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The Fairness Doctrine

Equal time or silencing opposition?

By Jim Mount

Fort Wayne Reader

2009-03-23


With the 2008 Presidential election over and Barack Obama sworn in as the 44th President of the U.S., the Democrat party has once again regained control of both the Executive and Legislative branches of the government, and the Republican party finds itself with a diminished influence in government for the first time in over a decade.

But being in the minority seems to have renewed the GOP’s appreciation of the Constitution, in particular the First Amendment. While their voice in government may be diminished, many Republicans leaders have launched an aggressive campaign to ensure their voice on the public airwaves remains as strong as ever.

At question is the possible reinstatement of an FCC regulation called the Fairness Doctrine. Abolished in 1987, the Fairness Doctrine requires broadcast liscensees to present controversial issues of public importance and to do so in a manner that is “honest, equitable and balanced.” Many Republicans see the Fairness Doctrine as a threat to conservative talk radio, which remains not only popular but an effective and proven way of mobilizing the party’s base of support.

The possibility of reinstating the Fairness Doctrine was one of the more contentious issues to arise during the ‘08 campaign. During the campaign, President Obama stated that the Fairness Doctrine is a non-issue to him. However, with many analysts on both sides of the political spectrum pointing out that hugely popular conservative talk show host Rush Limbaugh seems to have become the de facto leader of the GOP, the simmering debate of exactly who controls the airwaves — and how those airwaves should be used — has been reignited.

You’d be forgiven for thinking the Fairness Doctrine is something Congressional Democrats cooked up in the last few years to stick it to the party that called the shots in Congress from 1994 through 2006. But actually, the Federal Communications Commission introduced the Fairness Doctrine back in 1949. It’s a little different than what’s called the “equal-time rule.” Equal time deals specifically with political candidates, requiring that whatever air time a TV or radio station gives a candidate, it must give the same amount of time to the opposing candidate if he or she requests it. The Fairness Doctrine dealt with issues such as personal attacks and political editorializing, basically requiring that different points of view on matters of public importance be given their due.

In principle, however, some of the ideas behind Equal Time and the Fairness Doctrine are similar. The FCC was trying to prevent the airwaves — which, in theory at least, are supposed to belong to the public — from being monopolized by a single point of view.

In 1969, the Supreme Court upheld the constitutionality of the Fairness Doctrine in Red Lion Broadcasting Co. v. FCC; its statement on the case probably sums up the ideas behind the Fairness Doctrine as succinctly as anything we’ve read: “A license permits broadcasting, but the licensee has no constitutional right to be the one who holds the license or to monopolize a...frequency to the exclusion of his fellow citizens. There is nothing in the First Amendment which prevents the Government from requiring a licensee to share his frequency with others.... It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.”

The Fairness Doctrine was abolished in 1987. Mark Fowler, FCC chairman at the time, argued that the growing number of media outlets and the rise of cable television meant the Fairness Doctrine was obsolete, since the different formats meant the public had access to a wide range of political viewpoints on controversial issues of public importance. He has also said that he felt it violated the First Amendment, something many broadcast journalists agreed with.

But the decision to abolish the Fairness Doctrine probably had as much to do with commerce as freedom of speech. During the Reagan administration, the FCC began a series of deregulations of the radio and television industries that continued for the next two decades, leading to our current era of big media conglomeration, where companies like Clear Channel Communications can own some 900 radio stations in markets all across the country.

Michael Powell, the FCC Chairman from 2001 –2005 (son of Colin Powell, and appointed to the FCC by President Clinton), was especially notable for allowing all sorts of mergers to happen that played fast and loose with various FCC rules and regulations. Ever wondered why, for example, both the ABC and NBC affiliates in Fort Wayne are, in effect, owned by the same company? You have the deregulation of the industry to thank for that. In 2004, FWR #10 featured a story on the Granite/Malara deal, and Dr. Mark Cooper, Director of Research on Media Ownership for the Consumer Federation of America had this to say about the FCC’s attitude towards media conglomeration: “From the FCC’s point of view, anything that lets a merger happen is okay. The Chairman (Michael Powell) has made it clear: he doesn’t think these huge media corporations have undue influence or economic power… He gives blanket approval to mergers in which the #1 TV station, with a 50 – 60% share of the market, could merge with the # 1 newspaper with a 50 – 60% share of the market, creating, in a local market, a complete giant.”

