FCC Order Cites Wikipedia

March 27, 2008. The Federal Communications Commission (FCC) released the text [34 pages in PDF] of an order, opinion, and notice of proposed rulemaking that, among other things, orders direct broadcast satellite (DBS) operators to carry each station in a local market on the same terms, including carriage of high definition (HD) signals in HD format, if any broadcaster in the same market is carried in HD. See, related story in this issue titled "FCC Releases DBS HD Carry One Carry All Order".

This order, at footnote 30, cites as an authority a web page in the Wikipedia web site titled "Quadrature amplitude modulation", which is also known as QAM.

There are justifications for decision makers to reasonably base their decisions upon inherently unreliable, anonymous, out of proceeding and/or ex parte statements. However, these justifications usually relate to circumstances in which the statement is not relied upon for the truth of the matters asserted therein. Yet, the FCC order cited the Wikipedia QAM article as authority for the truth of the matters asserted therein.

Footnote 30. The FCC order states, at paragraph 9, that "As cable providers transition from providing analog signals to providing digital standard definition and high definition signals, they realize significant benefits in spectrum efficiency. Where a cable operator previously carried a single analog standard stream, post-transition they potentially carry ten digital standard definition streams, two high definition streams, or some combination of standard and high definition streams."

This is supported with footnote 30. This footnote states, in full, as follows: "Utilizing analog carriage of standard definition signals, a single programming stream consumes 6 MHz of a cable operator’s bandwidth. Using MPEG 2 compression, a standard definition program stream is generally compressed to a bitrate of approximately 4 Mbps (million bits per second). Using MPEG 2 compression, a high definition program stream is generally compressed to a bitrate of approximately 12 to 15 Mbps. The use of MPEG 4 compression would provide similar quality program streams at a lower bitrate, however, as MPEG4 is not yet widespread, generalizing on the use of MPEG 2 provides a reasonable, conservative estimate. Cable operators generally employ either 64 QAM (quadrature amplitude modulation) or 256 QAM encoding for digital service, which in 6 MHz provides either 28 Mbps or 38 Mbps (64 and 256 QAM respectively). Therefore, using 64 QAM, a cable operator could reasonably substitute one HD and several SD for a single analog SD program stream. See Cisco System, Bandwidth Optimization, available at http://www.scientificatlanta.com/ products/customers/ prod_bbaccess_Bandwidth_Mgmt-pg2.htm (visited Feb. 29, 2008). See also Wikipedia, Quadrature Amplitude Modulation, available at http://en.wikipedia.org/wiki/ Quadrature_amplitude_modulation (visited Feb. 29, 2008)."

A search of the FCC's comments database reveals that neither Cisco nor Wikipedia filed comments with the FCC in Docket No. 00-96.

Prior FCC Consideration of Wikipedia. The FCC does not have a history of citing and relying upon Wikipedia articles in rulemakings, adjudications, or other administrative processes.

On October 19, 2007, the FCC's Media Bureau released a Memorandum Opinion and Order (MO&O) in an obscure broadcast TV license renewal proceeding. This item is DA 07-4310. The MB denied a petition to deny the renewal. (The Media Bureau also handled the DBS order released on March 27, 2008.)

In the license renewal proceeding the FCC declined to consider a citation to a Wikipedia article in the petition to deny.

The MO&O states that "news reports, whether from newspapers or the Internet, and Wikipedia citations are not in any way statements supported by affidavits made by individuals with personal knowledge of the facts alleged. Wikipedia, in particular, states on its site that it ``cannot guarantee the validity of the information found here.´´ Therefore, we will not consider those materials in reaching our decision here."

Wikipedia. Wikipedia operates a free access web site that it describes as a "free encyclopedia". It is based upon material submitted by largely anonymous and unscreened persons.

Wikipedia states that "Visitors do not need specialized qualifications to contribute". It states that "articles can be edited by anyone with access to the Internet, simply by clicking the edit this page link".

Wikipedia further states that its articles "may contain false or debatable information", that "Allowing anyone to edit Wikipedia means that it is more easily vandalized or susceptible to unchecked information", and that "Wikipedia's coverage of subjects is patchy, based on the whims of its volunteer contributors".

Wikipedia further states that "Many contributors do not yet comply fully with key policies, or may add information without citable sources" and that "articles and subject areas sometimes suffer from significant omissions".

