Paradoxes of media policy analysis: Implications for public interest media regulation

Administrative Law Review

Volumn 60, Issue 4, 2008, Pages 801-811

  Napoli, Philip M ^a,b  

^a Donald McGannon Communication Research Center   (United States)

^b FORDHAM UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

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EID: 77956173539     PISSN: 00018368     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (74)

1. Syracuse Peace Council, 2 F.C.C.R. 5043, 5052(1987), aff'd sub nom. Syracuse Peace Council v. FCC, 867 F.2d 654 (D.C. Cir. 1989) ("[W]e concluded that, in operation, the fairness doctrine actually thwarts the purpose which it is designed to achieve. We found that the doctrine inhibits broadcasters, on balance, from covering controversial issues of public importance. As a result, instead of promoting access to diverse opinions on controversial issues of public importance, the actual effect of the doctrine is to 'overall lessen the flow of diverse viewpoints to the public.'" (citation omitted)).
2. Inquiry into Sec. 73.1910 of the Commc'ns Rules & Regulations, 102 F.CC.2d 145, 158 (1985) (report).
3. See id. at 145-46 (describing the Commission's inquiries contained in the report).
4. Id. at 158.
5. 395 U.S. 367, 392-93 (1969) (assessing the constitutionality of the Fairness Doctrine and describing the possibility that broadcasters would eliminate controversial programming in order to circumvent the doctrine as "at best speculative").
6. See Syracuse Peace Council, 2 F.C.C.R. at 5049-52 (discussing the Federal Communication Commission's (FCC or Commission) creation of the 1985 Fairness Report and its subsequent findings).
7. Inquiry into Sec. 73.1910 of the Commc'ns Rules & Regulations, 102 F.C.C.2d at 146 ("More than one hundred parties submitted formal comments and reply comments in this proceeding. Many other persons participated in this proceeding through the submission of informal comments." (citation omitted)).
8. See, e.g., Thomas W. Hazlett & David W. Sosa, Was the Fairness Doctrine a "Chilling Effect "? Evidence from the Postderegulation Radio Market, 26 J. LEGAL STUD. 279, 299-300 (1997) ("Within the legislative policy debate, the FCC has been criticized by Congress for its 1985 finding that the [Fairness Doctrine] 'chilled' free speech, precisely on the grounds that it reached such a conclusion lacking any factual or 'statistical' basis." (citation omitted));
9. Inquiry into Sec. 73.1910 of the Commc'ns Rules & Regulations, 102 F.C.C.2d at 180, 185 ("A number of parties characterize the statements made by broadcasters that document the existence of 'chilling effect' as mere 'self-serving' utterances to which the Commission should accord little probative value. ... In addition, several supporters of the retention of the fairness doctrine argue that the record in this proceeding provides inadequate support of a 'chilling effect' on the grounds that the NAB, in the appendix to its comments, 'merely' provided 45 examples of the way in which the fairness doctrine chills broadcasters' speech." (citation omitted));
10. Syracuse Peace Council v. FCC, 867 F.2d 654, 662 (D.C Cir. 1989) ("Several parties, however, have attacked the evidence of broadcaster chill and what they contend is the Commission's failure to respond adequately to the attacks.").
11. See Syracuse Peace Council v. FCC, 867 F.2d at 669 ("We conclude that the FCC's decision that the fairness doctrine no longer served the public interest was neither arbitrary, capricious nor an abuse of discretion....") .
12. See id. at 660-66 (analyzing and upholding the evidentiary sources the Commission relied upon in the 1985 Fairness Report).
13. See id. at 660 ("The FCCs decision that the fairness doctrine no longer serves the public interest is a policy judgment.... In this situation, we owe great deference to the Commission's judgment.").
14. Id. at 669.
15. See Robert Corn-Revere, Economics and Media Regulation, in MEDIA ECONOMICS: THEORY AND PRACTICE 71, 83 (Alison Alexander et al. eds., 1993) (describing the FCCs move away from an "intuitive model" of policymaking and the agency's "newly discovered interest in 'the collection of economic data and analysis'...." (citation omitted));
