Fair and Balanced

UPDATE below

Seemingly headed for the cliff, the Congress stopped short last week. Not just on immigration, but also broadcasting:

The House voted overwhelmingly Thursday to prohibit the Federal Communications Commission (FCC) from using taxpayer dollars to impose the Fairness Doctrine on broadcasters who feature conservative radio hosts such as Rush Limbaugh and Sean Hannity.

By a vote of 309-115, lawmakers amended the Financial Services and General Government appropriations bill to bar the FCC from requiring broadcasters to balance conservative content with liberal programming such as Air America.

The vote count was partly a testament to the influence that radio hosts wield in many congressional districts.

It was also a rebuke to Democratic senators and policy experts who have voiced support this week for regulating talk radio. . .

Senate Majority Whip Dick Durbin (D-Ill.) said on Tuesday that the government should revive the Fairness Doctrine, a policy crafted in 1929 that required broadcasters to balance political content with different points of view.

“It’s time to reinstitute the Fairness Doctrine," he said. "I have this old-fashioned attitude that when Americans hear both sides of the story, they’re in a better position to make a decision."

Sen. Dianne Feinstein (D-Calif.), chairwoman of the Senate Rules Committee, said this week that she would review the constitutional and legal issues involved in re-establishing the doctrine.

Feinstein -- normally one of the more sensible Democrats -- stated her case to Chris Wallace on Fox News last Sunday:

WALLACE: Oklahoma Senator Inhofe says that he overheard Barbara Boxer and Hillary Clinton three years ago complaining about talk radio and saying that there should be a legislative fix. Both of them deny it ever happened.

But let me ask you about yourself. Do you have a problem with talk radio, and would you consider reviving the fairness doctrine, which would require broadcasters to put on opposing points of view?

FEINSTEIN: Well, in my view, talk radio tends to be one-sided. It also tends to be dwelling in hyperbole. It's explosive. It pushes people to, I think, extreme views without a lot of information.

This is a very complicated bill. It's seven titles. Most people don't know what's in this bill. Therefore, to just have one or two things dramatized and taken out of context, such as the word amnesty -- we have a silent amnesty right now, but nobody goes into that. Nobody goes into the flaws of our broken system.

This bill fixes those flaws. Do I think there should be an opportunity on talk radio to present that point of view? Yes, I do, particularly about the critical issues of the day.

WALLACE: So would you revive the fairness doctrine?

FEINSTEIN: Well, I'm looking at it, as a matter of fact, Chris, because I think there ought to be an opportunity to present the other side. And unfortunately, talk radio is overwhelmingly one way.

WALLACE: But the argument would be it's the marketplace, and if liberals want to put on their own talk radio, they can put it on. At this point, they don't seem to be able to find much of a market.

FEINSTEIN: Well, apparently, there have been problems. It is growing. But I do believe in fairness. I remember when there was a fairness doctrine, and I think there was much more serious correct reporting to people.

Complaining about conservative opposition to the immigration bill in mid-June, Trent Lott -- always one of the least sensible Republicans -- seemed to side with Democrats: "Talk radio is running America. We have to deal with that problem."

Nonsense. Reprising "Fairness" would have been anything but fair--it would have suppressed speech and upped the cost of airing opinion on radio and television, exactly the opposite outcome Congressman and commentators claimed to favor.

1. Background: The DC Circuit detailed the history of the doctrine in RTNDA v. FCC, No. 98-1305 (D.C. Cir. Aug. 3, 1999):

   From the early days of spectrum regulation in the 1930s and 1940s, the FCC imposed upon broadcasters a duty that came to be known as the "fairness doctrine." To merit a broadcast license, applicants were obliged, first, "to cover vitally important controversial issues of interest in their communities," and second, "to provide a reasonable opportunity for the presentation of contrasting viewpoints." Syracuse Peace Council, 2 F.C.C.R. 5043, 5058 n.2 (1987), recon. denied, 3 F.C.C.R. 2035 (1988). The fairness doctrine persisted until 1987, although its death knell sounded in 1985, when the FCC released an exhaustive "Fairness Report" declaring the doctrine obsolete and "no longer [in] ... the public interest." Fairness Report, 102 F.C.C.2d 142, 246 (1985). The report concluded that new media technologies and outlets ensured dissemination of diverse viewpoints without need for federal regulation, that the fairness doctrine chilled speech on controversial subjects, and that the doctrine interfered too greatly with journalistic freedom. See id. at 147. . .
   
   In 1987, the FCC announced during an adjudication that it would no longer enforce the fairness doctrine. Syracuse Peace Council, 2 F.C.C.R. at 5043. Relying heavily on its 1985 Fairness Report, the FCC reasoned that the doctrine imposed substantial burdens on broadcasters without countervailing benefits. As a result, the FCC concluded that the doctrine was inconsistent with both the public interest and the First Amendment principles it was intended to promote. See id. at 5052. The court affirmed the conclusion that the fairness doctrine no longer served the public interest. . . See Syracuse Peace Council v. FCC, 867 F.2d 654, 656 (D.C. Cir. 1989).

