The NewsHour with Jim Lehrer

JIM LEHRER: Good evening. I'm Jim Lehrer. On the NewsHour tonight full coverage of the fast-moving events in Zaire; a Jeffrey Kaye report on the big media mergers; a Stuart Taylor update on California's affirmative action legal problems; and a conversation with Wynton Marsalis, winner of the Pulitzer Prize for Music. It all follows our summary of the news this Wednesday. NEWS SUMMARY

JIM LEHRER: The United States government called today for a transition of power in the Central African nation of Zaire. White House Spokesman Mike McCurry said President Mobutu no longer has the support to govern. He has ruled that country for nearly 32 years. Rebel troops now control the Eastern third of Zaire. McCurry spoke to reporters in the White House briefing room.

MIKE McCURRY, White House Spokesman: We have not suggested that Mr. Mobutu should resign or should go into exile. That is, in fact, for the people of Zaire to decide. But we have suggested that the era of Mobutuism in Zaire is over because the status quo is no longer tenable, given the dire conditions that exist for the people of Zaire. So what we are now seeking are negotiations that will lead to settlement of the conflict between the government and the rebels and secondly, an orderly transition that establishes a government that can function on behalf of the people of Zaire.

JIM LEHRER: In Zaire today President Mobutu fired the new prime minister he appointed last week, replacing him with an army general. The ousted prime minister rallied supporters who escorted him to his office, but soldiers there blocked his way. They fired tear gas and live ammunition to disperse the crowd. Elsewhere, rebel troops continued to advance, capturing Zaire's second largest city, Lubumbashi. The rebel fighting started seven months ago. We'll have more on the Zaire story right after this News Summary. On the Middle East story today there was violence again in the West Bank town of Hebron. Street battles followed funeral services for a Palestinian killed yesterday by an Israeli soldier. Thousands marched in a procession to the cemetery. After the burial mourners hurled stones at Israeli security forces. More than 30 Palestinians were injured by rubber bullets in return fire. Back in this country there was no break for the weather-torn Northern Great Plains and Midwest. Parts of the region remained under freezing water and thick ice. Downed power lines in Western Minnesota and North Dakota left more than 20,000 people without electricity and heat. National Weather Service officials predicted more flooding as ice jams and frozen rivers begin to break up. The loss of livestock in North Dakota was described today in Washington by Senator Byron Dorgan.

SEN. BYRON DORGAN, [D] North Dakota: We are told that in some areas one half of the young calves being born--and this is calving season for ranchers--one half of the calves are dying as they are born, found on the ground dead in circumstances where the ranchers simply could not save them. One rancher tried to save--I believe they brought five or seven of their calves into their home to try to save their lives. All of them died. Three hundred milk cows were killed when a dairy barn collapsed under the weight of the snow.

JIM LEHRER: Dorgan said Vice President Gore and possibly a congressional delegation planned to survey the region on Friday. The army's sex abuse problems continued today. Two male drill sergeants at Fort Eustice, Virginia, were suspended. An army spokesman said they are under investigation for having consensual sex with female trainees, an illegal act in the military. And in Dunshet, Germany, two U.S. Army sergeants were charged with rape and other crimes against 18 female soldiers. They will be arraigned on Friday. In Washington today House Republicans and Democrats held dueling news conferences. Democrats and their leader, Richard Gephardt, accused the Republican leadership of creating a "do nothing" 105th Congress .

REP. RICHARD GEPHARDT, Minority Leader: We've been stuck here for the last 100 days doing absolutely nothing that has relevance to the lives of the American people, and they're really getting frustrated with it. All they read about are investigations and, you know, kind of minor interesting but, frankly, irrelevant matters to people's lives, as we discussed this morning, and what they want us to do is get on with it.

JIM LEHRER: Republicans, led by House Speaker Gingrich, offered a tax reform agenda, calling for zero taxes, an end to capital gains and estate taxes. He promised the House would vote on tax cuts this year, and he endorsed a constitutional amendment requiring a 2/3 majority for Congress to raise taxes.

REP. NEWT GINGRICH, Speaker of the House: The American people know that it is too easy today for politicians to raise the people's taxes to pay off the politicians' promises. And while this Congress is committed against tax increases and in favor of tax cuts, there may some day once again be a Congress that favors tax increases. And we believe the people should be protected by having the best possible chance to make sure that you really truly need a tax increase and that you can get 2/3 of the vote in order to get it. This is already happening--

JIM LEHRER: And later in the day two House members got into a shoving and name-calling match on the House floor. Republican Whip Tom Delay of Texas and Democrat David Obey of Wisconsin were arguing over lobbying practices. They were separated by an aid. And that's it for the News Summary tonight. Now it's on to the crisis in Zaire, the big media mergers, affirmative action in California, and music man Wynton Marsalis. FOCUS - POWER VACUUM

JIM LEHRER: The Zaire story is first tonight. That African nation's long-time ruler, Mobutu Sese Seko, remains officially in power, but in Washington today and elsewhere his era was declared over. We begin with some background, a series of recent reports by Independent Television News correspondents.

SIRAH SHAH: Rebel soldiers in control of what remains of Kisangani Airport. Government officials, senior army officers, and Eastern European mercenaries fled before the rebels struck. Some abandoned their weapons. The rebels are said to have been welcomed by Kisangani residents. In the capital, the news sent the cabinet into a closed-door meeting today, but they came up with no new plan to reassert authority, and increasing numbers of Kinshasa residents now say that they too would welcome the rebels. Zaire's aging leader, Mobutu Sese Seko, has left his villa in the South of France for hospital in Monaco. His prostate cancer is said to be worsening. It's now possible that army officers, loyal so long, will overthrow his impotent government and maybe try to negotiate with the rebels. But the rebels seen here in the town of Goma are now heading deeper into the wealthy province of Shaba, which previously tried to secede. At the moment they're popular, but they have been brutal as they've advanced.

