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News Archive: March 2014

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3/25/14 - Reply Comments Filed in AM Revitalization Initiative [link to this story]

In addition to gearing up to scrap with the FCC over its definition of journalism, I found the time last week to file some Reply Comments in the agency's AM Revitalization proceeding.

I kept my comments confined to the FCC's suggestion that AM stations might begin to adopt the all-digital version of HD Radio. The whole thing (10 pages) is worth a read, but the high points are:

Big decisions about digital radio should be made in the FCC's ongoing digital radio proceeding. This is a procedural argument that asserts the proper venue for advancing HD-related policy is not the AM revitalization docket. In other proceedings tangential to digital radio where the issue has been raised, the FCC's deferred all discussions to the digital radio docket, and should maintain that precedent here.

HD Radio is in the throes of market malaise. In its Comments to the AM revitalization proceeding, iBiquity Digital Corporation asserts that the commercial potential of HD Radio is "well established," and cites adoptive figures to make its case. These figures are inflationary at best, and since the agency made marketplace adoption the primary mechanism by which radio's digital transition would evolve, the actual story is not that rosy.

The bottom line is you can't make good policy on bad data, and I would argue that right now the FCC has no realistic idea what the marketplace really is for HD Radio.

There's a growing hunger to explore alternatives to HD on the AM dial. I was surprised by the number of Comments filed in the AM proceeding that suggested exploring Digital Radio Mondiale—a system unencumbered by the software-like and extremely closed intellectual property model of HD Radio, which most broadcasters have rejected on principle. DRM is finding traction on the AM dial elsewhere, particularly in countries that are projected to drive global economic growth in the 21st century.

At this point in the U.S. digital radio transition, what is there to lose by learning a bit more about DRM? Perhaps even the threat of competition may inspire HD's proponents to address the system's fundamental detriments.

The hardest things about writing documents for policy purposes are keeping an even tone and buying into the marketplace paradigm that pervades modern policymaking. Now that I'm between books, I plan to devote more time to participating in stuff like this—it's something communications scholars in general don't often do, but should do a lot more of.

3/18/14 - Workers Independent News v. FCC: Down the Rabbit Hole [link to this story]

Last week's post about the Federal Communications Commission's backhanded ruling on the legitimacy of Workers Independent News has left a lot of folks scratching their heads—but, as one legal scholar-colleague told me yesterday, "the more I think about it, the angrier I get."

That's because the FCC's offhanded beef with Workers Independent News is not just some bureaucratic's a bona-fide, no-shit free speech issue, in that the FCC has made a historically unprecedented determination about just what is and is not journalism, and it's leading to a censorship of sorts on WIN itself.

Regardless of your political persuasion, this is a serious concern. And it cannot be left to stand, for while such precedential decisions often seem meaningless in the moment, they can grow into monsters if left unchecked. Witness the legal determination that corporations are people: first articulated offhandedly in 1886, it came full circle in 2010, when the U.S. Supreme Court ruled that money is speech.

I've written a seven-page briefing paper that outlines the basics of what is shaping up to become Workers Independent News v. FCC: a novel First Amendment challenge in a relatively unexplored area of communications law. The paper covers the background of WIN and the FCC's ruling, its implications, and next steps in confronting the agency's decision.

On that front, the path is relatively clear. First the FCC's ruling regarding the fine WLS received must be appealed—not because there's a dispute over the fine itself, but because of how the FCC rationalized the fine (i.e., Workers Independent News is not news).

Administrative law is a curious domain, and the chances are good that the FCC will deny any petition out of hand, probably claiming that Workers Independent News does not have standing in a dispute between the FCC and a licensed radio station. However, exhausting's one's administrative remedies is essential to clear the field for an appeal to the D.C. Circuit Court of Appeals—the venue statutorily tasked with hearing cases on FCC regulatory decisions.

