So does the mid-term election have any impact on broadcast regulation? While no one knows for sure what the political winds of Washington will have in store, in reading the analysis of the Tuesday election results, I was struck by the conclusions contained in one Op-Ed article in the Washington Post on the message of last week’s Mid-Term elections, and the contrast of that perceived message to an article that had run in the same pages just a week before. The earlier article dealt specifically with the future of media in the 21st century, and the suggested that, rather than cutting back on taxpayer funding of public broadcasting, as some have suggested, the government should take more steps to provide funding. this article suggested that there be a tax on commercial broadcasters, and the monies received from the tax should be used to fund public media. A similar proposal had been included in a Federal Trade Commission staff discussion draft issued earlier this year in the FTC’s exploration of the effect of new technologies on newsgathering. Both of these proposals were made in the name of providing funding to public broadcasting sources to produce more news in light of the struggles of commercial news outlets in today’s media world. The FCC’s own Future of Media task force is expected to issue a report before the end of the year on how the government should take steps to ensure that the media in the 21st century provides citizens with the information that they need to make informed decisions on civic issues. Proposals made in both the FTC and FCC proceedings involve everything from changes to copyright law to provide more Federal protection to news reporting, to suggestions similar to those made in the FCC’s localism proceeding for specific mandates as to how much and what kind of news and information programming licensees must provide.
The proposals for the government to get involved in making the media better stuck me as being in stark contrast to the findings of a Democratic pollster reported in Sunday’s Washington Post, finding that the voters in last week’s elections were most interested in a government that was limited and efficient. Voters were not totally adverse to government involvement – but favored that involvement only in connection with issues where it was perceived that the action could really make a difference, and only where the involvement was clear, efficient and effective. While this opinion piece had nothing specific to say about media regulation – if in fact the article accurately reflects the message of the election, does it make sense that the government should be getting involved in the decisions about the future of the media? Will any regulation that comes out of these proceedings be regulation that will be efficient and effective, with a minimum of red tape? From my discussions with broadcasters, many are afraid that it will not.
As those who regularly read the posts on this blog, I regularly speak with broadcasters around the country at various meetings and seminars, as do other attorneys in our group. Broadcasters everywhere are interested in better serving their communities, and in figuring out how to meet the competition from the new media. That competition can only be met by better serving local communities – not by providing content that can be just as easily provided by satellite or Internet providers. But, while broadcasters know that they have to serve their local communities, they don’t want to be told by the government how they are supposed to provide such service. The needs of each community – and of the audience of each station – are different, and the broadcaster is in the best position to determine how that need is best met. Rules that might seem appropriate and reasonable for a station in New York or Washington, aren’t going to necessarily work for a station in Oshkosh, Wisconsin or Tri-Cites, Washington. In fact, a radio station in a small community may very well not even be able to implement a plan that the government – looking at major market stations where the most attention is always focused – might think reasonable. And, whether that is a tax or a specific set of regulations, the ability of any of these government agencies to dictate how the public can best be served by broadcasters is suspect.
As the agencies consider these proposals, there will no doubt be more review of their actions by Congressional committees, some of which may be more suspicious of any regulations imposing any burdens on business. In fact, there are reportedly issues about who is conservative enough to be chair of the House Energy and Commerce Committee that oversees the FCC. But while Congressional oversight may influence Commission decisions, Congress rarely intervenes to overturn any FCC actions once they are taken. Thus, the actions of the FCC and the other government agencies looking at issues about the future of the media are important.
The FCC’s Future of Media study will provide important input into the FCC’s proceeding on potential revisions to the multiple ownership rules, and to the still unresolved proceeding on localism. We hope that any recommendations that come from the study will truly be limited to those which really will be limited and effective, and not one size fits all regulations that will impose obligations without demonstrable and achievable benefits.