16. Philip M. Napoli, The Unique Nature of Communications Regulation: Evidence and Implications for Communications Policy Analysis, 43 J. BROAD. & ELEC. MEDIA 565, 576-77 (1999) (discussing the implications of this trend for communications policymaking).
17. See Napoli, supra note 13, at 571-73 (discussing decisions made in the D.C. and Seventh Circuits).
18. Data Quality Act, Pub. L. No. 106-554, §515, 114 Stat. 2763, 2763A-153 (2000).
19. See infra notes 21-38 and accompanying text.
20. See infra notes 39-53 and accompanying text.
21. See DEBORAH STONE, POLICY PARADOX: THE ART OF POLITICAL DECISION MAKING 6-7 (1997) (describing the "rationality project" that she sees as "a core part of American political culture almost since the beginning");
22. see also BRUCE BIMBER, THE POLITICS OF EXPERTISE IN CONGRESS: THE RISE AND FALL OF THE OFFICE OF TECHNOLOGY ASSESSMENT xi (1996) (noting that the "possibility of isolating objective truths from human values, and the ability to capture what is most important about public life with science, shapes both experts' attempts to inform policymaking and scholars' struggles to define methodology for understanding political action");
23. Kurt Finsterbusch & Mary R. Hamilton, The Rationalization of Social Science Research in Policy Studies, 19 INT'L J. COMP. SOC. 88, 88 (1978) ("Social scientists are becoming increasingly involved in policy research.").
24. See generally THOMAS O. MCGARITY, REINVENTING RATIONALITY: THE ROLE OF REGULATORY ANALYSIS IN THE FEDERAL BUREAUCRACY (1991).
25. See supra notes 13 & 14.
26. See James G. Webster, The Role of Audience Ratings in Communications Policy, 12 COMM. & L. 59, 63 (1990) ("[T]he FCC stopped collecting financial statements from broadcasters several years ago.").
27. See John Dunbar, A Penchant for Secrecy: Why Is the FCC So Determined to Keep Key Data from the Public?, THE CENTER FOR PUBLIC INTEGRITY, May 22, 2003, http://projects.publicintegrity.org/telecom/report.aspx?aid= 18 (noting that incomplete cable system subscriber data were found in the FCCs Cable Operations and Licensing System database due to the fact that "the FCC stopped collecting it after 'deregulation' of the industry in 1994").
28. See Radio Broadcast Services: Revision of Applications for Renewal of License of Commercial and Noncommercial AM, FM, and Television Licensees, 49 Rad. Reg. 2d (P&F) 740, 741 (1981) (adopting a simplified application as the standard for license renewal).
29. Robert M. McDowell, Comm'r, Fed. Commc'ns Comm'n, Keynote Address at the 2008 Quello Communications Law and Policy Symposium 4-5 (Apr. 23, 2008) [hereinafter McDowell Address], available at http://hraunfoss.fcc.gov/edocs- public/attachmatch/DOC281772Al.pdf.
30. See id. at 4 ("I cast a dissenting vote against this new form . . .."). See generally Standardized and Enhanced Disclosure Requirements for Television Broadcast Licensee Public Interest Obligations, 23 F.C.C.R. 1274 (2008).
31. Commissioner McDowell said the following: Although the Commission has not mandated certain types of programming, we are regulating with a wink and a nod by requiring lists of such programs. Why does the FCC need a list of the religious programming aired on a station? Why do we require a list of all local civic affairs programming? Why do we need to know whether it was locally produced or part of a regularly scheduled program? McDowell Address, supra note 23, at 5.
32. THOMAS C. SPAVINS ET AL., THE MEASUREMENT OF LOCAL TELEVISION NEWS AND PUBLIC AFFAIRS PROGRAMS, FCC MEDIA BUREAU STAFF RESEARCH PAPER 2002-7 (2002), available at http://hraunfoss.fcc.gov/edocs-public/attachmatch/DOC-226838A12. pdf;
33. GREGORY S. CRAWFORD, TELEVISION STATION OWNERSHIP STRUCTURE AND THE QUANTITY AND QUALITY OF TV PROGRAMMING: FCC MEDIA OWNERSHIP STUDY #3 (2007), available at http://fjallfoss.fcc.gov/edocs-public/openAttachment.do?link=DA-07- 3470A4.pdf;