At this level, it appears that precedent does exist for third parties affected by such decisions to appeal them, especially if the parties can raise affirmative Constitutional defenses. As a bona fide news organization, the First Amendment rights of Workers Independent News are materially harmed by the FCC's declaration of WIN's news value. The principle is simple: the government has no business defining what news is.

If the FCC can not be convinced to see reason on this issue, and the D.C. Circuit takes the case, it can assign it to a sub-panel of judges or to the full 11-person court. Decisions of a smaller panel can be appealed to the full court; after that, the only stop left is the Supremes.

I certainly hope we do not have to go there, and that it does not take 124 years to resolve what is basically wildly irresponsible trash-talk from a brash FCC administrative law judge. But the game is afoot now.

3/11/14 - The FCC as News Police: Right Hand, Meet Left Hand [link to this story]

Republican FCC Commissioner Ajit Pai is feeling his oats. After conducting a calculated and ideologically-driven campaign against a proposed FCC study of the practices and processes of journalism, the agency capitulated, killing the idea entirely. Pai reveled in his accomplishment: "In our country, the government does not tell the people what information they need. Instead, news outlets and the American public decide that for themselves."

Yet the FCC is in fact defining what news is, and it did so just last month—before Pai went on the warpath about the FCC as "newsroom police."

The case involves a $44,000 fine levied against WLS-AM in Chicago for airing newscasts from Workers Independent News (WIN)—a syndicated radio news program that I co-founded in the early 2000s. As I explained when the fine was first proposed last year, WIN is a fully credentialed news organization that upholds high standards of journalistic accuracy and integrity...and I should know, because I developed those standards. But labor news, which once upon a time enjoyed prominent coverage (especially in newspapers and on the radio), is all but impossible to find on the radio today. So in order to break this blackout, WIN pays commercial stations to carry their newscasts.

WLS ran afoul of the FCC because, in a fraction of the cases in which it aired Workers Independent News material, it failed to run a disclaimer that WIN had paid for the airtime. On a technical level, the FCC is simply upholding the law: if someone pays for airtime, and the material does not explicitly promote a product or service, the station needs to disclose that.

But the FCC's decision did not stop there. In explaining the severity of the fine, the Commission is quite explicit in its journalistic determination: Workers Independent News is, in fact, not news. After first defining it as "informational program material" (p. 2) and transcribing an entire WIN newscast (p. 2-3), the FCC then discusses the legal merits of the case. It first insinuates that Workers Independent News may meet the criteria of being misleading or deceptive, thus triggering the fine (p. 5).

I strongly encourage you to read the transcribed newscast. All things considered, it's fairly milquetoast, and certainly pitches no product, service, or persuasive ideology. Nothing substantively or stylistically out of line with what commercial news operations regularly air, which is kind of the point. WLS is not the only major-market news station to have aired Workers Independent News stories over the last decade-plus.

In assessing the severity of the fine, "the Commission considered the nature, circumstances, and gravity of the violations in noting that the announcements in question were formatted and presented as news" (p. 7), and chastised WLS for not correcting the record: "e.g. broadcast announcements notifying listeners that the 11 90-second advertisements previously aired were not, in fact, news stories...the station's listeners were exposed to material that appeared to be objective news stories deprived of the knowledge that the material was, in fact, prepared to convey the particular point of view of the organization that paid...the air it." (p. 8).

That's a pretty damning assessment of Workers Independent News, and there is absolutely no evidentiary basis for it. Now, who is more qualified to define journalism: someone like me, or a faceless bureaucrat in the FCC's Enforcement Bureau? The answer is obvious, but the opposite is reality. And the damage has already been done: when the FCC first proposed the WLS fine last year, Workers Independent News executive producer Frank Emspak reported a definite chilling effect.

"Before the FCC fine was announced, we had two radio stations that were interested in airing our news," he said. "Now we can’t get those stations to call us back. It feels like we might be on some sort of blacklist, but we’re not sure." One can only imagine the situation now that the fine has been formalized, and with it the FCC's editorial dictate.

