Just a Few More Thoughts on the Fairness Doctrine...

Who decides what is fair?

Who gets to decide what “fair” is? Representatives and Senators? FCC Commissioners? A free market based on supply and demand? Is it philosophers and scholars of political science? Should economists decide? Is it those with an active role in politics, whether in the media or more directly as activists, campaigners, or officials? Is it the public? Should Christian Scientists? The Amish certainly have opinions about medical procedures. Atheists have a great deal to say about God and religious practices.

If President Obama appears on television, the Republicans in some cases have time to respond, but nobody else does (other than the talking heads, of course). Libertarians don't get the opportunity to present their case with free air time. Nor do Objectivists, Socialists, Communists, or any of the other myriad schools of political thought. Is that fair? Democrats and Republicans likely think so.

Our society is so diverse in its ideas that there is no way to find a common ground for everyone concerned through government intervention. Even our information comes from a large variety of sources, some not even under the “rules” of the FCC. The fact is that any blogger trying to boost traffic knows that the public decides what they want to listen to, with little regard for fairness or equal opportunity. Conservatives read conservative web sites and listen to conservative radio. Liberals read liberal web sites and newspapers. There are even people who cross over to media with differing ideologies just to see what’s going on, or to get a contradictory view on a subject. Research polling suggests that people are tuning in to CNN and FOX news at an almost equal percentage. Neither is considered by many to be centrist in their overall news programming.

The FCC itself changes its point of view based on who is living in the White House. There are five Commissioners that are deciding what is fair, and 3 are appointed by the sitting President of the United States. Looking back, the Commissioners appointed by Jimmy Carter did not have the same opinions regarding what was fair in broadcasting as did the Commissioners appointed by Ronald Reagan. And the fact that the Commissioners appointed by Bill Clinton were more closely aligned with the Reagan appointees just illustrates how muddled the entire fairness issue really is. As Al Gore had said, the trust in an overall market concept is important in the coverage of public issues.

Supply, Demand and Public Issues

As stated in the first part of the book The Economics of Public Issues, Miller, Benjamin and North explain that we live in a world of scarcity, of limited resources, and that we have unlimited wants. The Federal Communications Commission began because of scarcity in the amount of bandwidth available for transmission of radio signals, and that scarcity caused the numerous active radio stations to bleed over onto other bandwidths, and other station’s transmissions, in their efforts to raise their signals and reach a wider audience – wider audience meant more advertising, and more profits for the station. The FCC needed to be created to control transmission of radio signals. But the FCC was not satisfied with doing just that. For political reasons, or simply wanting to have more power over the expanding media world, or both, they chose to come up with a way not only to manage the “physical” airwaves but to control the actual content of the programming that the radio stations were transmitting. They did this by creating the Fairness Doctrine.

Should stations have been allowed to continue to develop their distinctive programming personalities to appeal to specific listening constituencies, as they are now doing? It has been shown that stations in large enough markets, when left alone, develop programming that consistently appeals to particular political, ethnic, or economic partisans. A station stays in business if there are enough listeners to justify a particular programming format.

Choices should be left to the stations to decide not only the kinds of music or entertainment programs that they broadcast, but also on whether or not they offer programming that delves into public controversies, or features candidates for public office. Stations should also be free to take a particular political posture without fear of coercion, constraint, intimidation or reprisal, all things that the FCC did while trying to enforce the Fairness Doctrine.

History has shown that some stations will not program discussions of public issues at all. Does it justify the Doctrine’s attitude of forcing public issue programming on listeners who have little or no interest in it? I don’t believe so. When unwanted programming is put in place, history has shown that listeners have simply tuned out or turned the station off completely. Former FCC Commissioner Mark S. Fowler and colleague Daniel L. Brenner stated, “The public’s interest, then, defines the public interest.” And that interest is defined in a very straightforward way: Media outlets supply the programming and the consumers of their “product” can demand more or less based on their interest in what is produced.

