Posted on July 19, 2009 by David Oxenford

The Potential for the Return of the Fariness Doctrine and the FCC's Assessment of the Quality of Broadcast News - What Would Walter Cronkite Think?

With much of the media world celebrating the life of Walter Cronkite this weekend, we have to wonder what he would have thought about press reports that the FCC is considering the commencement of a proceeding to investigate the status of broadcast journalism - assessing its quality, determining whether the Internet and other new sources are making up for any quality that is lost, and potentially deciding to mandate specific amounts of news coverage by broadcast stations. That surprising story about a planned FCC Notice of Inquiry on the state of broadcast journalism was reported in an an online report picked up by the broadcast trade press last week.  And even if that story is not true, concerns about the government's intrusion into a broadcaster's coverage of controversial issues arise from the recent Congressional committee action voting down a bill that would ban the FCC from reinstating the Fairness Doctrine.  In what should have been a symbolic embrace of the First Amendment (symbolic as, in the last 6 weeks, four of the FCC Commissioners or Commissioners-to-be disavowed any interest in bringing back the Fairness Doctrine in their confirmation hearings ), the defeat of the bill raises questions as to whether someone has an agenda to resurrect the government's role in assessing broadcast media coverage of controversial issues.  In reading one of the many stories of the life of Cronkite (here, at page 3), we were stuck with the contrast between these actions, and the actions of Mr. Cronkite to address controversial issues - regardless of the FCC implications.  One anecdote related his questioning of John Kennedy about his religion when Kennedy thought that topic off limits, even in light of the potential president's veiled threat that, when he took office, he would be appointing the FCC who would be regulating CBS.  Do we really want the FCC to have that power to assess what journalism is good, or what opinions each station must air to ensure "fairness"?

In reviewing the many FCC Fairness Doctrine claims that CBS faced in the Cronkite era, we are struck with the amount of time and money that must have been spent in defending its coverage against critics from both the right and the left.  We also found one particularly relevant quote from Mr. Cronkite himself: 

That brings me to what I consider the greatest threat to freedom of information: the Government licensing of broadcasting. Broadcast news today is not free. Because it is operated by an industry that is beholden to the Government for its right to exist, its freedom has been curtailed by fiat, by assumption, and by intimidation and harassment. 

 

 In the last 20 years, since Mr. Cronkite's retirement as the CBS anchor, the FCC has steadily moved away from the role that he feared.  Yet with these recent actions, one wonders if there are some in government now trying to prove Mr. Cronkite's concerns correct.

We are somewhat dubious that the FCC has the resources to assess “quality” journalism.  But even if it was to apply resources to the task, how can it do so consistent with the First Amendment?  Such an investigation would be a retreat from the FCC's open-minded recognition in the last decade that the public receives information from many types of broadcast programming - not just the so-called "hard news."  In the political broadcasting arena, the FCC has recognized that the broadcast audience can obtain valuable information, information worth protecting as “bona fide news interviews” not subject to the equal time rule, from diverse sources – even from programs as diverse as Entertainment Tonight, The Tonight Show or Howard Stern (see our post here).  While these programs may not be the ones that some people think should exemplify sources of news and information for the public, others may well see these programs are providing commentary on issues about which they care. Should the government forbid that choice? 

The justification for any regulation mandating “good news” might include the claim that a mandate is not saying that programs such as ET or Howard Stern should not air, just that "quality news" should also be aired.  But any mandate to air any sort of program has its consequences in that there is simply a limited amount of broadcast time.  Mandating some types of programs will of necessity require that others not be aired. For the government to make the decisions as to what will air and what will not would seem to violate the First Amendment. Whenever I look at these sorts of issues, I always ask “what if that regulation was applied to a newspaper? Would it seem reasonable under the First Amendment?”  In this case, imagine if the Federal government was to tell the New York Times, or the New York Post (or, for that matter, the National Enquirer) that it didn’t like the quality of some of its stories, and it should only publish more stories that were “quality” stories. You could imagine the howls of protest that would follow. Shouldn’t those same howls follow here?

