FCC Commissioner Warns Against ‘Back-Door’ Fairness Doctrine

Published April 1, 2009

Robert McDowell, a Republican appointee to the Federal Communications Commission, fears the new administration and a Democratic Congress may try to revive the so-called Fairness Doctrine without the public realizing it.

It may surface with another name and with different justifications, McDowell said, adding the doctrine could be expanded to threaten free speech on the Internet.

McDowell and other telecommunications experts agree reviving “fairness” and “balance” rules on radio and TV and adding them to the Internet—a relatively new area of jurisdiction for the FCC—would undermine freedom of expression and ill-serve the public in an era of virtually limitless options in media consumption, where such a rule is unnecessary in promoting variety of expression.

The commissioner, tapped for the FCC by George W. Bush in 2006 for a term that expires in June, said regulation would not come back with a big sign saying “it’s me, the Fairness Doctrine.” Instead, he suggested, Congress or the FCC would likely impose new “local ownership” rules and “community advisory boards” that would serve the same purpose.

McDowell expressed his views in a February speech to the Media Institute, a nonprofit foundation in Washington, DC that advocates free speech rights.

Resurfacing ‘Nuisance’

“McDowell’s concerns are legitimate,” said Jeff McCall, a professor of communications at DePauw University in Greencastle, Indiana. “It’s hard to tell how [the Fairness Doctrine] might come back. It would likely be called something different. It’s a nuisance; it’s something that just won’t go away.”

Law professor Jonathan Adler of Case Western Reserve University agrees.

“Many Democratic lawmakers have expressed explicit support for reimposition of the Fairness Doctrine, [even though] the Obama administration has denied it would support such a move,” Adler said.

The FCC implemented the Fairness Doctrine in 1949 to ensure different political, religious, and other groups had fair access to the public airwaves. But the policy, critics say, actually squelched political speech. Broadcasters would avoid airing any controversial opinions lest they attract unwanted attention from the FCC, which has the power to revoke broadcast licenses.

That all changed in 1987 when the FCC abolished the Fairness Doctrine, a move that led to the rise of conservative talk radio and less-successful liberal talk in response. Renewing the doctrine could do great harm to that billion-dollar industry.

Back-Door Mandate

Bradley A. Smith, a law professor at Capital University in Columbus, Ohio, said imposing the Fairness Doctrine through the back door—by, for instance, limiting radio station ownership—would be a death blow to nationally syndicated radio shows.

“Local shows will then be brought under more pressure to air ‘both sides’ of the issues,” Smith said.
Smith notes another back-door “fairness” strategy would be to mandate “community advisory boards” empowered to determine radio programming—allowing bureaucrats to overrule audiences’ choices.

Adler says those policies would “kneecap national broadcasters and nationwide radio programming.”

“Ironically, such policies are unlikely to serve the goal of increasing viewpoint diversity on the airwaves,” Adler said.

Market Provides Variety

Critics of the Fairness Doctrine agree the regulation might have been defensible when the public had few media choices.

But today’s world of hundreds of cable and satellite TV channels, a vibrant radio market (including “HD radio” that multiplies programming options on a single “station”), and Internet-only audio and TV options makes the policy obsolete, analysts say.

They also deride the notion of “the people” owning the public airwaves and the presumed need for “public advocates” to manage them.

“The scarcity argument is utter nonsense,” Smith said. “And it makes no more sense to say ‘the people own the airwaves’ than to say ‘the people own the newsprint.’ We wouldn’t accept government control of newspapers, and we shouldn’t accept government control of the airwaves.”

Intervention Habits Criticized

Many defenders of the Fairness Doctrine concede the policy would not apply to the Internet, but critics note the FCC has broad regulatory jurisdiction over the Internet and is not in the habit of regulating lightly—especially when led by Democratic appointees.

If the airwaves should be regulated, why not the Internet or newspapers, for that matter, says Jeff Kagan, an independent telecom analyst based in Atlanta.

“The problem [with trying to revive the Fairness Doctrine] is it is unfair to cut out only one area like talk radio,” Kagan said. “If eliminating talk radio is on the table, then it should be broadened to include newspapers.

“If we are looking at making big-picture changes, then it is important to not choose one area, but make a larger and more fair cut across all news and information sources like television, radio, newspapers, magazines, movies, and so on,” Kagan said. “We are bombarded with opinion no matter where we turn.”

Destined to Fail

Daniel Ballon, a technology policy fellow at the San Francisco-based Pacific Research Institute, doesn’t believe a new version of the Fairness Doctrine would get much traction in Congress. The Internet, he says, makes the Fairness Doctrine invalid, and Congress knows it.

“The lawyers know that any such policy would not be enforceable,” Ballon said.

The U.S. Supreme Court unanimously upheld the Fairness Doctrine in 1969, but subsequent decisions addressing the policy have signaled signs of reversal. If forced to take a stand, experts say, the high court would likely strike it down in the interest of not “chilling speech,” in the words of Associate Justice William J. Brennan Jr. in 1984.

Phil Britt ([email protected]) writes from South Holland, Illinois. Loren Heal ([email protected]) writes from Neoga, Illinois.