FCC Commissioner Adelstein wrote Chairman Martin a letter yesterday asking Martin to launch a formal inquiry into Arbitron’s use of the new portable people meter (PPM). As I noted back in September when the FCC put the Petition for an inquiry out on Public Notice, this issue means a lot to minority-oriented stations and their audiences, as they believe the PPM undercounts listeners to minority radio programming.
Also as I said back then, I think the FCC has very broad authority to investigate just about anything related to its core mission of, in the words of Section 1 of the Communications Act, “to make available, so far as possible, to all the people of the United States, without discrimination on the basis of race, color, religion, national origin, or sex, a rapid, efficient, Nation-wide, and world-wide wire and radio communication service with adequate facilities at reasonable charges, for the purpose of the national defense, for the purpose of promoting safety of life and property through the use of wire and radio communications.”
Mind you, having the power to launch an official inquiry does not mean you have the power to actually do anything. The FCC’s mandate is fairly broad, but it has limits. But one of the questions the FCC can ask is: “So, if we discovered something we didn’t like, what could we do about it?” That answer may be nothing more than “tell Congress this sucks,” a conclusion the FCC has reached in the past on occasion when it concluded it could take no action under existing law. But it also allows the FCC to explore other options. For example, the FCC could decide that concerns over the ppm make Arbitron ratings unreliable for certain measurements relating to its rules, like determining whether or not a station is in the “top four” for purposes of permitting a merger. Or the FCC could decide, after seeing lots of opinions and legal research from interested parties pro and con, that the FCC does have authority even if it has never exercised this authority. Adelstein cites 47 U.S.C. 257, which requires the FCC to eliminate market barriers to entry. I think a fairly strong case can be made that regulation of ratings services falls under the FCC’s ancillary authority over broadcasting. That’s a little difficult after American Library Association v. FCC (the broadcast flag case), because a ppm is not a “communication” and ALA held that ancillary jurisdiction must regulate an actual communication or transmission rather than simply have some possible impact on the future of television. OTOH, ratings are so clearly integral to the entire broadcasting industry that the connection with the “statutorily mandated” responsibilities and goals of the Communications Act is very strong.
Neither of these views may bear out on close investigation as authority to act. But again, this is why the FCC conducts inquiries. While it is easy to point to things that might have an impact on broadcasting that clearly lie outside the FCC’s jurisdiction, such as building the Sears Tower in Chicago, and easy to point to things that lie squarely inside the authority of the FCC to regulate (such as media ownership limits), there is also a middle ground of things that are rather murky. In a case such as this, where interested parties have submitted a mess of evidence that raises questions on a matter that potentially impacts millions of people getting access to diverse programming, I think the FCC ought to go ahead and have an inquiry.
Stay tuned . . . .
