Tag: free press

Posted on By Patrick Maines

Dodging a Bullet: The FCC’s Report on the Future of the Media

Seventeen months ago the FCC teed up what until last Thursday was known as the “Future of Media” project.  For all practical purposes the project’s report, now called “The Information Needs of Communities,” is likely to be forgotten in half that time.

On the face of it this sounds like a criticism.  Far from it!  For its thoroughness and level-headed analysis, and especially for its acknowledgment of the constitutional limits on governmental involvement in the media, this report, and its principal personnel – most notably the man brought in to oversee the effort, Steven Waldman – are owed a debt of gratitude.

Before this project began there arose a powerful network comprised of ideologically motivated activist groups like Free Press; academic institutions and their publications, like Columbia University’s CJR; and deep-pocketed grant-giving groups, most importantly the Knight Foundation; all in the vanguard of what is euphemistically called the “media reform” movement.

And as Chairman Genachowski himself acknowledged, it was the work of these players – most notably the Knight Commission (a creation of the Knight Foundation, which two years earlier released a similarly titled report) that prompted the FCC’s own project.

So with this as its provenance, who would have been surprised if the report had embraced the media reform crowd’s recommendations?  But, mirabile dictu, it did not!  Instead, the report effectively dismisses the worst aspects of the media reformers’ governmental agenda.  Missing or explicitly rejected, for instance, are increased funding of public broadcasting, a “Geek Corps” for local democracy (patterned after AmeriCorps), federal tax credits for investigative journalism, and calls for a halt to media consolidation.

In fact, one of the few “action elements” in the report was a call for less government regulation.  As remarked by media reporter John Eggerton, the report “recommended scrapping the FCC’s ascertainment rules … as well as closing the localism proceeding without taking steps like creating community advisory boards to weigh in on public interest programming.”

There are those of us who believed that it was a mistake for the FCC to engage in this project at all – first out of conviction that the FCC had no authority to venture so far afield, and second out of fear that the report might provide the impetus for intrusive and unconstitutional regulations or legislation.  But in light of what the project report says, and doesn’t say, the feeling now is that some good will come of it.

After all, the “media reformers” will never have a better setup than they had here. With a Democratic majority on the Commission, a substantial infrastructure of activists and their financial enablers, and a media industry that is in fact struggling, if ever there were a time when the reformers’ wish lists might find policy traction this was it.  And now they have their reward: an exhaustive report that almost completely ignores that part of their agenda requiring governmental action.

During the Clinton era, many of the same kind of people who today support media reform helped man a presidential commission that came to be known as the Gore Commission.  Its focus was on the “public interest obligations of broadcasters in the digital age.”  And like the agenda of today’s media reformers, it encouraged government action in ways that undermined the First Amendment.

In the end, the Gore Commission produced its own report, a document that was as dense as it was feckless, and the whole enterprise sank from public consciousness almost immediately – as well it should have, since it produced nothing of value.  The guess here is that the FCC’s Information Needs of Communities report will also sink from public consciousness – not because it lacks value (its scholarship and usefulness as a research document are undeniable, for instance), but because it wisely steered clear of recommendations advanced by the more feral elements within the media reform community – people, for instance, like Commissioner Copps, a long-time spear carrier in that army, who immediately released an impassioned denunciation of the report.

Had the report endorsed radical (and preposterous) things, like a federal tax credit for investigative journalism, it would have attracted more ink, and been the subject of conversation far longer.  But it’s a credit to its authors, and to Chairman Genachowski, that it did not do so, because it shows they possess both a realistic view of the scope of the FCC’s limited authority and a healthy respect for the First Amendment.

                                  

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.

Posted on By Patrick Maines

Michael Copps’ Excellent Adventure

Even in a town filled to the gunwales with sagacious and selfless public servants (wink, wink), FCC Commissioner Michael Copps, now in his tenth and final year as such, stands out from the crowd.  Evidence of his colorful take on policy issues has been on display right from the beginning.

In 2001, for instance, in just his first months on the job, Copps issued statements condemning allegedly indecent radio comments by Howard Stern (September); the TV broadcast of a Victoria’s Secret program (November); and the airing of liquor advertising (December).

