Hypocrisy at the Federal Communications Commission

If the public had any doubt as to whether Federal Communications Commission Chairman Ajit Pai was going to follow his own regulatory philosophy consistently during his term, one of the votes Thursday confirms that he chooses to follow his own principles only when it suits the powerful companies and political interests that back him. Applying his own ideas against the “UHF discount” draft order reveals much:

• One of Chairman Pai’s abiding goals is to root out “obsolete rules,”
• According to his regulatory philosophy “regulators should be skeptical of pleas to … afford special treatment,”
• “as a creature of Congress, the FCC must respect the law as set forth by the legislature,”
• “throughout my time at the Commission, I have worked on ways for the FCC to foster diversity in the broadcast industry,” and
• “consumers benefit most from competition.”

Chairman Pai’s and Commissioner O’Rielly’s vote tomorrow morning will violate all five of these principles simultaneously: they are starting on a path of massive media consolidation by reinstating a technically obsolete rule justified by promising to change a rule Congress has specifically prohibited the FCC from changing and making it more difficult for smaller stations owned by women and people of color.

The long-time critic of outdated rules will put this outdated rule right back on the books.

Reinstating Obsolete Rules

Many observers will be too young to remember television sets that contained two dials — one for UHF stations and the other for VHF stations. Thirty years ago UHF stations were technically inferior — they didn’t reach as many homes as their counterparts, in order to fairly compute compliance with FCC rules, the FCC gave those inferior stations a “discount.” Without the discount, the FCC would have incorrectly treated those stations as if they had a greater audience reach than they did. Today after the digital TV transition, as Chairman Pai admits in his proposed order, the technical disparity no longer exists: “UHF channels are equal, if not superior, to VHF channels.” Acting on this undisputed fact, last year the FCC finally repealed the long-obsolete UHF discount. The long-time critic of outdated rules will put this outdated rule right back on the books.

Granting Special Treatment

Some of the largest broadcast owners in the country have been counting on these obsolete rules to get their own special treatment. Among these are the famously conservative Fox network and Sinclair Broadcasting, which gained notoriety recently for trading “straighter” coverage for increased access to Candidate Trump. They complained when the FCC removed this unjustified rule last year, and this week Chairman Pai is giving them what they want — without the skepticism he recommends to others.

Flouting the Law

The national TV ownership rules have been of great interest to Congress. In 2004, when the Bush FCC sought to increase the national TV ownership limits, Congress reined in the FCC. According to FCC Commissioner O’Rielly, who was working in the Senate at the time, Congress “heavily negotiated and painstakingly crafted” the current limit, set at 39 percent of the national audience, and prohibited the FCC from changing it. O’Rielly, normally a Pai ally on most issues, issued a dissent last year saying “the only acceptable venue” for debate about the national TV ownership rule, “is Congress.” And yet the ruling justifies its decision based on reconsidering this Congressionally-set rule.

Harm to Diversity

Ownership rates by women and people of color are abysmally low. More media conglomerates means harder times for stations owned by people of color and women who are more likely to own only a one or two stations. Small owners are often squeezed out when competing for advertising and talent against the behemoths.

Consolidation not Competition

Chairman Pai often articulates sound principles, but when the time comes for him to take his own advice, it seems he will pick and choose. Perhaps he is merely taking his cues from President Trump who spoke out forcefully on a wide array of issues when he was on the campaign trail, only to decide that draining the swamp is too much work now that he is in office. Before the election, Trump’s campaign said the “oligopolistic realignment of the American media along ideological and corporate lines is destroying an American democracy that depends on a free flow of information and freedom of thought” and promised “Donald Trump will break up the new media conglomerate oligopolies.”

But it turns out neither promises nor principles matter — Chairman Pai is ensuring we will have “media conglomerate oligopolies” for years to come.

— Cheryl Leanza is the policy adviser for the United Church of Christ’s media justice ministry, OC Inc.