2. Regulated means restricted: The "Fairness Doctrine" was administered by the FCC. To repeat: a government agency decided what speech was required. That's not "fair"--that's censorship. How is that consistent with the First Amendment?



3. Fairness choked speech: Feinstein and Lott say talk radio is unfair. But talk radio began only after the doctrine died:

   A few months after the FCC dropped the Fairness Doctrine Limbaugh syndicated his show in unprecedented fashion, by offering it free of charge to stations across the nation. Within weeks 56 stations had picked up the show; within four years over 600 stations were carrying it, the fastest spread of any talk show in history.
   
   Others imitated Limbaugh’s format. The number of radio talk stations soared from 400 to 900 between 1987 and 1993.

   This isn't a coincidence:

   Rather than foster full and fair discussion of public issues, the real effect of the Fairness Doctrine was to discourage discussion of controversial issues of any kind. It’s no coincidence that such media as talk radio--virtually non-existent while the rule was in place--flowered after its repeal. Rather than the vast wasteland of bland muzak-like discussion it was before, broadcasting--especially radio--has become a platform for vibrant and controversial debate on countless issues.

   So, without the doctrine, "Demand, not government fiat, now decides what is broadcast." Which is as it should be.



4. What is fair?: Assuming balance is required, what does "fairness" demand? Would NPR have to hire conservative news reporters or publish conservative editorials? Should campaign contributions by newscasters be balanced? If additional coverage of Senator Feinstein is the goal, would a discussion of channeling government contracts to her husband suffice?
   
   What about religious broadcasters? The FCC permits such stations to hire only co-religionists, but there's "widespread public confusion" about what sorts of religious programming qualify as "educational." If the doctrine applied, would a Catholic station be forced to air John Wesley's Methodist hymns? Either way, is "Fairness" just a sly way to subsidize Air America?



5. Channels aren't scarce: Even before the Internet explosion, there were ample avenues for rebuttal and reply:

   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. . .
   
   Even if it may once have been possible to monopolize the airwaves, and to deny access to certain viewpoints, that is impossible today. A wide variety of opinions is available to the public through radios, cable channels, and even computers. With America on the verge of information superhighways and 500-channel televisions, there is little prospect of speech being stifled.

   From 900 in the '90s, last year, "there were more than 1,400 stations devoted entirely to talk formats." And that's not counting the blogosphere, where everyone -- from Media Matters to me ("Hi Mom!") -- can say anything we want. Simply put, if you want balance, buy a radio station, or start publishing or blogging--and quit complaining.



6. Vagueness matters: Even at it's height, the Fairness Doctrine's effect was essentially random. This is because -- according to former FCC General Counsel Henry Geller, a proponent of the doctrine -- "The FCC . . . never adopted objective, effective standards of public service for broadcasting. On the contrary, it has specifically rejected such an approach and deliberately followed vague standards." As former FCC and Commerce Department senior staffer Ken Robinson recently observed:

   [T]he actual chances a broadcaster would ever be found "guilty" of violating the "Fairness Doctrine" were roughly the same as being struck dead by a meteorite. As then-FCC Chairman Richard Wiley [NOfP full disclosure--I work for Wiley] explained at an FCC public meeting in the InterDepartment Auditorium in Washington in 1977, there typically were 2,500 "formal" Fairness complaints filed each year. All but about 200 were dismissed "administratively." Of those, about 60 to 70 were referred to licensees for comment, and about 10 of the replies were then reviewed. The FCC itself might look at six to 10 Fairness cases in a typical year. They almost never ruled against a licensee, however. Meanwhile, thousands of stations were broadcasting millions of hours of shows annually, weren't they?

   With regulation impossible to predict, broadcasters took few chances--and so skipped controversial topics.



7. Regulation is expensive: Even ineffective rules result in a tax on business. Again, according to Robinson:

   But if few broadcasters were ever found "guilty," many were nevertheless offered the opportunity to "pay those lawyers in Washington," as one radio station owner put it. Before the 1982 budget reconciliation act changes, remember, broadcast licenses were just three years. Remember Mao's comment about "continuing revolution"? . . . Well, for broadcasters there was "continuing renewal," and while nearly everyone made it, station owners -- like Adelie penguins on the ice floe -- knew that Fairness Doctrine leopard seals were still lurking right offshore. They grudgingly paid the FCBA membership [NOfP full disclosure--I'm a member of the Federal Communications Bar Association] to get them off any possible FCC hooks.

   Lawyers aren't free. And their fees are reflected in the price of consumer goods.

Conclusion: "Fairness" can't be achieved by fiat. But -- despite the death of the "Un-Fairness doctrine" -- it's alive and well in the free marketplace of ideas. As Heritage Foundation's James Gattuso concludes:

The Federal Communications Commission did the right thing 20 years ago in throwing this unnecessary, counter-productive, and unwise restriction on speech into the regulatory dustbin. It should be left there. To do otherwise would be dangerous and unconstitutional.

Agreed--and thankfully, it's not rising from the dead.

MORE:

The left is trying to pry open the coffin and resuscitate the mandatory fairness doctrine bill.

(via Michelle Malkin)