Legislating "Fairness" on Air and Online

BlogHer Original Post

On November 5th of 2008 Chuck Schumer gave an interview in which his first words were not acknowledgment of the historic election that took place the day before; his first statement was to compare conservative talk radio to pornography and call for a reinstatement of the Fairness Doctrine. Nancy Pelosi, Tom Harkin, Maurice Hinchey, Bill Clinton, Debbie Stabenow (to say nothing of her husband/conflict of interest), sore-loser Bill Press, David Axelrod's sudden non-committal, and many others have found the comfort with this new congressional power to say what they've really thought all along: the government, not the listener, has the sole right to determine what the public should hear. As a conservative talk radio host, as a woman who makes her living with the First Amendment, their attempts at censorship trouble me greatly.

So far proponents' biggest argument against the Fairness Doctrine has been that no plans exist to reinstate the Fairness Doctrine. We conservatives are all just a bunch of paranoid worriers. If only that were true.

Legislation was introduced as recently as 2007 when a Democratic effort to piggyback the Doctrine on the Financial Services and General Government appropriations bill was overwhelmingly defeated in the House. In 2005 Democratic Rep. Louise Slaughter and 23 co-sponsors introduced legislation brought forth H.R. 501, the Fairness and Accountability in Broadcasting Act; that same year fellow New York Democrat Rep. Maurice Hinchey and 16 co-sponsors introduced H.R. 3302 the Media Ownership Reform Act of 2005, the expressed written purpose of which was to "restore the Fairness Doctrine."

What was that about paranoia and crying wolf again?

Last week Federal Communications Commissioner Michael Copps' office met with advisers to House Energy and Commerce Committee Chairman Henry Waxman:

Waxman is also interested, say sources, in looking at how the Internet is being used for content and free speech purposes. "It's all about diversity in media," says a House Energy staffer, familiar with the meetings. "Does one radio station or one station group control four of the five most powerful outlets in one community? Do four stations in one region carry Rush Limbaugh, and nothing else during the same time slot? Does one heavily trafficked Internet site present one side of an issue and not link to sites that present alternative views? These are some of the questions the chairman is thinking about right now, and we are going to have an FCC that will finally have the people in place to answer them."

But wait - those who ridiculed conservatives for their worries over censorship reinstatement said that the Doctrine was unnecessary, due to the advent of the internet and cable. It leads us to the question of why Waxman and others are exploring ways to control both the airwaves and the internet. (I doubt the former commissioner would've entertained such a meeting.)

It's been said that the reason government sought to exercise control of the airwaves in the first place is because the FCC distributed licenses to those using public frequencies and in the interest of free speech wanted to ensure fair debate. Market-driven content is a result of fair debate. The American Heritage addresses the faulty allegation of decreasing spectrum availability:

Faulty Premise #1: The "scarce" amount of spectrum space requires oversight by federal regulators.

Reality: Although the spectrum is limited, the number of broadcasters in America has continuously increased.

Supporters of the fairness doctrine argue that because the airwaves are a scarce resource, they should be policed by federal bureaucrats to ensure that all viewpoints are heard. Yet, just because the spectrum within which broadcast frequencies are found has boundaries, it does not mean that there is a practical shortage of views being heard over the airwaves. When the fairness doctrine was first conceived, only 2,881 radio and 98 television stations existed. By 1960, there were 4,309 radio and 569 television stations. By 1989, these numbers grew to over 10,000 radio stations and close to 1,400 television stations. Likewise, the number of radios in use jumped from 85.2 million in 1950 to 527.4 million by 1988, and televisions in use went from 4 million to 175.5 million during that period. ("The Fairness Doctrine," National Association of Broadcasters, Backgrounder (1989).)

(Apropos of this, I was suspicious of the amount of federal money allocated in the "stimulus" package for the expansion of broadband to rural areas because I feel that such a move should be led by the private sector, not the federal behemoth. I'd wondered if the decision to give so much taxpayer dollars to this issue was nothing but the government giving itself a reason to regulate the internet, et al.)

The Fairness Doctrine is dishonestly excused under the guise of "media reform" but it's a blatant attack on free speech. In 1969 the United States Supreme Court ruled in Red Lion Broadcasting v. FCC (395 U.S. 367) that the Doctrine was not outright censorship but strongly cautioned that if the Doctrine in any way inhibited free speech its constitutionality would be in jeopardy. Five years later the court ruled (Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241) that the Doctrine "inescapably dampens the vigor and limits the variety of public debate." From the American Heritage's 1993 coverage:

In 1984, the Court concluded that the scarcity rationale underlying the doctrine was flawed and that the doctrine was limiting the breadth of public debate (FCC v. League of Women Voters, 468 U.S. 364). This ruling set the stage for the FCC's action in 1987. An attempt by Congress to reinstate the rule by statute was vetoed by President Ronald Reagan in 1987, and later attempts failed even to pass Congress.

