Local television stations have now rallied against the key elements of the Federal Communications Commission’s media transparency proposal, which would require broadcasters to move their “public inspection files” out of their filing cabinets and onto the Internet.
I described these proposals in detail here and here, but the surprising hostility from TV stations—news organizations—to this transparency plan raises a broader question: Do broadcasters believe that they even have “public interest obligations” anymore? Judging from some of the unintentionally hilarious comments they submitted to the FCC docket (more on that shortly), they enthusiastically embrace the concept as long as it remains completely devoid of meaning.
But first, to understand how we got here and why it matters, let’s review the history. When the FCC gave broadcasters the rights to use the spectrum, starting in the 1930s, it offered a simple compact: taxpayers will allow you to use the public’s airwaves—for free—and in exchange you have to serve the community, beyond simply airing the most popular programming.
For a while, the FCC gave stations detailed guidance on how to fulfill these “public interest obligations”—for instance, by having a minimum number of hours of public affairs programming. If the stations didn’t meet the requirements, they would, in theory, lose their licenses. Broadcasters endorsed the compact. As the National Association of Broadcasters testified recently: “Broadcasters have and will continue to take seriously their responsibility as broadcast licensees to serve the public interest.”
Recently, I led an effort at the FCC that evaluated this system. Our report, called “Information Needs of Communities: The Changing Media Landsape in a Broadband Age,” concluded:
Over time, court rulings, constitutional concerns, and FCC decisions have left a system that is unclear and ineffective. The current system of public interest obligations for broadcasters is broken: TV stations are required to maintain programming records and other such paperwork, which FCC staff and members of the public rarely read.
(Some provide detailed descriptions of substantive news programming; others list the sponsorship of an America’s Next Top Model tryout as fulfilling the obligation to provide issue-responsive programming.)
Licenses are routinely renewed, regardless of whether a station is investing huge sums in local reporting or doing no local programming at all. Over the FCC’s 75-year existence, it has renewed more than 100,000 licenses. It has denied only four renewal applications due to the licensee’s failure to meet its public interest programming obligation. No license renewals have been denied on those grounds in past 30 years.
The current system operates neither as a free market nor as an effectively regulated one; and it does not achieve the public interest goals set out by Congress or the FCC. [fcc.gov/infoneedsreport]
But if the system is broken, what should be done instead? As we considered what recommendations this report should make to the FCC, I saw four possible paths.
1) Require the stations to once again do a minimum amount of public affairs programming.
2) Charge the broadcasters a fee for use of the spectrum.
3) Adopt a pure free market system.
4) Emphasize disclosure.
The first option was favored by one of the commissioners, Michael Copps, and some public interest groups. I decided against recommending this because it would necessitate the FCC deciding which stations had done legitimate public affairs programming and which hadn’t. (Does Oprah count? What about weather? Judge Judy?). Broadcasters—appropriately, in my view—opposed this approach.
Alternatively, one could consider more free market solutions—such as imposing a “spectrum fee.” Instead of paying for the use of spectrum by providing “public affairs programming,” broadcasters could give taxpayers cold hard cash. The money might be used to create an endowment for public broadcasting (obviating the need for annual congressional appropriations once and for all)—an approach endorsed by President Reagan’s conservative FCC chairman Mark Fowler, and, more recently, by several prominent liberals. I like this approach in the abstract but concluded that, in the off-chance Congress approved such a fee, the funds would evaporate into the general Treasury rather than helping struggling local media or public broadcasting.
In any event, broadcasters oppose this free market approach, too.
A more radically pure free market system would be to allow the licenses to lapse at the end of their eight-year term and hold auctions for use of the reclaimed spectrum. Broadcasters could pay taxpayers for long-term use of the spectrum and then air whatever programming they wanted. But this would require them to pay substantial amounts of money to secure ongoing use of the spectrum, so they would strongly oppose that free market idea.