 

Any proposal to mandate news on every station looks back to a different time in broadcasting, the time in which Walter Cronkite could be the most trusted man in American.  It was a time when there were three commercial television stations in most markets, and a handful of radio stations, and all could afford to do news. Along with the local newspaper (or newspapers), these were the only real sources of breaking news in a community.  In today’s media world, that simply is not the case. The competition for the delivery of news and information is just too vast.  Thirty years ago, this blog or the thousands like it would not have existed.  Just as newspapers are having tremendous financial difficulties because of enormous amount of media competition (and accelerated by the slump in advertising sales tied to the state of the economy), broadcasters too are feeling the same pressures. On the same day that the story about the potential FCC investigation of broadcast news broke, another story ran in the Washington Post, reporting on the reorganization and potential downsizing of the newsroom at NBC’s Washington DC owned and operated station – one of the DC market's news leaders for many years.   When successful network owned stations are forced to change their operations to adapt to the new media marketplace, one recognizes that this is simply not the same media world that may have existed 30 years ago.

 

Media fragmentation leads to the fragmentation in the delivery of news and information.  The government cannot put the genie back in the bottle.  To mandate that each station cover the "news" in a community, when each station may be catering to just a niche audience in that community, is to miss the reality of today's media.  To force perceived "fairness" on every issue is to insure bland programming that stays away from controversial viewpoints (see some of our previous posts on this issue). 

 

We trust that we are reading far more into the press report of the FCC Notice of Inquiry, and into the action of the House Committee on the Fairness Doctrine.  At this time when we honor a giant of broadcast journalism, let's hope that the government honors his legacy, and ensures that the broadcast press remains free. 
Tags: , , , , , , , , , , ,
Posted on June 21, 2009 by David Oxenford

MusicFirst's Complaint to the FCC: The First Amendment and the Performance Royalty

The MusicFirst coalition last week asked that the FCC investigate broadcast stations that allegedly cut back on playing the music of artists who back a broadcast performance royalty, and also those stations who have run spots on the air opposing the performance royalty without giving the supporters of the royalty an opportunity to respond.  While the NAB and many other observers have suggested that the filing is simply wrong on its facts, pointing for instance to the current chart-topping position of the Black Eyed Peas whose lead singer has been a vocal supporter of the royalty, it seems to me that there is an even more fundamental issue at stake here - the First Amendment rights of broadcasters.  What the petition is really saying is that the government should impose a requirement on broadcasters that they not speak out on an issue of fundamental importance to their industry.  The petition seems to argue that the rights of performers (and record labels) to seek money from broadcasters is of such importance that the First Amendment rights of broadcasters to speak out against that royalty should be abridged.

While the MusicFirst petition claims that it neither seeks to abridge the First Amendment rights of broadcasters nor to bring back the Fairness Doctrine, it is hard credit that claim.  After all, the petition goes directly to the heart of the broadcasters ability to speak out on the topic, and seems to want to mandate that broadcasters present the opposing side of the issue, the very purpose of the Fairness Doctrine.  As we've written, the Fairness Doctrine was abolished as an unconstitutional abridgment on the broadcaster's First Amendment rights 20 years ago.  As an outgrowth of this decision, FCC and Court decisions concluded that broadcasters have the right to editorialize on controversial issues, free of any obligation to present opposing viewpoints.  What is it that makes this case different?

The MusicFirst claim is that this case is different in that broadcasters have a self-interest in the topic.  Yet, seemingly, that argument goes too far, as a restriction on broadcasters editorializing on topics in which they have some interest could very well eviscerate the First Amendment rights that they have now had for so many years.  For instance, editorials on tax policy, health insurance, utility rate hikes, and even local bond issues may well have a direct impact on the broadcaster, but no one suggests that these topics are off limits.  Even an editorial supporting or opposing a political candidate, the heart of the editorial right for newspaper publishers and now enjoyed by broadcasters, could be seen as potentially having a financial impact on the broadcaster.  The MusicFirst petition does not address why these issues are somehow different from the performance rights issue, or why artists are entitled to more rights than supporters of positions that may be contrary to the broadcaster's position on other issues.

