In his recent speech to the Media Institute, Commissioner Robert McDowell warned against the return of the fairness doctrine and said that its return might put in jeopardy the entire broadcast regulatory scheme like children’s TV rules. I believe he is wrong on several counts.
First, the doctrine never required broadcasters to air both sides of controversial issues. It required that broadcasters afford a reasonable opportunity for contrasting views, and it gave them great discretion in discharging this obligation. Thus, with the exception of political editorializing for or against a candidate or personal attacks, the broadcaster could meet the requirement by announcing that contrasting views are welcome. Rush Limbaugh would have no difficulty because he welcomes calls discussing his points.
Second, Commissioner McDowell does not appear to understand the “spectrum scarcity” basis of the doctrine. The scarcity was never based on the number of broadcast outlets. At the time of the seminal Red Lion case, there were 7000 broadcast radio stations – far more than the number of daily newspapers. The Supreme Court explained that more people wanted to broadcast than there were available frequencies (which is still true today); the Government could have limited the license to broadcast to just a few weeks or months; instead, it chose to award a license (now for eight years) to one entity but with the requirement that it act as a trustee for all those the Government is keeping off the frequency; and at renewal the licensee must show that it acted as a public trustee for its community. The fairness doctrine stemmed from this public trustee scheme.
In the most famous fairness case, a Jackson, Mississippi station (WLBT-TV) presented only the segregationist point of view during the raging controversial issue of integration in the early 1960’s. In an opinion by Judge (later Chief Justice) Burger, saying that compliance with the fairness doctrine is a sine qua non for renewal, the station lost its license. Would Commissioner McDowell today renew that license, holding that the station is acting as a public trustee for its community?
The doctrine was eliminated in the 1980’s and that action was sustained by the Court of Appeals not on the ground that the doctrine was chilling and unconstitutional but rather on the policy ground that in light of the explosion of information outlets, it was reasonable for the FCC to follow the print regulatory model in this respect. In view of the even greater explosion today, with growth of cable, satellite, wireless and above all, the Internet, it is most unlikely that the fairness doctrine will return as a matter of general policy.
Commissioner McDowell cites the return of the doctrine as making a target for a constitutional attack on children’s TV rules. But the NAB has never sought to appeal the rules or to eliminate the public trustee behavioral content regulatory scheme. The NAB always cites this obligation as a part of a social compact where broadcasters forego some profit to put public service first. I strongly believe that this so-called social compact should be examined and that the ideal place to start that review is the children’s TV rule.
In place of what has been failed or inadequate public service, the commercial broadcaster could be relieved of any obligation to serve the child audience and instead would pay one percent of its gross revenues to public broadcasting, which is inadequately funded but wants to present and publicize a channel for the pre-schooler, one for the school-aged, another for literacy and another for teachers or parents.
Indeed, there is a serious question whether broadcasting should be treated like its main rival cable, and required to pay a modest spectrum usage fee in lieu of the public trustee obligation, with the sums so raised going to a trust fund for public broadcasting, so the latter could render high quality public service in areas like children’s TV, in-depth informational programming, cultural and minority fare. Others argue that the public service obligation should be clarified and made more effective. The appropriate regulatory scheme for broadcasting in the 21st Century is the overriding issue – not this skirmish over the unlikely re-appearance of the fairness doctrine, especially with mistaken notions of its nature and operation.
Henry Geller was Assistant Secretary of Commerce for Communications and Information (NTIA) in the Carter Administration and FCC General Counsel in 1964-1970.
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