We’ve written much about the FCC Localism proceeding and the potential for some resolution of that proceeding in the near term. At the NAB Radio Show, held the week before last, FCC Chairman Kevin Martin suggested that broadcasters should voluntarily agree on a localism plan before there is any change in the administration at the FCC, suggesting that a future FCC may be less willing to compromise than the current one. Of course, a voluntary plan does not mean a code of conduct that broadcasters could unilaterally adopt and voluntarily agree to abide by, but instead it appears to be a request for standards that are voluntarily agreed to by broadcasters and then turned into some version of mandatory rules by the FCC. In a recent article in TV Newsday, some details of what the Chairman would like to see, and what he has apparently suggested to several state broadcast associations, are set out.
According to the article, a significant piece of the Commissioner’s suggested plan would include a requirement (or an option) for broadcasters to meet a mandatory localism obligation by funding investigative journalism conducted by journalism schools at various universities throughout the country. Apparently, stations that funded such journalism, or which aired the stories produced, would get some sort of localism credit. But what would this mean, and how would it impact broadcasters?
The first question is whether this proposal would, in and of itself, be sufficient to meet all of broadcaster’s obligations. There has been some talk of a menu plan, similar to what the FCC uses to assess EEO compliance, by which a broadcaster’s localism and public service performance could be measured. Would the funding of journalism programs be but one of many menu options that a broadcaster could choose from in deciding how to serve his or her community, or would it be the only required obligation? If it is the only obligation, it would seem to raise many issues – including practical ones (how many stations could rely on the same story, how much programming can these schools really produce and how much money do they need) and some that are more of an issue of legal theory – to what extent can the FCC compel a station to fund journalism that they may not agree with, or to air the product of that journalism – as the sole way of meeting its public service obligations. Would it violate the First Amendment rights of broadcasters? Even if this is just viewed as a safe harbor (i.e. do it and the FCC can’t come after you), if it is the only safe harbor proposal that is set out, such a plan would essentially make compliance mandatory as no broadcaster would want to risk having their other efforts fall short of meeting FCC requirements under a case-by-case analysis.
These and many other issues will no doubt have to be resolved before any progress can be made on this issue. And with the election only a month away, and a new administration taking the reins of government in less than four months, is there still time for this FCC to act on this proposal? It remains to be seen.