When he wasn’t condemning indecent language, scantily clad women, or Demon Rum, Copps was laying the groundwork for what would become his signature spiel: a four-part jeremiad that excoriates the current state of journalism (not enough “localism” or investigative reporting); blames this state of affairs on media consolidation; recommends more spending on public broadcasting; and decries what he sees as insufficient “public interest” obligations on the licensed media (and perhaps the unlicensed media as well).

Copps is not alone in holding such views, but there’s something about the way he presents them – especially now when the political, legal, and economic winds are blowing in a very different direction – that’s borderline amusing.  Where once his fire and brimstone suggested a kind of Elmer Gantry, it now seems rather like Elmer Fudd. (“I hate wabbits!”)

Who could forget, just five months before the 2008 presidential election, the speech that Copps gave to the so-called National Conference on Media Reform?  Organized annually by those wonderful “progressives” at Free Press, Copps never misses one of these things; they are, he says, his favorite place to be.

Anyhow, in June of 2008, the commissioner was practically giddy at the prospect of working that old time religion on the nation’s communications policies:

On a night like tonight almost anything seems possible, doesn’t it?  To tell you the truth, I feel like that a lot these days.  I know we can get this done.  We can climb into the bright uplands of real democracy.  Because as we change media, we change everything.  We empower 300 million Americans to deal with all those issues that Big Media has dumbed-down or just plain ignored at terrible cost to our democracy.  There is no real democracy without media democracy.

Never mind the risible imagery of the Free Press crowd, backpacks and all, climbing those “bright uplands,” or the pristine gimcrackery in the real democracy/media democracy linkage – what’s notable is the contrast between those remarks and a speech Copps gave just a week ago.

Speaking again to the National Conference on Media Reform (who else?), Copps let it all hang out:

I’m here because I’m more worried than ever about the state of America’s media and what it’s doing to our country….  For the consolidated owners of radio and TV, the license to broadcast became a license to despoil….

What we’re dealing with here is a bad case of Big Media substance abuse – and they just can’t break the habit.  These folks have no intention, even as the economy improves, of reopening shuttered newsrooms or rehiring laid-off reporters.  They might even fire more, just to prove to Wall Street that the bottom line still rules….

You and I knew all along that the realization of our dreams waited on a new era of reform in Washington.  Then the new era came and we all just knew that media reform was right around the corner.  Twenty-seven months later we are still waiting.  Waiting for even a down payment on media reform, like an honest-to-goodness broadcast license renewal process to replace the utterly ridiculous, no-questions-asked regime now in place.  Or some public interest guidelines to encourage broadcast news and diversity and localism.

Really, it’s almost enough to make a grown man cry.  All those uplands unclimbed!  And Big Media moguls, firing people left and right, just to prove something to Wall Street.  Hearing such stuff, you know that Copps earnestly believes he’s put his finger on the problem.  After all, what else could it be?

Still, there’s something a little otherworldly about the gentleman’s lament, as though he’s been just a bystander looking in.  For the past 10 years Michael Copps has been one of five commissioners at the FCC, even chairman for a while, and since 2009 he has been a member of the majority there.

So if now, as he’s on his way out the door, Copps feels that the FCC has foozled its play, perhaps he should consider pointing one of those accusatory fingers at himself.  Maybe the problem all along hasn’t been consolidation or avarice, maybe it’s been that what ails the media, and the way forward, are more complex than to be availing of the kind of nostrums Copps and Free Press have been peddling.

Maybe the problem is that the Internet has upset the business model of almost all of the “old media,” denying them, most importantly, the kind of ad revenue that has been their lifeblood.  Seen from this perspective, exhortations to deny the efficiencies of consolidation, or to require more stringent “public interest” obligations, or to recommend greater funding of public broadcasting are not just irrelevant, they’re appalling.

                                       
The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.

Posted on By Patrick Maines

Funding Net Neutrality … And Worse

There are so many things wrong with the FCC’s codified “net neutrality” rules, the kindest thing one can say about those responsible is that they were all born yesterday.  But criticism of this monstrosity abounds already, and given the potential for it to be wholly or partly undone by the courts or Congress, no further discussion of its many flaws is either timely or necessary.

Just before Christmas, however, John Fund wrote a piece in the Wall Street Journal that ought to be required reading for every media and communications mogul in America.  Titled “The Net Neutrality Coup,” Fund recounts the role played by a handful of large grant-giving foundations, and the beneficiaries of their largesse (“paid clappers,” in Ted Turner’s immortal phrase) in the promotion of this cynical creation of the “media reform” movement.

