The Media Bureau, in the role of Jack Bauer with 24 hours to go

That loud cracking noise you may have heard on your way home from your long Presidents’ Day weekend out of town was probably the sound of the FCC breaking its arm trying to pat itself on the back about – what else? – the DTV transition. In what is fast becoming an FCC tradition of ignoring Federal holidays, on February 16 (that would be Presidents’ Day, a/k/a Washington’s Birthday) the Commission issued a public notice touting its efforts to “seek to protect access to analog news and emergency information” when the first big wave of DTV transition arrives on February 17.

The Notice announced no real news or policy changes. (That chore had been taken care of in a string of public notices issued between February 5-13. Check out our coverage here, here, here , and, oh yeah, here.) Rather, it seemed intended primarily to let the world know that the FCC really has been busy trying to protect the public from the Transition Trauma anticipated by some. 

One might justifiably ask why the FCC bothered to issue its Notice, especially on a Federal holiday. The most likely explanation is that Acting Chairman Copps (who happens to be quoted extensively in the notice) wants to deploy deflector shields so that, if Bad Things occur as a result of the February 17 mini-Transition, the FCC will be able to disclaim any blame.

This seems a pointless exercise for at least a couple of reasons.

First and foremost, the extensive, and largely effective, efforts made by the FCC’s staff to play the truly horrendous hand dealt them by Congress are a matter of record. You don’t need a transparently self-laudatory public notice to prove that the Commission’s staff has worked long and hard and successfully.

And second, the blame game as it is usually played depends not on demonstrable facts but on the interplay of political interests often divorced from the facts. In that sense, no public notice will be necessary because no public notice will do any good: if the Other Side is going to blame you for messing up, they’re going to do it whether or not you have issued a public notice, and whether or not you did in fact mess up.

Moreover, before the Commission gets too carried away with itself, we all may want to reflect on some of the measures taken in the February 5-13 flurry of activities aimed, apparently, at discouraging stations from turning off their analogs on February 17. The FCC picked on certain types of stations (network affiliates), making it significantly more difficult for them to abandon analog operation before June 12. The basis for picking on them? The unsupported claim that network affiliates are the “primary source” of local news and “public affairs” programming. The Commission’s ploy certainly looks unconstitutional, since it was admittedly (and impermissibly) content-based, not to mention factually unsupported (as far as we can tell).

Of course, when Jack Bauer is taking care of business on our behalf, neither he nor his victims have much opportunity to examine the correctness of their respective situations. With the clock ticking ominously down, there is no time to analyze constitutional niceties. So it is here. To paraphrase the indomitable Mr. Bauer, hundreds of thousands of television viewers’ access to TV is at stake! There’s no time to worry about legality!

So we can and should salute the long-suffering staff of the Media Bureau, which really has done a fine job in getting the transition to this point. But, much as we also salute Jack Bauer’s success even while we shake our heads at his means, we should all be mindful that the Commission has been able to achieve its most recent DTV successes – the very ones about which the latest Public Notice crows – through means which were at best constitutionally suspect. 

We can and should hope that this does not become a routine practice at the Commission.