The irony has not been lost on Emspak. "Fox News isn't fined by the FCC for being liars, but here [WLS is] fined for carrying so called 'fake news' about workers." Similarly, Ajit Pai cozied up to Fox News to use its platform as a political cudgel to beat the FCC into submission on the journalism study. This is precisely why the FCC could stand to learn more about how journalism actually works today.

There's no apparent recourse to appeal the FCC's ruling on the legitimacy of Workers Independent News. I am somewhat surprised that WLS did not argue this point in its initial appeal; while it might not have prevented the fine, it certainly would have prevented the FCC from making the very value judgment that (presumably) Commissioner Ajit Pai and I both abhor. I've asked Pai directly about this case but have been met with silence. I guess the news police are free to give beatdowns so long as the news in question is disenfranchised and unprofitable. But hey, that's justice in America.

3/4/14 - Clashing Realities: iBiquity vs. Consumer Reports [link to this story]

In a new blog post, iBiquity Digital Corporation Ceo Bob Struble reports back from the 2014 Consumer Electronics Show about the changing landscape of automotive infotainment, and HD Radio as an "indispensable requirement" in today's media environment.

HD Radio has some sort of foothold in "every car manufacturer" now, "and was built into 1/3 of all new cars sold in America last year," writes Struble. But that's not enough: "Cars are coming with big, bright color screens as part of these infotainment systems. Car designers want advanced HD Radio features like iTunes Tagging and Artist Experience - album cover art - to take advantage of those screens and provide listeners with the experience they expect." The takeaway: broadcasters need to step up HD adoption.

This year's CES saw the rise of the connected car, which Struble says broadcasters can compete with by offering HD-related datacast services like traffic and weather information. "Radio is jockeying with dozens of digital infotainment services in the car for listener time and attention," he observes. "It requires the industry to upgrade its basic offering to remain competitive in the dashboard. CES again showed that HD Radio technology is a fundamental competitive requirement in cars." The takeaway: broadcasters need to step up HD adoption.

Struble also laments the dwindling number of stand-alone radio receivers in the marketplace; HD's presence here is almost nil. He urges the industry to "work collectively to turn it around - with lower cost and more fully-featured home and portable products, with HD Radio technology as an essential feature. Maybe an initiative to develop specific programming or promotions that could shore up home listening as well." The takeaway: broadcasters need to step up adoption as well as work to prevent the abandonment of HD Radio by the consumer electronics industry.

For nearly 2,000 words, Struble waxes on about the "continued rapid progress" of HD Radio, but repeatedly prods radio broadcasters to "redouble their efforts to keep their hard fought place in the media mix." In his world, HD Radio is flying high.

Contrast that with Consumer Reports. The venerable product ratings/review agency just released their annual auto issue, and of three automotive features they recommend you avoid, HD Radio is one of them. Dissed in just three sentences: "It's advertised as having better fidelity than conventional AM/FM signals, but we've seen little benefit on the road. It's offered by most major carmakers. We've found that the [digital] signals tend to come and go, resulting in annoying changes in sound quality" (p. 9).

This represents a change in perspective since 2011, when Consumer Reports first gave HD Radio a mixed review. The sad thing is that the technology exists to improve or even eliminate this particular problem—but doing so would require iBiquity to open the black box surrounding the system's intellectual property. HD Radio's proprietary nature is integral to iBiquity's business model, and the company would rather continue to own all of nothing than a part of something meaningful.

The National Association of Broadcasters will hold their annual big-tent convention in Last Vegas next month. I asked the NAB if I could be a part of any panel/presentation that it was organizing on digital broadcasting, but was unsurprisingly denied. That's too bad because it's one of very few opportunities during the year for broadcasters to strategize directly about resuscitating radio's digital transition, and the hunger to do so is palpable. The next big opportunity will be the NAB Radio Show in September.