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Here We Go Again..What’s The Difference…Not A Damn Thing!

Fairness Doctrine Panic hits FCC, spreads through blogosphere

By Matthew Lasar | Published: August 17, 2008 - 03:15PM CT

That naughty Federal Communications Commissioner Robert M. McDowell has got all the bloggers upset this week, thanks to his impromptu comments about the future of broadcast media regulation. McDowell told the Business and Media Institute on Wednesday that if the upcoming Presidential election "goes one way, we could see a re-imposition of the Fairness Doctrine."

The Doctrine, launched in the 1940s, was an effort by the FCC to ensure a semblance of editorial balance in broadcast media. The agency abandoned the policy in 1987. Since then, there has been sporadic Congressional interest in resuscitating it, but the two most successful legislative efforts have faced presidential vetoes. But McDowell probably doesn't think that one of the current candidates might bring it back per se.

"I think it won't be called the Fairness Doctrine by folks who are promoting it," warned McDowell, who voted against the FCC's recent sanctions against Comcast for P2P throttling. "I think it will be called something else and I think it'll be intertwined into the net neutrality debate." The agency's least-senior Republican conceded that net neutrality could win the support of "a few isolated conservatives" worried about corporate censorship on the Internet. But he argued that they should focus on the Big Picture.

"I think the bigger concern for them should be if you have government dictating content policy, which by the way, would have a big First Amendment problem," McDowell explained. "So, will Web sites, will bloggers have to give equal time or equal space on their Web site to opposing views rather than letting the marketplace of ideas determine that?” he asked. "Stay tuned for '09 and 2010," the Commissioner darkly concluded.

The uncaring network

Nobody, of course, waited that long to respond to McDowell's predictions. "The stupidest thing I've heard this week," wrote Rob Topolski of Free Press. "The Fairness Doctrine, if applied on the Internet, would violate Network Neutrality principles!" he declared. "The network has never cared about the political positions of the senders of packets, and it would violate the neutral behavior of the network if it had to start caring."

DSL Reports quickly chimed in via its headline: FCC's McDowell Tries To Scare The Children. "Perhaps more useful than the Fairness Doctrine would be a law requiring that FCC Commissioners be technologists and visionaries instead of partisan lobbyists?" Karl Bode asked rhetorically. A "new low" was what Josh Silver called McDowell's remarks in a Huffington Post commentary. "Americans of all political stripes are tired of politicians saying the grass is blue and the sky is green."

Clearly, we're having a Fairness Doctrine Panic (FDP), as I call them. It's not the first, and it won't be the last.

Here's how FDPs work: First, somebody in government or politics loses a fight (these days, that usually means a Republican). Second, they're bitter. Third, they warn that the Fairness Doctrine could return. Fourth, everybody starts yelling, screaming, and/or blogging. And lastly, things gradually calm down—that is, until the next outbreak of FDP.

To fully appreciate an FDP, a history review is in order.

Making Fairness a partisan issue

Net neutrality, which is now being dragged into the Fairness Doctrine argument, has at least a degree of bipartisan backing. First of all, FCC Chair, Kevin Martin, supports a version of it—he being the nation's top telecom regulator and a Republican. Then there are the smart folks over at TechRepublican, some of whom back Martin's vote on Comcast.

But the argument over the Fairness Doctrine has become an utterly donkey-versus-elephant affair, with the latter beast doing most of the talking. It wasn't always so. The Doctrine survived two powerful Republican presidents (Eisenhower and Nixon) before it bit the dust in 1987.

Scholars say that the FCC launched the Fairness Doctrine in 1949 in response to the rantings of George A. Richards, the owner of three radio stations that he used as a megaphone for his intemperate views. Richards particularly hated California Senator Helen Douglas, famously saying of her movie star husband Melvyn that "We've got to get these kike actors out of Hollywood."

The FCC answered Richards and similar owners with its "Report on Editorializing by Broadcast Licensees," which the historian Fred Friendly skillfully summarized in his landmark book The Good Guys, The Bad Guys, and the First Amendment: Broadcasters must devote "a reasonable amount of time to coverage of controversial issues of public importance"; and "do so fairly by affording a reasonable opportunity for contrasting viewpoints to be voiced on these issues."

What I have always found troubling about the Fairness Doctrine was its imprecise language. Licensees have "an obligation to see that persons holding opposing viewpoints are afforded a reasonable opportunity for the presentation of their views," the FCC declared in a crucial 1961 ruling. "Contrasting" or "opposing viewpoints"..."reasonable presentation"—governments should never rely on I-know-them-when-I-see-them words to implement policy.

The FCC sensed this as well and compensated for the vagueness by rarely enforcing the Doctrine. This stance had its uncomfortable moments. When James Meredith led a campaign to desegregate the University of Mississippi in 1962, the general manager of Jackson TV station WLBT urged his white viewers to fight back. "Stand shoulder to shoulder with Governor Barnett and keep that nigra out of Ole Miss," he declared over the airwaves. The station refused to allow any civil rights leader to respond to this comment; it also did not broadcast black church services or permit black kids to appear on its local programming for toddlers.

Despite Fairness Doctrine complaints, the FCC refused to revoke WLBT's license until a future Nixon-appointee to the Supreme Court, appeals court judge Warren Burger, ordered the Commission to do so.

