NEWS RELEASE - FCC FOIA Response Inadequate

 May 6, 2021


On October 20, 2020, I, Sue Wilson, filed a Freedom of Information Act Request with the Federal Communications Commission to obtain documents pertaining to the FCC's decision to enter into a Consent Decree with Sinclair Broadcasting over its behavior in its proposed merger with Tribune Media. The Commission itself ordered a public hearing over Sinclair's deliberate misstatements it made to the FCC in its application to merge with Tribune. Administrative Law Judge Jane Halprin called into question whether, given the gravity of the misstatements, Sinclair had sufficient character to hold any broadcast licenses. 

Rather than follow through with the public hearing, the Commission made a deal behind closed doors to issue a Consent Decree and fine Sinclair $48 million. What specific information did Sinclair provide the FCC that resolved these all important character issues?

Today, the FCC responded with a few documents which are already on the public record. They provided no documents that explain or justify why they made the decision to, in secret, dismiss the character and misrepresentation issues it had previously raised.

April 1, 2021, my attorney Arthur Belendiuk filed a Complaint on my behalf with the District Court of Appeals in Washington, DC to obtain the required documents. We will continue to pursue these documents in the Courts.




SCOTUS Approves FCC Rule Allowing Further Consolidation of Local Media Outlets

 Under Trump, the federal agency created a Catch-22 on new rule by requiring private research to counter hidden public data...

originally posted at BradBlog.com April 12, 2021

While I was researching a piece last September about Sinclair Broadcasting's illegal TV ownership shell game, I stumbled into a Supreme Court case. Donald Trump's Federal Communications Commission Chair, Ajit Pai, had filed a case at SCOTUS, Federal Communications Commission v. Prometheus Radio Project [PDF], which would allow one media conglomerate to own the local newspaper, 2 network TV stations, 1-2 additional TV stations, and 8 radio stations --- all in the same community. 

The Third Circuit U.S. Court of Appeals had previously found, in 2017, that the FCC failed to adequately study the matter before making the rules change that would adversely affect ownership of media outlets by women and minorities.

But the danger of the scheme to all of us was immediately apparent. Imagine the potential for propaganda by allowing one company to control the local reporters in virtually every media outlet in a single town!

I had already discovered that Sinclair Broadcasting was illegally controlling three TV stations in Columbus, Ohio, and doing little more than duplicating local news content across all three stations. So, on advice of my colleague and friend Brad Friedman, I began writing an Amicus ("Friend of the Court") brief in the case to inform the U.S. Supreme Court of this and other related information.

My first step was to find the research papers the FCC had done on the topic before its Chair --- on behalf of we, the people --- filed its case with SCOTUS. To my surprise, however, I found there were none. Zip, nada, nothing. The FCC was literally taking a case to the Supreme Court in which it had done no independent research at all...

So, with the aid of Media Action Center (MAC) volunteers, our Amicus brief [PDF] presented a database with photographic evidence showing that since the FCC began issuing waivers for station groups to own two network TV stations in the same town, industry leaders Nexstar, Sinclair Broadcasting, Gray TV, Scripps, and Tegna collectively now control two network TV stations in 70 different communities across the United States. Despite their promises that they would provide more and better local news by being allowed to own two network stations, MAC found in 53 towns, these broadcasters merely duplicate the same news stories on both of its local Network affiliate stations.

The broadcasting industry told the Supreme Court that by consolidating two Network stations they can provide better local news coverage. But we found that the opposite is true. Powerful stuff, I thought.

But it didn't matter. The Court was not interested in what damage has already occurred due to this rule change; they only wanted to know what data had been provided prior to the rule change for the FCC to have made its decision. This sets up the Catch-22.

During oral arguments in FCC v Prometheus on January 19, the final full day of the Trump Administration, Justice Brett Kavanaugh asked Prometheus' counsel, Ruthanne M. Deutsch, what research she had to back up her assertions that allowing one station group to have multiple TV stations in the same market would harm opportunities for minorities and females to have any stations at all. Prometheus argued that the FCC was relying on flawed or non-existent data to make its assessment, and Deutsch cited a Free Press study to back up her case.

But Kavanaugh went on to say that during the FCC's proposed rulemaking process, everybody and anybody could have submitted data...but they did not.

On Thursday, April 1, SCOTUS reversed the lower court's 2017 finding that the Commission failed to take appropriate steps to study the effect of this change in rules for women and minority owners. The high court unanimously allowed these egregious consolidation rules to go into effect.

In the opinion issued by Justice Kavanaugh [PDF], the court held that the "FCC considered the record evidence and reasonably concluded that the three ownership rules at issue were no longer necessary to serve the agency's public interest goals." Kavanaugh further wrote that "the FCC acknowledged the gaps in the data sets it relied on, and noted that, despite its repeated requests for additional data, it had received no countervailing evidence."

"The Commission further explained that its best estimate, based on the sparse record evidence, was that repealing or modifying the three rules at issue here was not likely to harm minority and female ownership," Kavanaugh asserted on behalf of the Court. That, he wrote, was enough for the agency to meet the requirements of the Administrative Procedures Act (APA) in question. Siding with the FCC, he declared: "In light of the sparse record on minority and female ownership and the FCC’s findings with respect to competition, localism, and viewpoint diversity, we cannot say that the agency’s decision to repeal or modify the ownership rules fell outside the zone of reasonableness for purposes of the APA."

Cheryl Leanza, the United Church of Christ's media justice policy advisor and co-counsel for Prometheus in the case, wrote, "The sparse record is the FCC's own fault. Any analysis of this question must rely on the FCC's data and yet the FCC has long permitted broadcast licensees to avoid filing their ownership data with impunity." That has left independent researchers blinded to key data needed to fully assess the practical effect of ownership rules enacted by the federal agency.

