RIP: The Fairness Doctrine

The FCC yesteday effectively killed the Fairness Doctrine, which had been effectively deregulated since the Reagan Administration, along with about 80 other rules affecting broadcast communication that the Obama Administration considers “out of date.”

I believe this is a mistake.

Mass media have evolved into multiple sources of media from a host of new satellite and cable channels to social media networks like YouTube and Hulu to blogs, Facebook, Twitter and just about every sort of magazine and website under the sun.  One can reasonably argue that the Internet isn’t for researching facts, but for finding sites that reinforce beliefs you already hold dear.  Consversatives and Libertarians would argue that the Fairness Doctrine was anything but fair and actually had the effect of stiffling free speech.  I say Nay, Nay.

Unlike newspapers which carry a particular opinion/editorial bias, cable networks like MSNBC and Fox News, or news websites and political blogs like this one, the Fairness Doctine only applied to broadcast programming that operated in the limited public spectrum — the airwaves — and the key words in this sentence are “limited” and “public.”  Stations apply for a license to operate in the public interest and in the days before mega broadcasting companies like ClearChannel, actually carried local programming including news, public affairs programs, and religious programming (usually on at an unGodly hour, but on the air nonetheless). 

I did radio news at a commercial station in New York State while attending college. The news director’s instructions were always clear. If you’re doing a story about politics or government, get the opposing view or reaction to the story.  We could air it until we got it; it was responsible.  Even if one side said “no comment,” they was enough to go with.  And getting both sides of the story made it easy to cut two versions of the story (or more) where the lede on a story would take one point or view and the next point of view lead the story the next hour. 

The Fairness Doctrine would not impact talk shows like “Rush Limbaugh” or “John and Ken,” but would impact news programming segments that aired on those programs as well as network broadcasts from ABC, NBC, CBS, PBS and over the air Fox News affiliates.  It would not impact Bill O’Reilly and the rest of the Fox News cabal, CNN, MSNBC, CNBC, and other closed cable/satellite TV networks, nor would it affect satellite radio networks developed for satellite radio.  It wouldn’t affect print media at all.  It wouldn’t affect web sites, blogs and social media.  So why keep it?  It’s about the limited public spectrum of the airwaves which our increasingly portable society depends on for news.

There are a few great defenses of the Fairness Doctrine, one from the UK of all places and another from two years ago.

From PennLive, this opinion from 2009:

In response to public outcry over a proposal to allow further consolidation of media ownership, the FCC held six hearings nationwide near the end of the Bush administration. One was held in Harrisburg. About 150 people attended and registered to speak.

The early hours of testimony were dominated by media employees and the mainstream nonprofits and causes those media outlets advocate for and assist. But as community members such as myself came to the microphone, it became obvious that consolidation of media ownership has made getting on the air extremely difficult for people and for viewpoints not in the mainstream.

The testimony at the other five hearings was similar. The majority of FCC commissioners were unmoved.

 With a new administration we have an opportunity to raise the ownership issue again as well as the related question of reinstating the Fairness Doctrine.

The Fairness Doctrine was introduced in 1949 and key sections were incorporated into FCC regulations. According to Steve Rendal of Fairness and Accuracy in Reporting: “The Fairness Doctrine has two basic elements. It required broadcasters to devote some of their airtime to discussing controversial matters of public interest and to air contrasting views regarding those matters.

There have been several other court cases and FCC rulings on the Fairness Doctrine since, some in favor of upholding the doctrine and others saying it hurts the public interest and violates the First Amendment. The commission has suggested that, with the proliferation of media outlets, the Fairness Doctrine is unnecessary.

The proliferation of outlets has occurred. However, the unprecedented consolidation of ownership allowed by the FCC, together with the abandonment of the Fairness Doctrine, has narrowed the perspectives presented. Media employees are sensitized to the concerns of their corporate owners. Alternative voices and diverse communities are squeezed out. The public needs the FCC to revisit the ownership issue and the Fairness Doctrine. This might be our last chance.