Moreover, it was clear even before the abolition of the Fairness Doctrine that broadcasters are not "common carriers," meaning that they do not have to accept every ad or message that anyone wants to put on their airwaves (Common carriers, like telephone companies, have to transmit every message that is given to them).  The broadcaster can serve as an editor or journalist, picking and choosing the message that it wants to convey to its listeners.  The only exception is for Federal political candidates, who have legislated a right of "reasonable access" - legislation that has not been challenged in the Courts in recent memory.  But regardless of the rights of political candidates, this exception is in no way relevant to the MusicFirst Coalition.

The MusicFirst petition also suggests that broadcasters may be improperly characterizing spots that they run against a performance royalty as Public Service Announcements ("PSAs").  Yet that also is not a relevant criticism, as the FCC did away with all of its mandatory program logging requirements back in the 1980s.  Thus, whether broadcasters characterize the announcements are PSAs, or Entertainment or News or anything else has no current significance for regulatory purposes.  Note that the localism rules adopted but not yet effective for TV, and those proposed for radio, would bring back the mandatory classification of broadcast programs and give the PSA classification regulatory significance if and when these proposed rules become effective.  But it is certainly not an objection at this point.

The PSA suggestion is tied into another claim that the radio broadcasters running these announcements may not be meeting their public file issues under the Bipartisan Campaign Reform Act ("BCRA") which requires that a broadcaster who runs advertising discussing "Federal issues" put information into their public files similar to that which is maintained for political candidates (see our post, here, for details on that requirement).  While we have advised our clients to comply with these rules, especially if anything of value has been provided to the station in connection with the ads (including scripts or pre-produced spots), where the station airs its own editorial message on the issue, the spots do not seem to fall into the BCRA requirements as they are not sponsored programming, which is essentially what those requirements address.

Ignoring other procedural and substantive issues in the petition (including its failure to name names - in most cases omitting information about the stations which supposedly engaged in the complained of conduct and of the artists who were discriminated against), the issue seems to boil down to a First Amendment issue.  No one would suggest that performers be required to allow broadcasters to attend their concerts to speak against the royalty, so why should broadcasters be compelled to give voice to a position to which they are fundamentally opposed?  We will see what the FCC does with the MusicFirst petition in coming months.  Given the recent statements of the proposed new Chair of the FCC at his confirmation hearing that he has no intention of reviving the Fairness Doctrine, the prospects are that this petition will be simply one more publicity volley in a protracted war over the broadcast performance royalty.
Tags: , , , , , , , , , , , ,
Posted on May 3, 2009 by David Oxenford

Remember FCC Public File Obligations When Running Issue Advertising

We’re not even in what most would consider election season - except for the two states with off-year governor’s contests and those other states with various state and municipal elections. Yet political ads are running on broadcast stations across the country.  Republican groups have announced plans to run ads attacking certain Democratic Congressmen who are perceived as vulnerable, while certain Democratic interest groups have run ads about the positions of Republicans on the Obama stimulus package and the President’s proposed budget.   In addition to these ads targeting specific potential candidates, there are issue ads running across the country on various issues pending before Congress, or likely to be considered by Congress in the near term. These ads often have a tag line “write or call your Congressman and tell him to vote No” on whatever bill is being discussed. While these are not ads for political candidates that require lowest unit rates or specific equal opportunities, they do give rise to political file issues.  Stations need to remember to observe these requirements and put the required information into their public file to avoid FCC issues.

Under provisions of the Bipartisan Campaign Reform Act, when a station runs an ad addressing a “Federal issue”, the station must keep in its public file essentially all the same information about the ad that it would maintain for a candidate ad. The station must identify the spot and the schedule that its sponsor has purchased, the identify of the sponsor (name, address and list of principal executive officers or directors), the class of time purchased, and the price paid for the ads.  Federal issues are ones that deal with a Federal election or with any issue to be considered by Congress or any Federal government agency.

Even ads dealing with state or local issues (e.g. school bond issues, zoning disputes, state ballot initiatives) require some public file disclosures.  While stations do not need to provide information about the entire schedule and the price of spots purchased in connection with controversial issues of state or local importance, they do need to maintain in their public file a list of the sponsoring organization's chief executive officers, the members of its executive committee, or its directors.  Maintain those files – and stay out of potential FCC trouble.
Tags: , , , , , , ,