The FCC used to commission its own studies on local broadcasting. In 2002, the FCC issued its own report called "Broadcast Television: Survivor in a Sea of Competition" [PDF] which showed local TV stations in large markets were making as much as 46% annual profits. Now --- or, at least under former President Donald Trump --- the FCC puts out obscure "Notice of Prospective Rulemaking" calls for consumers and largely underfunded non-profit groups to provide their own research to counter that which is provided to the FCC by well-heeled industry leaders, like the National Association of Broadcasters, which applauded the SCOTUS ruling (and, yes, Sinclair Broadcasting's stock shot up more than 3% that day.)

So these rules, which will further decimate local reporting, will go into effect. Current FCC acting Chair, Democrat Jessica Rosenworcel can chip away at the edges, but as soon as Republicans retake the White House, the floodgates of misinformation will open up in Everytown, USA.

Why is Congress allowing a politically driven agency to make democracy decisions in the first place? The FCC was originally formed to keep one radio station's signal from bumping into another; now it is colluding with major media conglomerates to rob free speech rights of the very people whose interest it is sworn to serve.

Broadcasting is legally supposed to "serve the public interest." So contact your Senators and Representatives! Tell them Congress must supercede the administrative agency's rules and pass actual laws to protect We the People from unscrupulous broadcasters controlling all or most of what we hear and see on local radio and TV. And do it now, while they still can.

* * *

APTRA, RTNDA, PRNDI and Emmy-winning Sue Wilson is a broadcast activist journalist, the director of the documentary Broadcast Blues, and founder of the Media Action Center. Reach her at act@mediaactioncenter.net or via Twitter at @SueBluesWilson

Supreme Court: Say no to the FCC and #SaveLocalNews!

 January 18, 2021

 
The last act of the Trump administration may prove to be the most damaging.
 
 


The Supreme Court will hear a case January 19 which, if decided in favor of the Federal Communications Commission, will accelerate this country’s mis- and disinformation crisis. In FCC v Prometheus, the FCC, under direction of Trump designated Chair Ajit Pai, is trying to change local broadcasting rules so one company could own the local newspaper, all or most of the TV stations and all or most of the radio stations - in the same town. One voice, one community, no opportunity for dissent.

The agency legally tasked to “serve the public interest, convenience and necessity” has acted to eliminate public debate for decades; those FCC actions over time have directly led to the crisis in the nation’s Capitol today.

The propaganda of World War II taught our leaders to safeguard the publicly owned airwaves from one single voice gaining too much power. The best way to serve the public interest was to ensure the public could have access to the airwaves we collectively own. So Congress established limits on how many stations a single operator could have to ensure diversity of voices. The FCC established the Fairness Doctrine, which required radio and TV stations to “afford reasonable opportunity for discussion of conflicting views on matters of public importance.” They established the Personal Attack rule, which provided anyone attacked personally on our publicly owned airwaves the opportunity to respond on the air. There was the Political Editorializing rule, which said if a station editorialized against a candidate for public office, it would offer an opportunity for a response.

Starting in 1987, the FCC took away the public’s opportunity for give and take by eliminating all those rules and more. The agency has even recently removed its prohibition of “incitement to violence” from its website.

In 1996, Congress allowed one operator to control as many radio stations as they could buy. Just a handful bought all the best radio real estate, then excluded liberal and moderate shows from being on the air.

That takeover of who may speak and who may not respond into microphones has literally divided our culture. Sean Hannity’s radio show (which has 15 million listeners, as opposed to the 4 million viewers he has on Fox News,) is rated by conservatives as the second most trusted news source in the country; Rush Limbaugh follows as third with his 15 million listeners (according to Pew Research.) Talkers Magazine data indicates 100 million people listen every day to what was once considered “Conservative” but now is clearly Right Wing talk radio hosts. Certainly there is some overlap of those listening to multiple programs, but that number is up from Talkers research showing 60 million listeners in 2016.

Six days after the 2020 election, Limbaugh told his audience, “There's simply no way Joe Biden was legitimately elected president. I just can't believe it. I do not believe it. Intellectually and as I look at what I have learned and what I have seen over the course of the past four, five days, there's simply no way.” Unlike yesteryear, no one was allowed an opportunity on the air to counter that fiction in a meaningful way (people can call into the program, but calls are screened, and generally only less informed callers are allowed on the air.) Same when Hannity told his radio audience on December 18, “There's no doubt this was stolen. No doubt whatsoever. I don't have any doubt in my mind.”

So people who listen to these programs on hundreds of stations nationwide dominating the drive-through states and brainwashing middle America, absolutely believe the election was stolen, even though Court after Court has ruled there is no evidence that occurred.

Now the FCC is attempting to do to local TV news what it has done to radio. 

In an Amicus brief in FCC v Prometheus, Media Action Center details research proving the FCC is already allowing Sinclair to control three of the seven local TV stations in Columbus, Ohio, the State Capitol. Those stations are running exactly the same local news content on their websites. This pattern plays out in dozens of local TV markets across the United States, and not just with Sinclair.  

So the FCC allows a single operator to control virtually all the local reporting in any one community. What’s the worst that could happen?

In 2009, then Rep. Mike Pence told C-Span his “Broadcaster Freedom Act” would simply “take away the power of the Federal Communications Commission to restore the Fairness Doctrine without an act of Congress.”

I disagreed with him then, but I see the wisdom of it now.  Decisions like this are above the FCC’s pay grade.

Find the Media Action Center Amicus Brief at the Supreme Court detailing how the FCC is looking the other way while TV industry chief are quietly taking over local news here, and tune in to CSPAN tomorrow at 10 AM EST to hear oral arguments.  

#SaveLocalNews