Regulatory Innuendo as Stalking Horse?

Never before has an FCC enforcement action hit so close to home.
This week, the agency issued a Notice of Apparent Liability for $44,000 to Chicago radio station WLS-AM. The proposed penalty stems from a complaint filed by a listener regarding news programming aired by WLS that originated with the Madison-based Workers Independent News (WIN) service. The FCC accuses WLS of violating its rules by failing to disclose that it was paid for running WIN newscasts.
(Disclosure: I was one of WIN’s founding producers, helping to develop and launch the service between 2001-2004.)
WIN is the longest-running daily radio news program in the United States that explicitly focuses on economic news from the perspective of working people – as opposed to the perspective of corporations, their stockholders, and the rest of us as consumers, which is the dominant paradigm for what passes as economic news in the United States.
WIN’s core product is a daily headline newscast, which it offers to commercial and noncommercial stations. Commercial radio stations rarely pay for programming anymore, so WIN negotiates barter arrangements with such stations for airplay.
Barter arrangements, in a nutshell, work like this: WIN approaches a commercial broadcaster with a request to air its program. The station and WIN negotiate a price for the airtime. In the case of WLS, this was airtime for the broadcast of a daily 90-second newscast featuring one or two stories.
In doing so, WLS makes money by selling airtime to WIN. WIN makes no money off such transitions (and oftentimes actually loses money on them). The goal here is the exposure of news and issues important to working Americans to as broad of a radio audience as possible; the support that keeps the service going comes from donations and grants from foundations, individual contributors, and groups affiliated with organized labor.
It was not easy to crack the commercial radio market with such “radical” programming, and it’s been a surprisingly uphill battle to get labor groups to recognize the importance of having such news on the nation’s airwaves (they still don’t quite get it) – but WIN celebrates its 11th birthday in 2012, which is pretty impressive for a syndicated program in these times.
WLS aired several dozen WIN newscasts in 2009. In all but 11 of these broadcasts, WLS properly disclosed that the programming was paid for by WIN itself. This is a requirement of 47 CFR 73.1212, which mandates that broadcasters inform listeners when they air programming for which they have been paid.
This particular rule is designed to crack down on the deceptive use of paid advertisements that masquerade as news or other forms of programming. Common types of content that fall into this category include audio and video news releases – where a corporation, trade group, or lobbying association wraps an attempt at persuasion or public relations in something that resembles journalism, which is then incorporated directly into a station’s news programming – or payola – where such entities pay outright for such programming, and non-disclosure is part of the value of the transaction.
There is an important distinction to make between “fake news,” payola, and Workers Independent News. WIN does not promote a product or service, nor does it produce news at the behest of those who fiscally support it. A solid firewall between editorial decision making and fundraising is key to creating credible journalism, as any person with a sense of media literacy understands.
I and my co-producer (who left WIN for Democracy Now!) would not have been involved otherwise. This firewall has been maintained by those who have since replaced us – both of whom are credentialed journalists with impressive backgrounds in the broadcast and online arenas.
Whereas the entities that produce payola or “fake news” hope to see monetary gain from the airing of their materials under deceptive guises, WIN does not: it purchases airtime on commercial radio stations simply because the sorry state of commercial radio journalism – and of the commercial radio industry more generally – does not afford any opportunities for news organizations like WIN to get airtime unless it’s willing to pay for it.
This is actually similar to the exposure-model Rush Limbaugh used in his early days, when his syndicator effectively paid radio stations for multi-hour blocks to establish a foothold in the world of talk radio.
As a content provider to broadcasters, the role of WIN is to promote the wider dissemination of news which receives little or no airplay in the world of broadcast journalism, commercially or noncommercially. But since WIN pays commercial radio stations to play its material, it’s the ultimate responsibility of the broadcaster to disclose to its listeners that WIN is a self-sponsored program.
WLS did this by adding a sponsorship identification announcement at the beginning of all but the 11 disputed newscasts, and even ran them within the station’s own commercial breaks. Because it failed to do so in those specific instances, the FCC proposes to fine the station $4,000 for each act of non-disclosure, which is how we get to the intimidating sum of $44,000.
What’s really troubling about the FCC’s action is the sour implication it makes about Workers Independent News. Although the FCC is prohibited by statute from making subjective determinations about the content of broadcast programming, the NAL disputes the notion that WIN is an “objective news program rather than an attempt at persuasion.”
Upon reading the transcript of one of the newscasts involved in this controversy – cited in its entirety in the NAL – there is clearly no “attempt at persuasion” to be found. The story is about a state proposal to tap into federal stimulus money for the funding of infrastructure improvement projects in the city of Chicago. The story explains the proposal and incorporates soundbites from its legislative sponsor. As it does not make an explicit value judgment or propose any form of advocacy on the subject at hand, it is difficult to see just how such a story could qualify as “fake news” or payola.
WIN uncomfortably shares regulatory classification with such content, in the FCC’s mind, solely because it, too, purchases the airtime for its broadcasts. Yet the FCC’s rationale makes no distinction between a bona fide news organization which must pay for carriage and the odious practice of advertisements or advocacy masquerading as news. This is not to say that disclosure isn’t warranted in all cases – it absolutely is – but the FCC’s determination seems to indirectly call into question the inherent validity of WIN as a news organization, especially among those who are ignorant of the regulatory nuance at hand.
Even more scary is the unknown impetus behind the complaint filed against WLS. Why did it target WIN programming specifically? In all, the newscasts at issue occupied a whopping 16.5 minutes of WLS’ airtime over the course of a two and a half month period. Because the matter is ongoing, the FCC will not release details of the complaint itself.
The right wing in the United States is well-organized: so-called “conservatives” have a bevy of “media watchdog” groups which doggedly “document” instances of “liberal media bias” on the airwaves and have made a cottage industry out of filing such complaints as these.
Is it so intimidating that a news organization that places the plight of ordinary working Americans in a place of primacy – and which is forced to buy the airtime to get these stories out – found traction in the third-largest radio market in the country? More importantly, does this indicate a nationwide effort of intimidation against stations for airing WIN material?
One prominent broadcast law firm in Washington, D.C. commented that the FCC’s action should make broadcasters more circumspect about airing “paid programming dealing with controversial issues.” Is telling the stories of working America really that controversial?
The long-term risk here is not to WLS, which can afford a potential $44,000 fine for fluking on a technicality, but to WIN, whose public perception of legitimacy stands to be impugned by association with a mistake WLS made. That may have been the objective of this particular FCC action all along. This incident serves as a parable about the sordid state of what constitutes the realm of acceptable discourse in the modern U.S. media environment – and the scope of the struggle required to expand it.