ALEX THOMPSON, ITN: Aid agencies accuse the rebel leader, Laurent Kabila, of deliberately hindering the humanitarian operation. Today the UN accused his troops of massacring Rwandan Hutu refugees. The report details 40 mass graves in Kivu Province, all from massacres in the past year. At Kibumbo Refugee Camp 37 bodies have been found, and at Katale Camp 143 corpses have been discovered. But the rebels' focus is on taking more towns towards Lubumbashi, Zaire's second city. Yesterday there were open protests in the capital Kinshasa against President Mobutu's dictatorship. The rebels are advancing, claiming to have groups within 200 miles of the city. Government troops simply fade away. Peace talks in South Africa have adjourned. Zaire is disappearing into history after just 25 years as the rebels advance, renaming the country Congo as quickly as they seize it.

ALEX THOMPSON: In reality, Zaire has no government. Last night a TV news flash announced the state of emergency. This afternoon another news flash saying Prime Minister Tshisekedi was now replaced by an army general, Likulia Bolongo. In effect, it is marshal law. Finally this afternoon the U.S. State Department announced they'd pulled the plug and sent out their spokesman to say the era of Mobutuism in Zaire is over.

NICK BURNS, State Department: The culture of authoritarianism must disappear. Certainly it's time for dictatorship to end. And Zaire's leaders cannot live in the past. What we are seeking is an orderly transition to democracy through elections. That is the only way to ensure stability.

ALEX THOMPSON: The truckloads of soldiers of Laurent Kabila's rebel alliance also agree the time's up for Mobutu and his cronies. They're recruiting youngsters by the score across the vast swathe of Eastern Zaire currently under their control. All they want, says Kabila, is Mobutu out and free elections within the year if he's leaving.

LAURENT KABILA, Rebel Leader: The hope is that the other side, the Mobutu side, will realize that this is a time to put an end to the military confrontation, and then they have to relinquish power.

ALEX THOMPSON: Since October, Kabila's rebels have swept from Goma to Kisangani, with barely a fight from there South to the rich diamond-producing belt. On Friday they took Mbuji Mayi, and today, amid gunfire, walked into Lubumbashi, the country's second city.

JIM LEHRER: Now, three perspectives on this situation in Zaire. Herman Cohen was Assistant Secretary of State for Africa during the Bush administration. He's currently a senior adviser to the Global Coalition for Africa and Intergovernmental Policy Forum promoting economic growth. Peter Rosenblum is the project director of Harvard University's Human Rights Program. Since 1989 he's worked with various organizations, including the United Nations, in setting up field offices in Zaire. Salih Booker is a senior fellow at the Council on Foreign Relations' Africa Studies Program. Sec. Cohen, is President Mobutu about to become a creature of history?

HERMAN COHEN, Former State Department Official: I think he has already. His rule is essentially irrelevant, except in the city of Kinshasa, and that's where things can become very dangerous. But the momentum is with Kabila, and it looks like it's just a matter of time.

JIM LEHRER: A matter of time, Mr. Rosenblum?

PETER ROSENBLUM, Harvard University: Yes, absolutely, but his capacity at this moment for creating further havoc in this period of end game is something that we shouldn't underestimate.

JIM LEHRER: Do you think--in other words, you think it's unlikely that he'll go quietly and soon?

PETER ROSENBLUM: Yeah, I don't think so. From his most recent steps I think we see him digging in to some degree.

JIM LEHRER: Mr. Booker, how do you read it?

SALIH BOOKER, Council on Foreign Relations: I think he is still very much in power. He's still the president. He has the generals reporting to him. He has named a general as the new prime minister. And he clearly sees himself as clinging to power. It's not at all just a choice between Mobutu and Kabila. There is a whole pro-democracy movement in Zaire that is not represented either by the rebels at the moment, and certainly it's not represented by the government. And they're being left out of this equation right now.

JIM LEHRER: But what do you think--why do you believe that Mobutu can hang on? What has he got that the rebel movement and the other pro-democracy people do not have going for them at this point?

SALIH BOOKER: Well, he still has arms. He still has generals loyal to him, and they still have the special forces, the presidential special forces, and the civil guard, better trained forces that have not been involved in the losing battle so far with the rebels.

JIM LEHRER: Sec. Cohen, you don't think that's enough to keep Mobutu in there, right?

HERMAN COHEN: Absolutely not. None of the special forces that have been deployed so far have done anything in Lumbumbashi right now, for example. They're pulling out of the town, and that's-- that's been some of Mobutu's troops. I think the emperor's clothes are now gone and it's quite clear to the population that the army is a paper tiger and just waiting for Kabila to come in. And I think Kabila is the one who's going to call the shots right now, and I think the pro-democratic forces should reach out to him and start making deals.

JIM LEHRER: And you think that's conceivable?

HERMAN COHEN: I think it is conceivable. I'm worried about Kabila making an attempt to rule the country by himself. I agree with Salih Booker. There are a lot of other elements out there that should be taken into consideration. As he moves further to the West, Kabila is going to run into more difficult territory, different tribal orientations, people who suspect him of being a tool of the Rwandans and the Tutsis farther East. So now is the time to reach out and talk rather than try to barrel his way in, which he can do because he has all the cards, but it'll be harder for him as he advances.

JIM LEHRER: Mr. Rosenblum, what scenario do you see, a potential scenario over the next several days, and particularly as it relates to this problem with Kabila, et cetera?

