Why journalists should weigh in on FCC disclosure rules -- while there's still time
With little fanfare, the Federal Communications Commission has issued rules that could greatly help the cause of journalism – if they’re not watered down in the next two months.
Why these rules matter
These rules are important and people who care about journalism and the public’s right to know can weigh in effectively by December 22.
In response to the report on Information Needs of Communities (INC), of which I was the lead author, the FCC in October approved a Notice of Proposed Rulemaking with the nondescript title of “Standardized and Enhanced Disclosure Requirements for Television Broadcast Licensee Public Interest Obligations.” The Commission (appropriately) requires broadcasters to disclose certain information as part of the compact that resulted in them getting these valuable licenses. Mostly, this “public inspection file” sits, ignored, in filing cabinets.
The INC report pointed out that the agency should be aware of an exciting new technology called the Internet that could allow for the public to inspect the public inspection file. Some of the information that will go online is not all that exciting; I’m guessing most people will not rush to their TV station’s website to check out their contour maps.
But there are two types of information that can positively advance the cause of government transparency, political reform, and better journalism, without involving intrusive government content monitoring that might violate the First Amendment.
Campaign spending database could go online in real-time
The first relates to campaign spending. Currently, federal law requires information about campaign contributions for federal races to be submitted to the Federal Election Commission. But there are two major problems. First, it only applies to federal races – not local races for governor, mayor, state legislature. Some states have good disclosure laws, but many do not. Second, much of the most aggressive spending comes in the final weeks of a race and only becomes public after the election is over.
What few Americans know is that there’s a second record of campaign advertising – captured not by the FEC but by local TV and radio stations. By law, local stations must note which candidates or issue groups have purchased ads and at what rate. What’s more, they’re required to update this immediately, which has been interpreted to mean within 48 hours. Even better, it applies to all races – whether for president or dog catcher, as long as it involves TV ads. It’s a goldmine of information.
The problem is, this information has mostly sat uninspected in filing cabinets, for years. Opposing candidates and professional political consultants will sometimes look at particular station logs, but the public as a whole has not. Getting a real-time sense of campaign spending on a state or national level would require sending hundreds of people out, on a daily basis, to copy down campaign information, and then return the next day to do it again.
The FCC has proposed something simple but potentially transformative: put it online. Right away. This would mean someone sitting in Wyoming could look at the political spending in New Hampshire, or any community in the country, within 48 hours of the ads running. Ultimately, it means that newspapers or watchdog groups could create applications showing the flows of TV advertising money around the country in real time. Imagine databases that enabled you to search where particular groups were spending around the country at a given moment – or a map showing undulating waves of color as organizations blanket parts of the country with TV ads.
This was one of the most important recommendations of the INC report, and it’s gratifying to see the FCC has moved to implement it.
How the information could be limited
But there are several ways this could go south. First, we are now in the comment period when different interest groups get to weigh in to weaken or strengthen the rule. While some broadcasters have supported the idea of greater disclosure, others have already begun making noises that they don’t want to go to the trouble of putting this online, perhaps fearing burden (although minimal) or perhaps fearing that disclosure might embarrass some of the advertisers and therefore dry up some of the spending.
Successful efforts to water down government rules often take the form of clever lawyering or obscure technical language rather than overt opposition. With that in mind, we should pay special attention to a technical aspect that could increase or decrease the effectiveness of the rule.
The FCC staff has concluded that it would not be possible to get this data into a single, machine readable format -- where it could be most useful -- in time for this election. They also concluded that to do so would cost a great deal of money. So they suggested an interim step where it could be put online more or less in its current format, one imagines through scanning paper copies into a PDF.
This leads to a few question: is the FCC staff right? They may well be – but is it possible there are technological solutions that could get the information into a single database more easily and cheaply than the FCC is projecting? If so, experts should urgently weigh in with ideas.
But even if it turns out that the FCC staff is correct in estimating that the ideal format cannot be made accessible right away, there are still tricks that can make the information easier or harder to use. For instance, if they’re posting locked PDFs, it may be harder to scrape the data into databases then if they’re "unlocked."
So a question for tech-savvy journalists, editors, programmers and advocates: short of submitting the data by Web form into a common database, what would be the keys to making the data useful?
