FCC to Probe “Hidden Hand” Analysts

The Federal Communications Commission is looking into whether the Pentagon’s program to use and leverage retired officers as “message force multipliers.” David Barstow broke the story in The New York Times earlier this year. Today, writing in the Congressional Quarterly, John M. Donnelly’s reports the FCC launched a probe to “address congressional questions about a Pentagon program viewed by some lawmakers as propaganda.”

The FCC is looking into whether TV networks and certain on-air analysts broke the law by failing to disclose to viewers that the apparently independent analysts were in fact part of a Pentagon-funded information campaign, a spokesman for the commission said.

“What I can confirm is that the enforcement bureau at the FCC is looking into this matter, and I can confirm that they have sent letters in connection with it, seeking information,” the spokesman said late Tuesday, without elaborating on when the inquiry began or who its targets are.

As Barstow and others have noted, the analysts, all retired military officers, were not blue sky independents but consultants or employees to military contractors with travel expenses sometimes paid by the Defense Department. The investigation is primarily looking at the networks, as Donnelly reports:

The chairman of the Energy and Commerce Committee, John D. Dingell, D-Mich., and Rosa DeLauro, D-Conn., wrote FCC Chairman Kevin J. Martin in May suggesting that a probe of these activities was appropriate. Dingell and DeLauro asked Martin to ascertain whether the TV networks or the analysts violated the law and the commissions rules regarding the proper identification of paid advocates on news shows.

“When seemingly objective television commentators are in fact highly motivated to promote the agenda of a government agency, a gross violation of the public trust occurs,” they wrote.

DeLauro said in a statement Tuesday she was pleased that the FCC was looking into the matter but that she will “continue to monitor the situation to ensure the FCC fully investigates the networks in addition to the analysts.”

At face value, the actions of many, but not all, of the analysts crossed the line of propriety. While the Pentagon’s Tori Clarke also crossed the line, it is ultimately the media who are the most fault as they once again abdicated their Fourth Estate responsibilities that are fundamental to democracy. As I wrote earlier, this whole issue is a failure of the media and indicative of their changed view of informing the public. While at one time the media felt it was a public service to investigate, it is now a profit venture with professionalism and laziness has decaying and increasing accordingly. (This is not limited to international affairs, but domestic politics from the Hidden Hand to presidential election.)

While the National Defense Authorization Act includes Rep. Paul Hodes’ section barring so-called domestic propaganda, it has yet to be signed, tested, or even deemed retroactive.

The title of Donnelly’s article, FCC To Probe Pentagon-Funded Information Campaign, is misleading, however. There is little evidence the program was funded by the Pentagon, even if travel expenses were covered. The real funder, if you will, is the media. My recollection is only NPR came out quickly to acknowledge what had happened and to make public if they had paid for their analyst’s time.

A colleague has some thoughts on the basis of the FCC’s investigation:

It appears that the article is talking about possible violations of 47 U.S.C. 317(a) its implementing regulation 42 C.F.R. 73.1212 which require that broadcast channels to identify the sponsors of material broadcast by the stations when those stations have received some sort of payment in exchange for the broadcast. (42 C.F.R. 76.1615 imposes similar rules on cable broadcasters.) Basically, 47 U.S.C. 317(a)(1) prohibits "payola" or at least require that stations announce that they have been paid to broadcast the material and the source of the payment/material broadcast. 47 U.S.C. 317(a)(2) allows the FCC to require sponsorship announcements in the case of broadcasts of political matters or of discussions of controversial issues of public importance when materials or speakers are provided to the station at no charge in exchange for the broadcast. It appears that this requirement has been put in place by the FCC and is why they are looking into the activity described…

47 U.S.C. 508 places disclosure requirements for people who receive payments in exchange for providing materials or who make payments knowing that they will be broadcast. This law might also be applicable, basically requiring those analysts who have been paid or received compensation to provide notice of their sponsors as well as possibly requiring the DoD PAO officials to notify the stations that they had “sponsored” or compensated the analysts for their viewpoints to be broadcast.

While the language of the statute would appear to limit its application to radio stations, it has been applied to TV broadcast stations as well as cable stations. I’m certainly no expert on FCC law and regulations, but I think there are a couple problems with applying the law in this case. First, at least to me, it’s not quite clear who compensated the analysts and who would be required to make the disclosure. From the articles I’ve read on this matter, the analysts were not paid by DoD or the USG and were, in fact, paid by the stations for their service as analysts. I thought all DoD/USG did was to provide the analysts with "access" in the form of special briefings. If they are trying to say that by paying for their travel and per diem they were being compensated for their later broadcasts that will be a stretch. So, was DoD obligated to inform the stations that they had compensated the analysts for travel and per diem? Were the analysts supposed to inform the stations that they had received travel and per diem in receiving the information for which they were now broadcasting their analysis? Were the stations supposed to disclose during the broadcast that they had paid the analysts for their work? It will be interesting to see how this is sorted out, but I’d be surprised if there will be any violation found.

As far as the other matter, the possible violation of the Congressional prohibition on using appropriated funds for propaganda, this would be an alleged violation of the Anti-deficiency Act, spending money in violation of the purpose for which it was appropriated. In GAO opinions this has been interpreted to be information that is purely partisan in nature or information that is not attributed to the agency sponsoring the dissemination of the information. Again, I’m not quite sure who paid whom, but if the only money that changed hands was the travel and per diem of the people brought to attend the briefings it might be a stretch to link that to the actual broadcast of information which occurred weeks or months later.

There are two issues here. One is the media’s role in this, as noted above. The other is at the likely center of the FCC query: who did these guys work for? The media, the industry, or the Pentagon?