In 1980, the FCC received 21,563 complaints about broadcasters regarding the Fairness Doctrine or related issues. "The FCC found cause in only 28 of these cases to even ask the broadcaster to respond to the complaint," notes the historian Ford Rowan. "Only six cases were decided against the stations, and admonitions were issued."

Hush Rush

In the end, the Fairness Doctrine was a big stick that the Commission rarely used, so license holders and citizens groups settled the vast majority of fair access tussles via private negotiations. It became a pretty cut-and-dried process—so much so that when Ronald Reagan's FCC announced in 1984 that it was considering dumping the policy, some prominent conservatives urged the agency to keep it around.

Famous anti-Equal Rights Amendment activist Phyllis Schlafly told the Commission that she depended on the policy to get any anti-ERA coverage at all. "If it weren't for the Fairness Doctrine, we couldn't even have gotten that measly five percent," Schlafly said. Ditto argued conservative media critic Reed Irvine, who said that the Doctrine was needed to combat "liberal news."

Once the FCC finally whacked the policy in 1987, Congress, including a hunk of its Republicans, voted to restore it, but could not override Reagan's veto. It was only in the 1990s that Clinton-hating conservatives as a class came to appreciate the policy's absence—their Minister of Information Rush Limbaugh famously branding it the "Hush Rush" rule. Self-interested right wing talk show hosts taught Republicans that the Fairness Doctrine had always been an evil thing. Somehow, it became a crucial component of Republican demonology, a boogie man from the Bad Old Days, lurking in the closet, waiting for its chance to return.

The noisiest Fairness Doctrine Panic prior to this latest one took place last year, during the Fourth of July. Senator John McCain had just lost a fight to reform the nation's immigration system, incurring the wrath of the nativist wing of his party. The bloodletting made everybody in the GOP quite nervous. Then Republican Senator James Inhofe of Oklahoma and Congress member Mike Pence (R-IN), a former talk show host, came to the party's rescue. Inhofe said that he overheard Senator Barbara Boxer (D-CA) and Hillary Clinton (D-NY) plotting something against talk radio in a Capitol Hill elevator. Various statements sympathetic to the Fairness Doctrine made by Senators John Kerry (D-MA) and Diane Feinstein (D-CA) were paraded out for all to see and dread.

No sooner than you could say, "red herring," Pence had a bill on the floor of the House that would bar the use of Federal funds to enforce the Fairness Doctrine. John McCain saw Pence and raised him, submitting a "Broadcaster Freedom Act" to the Senate that would forbid the FCC from reviving the regulation, now 20-years dead.

"It is hard to imagine that the American people would support reinstating a policy where the Federal government would be required to police the airwaves to ensure differing viewpoints are offered," McCain declared. After all, they only lived with it for a third of a century.

The right-wing blogosphere had a grand unity party, differences over immigration forgotten in their heroic struggle to protect the nation from Fairness. One of my favorite screamers, Joseph Farah, warned that if the Fairness Doctrine were restored, Al-qaeda might be able to demand equal time over the airwaves (this assumed that international criminal terrorist groups have standing with the FCC, which they don't). McCain became a hero again with his base. "I know most of my fellow conservative bloggers hate McCain," wrote one, "but anyone with 22 pets and who's against the 'Fairness Doctrine' can't be all that bad."

It's all fairness to me

As for the actual prospects of the Fairness Doctrine itself, for the most part it addressed the anxieties of the nine-TV-channel world of the third quarter of the 20th century—a landscape that cable and the Internet has transformed. Most liberalist DC policy groups have little interest in reinvoking the policy, and without them, unabashed Doctrine supporters like Dennis Kucinich will get zero traction. "The key principle here is not shutting down one perspective or another," Free Press and the Center for American Progress wrote regarding the matter a year ago, "it is making sure that communities are informed about a range of local and national public affairs."

I like McDowell; he's eloquent and provocative, and he's right in one regard. The Fairness Doctrine will come up again and again over the next few years—mostly invoked by Republicans. Barack Obama says he opposes the Fairness Doctrine. But expect everything that he asks of broadcasters and the Internet to get called the Fairness Doctrine anyway. You can also expect conservatives to see the Doctrine in any telecom proposal that sounds too regulatory: requiring a minimum of local radio fare, restrictions on product placement, caps on how much junk food advertisers can hawk to children on digital TV, etc. All these sinister ideas, plus net neutrality, will be boiled in the same rhetorical broth.

In the final analysis, this debate isn't about an extinct FCC policy. Right now it's about scoring political points. And, most importantly, it's about prolonging the fantasy that our nation's broadcasting/telecommunications infrastructure can effectively serve us without government playing a constructive role.

Further reading

• Hugh Carter Donahue, The Battle to Control Broadcast News
• Fred Friendly, The Good Guys, The Bad Guys, and the First Amendment
• Ford Rowan, Broadcast Fairness
• Stephen J. Simmons, The Fairness Doctrine and the Media
  

The Fairness Doctrine: How we lost it, and why we need it back

By Steve Rendall

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.

— U.S. Supreme Court, upholding the constitutionality of the Fairness Doctrine in Red Lion Broadcasting Co. v. FCC, 1969.

A Parting Graphic Commentary about the Second In Charge.