Minority reports

Earlier this week, I wrote about the importance of being exposed to sufficient diversity of views. That post was inspired by Nick Cohen’s article last weekend in The Guardian, which asked “who wants to live their life with only the echo of their own voice for company?”

I like reading a diverse range viewpoints and in particular, I have been known to read dissenting opinions in regulatory decisions.

Last week, FCC Commissioner Ajit Pai issued a dissenting statement, following a review of media cross-ownership. It is an entertaining read, regardless of where you stand on the issue.

Commissioner Pai states:

If I were to detail all of this Order’s deficiencies, my dissenting statement would be almost as long as the Order itself (161 pages). In the interest of space, I’ll focus on what I consider to be the Order’s most problematic aspects.

His dissent runs 14 pages, taking strong issue with the concept of media concentration in an internet age (an issue frequently raised in Canada as well).

But the larger problem with the Commission’s conclusion is that it ignores the realities of the modern media marketplace. This isn’t the 1970s anymore. Most Americans don’t wait for the morning newspaper or the 11:00 PM newscast to learn what’s going on around the globe or at home. That world set sail with The Love Boat. Today, most Americans get the information they want when they want it by going online and scouring a wide variety of sources, including digital-only news outlets and social networks such as Facebook and Twitter. When it comes to news, we can now choose from an amazingly diverse array of options. Last year, for example, Pew Research Study counted 143 news providers in Denver alone.

When I saw Commissioner Pai’s statement, I observed:

We used to have a history of great dissent in the CRTC. For example, in 2008, I wrote about a pair of dissents associated with a CRTC review of the broadcast distribution framework. Michel Morin’s dissenting view was 45 pages of the total 141 page decision.

In 2007, I described a well written dissent written by Barbara Cram associated with an application to review and vary an earlier decision.

Stuart Langford wrote his dissents colourfully, as I observed in 2007.

The Majority decision invites a Robin Hood approach to assessing user fees. Taken to its logical conclusion it could result in provincial schemes that take from the rich and give to provincial coffers not as directly as the Merry Men of Sherwood Forest once redistributed wealth, but just as surely. Perhaps a more appropriate analogy would be to the Sheriff of Nottingham rather than Robin of Locksley. Either way, it strikes me as a formula for anything but regulatory fairness.

As I observed in 2008, dissenting opinions “provide a fascinating peek at what some of the debates must have been during the decision making process.”

In 2012, there must have been fascinating discussions at the CRTC when the Commission got rid of the Local Programming Improvement Fund. The majority decision, which ran just 22 paragraphs, spawned 3 dissenting opinions and a concurring statement. One of the dissents was three times the length of the main decision.

More recently, there have been dissenting opinions that the CRTC has failed to publish at the same time as the majority decision. Hopefully, the Commission has fixed its processes that led to such errors.

Dissenting views are important – perhaps none so important as Justice Brandeis in Olmstead v. United States, a case that looked at whether warrants were required prior to a wiretap. The majority said no; Brandeis wrote:

If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means—to declare that the government may commit crimes in order to secure the conviction of a private criminal—would bring terrible retribution.

An article in The Atlantic, “In Praise of Dissent,” observed that the US Supreme Court “justices seem to have lost even the energy to argue with each other”, with few dissents appearing in recent decisions.

Colourful dissenting views in regulatory decisions provide insight into enthusiastic discussions among the Commissioners, passionately debating the issues raised by parties.

After all, “who wants to live their life with only the echo of their own voice for company?”

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