Ideas about revisiting the Fairness Doctrine actually started in late 2004 during the presidential election, when the sort of problem that the Fairness Doctrine was supposed to prevent almost happened. In October of that year, the Sinclair Broadcast Group, the largest operator of local TV stations in the US with around 60 stations under its umbrella, announced it would air the “documentary” Stolen Honor: Wounds That Never Heal on its stations during prime time. A blatant attack on Democratic presidential candidate John Kerry, Stolen Honor was promoted by the Swiftboat Veterans for Truth organization.

It didn’t happen; Sinclair stopped its plans in the face of outrage from advertisers and stockholders (it took years for the company’s stock to recover). Steve Randall, senior analyst for the organization Fairness & Accuracy in Reporting, wrote in 2005 “the news that a corporation that controlled more TV licenses than any other could put the publicly owned airwaves to partisan use sparked discussion of fairness across the board, from media democracy activists to television industry executives.”

Among those recently voicing support for the reinstatement of the Fairness Doctrine is Chuck Schumer (D-NY) who told Fox News in November of 2008; “I think we should all be fair and balanced, don’t you? The very same people who don’t want the Fairness Doctrine want the FCC to limit pornography on the air. I am for that, I think pornography should be limited, but you can’t say government hands off in one area to a commercial enterprise but you are allowed to intervene in another. That’s not consistent.”

Senate Majority Whip Dick Durbin (D-IL) echoed these sentiments when he told The Hill: “It’s time to reinstate the Fairness Doctrine. I have this old fashioned attitude that when Americans hear both sides of the story, they are in a better position to make a decision.”

But concern among opponents of the doctrine stem from fears that a legislative and executive branch dominated by one party would use the doctrine to hamstring opposing viewpoints.

Congressman Michael Pence (R), who represents Indiana’s 6th district in the House, has turned the Fairness Doctrine issue into a crusade of sorts. In 2007 he introduced the Broadcaster Freedom Act, which would have taken away the FCC’s power to restore the Fairness Doctrine. Opposition from Democratic leadership meant the bill was not brought to the floor of the House for a vote, so in that same year Pence added an amendment to a Financial Services appropriation bill that put a one-year moratorium on reinstatement of the Fairness Doctrine. The bill passed with 309 votes, despite opposition. In January of this year Pence announced a Senate version of the Broadcaster Freedom Act, along with Senator James Inhofe (R-OK), Senator Jim DeMint (R-SC), and Representative Greg Walden (R-OR).

A former broadcaster, Pence says he’s not sure how likely it is that the Fairness Doctrine would be revived. “It is impossible to assert with certainty what will or will not happen in the next administration and congress, but it is troubling that some of the most prominent and powerful Democrats in elected office have voiced their support for reinstating the ‘Fairness Doctrine’,” he says.

Pence adds: “According to the Pew Research Center’s Project for Excellence in Journalism: in the wake of the regulatory change, the number of stations carrying the talk radio format swelled from about 400 nationwide in 1990 to some 1,400 in 2006, according to Inside Radio, a growth of almost 250%. In the last five years (2001-2006), the growth rate has been a respectable 23%. But much of the growth happened early on.”

Rep. Pence also offered a surprising statistic as to the actual figure of how much talk radio comprises the overall media market. According to Pence, talk radio isn’t the largest source of information in the overall media market. “Talk radio is a small source of information for Americans, with only 7% considering it their main source. This compares to 55% of Americans who rely on television news.”

So what insures both freedom and fairness in regards to broadcasting on public airwaves? According to Pence the two are inseparable. “I believe that fairness and freedom go hand-in-hand. When the so-called ‘Fairness Doctrine’ was in place, talk radio was bland, monolithic and drew a meager following. Following its repeal in 1987, talk radio as an industry exploded. While conservative dominance of the talk radio airwaves is unquestionable, I believe that is a result of the consumer choice in the market place of ideas — more liberal shows are less prevalent on the airwaves, but that is not due to a lack of effort, it is due to a lack of resonance among the American people.”

