The Flawed Debate about the Fairness Doctrine

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A funny thing happened on the NPR show, "News and Notes" the other day. Host Farai Chideya asked a trio of bloggers with divergent political views to opine about talk of reviving the Fairness Doctrine -- an old Federal Communications Commission policy that used to require broadcast licensees to allow equal time to advocates for all sides of a controversial public issues. The FCC stopped enforcing the policy in 1987.

In response, La Shawn Barber was quick to cite the arguments that she and other conservatives have made: that liberals are out to silence conservative talk radio hosts by law, since they can't compete against them in the marketplace.

The funny thing was that the guy most likely to argue with LaShawn -- progressive blogger Earl Dunovant (Prometheus 6) didn't argue for reinstatement of the Fairness Doctrine at all. In fact, he and the other blogger-guest, Casey Lartigue, talked about why the Fairness Doctrine was unnecessary and impractical.

Why are Barber and other conservative activists so worried about a policy whose return has not been proposed?

Why the fairness doctrine was enacted, and why it went away

The fundamental reason for the Fairness Doctrine was physics, not a particular political agenda. In 1949, when the policy was adopted, radio and television programs were transmitted over airwaves that took up a finite portion of the electromagnetic spectrum. The FCC was created, in part, to dole out licenses to broadcasters to use specific frequencies on the spectrum. To preserve the First Amendment principle of an open marketplace of ideas, the government declared that broadcast licensees had to operate in the public interest, including making demonstrable efforts to ensure fair debate.

Advocates for the Fairness Doctrine's demise in the 1980s argued, in part, that the advent of cable and satellite broadcasting made the technical reasons for the doctrine obsolete. Today, the Doctrine's opponents add the existence of the Internet to the list of reasons why the Doctrine is unnecessary to ensure the representation of diverse views. Critics also also argued that government officials have used the Doctrine to stifle political opponents on both the left and right.

Why some people wanted to see the Fairness Doctrine brought back

There's been talk about reviving the Fairness Doctrine at various times over the last 20 years, most recently in 2004, after the controversy surrounding Sinclair Broadcasting Group's decision -- later rescinded -- requiring its 62 television stations to run an anti-John Kerry documentary in the final weeks of that year's presidential campaign. To Steve Rendall of Fairness and Accuracy in Reporting, the Sinclair episode was part of a larger drama:

Sinclair’s history of one-sided editorializing and right-wing water-carrying,... puts it in the company of political talk radio, where right-wing opinion is the rule, locally and nationally. Together, they are part of a growing trend that sees movement conservatives and Republican partisans using the publicly owned airwaves as a political megaphone—one that goes largely unanswered by any regular opposing perspective. It’s an imbalance that begs for a remedy.

In 2005, Rep. Maurice Hinchey (D-NY) introduced the Media Ownership and Reform Act, which attempted to restore both the Fairness Doctrine and limits on media ownership that had aslo been relaxed in recent years. MORA never made it out of committee.

This past January, presidential candidate Rep. Dennis Kucinich (D-OH) promised attendees at a media reform conference that he would fight to bring the Fairness Doctrine back. Kucinich has made media reform a plank in his presidential platform. He has neither sponsored nor co-sponsored legislation on the issue.

Finally, in June, a report (.pdf) by the Center for American Progress and Freepress.net argued that the dominance of conservative voices in political talk radion did not reflect consumer demand. Instead, they argued, consumers' choices were being limited because of the failure to control the growing concentration of media ownership, and the lack of local community involvement in programming.

Coincidentally, in late-June, Sens. Diane Feinstein (D-CA) and Dick Durbin (D-IL) and John Kerry (D-MA) gave separate interviews suggesting that a return of the Doctrine might be a good idea.

The threat conservative critics see

Conservative advocates such as La Shawn Barber believe that the demise of the Fairness Doctrine helped fuel the rise of right-wing talk, and that bringing it back would chill conservative speech:

In practice, the Fairness Doctrine is impractical. A conservative broadcaster seeking to establish his solo show probably wouldn’t include a liberal in the format to argue for the “other side,” and a conservative host wouldn’t be conservative if he constantly discussed “contrasting points of view.” Under a Fairness Doctrine law, he’d be fined for his one-sided show.

Some members of Congress are so worried that Rep. Mike Pence has introduced a bill blocking resurrection of the Doctrine. The conservative media watchdog group, Accuracy in Media is urging passage of this bill, called the Broadcasters' Freedom Act, arguing that a Democratic President might issue an executive order re-imposing the Doctrine.

