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Federal Communications Commissioner Ajit Pai set off a storm of controversy this week with a Wall Street Journal op-ed warning that the Federal Communications Commission (FCC) was planning an intrusive study of newsroom decision-making—a study that could pave the way for agency to pressure news organizations about their editorial decisions. On Friday afternoon, the study was suspended, with the FCC promising to revise its methods.
Critics said the decision vindicated their concerns. But is there a possible downside for those who favor a less regulated communications industry?
Yesterday afternoon, as the agency's decision to put the study on hold was being announced, I corresponded over email with University of California sociology professor Gabriel Rossman, who studies the diffusion of culture and mass media, about the nature and history of the FCC's proposed study and others like it. Rossman argued that the study was not only fairly typical for the agency, but that for more than a decade, studies like it have actually resulted in deregulation of the communications marketplace. A lightly edited version of our correspondence follows below:
Suderman: The FCC said it was planning a study in which it would go into newsrooms and question editorial staff about their news choices. As a result, a lot of people seem worried about potential First Amendment abuses—possibly even the return of the Fairness Doctrine. How concerned should we be about the free speech implications here?
Rossman: The Pai op-ed in The Wall Street Journal and much of the discourse around it assumes that this will work out as something like, "This story you wrote seems to be insufficiently supportive of the president's agenda, it would be a shame if you had to explain this at your next license renewal hearing."
Having read the Pai op-ed, the public notice, a few other stories, and generally being familiar with how communications scholarship and the FCC's Media Bureau works, it sounds like the FCC is proposing an ethnography. This is a standard part of the social science methodological repertoire, including by government researchers in other agencies and faculty at schools of communication. So your mental image should be an anthropologist, not a party commissar.
As to concerns about free speech or the fairness doctrine, I don't really see any evidence for that. Although I don't blame people for distrusting the FCC's respect for its statutory authority given the way in which they attempted to implement net neutrality, the statutory language is pretty clear that these reviews are about market structure and not about any more direct interference in press content decisions.
The basic idea of this kind of review is to study how media markets work and what sorts of markets tend to produce content with the FCC's goals and then use this to shape merger guidelines to push markets towards the kinds of structures that tend to produce this content. Generally speaking the FCC's goals are "localism" and "diversity," which are certainly debatable, but are more or less innocuous. Note that the FCC generally means "diversity" with a lower-case "d" to mean a variety of viewpoints and a variety of content.
For instance, I do a lot of work on pop music radio and in that context the FCC understands diversity to mean a lot of different "formats" or genres being represented. Now you could make an argument that the FCC should be indifferent to this even if the market were to sort out so every station plays "Everything is Awesome" on a continuous loop. But it's not exactly at the top of anyone's list for signs of tyranny that the state prefers that radio markets have stations that play country, and rock, and hip hop, and whatever.
The FCC's emphasis on diversity superficially resembles the fairness doctrine, but there's an enormous difference between saying that media outlets owned by big or small companies tend to naturally produce a variety of viewpoints so therefore let's use merger guidelines to push the market towards having more big or more small companies versus simply saying each media outlet must have a variety of viewpoints and if it doesn't we'll fine it or yank its license. You may or may not be enthusiastic about anti-trust policy that is intended to reach goals about content, but even still the goals about content are fairly innocuous and the means to achieve them are very indirect. So worst case, this is central planning. But it's a big stretch to call it censorship.
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Suderman: Put this in context. Has the FCC done this kind of study before? What were the results?
Rossman: If you want to think in terms of court cases, this sort of study and review involves issues similar to Associated Press vs United States (1945) where the Supreme Court ruled that the government could require the AP to license its content to new market entrants. It bears almost no resemblance to the infamous Red Lion vs FCC (1969) case that allowed direct government interference in content. I think Red Lion was wrongly decided and the facts of the case (which involved Democratic party proxies harassing enemies of LBJ) exemplify the worst abuses of the fairness doctrine and so I'm glad that the Reagan FCC suspended the policy.
However I'm not worried about it coming back since even if the FCC or Congress did try to reinstate the fairness doctrine, the current Supreme Court would almost certainly overturn it on grounds that even if the "scarcity" rationale was valid in the 1960s, it has since been rendered moot by technological improvements that allow more efficient use of spectrum (digital FM, satellite radio, streaming audio over 4G) and substitutes for spectrum (podcasting).
The FCC frequently does studies of media markets and the impact on content. You can find a lot of that work here or here. (In general, these studies are quantitative studies of market structure and media content, but treat the media outlet's internal operations as a black box. The one thing that is a bit new is the ethnographic component.
There are lots of media ethnographers in academia (one of my favorites is Pablo Boczkowski), so this is an established mode of research, but as far as I know—and I could be wrong—the FCC hasn't done much of this kind of work itself.
I'm not familiar with why the FCC wants to do qualitative work, but it makes sense. It's generally a legitimate research technique and it's well-suited to evaluating one of the main concerns people have about media consolidation—that it can lead to top down control by publishers. As such interviewing journalists about their experiences with editorial guidance and control will help inform whether or not this is a realistic concern.
