A Letter that Fails to Inform
Fred Upton and Greg Walden are two of the nicest folks you can run into on Capitol Hill. Upton chairs the House Committee on Energy and Commerce and Walden chairs the Subcommittee on Communications and Technology. I have worked with them for years, sometimes in agreement, probably more often in disagreement, but always in a cordial way that reminds me of how Congress used to operate when I worked on the Hill many years ago. So I write today not in glee but in disappointment over a letter that these two gentlemen and 14 other Republican Members sent to Federal Communications Commission (FCC) Chairman Tom Wheeler on December 10.
The letter claims that the FCC is attempting to dictate content on the airwaves, reinstitute the “Fairness Doctrine” and undermine the First Amendment to the Constitution of the United States. The signatories take particular aim at the idea that the FCC should be doing any research and analysis about the information needs of communities. In truth, the FCC clearly has both the statutory authorization and a judicial mandate to do what it is proposing to do. Ascertaining how the information needs of communities and citizens are being met is integral to understanding if broadcasters are using the public airwaves to serve the public interest. Even a cursory reading of Title III and of Section 257 of the Telecommunications Act should convince anyone of the FCC’s responsibility to know what is happening across the broadcast ecosystem. Studying and understanding the media is the prerequisite of good FCC oversight and intelligent Congressional policy-making.
The goal of serving the public interest was the original bargain between We, the People, and the broadcast industry back in the 1920s and 1930s when our formative communications statutes were written. Broadcasters would receive licenses to operate stations for a set period of time, provided that they served as good stewards of the airwaves in their communities of license. (Implicit in the deal was the right of broadcasters to make a good living off these licenses.) Underlying the public interest are the core ideas that local voices would be heard, that the cultural and political diversity of our country would be reflected on the airwaves, and that citizens throughout the land would be informed by news, information, and public affairs programming that would help them exercise their responsibilities as citizens of a functional democracy.
Over the years, broadcasting has changed. In just the past generation, hundreds of local stations have been gobbled up by media behemoths who have replaced much of the localism, diversity, and competition we used to have with nationalized homogenization, uniformity, and financial consolidation often approaching monopoly. I doubt that many people reading this would argue that we are in anything like a “golden age” of media. It may be golden to the broadcasters, whose stations are now soaring in value because of the profits they make running all those negative political attack ads during our never-ending campaign season, but that’s about as golden as it gets. CBS boss Les Moonves was sadly on-target when he was reported as saying about all those negative, special interest ads that enrich his network: “Super-PACs may be bad for America, but they’re very good for CBS.” Indeed.
Another Congressional obligation incumbent upon the FCC is to report regularly to Congress (every 4 years, but it used to be every 2 years) on the state of media ownership in order to understand if the present FCC rules are working in an ever-evolving environment. Out of these required reports, both Congress and the Commission could distill the data they need to effectively perform their particular oversight responsibilities. Neither body has been very well attuned to the changes that have taken place. For its part, the FCC has approved just about every merger and acquisition that has come before it, and has gone on from there to eliminate or eviscerate almost every guideline that the Commission once had to help it judge if stations were in fact performing their public interest obligations. And the Commission, taking the authority granted by Congress to lengths which the legislation never envisioned, has made station re-licensing a slam-dunk process. It is not called “post-card renewal” without good reason. Taking a license away or putting a station owner on probation for non-performance is as rare as a seven can six-pack.
After the Commission voted to further loosen its media ownership rules in 2003, both the Senate and the House went on record against the action. In 2007 the FCC tried to loosen the rules again, and the Senate voted a resolution of disapproval; the House would have also, had the leadership not denied it the opportunity to vote on the matter.
Both times, the Third Circuit Court sent the rules back to the Commission because of the many faults it found in the way the agency had mismanaged the process. The judges were particularly incensed by the Commission’s failure to study the media ecosystem and ascertain what impact the proposed changes would have on minority and diversity populations throughout the country. The court made clear that it would approve no changes in the ownership rules until the FCC had the data and knowledge to support its actions. So the court leaves no doubt that the Commission must do more studies and compile more data. And, as noted, the Congress has long required FCC data-gathering and reporting. This is the background for where we find ourselves today.
So when the Upton-Walden letter charges that gathering needed information is nothing but an ill-disguised effort to stifle free speech and dictate content, it is ignoring history, Congressional mandate, and clear court commands. Certainly we can discuss the parameters of any study that is proposed. But that is very different from denying the Commission’s authority and responsibility to study and analyze how broadcast stations are performing their stewardship obligations.
This is not about a long-gone Fairness Doctrine; it is about how to ensure that the FCC has the data it needs to make intelligent recommendations to Congress that have sufficient breadth and depth to withstand court scrutiny. It is not about meddling in content; it is about enabling content that responds to the needs of communities and citizens. It is about making sure that the people’s airwaves reflect, represent, and respond to the needs of a self-governing democracy.
Finally, a word about the First Amendment that is mentioned, but never really explained, in the Upton-Walden letter. Sometimes folks like to invoke those two words—“First Amendment”—as though their mere mention will somehow end all debate about the future of our media ecosystem. I have never been able to understand this invocation. Underlying the Upton-Walden argument is the assumption that the First Amendment precludes any governmental involvement in media policy. This is just plain, flat wrong. Once upon a time long ago, I taught U.S. History. I know that the Founders who wrote the First Amendment were determined that their new nation have a media infrastructure that ensured the dissemination of news and information to every citizen in the land. Washington, Madison and Jefferson saw to it that legislation was passed to build roads for the distribution of newspapers and they financed huge postal subsidies to underwrite this distribution. They knew that their brave new experiment in self-government was going to be an uphill struggle and that, in the end, its success would depend upon citizens having the news and information they needed to make informed decisions to sustain the experiment. The newspapers of the time were rowdy and partisan, but this wasn’t about content; it was about making sure that whatever news and information were available got distributed so voters and citizens could make up their own minds. This is not new or controversial history—it is there for the reading in numerous books. The point is that it was public policy actively supporting, even creating, media. Nurturing a vibrant and informed civic dialogue is actually a compelling government interest.
Chances are that my friends Fred Upton and Greg Walden are not going to be converted by what I have written here. But I do hope they will think about dampening down some of the language they deploy in their letter because it deflects us all from engaging in the kind of dialogue we need to be having about the future of our media and our nation.