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Editorial: Rush Hour

It was Rush Hour inside the Beltway last week, with so much happening we needed to offer this editorial smorgasbord on several key items of the day, while reserving the right to extend, rather than revise, our remarks at a later date.

First up is the White House’s announcement of its picks—actually congressional leadership choices—for the one vacant and one soon-to-be vacant FCC commissioner seats. That was a good thing (except for the impact of the 6:45 p.m. Halloween-night timing of the White House announcement on reporters who have kids). Had the White House not sent the nominations of Jessica Rosenworcel and Ajit Pai to the Senate last week for its advice and likely consent, it would have been hard-pressed to get them vetted and voted and seated by the end of the year, which will be no short order as it is.

With FCC commissioner Michael Copps exiting by year-end, the agency needs a full complement to deal with the many issues at hand, and the Obama administration would have had a hard time explaining inaction on FCC appointees while at the same time pushing broadband buildouts— currently a priority in FCC rulemakings—as a crucial national interest.

We will hold off on giving those two commissioners-to-be their explicit marching orders from this page on issues like media ownership, retrans, spectrum, mergers, disclosure and more and, for now, congratulate them on their nominations, which we expect will be approved by the Senate.

But one thing we will caution them about is the FCC’s new attempt to boost TV station reporting requirements. Making info more accessible online is a laudable goal, and just short of a fixation with the current administration. But broadcasters are right to be concerned about the FCC adopting new program reporting categories at the same time it takes control of a centralized, perhaps searchable and cross-referenced database of station info.

This is not some Luddite objection to new technology, but a caution that the combination of that database with the FCC’s control of licenses has Big Brother intimations. The FCC has pitched the online move as being a potential plus for broadcasters because it will save trees by moving from paper files in station filing cabinets to online files, and “improve the dialog between broadcast stations and the communities they serve…significantly reducing compliance burdens on the stations.” Reducing paperwork is a laudable goal, and improving dialog sounds fine so long as what the FCC is doing is moderating that conversation and not influencing it in a direction preferred by a political majority of regulators.

The key to this effort will be how the FCC chooses to modify the program issues list stations currently submit. If the FCC creates a onesize- fits-all form or sets minimum requirements, all that talk about reducing compliance burdens goes out the window. And if a new reporting form appears to be a series of programming dictates by proxy, broadcasters should not be reluctant to take the FCC to court. Again.

But we are getting ahead ourselves. The FCC has asked for comment on its proposal and we’re sure broadcasters, and this page, will have much more to say.

Elsewhere, the Third Circuit Court of Appeals has had its say on the Janet Jackson Super Bowl reveal, upholding its earlier decision that the CBS fine was arbitrary and capricious, rooted in an FCC change in indecency enforcement policy that the commission failed to let broadcasters know had changed.

That means that both the Third and Second Circuits have ruled the FCC’s fleeting profanity and nudity policies to be either a violation of administrative procedures or unconstitutional, or both.

The Supreme Court has agreed to hear appeals of the Fox and ABC cases, but they should take the fact that both the Third and Second Circuits are in agreement about the waywardness of the FCC’s indecency policy into account. The government’s seven-year-itch to hound CBS over that tempest in a D cup may fi nally be wrapping up. Time to focus on that multi-trillion dollar deficit.