We note the passing of an FCC effort to probe the editorial standards and processes of broadcasters.

The FCC’s Multi-Market Study of Critical Information Needs, known to many simply as the Critical Information Needs, or CIN, Study, is dead. On February 28, a Commission spokesperson announced tersely that the agency “will not move forward” with the CIN Study. No official cause of death was given, but it appeared that the study was unable to survive the firestorm of negative reaction it had attracted in recent weeks. A previously announced test-run of the study set for Columbia, South Carolina has presumably been canceled.

The CIN Study’s Origins

The CIN Study had been in development, largely unnoticed, for two years. To a number of regular Commission observers its origins are something of a mystery.

The study first emerged publicly in early February, 2012, when the FCC’s Office of Communications Business Opportunities (OCBO) issued a Request for Quotation (RFQ) for a “Barrier Study” (also described as a “Review of the Literature Regarding Critical Information Needs of the American Public”). How long the concept of such a study had been percolating within the Commission up to that point is not clear.

In both the RFQ and a related public notice, OCBO cited Section 257 of the Communications Act as the basis for the study. Section 257 requires the Commission to report periodically to Congress about possible elimination of “regulatory barriers” and “statutory barriers” to market entry in telecom and related businesses. It makes no reference at all to broadcasting, as opposed to “telecommunications services” and “information services”, so its applicability to broadcasting is open to question. The statute’s repeated and focused references to “barriers”, regulatory or statutory, presumably led to OCBO’s own characterization of the initial project as a “Barrier Study”.

Despite Section 257’s narrow focus on identifying and removing governmental barriers, OCBO saw things differently. In the RFQ OCBO characterized the Study’s purpose as

advanc[ing] the goal of diversity, including the promotion of greater women and minority participation in media, the diversity of views available to local communities, the diversity of sources in local markets, and the diversity of critical information needs of the American public, including women and minorities.

In other words, rather than simply address the possible elimination of any existing barriers – as Section 257 directs – OCBO apparently concluded that Section 257 also authorizes the Commission to affirmatively “advance” interests that might have suffered from barriers, whether or not any barriers in fact exist.

The RFQ was directed primarily to academics who could perform a “literature review”, i.e., “a summary and discussion of published research, analysis, and information”. It is thus not surprising that the general public may not have paid much attention to the RFQ or the literature review it contemplated.

Within six months a USC-led team of researchers produced a 134-page report surveying more than 800 sources of “available data and literature from the past two decades”. Noticeably lacking from the survey was any discussion of specific regulatory or statutory barriers, i.e., the subject specifically mentioned in Section 257.

After the announcement of the delivery of the final literature review in July, 2012 (and a related presentation at the FCC), public silence descended over the CIN Study. But things were happening in the background.

OCBO contracted – apparently sometime between July and September, 2012 – with Social Solutions International, Inc. (SSI), a “research and evaluation firm”,

to design a research model that would provide the Commission with a tool for understanding access to and barriers in providing critical information needs in diverse American communities.

SSI’s work was intended to “build on” the USC literature review, which was not available until July, 2012. By mid-September, 2012, SSI had already signed on and convened a “subject matter expert conference”. As far as we can tell, no public notice of that conference was given before or after it happened. Nevertheless, from the “discussion and insights garnered” at the conference, SSI developed a “Research Design” that constitutes the now-departed CIN Study. The SSI contract and its resulting “Research Design” were first disclosed in a May 24, 2013 OCBO public notice.

 [A brief aside on a certain Washington practice: Oftentimes, when a government agency has an announcement that it doesn’t want to highlight, release of the announcement is withheld until late on a Friday afternoon, the theory being that public attention will be dramatically reduced because any news coverage of the announcement will be limited tothe little-noticed Saturday press. By the following workweek, intervening events will have eclipsed the late-Friday announcement. We mention this because May 24, 2013 was a Friday – in fact, it was the Friday of Memorial Day weekend. Was OCBO’s release orchestrated to take advantage of the three-day weekend? We don’t know.]

OCBO’s notice invited comment on SSI’s “Research Design”. A total of three comments were filed, which suggests that OCBO’s notice was sufficiently under the radar to minimize input. (To its credit, the NAB filed comments questioning whether the Study was consistent with the First Amendment.)

Following the May, 2013 public notice, the CIN Study again disappeared from public view, only to pop up again with the November 1 announcement that the study was going for a test drive in South Carolina. At that point the Study’s vital signs looked strong.

