By Corey Omer – Edited by Kim Meyer
Federal Communications Commission, Statement on Critical Information Needs Study (Feb. 28, 2014)
The Federal Communications Commission (“FCC”) has reversed course on a plan to ask media owners, news directors, and reporters invasive questions about editorial judgment and journalistic practices. A field study of the survey was scheduled to begin in South Carolina this spring, but on February 28, 2014, the agency issued a two-sentence statement laying the study to rest.
The Multi-Market Study of Critical Information Needs (“CIN Study”)—officially aimed at identifying “barriers that may prevent entrepreneurs and small business from competing in the media marketplace”—came under intense scrutiny from members of the news media and lawmakers after it was criticized by Republican FCC Commissioner Ajit Pai in a February 10, 2014 op-ed in The Wall Street Journal. Pai suggested that the impugned survey was an attempt by the agency to “thrust the federal government into newsrooms across the country,” “wade into office politics,” and “meddle in news coverage.”
Among others, the Wall Street Journal, AdWeek, and Fox News have all reported on the FCC’s recent decision to cancel the CIN Study. Fox News also suggested possible ties between the study and billionaire investor George Soros.
On December 10, 2013, Republican members of the House Committee on Energy and Commerce wrote a letter to FCC Chairman Tom Wheeler expressing concern that the CIN Study constitutes an unconstitutional attempt by the FCC to “control the political speech of journalists” and introduce a new version of the “Fairness Doctrine.” Adi Robertson of The Verge explains that the doctrine is “a long-defunct rule that required news outlets to devote time to presenting multiple sides of a controversial issue. The Fairness Doctrine hasn’t been in place since 1987, and the language enabling it was officially purged from the books in 2011 . . . .”
These concerns were echoed in Pai’s op-ed. According to Pai, the agency “plan[ned] to send researchers to grill reporters, editors and station owners about how they decide which stories to run,” their “news philosophy,” and “perceived station bias.” This, Pai contends, constitutes a “first step down the . . . dangerous path” of “newsroom policing.”
According to Pai, some CIN Study questions are wholly unrelated to—and thus cannot be justified by—the FCC’s stated objective of reporting to Congress about “eliminating barriers to entry . . . in the communications industry.” For example, one question for reporters is whether they “[h]ave . . . ever suggested coverage of what [they] consider a story with critical information for [their] customers that was rejected by management?” with follow-up questions asking for specifics about editorial discretion. Owners of broadcast outlets would also be asked, “What is the philosophy of the news station?” and “How much does community input influence news coverage decisions?”
Pai also noted that, in practice, participation in the survey might not be quite as voluntary as the FCC suggests: “FCC’s queries may be hard for the broadcasters to ignore,” he explained. “They would be out of business without an FCC license, which must be renewed every eight years.”
Following the op-ed, on February 14, Chairman Wheeler responded to the letter from the House Committee on Energy and Commerce, explaining that the terms of the study were not final and reminding the Committee members that the FCC is mandated by section 257 of the Communications Act of 1934 to study “market conditions to understand the scope and extent of market entry barriers.” He underscored that the goal of the CIN Study goal “would be similar to those of past reports—seeking to identify whether potential market barriers exist and, if so, whether those barriers affect diversity of media voices.”
In a statement released on February 21, the FCC—though rejecting any “suggestion that the FCC intends to regulate the speech of news media or plans to put monitors in America’s newsrooms”—agreed to suspend and redesign the pilot version of the CIN Study. Chairman Wheeler also admitted that some of the “survey questions . . . overstepped the bounds of what is required.”
Despite this concession, criticism persisted. AdWeek reports that Congressman Greg Walden (R-Ore.), head of the House Communications and Technology Subcommittee, vowed on February 25 to bring forward legislation and hold a hearing to kill the CIN Study and stop similar studies in the future. By February 27, Republican FCC commissioner Mike O’Rielly had joined his colleague Pai in condemning the CIN Study and calling for its cancellation.
Late on Friday, February 28, the FCC relented. An FCC spokesperson issued a statement that “[t]he FCC will not move forward with the Critical Information Needs study [and] will reassess the best way to fulfill its obligation to Congress to identify barriers to entry into the communications marketplace faced by entrepreneurs and other small businesses.”
According to Fox News, Walden and House Energy and Commerce Committee Chairman Fred Upton (R-Mich.) called the latest decision a “victory for the First Amendment and freedom of the press.”
Corey Omer is an LL.M. Candidate and Frank Knox Fellow at Harvard Law School and a Submissions Manager at the Harvard Journal of Law & Technology.