Perhaps the greatest value in Fund’s piece is his finding that most of those foundations that provided the lion’s share of funding for net neutrality were also among the biggest sources of funding for the earlier (and even worse) mischief, “campaign finance reform.”

Fund identifies by name a total of six grant-giving foundations and four operating organizations.  They are, among the former: the Pew Charitable Trusts, the Schumann Center for Media and Democracy, the Joyce Foundation, George Soros’s Open Society Institute, the Ford Foundation, and the John and Catherine MacArthur Foundation.

The four operating groups are Free Press, Public Knowledge, Harvard’s Berkman Center for Internet and Society, and the New America Foundation.  What all of these groups – funders and recipients alike – share in common is that, to varying degrees, they are all liberal-leaning, or “progressive,” as they yearn to be called nowadays.

Missing from this list is another billion-dollar grant-giving group – the Knight Foundation – which, through the Knight Commission, has itself peddled  net neutrality, along with such pap as the need for greater funding of public broadcasting, and tax credits for investigative journalism.  Though we won’t know for sure until its report is issued, the FCC appears to have adopted the Knight Commission’s recommendations as a kind of blueprint in its approach to the commission’s so-called Future of Media initiative.

The reason all of this should be of the greatest importance to everyone, but particularly to titans of media and communications, is simple: The communications policy views of grant-making groups like the Open Society Institute and the Ford Foundation (not to mention Free Press) are inimical to the well being of media and communications companies.

It’s not entirely clear why the “progressive” moneybags’ lavish spending has not incited individuals with different political views, many of whom have amassed great wealth in the media and communications business, to fund non-profit organizations with more pro-business communications policy views.  Perhaps it’s because some of them, having gotten theirs and now in retirement, no longer care much what happens to the industry of which they were once a part.  Or maybe it’s because many don’t think of themselves, or want others to think of them, as “conservatives,” whatever that means in the context of communications policymaking.

But a likelier explanation is that many fail to understand what a threat to their own and their industry’s welfare some of these groups actually pose.  Perhaps because businessmen are very good at lobbying, and understand the ins and outs of PACs, they don’t see the need to engage their critics in the worlds of academia or think tankery.

It’s a mistake, that, because in truth it’s the people who deal in ideas – intellectuals and artists, activists and policy wonks – who are often the engines in the development of policy issues in which legislators and regulators are but the last people to board the train.  Witness, for instance, net neutrality.

As John Fund puts it, in the conclusion of his WSJ piece, “So the ‘media reform’ movement paid for research that backed its views, paid activists to promote the research, saw its allies installed in the FCC and other key agencies, and paid for the FCC research that evaluated the research they had already paid for.  Now they have their policy.  That’s quite a coup.”

                                                
The opinions expressed above are those of the writer and not necessarily of The Media Institute, its Board, contributors, or advisory councils.

Posted on By Patrick Maines

Net Neutrality: Solving Nonexistent Problems the Old-Fashioned Way

For all the reaction it elicited, Chairman Genachowski’s plan for codification of the so-called net neutrality rules, as suggested in a speech he gave Dec. 1, amounts to too little revealed, much less resolved, to allow for fully confident assessment.

This said, it’s not too early to observe that any public policy that is roundly condemned by Free Press, the Media Access Project, and the Nation magazine can’t be all bad.  And condemn it they have.  Under headlines like “Is FCC Peddling Fake Net Neutrality?” and “FCC Chair Genachowski’s ‘Fake Net Neutrality’ Scheme Threatens Internet Freedom, Digital Democracy,” the left’s unhappiness is as loud as it is music to the ears.

On the other hand, the chairman’s proposal has also attracted heavy fire from members of Congress, many but not all of them Republicans, and from the two Republican commissioners at the FCC.  In Congress, the general animus centers on the feeling that the FCC should at least consult with, if not defer to, the members about such things, while Republicans are especially angry that the chairman’s plan anticipates action before the newly elected members of the House and Senate are even seated.

Meanwhile, the service providers are somewhat divided, with some of them content to wrap things up in a way that falls far short of what they had feared, while others are troubled by the apparent lack of a sunset provision, and by the unsettled nature of many important details.

