The first official response from the Federal Communications Commission regarding its troubling foray into defining what journalism is has arrived.
In a May 2 letter to Congressman Mark Pocan (D-WI), Karen Onyeije, the Chief of Staff of the FCC’s Enforcement Bureau, says the agency will not reconsider its determination that Workers Independent News is not news.
The majority of the letter rehashes the timeline of the FCC’s investigation into WLS-AM’s carriage of WIN and piously notes that since Workers Independent News was not a direct party to the FCC’s business with a radio station, it has no standing to challenge the agency’s findings. Furthermore, "because WLS(AM) has since paid the forfeiture, the Commission’s ruling is final and beyond appeal."
That was not unexpected. But then Ms. Onyeije takes a convoluted detour:
The Commission’s sponsorship identification rules are premised on the simple principle that listeners are entitled to know who seeks to persuade them. Under current rules, this consideration is particularly important where the sponsored message is formatted as news or informational programming and airs on a station following a news/talk programming format. As the Commission indicates in the order, in such cases listeners are apt to be confused as to who seeks to persuade them—the station or the third party.
The takeaway: the fact that Workers Independent News was broadcast on a news/talk station makes WLS’ sponsorship-identification violation somehow more egregious. It bears repeating that nobody disputes the fact that WLS violated that rule. But had WIN accidentally run without disclosure that it paid for the time on, say, a country-music station, would the fine have not been as hefty?
A primary tenet of U.S. free speech law is that, if the government must restrict speech, its efforts must be content-neutral. It would seem that the FCC considered both the content of WIN and WLS when it figured the size of the forfeiture. In essence, the fine was tailored to punish WLS for airing Workers Independent News in particular. There’s nothing neutral about that.
Ms. Onyeije also rests on the claim that WIN’s newscast was designed to "persuade" listeners about something, in the vein of an advertisement. The FCC’s own Forfeiture Order, which is attached to her letter and contains a complete transcription of a WIN newscast, does not support this. That’s because Workers Independent News is actual news, not an advertisement—a distinction to which the agency seems deaf. But it gets even better:
Thus, in the order in question, the Commission was obliged to distinguish between programming reflecting the editorial judgment of the licensee of the station and paid programming reflecting another party’s editorial judgment. With respect to WIN’s programming, the emphasis of this distinction was on its status as paid programming, not its status as news. Moreover, this distinction did not include any determination about WIN’s journalistic integrity, nor did drawing the limited distinction constitute "censorship." Rather, the distinction was made solely to identify the editorial source of the programming as a non-licensee third party.
This flies in the face of what the FCC’s forfeiture order actually says: that Workers Independent News is not journalism. The agency even suggested that WLS should have "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 Licensee…to air it" (p. 8, emphasis added).
Ms. Onyeije’s parsing of "editorial judgment" between WLS and WIN is nothing more than obfuscation. WLS made an "editorial judgment" when it sold Workers Independent News time for broadcast. Stations are not required to sell time to anybody; that’s the "marketplace" part of the marketplace of ideas in action. And Ms. Onyeije completely ignores the chilling effect the FCC’s journalistic determination may be having on WIN’s ability to find new stations willing to carry it.
Although other members of Congress have similarly inquired with the FCC, I’ve yet to hear back whether they’ve received the same blow-off. There are other potential Congressional avenues to pursue, and research into a formal legal challenge continues.
I also expect an update from the FCC on my Freedom Of Information Act request any day now. It was obligated to provide me with one last week, but (surprise) has not followed through.