Courts Shoot Down Yet Another FCC Proposal For Being Factually Sketchy

from the facts-and-stuff dept

As the net neutrality fracas made clear, Ajit Pai's FCC has been widely criticized for playing a bit fast and loose with the facts (read: disregarding facts entirely) as it rushes to eliminate most meaningful oversight of media and telecom giants (and the arguably broken markets they inhabit). For example, the net neutrality repeal was based in large part on bogus data directly copied from telecom lobbyists with zero real effort to disguise that fact.

And while that's not a big deal to Pai or the kind of partisan true believers who see no problem with Pai pandering to telecom and media giants, the courts have tended to see things differently. For example, Pai's attempts to strip away broadband subsidies for tribal residents was recently shot down by the courts for failing to provide any real supporting justification whatsoever. The courts also recently shot down most of an FCC wireless proposal that attempted to eliminate local authority (including things like environmental impact review) over cellular tower placement. Here too the courts found the FCC failed utterly to provide actual data supporting its policy shift.

Fast forward to this week and one begins to sense a bit of a theme. This week the U.S. Court of Appeals for the Third Circuit issued a ruling (pdf) shooting down the Trump FCC's attempt to obliterate media ownership limits to aid giants like Sinclair Broadcasting, who've had an eye on cornering the already semi-lobotomized local broadcasting sector.

Throughout much of 2017, the FCC worked overtime to eliminate decades-old media consolidation protections designed to prevent any one broadcaster from dominating the media space. Historically these rules have had broad bipartisan support, given smaller right and left wing outlets alike worry about being crushed by media monopolies who've cornered local TV markets. But the court ruled that the FCC completely ignored the impact mindless media consolidation would have on the quality of local journalism, the public, or women and people of color:

In a 2-1 new ruling, the U.S. Court of Appeals for the Third Circuit forced the FCC to go back to the drawing board in its quest to make life easier for media giants, arguing the agency “did not adequately consider the effect its sweeping rule changes will have on ownership of broadcast media by women and racial minorities."..."[the court stated] that FCC analysis justifying its decision was “so insubstantial that it would receive a failing grade in any introductory statistics class."

That's, you know, not subtle. The data on this subject is pretty clear. As Media broadcast giants hoover up local broadcast stations and eliminate quality local newsrooms, they're replacing quality, more culturally diverse local journalism with homogenized, mindless prattle. This lower quality "journalism" not only opens the door to less transparency and more corruption, but it results in more partisan, tribal political coverage that erodes nuance. In turn, data shows the public ends up less informed and more divided than ever, a measurable shift that can be profound enough to sway elections.

A lot of the FCC's movements on this front were framed as "modernization" of media regulations, though the real goal appears to have been to help Sinclair Broadcasting and its attempted merger with Tribune. But while the FCC spent much of 2017 chipping away at these rules to seemingly aid Sinclair, the deal ultimately had to be scrapped anyway after Sinclair was ironically caught allegedly lying to the FCC and engaging in a number of shell games to give the illusion that the deal would fall under the media ownership cap.

The FCC's continued failure to support its policies with actual data is a bit of a trend, as former FCC lawyer Gigi Sohn suggests:

"In his desire to destroy as many protections for consumers, diversity, competition and democracy as quickly as possible, the Chairman has forgotten one of the core tenants of administrative law; that an agency must adequately justify its decisions based on the record before it,” Sohn said."

Again, while making up facts may play well to Pai's partisan supporters and feel good to folks who think with their gut, it's not working out particularly well in the courts. And given Pai's net neutrality repeal (which not only gutted net neutrality but FCC authority) is based on a long list of provably false claims, there's a sense that Pai's attack on net neutrality could soon share a similar fate.

Filed Under: 3rd circuit, ajit pai, arbitrary and capricious, evidence, fcc, media ownership, statistics
Companies: sinclair broadcasting


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  • identicon
    Annonymouse, 25 Sep 2019 @ 6:34am

    It is too bad that the only consequence for Pai and cew is to go back and try again.
    It is like if this was a murder attempt and they were sent back to try again later with a better plan.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Make sure the record player is on at night!, 25 Sep 2019 @ 6:52am

    Not FACTS, but QUOTAS:

    "did not adequately consider the effect its sweeping rule changes will have on ownership of broadcast media by women and racial minorities."