Case after case has appeared before the U.S. Supreme Court involving fairness in the media. In 1984 the Supreme Court declared that there were an a large number of radio and television channels around the country, and the reasons for having a Fairness Doctrine were not necessary. The FCC followed in 1987 with their own admission that the intrusion by government into the content of programming occasioned by the enforcement of the Doctrine unnecessarily restricts the journalistic freedom of broadcasters and actually inhibits the presentation of controversial issues of public importance to the detriment of the public and in degradation of the editorial prerogative of broadcast journalists.

Repeal of the Bill of Rights? “We are not afraid to entrust the American people with unpleasant facts, foreign ideas, alien philosophies, and competitive values. For a nation that is afraid to let its people judge the truth and falsehood in an open market is a nation that is afraid of its people.” President John F. Kennedy

Did the Fairness Doctrine Ever Work?

Why do some support government intervention?

1. Does the “scarce” amount of spectrum space require oversight by federal regulators? Based on historical evidence although the spectrum is limited, the number of broadcasters in America has continuously increased.

2. Is “Fairness” or “Fair Access” best determined by federal regulators? Or is it correct that the FCC bureaucrats cannot determine what is “fair” or enforce it? In a recent discussion FCC Commissioner Michael Copps took broadcasters to task for their current programming content, speaking of “too little news, too much baloney passed off as news. Too little quality entertainment, too many people eating bugs on reality TV, too little local and regional music, and too much brain-numbing national play lists.” Mr. Copps believes he is in a position to determine what people in this country should listen to on the radio or view on television. He would obviously be promoting his own opinion, and would consider his actions “fair.”

3. Will the Fairness Doctrine guarantee that more opinions will be aired? In the past seventy years arbitrary enforcement of the Doctrine has been shown to diminish, not encourage, vigorous debate.

There are numerous writings pointing to individual instances where the Fairness Doctrine inhibited the freedom of speech. One of those cases was remembered by Nat Hentoff, a journalist with the Village Voice in New York. He has been writing his column, “Liberty Beat,” since 1957, and in 2001 he received a lifetime achievement award from the National Society of Newspaper Columnists. He is considered by his peers to be one of the finest journalists of his generation. He considered the Fairness Doctrine as exemplifying what George Orwell called “Newspeak”:# it uses language to mask the harmful effects of its supposed meaning.

His personal experience with the Doctrine occurred in the 1940’s when he was working at WMEX radio station in Boston. He explained how they covered politics and politicians, and offered their political opinions on the air. Then the Fairness Doctrine letters started coming in from the FCC and the station’s front office panicked. Lawyers were called, tapes of shows were reviewed, and responses had to be sent to the FCC. After a few of these letters the radio station’s boss announced that there would be no more controversial stories of any sort on WMEX. They had been “muzzled.”

In 1969 the Supreme Court upheld the constitutionality of the Fairness Doctrine in the Red Lion decision. During arguments before the Court, broadcasters stated that the Doctrine had a chilling effect on their business practices, leading many of them to abandon their coverage of controversial issues in favor of “safe” issues.

In 1985 the FCC issued a report concluding the Doctrine no longer served the public interest and instead chilled First Amendment speech. Note this is the FCC making this statement. The Commission predicted that without the chilling effect of the Fairness Doctrine it was reasonable to expect an increase in the coverage of controversial issues of public importance.

In 1987 the FCC formally renounced the Fairness Doctrine, and the FCC has stated that since then there has been more, rather than less, coverage of controversial issues. The amount of opinion-oriented programming exploded over the following six years and the number of radio talk shows jumped from 400 to more than 900. Many observers attribute this growth directly to the absence of the inhibiting effect of the Fairness Doctrine. Even Louise Slaughter agreed that AM radio popularity rose at that time. “It wasn’t even gradual…almost immediately.”

Even after the decades of proof of the inhibiting of ideas due to the Fairness Doctrine there are still those that want it back. In their 2005 book, Off Center: The Republican Revolution and the Erosion of American Democracy, Hacker and Pierson wrote: “…the proliferation of new media…has fostered a strongly right-wing journalistic presence in talk radio and on cable. The FCC…surely can justify restoring the simple requirement that the news include a fair representation of views…”