So philosophy on parade it is not.  It is, instead, equal parts partisan politics, an acknowledgment of the way the world works, and 100-proof deal making.  As such, it’s unsatisfying – like taking a shower with your socks on – but it’s not a complete surprise.  As reported here, it’s always been clear that Genachowski had the inclination, and the votes, to proceed with some kind of “net neutrality” scheme, even as it also has looked ever more problematical for him to go the whole nine yards, as in Title II “reclassification.”

More than this, there are aspects of the apparent plan – like its embrace of consumption-based billing – that are deeply satisfying.  It wasn’t all that long ago that Time Warner Cable had to abandon plans, in consequence of noisy opposition from the usual troglodytes, to do some trials of this kind of thing.  Charging more of those who use more is the way we price most things, of course, but that didn’t prevent groups like Free Press and Public Knowledge from piling on in opposition to TWC’s plans, nor from gloating when the company withdrew its proposed trials.

For now, the whole of this matter can be reduced to some questions, not all of them answerable.  Is Title I regulation better than Title II?  Yes.  Is this the best result one could reasonably expect from this FCC?  Probably.  Is it wise public policy?  No.  Will the FCC’s action, whatever it is, be the end of the matter?  Depends.  If, sometime in the future, a party with standing decides to sue the agency on the claim that it lacks authority to regulate the Internet in this way, it will have a viable argument with some case law to back it up. And if that lawsuit were to be resolved in a way that (once again) ordered the FCC out of the Internet regulation business, well, so much the better.

                                                
The opinions expressed above are those of the writer and not necessarily of The Media Institute, its Board, contributors, or advisory councils.

Posted on By Patrick Maines

Net Neutrality’s Poison Petition

For those in the communications policy business, perhaps the most jaw-dropping datum to issue from Tuesday’s elections is this: Of the 95 candidates for the House and Senate who signed a petition encouraging “net neutrality” regulation, all of them lost.  Not some of them.  Not most of them.  All of them.

It’s really quite remarkable.  Not even the Black Death killed everybody.  But there it is, a new world record for political toxicity.  The humorous aspects of this debacle aside, there is a serious lesson here: There is no appetite in this country for regulatory schemes whose effect is to promote government (and a few companies) at the expense of private-sector investment generally.

Yet this is precisely what net neutrality regulations, whether Lite or industrial strength, would do.  Intended or not, codified regulations would inevitably lead to government meddling in this freest part of the communications industry, and frustrate the kind of investment in the broadband infrastructure without which there can be no growth in this vital sector of the economy.

And for what?  As mentioned here, net neutrality is the condition that obtains today!  Nobody is being deprived or disadvantaged of anything worth talking about.  Indeed, a quick look at the kinds of organizations that have been promoting net neutrality pretty much says it all.

On the one hand we have groups like Free Press, whose interest in the subject is precisely because of the potential in governmental oversight to yoke communications companies to the agenda of the nation’s “progressives.”  While on the other you have a company like Google that, in the best tradition of crony capitalism, wants to tilt public policy in a direction that benefits its private interests.

It is widely believed that FCC Chairman Genachowski  would like the FCC to be relieved of the responsibility of taking on the task of codification of the net neutrality rules.  He is to be commended for his reservations, especially since he is under great pressure from the net neutrality lobbies to act.

The wise course now would be to let the clock run out on any kind of FCC action.  If the Republican gains in Tuesday’s elections don’t speak clearly enough about the matter, surely the fate of the hapless signers of the net neutrality petition does.

[Updated 11-4-10, 1:50 p.m. EDT, to reflect latest election results.]

                                                   

               
The opinions expressed above are those of the writer and not necessarily of The Media Institute, its Board, contributors, or advisory councils.
 

Posted on By Patrick Maines

Free Press and the Huffington Post

As some have noticed, a few pieces on this blogsite were originally published on the Huffington Post.  I started writing at HuffPo, in November of last year, because I wanted to occasionally write things that I felt were inappropriate for the Media Institute’s blogsite, and because I knew there were a few regulars there who, like me, were unhappy with the illiberalism of today’s “progressives.”

So it was that the first piece I wrote was a kind of introduction to all such called "The Orphan of the American Political System," in which I argued that it was a strange and unfortunate thing that liberals and libertarians were not allies.  (Because this piece had nothing to do with the media, and was overtly political, it wasn’t cross-posted, until now, on this website.)

