Should the FCC be Policing Broadcast Content?

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Should the FCC have any oversight in what content is broadcast?

The Daily Caller, in an October 31st, 2013 article, details the intended efforts of an FCC contractor to deeply survey a single broadcast market regarding the content and news coverage of the private broadcasters in that market. The article references the methodology from the contractor. The methodology shows specific lines of questioning for broadcast companies ownership, news directors and producing teams, among others, asking very pointed questions about the types of news being covered, what governs those coverage decisions, who the coverage decision makers are, and whether or not reporters are being steered by management regarding the actual reporting of news. The questions may seem innocuous in many cases, but there are some very troubling conclusions that anyone being queried will invariably consider when formulating their answers.

When a government contractor from the agency responsible for regulating your industry starts asking about the inner workings of your business, not only from an owner’s perspective but from that of the employee base, the industry starts to pay very close attention to what is going on. With recent news being reported about Senators attempting to give the DOJ the power to determine what and who constitutes a journalist, the increasing sense of oversight from the FCC seems to reinforce a push by the Government to curtail speech those in power do not agree with under the guise of providing effective regulatory oversight through the Executive Branch.

The First Amendment restricts the Government’s ability to regulate speech of any kind. Congress, through its imprimatur of the FCC, has encroached on that protected right by empowering the agency to restrict speech in a number of ways. There have been arguments from many different angles that advocate for the FCC to reinstate the “Fairness Doctrine” which would ensure that all speech broadcast over Federally regulated airwaves is balanced in terms of political partisanship as well as devoid of any religious connotation whatsoever.

The thought from some advocates is that since the FCC is responsible for regulating the broadcast spectrum, and that this constitutes a sort of ownership by the Federal Government, and since the First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press;…”, that regulation of the broadcast spectrum must be approached in the same way as one would assume Congress would handle regulation of speech, religion or the freedom of assembly; specifically that Congress would not regulate these rights at all.

What’s the big deal?

The FCC is an Executive Branch agency, and its Commission is appointed by the President on a rotating schedule for the Commissioners. Simply put, if the FCC were to exert pressure on the broadcast industry, either as a whole or upon a segment of the industry, it would be highly inappropriate. The President is a partisan, political office. If the FCC were to, say, sanction the broadband infrastructure CNS News uses to service its web presence due to an “infringement” against policy created by the Commission the ultimate authority for that action would come directly from the President. Now, of course we know this action would be highly inappropriate, and quite literally illegal when read against the First Amendment, but many Federal Regulations and regulatory powers given to the Executive Branch by Congress as an expedient to statutory law enforcement carry the weight of statutory law in their own right, with penalties for non-compliance that are just as real as if one were to be arrested, tried and convicted for a felony.

Taking that into account, if the FCC sanctioned a broadcaster or other private entity under one of its regulations they could effectively destroy that entity’s ability to operate. Many of the Executive Branch’s law enforcement authorities are administered in such a way as to penalize prior to due process, and often do not have a clear, delineated policy advising regulated entities as to the path to redress of a grievance. The FCC and the EPA are alike in this, in many respects; your assessed fines are payable upon receipt of notice of regulatory action, and they’ll get back to you with how you can address the governing body about whether or not the fine was levied in any real legal manner. More often than not the only reason redress of grievances proceedings ever see the inside of a courtroom is because the regulated entity sued their District Court and was granted individual standing to then sue the regulatory agency for due process rights.

This is why the FCC, empowered to regulate content, and acting at the direction of the Executive, is such a dangerous combination. The desire by the Government to “govern in the public trust” may seem innocuous, but when you dig deeper into what the Government can empower the FCC to do, what they have done in the past, and the methodology associated with this process as indicated by the contractor hired to carry out the research, one can only conclude that there is an effort brewing to identify dissonance in the content being provided and regulate it out of existence.

The Federal Government, as a matter of Constitutional Law, has the regulatory power to preside over the governance of interstate commerce. The FCC was created as a means of providing regulatory oversight over the radio frequency spectrum because it is nearly always the case that a broadcast in that spectrum will cross state lines under a myriad of conditions, and as such the information carried by that broadcast falls under the purview of the Federal Government. However, the partisanship inherent in the Federal Government’s political structure makes this sort of regulatory oversight a very dangerous weapon when wielded as such. The unfortunate fact is that the Government, with this regulatory power, has the ability to silence before adjudication the speech of a regulated entity under the guise of providing for the public trust in law and regulation enforcement.

It would be prudent for Congress to seriously consider decoupling the FCC chairmanship and commissioner appointment from the Executive Branch, thus removing the possibility of partisan politics being the root cause of regulatory interference in speech and expression in the broadcast spectrum. If Congress were to provide for a commission selection policy that would allow for regional commissioners to be selected outside of the political arena entirely it would go a long way toward removing the possibility of the agency being used as a weapon against the political enemies of the Executive in the media. The agency would still answer to the President regarding policy guidance, but the commissioners would not be beholden to the President for their employment. We’ve already seen where the loyalty of a political appointee to their benefactor can cloud their judgement regarding the ultimate source of the authority of their office.

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