Legal Information / Communication Issues in the FCC Media Report, “Information Needs of Communities”

A number of legal information and legal communication issues are discussed in the U.S. Federal Communication Commission’s (FCC’s) recent report on the state of U.S. media, entitled Information Needs of Communities: The Changing Media Landscape in a Broadband Age (2011).

The report’s findings cover the following legal information / communication issues:

• In recent years, while media coverage of federal legal matters has improved, media coverage of state and local legal issues — including coverage of state and local legislatures, courts, regulatory agencies, and law enforcement — has declined, except for coverage of crime stories by local television news programs. The reason is that newspapers have recently reduced the numbers of professional journalists covering these institutions, and no other media have compensated. The report finds that for-profit news organizations are unlikely to fill this gap in coverage because returns on investment are too low.
• • For example, “there are far fewer [state or local news organizations] covering Congressional delegations — especially their work on local issues. Twenty-seven states have no Washington reporters…[;] [t]he number of papers with bureaus in [Washington, DC] has dropped by about half since the mid-1980s; the number of reporters working for regional papers dropped from 200 in the mid-1990s to 73 at the end of 2008″; the number of statehouse reporters [nationwide] has dropped by one-third — from 524 in 2003 to 355 in 2009”; “newspapers send so few reporters [to courts] to do so much that [judicial] reporting has become more reactive and shallow, and less enterprising”; “[i]n Michigan, coverage of juvenile courts has” diminished substantially.
• Although public access to some U.S. legal information has increased substantially in recent years, according to the report, access to certain kinds of state and local legal information in some instances appears to have declined. The report describes instances in which access to local court records has declined, due to delays in posting digital court records online. The report finds that courts today more frequently reject freedom-of-information requests, and that newspapers and news associations today have fewer resources to challenge these denials of access in court.
• Although there are “39 local or regional cable news shows,” “only about 25–30 percent of the population can watch” them.
• State public affairs networks (SPANs) — the state-level equivalents of C-SPAN, which provide extended coverage of state legislative, judicial, and administrative proceedings — are available only in “23 states and the District of Columbia,” and these networks receive financial support from the cable industry “in only 4 states.” Only one of these networks is distributed on satellite TV. Although the new Satellite Television Extension and Localism Act of 2010 gives satellite TV providers an incentive “to provide retransmission of the SPANs,” experts “do not expect this flexibility to increase [satellite] carriage of SPANs.” “There is typically no statewide entity with whom a [SPAN] can contract for statewide carriage.” Only four SPANs, those “in Alaska, Florida, Ohio, and South Carolina[,] … are affiliated with a public broadcaster and none …directly receives [Corporation for Public Broadcasting] funding.”
• The report notes that one response to the decline of newspaper coverage of state government has been the creation in several states of “small news services [such as the Arizona Guardian] … reaching a small, intensely interested audience and charging high subscription prices.” The report observes that in other states, such as Ohio, “newspapers around the state joined together to help finance statehouse coverage.”
• The report notes that legal information makes up an important component of the coverage of “[n]ewspapers targeted specifically to Hispanic consumers.”
• Public television in Atlanta has created an e-participation platform as part of its “Lens on Atlanta” initiative.
• “Several PBS stations” use their “digital multicast channels” to broadcast legislative sessions, court proceedings, or public meetings.
• Although some public, educational, and government (PEG) channels on cable television cover local government, the number of, and funding for, these channels has recently declined substantially.
• On a low-power FM (LPFM) radio station in Spokane, Washington, law students and lawyers host a regular radio program — called Radio Law — about state and local legal issues.
• Respecting new media, the following findings concerning legal information and communication were made:
• • Legislative information is made more accessible via the Sunlight Foundation‘s Congress app, Congrelate platform, and Fifty States Project (now called the Open States Project);
  • Apps and platforms such as Filibusted, Legistalker, RealTimeCongress, and GovPulse improve citizens’ access to federal legislative and regulatory information and may foster public participation in lawmaking, while in Washington, DC, the DCCrimeFinder app identifies geographic locations where crimes have occurred;
  • In Seattle and Washington, DC, crime statistics are among the most popular data sets made available online;
  • Among the types of government data sets about which U.S. online journalists have recently expressed greatest interest are “Environmental datasets, which included data tracking violations and enforcement of the Clean Air and Clean Water Acts,” and “Crime data”;
  • Legal data made available online by U.S. states include “[e]nvironmental citations/violations” and “[d]isciplinary actions against attorneys”;
  • The John Locke Foundation established the online news site Carolina Journal to cover North Carolina legislative matters.
• The report praises PACER, the U.S. federal courts’ information system, for making available online transcripts of federal district and bankruptcy court proceedings and “digital audio recordings of court proceedings”; but the report notes that “[t]ranscripts from the U.S. Courts of Appeals are not made available” on PACER.
• Respecting state court information, the report finds “uneven” public access: “Supreme Court and appellate court … briefs are less often accessible [than briefs filed in federal cases]. At the trial court level … full access to filed court documents is rare.” The report notes that “[t]ranscripts can often be obtained directly from [state courts], and many courts offer electronically viewable and searchable transcripts, though often there is a fee for transcription services.” The report further observes that seven states “charge for online access to court records.”
• The report characterizes access to state and local police records as “problematic”: “The laws governing public access to law enforcement records differ significantly from state to state. No studies have been found that compile these differences.” The report praises Illinois for recently modifying its freedom-of-information statute to increase access to police records, including by “enhancing the powers of public access counselors.”
• The report finds that current U.S. federal tax law does not adequately accommodate nonprofit news organizations. In particular, the report finds that many nonprofit news organizations may be ineligible for tax-exempt status because their distribution methods resemble those of for-profit news organizations; nonprofit news organizations that obtain tax-exempt status are often taxed on their advertising revenue; and such organizations risk losing their tax-exempt status if they publish commentary about proposed legislation.