Published in HuffPo’s “Politics” section, "Orphan" attracted a fair number of supporters and detractors — in other words pretty much what I expected, and all was well.  It wasn’t until I wrote blog number six, in February of this year, that the trouble began.

"The Intrinsic Menace in ‘Media Reform,’" published on Feb. 22, was a criticism of the “media reform” movement generally, and of the Knight Foundation, the FCC, and the group that calls itself Free Press specifically.  Among the subsequent commenters were Charles Firestone of the Aspen Institute, who challenged my characterization of the Knight Commission (a collaboration of Aspen and the Knight Foundation) and Timothy Karr of Free Press.

Karr’s comment was a classic.  In the finest tradition of political activists everywhere, Karr dealt not at all with the substantive points in my piece, but instead resorted to ad hominem attacks on me and The Media Institute, and faulted the editors of the Huffington Post for publishing it.

This last bit turned out to be a thing of some moment, about which more later, but Karr had more to say.  Lot’s more.  Just one day after the publication of "Intrinsic Menace," Karr wrote a piece for his own blog (Media Citizen) titled "When Corporate Shills Attack."  And three days after that he published, on the Huffington Post, a piece titled "Announcing the (Unofficial)Post Shill Watch," and cross-posted it the same day at Daily Kos.

The burden of both pieces, if that’s the word, was two-fold: HuffPo was allowing “corporate shills” (like me) to enter its progressive sanctum sanctorum, and it was not requiring said bloggers to state their organizations’ sources of support.

Had this been all that Karr said it wouldn’t have been an issue. Criticism by Free Press, after all, is considered by many, myself included, to be a thing of no importance, such is that organization’s tedious and transparent “mission.”  But it wasn’t all that he said.  In his Media Citizen blog, Karr also said that I personally had blocked publication of comments he had submitted to HuffPo — that in fact I had blocked his comments no less than five times.

And that was a lie.  Not only had I not done so, I wouldn’t have done for the simple reason that, as the head of one of the country’s leading First Amendment organizations, censorship is not my thing.

So this was unacceptable, and the only question was what to do about it.  After considering other approaches, I decided to ask HuffPo for their help.  As I put it in an e-mail to an associate editor there:

(Tim Karr) is saying on other sites that I have blocked him from commenting on my post at HuffPo.  He claims that he has been blocked five times.  I don’t know if he has in fact been blocked — he has a comment up there now, to which I responded — but I know, as you know, that I certainly didn’t block him.  Since, however, you are the only people who can prove my innocence of Karr’s charge, I hope you’ll find the time and a way to do so.

Thus began a frustrating exchange of notes that went on for eight days.  To my point that Karr had accused me of blocking his comments, the editor initially suggested that Karr was referring to someone else.  To Karr’s claim that I had blocked him five times, the editor suggested I write a piece for HuffPo with a link showing that one comment had been published.  And because Karr had published his accusation on his own blog (Media Citizen), well, there wasn’t much that HuffPo could do about that.

Finally, on March 5, I got a reply to a note I had sent the day before, in which I bluntly questioned why HuffPo was reluctant to tell Karr that I had not blocked his comments.  Much as I had expected, the editor’s note revealed that it was HuffPo itself that had blocked his comments, that they had done so because his comments were critical of HuffPo’s editors, and that Karr had been informed of this in a phone conversation.

I was relieved to hear this, and I thanked the editor and told him it was all I needed, but this affair left a bad taste in my mouth.  It would, after all, have been an easy thing for HuffPo to reveal Karr’s lie by commenting on his "Shill Watch" post on HuffPo itself, though of course that would have required that they publicly own up to blocking his comments themselves.

The bad taste got worse less than a month later when, on March 31, HuffPo announced “new blogging guidelines.”  As described on their website:

In an effort to be as transparent with our readers as possible, we require HuffPost bloggers to disclose any financial conflicts of interest related to the issue they are writing about.  If a blogger receives payment or income from a company, organization, group, or individual with a financial stake in the issue he/she is weighing in on, that information must be disclosed at the bottom of the applicable blog post.

For those who have opened the hyperlinks provided above, these words will sound familiar.  In fact, they sound exactly like what Karr was demanding. As he wrote in his Media Citizen blog:

I respect Huffington Post for building a home for many of us who seek an alternative to the mainstream mouthpieces that dominate news and commentary.  But they do not, unfortunately, require the kind of disclaimer I’d like to see regarding a new crop of contributors who are using the site to push corporate agendas.  I’m hoping that will change soon.  (Emphasis added.)  

