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Fairness Doctrine Returns to Front Burner

Fairness Doctrine: Complete Coverage from Broadcasting & Cable

Commentary: Government Imposed 'Fairness' Is A Proven Failure

Democrats are still discussing the return of the Fairness Doctrine, either in its previous incarnation or in a new form. And all the talk is fanning the flames of broadcaster concerns.

The latest senator to bring up the issue was Debbie Stabenow (D-Mich.), who told a liberal talk radio host that she'd had conversations with some fellow Democratic senators, and she expected there would be hearings on the issue in this Congress. Stabenow's office had not returned calls for comment at presstime, but some of her colleagues have done little to assuage broadcaster fears.

The flurry of activity on the Fairness Doctrine front has been building since the inauguration of President Obama. But the issue has been simmering for years as high-profile Democrats—John Kerry and Nancy Pelosi among them—either talked up the doctrine, or did not talk it down in conversations about attacks on Democrats from the right. Potentially adding more fuel to the fire, Kerry last week was made chairman of a new communications subcommittee with media oversight powers.

FCC Commissioner Robert McDowell helped ignite a new round of debate with a lengthy speech on the topic two weeks ago. The doctrine, which was scrapped by the FCC as unconstitutional in 1987, required broadcasters to air both sides of controversial issues. McDowell warned that if it were revived, it might not “wear the same label. That's just Marketing 101: If your brand is controversial, make a new brand.”

He suggested that the doctrine could be woven into the fabric of policy initiatives with terms like localism, diversity or network neutrality. “According to some, the premise of any of these initiatives is similar to the philosophical underpinnings of the doctrine: The government must keep electronic conduits of information viewpoint-neutral,” he said.

McDowell told B&C he was only looking to prompt thoughtful debate, given that members of Congress had already raised the specter of its return: “Because it was such an emotional issue, I thought it was important to give a dispassionate look at its history and where it could go, and try to take it out of the realm of hyperbole and emotion and have a thoughtful, rational dialog about it.”

McDowell succeeded. His warnings prompted a response from Henry Geller, who weighed in on an online commentary for B&C (click here to read).

In his comments, Geller argued that the doctrine “never required broadcasters to air both sides of controversial issues,” but instead required them to “afford a reasonable opportunity for contrasting views,” and gave them discretion in how to fulfill that obligation. Rush Limbaugh, for example, would have no difficulty comporting with the doctrine because “he welcomes calls discussing his points,” Geller said.

Hold the phone, says former NBC executive VP and general counsel Corydon Dunham: “The Fairness Doctrine violated the traditions of the First Amendment both in suppressing information and in the use of the doctrine to drive opposing points of view off the air. That is why the FCC itself did away with it in 1987.”

“I had a good view of how it worked,” Dunham says, arguing that back in the 1960s and '70s, both the Nixon and Kennedy campaigns used the doctrine “to stop opposition political broadcasts,” a point McDowell made as well.

Religious broadcasters are preparing to preach against the doctrine in the electronic pulpit. National Religious Broadcasters President Frank Wright says they share McDowell's concern that the doctrine could return in the guise of localism efforts, including proposed community advisory boards that would consult with TV stations about what programming would serve the public interest.

As to the suggestion that the controversy is ginned up by conservatives, Wright says no. “If they are going to call it a red herring, they will have to ignore the statements of their own members in Congress who said the exact opposite.”

The office of Jay Rockefeller (D-W.Va.), chairman of the Senate Commerce Committee, where the hearings Stabenow talked about would likely be held, had no comment.

Patrick Maines, president of media company-backed First Amendment think tank The Media Institute, believes the doctrine wouldn't return as originally constituted. “The Fairness Doctrine per se is not going to be reinstated,” he says, “but the speech police are coming in the windows.”

Maines adds that after the election, “Most Democrats probably felt a little less threatened by the conservative talk machine.” But given the difficulties Obama has had with a stimulus package that Maines says “is being energetically opposed by the conservative talkers” and others, fear of conservative platform power may have been rekindled.