang blog? They all provide news coverage and opinion. They all generate revenue through advertising. Substantively, they are no different.

The Commission should extend the media exemption to bloggers and other online publishers with the broadest possible terms. The American people, when given the chance tend to make choices that best serve them. The more voices, the more outlets, the more “media entities” – the more informed our public – and our voters will be.

I thank you again for your time and attention, and I look forward to answering any questions Members of the Commission might have.