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Why did the FCC pull its multi-market study monitoring newsroom content?

By Robert Romano Guest Columnist

March 7, 2014

A recent Wall Street Journal oped by Ajit Pai, the sole Republican commissioner of the Federal Communications Commission (FCC), called attention to an alarming study commissioned by the agency that would have “ascertain[ed] the process by which stories are selected, station priorities (for content, production quality, and populations served), perceived station bias, perceived percent of news dedicated to each of the eight [critical information needs], and perceived responsiveness to underserved populations.”


Wrote Pai, “The FCC says the study is merely an objective fact-finding mission. The results will inform a report that the FCC must submit to Congress every three years on eliminating barriers to entry for entrepreneurs and small businesses in the communications industry. This claim is peculiar. How can the news judgments made by editors and station managers impede small businesses from entering the broadcast industry?”


The eight so-called “critical information needs” the study would have looked at were reporting on local emergencies, crime, safety, and security plus health and welfare, education, transportation, economic opportunities, environment, civic information, and political information.


Critics questioned the propriety of sending government monitors question station owners, editors, and reporters to ascertain the basis for First Amendment-protected editorial decisions. Again, it was an alarming step by the agency. And so, the study has now been pulled by the Commission.


An agency spokesperson was surprisingly defensive in its statement “Any suggestion that the FCC intends to regulate the speech of news media or plans to put monitors in America’s newsrooms is false.” She added that the agency is “currently revising its proposed study” to achieve the agency’s goals of viewpoint diversity and opening “barriers to entry into the communications marketplace.”


The official noted “media owners and journalists will no longer be asked to participate in the Columbia, S.C., pilot study. The pilot will not be undertaken until a new study design is final. Any subsequent market studies conducted by the FCC, if determined necessary, will not seek questions from media owners, news directors or reporters.”


This is where the agency got into hot water. Not the study, but that it would have directly confronted journalists over the constitutionally protected decisions they make.


As for the rest, it is actually not unusual for the FCC to engage in studies on media ownership and how that relates to content outcomes.


Every four years the FCC is required to produce “limits on the number of broadcast stations (radio and TV) an entity can own, as well as limits on the common ownership of broadcast stations and newspapers… [and] to determine whether the rules are in the public interest and to repeal or modify any regulation it determines does not meet this criteria,” according to the agency’s website.


In that context, the agency regularly conducts studies on media ownership and how it affects viewpoint diversity. The last such review in 2010 clearly stated the intent of the rules: “The Commission has relied on its media ownership rules to ensure that diverse viewpoints and perspectives are available to the American people in the content they receive over the broadcast airwaves.”


It goes further: “The Commission has regulated media ownership as a means of enhancing viewpoint diversity based on the premise that diffuse ownership among media outlets promotes the presentation of a larger number of viewpoints in broadcast content than would be available in the case of a more concentrated ownership structure.”


Therefore, monitoring content is part and parcel to fulfilling the agency’s mission.


In fact, of the ten such studies on media ownership that were issued in 2010 by the FCC, at least six looked directly at content or content-based metrics, market preferences, the prevalence of programming for minorities, the implications of national news coverage versus local, and other criteria in determining whether stations were viewpoint diverse enough. Similar studies were conducted in 2006, and every four years before that.


One study even considered how media ownership shapes content and in turn political outcomes: “the ownership of media outlets matters viz-a-viz viewpoint, and that the informational content of a media market can have an effect on how people make decisions such as choosing whether or not to vote and, when they do, who to vote for.”


That particular report even referenced a 2006 study, “The Fox News Effect” on the political, electoral impact of Fox News in certain regions. The 2010 FCC study summarized the findings: “indeed there is an impact of the Fox News introduction resulting in a somewhat higher vote for the Republican candidates than would be expected.”


Why does the FCC care who wins elections? Why would it reference a study about Fox News?


Believe it or not, none of this is unusual from the agency’s perspective. After all, they’re supposed to be monitoring station content, right? They could easily claim a legal and regulatory mandate going back decades to engage in the study.


So why was the multi-market study on critical information needs pulled?


Because it is blatantly unconstitutional. Questioning editors and reporters directly about editorial decisions would most certainly have been found to have a chilling effect on the freedom of speech and of the press.


This in turn would have risked judicial scrutiny of the agency’s broader content-based criteria for determining media ownership rules and regulations. And yet, the very regulations that authorized the controversial study in the first place are precisely what need to be questioned — and repealed.


Instead, so far, all that has been proposed is House legislation that would apparently put a stop to just this one study. According to a press release from Rep. Greg Walden’s (R-Ore.) office, the House Energy and Commerce Committee “will pursue legislative solutions to take the Federal Communications Commission’s Critical Information Needs (CIN) study off the books.”


Great, but what about the dozens of similar government studies and analyses that do the same exact thing, which is to monitor the content of media outlets to ensure the “viewpoint diversity” of stations? Shouldn’t those be taken off the books, too? Walden seemed to acknowledge the need for a wider legislative fix: “we will do whatever it takes to ensure this study or any other effort by the government to control the output of America’s newsrooms never sees the light of day.”


Since the House legislation has not yet been drafted, here’s a suggestion: Eliminate the agency’s entire mission to regulate media ownership and remove any legal mandates to monitor media content for viewpoint diversity as the egregious violations of press freedom they are.


Robert Romano is the senior editor of Americans for Limited Government.