If the reinstatement does comes to pass, how will this affect the talk radio medium? Pence says that, “If the so-called ‘Fairness Doctrine’ were to be reimposed, it would empower the federal government to decide what kind of speech was ‘controversial’ and would need to be ‘balanced out.’ The regulatory and financial burdens the ‘Fairness Doctrine’ would inflict on media outlets would result in most stations avoiding any content that might be deemed controversial and effectively silence a robust talk radio market. Instead of forcing station producers to answer to government bureaucrats, they should be free to answer only to the American people.”

How would the Fairness Doctrine affect broadcasting locally? Here in Fort Wayne, opinions vary among some local broadcasters. Local talk radio figure Charlie Butcher and Program Director Dan Madis at WOWO both oppose reinstatement of the doctrine. WOWO’s programming includes Rush Limbaugh, Sean Hannity, Glenn Beck and Michael Savage, but Madis is not sure how much influence conservative talk radio has on the public at large. It certainly speaks to a conservative audience, but… “Obama won,” Madis says simply. “ So that’s it. Obama won. So I think that somebody who listens to Rush or Hannity, their opinion is already formed. I don’t think that they are going to convince a Democrat to vote Republican. Are they relevant to their audience? Yes, but at the end of the day, Obama won. ”

As to an opinion of the Fairness Doctrine, Charlie Butcher feels that it is “amazingly misnamed.” “I believe there is a lesson to be learned here in that how something can be named and marketed and all of the sudden you have people believing it is what it isn’t simply because it’s called ‘Fairness’,” he says. “As to whether or not the doctrine will be reinstated, I don’t believe it will. I mean, Obama said during his campaign that he was against bringing it back but if it were it wouldn’t have much of an effect here at WOWO because the local shows are non-partisan. One way it could affect us is if we had someone on and we wanted to debate an issue with them and they wanted to squelch it, they just don’t have to participate and the show is over. The really talented and creative broadcasters however, would still find a way to be informative and compelling”.

Madis feels that full reinstatement is doubtful. “I don’t think that they would reinstate the whole thing, but they may come back and implement a version of it. Until we know what that is, it’s hard to comment on anything but I don’t believe it’s necessary to bring it back because of the way we have it now in the medium. We have Top 40 music radio where you can listen to Top 40 music and we have Classic Rock radio where you can listen to Led Zeppelin. So you can have conservative talk radio for conservatives and liberal talk radio for liberals. It just so happens that conservative talk radio appeals to a wider audience. The market is out there for liberal talk radio, but it doesn’t seem to do very well.”

At Access Fort Wayne, Erik Mollberg, Assistant Manager, supports the Fairness Doctrine. “The Fairness Doctrine was instituted because there were mainly only broadcast stations carrying programming at that time,” he explains. “The FCC determined that it was necessary to provide point-counterpoint to allow for the diversity of voices and ideas.”

When the Fairness Doctrine was eliminated by FCC chairman Fowler in 1987, Mollberg adds, it was argued that TV stations would naturally continue the previous examples and procedures to be fair. “In my view, it is obvious that did not happen,” he says. “News organizations, cable news channels, radio stations and such instead chose to change their programming towards a more ‘entertaining’ style, creating specific shows that would cater to specific points of view.”

Mollberg believes that if the doctrine isn’t directly reinstated, it should at least be modified so that programs that have geared themselves as entertainment be identified as such. “By their very nature they lead younger audiences to believe they are ‘actual’ news organizations instead of ‘entertainment’. Programs such as Rush Limbaugh and Sean Hannity would be examples of this.”

Mollberg explains that, given the mission and goals of public access television, in no way would their operations be hamstrung or hindered by the reinstatement of the Fairness Doctrine. “PEG (Public, Educational, Governmental) access allows for all points of view and anyone wishing to provide an opposing point of view could easily do so at no charge whereas the commercial media would be too cost prohibited for anyone citizen who disagreed with the content of certain programs. PEG is truly the ‘equalizer’ for all forms.”

Whether or not the Fairness Doctrine remains retired or is reinstated in its original form or in a modified version, no one can say with any degree of certainty. What can be said is that the issues of freedom and fairness in public speaking are being pushed to the forefront of public debate. Both concepts are indispensable to the survival of any free and informed society and it would be a tragic mistake to sacrifice either for political advantage.


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