In explaining the FCC’s walk-back of its controversial Critical Information Needs study (or, “newsroom study”) the other week, the Agency noted:
“By law, the FCC must report to Congress every three years on the barriers that may prevent entrepreneurs and small business from competing in the media marketplace, and pursue policies to eliminate those barriers.” (Emphasis added)
To get there, the FCC last May proposed looking into, among other things, the news philosophy and editorial bias of news outlets servicing Americans, because, you know, that’s what you do when you perform a “media study” ostensibly required by the law.
At first, Right-leaning media outlets saw the proposed study as another sub rosa attempt to silence its voice by re-imposing now-repealed Fairness Doctrine requirements. Ill feelings about the “newsroom study” picked up steam when elements of the Left-leaning, mainstream media then realized the study’s breadth and thus decried what it could mean to the exercise of their First Amendment rights. Consequently, late last week the Commission canceled the study altogether.
The FCC could have easily avoided this controversy. You see, the law (e.g., Section 257(a) of the Communications Act of 1996) actually instructs the Commission to do something different. There, Congress required the FCC to:
…[C]omplete a proceeding for the purpose of identifying and eliminating, by regulations pursuant to its authority under this Act (other than this section), market entry barriers for entrepreneurs and other small businesses in the provision and ownership of telecommunications services and information services, or in the provision of parts or services to providers of telecommunications services and information services.” (Emphasis added)
Though an underlying goal of the law – e.g., Section 257(b) – is to consider promoting policies “favoring diversity of media voices,” that subsection plays only a supporting, or precatory, role in the law’s telecommunications market study. It is not the focus of the study (it’s not section (b) for nothing, right?).
Why does this matter?
Well, let me tell ya’. It matters because the ill-fated study reflects some tremendous institutional infirmities that plague the FCC and its management, or involvement, in nearly 20% of our IT enabled economy.
First, the Agency can’t seem to read the law
(This would have helped in its twice-failed Net Neutrality attempts, but I digress).
Section 257 was added by Congress to the Telecommunications of 1996 Act as a piece of its overall telecommunications reform efforts and update of Communications Act of 1934. Telecommunications and information services have defined meanings in the update. What they clearly aren’t are broadcast, cable or otherwise “mass media” services. Giving weight to this, instead of 257 being added to Title III (broadcast) or Title VI (cable) of the Act, it was added to Title II, the latter being the telecommunications-focused section of the law.
It’s there for a reason. Because effecting competitive access by small companies (a.k.a. CLECs) to local telecom infrastructure was always going to be a challenge, Section 257 was put into place to understand, and ultimately combat, those barriers as the ’96 Act sought to eliminate government-sanctioned, local telecom monopolies.
To be sure, when the FCC has examined these entry barriers in the past, it looked at the overall communications landscape. But, this examination has been generally confined to the underlying structural challenges posed to small companies. Questions about media bias or editorial control – essentially value judgments on free speech and First Amendment matters – have not been a part of those efforts.
Regardless, the ’96 Act is not a First Amendment-focused document (its protections and goals assumed within the law, anyway). Rather, as the 96 Act’s Conference Report reveals, the ‘96 update was designed to:
“…[T]o provide for a pro-competitive, de-regulatory national policy framework designed to accelerate rapidly private sector deployment of advanced telecommunications and information technologies and services to all Americans by opening all telecommunications markets to competition…”
Quite simply, Congress created Section 257 to effect open and competitive telecom and information services markets – not to make “media bias” (a.k.a. Right-leaning media uptake) disappear or become more “fair.”
In this regard, the U.S. House asks the right question:
“How does the statutory language of Section 257 support the Commission’s contention that it has authority to question the news media about editorial discretion and the content it chooses to produce?”
The answer: It doesn’t.
Second, the study represents gross mismanagement and waste by the agency.
According to press reports, the study would have cost taxpayers somewhere north of $1 million. Aside from the fact that the law did not require this study (or its $1 million price tag), the U.S. communications landscape has been studied to death. Millions of dollars of resources have already been poured into these efforts. We have the FCC’s quadrennial review of broadcast ownership reports; video competition reports; 706 / broadband deployment reports; mobile wireless competition reports; the National Broadband Plan; the Comcast / NBC-U merger consent decree; and the FCC’s Information Needs of Communities report (and this is just off the top of my head).
Do we really need another study to understand the “media marketplace” – even if it were required by Section 257 (which it isn’t)?
But the chutzpah of the FCC, coming up with the proposal at a time when it’s leadership was changing and all eyes were focused on Net Neutrality, simply astounds me. To think that it would attempt to shoehorn this inappropriate exercise into a telecom market study is an affront to the public interest we’ve entrusted it to serve. Moreover, its maladroitness seems so apparent that one has to wonder if cronyism and/or outright opportunism to advance the “progressive cause” didn’t cloud the judgment of the study’s proponents.
You know, if someone in private industry did this, they’d be out on their can.
Third, the Agency’s need-to-know-everything zeal for the “newsroom study” seemed clearly lacking when it developed its (now illegal) Net Neutrality rules back in 2010. Then, it took just four specious Net Neutrality violations, as well as willful ignorance to the dynamic Internet marketplace by three majority Commissioners, to justify an unwarranted rule on 1,600 ISPs – a rule which all but banned ISPs from the free use and exercise of their own private property so that edge providers didn’t have to pay their fair share to access end users, and, while doing that, rip-off copyright holders, too.
I guess the FCC didn’t want to repeat that mistake, right?
And finally, here’s a timeline that should startle you: Commissioner Mignon Clyburn was appointed interim Chair of the FCC on May 18, 2013, and on May 24, 2013, the FCC announced its “newsroom study.”
From statements made at prior FCC events, it’s apparent that Commissioner Clyburn had been working on the underlying “factual” predicate for some time. So, with her as Chair, the study’s hers – aided and abetted, of course, by the institutional mismanagement of the Agency’s majority Commissioners and their staff.
To that end, how departed from reality is it when the administrator who proposed the “newsroom study” – and who sits perched atop those whom she studies – couldn’t conceive that the report would have an inhibiting effect on free speech, incredulously noting the day before the study was axed:
“As a person who spent 14 years running a small weekly newspaper in Charleston, South Carolina, I would never be a part of any effort to chill speech, shape the news or influence news gatherers. I am about facilitating ownership and opportunities and making sound decisions about our most critical industries based on solid research and not rhetoric. Period.” (Emphasis added)
Where have we seen the “Period” before?
It’d be easy to pass all this off as simple incompetence. It’s far worse, however.
When Commissioner Clyburn took the position of acting Chair last May, she addressed FCC staff, then stating:
“I assume the role of Acting Chair with a great sense of responsibility, but also great humility. And as we await the confirmation of Tom Wheeler, I see myself as a member of a relay team, running one of the middle legs. My job is to build on forward momentum, give the next teammate a running start, an improved position, and no matter what, my goal is not to drop the baton…
“So if asked about my goals as I take this new position, I would answer without hesitation – its hallmarks will be continuity and progress…” (Emphasis added)
“Newsroom study” aside, “forward momentum” has been achieved. An “improved position” obtained. No “baton” dropped. And, the Agency’s “continuity and progress” remain on course. The failed study represents no failure at all to Clyburn and her ilk. It’s all part of the game and the Left’s relentless march toward “progress,” “fairness,” and utopia.
Americans should be concerned, though. The FCC’s institutional architecture – as well as that in its brethren agencies – is stacked against us and our liberties.