Which brings us to the idea of making transparency a cornerstone of media policy. The main remaining element of the public interest obligation is the requirement that broadcasters maintain—on paper, in a filing cabinet—a “public inspection file.” The FCC has proposed replacing the paper files with an online system. Not exactly a radical concept here in 2012. What’s more, technology has made what was once a fairly limp public policy tool—“disclosure”—into something potent. For instance, stations already keep records on how much political advertising is purchased on their channels. Putting that information online would allow the public and reporters to better understand the flow of money in political campaigns.
This approach could enable broadcasters to meaningfully fulfill their public interest responsibilities, but in a First Amendment-friendly way. Tellingly, the deans of the major journalism schools—as sensitive as anyone to press freedom—came out overwhelmingly in favor of the FCC rule.
Yet, amazingly, the local TV news industry—ever eager to demand transparency from others—is opposing the central elements of this initiative, too.
One gets the strong sense that broadcasters are happy to have a “public inspection file” as long as the public is not actually inspecting it. For instance, four TV licensees (in San Diego, Texas, New Mexico, and Illinois) objected to a proposal that the public be notified on air about the existence of the file. “Such announcements may arouse the public’s interest in examining a PIF, but the Licensees do not believe that the Commission should attempt to stimulate such examinations.” Right. We wouldn’t want the public so “aroused” that they would, in their words, play “Sherlock Holmes” rather than engaging station managers in “productive dialogue.”
A comment filed by the stations owned by the major TV networks (NBC, CBS, ABC, Fox, and Univision) suggested that researchers should not expect their task to be made easier by the Internet. “Research by its nature requires the expenditure of effort,” they wrote. And for reporters, “a certain amount of leg work is eminently practical.” (One almost expects them to next blurt out, “in my day, we didn’t have no new-fangled Intertubes; we had to go to the damn library and they should too!”)
It’s almost as if these companies—did I mention that they’re news organizations?—believe their first obligation is to offer creative character-building obstacles to getting information, not to better inform the public.
Let me be honest: as I looked through the possible ways of fixing the broken public interest obligation system, I recommended the one that was least onerous to the broadcasters. Mind you, that wasn’t the reason I picked it; I do believe that in a digital age, transparency done well can be a powerful tool for accountability. But digitizing these disclosures should enable them to better serve their communities and possibly even ultimately reduce their burdens.
Many local news organizations really try to inform their residents, and want to improve. For them, we figured, let’s breathe life into the public interest obligation system in a way that can help them play an even more constructive role. We even recommended some ideas desired by broadcasters. We proposed eliminating the final vestiges of the Fairness Doctrine. We suggested that the federal government shift some of its national advertising budgets—which has been as much as $1 billion per year—toward local media, including TV stations, to help sustain local journalism. We proposed replacing the overly complex “enhanced disclosure” form—intended to log what local programming a station is doing—with a simpler online form. (That idea is on a separate regulatory track and has been endorsed in principle by some forward-thinking broadcasting companies. Perhaps some of the more journalism-minded stations will even offer an approach to the political file dispute that puts them on the side of transparency.)
Yet so far all we’ve seen is the local TV news industry united in opposition to a proposal to make the political and media system more transparent by taking the information they already collect and putting it online — leading us back to the question: What is the fate of the “public interest obligation”? To review: Broadcasters oppose old-fashioned regulatory approaches. They so far oppose modern disclosure efforts. And they oppose free market strategies. To preserve their special form of corporate welfare, they have effectively adopted the motto, “if it is broke, why fix it?”
The answer to that question may have been provided by, of all people, Pope Benedict XVI. In a filing with the FCC, the United States Conference of Catholic Bishops noted the Pope’s warning of the “distortion that occurs when the media industry becomes self-serving or solely profit driven, losing the sense of accountability to the common good.” Online disclosure requirements, the Bishops suggested, “move broadcasters closer to that sense of accountability.” Amen to that.