The New Obama FCC

The inaugural festivities are over and it's "get down to work" time -- or rather, get down to "make it work" time. It's hard not to be inspired by President Obama's inaugural address, his cool and collected manner, and the "get to work" ethic he displays with almost every public appearance. His inaugural address also confirmed my earlier article prediction that an Obama Administration will reaffirm the legitimacy of the regulatory mechanism of government.

With a brief hiatus during the Clinton administration, the mantra of national leadership since the Reagan era has been that the market will correct all ills and that government is the problem. In his address, President Obama responded to that directly:

"What the cynics fail to understand is that the ground has shifted beneath them, that the stale political arguments that have consumed us for so long no longer apply. Nor is the question before us whether the market is a force for good or evil. Its power to generate wealth and expand freedom is unmatched. But this crisis has reminded us that without a watchful eye, the market can spin out of control."

Whether or not you agree, these are wise words of warning that regulatory oversight is about to become a much stronger influence in the lives of all Americans -- and that also means broadcasters.

There also are hints of things to come in President Obama's choice for FCC Chairman. Julius Genachowski is broadly known as a strong proponent of Net neutrality, the principle that Internet service providers should not be permitted to restrict the right to use services owned by someone else or prejudice user access in favor of their own services. At its heart, Net neutrality is a regulatory concept. Perhaps it's a good one -- perhaps one that is needed -- but nonetheless, a regulatory concept that would impose a government agency's concept of the public interest on the providers of a service. Genachowski served as Chairman Reed Hundt's Chief Counsel during the Clinton Administration. While Chairman Hundt was known to promote market solutions, he also was not shy to flex the regulatory muscle when he believed it would serve the public interest.

It is likely that the views of a Chairman Genachowski would receive strong White House support. Genachowski and Obama were classmates at Harvard law school. More recently, as a trusted advisor in the President's campaign and principal author of the campaign's telecommunications policy, he advanced a Net neutrality policy which has already made its way to the White House website at http://www.whitehouse.gov/agenda/technology On that website, as well as in the campaign materials, President Obama has made clear his belief that telecommunications policy is critically important to his goals of educational opportunity and economic opportunity through the Internet. We can expect the new Chairman to have the ear of the White House.

So, what should broadcasters expect from an Obama/Genachowski FCC? In a previous article I mentioned that the issues and programs list, the first part of the Fairness Doctrine, is likely to receive greater scrutiny. It's a natural starting place for oversight. The problem is walking the fine line of the First Amendment. While the Commission has done it successfully before, critical guidance on this issue may come from the Supreme Court when it rules on the indecency cases in Fox v FCC. Watch that case to show us the path on how far the FCC can go in directing the programming responsibilities of broadcasters. While indecency and its definition are at issue there, we may get guidance on the acceptable limits of general incursion into broadcaster discretion by government regulation and oversight.

Also, at the least, be prepared for initiatives that scrutinize quarterly issues and programs lists to assure that responsive programs are truly relevant to the local issues they purport to discuss. Here, although First Amendment principles are implicated, the Commission may have greater leeway as it examines the utility of the lists to achieve promised performance in addressing local issues. It's also been broadly reported that no further relaxation of the media cross-ownership rules could be expected from a Genachowski FCC.

Next up, we'll examine some other areas that are likely to receive renewed regulatory attention.

This column is provided for general information purposes only and should not be relied upon as legal advice pertaining to any specific factual situation. Legal decisions should be made only after proper consultation with a legal professional of your choosing.