A year and a half since I tendered my Freedom of Information Act request with the Federal Communications Commission on its disturbing foray into determining the legitimacy of broadcast news outlets, the agency has finally responded. And it was with a big middle finger: of the more than 4,200 pages of documentation the agency identified as related to the case, the FCC released a paltry 88 (embedded at bottom).
The vast majority of this release is meaningless. It includes copies of the official orders in the WLS sponsorship-identification case, copies of the spot-sales contracts Workers Independent News entered into with WLS (it spent more than $33,000 to air its newscasts and feature programs on the station over a three-month period), official correspondence between the FCC and WLS’ attorneys related to the initial complaint inquiry, and some redacted e-mail correspondence between FCC staffers regarding the collection of the $44,000 fine assessed against WLS.
However, what little useful information gleaned from the disclosure only heightens the suspicion that the sponsorship-identification case against WLS was not motivated by the station’s failure to disclose (in a fraction of instances) that Workers Independent News had paid for its airtime, but rather by a right-wing operative seeking to muzzle Workers Independent News on ideological grounds.
Perhaps the most telling of the FOIA disclosures is the text of the complaint itself — though the identity of the complainant was redacted. It alleges that Workers Independent News is a “labor activist group with a pro union/activist orientation,” not a bona fide news outlet. “Ads that ‘spoof’ news shows. . .should not be permitted without clearly identifying them as ads (identification as ‘workers independent news’ is not sufficient to disclose the bias involving controversial issues).”
It’s clear that whoever wrote this complaint was less concerned that WLS had aired a handful of WIN newscasts without disclosure than they were about the supposed “bias” of the content itself. In simple terms, the complaint is a defamatory allegation against Workers Indepednent News, a credentialed news organization, to which a complaint about WLS’ lack of sponsorship disclosure of its newscasts just happens to be tied.
This directly framed the FCC’s investigation and future persecution of this case. In its initial letter of inquiry to WLS on January 19, 2011, FCC Enforcement Bureau Assistant Chief Kenneth Scheibel explicitly asks WLS to address “any inaccuracies in the complaint” it received about Workers Independent News. To its credit, in their February 19th response, WLS attorneys Dennis Corbett and Nancy Ory decline to venture into these troubled waters: “[WLS] is not in the position to verify the accuracy or inaccuracy of the allegations. . .concerning any political leanings or bias of Workers Independent News. In any event, FCC rules do not require licensee review and/or disclosure of ‘political leanings’ or ‘bias.'”
WLS also emphasized the fact that WIN spots “were included in flights with advertising spots for other Station clients and were not embedeed within regular WLS programming. . .and the Anonymous Complainant clearly acknowledged that he or she was in fact aware that the material was paid programming,” putting the lie to the complainant’s allegation that Workers Independent News was some sort of stealth advocacy campaign.
The station also produced sworn affidavits from relevant staff admitting that its failure to air sponsorship announcement disclosures (as described in the document, they read as, “This message is paid for by Workers Indepedent News”) was a technical oversight related to miscommunication between the advertising sales person responsible for the WIN spot account and a “part-time production assistant” responsible for inserting the sponsorship announcements themselves.
None of this deterred the FCC from going ahead with proposing $44,000 in fines against WLS for failing to disclose that Workers Independent News paid for its own airtime. One of the key factors in this penalty, according to the Enforcement Bureau, was that Workers Independent News “implies or creates the impression of an objective news program rather than an attempt at persuasion” – thus formalizing the original complainant’s defamatory claims against the legitimacy of Workers Independent News as a broadcast news outlet.
Again, WLS attempted to suggest to the Commission that handing down such a steep fine based on the content of the programming at issue was inconsistent with the law. Although attorney Andrew Kersting stopped short of making an affirmative defense (i.e., what right does the FCC have to base its rationales on the word of a loaded complaint?), he did provide many examples of prior FCC fines handed out for violations of the sponsorship identification rules that involves other forms of broadcast content. The difference between how the FCC handled those and the WLS/WIN case are stark:
1. In 2000, Chancellor Media (later Clear Channel) placed a Bryan Adams song into heavy rotation — spinning it “approximately 100 times over a six-week period” – after having been paid to do so, and not disclosing this at all to its listeners. Total fine: $4,000.
