Editorial: Rush Hour

It was Rush Hour inside the Beltway last week, with so much happening
we needed to offer this editorial smorgasbord on several
key items of the day, while reserving the right to extend, rather
than revise, our remarks at a later date.

First up is the White House’s announcement
of its picks—actually congressional leadership
choices—for the one vacant and one soon-to-be
vacant FCC commissioner seats. That was a good
thing (except for the impact of the 6:45 p.m.
Halloween-night timing of the White House announcement
on reporters who have kids). Had the
White House not sent the nominations of Jessica
Rosenworcel and Ajit Pai to the Senate last week
for its advice and likely consent, it would have
been hard-pressed to get them vetted and voted
and seated by the end of the year, which will be
no short order as it is.

With FCC commissioner
Michael Copps exiting by
year-end, the agency needs
a full complement to deal
with the many issues at
hand, and the Obama administration
would have
had a hard time explaining
inaction on FCC appointees
while at the same time pushing
broadband buildouts—
currently a priority in FCC
rulemakings—as a crucial
national interest.

We will hold off on giving
those two commissioners-to-be their explicit marching
orders from this page on
issues like media ownership,
retrans, spectrum, mergers,
disclosure and more and, for
now, congratulate them on their nominations,
which we expect will be approved by the Senate.

But one thing we will caution them about is
the FCC’s new attempt to boost TV station reporting
requirements. Making info more accessible
online is a laudable goal, and just short of
a fixation with the current administration. But
broadcasters are right to be concerned about the
FCC adopting new program reporting categories
at the same time it takes control of a centralized,
perhaps searchable and cross-referenced database
of station info.

This is not some Luddite objection to new
technology, but a caution that the combination
of that database with the FCC’s control of
licenses has Big Brother intimations. The FCC
has pitched the online move as being a potential
plus for broadcasters because it will save trees by
moving from paper files in station filing cabinets
to online files, and “improve the dialog between
broadcast stations and the communities they
serve…significantly reducing compliance burdens
on the stations.” Reducing paperwork is
a laudable goal, and improving dialog sounds
fine so long as what the FCC is doing is moderating
that conversation and not influencing it
in a direction preferred by a political majority
of regulators.

The key to this effort will be how the FCC
chooses to modify the program issues list stations
currently submit. If the FCC creates a onesize-
fits-all form or sets minimum requirements,
all that talk about reducing compliance burdens
goes out the window. And if a new reporting
form appears to be a series of programming dictates
by proxy, broadcasters should not be reluctant
to take the FCC to court. Again.

But we are getting ahead ourselves. The FCC
has asked for comment on its proposal and we’re
sure broadcasters, and this page, will have much
more to say.

Elsewhere, the Third Circuit Court of Appeals
has had its say on the Janet Jackson Super Bowl
reveal, upholding its earlier decision that the CBS
fine was arbitrary and capricious, rooted in an
FCC change in indecency enforcement policy
that the commission failed to let broadcasters
know had changed.

That means that both the Third and Second
Circuits have ruled the FCC’s fleeting profanity
and nudity policies to be either a violation of
administrative procedures or unconstitutional,
or both.

The Supreme Court has agreed to hear appeals
of the Fox and ABC cases, but they should take the
fact that both the Third and Second Circuits are
in agreement about the waywardness of the FCC’s
indecency policy into account. The government’s
seven-year-itch to hound CBS over that tempest in
a D cup may fi nally be wrapping up. Time to focus
on that multi-trillion dollar deficit.