Advocates of the Fairness Doctrine insist that it wouldn't penalize conservative talk radio, but consider this:

a) our current administration has proven to be not so hot on keeping promises

b) how can anyone claim what it will or will not do? None of the people speaking out about reinstating the Doctrine are even on the same page with regards to the requirements and ramifications of this possible legislation. Older versions of the Fairness Doctrine did not apply to cable networks or the internet (as there was no need at the time) - but now some advocates are casting a net so wide so as to even include the internet, which seems completely contradictory to the guiding purpose of net neutrality.

c) the market, meaning the people, decides what is fair - NOT the government. To advocate government assurance of fairness is to advocate for abridged rights and big government.

d) no one is stopping liberal programming from being successful.

President Obama may have said during the campaign that he was opposed to reinstatement of the doctrine, but that gung-ho affirmation has disappeared post-election. Sister Toldjah notes:

... the Obama administration is no longer saying that they are against bringing back the Fairness Doctrine - or whatever Waxman and Co. eventually decide to call it.

Says Axelrod:


Literally as I wrote this a White House spokesperson said that Obama still opposes the Fairness Doctrine (see promises broken, above. Fingers still crossed though - I will give a thumbs up if he squelches this talk. The article also refutes reports of a Waxman-FCC meeting which I  imagine will be disputed). This brings us to "localism," a tactic which lawmakers have discussed as a sneakier alternative to the Fairness Doctrine. Localism would require stations to air a predetermined amount of local coverage, thus limiting syndicated programming like Limbaugh, Hannity, and Ingraham. This is where I begin to question the president's commitment to the Doctrine as his record shows him to be an outspoken supporter of localization:

On September 20, 2007, Obama submitted a pro-localism written statement to an FCC hearing held at the Chicago headquarters of Rev. Jesse Jackson Sr.'s Operation Push.

Furthermore, the Obama transition team knows all about the potential of localism as a means of silencing conservative dissent. The head of the Obama transition team is John Podesta, President and CEO of the Center for American Progress.

In 2007, the Center for American Progress issued a report, The Structural Imbalance of Political Talk Radio. This report complained that there was too much conservative talk on the radio because of "the absence of localism in American radio markets" and urged the FCC to "[e]nsure greater local accountability over radio licensing.

Many bloggers are speaking out against localism; comparing it to the Fairness Doctrine; some writing that it is worse than the Fairness Doctrine.

The Fairness Doctrine wouldn't "level the playing field" because the playing field is already level. (Some conservative bloggers would argue with that and present television networks as exhibit A). A station in my hometown with some known liberal administration airs Rush Limbaugh to the chagrin of the PD (program director) because you know what? Limbaugh sells. Hannity sells, too. They continue to air such personalities because those hosts drive listeners and in turn make the stations money. When the consumers drive the product? That's called free market. That's a level playing field.

The belief that station ownership dictates programming is false; the PUBLIC determines programming - something we'll see in fiercer form when the old Arbitron diarist manner of recording ratings converts to PPM (Portable People Meter) - because a station sans listeners would lose ad revenue and eventually bankrupt like Air America. (Unfortunately, the PPM cannot discern between what a person listens to and what a person hears. If you walk into a hair salon that's playing easy listening, your PPM will record it. It's a bit more accurate than the old ratings system, but not without its flaws.)

Tabitha at Pink Elephant Pundit thinks there is a reason why progressive programming fails; it's a sentiment I've heard often:

The media is ALREADY skewed. All the alphabet news stations are in the tank for the left. We know that. Which is why Conservatives have had to rely so much on talk radio and the blogosphere.

Some proponents of the Doctrine think that talk radio is funded by wealthy conservatives; they gobbled up the markets and that's why conservative radio is successful. If this was true, then Air America, by this very logic, would have been a successful enterprise. It was not. It failed to drive audiences comparable to that of talk radio - or big audiences, period, due to a number of reasons, the biggest of which was that it was sub par compared to other choices. (I'm just a messenger!) Were NPR driven by advertising and not taxpayer dollars I'd wager that we'd see something similar.

LaShawn Barber weighed nailed the issue in 2007:

Instead of channeling the “envy energy” into creating profitable, market-driven programs (products) of their own, they want to shut down market-driven conservative talk by government fiat. Unimaginatively typical.

Station programming is determined by dollars. End of story. If airing a liberal talk show on a station with a mostly-conservative lineup drove listeners and brought in the ad revenue PDs would be falling all over themselves to make it happen. Forcing a station to compromise its financial livelihood for the sake of some false sense of "fairness" is total censorship and the antithesis of fair.

Change? Change is a two-way street. One way is better, the other worse.

Camille Paglia:

They've totally betrayed the soul of the party to even mention this.

Party aside, it betrays free market practices, free speech, and insults the intelligence of the American public by assuming that the government knows best. I often heard during the last administration about fears of restricted speech; here is an actual threat. This rises above the petty divisions of party; free, unrestricted speech is a right belonging to all that all should defend.


In order to comment on BlogHer.com, you'll need to be logged in. You'll be given the option to log in or create an account when you publish your comment. If you do not log in or create an account, your comment will not be displayed.