It would also be great for the crowd to press the FCC to get to the ideal format by a specific date, not just some vague date in the future.
"Piercing the veil" of political ads
There is another step the FCC could take that would make it even more useful. They could ask that stations not only to report that a group bought ads but dig a bit deeper to find out who is really behind that group. If Citizens for Tomorrow’s Future buys an ad, the station could ask them for the top 10 fundraisers, or perhaps a name and contact information for a real person, not a PO Box. This is known as “piercing the veil.”
The FCC did not propose this, for practical reasons. Putting the current files online would involve no change in policy; it would entail merely changing formats. So it’s difficult for opponents to argue that it’s an increase in government reach. However, asking the stations to gather more information would increase their burden, and therefore the opposition. As political calculus, I think the FCC was wise to go for the simple-but-significant step rather than going the extra step of “piercing the veil.”
But it sure wouldn’t hurt for the FCC to hear that while they chose the moderate, in-between option, there’s a constituency for something stronger. That will also help counter-balance the inevitable calls to water down the rule further.
"Pay for Play" remains problematic
A second element of the proposed rule that should be of great interest to journalists involves what is known as “pay for play.” One of the most astonishing findings in the INC report related to the prevalence of TV stations allowing advertisers to dictate content.
Examples in the INC report included:
- A news director in Eau Claire Wisconsin resigned when told that a local hospital would “pay the station to air two health stories twice a week on topics selected from a list provided by the hospital. The only people the reporters could interview for those stories were personnel at that hospital.”
- Stations around the country ran a piece ostensibly by a TV reporter about a rehabilitation system for kids without disclosing that the reporter was actually a former reporter who now worked at the hospital pitching the service.
- A station wanted to create a 90-minute show with 30 minutes of news produced by the news department, followed by a 60-minute "value-added show," shaped by advertisers, and hard to distinguish from the news show.
- A station in Florida, according to the Washington Post, attempted to charge guests $2,500 to be interviewed.
- One study found that in a 10-month period, 77 stations ran 98 instances of 36 video news releases without disclosing that they were press releases.
Paul Farhi of The Washington Post recently offered more examples, in a piece entitled, “Despite law against it, stealth commercials frequently masquerade as TV news.”
Earlier, James Rainey of the Los Angeles Times described still another batch of cases and declared, “The trend promises to continue and grow.”
Fortunately, there already is a law governing this behavior – “sponsorship identification.” Stations are required to disclose sponsored content that might be mistaken for editorial content. Lately, the FCC has been cracking down on those that violate the disclosure rule, which is great. But that doesn’t solve the fundamental problem. The government is not (and probably cannot) tell a TV station it can’t run advertorials; it is just saying that if they do, it must be disclosed.
The problem is: if it’s disclosed, and no one notices, then the disclosure is worthless. Currently, stations have to note that a news piece might have had some sort of “sponsorship identification.” But the disclosure is fleeting and often cryptic.
Disclosures would be online, too
Enter the Internet. Following the recommendation of the INC report, the FCC has recommended that any type of disclosure that is currently required on air should now be put online too. Again, the government is not telling the stations that they can’t do it. They’re just saying that the sponsorship identification they’re currently required to put on air, they now have to post online, too.
But oh what a difference that could make. Suddenly there would be a permanent, searchable record of pay-for-play cases and video news release usage. In a given market, a local citizen or reporter, or a TV competitor can now track which stations prostitute their newscasts the most. National groups could look to see which chains do pay for play the most or run video news releases as if they’re real journalism. I can’t help wonder whether some of the abuses would disappear if dirty dozen lists popped up shaming the worst stations.
Again, some in the industry have pushed back, claiming that this would be burdensome. It’s important that those who care about journalistic integrity support this rule.
Voice your views
Here’s how you can express your opinion. The proposed rule is here (docket number 00-168). Comments must be submitted by December 22. Replies to comments are due by January 6, 2012. To file a comment electronically, go here.
Steven Waldman was Senior Advisor to the Chairman of the FCC and the lead author of the report, “Information Needs of Communities: The Changing Media Landscape in a Broadband Age.” He is now Visiting Senior Media Policy Scholar ad the Columbia Journalism School.