2. In 1993, KDFI-TV in Dallas aired “sponsored programming twice a day on six (6) separate days for a total of 12 times over a five week period without the requisite sponsorship identification announcements.” Total fine: $12,500.
3. In 2002, KMTW-TV in Hutchinson, Kansas “exceeded the commercial limits in children’s programming on six (6) saparate occasions. . .with program-length commercials.” Total fine: $16,000.
Bringing it home, Kersting concluded, “If a licensee. . .could receive a forfeiture of [$4,000] after broadcasting a song without required sponsorship identificaiton for approximately 100 times over the course of several weeks, [WLS] – which inadvertenly broadcast 11 90-second spots over the course of a week – should likewise not incur a forfeiture in excess of the base amount.”
Yet the FCC’s Enforcement Bureau was committed to seeing the partisan-inspired case all the way through, doubling down on its own libel as an official enforcement rationale. WLS provided the FCC with nine samples of WIN newscasts, including audio files. The Enforcement Bureau selected one of them to highlight in its entirety in the Forfeiture Order, and used this to further defame Workers Indepednent News (“not, in fact, news stories” and “material that appeared to be objective news stories deprived of the knowledge that the material was. . .prepared to convey the particular point of view of [Workers Independent News].”
The FOIA disclosure contains zero information on the FCC’s thought process for determining the legitimacy of Workers Independent News as journalism. However, the e-mails regarding collecting the WLS forfeiture itself do suggest that the FCC wanted to put this case behind it as quickly as possible. The disclosure includes a copy of a D.C. broadcast attorney’s blog post about the case, as well as an e-mail from Anjali Singh, another Assistant Chief in the Enforcement Bureau, to two other staffers noting that “FYI, Comm Daily has covered the release thrice already, and the latest is the following blog entry by David Oxenford. It’s dated the day after we met with him and others on Maverick” – a wholly unrelated case that was pending before the Commission at the time involving another case of sponsorship identification violations.
Thus it’s a safe bet that there was vibrant ongoing dialogue between FCC staffers and outside parties not involved in the WLS/WIN case over its unique nature, and perhaps its political sensitivities. We can’t know for sure, because we have no full thread of FCC correspondence on this issue and what e-mails have been released have also been selectively redacted.
Just days after receiving the slim pickings from my FOIA request, multiple news outlets began to report the existence of a right-wing intelligence network that seeks to monitor and mute so-called “leftist” organizations and others that they consider enemies. According to Politico, this network is funded by the Koch brothers, and “gathers what Koch insiders refer to as ‘competitive intelligence’ that is used to try to thwart liberal groups and activists, and to identify potential threats to the expansive network.” The spy-shop has a core staff of 25, overseen by one of the right wing’s chief architects of voter suppression campaigns.
The New Yorker notes that the Kochs and their compadres have been engaged in acts of surveillance and intimidation against perceived political rivals since the 1980s. And it’s important to keep in mind that the Kochs are just one (large) node in a vast network of right-wing advocacy organizations that work in concert to impose extreme ideological rigor on their own and crucify anything remotely signifying of “the left.”
Another of those nodes is the Heartland Institute, headquartered in Chicago. Ostensibly a “free market think-tank,” Heartland is perhaps best known for leading the climate change denial movement, but they’re also active in attacks on workers’ rights and seek to demonize all of organized labor. Furthermore, Heartland has received funding support from the Koch Brothers.
One can see how a Heartland flunky might be alarmed to hear actual news about working people on one of Chicago’s largest news/talk stations, even if the airtime was clearly paid for. Again, go back to the precise wording of the complaint, track its reverberation through the FCC’s deliberative process, and honestly tell me that the central pillar of the FCC’s enforcement efforts could have been something other than a partisan hit job. And one can also see how some overzealous and ignorant FCC staffer might be compelled to pursue a finely-worded complaint from an “institute” that sounds quasi-official.
Of course, this is precisely why the FCC is both statutorily prohibited from wading too deeply into the regulation of broadcast content, and is constitutionally prohibited from meddling in journalism. Libeling a legitimate news organization under the guise of an administrative proceeding on sponsored content, and then lying to Congressional inquiries about it, is a new low for the agency. Its leadership is clearly not aware of how its staff are running amok. An appeal of the initial FOIA ruling is already underway, and if I were still working for WIN, I’d be exploring other mechanisms by which to clear my good name.Response-2014-295