Genachowski Got His Way, But At What Cost?

I call it a missed opportunity.

Had FCC Chairman Julius Genachowski gone with the broadcasters’ compromise on posting political advertising online, reporters in the lead-up to the Nov. 6 general election would have been able to go online and quickly and easily find how much each candidate, PAC and political advocacy was spending for spots on any station.

Such info would have provided the reporters and other interested parties all the data necessary to deduce the advertising tactics of the candidates and causes — arguably the biggest factor in determining winners and losers.

The compromise had the beauty of simplicity. In essence, stations would provide all information about the sponsor of a particular spot it had, be it candidate, PAC or advocacy group; report the amount of the latest buy; and give running totals for each sponsor. The info would be presented in a common format that anybody could understand.

In the 60 days before a general election, the broadcasters would make the info available every other day; and, in the last week, they would post it every day.

But Genachowski wanted nothing to do with the compromise.

At today’s open meeting, he and fellow Democratic Commissioner Mignon Clyburn rejected it. They went ahead and adopted the Genachowski-inspired staff proposal to require stations to post their entire political files online along with all other elements of their paper public inspection files.The political files include page after page of detailed orders and statements showing how many spots each advertiser bought and how much it paid for each one.

Under the new mandate, all the political data is to be posted as PDFs on an FCC-hosted website in raw, undigested form. From what I’m told, extracting the key information — the sponsors and totals that the broadcasters wanted to make available — will not be easy. It will take an experienced reporter or researcher and a lot of time.

As a watcher of American politics, I frankly don’t see how this is a better approach than what the broadcasters had in mind.

And here’s the other problem that Genachowski may have created for himself and for the cause of greater transparency in political advertising: the broadcasters are likely to challenge the new requirement everywhere they can. That includes the Office of Management and Budget, which must OK new regulatory burdens on businesses, as well as the federal courts.

At the meeting, Republican Commissioner Robert McDowell, who dissented on the political file requirement, pointed out that an earlier attempt by the FCC to require stations to post public files ran afoul of the OMB and the Paperwork Reduction Act it enforces. “As the mandates in today’s order require the duplication of some information already required by the Federal Election Commission,” he warned, “it may also mark time in PRA purgatory.”

Lawyers with whom I’ve spoken think the broadcasters would have a pretty good case in court. The law says that stations have to put the political data in their public inspection files, but it says nothing about uploading it to a government-hosted website. That may be overreaching on the FCC’s part.

If the broadcasters trigger their lawyers, the whole initiative may be derailed.

The broadcasters are not against transparency. What they have been objecting to primarily is putting sensitive rate information online where all advertisers and rival media can easily get at it. Broadcaster fear having their pricing floating around in cyberspace will harm their ability to negotiate with commercial and political advertisers.

But Genachowski is unsympathetic: “[O]ne, Congress explicitly requires broadcasters to disclose this information to the public; two, broadcasters already do; and three, competitors and customers already have access to this information and are already reviewing it where they have an economic incentive to do so.”

The broadcasters have also been grumbling about the extra costs involved with the FCC’s political requirement. I’m sure that the broadcasters have been exaggerating them — it’s what they always do in these situations — but the FCC is surely grossly underestimating them. The statement at the meeting by FCC staffer Holly Saurer that it would cost each station between $80 to $400 is absurd.

The compromise would cost stations little, broadcasters tell me. Traffic and billing systems could be programmed to automatically generate the promised totals on a daily basis.

At Clyburn’s suggestion, the FCC included a provision calling for a review after the first year to make sure that the political file mandate wasn’t doing any unintentional damage. That’s nice. But it would not undo any damage and it comes with no guarantee that the FCC will take remedial action should it find problems.

You have to give Genachowski some credit. What was adopted was far less onerous than what was proposed by the staff. Gone are requirements that stations start listing all program sponsors and shared services agreements in the public files. These would have been brand new chores that would have exposed broadcasters to all sorts of mischief.

Genachowski & Co. also cut broadcasters outside the top 50 markets a break, saying that they wouldn’t have to comply for two years. That, too, is a significant concession.

So, we will see how it all plays out.

Rather than accepting the broadcasters’ plan that would have clearly illuminated political advertising in new ways this very fall for the benefit of all and detriment of none, Genachowski opted to go with his own plan of uncertain value.

Like so much else on the Internet, the Genachowski approach could end up generating terabytes of data, but little light.

Harry A. Jessell is editor of TVNewsCheck. You may contact him at 973-701-1067 or [email protected].