PETER ROSENBLUM: I think what Sec. Cohen said is very true. But we're not at that point yet. Mobutu did in his last acts was to try and create further division within this opposition he brilliantly named the populace governor of Shaba back into office, Gov. Kumgu, who's violently opposed to Tshisekedi, both of whom are popular, both of whom have yet to come to terms with Kabila. And now he's put into place a military power in the city of Kinshasa. It's guided by some of his own nearest and dearest, not so much Gen. Likulia, but the governor of the city of Kinshasa, itself. I think the potential at this moment for a settling of accounts in the city of Kinshasa for a real blood letting is extremely strong. I just spoke to one of the leaders of the Civil Society in Kinshasa about an hour ago.

JIM LEHRER: What's that? What's the Civil Society?

PETER ROSENBLUM: Well, this is the leader of a--of the National Council of NGO's, of non-governmental organizations, Mr. Homuli. And he has not been able to leave his home all day. He's getting reports from the non-governmental organizations between Mbuji Mayi, and--

JIM LEHRER: And these are out--NGO's are outside organizations that have come in there to provide help. They're not related to the government, right?

PETER ROSENBLUM: They're not related to the government.

JIM LEHRER: Right.

PETER ROSENBLUM: But these are Zairian organizations.

JIM LEHRER: Okay. All right.

PETER ROSENBLUM: And he's getting reports of a continuing return of soldiers who are fleeing the front. And as they arrive in Kinshasa, they're stealing cars and going out on the street. They're pillaging. There is a settling of accounts. There are soldiers who have come all the way on foot from Kisangani stealing everything they can along the way. And now they're going to hold up in Kinshasa and they're going to fight for what they can.

JIM LEHRER: Secretary

PETER ROSENBLUM: And what we have to do is we have to get them out of there first.

JIM LEHRER: Who's we?

PETER ROSENBLUM: Well, I think we've called for Mobutu to resign, but all that's going to do is going to create further tension unless there's something to back that up.

JIM LEHRER: Yeah. Secretary Cohen, that's a rather grim scenario Mr. Rosenblum has just laid out.

HERMAN COHEN: I'm very worried about Kinshasa. I think that is the last major problem. It could turn out to be a disaster. I don't agree. I don't think the returning troops will fight. I think they're just a rag-tag army that all they know is to pillage, rape, and loot. They will not fight, but they can do a lot of destroying before the Kabila people come in. And I think that's where the United States and the other big powers now have to get involved to make sure that Kinshasa is not destroyed and that the whole thing comes to a soft landing.

JIM LEHRER: How can that be done, Mr. Secretary?

HERMAN COHEN: Well, I think there has to be some very vigorous diplomacy right now in conjunction with the French, the Belgians, and the United Nations mediator, and to focus primarily on Kinshasa, making it an open city, getting the troops out of there, but really very vigorous, building up the forces across the river that are already there. Their three nations have forces. Make them more solid.

JIM LEHRER: You're talking about the American and the other allied forces. They're waiting to evacuate Americans and others if there's a real problem. They're not there to go in to do anything, though, right?

HERMAN COHEN: No, but I think if they were reinforced and made to look stronger, I think that would have a pacifying effect on the city.

JIM LEHRER: Mr. Booker, how do you see this, what role the outside nations, including the United States, could play in avoiding bloodshed in Kinshasa?

SALIH BOOKER: Well, this crisis really offers a very important opportunity. I think what's lacking right now is leadership, and I think the United States is the best candidate to provide that leadership at the moment.

JIM LEHRER: Why?

SALIH BOOKER: First of all, we have a deep history in Zaire. We largely created Mobutu. The CIA backed his coup in '65, and for years, we supported him throughout the Cold War because we saw him as an ally, even though we were aware he was stealing our aid money. He was--

JIM LEHRER: He was anti-Communist and that's why he was being--

SALIH BOOKER: He professed to be an anti-Communist. And now we don't have that use for him, but we have to strongly identify with the movement for democracy in Zaire. I also think the French and the Belgians are not trusted at all in Zaire, and that it's left to the United States to try and mobilize an international consensus to support precisely the transitional government of national unity comprised predominantly of the ADFL, Kabila's forces, of the Democratic Political Parties, of Tshisekedi, the UDPS, and Civil Society as well. This also requires talking to the generals, getting their cooperation.

JIM LEHRER: You're talking about Mobutu's generally.

SALIH BOOKER: To ensure that Kinshasa does not go up in flames.

JIM LEHRER: But if I'm reading this--what you all are saying-- correctly, Kabila is the man holding all of the guns and the cards right now. Is he likely to welcome an intervention of this kind by the United States, Belgium, and France?

SALIH BOOKER: Well, and the international community more broadly- -

JIM LEHRER: Right.

SALIH BOOKER: Including some of his own African backers, Rwanda, Uganda, Angola, and I think the government of South Africa would be key in facilitating a diplomatic solution. He has not indicated that he's opposed to international efforts to help mediate the conflict. He doesn't hold all the cards. Certainly he has the important military force, but he's still some distance from Kinshasa. They're occupying a third of the country. But I think, as I said before, it shouldn't be simply a question of who has the most guns. I don't think the United States wants to promote a solution that simply says the end of the Mobutu era, the winner, i.e., the winner on the battlefield will claim all of the goods. I think the United States really does want to promote a democratic transition, but the policy currently has failed to do that.

JIM LEHRER: But you think the United States has the power to do that?

SALIH BOOKER: I think so, and the influence in the region.

JIM LEHRER: Do you agree, Mr. Rosenblum?

