Arbitron rejects FCC regulation


The FCC may have the authority to ask a few questions about the Portable People Meter (PPM), but that’s it Arbitron says in comments filed in the Commission’s Notice of Inquiry on PPM. Arbitron says Congress has several times specifically refused to give the FCC any regulatory authority over broadcast ratings.

“Although the Commission may have the bare authority to seek comment on the limits of its jurisdiction in these matters, the Commission has no role in the regulation of ratings services themselves. Congress expressly decline to delegate the authority to regulate audience measurement services to either the FCC or the Federal Trade Commission,” Arbitron said, noting that the final verdict when Congress investigated broadcast ratings in the 1960s was to urge creation of a private, self-regulating body, which led to the establishment of the Media Rating Council (MRC). Arbitron’s filing in the FCC’s current Notice of Inquiry on PPM noted that a Senate bill proposed in 2005 would have mandated MRC accreditation of television ratings services, but that the sponsor (then-Sen. Conrad Burns, R-MT), specifically rejected any government regulation of ratings. The bill was never enacted into law.

“Congress has considered on multiple occasions whether to put media measurement services under federal government regulation, and just as often has rejected doing so. The Commission itself has concluded that it lacks jurisdiction over services such as Arbitron’s. There is no provision in the Communications Act of 1934, as amended, that grants such authority to the Commission, and the courts have repeatedly rebuffed attempts by the Commission to assert jurisdiction over specific kinds of communications-related activities that are not themselves addressed in the act, simply upon generalized statement of policy of intent that can be found in the Commission’s enabling statute,” Arbitron said in summarizing its position.

As for attempts by PPM critics to have the FCC order stations to stop encoding for PPM, Arbitron noted that no one has claimed that encoding causes an interference or degradation of signals. Rather, they are only concerned with the information generated for the PPM system. That, Arbitron insisted, is protected by the First Amendment.

Having denied that the FCC has any authority to regulate radio ratings, Arbitron went on to defend PPM. The company said there is no consistent pattern of stations targeting minority audiences suffering losses in ratings or rankings after the switch from diaries to PPM. “Some stations that feature formats appealing to Hispanic and Black listeners have shown longer-term upward trends in their market rank and/or audience ratings, and some have not. The facts do not support the proposition that PPM-based reports uniformly and categorically result in reductions in the reported listenership of stations that cater to minorities,” Arbitron told the FCC.  

RBR/TVBR observation: A note to new FCC Chairman Julius Genachowski: It would not be smart to begin your tenure at the Commission by taking on a fight that you are guaranteed to lose in the federal courts. (And that’s assuming you could even persuade the Department of Justice to defend your position.) Unless and until Congress passes a law that says otherwise, broadcast ratings are not within your jurisdiction.