Ellen at NewsHounds
rapped
FOX News personality Sean Hannity for claiming, without evidence, that presidential hopeful Hillary Clinton is conspiring with liberal activists to intimidate conservative media owners.

Flawed arguments on both sides

1. The demise of the Fairness Doctrine is not responsible for the rise of conservative talk radio, according to backgrounder by the Project for Excellence in Journalism:

The major reason for the rise of national talk personalities like Limbaugh, [Media Access Project analyst Andrew] Schwartzman believes, was a change in the cost of national satellite distribution. Syndicated programming meant that stations no longer had to develop their own local talent. Instead, they could simply bring in national voices that had already proven themselves in other markets for less money. Those national voices belonged to the most successful talk hosts, many of whom were conservatives.

"Rush Limbaugh was around before 1987," Schwartzman said. "In the 1980s what really happened was national syndication and it happened in a big way."

2. If the Fairness Doctrine returned, it wouldn't "hush Rush," as has been alleged. The Doctrine never applied to individual programs, but to the total content of a station's programming. As the PEJ backgrounder notes:

Conservative and liberal talkers wouldn't be required to introduce balance into their own programs. Rather the stations that air those shows would have to allow opposing views to be heard at some point in the day. (And that could be in the wee small hours of the morning.)

3. Even if the Fairness Doctrine returned, it has never applied to major sectors of the media. The Fairness Doctrine never applied to cable or satellite broadcasting, so, for example, a program such as the 700 Club, which runs on cable, has always been able to broadcast its view that homosexuality is sinful without being required to present opposing views.

4. The impending demise of analog broadcast television will likely recast any debate over the Fairness Doctrine. I'm going out on a limb here, but I can't see a rationale for a Fairness Doctrine once the digital television standard takes effect in February, 2009. The spectrum limits that were a major part of the rationale for the Fairness Doctrine will be gone.

The real battle: protecting the marketplace of ideas in the brave new media world

The media universe is being reshaped as we speak, and much of it is happening without public debate.

Consider this.

This month, small independent publishers ranging from The Nation to the National Review and the American Poetry Review are crying foul over postal rate hikes based on a scheme (.pdf) that benefits large publishers such as Time-Warner. Advocates for the small publishers charge that Time-Warner actually created the scheme over the objections of the Postal Service, a charge Time-Warner denies.

A coalition is asking the public to contact Congress and the Postal Regulatory Commission to roll back the increases. Liza Sabater of Culture Kitchen explains that the new scheme:

...[F]avors large bulk mail users like the magazine publishing divisions of TimeWarner-AOL by increasing the rate of small independent publishers by as much as 20%. Just to put things into perspective, for a publication like The Nation, this translates into paying $500,000 extra in postage yearly and in perpetuity (or until the next postal increase comes along).

As Teresa Stark put it in Disseminate Information, Protect Democracy, "While it is understandable that Time Warner would relish the idea of making it more difficult for new competitors, there is no reason to think that it is in the interest of the American people or the market economy.

Robert Mc Chesney adds:

The genius of the postal rate structure over the past 215 years was that it did not favor a particular viewpoint; it simply made it easier for smaller magazines. That is why the publications opposing the new postal rate hikes cross the political spectrum, and include the National Review, American Spectator, The Nation, Mother Jones and In These Times. This is a democracy issue. It is about fostering competitive media markets that benefit all Americans.

It may seems strange to go on at length about a crisis befalling print publications in a post devoted largely to the impact of digital technology, but Liza points out that Time Warner is also a major opponent of net neutrality and Internet radio.

I've written more about the debates on those issues in this column for the Online Journalism Review. Suffice it to say that the recommendations for improving the diversity of talk radio are echoed in proposals for ensuring that the Internet and the broadband wireless spectrum aren't simply auctioned off to the highest bidder among the major corporations that already dominate the media industries. Craig Aaron of Freepress.net put it to me this way:

[I]t's the FCC's job to make sure these airwaves are used in the public interest. And the public interest is lower prices, more options, more space to get faster Internet service, to connect their devices and do different things. Unfortunately, the history of media policymaking has largely gone in a different direction, and that's taken this great public resource and privatized it in a way that it doesn't serve the interest of everybody, and it does serve the narrow interest of a few big companies."

What do you think is the best way to ensure a free marketplace of ideas in this brave new media world? Does government have a role in preserving fairness, or should it be left to the market? And if we leave the marketplace to decide, are we handing over power to the ever-consolidating media corporations?

cross-posted at Professor Kim's News Notes

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