PETER ROSENBLUM: Yes, I think so. I think it's very important to emphasize what Salih has said, which is that Kabila does not hold all the cards; not only that he's dependent on his African backers, and also within the alliance, itself, there's a great deal of diversity and division.

JIM LEHRER: Which alliance are you referring to?

PETER ROSENBLUM: This is Kabila's alliance.

JIM LEHRER: Kabila's.

PETER ROSENBLUM: The rebel alliance, itself.

JIM LEHRER: All right. Okay.

PETER ROSENBLUM: And, in fact, if we don't start paying attention to that and to the various factors that compose the armed and unarmed opposition, we risk being in a similar situation even after they take Kinshasa of continued violence without seeing the way out.

JIM LEHRER: All right. Mr. Secretary, explain to those Americans who may be listening who do not follow events in Africa closely and haven't even followed the Zaire situation that closely why Zaire is important to the United States of America?

HERMAN COHEN: Well, Zaire is one of the largest countries in Africa, has a large amount of natural resources. It's not vital to the United States, it hasn't been providing much to the United States in recent years.

JIM LEHRER: Since the end of the Cold War.

HERMAN COHEN: That's right. The last--our last connection with them was mainly to use their airfields to help the anti-Communist rebels in Angola, but that all ended in 1991. But the main significance is that it's so large that the country could really overflow its violence in neighboring countries, and about half of Africa can go up in flames if Zaire goes up in flames. So we're talking about a turning point in Africa. If Zaire succeeds and goes democratic, then half of Africa will go the same way. So it's a really pivotal country right now.

JIM LEHRER: Do you agree with that, Mr. Booker?

SALIH BOOKER: Well, I agree that it is very pivotal, and I think our interests are similar to our interests elsewhere in the world. They are security. We have an interest in promoting stability there for the reasons Hank Cohen mentioned in democracy because that represents our own political values and we want to promote an international community based on the rule of law and for economic development. I mean, Zaire is an enormously wealthy country. And given the right system of government, it will be the engine to promote economic growth throughout Central Africa. Finally, we have a historical observation. Zaire is one of our most important and negative legacies of the Cold War in Africa.

JIM LEHRER: Mr. Rosenblum, how important do you think this is to the United States, this situation and resolving it peacefully and moving it on to democracy?

PETER ROSENBLUM: I think it's central to any policy that we might have in Africa. Also, I guess I'm particularly optimistic, having followed the development of the democratic movement in Zaire. It's possible. It's within reach. And, as Salih says, we have a long history there, and one of the effects of that is a little bit of movement on our part has a great deal of impact there on the ground.

JIM LEHRER: So it doesn't have to be a blood bath?

PETER ROSENBLUM: Absolutely not.

JIM LEHRER: Gentlemen, thank you all three very much. FOCUS - MEDIA MERGER

JIM LEHRER: Now, the media, mergers, and lots of money. Jeffrey Kaye of KCET-Los Angeles reports on the changing world of telecommunications.

[MUSIC IN BACKGROUND]

JEFFREY KAYE: If the world seems small to the Walt Disney Company, it's because Disney owns an increasingly large piece of it. Last year the corporation Mickey Mouse put on the map took in close to $19 billion. And Disney expanded its magic kingdom by buying up Capital Cities ABC, a merger Disney CEO Michael Eisner said would create synergy.

MICHAEL EISNER, CEO, Walt Disney Co.: [July 1995] But there is synergies. There's the synergies of Disney's distribution systems and syndication, syndicating ABC programing.

JEFFREY KAYE: The enlarged Disney empire was one of many mergers among mega media companies since the enactment in February 1996 of the Federal Telecommunications Act. The law deregulated TV and telephone businesses. Supporters had promised greater competition and lower prices, but those promises have not materialized, according to Communications Law Professor Tracy Westen. Westen has worked for both the Federal Trade and Communications Commissions.

TRACY WESTEN, Communications Law Professor: So you're not finding this aggressive competition that the drafters of the 1996 Telecommunications Act predicted. In fact, what we tend to see is massive conglomeration, companies buying each other out in the attempt to be the last remaining survivor.

JEFFREY KAYE: The biggest buyout was the merger of Time-Warner, which owns cable TV and movie companies, and Turner Broadcasting, owner of CNN. The marriage created the world's largest media conglomerate and joined the country's largest cable operators, Time-Warner and TCI, Telecommunications Incorporated, a part owner of Turner.

TED TURNER, CNN: I'm nearing the end of my career, and I want to see what it's like to be big for a while.

JEFFREY KAYE: Also growing bigger after deregulation were Westinghouse Electric, which bought CBS and Infinity Broadcasting, the radio giant, and Rupert Murdoch of Fox became the largest single owner of TV stations in the nation. In the phone industry Bell Atlantic is in the process of buying NYNEX. SBC acquired Pacific Telesis. Increasingly, the telecommunications business is being dominated by a handful of major players.

SPOKESMAN: Well, what are some other differences--

JEFFREY KAYE: Mark Crispin Miller, a writer and professor at the Johns Hopkins University in Baltimore, is studying the wave of mergers.

MARK CRISPIN MILLER, Media Critic: Now we have clients who don't own only networks, who don't own only TV stations, who don't own only radio networks, but they also own film studios, book publishing companies, newspaper chains, magazines, and so on. That changes things enormously, both in the world of journalism and entertainment.

