"The Documents Are Not Available"

On Thursday, February 25th — one day before the Radio Preservation Task Force‘s inaugural conference — I traveled to Washington, D.C. to meet up with friend and colleague, Dr. Christopher Terry, who was also attending the conference. Like me, Dr. Terry is a media law and policy scholar who hails from Wisconsin. And also like me, Dr. Terry has been watching with interest the FCC’s foray into definining journalism on the public airwaves.
In his classes, Dr. Terry uses the Commission’s $44,000 fine against WLS-AM for airing newscasts produced by Workers Independent News as a teaching point to explore the FCC’s regulation of sponsored content. In prior posts, I’ve explained how Workers Independent News purchases airtime on selected commercial radio stations to air its newscasts and features. The FCC case stemmed from WLS-AM’s failure to run the required disclaimer that WIN had paid for its own airtime in a small fraction of broadcasts.
But when the FCC decided to sock WLS with such a stiff fine, it made WIN’s legitimacy as a news organization key to its rationale. Unprecedented in the history of U.S. broadcast regulation, the FCC effectively declared Workers Independent News to not be news, thereby justifying such a large forefiture.
Shortly after the FCC’s 2014 decision, I filed a Freedom of Information Act request with the agency for all documents related to its decisionmaking process in the WLS case. Last November, FCC attorneys reported back that they had identified several thousand pages of material…but released less than 90 redacted pages. Among them was the original complaint that kicked off the FCC’s inquiry, which defamed Workers Independent News as an activist organization masquerading as a news outlet. It was on this allegation that the FCC seemed to rest its case.
Since then, I’ve filed an appeal to the FCC’s initial disclosure. The premise is simple: WIN deserves to know who’s attacked them using the mechanism of broadcast regulation, and the FCC has no duty to protect the identity of this person and their affiliations. The FCC was supposed to respond to my appeal in January, but so far, radio silence.
According to Dr. Terry, who’s been following this saga, “the more I read about this case, the angrier I get.” So he’s been pursuing his own leads, hoping to acquire FCC documents related to the WLS case for the purposes of fleshing out his lectures. Through a series of conversations with agency staffers over the last several months, Dr. Terry was told that, yes, the entire enforcement docket of the WLS case was in residence at headquarters (i.e., not yet moved out to the FCC’s archives facility in Maryland) and, yes, since it was a closed matter it would be available for him to review, just bring the docket number with you.
We’d hoped our rendezvous in D.C. would unmask, Scooby Doo-like, the linchpin to the WLS case — the original complainant. Both Dr. Terry and I believe that Workers Independent News was targeted by a right-wing political advocacy organization for FCC scrutiny, and the FCC, for reasons as yet unclear, played along.
You don’t just walk into FCC headquarters: in post-9/11 D.C., everything is locked down tight. We told the guards what office we were looking for — nope, you have to have a particular name that will vouch for you. Several minutes of e-mail-review later, we had a name — nope, they were out, but a colleague might be able to help us.
That person bounced us to the FCC’s research library, and a representative came down to speak with us. That’s when we learned the library is not open to the public. But we’re professors, we explained, and Dr. Terry is here on a teaching-mission. The librarian bounced us to the FCC’s Reference Information Center, which is open to the public and through which we could peruse the files. Hooray! Just a short pause at security for intake, visitor’s pass, and screening and we were on our way.
The folks in the Reference Information Center were extremely helpful at first. Dr. Terry provided the necessary docket information, requesting WLS-AM’s enforcement correspondence file, and the staff trundled off to dig up the paper he’d requested. One staffer hung around to shoot the breeze. The wait was a little surreal. Stymied in the FOIA process, could the front door be the back door to the information we were looking for?
Alas, no: when the docket was delivered, we discovered that pretty much all public correspondence from the 2000s and 2010s was missing, including the complaint regarding Workers Independent News. Our first thought was that there were more folders to come — nope, what you see is what you get. Dr. Terry and I shot each other a side-glance and asked if there was any way to track down the missing documents.
We spent a couple of hours on uncomfortable wooden chairs as this hunt went on. First, the RIC folks were told that the missing correspondence might be up in the Enforcement Bureau. Indeed it was — in particular, in the custody of the Bureau’s Investigations and Hearings Division, which “is responsible for resolution of complaints against broadcast stations and other. . .licensees on non-technical matters such as indecency, enhanced underwriting, unauthorized transfer of control and misrepresentation.” A couple more calls narrowed things down to a particular attorney.
Our chatty friend had gone off to make this latest round of calls for us, but when he returned he was not so chatty. “The documnents are not available,” he intoned. Dr. Terry and I noticed the change in demeanor immediately. What did “not available” mean, we asked? If the case was closed, shouldn’t everything be in one place?
“The documents are not available,” the RIC staffer replied. Is there a particular person in the Enforcement Bureau we might speak to? “The documents are not available.” Could you confirm or deny that the documents we were looking for even exist? “The documents are not available.”
It was clear we’d tripped a trigger somewhere. My thinking is that the query to the Enforcement Bureau prompted someone there to check the visitor’s log for the day, then put two and two together. If true, this takes the probe into whether or not the FCC was duped into making judgments on news legitimacy outside the realm of a simple info-digging expedition into the realm of something seemingly more sinister.