Apart from the appearance of an inordinate amount of influence that Free Press has at the Huffington Post, there are many things wrong with this guideline, the most obvious being the way it lumps together people who work for organizations as diverse as law firms, corporations, PR firms, and nonprofit organizations, and implies moreover that bloggers’ opinions amount to “conflicts of interest” wherever they derive any income from entities that have a “financial interest” in the subject being blogged.  It also has the (deliberate?) effect of letting people whose contributors have an “ideological interest,” like Karr and the Free Press funders, off the disclaimer hook altogether.

If, as appears to be the case, HuffPo’s new disclaimer guidelines are a consequence, in whole or in part, of lobbying by Free Press, about whose funding we know next to nothing, the irony is almost too rich for human consumption.

But for the Huffington Post, this is not the worst of it.  Despite its left-leaning editorial slant, one can see in HuffPo the potential for dialogue.  It’s inherent in the openness of the site itself, and it’s implied by Arianna Huffington’s history and in her published views.  But at Free Press dialogue and debate are treated as bourgeois concepts, best abused or neglected, and if the Huffington Post allows them to influence their editorial policies they stand to lose not just a diverse readership but their credibility as well.

Posted on By Patrick Maines

Shedding Light on Title II and the First Amendment

Now that FCC Chairman Julius Genachowski has proposed what Broadcasting & Cable’s John Eggerton artfully calls a “Title II Lite” approach to broadband regulation, it’s a good time to take a second look (or maybe your first) at a recent paper by Robert Corn-Revere.

Bob wrote a Perspectives policy paper for The Media Institute titled “Defining Away the First Amendment,” which we released May 4.

This noted First Amendment attorney makes a crucial point – but a point that has not received adequate attention: “The FCC’s current ability to change the level of First Amendment protection for a medium simply by changing its regulatory definition is quite limited, if not nonexistent.”

Whoa, you mean there’s a First Amendment dimension to this reclassification debate?  You’d never know it by listening to the FCC, or to “net neutrality” supporters like Free Press.  Maybe that’s not surprising, since the First Amendment could very well prove an unwelcome stumbling block for Chairman Genachowski and his net-neutrality ilk.  Easier for them just to ignore it.

But, I would suggest to you, the First Amendment is far too important to ignore here.  In his issue paper, Bob Corn-Revere has shed some much-needed light on a pivotal concern that the FCC has tried to keep in the shadows.  Taking a “lite” approach to Title II reclassification doesn’t absolve the FCC of its constitutional obligations.  If anything, we need more “light” from Bob and others who are willing to hold the FCC accountable for the First Amendment ramifications of its regulatory agenda.

Posted on By Patrick Maines

D.C. Circuit’s ‘Net Neutrality’ Decision

The D.C. Circuit Court’s decision, while obviously correct, will not slake the thirst of anyone looking for intellectual arguments for or against the FCC’s proposed regulation of the ISPs’ network-management practices. Because the court ruled that the FCC lacked the "ancillary" authority it asserted, the body of the decision amounts to little more than a refutation of the respondents’ argument that earlier Supreme Court decisions provided precedent for the FCC’s claims.

The "legalistic" nature of this decision aside, there is something important here. It is widely surmised (and feared) that, thus rebuffed, the FCC will attempt to get to its desired result – network neutrality, as it’s called – by attempting to regulate ISPs, like phone companies, under Title II of the Communications Act.

But look what’s happening here. On the basis of claims of abuse so slim they’re very nearly invisible, the FCC has proposed to expand and codify that agency’s "Internet principles" in a way that guarantees its regulatory oversight of the freest, most democratic, and fastest-growing communications medium in the country. And for what? Because of fears that Internet providers might look for ways to insulate everybody else from the negative consequences of the actions of a relative handful of bandwidth hogs?

One of the intervenors in this case – Free Press, whose sole reason for being is the subjugation of the commercial media and communications companies to the yoke of government – coined the phrase "Net Neutrality: The First Amendment of the Internet." The reality, as someone put it, is that codified net neutrality is more nearly "The Fairness Doctrine of the Internet."

