FCC’s New Disclosure Plan: Not Even Close

Well, the FCC got it half right.

Yesterday, it vacated its 2007 “enhanced disclosure” rules that would have forced stations to expend untold money and man-hours to detail the various kinds of programming they aired so that self-appointed watchdogs of the public interest could judge whether said programming justified the stations’ continued existence.

The rules were part of the sorry legacy of former FCC Chairman Kevin Martin, the most regulatory chairman of the past 40 years despite his Republican credentials and Bush appointment.

But FCC Chairman Julius Genachowski couldn’t leave it at that.

Instead of congratulating themselves for dumping some unworkable rules and showing the world that a Democrat-controlled agency could actually deregulate something, Genachowski and the other commissioners moved forward with plans to substitute new disclosure rules that may be just as onerous, unnecessary and wrong-headed as the 2007 rules.

The agency opened a new proceeding that would preserve a key component of the 2007 rules — that stations be required to post their paper public inspection files online so that anybody and everybody could get a look at them. But the agency is also proposing to up the stakes by requiring posting of political files — records of political advertising bought by candidates and advocacy groups — and certain other information like shared services agreements and on-air sponsorship announcements. Significantly, the FCC had rejected the idea of posting political files as too burdensome in 2007.

The FCC also said it would start a second proceeding to develop a new programming disclosure form so that it and others could easily track the kinds and amounts of programming that stations were airing in various categories like news and public affairs.

The new form would not be as complicated and detailed at the infamous Form 355 of the 2007 rules, but it would still be more demanding than what stations now have to provide and would be another mandatory chore to worry about and pay somebody to do.

Genachowski may be thinking the initiatives are a nice compromise, a way of keeping stations on their toes and placating liberals without actually adopting a concrete public interest programming standard and trying to enforce them. But I can’t give him points even with that generous spin.

To me, the proposals are an indictment of broadcasting. They imply that TV stations are not meeting their public service obligations so must be put on endless probation and carefully monitored to make sure they are behaving themselves. They put stations in the same category as Lindsay Lohan.

And unlike Lindsay, broadcasters have done nothing to merit such treatment.

Local TV broadcasting isn’t perfect, but it’s pretty darn good. Check into a hotel in any city in America and flip on the TV and you’ll soon have a choice of two or three or four or even five newscasts to get you up to date on what’s happening around town — news, sports and weather.

And these stations are always standing by to bring you breaking news and nonstop coverage of storms, floods and other disasters whenever they strike.

Sure, there may be stations that don’t do any news or public affairs programming and that might air Three’s Company reruns or a preacher during an earthquake, but so what. Every station doesn’t have to be in the news business, does it? There are many ways to serve the public interest. Maybe the best thing to do when the tornadoes start crashing through town is to pray.

Why do we need any kind of fuller disclosure? Nothing a station airs in a mystery. Today, you don’t need to weigh into dusty files at TV stations. If you can’t be bothered to visit a city to see what’s on the air, just go online and look at a station’s programming grid. Or open the local newspaper. It will tell you in a glance what the station is all about.

On her blog, communication attorney Lauren Lynch Flick suggests that the FCC proposals really have nothing to do with keeping local citizens informed. “[T]he purpose of the public inspection file has always been to ensure that a station’s local community has easy access to the information necessary to assess the station’s performance, particularly at license renewal time. It will be hard to justify the additional burden on TV stations if the primary ‘benefit’ of an online file goes to academicians and distant advocacy groups rather than to a station’s local audience.”

There are some real dangers here for broadcasters.

By merely asking how much public affairs programming a station airs, the FCC is strongly implying that public affairs programming is a good thing and that stations are lacking if they fall below the mean.

It raises First Amendment concerns and it opens the door for “distant advocacy groups” to punish those stations that don’t measure up at renewal time.

The FCC is also being cavalier about the burden the proposals may place on stations. It must know that stations are coming off some of the toughest years in their history, years marked by revenue shortfalls, layoffs, furloughs and cutbacks. Is it really wise to force stations to divert diminished resources or hire new employees for regulatory busy work?

Maybe this is all part of Obama’s plan for driving down that unemployment rate.

And allow me a word about transparency. In its press release announcing the online proceeding, the FCC says it is “consistent with the government-wide effort to increase transparency.” Hold on there. When President Obama talked about greater transparency, he meant of the federal government, not of law-abiding American businesses.

I hereby invite comments on how we can make the FCC more transparent. I have some ideas of my own. For instance, I propose that the commissioners put their calendars online so we all know with whom they’re having lunch each day.

Keep in mind that we are only talking about proposals and questions at this point. There will be plenty of opportunity for broadcasters and their reps to challenge the FCC assumptions and soften the impact of the new regs that eventually emerge. My guess is that the NAB will be going hard after the idea of putting the political files online.

The mediascape has changed radically over the past 15 years. Most newspapers are on their way out. And margins on TV stations are tightening every year.  It’s no longer a world of mass media. It’s a world with a mass of media.

What the FCC needs to do is open a proceeding to lessen regulations on broadcasting. What’s in the public inspection file that doesn’t need to be there?

It may not be on my watch, but one of these days the FCC may get it all right.

Harry A. Jessell is editor of TVNewsCheck. He can be reached at 973-701-1067 or mailto:[email protected]. You can read his other columns here.