34. Daniel SHIMAN ET AL., FCC MEDIA STUDY #4: NEWS OPERATIONS (2007), available at http://fjallfoss.fcc.gov/edocs-public/openAttachment.do?link=DA-07- 3470A5.pdf.
35. See Spavins, supra note 26, at pts. I, III (analyzing the relationship between ownership and the quality and quantity of local news programming);
36. see also Crawford, supra note 26, at 3-4 (examining the relationship between ownership structure and the provision of news and public affairs programming);
37. Shiman, supra note 26, at IV-4 to IV-5 (examining the relationship between television and radio station ownership, market structures, and the provision of news and public affairs programming).
38. See Philip M. Napoli & Joe Karaganis, Toward a Federal Data Agenda for Communications Policymaking, 16 COMMLAW CONSPECTUS 53, 72-75 (2007) (reviewing the shortcomings of the FCCs media ownership studies).
39. See generally Philip M. Napoli & Michelle Seaton, Necessary Knowledge for Communications Policy: Information Asymmetries and Commercial Data Access and Usage in the Policymaking Process, 59 FED. COMM. L.J. 295 (2007) (reviewing communications policymakers' increased reliance on commercial data sources).
40. See id. at 309 ("As the data move to private hands, researchers increasingly find themselves at the mercy of the often prohibitive pricing platforms and often very restrictive licensing conditions of the commercial data providers." (citation omitted)).
41. Complaint, Inst, for Pub. Representation v. FCC, No. 07CV02092 (D.D.C. 2007), dismissed, 2007 WL 2900431 (D.D.C. July 9, 2008).
42. See generally Benjamin W. Cramer, Paper, "The Nation's Broadband Success Story": The Secrecy of FCC Broadband Infrastructure Statistics (Sept. 28, 2008), http://tprcweb.com/files/BCramer%20TPRC%20FINAL- Broadband%20Stats.pdf (presented at the Telecommunications Policy Research Conference).
43. See Napoli & Seaton, supra note 29, at 325 (discussing gaps in BIA Media Access Pro and Arbitran data in relation to minority media markets and foreign language media outlets).
44. Jonathan Make, November FCC Meeting to Focus on Cable Industry, COMM. DAILY, NOV. 14, 2007.
45. Cable Communications Policy Act of 1984, Pub. L. No. 98-549, §612(g), 98 Stat. 2779, 2784-85 (codified at 47 U.S.C. §532). The "70/70 rule" states that if the Commission finds that cable service is available to 70% of households and 70% of those homes subscribe, then the FCC can "promulgate any additional rules necessary to provide diversity of information sources." Id.
46. Letter from Kyle E. McSlarrow, President & CEO, Nat'l Cable & Telecomms. Ass'n, to Kevin J. Martin, Chairman, Fed. Commc'ns Comm'n and Comm'rs (Nov. 14, 2007), available at http://www.ncta.com/DocumentBinary.aspx?id=648 (noting cable penetration of 58.1% according to SNL Kagan data and cable penetration of 61.1% according to Nielsen Media Research).
47. Make, supra note 34.
48. See, e.g., Letter from Harold Feld & Andrew Jay Schwartzman, Media Access Project, to Robert M. McDowell & Deborah Taylor Tate, Comm'rs, Fed. Commc'ns Comm'n (Nov. 16, 2007) (on file with author) (arguing on behalf of the accuracy of the Warren data);
49. Michael G. Baumann, Cable Penetration Rate: A Review of the Warren Communications News Data, attachment to Letter from Daniel L. Brenner et al., Nat'l Cable & Telecomms. Ass'n, to Marlene H. Dortch, Sec'y, Fed. Commc'ns Comm'n (Nov. 20, 2007) (on file with author) (arguing against the accuracy of the Warren data);
50. Letter from Craig E. Moffett, Vice President, Sanford C Bernstein & Co., LLC, to Jonathan S. Adelstein, Comm'r, Fed. Commc'ns Comm'n (Nov. 21,2007) (arguing against the accuracy of the Warren data).
51. Barbara Esbin & Adam Thierer, Where Is the FCCs Annual Competition Report?, THE PROGRESS AND FREEDOM FOUNDATION, PROGRESS SNAPSHOT 4.11 (May 2008), http://pff.org/issues-pubs/ps/2008/ps4.11whereisFCCvidcompreport.html.
52. See generally ERWIN G. KRASNOW ET AL., THE POLITICS OF BROADCAST REGULATION (3d ed. 1982).
53. See generally Philip M. Napoli, Public Interest Media Advocacy and Activism as a Social Movement, in 33 COMM. YEARBOOK (forthcoming).