The report makes the following recommendations respecting legal information and communication:

• Government should encourage the growth and sustainability of nonprofit news organizations devoted to coverage of state and local public affairs;
• “[A] state public affairs network [SPAN] similar to C-SPAN” should be established in “every state”;
• Coverage of SPANs on public television — particularly on “multicast channels” — and cable television should be encouraged by the Corporate for Public Broadcasting’s offering incentives to public TV stations to carry SPANs, or by Congress’s “reducing the leased access requirements to cable operators that give carriage or financing to SPANs”;
• State governments should allow SPANs “to be part of the PEG [cable TV public, educational, and government channel] system,” a change that might make SPANs “eligible for fees from local [cable TV] franchising authorities”;
• Congress should encourage local cable news coverage “by reduc[ing] the leased access burdens for [cable companies] that carry local cable news efforts”;
• “Governments at all levels” should “collect and publish data” — especially data “related to: … legal compliance by regulated entities (e.g., fictitious business name registrations, environmental citations, disciplinary actions against attorneys and physicians)” — in “standardized, machine-readable, structured formats” “that make it easy for citizens, entrepreneurs, software developers, and reporters to access and analyze information.” “Data releases should include an Application Programming Interface (API) that allows the data to be shared easily with other computers and applications.” “[D]ata should be archived so that information, once posted, does not disappear over time”;
• “Government[s]” should “make proceedings and hearings available online, and … keep them in a publicly accessible archive”;
• State legislatures should improve access to public records by creating “Transparency Officer” and “Information Ombudsperson” positions; by ensuring that public records personnel have adequate training and understanding of applicable freedom-of-information laws; by changing public records laws to include “a presumption in favor of releasing documents whose disclosure would not undermine national security, public safety, compelling privacy interests, trade secrets, or law enforcement”; and by requiring state agencies to “post responses to information requests online to avoid duplication in requests and redundant compliance efforts”;
• Each government should “consider” creating a “single online portal to facilitate access to public documents” in multiple formats. “The portal could give access to webcasts …of all public meetings and hearings….” and “be used to post all nonemergency legislation for at least 72 hours prior to a final vote”;
• Federal tax law should be changed to permit nonprofit news organizations to publish commentary on proposed legislation without jeopardizing their tax-exempt status;
• A commission of experts on nonprofit journalism and experts on the law of taxation of nonprofit organizations should be convened to make recommendations about changes to federal tax law necessary to accommodate nonprofit news organizations that can cover state and local public affairs.