JEFFREY KAYE: Disney is a case in point. It owns six film production and distribution companies, theme parks in Florida, California, Paris, and Tokyo. It owns three record companies, and more than a hundred magazines, including "Women's Wear Daily," seven daily newspapers, including the "Kansas City Star," and Disney Stores, 530 of them worldwide selling Disney products. On cable TV there is the Disney Channel. Disney is also a partner in ESPN, the sports network, A&E, the history channel, and Lifetime TV. In sports, it owns the Mighty Ducks hockey team and is a partner in the Anaheim Angeles Baseball franchise. Disney's theatrical division puts on stage versions of its movies. Its cruise line subsidiary will soon launch two ships that will dock in a Caribbean Island owned by Disney. Disney also owns two book publishing companies, and through ABC ten TV and twenty-one radio stations. ABC Radio is the largest radio network in the country. Maureen Lesourd is president and manager of ABC's three radio stations in Los Angeles.

MAUREEN LESOURD, ABC Radio: I think what synergy has done for us, particularly here in Los Angeles, the fact that we've got KBC Television and Disneyland and there's Los Angeles Magazine and just, you know, the movie people over at Disney, it's a great opportunity to really cross-promote each vehicle and, and really help each other.

JEFFREY KAYE: Cross-promotion of Disney's interlocking enterprises is a big part of the Disney business strategy. Tim Allen stars in Disney movies and on ABC TV. He has also written a bestseller for Disney-owned Hyperion Books. The Lifetime and ABC networks promote Disney World, and ESPN features the Mighty Ducks. ABC has positioned its three Los Angeles radio stations to attract different audiences. The Rock FM station features often raunchy DJ's Mark and Brian. And the talk stations that once competed now complement each other.

MAUREEN LESOURD: It seemed to make more sense that we would provide some, some complement to each other.

JEFFREY KAYE: Rather than competition.

MAUREEN LESOURD: Exactly. Rather than direct head-to-head competition. So we're appealing to a slightly different audience and certainly on KBC, as a news, talk, issue-oriented station, which tends to be more I call it front page newspaper type issues, would be more male-leaning.

MALE RADIO TALK SHOW HOST: But what prepared you, do you think, the most? I mean, was it the war? Was it--

JEFFREY KAYE: While one station tries to attract a male audience, the other programs lifestyle topics.

FEMALE RADIO TALK SHOW HOST: Is most of this an emotional attachment, or--

JEFFREY KAYE: And is more geared to women listeners. But media critic Miller is not happy about one company programming three radio stations in the same community.

MARK CRISPIN MILLER: To regard it as a point of pride, to have two stations doing complementary things, is basically to give up the notion of a democratic culture in favor of a kind of national entertainment state in which everybody's happy with the particular product that has been geared toward his market segment.

JEFFREY KAYE: Miller says the increased concentration of media ownership has led to a bottom line orientation in the culture industry.

MARK CRISPIN MILLER: Whenever you're primarily concerned with moving product, you know, you're going to be making esthetic judgments that are based on something other than the requirements of a good story or an effective book or good news coverage. You're going to be doing a lot of TV news stories, for example, on that night's episode of ER. You're going to be--what's another good example--you're going to be publishing books in your book division that are written by the star of your sitcom, you know. You're going to be making a movie that, that features people who have been in your TV shows. I mean, it's very ingrown, and it isn't necessarily the case that those authors ought to be writing books, or that those movies ought to be made with those people in them, you know.

JEFFREY KAYE: But TV programming and cable executives say their goal is to provide variety. Americast, for example, is a programming consortium of five phone companies and Disney. Disney programs are prominent among its line-up, but Americast President Steve Weiswasser says as responsible program suppliers, they will offer a range of alternatives.

STEPHEN WEISWASSER, CEO, Americast: And I don't think Disney is looking at this as a way to sort of inundate and bombard its audience with Disney content. We can't compete, but if--right out of the box we're not offering to all potential customers all of the content that they're familiar with and used to. We want--we'll take all of the Turner system cable program services, as well as the others, just as they carry the Disney Channel. I mean, this is a business in which that would be classically cutting off your nose to spite your face in a way that nobody would do.

JEFFREY KAYE: But some providers are squeezing out the competition. In New York City, Time-Warner has kept Fox News out of its cable system. Fox competes with Time-Warner's CNN. C-Span is being dropped or cut back in 75 communities. The service, funded by the cable industry, provides two channels covering Congress and public affairs forums. Representatives of TCI, the nation's largest cable company, blame programmers for forcing cable operators to drop certain channels. Although TCI is curtailing C-Span, 64 of its cable franchise areas, company vice president Robert Thomson points out TCI is C-Span's biggest financial supporter.

ROBERT THOMSON, Tele-Communications, Inc.: We're also the largest television distributor of C-Span. We look forward to the day when we have the channel capacities available to carry it on every one of our cable systems. But you have to understand that as our programming marketplace gets consolidated and fewer and fewer mega companies own all the programming services, you have to understand the type of leverage that that gives mega consortiums. If you want to carry their high profile, star programming service, you may just have to carry their brand new service, their brand new cable service. In an era of scarce channel capacity, this puts enormous pressure, enormous pressure on independent programming service like the Weather Channel, like--like C-Span, and a few others.

JEFFREY KAYE: Thomson says TCI's decisions are also driven by financial ties to programs. TCI has interests in a number of production companies, including McNeil/Lehrer Productions, the Discovery, Learning, and Family Channels, as well as the Encore, and Stars Movie Channels. Thomson says TC gives preference to its related companies.

ROBERT THOMSON: For example, we started Discovery. Discovery wouldn't have been a network today but for our early investment. They've invested in a service called Animal Planet. Should we turn them down for carry simply because we have a minority interest in Discovery? Of course not. Of course not. Family-oriented programming is at a premium on cable, at a premium. We consider it very important, and we've tried to give it some distribution, Animal Planet.