Most of the prior FCC work I'm familiar with is quantitative work. They study media content, they study structural conditions, and then they correlate the two and use the results to shape policies that are not facially content-based. This could be caricatured to sound ominous but it's usually stuff like this. Do tv stations and newspapers owned by the same company tend to show the same political biases? (Answer: No, their biases are not correlated, which implies it's OK to relax "one to a market"). Or when consolidation increases in the radio industry, does format diversity increase or decrease? (Answer: increase, which implies that deregulation is fine). As you can see from these examples, study and review often has the policy result of deregulation.
Suderman: You say these studies have typically informed deregulation. How important are they in those decisions? Would we end up with a more regulated market in the absence of this sort of work?
Rossman: The studies are absolutely critical for deregulation. The FCC only has statutory authority to deregulate consolidation rules if it has studies justifying the deregulation. And in fact in Prometheus v FCC, anti-consolidation activists were able to get an injunction from the 3rd Circuit because they thought the FCC's proposed regulatory framework (the "diversity index," which in effect was a relaxation of "one to a market") was insufficiently closely related to the FCC's studies. By inference we can easily imagine that if the FCC proposed future deregulations without any studies at all to justify them that there is no way it would survive court challenge.
Suderman: Is there a reason to be concerned simply about the fact that the FCC is collecting all this information—even if it's intended as just a data-gathering exercise?
Rossman: I rather doubt it. I'm not aware of previous cases where anyone has used FCC quantitative data about a particular outlet to obstruct a merger or license renewal and I don't see any reason to expect it would be any different for the qualitative data. These media studies are about informing rules, not making particular decisions in implementing those rules.
Suderman: If these sorts of studies are so common, why did this one get so much attention?
Rossman: I think part of it is that it's using ethnographic methodology which can be caricatured as government agents questioning newsroom decisions, whereas prior research has been much more passive in collecting data from media content or almanacs and databases summarizing media content. I also think part of it is the entrepreneurship of people who want to make an issue of it. As Ari Adut has shown in his reading of things like the Oscar Wilde case, scandals don't happen directly because somebody did something scandalous, but because there is an accuser dedicated to making an issue out of it. In recent memory the most familiar case of this is the Gingrich Congress and Ken Starr successfully pushing Clinton on his womanizing whereas a few decades earlier JFK got a pass on his even more egregious behavior.
Suderman: The FCC has suspended the study, pending a redesign. Any guesses as to what the agency might change, or how it might affect results?
Rossman: I don't have any inside knowledge on this but my best guess is that they'll eliminate or dramatically restrain the qualitative component of the study and go back to their traditional approach of treating the media outlet as a black box. This fundamentally changes the research design from a study of process to one of outcomes. It's not clear how it would affect the bottom line results, but the style of scholarship is radically different. It's a bit like asking how it would have changed the results if Clifford Geertz couldn't attend a Balinese cock fight but only count the dead chickens in dozens of Balinese villages.
Suderman: You seem to think that critics of the study overreacted. Even so, is there maybe some value to overreacting when the intent is to protect free speech rights? Seems like it's not unreasonable to be hyper-vigilant about about this. How should folks who care about freedom of the press think about the FCC and its work going forward? What should they be watching out for—and what should they worry less about?
Rossman: Although it's not a particular area of my academic expertise, I care a lot about freedom of the press and if I thought this was actually related to anything like reinstating the fairness doctrine, I would be militantly and vocally opposed to it.
As far as threats to a free press from the FCC, I have mixed feelings about net neutrality since I'm not sure what I fear more: Comcast or a state that second-guesses Comcast. (My Straussian reading of Wu's Master Switch is that regulatory capture is a pervasive problem in telecom which implies that we should be skeptical of telecom regulation). It particularly bothers me how the FCC tried to implement net neutrality through applying common carrier type rules to "information services" as this opens the door to "search neutrality" which is a profoundly intrusive concept.
I also worry a bit about more ad hoc actions by local politicians calling up outlets to explain themselves for various insensitivities. Probably the biggest threat to free speech is a shift to a permission culture driven by fears about piracy and otherwise attempting to protect and extend intellectual property.
If you want to publish an op-ed saying the president was negligent over Benghazi, no ethnographers working as subcontractors for the FCC are going to do anything to stop you. However try making a documentary and getting the rights for various incidental music appearing in the background cleared. Even after the SOPA backlash, there are still proposals (mostly through trade diplomacy) to tighten DMCA in a pro-rightsholder direction and extend copyright terms beyond even the absurdities of the Bono Act. That sort of thing scares me a lot more than anything the FCC is likely to do.
Overall, my hope and expectation for the future is one in which broadcasting becomes less important and IP based content becomes more important. Partly I just want the spectrum freed up for higher valued uses (and the Obama administration has been good on this) but another reason I'd like to see a shift away from broadcasting is precisely because broadcasting policy traditionally has by far the most intrusive content-based regulations. The term "public airwaves" is basically throat-clearing for a censorship pitch so the less we rely on the public airwaves the better. Fans of a free press rightly lament the Red Lion decision, but what everybody forgets is that five years later a case involving a newspaper but otherwise having almost identical facts was decided the other way in Miami Herald v Tornillo. That is, the same court that thought concepts like "scarcity," "licensee in the public interest" justified intrusive content-based regulation for broadcasting unanimously laughed at such claims for non-broadcasting media. Likewise, nobody would dream of requiring every website to carry a quota of educational content, Cass Sunstein notwithstanding, nobody will ever get the fairness doctrine applied to your website or print edition.
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