Is the FCC still trying to stifle political speech?

As a result of tremendous public outrage, last week the Federal Communications Commission was forced to walk back its “Critical Information Needs” or “CIN” Study.  Under this study, the agency intended to inject observers into American newsrooms to ask wholly-inappropriate questions such as what stories are selected for coverage and, more perhaps egregious, to ask station managers, news directors and journalists about their “news philosophy.”  This suspension is a good thing, for as noted media analyst Howard Kurtz observed, “the posing of these questions carries an intimidation factor.”  As such, we all owe a big thank you to FCC Commissioner Pai for blowing the whistle.

Unfortunately, I regret to say that the CIN Study is not an isolated incident. 

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In the midst of the CIN Study debacle last week, the FCC released a document compiled at FCC Chairman Tom Wheeler’s instructions entitled Staff Working Group Report on Process Reform.  Buried deep inside this Report is Recommendation 5.44, which proposes to require everyone filing comments at the Commission — from advocacy groups to academic institutions — to disclose any direct and indirect financial support they may receive “from industry.”  According to this recommendation, such a rule is necessary because:

In most cases, a filer’s motives are apparent, but sometimes they are hidden.  For instance, an organization purporting to represent consumer interests may actually represent industry, or may be influenced by industry contributions.

Thus, reasons the report, the implementation of such a rule will permit the agency to evaluate the credibility of factual and policy arguments by knowing who is making them.  (Emphasis supplied.)

Excuse me?

This statement is a naked admission by the Commission that it does not intend to evaluate the merits of the arguments before it, but that the agency will assess the “credibility of … arguments” based on “who is making them” and, thus, the filer’s presumed “motives.”

So, let’s say you want to participate in a proceeding before the FCC:

Will the FCC evaluate your arguments based on whether or not you cite the relevant statutes and case law correctly?  No. 

Will the FCC accept or reject your arguments depending on whether you perform your economic analysis competently?  No. 

Is the FCC concerned with whether your data are verifiable and your analysis replicable?  No. 

Instead, per the plain language of the report, the Commission will evaluate the credibility of your argument exclusively through the ad hominem lens of who you are.  It’s not the quality of your work that matters, but the agency’s assessment of your “motives.”  Stating the issue bluntly:  if you agree with the administration, then it will accord your arguments significant credibility; but if you disagree with it, then your pleading goes into the “round file.”  This shameful policy officially sanctions outright prejudice against those with opposing views and certainly sends a chilling effect on the free expression of ideas.  Not only that, but judging the credibility of arguments based on “who is making them” and presumed “motives” is just plain intellectually lazy.  Sure, assessing the quality of an argument on its merits is hard work, but that’s the agency’s job.

And speaking of lazy, where is the agency’s legal research?  It is no secret that the Supreme Court unequivocally held it unconstitutional for the government to force a non-profit organization to reveal its members and donors.  As established case law, why would the chairman’s office propose this illegal rule in the first instance?  Coupled with the CIN Study above (and my own personal experience with the agency’s strong arming), the answer unfortunately appears to be straightforward:  The Obama administration will do whatever it takes to discredit its critics.

I had high hopes that newly-minted FCC Chairman Tom Wheeler would be the person who would restore the FCC’s credibility as the “expert agency” deserving of both “great deference” by the courts and respect from the public at large.  Given all of the complex issues pending before the Commission (e.g., shepherding the upcoming voluntary incentive auctions for broadcast spectrum, managing the transition to IP-based networks, maximizing broadband deployment), the need for dispassionate thinking at the agency is needed now more than ever.  Yet, instead of seeking out good analysis, the Commission chooses to focus its attention on chilling political speech. 

As someone who has spent twenty years working on communications policy issues (including serving as a staff attorney in the agency’s Office of General Counsel for several years), I must say that I am more than just disappointed with the recent turn of events at the FCC.  I am disgusted.

Spiwak is the president of the Phoenix Center for Advanced Legal & Economic Public Policy Studies (www.phoenix-center.org), a non-profit 501(c)(3) research organization that studies broad public-policy issues related to governance, social and economic conditions, with a particular emphasis on the law and economics of the digital age.  As a research organization, the Phoenix Center does not file comments at the FCC.