A proposal by the Federal Communications Commission to embark on a politically sensitive survey of the news business (the “Critical Information Needs” study) recently ran into a firestorm of criticism. FCC Chairman Tom Wheeler responded quickly by putting on the brakes.
If the Paperwork Reduction Act were as effective now as it was when it was first enacted in 1980, it’s likely that this survey would not have proceeded as far as it did. The Paperwork Act, which Congress enacted to reduce burdens on the public, has become an empty letter.
Development of the Critical Information Needs (CIN) study has been underway since February 6, 2012, when the FCC published a Request for Quotation for they performance of a literature review. The deadline for responses was just three weeks later–February 27, 2012. On April 13, the FCC announced that the University of Southern California’s Annenberg School for Communication and Journalism was awarded the contract “after careful review of responses to a Request for Quotation involving a number of highly qualified applicants,” none of whom besides USC were disclosed. Quite remarkably, given both the limited time available to prepare a bid and the project’s ostensibly narrow focus, “USC assembled a broad coalition of over 30 academics to inform their work.” This literature review was made public on July 25, 2012; the government reports that the USC group was paid $70,855.
The public first learned of thus study through a commentary (subscription; available to the public for 7 days) by FCC Commissioner Ajit Pai published in February 11 edition of the Wall Street Journal. Pai described the study critically:
The purpose of the CIN, according to the FCC, is to ferret out information from television and radio broadcasters about “the process by which stories are selected” and how often stations cover “critical information needs,” along with “perceived station bias” and “perceived responsiveness to underserved populations.”
How does the FCC plan to dig up all that information? First, the agency selected eight categories of “critical information” such as the “environment” and “economic opportunities,” that it believes local newscasters should cover. It plans to ask station managers, news directors, journalists, television anchors and on-air reporters to tell the government about their “news philosophy” and how the station ensures that the community gets critical information.
The FCC also wants to wade into office politics. One question for reporters is: “Have you ever suggested coverage of what you consider a story with critical information for your customers that was rejected by management?” Follow-up questions ask for specifics about how editorial discretion is exercised, as well as the reasoning behind the decisions.
Participation in the Critical Information Needs study is voluntary—in theory. Unlike the opinion surveys that Americans see on a daily basis and either answer or not, as they wish, the FCC’s queries may be hard for the broadcasters to ignore. They would be out of business without an FCC license, which must be renewed every eight years.
In Commissioner Pai’s view, the the CIN study foreshadows regulatory interference in the news business by the FCC:
The FCC says the study is merely an objective fact-finding mission. The results will inform a report that the FCC must submit to Congress every three years on eliminating barriers to entry for entrepreneurs and small businesses in the communications industry.
This claim is peculiar. How can the news judgments made by editors and station managers impede small businesses from entering the broadcast industry? And why does the CIN study include newspapers when the FCC has no authority to regulate print media?
The report the FCC must submit to Congress every three years is required by 47 USC 257(c), which states:
Every 3 years following the completion of the proceeding required by subsection (a) of this section, the Commission shall review and report to Congress on—
(1) any regulations prescribed to eliminate barriers within its jurisdiction that are identified under subsection (a) of this section and that can be prescribed consistent with the public interest, convenience, and necessity; and
(2) the statutory barriers identified under subsection (a) of this section that the Commission recommends be eliminated, consistent with the public interest, convenience, and necessity.
The Request for Quotation for the literature review and the survey research design do not explain the connection between Sec. 257(c), however. They simply assume that this connection exists. Indeed, the research design makes clear that the purpose of the study was “to collect data … to inform the access (or potential barriers) to CINs as identified by the FCC” (p. 2, emphasis added).
In a letter to Rep. Fred Upton, FCC Chairman Wheeler says the Commission “has no intention of regulating political or other speech of journalists or broadcasters.” The project’s regulatory intent is clear, however. The February 6, 2012 Request for Quotation for the literature review says it is needed “in order to assess whether government action is needed to ensure that the information needs of all Americans, including women and minorities, are being addressed, to determine the relationship, if any, between meeting critical information needs, and the available opportunity for all Americans to participate in the communications industries…”(emphasis added).
WHERE THE PAPERWORK REDUCTION ACT FITS IN
To legally proceed with this study, the FCC has to first obtain approval by the Office of Management and Budget, pursuant to its statutory mandate under the Paperwork Reduction Act to minimize paperwork burdens on the public. In its review, OMB would have been obligated to ensure, among other things, that the survey “is necessary for the proper performance of the agency’s functions” (5 CFR 1320.5(e)). Except under extraordinary circumstances, the FCC would have been forbidden from proceeding if OMB disapproved.
To its credit, the OMB clearance process is included in the April 2013 research design from which Commissioner Pai quoted in his op-ed. But in practice, OMB review is no longer a significant barrier to the imposition of paperwork burden on the public. In 2013, OMB reviewed 4,425 Information Collection Requests and disapproved two.
(a) Elimination of barriersWithin 15 months after February 8, 1996, the Commission shall complete a proceeding for the purpose of identifying and eliminating, by regulations pursuant to its authority under this chapter (other than this section), market entry barriers for entrepreneurs and other small businesses in the provision and ownership of telecommunications services and information services, or in the provision of parts or services to providers of telecommunications services and information services.
Request for Quotation and Amendments