An Interview With Dr. Chris Terry

Commercial and other media in our society operate within a legal framework that is complex, heavily influenced by well-connected special interests, and largely ignored by media consumers. Whenever I want to understand vital issues in media law, I go to my former student Chris Terry for clarification and insight. Dr. Terry is an assistant professor of media ethics and law at the University of Minnesota Hubbard School of Journalism & Mass Communication. Chris is an active scholar in the areas of administrative law, media regulations, and the real world impacts of media policy. Below are few questions for Chris about a range of current issues, from "net neutrality" to what we should be paying attention to as campaign 2020 approaches. A prior interview I did with Dr. Terry can be found here. 

Dr. Chris Terry earned his Bachelor's degree in Radio/TV/Film at UW Oshkosh, his MA in Mass Communication at UW Milwaukee, and PhD in Mass Communication Law at UW Madison. He worked for more than a decade in radio production before starting his career in academia. He's published numerous scholarly articles on media and law (scroll down this link to find a list) and is a frequent participant on media podcasts and blogs. 

Media Rants: You anxiously awaited a result in the Mozilla v. FCC case. What is that case about? What was the result? And why should people care?

Chris Terry: The anxious wait in the case was because the time between oral arguments and the release of the decision was a long one. The case was about the FCC’s decision in 2017 to repeal the agency’s 2015 decision that implemented Title II rules on internet service providers. The 2015 rules had been upheld in court 3 times (twice at the DC Circuit, and an appeal by US Telecom was denied cert by SCOTUS). The current FCC, led by Ajit Pai none the less repealed those rules in favor of ones more friendly to ISPs.

US Court of Appeals Judges Robert Wilkins, Stephen Williams, and Patricia Millett handed the FCC a partial victory in Mozilla v. FCC, a case dealing with the important issue of "net neutrality." At the heart of the case, according to Chris Terry,  is whether your Internet Service Provider should have the power to block you from online content as long as they tell you they are doing so. 

The FCC won the case on a basic legal principle of deference by the court to the agency’s decision, (commonly called Chevron Deference). The FCC did lose on a couple of key points, including having power to preempt state laws that are designed to implement Net Neutrality. The agency’s Republican majority crowed loudly for a few days, but this week reality caught up with Ajit Pai, and he’s now asking Congress to get involved.

People should care because the FCC is giving your ISP the power to throttle or block you as the consumer from content online as long as the ISP tells you they are doing so. The 2015 Title II rules put the consumer in charge of content access decisions. The other reason people should care is that the decision is going to lead to a long and complicated series of litigation.

Ajit Pai, former Verizon Corporation lawyer, was appointed to the Federal Communication Commission by President Barack Obama at the request of Republican Senate leader Mitch McConnell. In 2017 President Trump appointed Pai as FCC Chair. He has openly opposed government attempts to enforce net neutrality. 

Media Rants: Another important case is Prometheus Radio Project v. FCC. What is that case about? What was the result? And why should people care?

Chris Terry: Prometheus Radio Project v FCC was the 4^th time the FCC’s media ownership rules have gone to court in the 3^rd Circuit since 2004. The issue is whether or not the agency’s rules about media ownership, including the ownership of broadcast stations by women and minorities are valid. For the 4^th time, the court reviewing those policies has said no because the FCC cannot defend the effects of those rules empirically.

“Here we are again.”

This is the opening of the recent decision written by Judge Ambro in the latest judicial review of media ownership rules, in what is now Prometheus Radio Project v. FCC (IV). The FCC is 0-4 in court, in what amounts to another wipeout of the agency’s decision.

The election of Donald Trump, and the promotion of Ajit Pai to the head of the FCC had a trickle-down effect to media ownership policy. Although the agency had finally made a decision in August of 2016, before the legal challenge to that decision reached oral arguments, a new Pai led FCC issued a new decision, entirely overturning the August 2016 decision in the form of the November 2017 Reconsideration Order which I discussed in great detail here and in this Podcast. 

On September 23, 2019, the Third Circuit sent the FCC packing, again, in what amounts to close to a complete defeat for the agency. From judge Thomas Ambro's opinion:

“Here we are again. After our last encounter with the periodic review by the Federal Communications Commission (the 'FCC' or the 'Commission') of its broadcast ownership rules and diversity initiatives, the Commission has taken a series of actions that, cumulatively, have substantially changed its approach to regulation of broadcast media ownership. First, it issued an order that retained almost all of its existing rules in their current form, effectively abandoning its long-running efforts to change those rules going back to the first round of this litigation. Then it changed course, granting petitions for rehearing and repealing or otherwise scaling back most of those same rules. It also created a new 'incubator' program designed to help new entrants into the broadcast industry. The Commission, in short, has been busy.”

Appointed by President Bill Clinton, Judge Thomas Ambro of the Third Circuit Court of Appeals has repeatedly challenged the FCC to defend its media ownership rules in a more evidence based, rigorous manner. 

Problematically, the FCC is not embarrassed to admit, that this failure is their own, failing to even argue the point as it had at least tried to do in the past:

“Problems abound with the FCC’s analysis. Most glaring is that, although we instructed it to consider the effect of any rule changes on female as well as minority ownership, the Commission cited no evidence whatsoever regarding gender diversity. It does not contest this.”