    Then you go on to state the results of mandatory quota system:

    they're replacing quality, more culturally diverse local journalism with homogenized, mindless prattle.

    results in more partisan, tribal political coverage that erodes nuance.

    You advocate mandatory focus on women and racial minorities, then you blame the obvious results of it on not enough "diversity"!

    Conservatives, of course, in your view, must be suppressed.

    And whatever happened to your notion that "free markets" will take care of all problems?

    You're not Classical liberals at all, you are modern homogenized tribalists insisting on quotas -- when seen as being to your political advantage.

    reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 25 Sep 2019 @ 7:00am

      They’re people, not “quotas”.

      reply to this | link to this | view in chronology ]

    • icon
      Gary (profile), 25 Sep 2019 @ 7:11am

      Re: Not Trolls

      you are modern homogenized tribalists insisting on quotas

      Wait wait - if you add "Globalist" I win the Blue Bingo!

      reply to this | link to this | view in chronology ]

    • icon
      bhull242 (profile), 25 Sep 2019 @ 7:56am

      Re: Not FACTS, but QUOTAS:

      There is so much wrong with what you just said…

      First, Techdirt has never claimed to be liberals, classical or otherwise. They’re more left-leaning libertarians if anything.

      Second, show me where Techdirt has supported suppressing conservatives.

      Finally, you completely misunderstood those quotes, which you took out of context. The second set is saying that homogenized (i.e. not diverse) local journalism leads to “more partisan, tribal political coverage that erodes nuance.” The logical fix for that would be to diversify. The first quote is noting that the new FCC rules did not include a focus on women or racial minorities, not acknowledging them at all, and the court said that that was a problem.

      None of this necessarily involves quotas, BTW. It’s about embracing, or at least acknowledging, that people are diverse and rules governing local media should account for that.

      reply to this | link to this | view in chronology ]

      • icon
        Stephen T. Stone (profile), 25 Sep 2019 @ 8:25am

        show me where Techdirt has supported suppressing conservatives

        To Blue Balls, anyone who supports the idea that Twitter, Facebook, or any similar platform can’t be forced to host all legal speech wants to suppress “conservative speech”. Why he equates speech such as White supremacist propaganda with conservatives/conservatism, however, is a mystery.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 25 Sep 2019 @ 12:12pm

          Re:

          Why he equates speech such as White supremacist propaganda with conservatives/conservatism, however, is a mystery.

          Possibly he self-identifies as both, and so to him, conserving includes white supremacy?

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 25 Sep 2019 @ 7:56am

      Re:

      You have to wait for Richard Bennett to finish his turn before you get to kneel down, blue.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 25 Sep 2019 @ 6:06pm

        Re: Re:

        Don't count on it. blue isn't known for patience.

        Then again, Dickface Bent isn't known for sharing.

        I smell a trainwreck in the making...

        reply to this | link to this | view in chronology ]

  • icon
    Anonymous Anonymous Coward (profile), 25 Sep 2019 @ 6:56am

    Thin ice and global warming, careful where you step

    The piece I read yesterday about this suggested that Pai would appeal, and why not, it isn't his money. Besides, an appeal might earn him a bonus, but not from Sinclair because Pai allowed them to get caught lying to the FCC. From Sinclair's point of view, that MUST have been Pai's fault. After all, Sinclair is righteous.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 25 Sep 2019 @ 7:09am

    Uh...

    It's "tenets", not "tenants".

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 25 Sep 2019 @ 7:28am

    It's almost like the FCC does not consider the phone system to be a utility when it comes to corporate profits, but it is a well regulated utility when it comes to wardrobe malfunctions - and this is what is really important, what people wear because monopolies running rampant is of no concern and they can not figure out why everyone is so uptight about it.

    reply to this | link to this | view in chronology ]


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