JEFFREY KAYE: Right. But to whose detriment? That's going to squeeze out someone, right?

ROBERT THOMSON: Yes. In an era of scarce channel capacity you do have to make room for a service like Animal Planet.

JEFFREY KAYE: TCI and most other cable companies have also drawn criticism from consumer groups for rate increases. Gene Kimmelman is a director at the Washington office of Consumers Union, publisher of Consumer Reports. He says that contrary to industry promises both cable and telephone businesses have raised their prices.

GENE KIMMELMAN, Consumers Union: I believe officials in all of the major segments of the communications industry exaggerated the likelihood of competition in order to get a greater chance of profitability by relaxing regulation of prices and relaxing limitations on the ownership of stations and properties. Those industries won. They got a tremendous opportunity to raise price, to consolidate through merger, and unfortunately, the consumer was left at risk with a hope and a promise of competition to bring choice and lower prices but not the reality.

JEFFREY KAYE: TCI's rates increased 21 percent last year. The company plans another 6.8 percent rate hike in June.

ROBERT THOMSON: Our programming costs go up, and our other wholesale costs go up. Those are the determinants of our rates.

JEFFREY KAYE: But what happened to--to the notion with more competition there would be lower rates?

ROBERT THOMSON: I think it's a promise still to come, and the reason it's a promise still to come is because each of these businesses, both the telephone business and even more so the cable business, are very capital intensive businesses. It's going to be a while before we see full-fledged competition in either one of those businesses.

JEFFREY KAYE: Or between those businesses. Telephone and cable companies have scaled back plans to aggressively compete in each other industries, but there is increasing competition between local and long distance phone companies and between cable and satellite TV. Consumer groups are hopeful that competition will keep a check on rising prices.

JIM LEHRER: Still to come on the NewsHour tonight, affirmative action in California and Wynton Marsalis. UPDATE - AFFIRMATIVE ACTION

JIM LEHRER: The affirmative action story and toMargaret Warner.

MARGARET WARNER: Yesterday a federal appeals court panel in San Francisco upheld the constitutionality of a California measure outlawing state affirmative action programs. The measure known as Proposition 209, was adopted by California voters last November. The ballot measure read: "The state shall not discriminate against or grant preferential treatment to any individual or group on the basis of race, sex, color, ethnicity or national origin in the operation of public employment, public education, or public contracting." Yesterday's decision overturns an injunction issued earlier by a lower court judge that had blocked implementation of the measure. For more on yesterday's ruling and where the issue goes from here, we turn now to the NewsHour's regular court watchers, Stuart Taylor, correspondent for the "American Lawyer," and "Legal Times." Welcome back, Stuart.

STUART TAYLOR, The American Lawyer: Nice to be here.

MARGARET WARNER: Before we go into yesterday's ruling take us back to last November, Prop 209 is passed by the voters of California, and the supporters of affirmative action go immediately to a federal district court judge to get it overturned. What did the judge rule, and what was his basis?

STUART TAYLOR: That was Chief Judge Thelton Hendersen of the U.S. District Court in San Francisco. He ruled that--he issued what's called a preliminary injunction, saying this can't go into effect yet at least. And his primary basis for doing so was that he said he--it was probably going to be held by the courts to be a violation of the Equal Protection clause of the 14thAmendment. He found that it violated the political rights, if you will, of women and racial minorities.

MARGARET WARNER: Explain that briefly. What was his basis for saying that, precedent?

STUART TAYLOR: He relied on a line of Supreme Court precedents that are kind of, oh, at a time when the court was more liberal on some racial matters than now. And the primary one involved Seattle in 1982. The Seattle school board adopted a voluntary integration through busing plan. They adopted it because they weren't mandated by a federal court to do it, but it was binding on students and parents. The state's voters by initiative barred all busing of that sort, and the Supreme Court by 5/4 held that violates the rights of minority groups because they want busing by and large and by making it necessary for them to go all the way to the state level in order to get beneficial legislation it discriminates against them in the political structuring of the state.

MARGARET WARNER: Because other groups wouldn't have to go through the same--

STUART TAYLOR: Right. For example, if disabled people had wanted to go to the Seattle school board say and get a special program for disabled people, they'd just go to the school board. Now that if you want busing, now you have to go to the state legislature and in the state constitutional amendment process. That was the court's ruling in 1982 in that case, and Judge Hendersen said this is similar because black people, Hispanic people, native Americans, and women, all of them are affected here, he said, who want say the Los Angeles City Council to pass some program that gives preferences to them over whites and males and Asians, they have to now get a state constitutional amendment passed where before they could have just gone to the city council.

MARGARET WARNER: Okay. So take us now to yesterday's ruling. On what basis did this panel overturn that?

STUART TAYLOR: The three-judge panel unanimously held there was nothing inconsistent between this state constitutional amendment banning preferences and the 14th Amendment. And the court emphasized that the 14th Amendment's "equal protection" clause, the central purpose of it, is to ban racial discrimination. And the central thrust to this opinion is that it hardly violates a ban against racial discrimination for the state's voters to ban racial discrimination. But in dealing with this more complicated argument about the political structure, the state, they said, in essence, they made three points. First, that was a line of cases to protect politically powerless minorities. Here we're talking about a majority of the state's electorate that would be seeking preferences because women are one group that Judge Hendersen said needed to be protected here. And they said it's sort of silly to protect a majority of the electorate against itself from adopting this. Two, the court said that those decisions were in apparent tension, if not conflict, with more recent Supreme Court decisions, taken a tough line against affirmative action, racial preferences, and three, they said, busing is very different from a preference. Busing doesn't say you get the goodies because you're black; you don't because you're white. Busing tries to benefit all people by producing a level of--

MARGARET WARNER: And so that this was--

STUART TAYLOR: And so that the whole logic line of decisions doesn't apply here.