54. Letter from Barbara Boxer, Senator, to Kevin J. Martin, Chairman, Fed. Commc'ns Comm'n (Sept. 18, 2006) (on file with author) ("[T]his is the second report in a week that I have received that appears to have been shelved by officials within the FCC and I am growing more and more concerned at these developments.").
55. OFFICE OF INSPECTOR GENERAL, FED. COMMC'NS COMM'N, REPORT OF INVESTIGATION INTO ALLEGATIONS THAT SENIOR MANAGEMENT ORDERED RESEARCH SUPPRESSED OR DESTROYED (2007).
56. See, e.g., FED. COMMC'NS COMM'N, DO LOCAL OWNERS DELIVER MORE LOCALISM?: SOME EVIDENCE FROM LOCAL BROADCAST NEWS (July 2004);
57. FED. COMMC'NS COMM'N, REVIEW OF THE RADIO INDUSTRY, 2003 (Sept. 2003), available at http://www.fcc.gov/ownership/additional.html.
58. LESLIE M. MARX, SUMMARY OF IDEAS ON NEWSPAPER-BROADCAST CROSSOWNERSHIP 3 (2006), available at http://www.fcc.gov/ownership/materials/newlyreleased/ newspaperbroadcast061506.pdf.
59. Id. at 14.
60. See Amendment of Part 15 Regarding New Requirements and Measurement Guidelines for Access Broadband over Power Line Systems, 19 F.C.CR. 21, 265, 21, 266 (2004).
61. See Am. Radio Relay League, Inc. v. FCC, 524 F.3d 227, 232-33 (D.C. Cir. 2008) ("When the League filed a second FOIA request... the Commission released five studies in redacted form and made them part of the record....").
62. See id. at 240 ("On remand, the Commission shall make available for notice and comment the unredacted 'technical studies and data that it has employed in reaching its decisions'... and shall make them part of the rulemaking record.") (citation omitted).
63. Id. at 237.
64. See Letter from Maurice D. Hinchey, Bart Stupak, Tammy Baldwin, Louise M. Slaughter & David Price, Representatives, U.S. Congress, to Kevin J. Martin, Chairman, Fed. Commc'ns Comm'n (Sept. 14, 2007) (on file with author) (expressing concern that the FCC did not reveal how it recruited individuals to conduct its media ownership studies, how peer reviewers were selected, and why peer reviews were not solicited before the publication of the studies).
65. See generally MARK COOPER, CONSUMER FEDERATION OF AMERICA, BIASED QUESTIONS YIELD BIASED ANSWERS: How THE FCC LOADED THE DICE IN SETTING ITS MEDIA OWNERSHIP RESEARCH AGENDA (2007);
66. Mark N. Cooper, Paper, Junk Science and Administrative Abuse in the Effort of the FCC to Eliminate Limits on Media Concentration (May 23, 2008) (presented at the Annual Meeting of the International Communication Association) (on file with author);
67. Colleen Mihal, Paper, Research as Alibi: Analysis of the FCCs 2006-2007 Media Ownership Studies (June 5, 2008) (presented at the academic preconference for the National Conference for Media Reform) (on file with author).
68. See FED. COMMC'NS COMM'N, FURTHER REPORT ON THE PACKAGING AND SALE OF VIDEO PROGRAMMING SERVICES TO THE PUBLIC 3 (2006), 2006 WL 305873;
69. FED. COMMC'NS COMM'N, REPORT ON THE PACKAGING AND SALE OF VIDEO PROGRAMMING SERVICES TO THE PUBLIC 3-5 (2004), available at http://hraunfoss. fcc.gov/edocs-public/attachmatch/DOC254432Al.pdf.
70. STEVEN S. WILDMAN, NAT'L CABLE AND TELECOMMS. ASS'N, A CASE FOR À LA CARTE AND "INCREASED CHOICE"?: AN ECONOMIC ASSESSMENT OF THE FCCS FURTHER REPORT 1 (2006), http://www.ncta.com/PublicationType/ExpertStudy/2821. aspx ("It is rare to see an expert agency completely reverse its own study-based findings over a period of less than 15 months, and it is even rarer to see an agency publicly go to such lengths as the Further Report to discredit the work that supported its own recently articulated position.").
71. See Standardized and Enhanced Disclosure Requirements for Television Broadcast Licensee Public Interest Obligations, supra note 24, at 1275, 1296.
72. See Petition for Review, Nat'l Ass'n of Broadcasters v. FCC, No. 08-1135 (D.C. Cir. Mar. 27, 2008), available at http://www.nab.org/AM/Template.cfm? Section=Filingsl&TEMPLATE=/CM/ContentDisp lay.cfm&CONTENTID=12278 (challenging enhanced disclosure requirements).
73. See generally Development of Nationwide Broadband Data, 23 F.C.C.R. 9691, 9692 (2008) (report and order and notice of further rulemaking).
74. See generally Napoli & Karaganis, supra note 28.