Courts Shoot Down Yet Another FCC Proposal For Being Factually Sketchy

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.