MARGARET WARNER: Now, a number of the articles today in the newspapers about this talked about the political backgrounds of the various judges involved. Explain that, and do you think it was a factor?

STUART TAYLOR: It's hard to avoid that conclusion. Judge Hendersen is a Carter appointee and was a civil rights lawyer at the Justice Department and elsewhere before he took office, and the plaintiffs in this case, the civil rights groups, actively shopped to get the case before him. They brought it in his court; they got it moved from another judge because they thought he would rule for them, as he, in fact, did. The three judges who overturned his decision are all Republican appointees, two Reagan appointees and a Bush appointee. And the minute that panel was chosen to hear the case most people close to the case were predicting the result that we, in fact, saw yesterday.

MARGARET WARNER: Okay. So now where does it go from here?

STUART TAYLOR: The plaintiffs, the ACLU and other groups, have said they will seek what's called an on bankery hearing before the full U.S. Court of Appeals for the 9th Circuit, which has 20 judges. They will petition to do that, and the status quo will be frozen while they petition. They need a majority of the 20 judges to re-hear it, which means to sort of--let's look at this again, with a larger group of us. Then you have 11 of the judges actually do that, and then ultimately one side or the other will surely seek review in the Supreme Court.

MARGARET WARNER: All right. If you had to crystallize what the full 9th Circuit, the issues they have to grapple with, is it the constitutionality of affirmative action programs or race-based preferences, or is it the constitutionality of a ban against those?

STUART TAYLOR: It's closer to the latter but it's a little trickier. It's the constitutionality not only of banning them because the plaintiffs, the civil rights groups concede that the Constitution doesn't require race-based preferences. It's the constitutionality of doing so through state constitutional amendment so that to the extent that black people, women, Hispanic people want to go to their local governments and ask for preferential treatment this stops them from doing it. They would have to go all the way to the state level and re-amend the Constitution, and the issue is whether that violates their rights to equality in the political process, if you will.

MARGARET WARNER: Great. Thanks, Stuart. I'm sure we'll be back to talk about it again. Thank you.

STUART TAYLOR: Thank you. CONVERSATION - PULITZER WINNER

JIM LEHRER: Finally tonight, the Pulitzer's music man and to Charlayne Hunter-Gault.

CHARLAYNE HUNTER-GAULT: It was a Pulitzer first--jazz in the category usually reserved for classical music, and the winner was 35-year-old trumpeter Wynton Marsalis for "Blood on the Fields," a three-hour jazz oratorio written for three singers and an assemble of 14 musicians. The piece was commissioned by Jazz at Lincoln Center and traces the journey of an African couple sold into slavery in the United States. Here's a brief excerpt from a recent performance.

[MUSIC PLAYING]

CHARLAYNE HUNTER-GAULT: Here now to tell us about "Blood on the Fields" is Wynton Marsalis, who is also artistic director of Jazz at Lincoln Center. And congratulations to you, Mr. Marsalis.

WYNTON MARSALIS, Pulitzer Prize Winner, Music: Thank you very much.

CHARLAYNE HUNTER-GAULT: What is "Blood on the Fields?"

WYNTON MARSALIS: It's a piece with music and singing. They call it an oratorio. I didn't call it that, but I guess technically that's what it is.

CHARLAYNE HUNTER-GAULT: What does that mean?

WYNTON MARSALIS: It means musically singing.

CHARLAYNE HUNTER-GAULT: That's what an oratorio is. Well, what do you call it?

WYNTON MARSALIS: Well, just musical singing.

CHARLAYNE HUNTER-GAULT: What is it trying to convey?

WYNTON MARSALIS: I guess multiplicity of emotions, and it--I guess the main thing it is trying to convey is how to be free and still be a slave, how to--when you're still a slave how to be free.

CHARLAYNE HUNTER-GAULT: And it--did I get it right, that it is the story of an African couple moving from slavery to the United States, et cetera?

WYNTON MARSALIS: Well, it's really--it's about them as Americans, I guess. It is--the story is kind of, it exists in different times. The relationship between a man and a woman actually comes from the way that we relate to each other today. But historically they started as Africans, but we trace the growth of the man in America. The woman kind of always has a sense of how things are, a much deeper humanity than the man has. And he relies upon her once he realizes that he needs her to teach him what he needs to know, he relies upon her to share her wisdom and her knowledge with him.

CHARLAYNE HUNTER-GAULT: Now describe the piece and its elements, although let me apologize in advance. We don't have the three hours that it takes to play this piece for you to describe it, but I mean, like the excerpt we just saw. What was going on there? What was that trumpet saying? It was talking to us, wasn't it?

WYNTON MARSALIS: Yes, ma'am. That's like a dance of the demons. This was at the point where the man is realizing that his way of looking a the world is not going to take him closer to freedom. And he just received a terrible beating when he tried to run away, but he wasn't equipped with the right information to be free. So he comes back, and all of the forces of nature are talking to him. And the band represents the forces of nature, and I'm him. But I'm like laughing, crying, and making all these different sounds, and the band is telling you like, you know, I told youso, I told you so. This is what happens when you try to get out here too soon, and at the end of this, this piece comes after he sung a song which is entitled "Oh, What a Fool I've Been," saying how he just--because before this he would never listen, no matter what you told him. He was so full of anger and hatred, and just the fact that he was a slave because he was a prince in Africa, and it was very difficult for him to adjust to his surroundings and to his change in fortune.

