REGULATING THE AIRWAVES

December 17, 2010

"What we have had in recent years is an aberration in which we’ve had no oversight of media." So says FCC commissioner Michael Copps, who is now advocating the institution of a quadrennial “public-value test” for broadcasters. If he gets his way, stations across the country could be put on probation, and subsequently denied FCC licensing, for failure to meet a broad set of criteria involving local coverage, percentage of resources devoted to news, and several kinds of disclosure.

Speaking to Betty Kays of the BBC’s World News America, Copps, a Democrat, explained his reasoning. Journalism is, he said, in its hour of “grave peril.” The “American media has a bad case of substance abuse.#…#We are not producing the body of news and information that democracy needs to conduct its civic dialog.#…#We’re going to be pretty close to denying our citizens the essential news and information that they need to have in order to make intelligent decisions,” he added.

This has raised speculation on the right that Copps hopes to effect that perennial leftist dream — the revivification of the Fairness Doctrine, which from 1928 until 1987 allowed government regulators to carefully police radio stations to ensure equal allocation of time to opposing political viewpoints, and whose destruction during the Reagan years permitted the emergence of talk radio as we now know it.

Copps denies an intention to revive the Fairness Doctrine, but the end of that policy was part of the “aberration” — the communications deregulation — he referred to. When pressed on the specifics of what he would like to implement, Copps, a former history professor and decades-long civil servant, denies that his plans raise the “specter of overt government control” of acceptable opinions. “It’s not that kind of value,” he told the BBC regarding the public-value test. “What we’re talking about is, are you producing news, are you putting more resources into news and information? We’re such a diverse country now#…#[and] so many stations are owned by absentee owners hundreds or thousands of miles away.#…#So this is a minimal assertion of the public interest.”

In a speech to the Columbia Journalism School on December 2, Copps clarified. First he asserted the FCC’s right to demand more of broadcasters by saying that they have “free use of airwaves that belong exclusively to the people,” and therefore can be expected to use them in the “public interest.” (Critics contest even this fundamental point by highlighting a Catch-22: The FCC artificially limits the spectrum usable for radio broadcasting, and then uses the “scarcity” of frequencies as the basis for arrogating to itself the power of regulating their use on behalf of the public.)

Copps proceeded from that premise to list the goals he considers instrumental to adequately protecting the public interest, which he would like to see the FCC move toward quickly: “meaningful commitments to news and public-affairs programming”(measured by man-hours and money devoted to news); “enhanced disclosure” (requiring stations to make their program content easily available online so that citizens can decide whether they are worthy of public support); “political-advertising disclosure” (both of campaign material and the political interests that might be behind other advertisements); “reflecting diversity” (increasing minority employment and guarding against stereotyping of minorities); “community discovery”(requiring programmers to interact with and investigate their areas); “local and independent programming” (devolving the control and focus of stations to better reflect local concerns); and “public safety.” Copps concluded the 4,000-word speech by saying, “These few criteria for a public-value test are neither excessive nor onerous.”

On December 6, Rep. Joe Barton (R., Texas) shot back in a public letter to the commissioner. “I do not believe the subjective opinions of five unelected officials,” he wrote, “should hold sway over the content broadcasters air of the licenses they hold to air it.” He demanded to know if Copps believed “the FCC should reinstate the Fairness Doctrine,” and asked, somewhat rhetorically, if “five commissioners can do a better job of ensuring American have access to a wide diversity of content and viewpoints than Americans can themselves by expressing their preference through their viewing and listening choices in the vigorously competitive marketplace.”

On December 10, commissioner Copps replied. “The Fairness Doctrine is long gone and it’s not coming back,” he reiterated. Copps even turned Congressman Barton’s rhetoric about diversity of viewpoints around by saying the proposed “public-value test” would serve exactly that end — by preventing massive centralization of media around a few powerful centers via, for example, the local-coverage requirements.

A spokesman for the FCC clarifies that the FCC has not yet taken any action to assert more control over the airwaves. Copps’s ideas are, at this point, just his recommendations, which he is advancing in public fora, rather than through his official powers. But he’s been explicit about his desire to eventually implement the above goals, and unshaken by the sharp questioning and criticism he’s received. In order to move forward, Copps will require three votes (his own included) from the five FCC commissioners. At that point, the policy will apply to the public airwaves (but, of course, will not touch cable news, etc.).

The FCC spokesman believes that Copps has received unfair criticism. He insists that Copps’s proposals are not comparable to the Fairness Doctrine — Copps intends only to police the relative allocation of time and financial resources to different kinds of coverage, not to police the views expressed in the opinion portion of programming.

The FCC is right to point out that — some hyperbolic rhetoric aside — no reinstatement of the Fairness Doctrine, massive crackdown on talk radio, or institution of state-run media is imminent. But they’re wrong to be dismissive of critics’ concerns. It’s unclear whether political-opinion shows count as “news” programming, and the proposed increase in local news would necessarily cut into the time that stations can allot to national opinion shows such as Rush Limbaugh’s and Alan Colmes’s. The boundary separating news from opinion is contested and philosophically fraught — to demand more of what unelected administrators consider to be news at the expense of what they consider to be opinion can itself be a way of advancing some opinions over others. The nature of the “public interest,” which Copps takes it upon himself to advance, is itself contested. It is elitist presumption for highly placed bureaucrats to push citizens and journalists away from talk-radio-style opinion, and toward the approved “public interest” programming, when the nature of the public interest is the very thing citizens are supposed to democratically debate, in the media and elsewhere, and decide.

In the abstract, Copps’s ostensible goals aren’t purely objectionable (local news may well be more useful to the average citizen than more from the Washington circus, for example). But in practice, Copps’s recommendations — however well intended — necessarily entail expanding the power of bureaucrats to monitor media content, power which can then be used for objectionable and politicized goals. It’s not just talk-radio-loving conservatives who should be worried, either. Richard Nixon used the Fairness Doctrine against his enemies list during his presidency, for example — every political faction can be tempted to abuse regulatory power. It’s not difficult to imagine ways in which requirements that radio have more news time, more local coverage, and less opinion, could be used to muffle critics of any administration.

There is a long and ignoble tradition, dating back to Plato’s Phaedrus, of fear of chaos introduced by new media (Plato’s dialecticians were worried that writing would disastrously impoverish Greek oral traditions and learning). In the light of history, Commissioner Copps’s concerns about uncontrolled airwaves may seem as silly and elitist as medieval scholastics’ objections to the printing press, or as clearly politicized as earlier not-so-subtle attempts to crack down on talk radio.

It is disappointing that such a prominent official of a government founded on free speech considers the past decades of media deregulation — which significantly increased the range of options available to consumers of news — a lamentable “aberration.”


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