Is FCC Commissioner Michael Copps Trying to Reinstate the Fairness Doctrine?

Is Federal Communications Commissioner Michael Copps trying to reinstate the Fairness Doctrine through what he calls a "public value test" for broadcasters? The short answer is no, and Copps is adamant about that point. He points out that while the Fairness Doctrine regulated political speech by mandating equal time for all views on a given topic, the "public value test" will only require that broadcasters serve the "public interest", whatever that may be.

Copps is correct in a narrow sense. The federal government will not be policing political opinions. It will simply be ensuring that content meets a standard for public value.

What Copps fails to grasp is that "public value" is such a subjective term that it is almost unavoidable for political factors to play into a determination of whether or not certain content satisfies the definition. In other words, there is not official regulation of political speech, but such speech will almost surely be regulated indirectly.

According to Copps, who recently outlined his proposed "public value test" in a lecture at Columbia University, the test would require "quantifiable" increases in "the human and financial resources going into news." The test could mandate other, non-news types of programming, Copps added, such as children's programs and "civic affairs programming." The regulations would determine what news content is important, and mandate "quantifiable" increases in such coverage - Copps mentioned election coverage specifically.

The "public value test" would also mandate "diversity" in broadcast newsroom staff. In other words, the FCC would require radio or television stations to employ more racial and ethnic minorities.

Another hot-button element of the "public value test": it would require "disclosure", both of programming content to the station's listeners, and of information about political advertisements to a certain government agency.

Other elements include "community discovery," localism, and public safety broadcasting.

Most of these new regulations are either completely subjective and dependent on the views and preferences of the bureaucrats implementing them, or are rife with the potential for politicized application.

Matthew Shaffer has a great piece on Copps's proposal in the latest issue of National Review, where he elaborates on some of these dangers. He writes:

It’s unclear whether political-opinion shows count as “news” programming, and the proposed increase in local news would necessarily cut into the time that stations can allot to national opinion shows such as Rush Limbaugh’s and Alan Colmes’s. The boundary separating news from opinion is contested and philosophically fraught — to demand more of what unelected administrators consider to be news at the expense of what they consider to be opinion can itself be a way of advancing some opinions over others. The nature of the “public interest,” which Copps takes it upon himself to advance, is itself contested. It is elitist presumption for highly placed bureaucrats to push citizens and journalists away from talk-radio-style opinion, and toward the approved “public interest” programming, when the nature of the public interest is the very thing citizens are supposed to democratically debate, in the media and elsewhere, and decide.

In the abstract, Copps’s ostensible goals aren’t purely objectionable (local news may well be more useful to the average citizen than more from the Washington circus, for example). But in practice, Copps’s recommendations — however well intended — necessarily entail expanding the power of bureaucrats to monitor media content, power which can then be used for objectionable and politicized goals. It’s not just talk-radio-loving conservatives who should be worried, either. Richard Nixon used the Fairness Doctrine against his enemies list during his presidency, for example — every political faction can be tempted to abuse regulatory power. It’s not difficult to imagine ways in which requirements that radio have more news time, more local coverage, and less opinion, could be used to muffle critics of any administration.

As Shaffer noted, the most obvious and fundamental problem with the "public value test" is the stress placed on the phrase "public interest." The term is completely subjective - dependent on the whims of the bureaucrats appointed to regulate broadcast entities.

Is more reporting on local issues a good thing? Sure. Is it in the public interest? By most reasonable standards, yes, it probably is. But what else is in the "public interest"? Whose definition of the term is the legally codified one, and are there limits on what the FCC can do? In other words, if the "public interest," broadly defined, is the goal, what is to prevent the commission from enacting more regulations - beyond those contained in Copps's informal proposal - in its name?

Surely every regulator believes that the public interest is the result of whatever policies he deems appropriate or necessary. But one person's "public interest" is another's politicized micromanagement.

One need not accuse regulators of attempting to suppress opposing views to see the trouble in advancing what unelected federal officials deem necessary or beneficial for the "public." Indeed, it's rare the the "public interest" is not invoked as justification for this policy or that. And rarely is it's invocation disingenous - advocates truly believe that their favored policies are what the public "needs."

Many of the elements of Copps's proposal suffer from the same defect of subjective values. Copps made it clear that he was discussing "quantifiable" changes in news programming - as opposed to qualitative ones, which would affect the content of coverage, not simply the amount, or the resources devoted to it. But who determines how much local coverage is enough? How "local" does coverage need to be to fall under the definition? Who decides which issues are most important to the community? Copps would say the community would decide, but who reconciles the inevitable disagreements within the community?

Some of those questions have actually been answered in previous examinations of "localism." Under prior formulations of the concept, "community advisory boards" would hold hearings to decide whether broadcast content satisfied the "needs" of the local community. Though it sounds reasonable, those boards would represent direct government control over radio and broadcast television content.

And again, the needs of the community and the issues of greatest import are very subjective. The small business owner and the homemaker will have very different ideas about which issues are most important and deserving of news coverage. Who decides which view wins out? Whomever populates the boards responsible for making those decisions. If there are more homemakers on the board, certain issues will be deemed more important. If there are more business owners, entirely different issues will win out. Neither set of issues is objectively more impotent, even within a single community. Which one gets more coverage is completely dependent on the political sway that each group has over the officials making regulatory decisions.

While Copps is fond of referring to himself and his fellow regulators as "we the people," what he is proposing are not spotaneous reforms demanded by the grassroots. They are top-down, federally-mandated regulations that will dramatically affect media content. He is appointed, not elected, and hence is not representative of any group of people (beyond those in the White House, of course, and perhaps the legislators who confirmed him). He does not answer to voters, and his job does not depend on pleasing any constituency.

The lack of democratic accountability at the FCC and at "localism" boards underscores both the troubling trend towards government control over media content, and the potential for the politicization of federal and local regulations.

Copps has not submitted any official proposal for a "public value test" for FCC consideration. But if he does, these issues will need to be addressed. Though his regulatory outline deals with different issues than the political opinion content regulated by the Fairness Doctrine, it still smacks of the same "elitist" attitude (to use Shaeffer's characterization) that holds the opinions of bureaucrats above the preferences of news consumers.