CHARLAYNE HUNTER-GAULT: And some of the other--tell me about some of the other elements in the story. I mean, you've got singing, and you've got other kinds of--is it all jazz?

WYNTON MARSALIS: Well, it comes out of the language of jazz and the orchestral stylings of the great jazz arrangers mainly Duke Ellington, but the form--a lot of form stuff, they come out of like Jellyroll Martin and Mingus and Mat Roach, things that have been- -that a lot of jazz composers have touched on. Of course, styles like a brass chorale style--I just put different type of blues harmonies in it. And we have a lot of chants and things that we find in New Orleans music, stomps and other little effects. We even have some touches of the fiddler's reel, and the word song. I have one song that's kind of--I tried to make the band sound like a big banjo by using a pointalistic type of style, where I've had six or seven different members hit one note apiece, so it would go ding- bo-do-bo-ding-bo-do--sounds like somebody plucking a banjo. And we use a lot of different--a lot of different effects and different styles--forms.

CHARLAYNE HUNTER-GAULT: How did you go about writing this? I mean, did you do the music first, or did the story come to you? I mean, how did you put it together?

WYNTON MARSALIS: Kind of all at once really. I started--I had an outline like I always have to kind of know where I'm going, from point A to point B, C, and D, and where I want to modulate, like which keys do I want to go in. I also--I figured that I wanted the band to be like a Greek chorus, but a modern hip chorus, so we say things that are kind of funny sometimes, and I also wanted the musicians to play like I wanted to juxtapose a single voice to many, just like we just heard that excerpt--that piece is entitled "Back to Basics"--the part that we just saw--but where you have one, which is a trumpet, and then the rest of the ensemble answers. Well, we have a chorus formed, but we're all sitting up. In fact, we are judging the action and moving it forward and commenting on it, so one person will start, like the first one we say, "Trouble in our own land, crimes against the human soul, far too large for any describing words to hold." And before we say that, I play that- -those syllables on it--I may improvise some of the melody, and then the band goes into this tune, this section, which is the trouble in our land.

CHARLAYNE HUNTER-GAULT: So the story evolves, or you had that pretty much in your head as you went along, or did you get to a point--because jazz is about improvisation, and you're the master of that--was this a story that was improvised?

WYNTON MARSALIS: Well, no, the story is written down. You know, in jazz all the ensemble parts have to be written. What you do in jazz composition is you try to find a suitable framework to inspire improvisation in the reading of the parts and also when--you have to know when to use improvisation to give that feeling of freedom that's needed. But you also have to balance it with that arrangement because if you just improvise constantly, it can be exciting, but it can also be very boring. It can also lead to chaos.

CHARLAYNE HUNTER-GAULT: In the pantheon of jazz pieces, though, jazz subjects, this is very unusual, isn't it? I mean, aren't most jazz subjects about the here and now?

WYNTON MARSALIS: Well, I don't think that's--people write that but not in the history of jazz. Most of it--most music really is connected to memory, as just a characteristic that music has. I don't know--it could be the music of Bach, or it could be Duke Ellington's music, or, like John Coltrain is a good example, I think that's obvious, because he was known to be really in the avant garde or the vanguard of the 1960's. But the sound that he- -when he really got his conception, he went all the way back to the spiritual, the sound of the spiritual. Now he had--when the music- -you can have the ancient and the modern at the same time. But the far back you can reach you reach back to something that's just human. And when you get to the--like a whale is a whale. When you get to that human element, it really--it exists outside of time.

CHARLAYNE HUNTER-GAULT: Now speaking of time, this piece, three hours long, puts it in a class all by itself. I mean, why three hours, and is it going to stay three hours?

WYNTON MARSALIS: Yeah. I tried to cut it, but you know some stuff is just long. And slavery was long. We're still long, you know, in the human sense, it's still long, and it--is long. We all say that in the band, because we're playing it every night, you know, and everybody is like, this is long, and we say it's long. Well, let's try to cut it. But then when I would cut pieces out, they would say, no, don't cut that part out, keep this part in. So it's just one of those things that's long, and we have other pieces that are thirty minutes long and forty-five, but this one is actually three hours and fifteen minutes.

CHARLAYNE HUNTER-GAULT: Right. And this establishes--you've got jazz established now as a permanent part of the Lincoln Center repertoire. What is--briefly, what does this Pulitzer do for jazz?

WYNTON MARSALIS: Well, I don't really--I don't know really if it- -either way, it's a great honor for us, you know, for me and for the band, that we would be recognized and our music would be recognized.

CHARLAYNE HUNTER-GAULT: Right.

WYNTON MARSALIS: Because a lot of times when jazz is talked about, it's only gossip or something social. But we're going to do what we're going to do anyway. Duke Ellington did that. He swang out here for 50 something years, and we've been fortunate enough to have the opportunity to come out here and play and represent our music.

CHARLAYNE HUNTER-GAULT: All right.

WYNTON MARSALIS: We're doing it at Lincoln Center. We're going to do that, you know. We're all going to swing.

CHARLAYNE HUNTER-GAULT: Well, swing on, Mr. Marsalis.

WYNTON MARSALIS: Yes, ma'am.

CHARLAYNE HUNTER-GAULT: Thank you.

WYNTON MARSALIS: Thank you. RECAP

JIM LEHRER: Again, the major stories of this Wednesday the United States called for Zaire's President Mobutu to allow a transition government to replace him, and there was no break in the weather for Great Plains and Midwestern states facing record cold, ice, and flooding. We'll see you on-line and again here tomorrow evening. I'm Jim Lehrer. Thank you and good night.