Wikipedia also publishes numerous warnings. For example, "Please be advised that nothing found here has necessarily been reviewed by people with the expertise required to provide you with complete, accurate or reliable information."

And there is this. "Wikipedia cannot guarantee the validity of the information found here. The content of any given article may recently have been changed, vandalized or altered by someone whose opinion does not correspond with the state of knowledge in the relevant fields."

It also provides this warning: "all information read here is without any implied warranty of fitness for any purpose or use whatsoever".

In addition to the reliability of Wikipedia articles, there is the matter of its anonymity. Anyone can edit an article without disclosing their identity, qualifications, or affiliations. Wikipedia identifies many editors only by the internet protocol (IP) that they used to access the Wikipedia web site.

Wikipedia does enable users to obtain a list of other Wikipedia articles edited by the user of that IP number. However, IP numbers might be assigned by an ISP solely for one internet session, and then continuously reassigned to other subscribers of that ISP.

Notably, for the QAM article cited by the FCC order, many of the editors are identified only by an IP number, and there are not other articles associated with that number. Readers of the QAM article cannot know who these authors are, who they represent, or what qualifications they might have.

Some Wikipedia contributors do disclose their identities. Some do not disclose identities, but provide some information about themselves. For example, for the QAM article relied upon by the FCC, one of the anonymous contributors revealed that he "loves cake" and "is an agnostic".

Administrative Process. If the FCC were to develop a pattern of relying upon Wikipedia articles in rulemakings, adjudications, or other administrative processes, this might then have several consequences, in addition to the questions of reliability addressed above.

For example, regulated entities and the groups that represent them, that are well organized to influence political processes, might engage in anonymous, and self-interested efforts to create and edit the articles that might be relied upon by the FCC's decision makers. Also, since the FCC is essentially an agency of lawyers, rather than engineers, technologists, scientists and other experts in the regulated fields, the FCC is particularly dependent on outside information.

This might further undermine the accuracy of the articles relied upon by the FCC. It might also diminish the transparency of the FCC's decision making processes.

In theory, the FCC operates in a transparent fashion. This official statement of transparency finds expression in numerous procedural laws, including the Administrative Procedure Act's (APA) rulemaking requirements (5 U.S.C. § 553), the APA's administrative adjudication requirements (5 U.S.C. § 554), the Open Meeting Act (5 U.S.C. § 552b), the Freedom of Information Act (5 U.S.C. § 552), and the FCC's procedural rules, including its ex parte communications rules [PDF].

Under this general theory, the FCC may hold hearings at which it receives testimony, provided that there is notice, and that they are open. The FCC must accept and consider written filings by interested parties. These filings must be a matter of public record, and subject to written rebuttals, which the FCC must accept and consider. The FCC must make certain decisions based upon items in its record. These decisions must be reduced to writing and made accessible to the public.

At least, this is the theory.

If the FCC were to regularly make decisions in reliance upon Wikipedia articles, which may in turn reflect the views of organized interests in FCC proceedings, these items would not be a part of the record, and other parties may not have adequate notice and opportunity to review and rebut them.

The articles may not only be unreliable and anonymous, they might also be a form of undisclosed ex parte communication.

This might unfairly prejudice certain parties. It might also deprive the FCC of the benefit of the rebuttal information that these parties might have provided in a more transparent process, and hence, decrease the quality of FCC's decisions.

But then, the FCC and regulated entities have long since developed many mechanisms for reducing the transparency of the FCC's activities and operations. Organized interests already have numerous strategies for creating and exploiting for their benefit information asymmetries in regulatory proceedings. Manipulation of Wikipedia content might represent at most a minor additional diminution of agency transparency.

Neither Lyle Elden nor Eloise Gore of the FCC's Media Bureau responded to phone calls, or e-mailed questions, from TLJ.

Further Reading. On February 5, 2007, Daniel Solove, a law professor at George Washington University Law School, published an article titled "When Is It Appropriate to Cite to Wikipedia?"

In 2006, Roy Rosenzweig, a law professor at George Mason University, wrote an article titled "Can History be Open Source? Wikipedia and the Future of the Past".

On December 4, 2005, the New York Times published an article by Katharine Seelye titled "Snared in the Web of a Wikipedia Liar".