For now, nobody knows for sure what will happen next – whether the FCC, or Congress, will push ahead in the conviction that this too is an issue of such "transformative" importance the only thing that matters is getting it done. But in this, as in so many things, the wiser course would be to rethink the matter entirely. It rarely happens that government acts more efficiently than the marketplace, and net neutrality is almost certainly no exception to that rule.

Posted on By Patrick Maines

The Intrinsic Menace in ‘Media Reform’

Christian theologians refer to the first three books of the New Testament as the synoptic gospels.  This, because of their similarities in content and order.  The new religion of “media reform,” whose principal tenet is that government needs to “save” journalism, is developing its own synoptic gospels – the gospel according to the Knight Foundation, Free Press, and just now rounding into view, the FCC.

For those who, until now, have enjoyed the luxury of knowing little about the handiwork of this threesome, a few words are in order:

The Knight Foundation (the vestigial remains of the defunct Knight-Ridder newspaper empire) is one of the country’s largest grant-giving foundations, with assets in the neighborhood of $2 billion.  Like Glenn Close in "Fatal Attraction" ("I won’t be ignored, Dan"), the Knight Foundation is not going away.

Through its gifts to educational and nonprofit organizations, the foundation funds journalism programs as its “signature work.”  It recently joined forces with the Aspen Institute to create the Knight Commission, the product of whose labor is the recently released report on the Information Needs of Communities in a Democracy (not to be confused with the information needs of community Democrats), an opus that, as reported here, is trivial and irrelevant, about 50-50.

Free Press is the absurd name of a paleoleftist organization that sees government influence over the media as a way to advance its larger political views, a point made both explicitly and inadvertently in the published opinions of the group’s founder and Maximum Leader, Professor Robert McChesney.  Free Press (or its lobbying arm, the Free Press Action Fund) convenes national “media reform” conferences; encourages laws and regulations that aim to increase the role of public media and reduce that of the commercial media; and coins amusingly infantile slogans like “Net neutrality: the First Amendment of the Internet.”

The FCC, of course, is the regulatory agency with sway over the affairs of the media, which, under chairman Julius Genachowski, has embarked on a number of “media reform” initiatives that parallel, if they aren’t in actual collaboration with, those of Free Press and the Knight Foundation.

Genachowski, for instance, was presented with a copy of the Knight Commission report at a publication ceremony at the Newseum, and in an interview with Broadcasting & Cable, the head of the FCC’s Future of Media initiative made explicit reference to the Knight Commission in answer to a question about what form his recommendations would take.

So what “media reform” policy positions do these organizations share?  As shown in their own comments or testimony, that of groups they fund, and/or that of others writing about them, at least three items can be identified.  They favor “net neutrality,” increased funding for public media, and an expanded role, through explicit tax breaks or other changes in the tax laws, for nonprofit organizations.

Looked at one at a time, and from a distance, none of these may seem like an unreasonable objective.  But taken together, and examined closely, they constitute a profound assault on some of our most cherished ideals about the media and its role in our national affairs.

Take “net neutrality,” for instance.  In both the literal and figurative sense of the term, network neutrality is the condition that obtains today.  Nobody is being favored or denied by ISPs of anything worth talking about.  But the proponents of net neutrality don’t want to leave well enough alone.  At the prospective cost of a reduced build-out of the broadband infrastructure (and the guaranteed intrusion of government into the affairs of the hitherto unregulated Internet), Free Press, the Knight Foundation, and the FCC want to codify and extend the Commission’s so-called Internet principles.

But by putting the camel’s nose of government under the tent of the Internet, codified net neutrality regulations would threaten the independence of the freest communications sector in the country, and thereby pose a direct challenge to both the letter and the spirit of the First Amendment, as well briefed by constitutional scholar Lawrence Tribe.

Proposals to change the tax laws so as to permit for-profit media companies to operate, in whole or in part, as nonprofits, or to explicitly authorize gifts to commercial media from nonprofit grant-giving foundations, or (as the Knight Commission recommends) to provide tax credits for investigative journalism, are similarly problematical.

As with net neutrality, the threat in amending the tax laws along these lines is that by doing so one lets the fox in the hen house.  How, for instance, would it be possible to insulate the media from charges of bias, and the concomitant threats to their tax-exempt status, when their political coverage offended one party or the other?  Might this not have the practical, if not the intended, effect of reducing the amount and kind of political coverage, like candidate endorsements?

