Proposed New York Legislation Could Be A Novel Way To Address The Decline In Local Journalism
More than 1,300 communities in the US have totally lost local news coverage, according to a University of North Carolina School of Media and Journalism study from late 2018. This nationwide decline in local journalism hit two New York State legislators close to home when Verizon announced that it was closing the doors on Fios1, a “hyper-local” network that covers the Hudson Valley, Long Island, and New Jersey. This move by Verizon will not only leave constituents without local TV news, it will also cause 150 of the network’s employees to lose their jobs.
In response to this, Senator Kevin Thomas (D-Levittown) and Assemblyman Thomas Abinanti (D-Westchester) introduced Senate Bill S6784 and Assembly Bill A8662, which would require any cable company operating in the state to carry an independently produced local news channel. The bills define “local news channel” as “a channel which is dedicated to the category of locally produced programming, including but not limited to, news, weather and public affairs programming.” Additionally, the bills specify that the channel must be independently produced, and do not allow for providers to rebroadcast another local news station. This would require providers to create new news stations if they are not already complying with the law.
The legislation has received support from Gov. Andrew M. Cuomo and the Democrat-led State Senate, but it has been met with significant opposition as well. According to New York Times reporting, Jerry Ellig, a former chief economist at the Federal Communications Commission and current professor at George Washington University, called the bill a tax, noting that the cost of operating these news networks would be passed on to consumers.
The legislation amends New York Public Service Law – PBS § 215 which would put New York’s Public Service Commission in charge of effecting the new regulation. If the legislation passes, the Commission, which already regulates cable, water, and natural gas, would determine whether the providers’ current offerings qualify as local news. The Commission would also determine the length and frequency for which these local news stations would have to air. This provision has raised concerns as to whether the government would effectively become an “arbiter of news.”
In defense of the legislation, Senator Thomas noted, “Our democracy depends on an informed citizenry. The loss of local news seriously hurts our communities. This legislation will help ensure that New Yorkers have access to the local news and information that impacts their health, welfare, and the communities in which they live… having cable companies produce local news is essential to a healthy democracy.” Assemblyman Abinanti has justified the legislation by saying that “local news is essential to keep our community safe,” offering the example of inclement weather, where people turn to their local news stations to find out about school and road closings.
As the New York legislators observed, there has recently been a steep decline in the volume of local journalism. The University of North Carolina study from 2018 found that since 2004 “about 20% of all metro and community newspapers in the United States … have gone out of business or merged.” About 70% of the shuttered newspapers covered suburban areas, but the closures in rural counties have left many completely without coverage. Further, almost all newspapers have scaled back coverage. The study estimates that “1,000 to 1,500 of the 7,100 newspapers still publishing have cut more than half of their newsroom staffs since 2004.”
The coverage that is offered isn’t always local. A study by Duke University found that “only about 17 percent of the news stories provided to a community are truly local – that is actually about or having taken place within – the municipality[,]” and that “[l]ess than half (43 percent) of the news stories provided to a community by local media outlets are original (i.e., are produced by the local media outlet).”
The proposed legislation in New York could help solve the problem created by the closure of local newspapers, ensuring that people still have access to local news coverage on their television. Regulations of this type could have an even more widespread positive effect considering the recent consolidation of broadcast stations across the country. For example, the largest owner of local television stations in the US, Sinclair Broadcasting Group, reaches 39% of homes in the country through 193 channels. Importantly, their coverage is not always local: “[w]hen local stations are acquired by Sinclair … their news content becomes more nationally focused and more conservative.” This sort of legislation would provide states with effective tools to stymie the increasing nationalization of local TV networks and would ensure that all communities have a source of true local journalism.
However, there are serious questions as to the legality of these regulations. The legal framework for television broadcasting is complicated and likely on the verge of rapid change due to the increasing popularity of online streaming providers. In 1934 Congress passed the Communications Act which established the Federal Communications Commission (FCC). The Act also designated broadcasters as speakers which meant they were afforded protections under the First Amendment free speech clause. By 1966 the FCC had established rules for all types of cable systems, and in 1968 the Supreme Court affirmed the FCC’s jurisdiction over cable through its decision in United States v. Southwestern Cable Co..
Many of the early regulations governing TV broadcasting were promulgated because the radio and TV spectrum is finite. This scarcity gave the government a reason to assert control over the spectrum and require broadcasters to be licensed. In order to obtain a license, the broadcasters were required to conform to the rules set out by the government. The Supreme Court affirmed the government’s role in Red Lion Broadcasting Co. v. FCC (1969).
Despite cable TV systems not being limited to broadcasting on the spectrum the government has continued to assert some control. The Supreme Court observed in Federal Communications Commission v. Midwest Video Corp. (1979) that the Communications Act applied to cable TV as well. The 1992 Cable Act established standards for TV broadcasts on cable systems and ruled that these providers had to set aside some of their channels for local broadcast television (the “must-carry” rule). This rule was upheld by the Supreme Court in 1997 in the case, Turner Broadcast System, Inc v. FCC (1997). The Cable Act also determined that local and/or state authorities could regulate cable TV in areas not preempted by the FCC. New York’s Public Service Commission regulates TV in the state according to the state authority granted in this provision.
Beyond complying with the regulatory framework, the proposed New York legislation must also comply with the First Amendment of the United States Constitution. The legislation is meritorious. It seeks to solve the important problem of the state’s citizens not having access to quality information about their own communities. If passed, it would assuredly accomplish this goal and increase the amount of truly local journalism in the state. However, it would undoubtedly be questioned for its constitutionality, and TV providers would claim that their First Amendment rights were being violated.
The Supreme Court held in Turner Broadcast System, Inc v. FCC (1997) that providers could be required to set aside some of their channels for local broadcast television; however, this bill goes further and would require providers to create whole new television stations. Importantly, the Court ruled that the must-carry requirements were content-neutral, yet the proposed New York legislation appears to be content-based — local news being the content required. Beyond probably being content-based, requiring a provider to produce a TV station with certain coverage mandates appears to amount to compelled speech.
The compelled speech doctrine is highly complicated, the Supreme Court has had many recent cases dealing with the subject, and many more are probably to come. According to University of Miami Law professor, Caroline Mala Corbin, “The default rule is that as a content-based regulation, compelled speech must pass strict scrutiny.” To pass strict scrutiny, a law must be narrowly tailored to serve a compelling state interest. The proposed legislation appears to serve a compelling state interest, ensuring that the state’s citizens are informed about their communities. However, determining whether or not the proposed legislation is narrowly tailored to serve that compelling interest proves more difficult.
This is a very simplified explanation of the highly complicated doctrine from which the courts would have to decide the novel question of whether or not the government can compel TV providers to create speech. If the ambitious New York legislation passes, it will face a tough challenge in the judicial system.
Disclaimer: This piece was written originally in November 2019. The bill in question is currently going through the New York State Legislature.
Hayden Rutledge is a second-year at Cornell Law School. He grew up in Tennessee and has a political science degree from Belmont University. Hayden is a member of Cornell’s First Amendment Clinic and enjoys writing pieces on pressing issues and First Amendment Concerns.
Suggested Citation: Hayden Rutledge, Proposed New York Legislation Could Be A Novel Way To Address The Decline In Local Journalism, Cornell J.L. & Pub. Pol’y, The Issue Spotter, (Jan. 31, 2020), https://live-journal-of-law-and-public-policy.pantheonsite.io/proposed-new-york-legislation-could-be-a-novel-way-to-address-the-decline-in-local-journalism/.