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Originally featured on BroadcastEngineering.com
Feb 22

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2/22/2010 6:00 AM  RssIcon

fcc-logo.jpgBack on Jan. 21, the FCC issued a Public Notice of its inquiry into what it called, an “Examination of the future of media and information needs of communities in a digital age.” This 11-page document contains 42 questions concerning media, distribution, consumption and minorities. Just in case you don’t feel like preparing a Word document, the FCC has even built a Web site where you can interactively fill in the blanks.

While the notice is filled with lots of feel-good language, “We’re from the government and here to help,” an impartial reader might come away with the uncomfortable feeling that this could represent another power grab by Obama’s commission — one that is filled with First Amendment issues.

In case you remain skeptical, read a few of the posts from Steve Waldman on the FCC’s media blog. He’s the hand-picked “senior advisor to the chairman” on media matters. His posts continually hammer the free market, broadcasters and current Fourth Estate members. Remember, he’s writing not as a public citizen, but as a highly-placed FCC official in what could appear to some as a public blog and public dialog. It is not.

There are critics of the FCC’s proposal, and they include Republican FCC commissioner Meredith Baker. Shortly after the commission’s notice, she gave a speech at the Media Institute, where she said her talk should be headlined, “Baker says government should stay out of journalism.” In her speech, Baker said, “Market gaps are not necessarily market failures requiring government intervention...As journalists search for their future identity, I urge that we leave journalists largely to their own devices to find a new sustainable commercial foundation.”

Ken Ferree, the former chief of the FCC’s media bureau, knows something about how big government agencies work. He wrote a blog post to the Progress and Freedom Foundation’s blog site on Feb. 5, slamming the FCC’s action:

“The commission purports to be interested in protecting good journalism, promoting a diversity of information sources and expanding the opportunities for a vibrant debate of public issues. We have no reason to doubt the sincerity of those representations, or of the FCC’s claim that it will consider First Amendment concerns first and foremost as the inquiry proceeds.

The problem is that the very act of initiating such an inquiry will chill protected speech; government inquiry into what is and is not working in the area of news, information and media is itself an affront to the First Amendment. And it is no answer that the commission has embarked on this journey with beneficent motives, it has no power to derogate from the protections of the First Amendment in the name of what one group of bureaucrats may think are important government interests.

…Regulation by 'raised eyebrow' has become a well-established tool for a number of federal agencies, including the FCC, but with this inquiry the commission has taken the concept to a level heretofore unknown — this inquiry is regulation by penetrating leer."

Ferree concludes by answering his own question, saying, “…the FCC has no such power or authority, and never has it been charged with exercising any such. The inquiry is based on an illusion. Unfortunately, merely by suggesting that it has the power to engage in this sweeping inquiry, the FCC has unconstitutionally snatched some level of control of the national debate from the hands of the people, where it belongs, and rested it in the hands of federal bureaucrats, where it most assuredly does not.”

That seems to be happening a lot in Washington these days.

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