Tuesday, October 02, 2007

Video News Releases and Constitution Day at the FCC

On September 17, in honor of the day that marks our Constitution's adoption, I published an essay entitled, "Constitution Day at the FCC." The basic point of the piece is that the FCC's communications policies would be more sound if the agency would pay more heed to certain constitutional values particularly relevant to communications policymaking.

My piece was called to mind this morning when I read an item in Broadcasting & Cable's online edition about the fines that the FCC proposes to impose on Comcast for what the agency considers to be a violation of its sponsorship identification rules. Comcast's fining offense: One of its afffilated cable networks, CN8, aired "video news releases" that, in the Commission's judgment, contained too much focus on a product or brand name in the programming material without identifying a sponsor.

You can read the B&C article, "Free, Noncontroversial VNRs Can Still Trigger Fines" or one of the actual FCC notices proposing the fines to get the gist of the matter.

The FCC's action regarding these video news releases ("VNRs") appears overzealous. First, normally the sponsorship identification rules are invoked when someone pays a broadcaster to air programming. Indeed, the relevant statutory provision from which the FCC's authority derives seems to require sponsor ID only when programming is aired by a broadcaster in exchange for "money, service, or other valuable consideration." In the case of Comcast's airing of the subject video news releases, there doesn't seem to be any dispute that Comcast was not compensated in any way beyond the provision of the news releases.

The second point, which is fundamental, also relates to the statute from which in this instance the agency derives its authority. On its face, Section 317 of the Communications Act applies only to "matter broadcast by any radio station," not matter aired by cable television operators. Throughout Section 317, the provision speaks only of broadcasting and station licensees. There is no intimation that Congress intended the provision to be applicable to cable operators. It is true that the FCC long ago adopted a rule applying its broadcast licensee sponsor identification rules to cable television operators. And it even may be true (although I do not know) that the cable operators that existed at the time did not object to adoption of the rule. Nevertheless, this does seem, on its face, an instance of agency-stretching of statutory authority. There are many instances, of course, where the Communications Act was amended specifically to address regulations applicable to cable operators.

The last point, in my view, is the most fundamental, and brings me back to "Constitution Day at the FCC." Even as applied to broadcasters, the FCC's newly-instituted foray into regulation of video news releases raises serious First Amendment issues. In a letter dated October 5, 2006, the Radio-Television News Directors Association (“RTNDA”) called the FCC's recent inquiries to broadcast stations concerning their own airing of VNRs "an unprecedented regulatory intrusion into newsroom operations." On behalf of the broadcast news directors, RTNDA concluded, "[t]he government would not dream of inserting itself into a print newsroom to dictate or otherwise oversee how newspaper editors utilize press releases."

While not minimizing the legitimate First Amendment concerns of broadcasters, free speech concerns are even more serious when the Commission intrudes into the programming operations of cable operators. Even under the Supreme Court's oft-muddled First Amendment jurisprudence, there is no doubt that free speech claims of cable operators are considerably stronger than those of broadcasters. Although for First Amendment purposes it ought to make little difference, in the Comcast case for which the FCC now proposes fines, the cable operator did not just take the proffered VNRs and air them as presented. Before airing, they were edited in an exercise of the operator's programming judgment. In other words, the cable operator exercised editorial discretion.

Before proceeding further down the road of intruding into the editorial judgments of cable operators regarding video news releases (or other programming decisions for that matter), each Commissioner ought to consider carefully how his or her actions comport with the oath each took to protect and defend the Constitution. I submit that giving some thought to this question will lead to the conclusion that the agency's proposal to levy a fine against Comcast for airing the video news releases in question raises serious First Amendment questions.

That being so, this is yet another example of an instance where having in mind fundamental constitutional values, such as the protection of free speech, will serve the Commission well.