When the Fairness Doctrine was in place, citizens used it as a means to insist on an expansion of speech and debate. Though not a substitute by any means for a diversity in ownership, it served as a tool to address some of the worst media abuses. A broadcast licensee does not have the right to monopolize public airways to the exclusion of voices and issues outside the interest of its corporate ownership.

As a guarantor of balance and inclusion, the Fairness Doctrine is not a panacea. Neither is variety of ownership. But taken together, the FCC rulings allowing continued consolidation of media ownership and making fewer requirements to present a range of views on controversial topics, result in a significant and troublesome narrowing of the material available on the public airways.

From this site:

“The life of the Fairness Doctrine had not been easy with several court actions which questioned it’s constitutionality, especially with what many saw as it being a violation of the First Amendment right.

For example, Red Lion Broadcasting Co. v. FCC, (1969). This established that broadcast stations could not be regulated without good reason. It argued that the FCC’s doctrine which established that all media must represent both sides – ie: give fair coverage, violated their rights – infringing “the speech of the station’s editorial judgment”. Specifically to a clause within the Fairness Doctrine by the FCC which added “equal time rule” and a “response to personal attack” rule.

The FCC won their case here with the Justice, Byron White declaring:

A license permits broadcasting, but the licensee has no constitutional right to be the one who holds the license or to monopolize a radio 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 (Epic.org)

This was because at the time there were still only a limited number of stations. Justice White did warn that if the doctrine ever restrained freedom of speech then it’s constitutionality would be called into question.

Which is fair – as with the UK equivalent, the right to speak should not be stopped as long as the right to rebuttal is always given and the utmost is done to retain the facts.

But in 1984, with the Reagan Administration, FCC Chairman Mark S. Fowler, a Reagan appointee, worked to revoke the Doctrine not for what he saw as partisan reasons but because he believed it violated the 1st Amendment.

As he told Mark Levin in 2009, he explained his staff’s position at the time to Reagan by explaining that the Doctrine was the one thing that kept the main stations from ripping completely into the President:

The only thing that really protects you from the savageness of the three networks — every day they would savage Ronald Reagan — is the Fairness Doctrine, and Fowler is proposing to repeal it!

But Reagan did repeal it.

And in 2000, the Doctrine’s last hold on the media – the personal attack rule – was removed. This now meant media had an open forum to attack anyone they saw fit without, as they had to previously, provide a full transcript to the subject of the attack and no chance to rebuttal.

In fact the only thing that really stands now is the Equal Time Rule. This is a political ruling which means broadcasters must provide equal opportunity to an opposing candidate if they request it. The only exceptions are “if the air-time was in a documentary, bona fide news interview, scheduled newscast or an on-the-spot news event the equal-time rule is not valid”.

Because of private ownership and more importantly big corporations hold on media – with less and less game players which has seen in America for example, the dominance of the Rupert Murdoch empire News Corps, the media landscape has changed but not necessarily as Rush Limbaugh would have you believe because of the revoking of the Fairness Doctrine. As Dr Mark Lamont Hill points out:

“the rise in conservative radio has been paralleled by an equally sharp drop in local ownership over the past twenty years. Since the 1980s, the number of large media companies has shrunk from over fifty to lesser than ten. At the same time, thanks to the Telecommunications Act of 1996, locally owned networks have been swallowed up by companies like Clear Channel, which owns more than 1,200 radio stations around the country. This reorganization of ownership has rendered the market anything but free.

Simply put, conservative radio dominates because American people don’t have a choice.”

One of the many myths that are used against the reinstalling of any kind of Fairness Doctrine is its impact on talk radio,. But as Fair.org points out:

Nor, as Rush Limbaugh has repeatedly claimed, was the Fairness Doctrine all that stood between conservative talk-show hosts and the dominance they would attain after the doctrine’s repeal. In fact, not one Fairness Doctrine decision issued by the FCC had ever concerned itself with talk shows. Indeed, the talk-show format was born and flourished while the doctrine was in operation. Before the doctrine was repealed, right-wing hosts frequently dominated talk-show schedules, even in liberal cities, but none was ever muzzled (The Way Things Aren’t, Rendall et al., 1995). The Fairness Doctrine simply prohibited stations from broadcasting from a single perspective, day after day, without presenting opposing views.