What Bugs Me About ‘Localism’

The FCC has turned into Mr. Peabody, ushering all of us Shermans into the Wayback Machine so that we can re-live the halcyon days of regulation.
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(click thumbnail)Get out your leisure suit, polish up that disco ball, slap some Donna Summer on the turntable and brush up your old Hustle steps. We’re heading back to the 1970s, thanks to the FCC.

In November the commission announced that it has decided to require television licensees to file, with the commission in Washington, standardized quarterly reports describing a host of programming information as well as additional information “about efforts that have been made to ascertain the programming needs of various segments of the community.”

While the radio universe likely breathed a sigh of relief that it had dodged that new regulatory bullet, the relief may be short-lived.

In testimony delivered to a congressional hearing, Chairman Martin later touted a proposal currently circulating among the commissioners that would, among other things, impose “processing guidelines that will ensure that all broadcasters provide a significant amount of locally-oriented programming.”

According to Martin, his proposal would also require that “licensees establish permanent advisory boards in each community (including representatives of underserved community segments) with which to consult periodically on community needs and issues.”

The FCC has turned into Mr. Peabody, ushering all of us Shermans into the Wayback Machine so that we can re-live the halcyon days of regulation.

Defining terms

Don’t get us wrong. We here at Cole’s Law firmly believe that localism is a good thing, and that the broadcast industry is at its best when it addresses local needs and interests in an accessible, meaningful manner.

But the commission is wrong if it thinks additional reporting requirements will result in new and improved programming.

Of course, it’s not at all clear that any need exists for such additional requirements. For sure the FCC can’t know that, because it has absolutely no way of knowing with certainty or precision what programming has been or is being broadcast. And any attempt to develop some factual record on that score would be severely hamstrung by the commission’s own actions since deregulation began in the early 1980s (which you can read all about in an illuminating law review article prepared by members of Team Cole’s Law at www.fhhlaw.com/Articles/TheMythoftheLocalismMandate.pdf).

Moreover, before any record concerning actual program practices could be developed (much less new programming rules imposed), the FCC would have to define with precision some very imprecise terms.

What, after all, is “civic programming” or “independently produced programming” — and what, for that matter, does “local” mean in this context?

We don’t want to get all lawyerly and hypertechnical here, but if the FCC is going to threaten some kind of dire consequence because of a failure to provide enough “local” programming, then it should be sure first to let us all know what it means by “local.”

Oh yeah, and even if it defined its regulatory terms, the FCC would also have to come up with some reasonably precise quantitative standards.

How much “local” programming (whatever that may be) is enough? And even if the terms could be defined and the quantitative standards devised, how many FCC staffers is it going to take to evaluate the program showings being submitted, and how are those staffers going to be able to evaluate those showings?

And in the end, with a huge dedication of resources, the FCC would find itself in the business of deciding what is “news,” what is “local,” what is “enough” coverage of particular issues, etc., etc. — precisely the types of editorial determinations the First Amendment entrusts to private editors, and from which the First Amendment bars the government.

Irony

One of the biggest ironies here is that the burden of program regulation would likely hit small broadcasters harder than the big guys.

Smaller operations can’t scale compliance costs like the bigger folks can, so they’re likely to suffer more — and possibly even cut back “local” programming. But smaller broadcasters may be among those most likely to be locally owned and, therefore, presumably more likely (at least in the FCC’s eyes) to be “responsive” to local needs.

How’s that for the law of unintended consequences?

Plus, even in the most recent heyday of program regulation, the commission routinely granted virtually all renewal applications whether or not their program showings fell well below the informal “processing guidelines” then in place.

Don’t take our word for it — go see what two commissioners (Cox and Johnson) said when they repeatedly dissented to such en masse grants after careful review of the applications convinced the commissioners that the renewal applicants had not necessarily served the public interest.

So it’s not like the FCC has historically cared whether or not the paperwork chores it imposes ultimately lead to “better” programming.

In view of that history, a sudden return to the days of yesteryear makes little or no sense (as dissenting Commissioner McDowell commendably seemed to observe).

One of the dirty little secrets of the “localism” question is that the FCC does not have to involve itself in that question at all. While the Act doesn’t preclude the FCC from imposing some “localism” obligation, the Act does not require the FCC to do so.

But despite that, the FCC seems preternaturally drawn to program regulation.

As we said to the FCC directly, in a set of rulemaking comments filed in the ongoing “localism” proceeding:

Commission concern about broadcast “localism” closely resembles the 17-year cicada in a number of respects. Both emerge after periods of dormancy lasting more than a decade, both generate considerable noise during their emergence, both tend to result in messes requiring clean-up activities well after each emergence has ended, and neither accomplishes much at all, other than to lay the groundwork for the next emergence.

Of course, like the cicada’s periodic appearance, the urge to publicly embrace “localism” may be an irresistible, genetically-engrained phenomenon.

But while a cicada, emerging from its long dormancy, presumably cannot reflect on the experience of the generations of cicadas which have gone before, the commission can do so. Team Cole’s Law sure hopes that the FCC takes a long and careful look at its own history before it tries to repeat it.

RW welcomes other points of view.

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