Beyond Section 257 and the First Amendment?

By its own terms the CIN Study was designed, among other things, to delve deeply into the editorial process and judgments of broadcasters. SSI sought to

ascertain the process by which stories are selected, station priorities (for content, production quality, and populations served), perceived station bias, perceived percent of news dedicate to each of the eight [Critical Information Needs identified elsewhere in the Study], and perceived responsiveness to underserved populations.

Questions to be posed to station officials such as “General Managers, News Directors, Editors, etc.” included:

  • What is the news philosophy of the station?
  • How much does community input influence news coverage decisions?
  • Who decides which stories are covered?
  • How much influence do reporters and anchors have in deciding which stories to cover?

The CIN Study also called for review and “coding” of radio and TV newscasts from stations in the test markets. Recordings of newscasts were to be provided to “coders” who would analyze and chart their content both quantitatively (e.g., time of broadcast, length of segment) and qualitatively (e.g., was the subject “soft news” or “hard news”?). The coders would also have to address the nitty-gritty content of each story by evaluating “the frame of the coverage of the CIN”, i.e., whether “the coverage is framed to suggest who/what was responsible for the condition and who/what might be responsible for any action.”

Such dramatic intrusions into basic questions of editorial judgment were obviously far afield of the focus of Section 257, the supposed impetus for the Study. They also pose serious, and obvious, First Amendment concerns.

Questions began to be raised after the November announcement of the planned Columbia test run. For example, on December 10, 2013 the House Committee on Energy and Commerce sent a sharply-worded letter to the Commission inquiring how Section 257 might be seen to authorize an FCC investigation of “editorial discretion and the content [that the news media] choose[ ] to produce.” The Committee expressed concern that the FCC was attempting to reinstitute something akin to the long-departed Fairness Doctrine.

Closer to home, on February 10 Commissioner Pai – also raising the specter of the Fairness Doctrine – lambasted the Study in an op-ed piece in the Wall Street Journal.

In a February 14 letter finally responding to the Energy and Commerce Committee’s query of two months earlier, Chairman Wheeler attempted both to defend the FCC’s extraordinarily broad reading of Section 257 and to disclaim any inappropriate effort to regulate speech. But ultimately he acknowledged that increased public scrutiny of the CIN Study’s design had “surfaced a number of issues” and that “modification [of the Study] may be necessary”.

From there the CIN Study’s vitals went into rapid decline.

On February 21, an FCC spokesperson offered an interpretation of Wheeler’s February 14 letter that went considerably farther than Wheeler’s own language. According to the spokesperson, in Wheeler’s view certain “survey questions in the study . . . overstepped the bounds of what is required” and those questions would be removed – a far cry from Wheeler’s more limited concession a week earlier that “modification may be necessary”. The prospect of some CIN Study remained, although the spokesperson assured that any redesigned study “will not seek participation from or include questions for media owners, news directors or reporters” – again, considerably farther than Wheeler’s letter had gone.

That did not quiet the storm. The House Energy and Commerce Committee announced that it was prepared to “pursue legislative solutions to take [the CIN Study] off the books.” Bowing to the pressure, on February 28 the Commission removed the study from life support with the terse advisory that the agency would “not move forward” with the study.


What lessons may be learned from this episode?

First, it’s important to remain vigilant to even the most seemingly inconsequential agency activities. Here, for example, an obscure RFQ relative to an academic survey of literature was easily overlooked in the hustle and bustle of other, more immediately pressing regulatory concerns. But that survey, as it turns out, was just Phase One of what appears to have been a carefully orchestrated plan to advance an agenda involving extensive – and, many would argue, wholly inappropriate – governmental intrusion into editorial activities plainly protected by the First Amendment from precisely such intrusions.

Second, we should all recognize that the FCC does not necessarily share everybody else’s views about the limits imposed on it by the Constitution or the Communications Act. How else to explain the Commission’s seeming insensitivity to the fact that governmental questioning of editorial decisions and evaluation of editorial judgments runs counter to basic First Amendment notions?

And third, it’s important to keep an eye out for FCC announcements released late on Fridays.

It appears for now that the CIN Study has shuffled off this mortal coil. Whether it has left surviving kin ready to take its place in some form remains to be seen.

[Blogger’s Note: Credit where credit is due. My colleague Jon Markman provided significant research and drafting assistance on this piece. His contributions are much appreciated.]