Calls for greater funding of public media like NPR and PBS, through the Corporation for Public Broadcasting, are not so much constitutionally objectionable as they are ludicrously untimely.  Here we are as a nation, teetering on the brink of insolvency and with millions unemployed, and the recommendation is that we spend more taxpayer dollars on… public broadcasting?  Even without obliging PBS stations to commit suicide by requiring them to reorient their news programming toward local news (as all of the media reform advocates recommend), surely this idea is going nowhere soon.

Nor should it. News coverage by the public media in the United States represents a tiny, and because of that tolerable, adjunct to the vastly more important commercial media, whose independence from government is the sine qua non of its editorial independence.

Whatever one’s qualms or fears about the media of the future, the importance of independent (read: commercial) media is clear.  For this reason, the crisis in “medialand” is no cause to throw the baby out with the bath water, particularly where the “solutions” offered – like those of the media reform crowd – ignore decades of experience in the way the world works.

There are some people who understand this and some who don’t, but should.  An example of the former is FCC Commissioner McDowell who, in obvious discomfort by the direction the agency’s media initiative appears headed, has questioned the “constitutional, legal, and policy implications” of any government effort to “preserve or change journalism.”

Those who, in large numbers, do not get it include much of the “netroots nation” and progressives generally.  But here’s an exercise that might provide a cure for this.  Imagine a time, not too many years in the future, when the GOP controls the presidency, the House, and the Senate.  The Republican president has appointed a majority of the commissioners at the FTC and the FCC, and has, like all presidents, substantial influence with the independent agencies.

In this environment, how confident would progressives be that the Republicans would not attempt to use the FCC’s oversight of the Internet, as established through the years-earlier codification of net neutrality rules, or sway over the committees of Congress (and through it of the CPB), to influence the content of the media, commercial and public?

It is, of course, a rhetorical question.

First published here on The Huffington Post, Feb. 22, 2010.

Posted on By Patrick Maines

Net Neutrality in Retreat?

If you’re a “net neutrality” critic, and dabble in schadenfreude, things are looking up!  First, there was oral argument in the D.C. Circuit Court of Appeals (Comcast v. FCC), during which the panel clearly appeared to reject the notion that the FCC had authority to pursue its ambitions in this regard.

Then, just last week, there was the White Paper filed at the FCC on behalf of Time Warner Cable by constitutional scholar Laurence Tribe, arguing that net neutrality as proposed is likely unconstitutional under the First Amendment.

Last but not least is the report, debated but out there, that the Administration is cooling on net neutrality because it fears that it might depress the amount of capital the private sector invests in broadband deployment — an argument also made here — thereby defeating the goal of ubiquitous broadband access and stunting job growth as well.

One can only imagine the anguish such a turn would engender in the net neutrality crowd.  A conflict between Free Press and the Administration?  How could they reconcile it?  What manner of prose could they summon to express their innermost feelings?  The “vituperative retreat” perhaps, or maybe something more stylish, like an Olbermannesque commentary.  Perhaps they’d initiate, simultaneously, 100 diary threads on DailyKos.

Well, we don’t know for sure but we can dream.  What we do know is that Chairman Genachowski’s plan of extending and codifying the FCC’s "Internet principles,” announced with such confident fanfare not so long ago, is now coming under heavy fire from lots of quarters.

Laurence Tribe’s brief is particularly noteworthy, both for its line of argument and for the road map it lays out for a court challenge on constitutional grounds, should net neutrality be formally adopted.  To quote just one of several poignant passages therein:

Net neutrality proposals rest on the mistaken premise that the constitution gives the government a role in ensuring that the voices of various speakers receive equivalent attention and that audiences receive equal access to all speakers.  In fact, a central purpose of the First Amendment is to prevent the government from making just such choices about private speech, including decisions about what amount of any given kind of speech is optimal.

That Tribe was an active supporter of the candidacy of President Barack Obama, and served as a judicial adviser to Obama’s campaign, suggests that he has the Administration’s ear on such matters.  This, coupled with speculation about the reason for the departure of Susan Crawford, a strong proponent of net neutrality, lends weight to the notion that the Administration may be reconsidering its erstwhile support of net neutrality regulation.

If so it would just be another example, as H.L. Mencken put it, that for every complex problem there is an answer that is clear, simple, and wrong.