No evidence whatsoever. None. Zip. Zilch, and as a reminder, this has been at the core of FCC ownership decisions since 2002. Not bad for an agency that is staffed largely by economists.

Judge Ambro again: 

“The only 'consideration' the FCC gave to the question of how its rules would affect female ownership was the conclusion there would be no effect. That was not sufficient, and this alone is enough to justify remand….Even just focusing on the evidence with regard to ownership by racial minorities, however, the FCC’s analysis is so insubstantial that it would receive a failing grade in any introductory statistics class.”

Importantly, the Third Circuit is forcing the FCC to recognize the outcomes of ownership policy are not natural effects, but rather the results of choices (bad ones) made by the agency. 

So, we remain where we have been for over 15 years…with an agency that can’t pass basic stats nor do what it has been told to do 3 times in the past. Going 0-4 at the plate is bad by any metric in any sport, and at this point this situation would be comical if the stakes were not so high. The FCC regulates the industry that delivers information, a key component of that thing we like to call democracy. We, regardless of one’s viewpoint or ideology, need this to work. But the circuit says no…again:

“Accordingly, we vacate the Reconsideration Order and the Incubator Order in their entirety, as well as the 'eligible entity' definition from the 2016 Report and Order. On remand the Commission must ascertain on record evidence the likely effect of any rule changes it proposes and whatever “eligible entity” definition it adopts on ownership by women and minorities, whether through new empirical research or an in-depth theoretical analysis. If it finds that a proposed rule change would likely have an adverse effect on ownership diversity but nonetheless believes that rule in the public interest all things considered, it must say so and explain its reasoning. If it finds that its proposed definition for eligible entities will not meaningfully advance ownership diversity, it must explain why it could not adopt an alternate definition that would do so. Once, again we do not prejudge the outcome of any of this, but the Commission must provide a substantial basis and justification for its actions whatever it ultimately decides.”

Media Rants: In 2010 the FCC released a National Broadband Plan. What is the status of that? What’s your take on why progress in expanding broadband access is so slow?

Chris Terry: Not good. The agency has not met a single of the six stated goals of the plan more than 3500 days since the plan was launched, and in many cases, has even moved the goal posts on those goals. Notably the plan was supposed to be fully implemented by the middle of March of 2020, and there is no chance the goals of the plan will be met.

In terms of why…it is all about ideology. The FCC is (and has been) relying on competition theory to resolve the broadband deployment issue, instead of say, subsidies, and the results are quite awful. The FCC is now throwing small batches of money at places in hopes to generate some positive headlines, but the amounts are insignificant compared to the actual needs, and are often 10 year grants.

I wrote about the status of each of the goals in this Benton Foundation piece to mark 3500 days of the plan:

Media Rants: Politifact recently sought out your expertise to help judge the truthfulness of a claim bySenator Elizabeth Warren. What was that all about?

In this Facebook ad, Elizabeth Warren said that "If Trump tries to lie in a TV ad, most networks will refuse to air it. But Facebook just cashes Trump’s checks." Politifact found that claim to be "mostly false." Chris Terry provided Politifact with the legal framework controlling the regulation of political advertising. 

Chris Terry: Senator Warren had made an inaccurate statement about the obligations of stations and networks to take down/not air political ads with inaccurate information in them. I was consulted by Politifact to help explain how the regulations, many of which are quite old and archaic work. I handled political advertising materials when I was a radio producer and I’ve done some extensive research on political advertising since becoming a professor.

Media Rants: You’re a resident of Minnesota. Apparently tons of money are being spent in an effort to unseat Representative Ilhan Omar. Can you shed some light on that? Is what is happening in that Congressional district typical around the country?

Chris Terry: The large quantity of money (more the $550k) spent in the Twin Cities recently was actually about Angie Craig in MN-2. Craig, as a DFL candidate, won a Twin Cities Metro district that tends to lean conservative in the 2018 elections. She’s obviously a target in a race for a House seat the GOP and GOP leaning groups consider to be competitive. I suspect the ads which were run were test ahead of some internal polling to assess the district.

Ilhan Omar draws a great deal of ire from national conservatives, but she represents a very blue district. It would hard to unseat her outside of the primary. One of her Republican challengers was recently charged with shoplifting.

Media Rants: As we head toward the 2020 elections, what are the critical issues in free speech, media law, etc. that voters should be concerned with as they go about deciding on what candidates to support?

Chris Terry: I’ve done multiple interviews and consults with people interested in the regulation of deceptive political advertisements, especially online. Setting aside the fact that such rules are nearly impossible to produce consistent with the 1^st amendment, I suspect this will be an issue in the early part of the year, but not get much traction with the Federal Election Commission lacking a quorum and the split between the House and the Senate. Net Neutrality, or at least the idea there may be some Congressional action on the issue is certainly up there. Media ownership policy will be on a time out for a bit after the loss in the Prometheus case.

Given the heated nature of our current political climate, I expect to see lots of attempts to ramp down, or at least control and limit, political demonstrations in public as we approach the election. We’ll hear the usual excuses about public safety concerns, but if we ever needed a time for protected expression, this coming election cycle is going to be it.