Forget the Fairness Doctrine

Mark Lloyd explains why the Center is not calling for a return of the fairness doctrine to address the conservative bias of political talk radio.

The Center for American Progress late last month published a widely read report titled “The Structural Imbalance of Political Talk Radio.” That report demonstrated the failure of the supposed “free market” regulation of the U.S. radio industry to address the public-interest needs of listeners. Our analysis revealed that conservative talk radio dominates the airwaves of our country—to the detriment of informed public discourse and the First Amendment.

Only the most misinformed still believe that radio group owners such as Citadel Broadcasting Corp., which refuses to air popular progressive hosts like Ed Shultz, are only concerned about the bottom line. Few would agree that markets such as Philadelphia and Houston are well served with 100 percent conservative talk radio. But that doesn’t mean that the answer to this pervasive imbalance is the Fairness Doctrine.

In our report, we call for ownership rules that we think will create greater local diversity of programming, news, and commentary. And we call for more localism by putting teeth into the licensing rules. But we do not call for a return to the Fairness Doctrine.

Despite what we thought was fairly stark evidence of conservative bias, despite clear proposals to address that bias, Rush Limbaugh and other distortionists insisted that we were calling for a “return” of the Fairness Doctrine. But as we wrote, “simply reinstating the Fairness Doctrine will do little to address the gap between conservative and progressive talk unless the underlying elements of the public trustee doctrine are enforced, in particular, the requirements of local accountability and the reasonable airing of important matters.”

The power of right-wing talk radio and their echo chambers in the conservative blogosphere and Fox News was amply demonstrated by their simple “black or white, for or against” reaction to our report. They refused to discuss the underlying market control exercised by radio corporations eager to promote the conservative agenda. But it worked. Even the radio hosts of supposedly liberal public radio stations asked the authors of the report over and over, “Why are you calling for a return of the Fairness Doctrine?”

On one station, I responded that our report focused on media consolidation and localism, not the Fairness Doctrine. This sparked the host to ask, “Well, why aren’t you calling for a return of the Fairness Doctrine?”

Okay, so why aren’t we calling for a return of the Fairness Doctrine? As we state in the report, the Fairness Doctrine never by itself fostered coverage of important issues in a way that spoke to the diversity of interests in local communities across our country. In the late 1960’s, the supposed golden age of the Fairness Doctrine, the Kerner Commission reported the failure of mainstream media to report on minority communities. The same could be said at the time regarding the reporting of the views of women or poor people or young people protesting against the war in Vietnam.

Despite the distortions of the Nixon-era media haters, mainstream broadcast media in the late 1960s was middle-class, anti-communist, Protestant, male and white. If dittoheads like to think of this as a “liberal” bias, so be it, but the Fairness Doctrine didn’t do much to address it.

Here’s the history that matters. In the late 1960s the United Church of Christ successfully challenged the Federal Communications Commission over the lack of local input in FCC decisions. A moderate Republican judge, Warren Burger, whom Nixon later appointed as Chief Justice of the Supreme Court, sided with the church group. As a result of that ruling, a whole slew of rules were put in place to give local communities power in the licensing of broadcasters.

In their engagement in the licensing process many of those groups cited the responsibility of the broadcaster to “afford reasonable opportunity for the discussion of conflicting views of issues of public importance.” This responsibility, which many think of as the core of the Fairness Doctrine, was established in the 1920s. But with public engagement in the 1970s the Fairness Doctrine finally had some teeth.

All reports of its demise to the contrary, this core responsibility remains in the Communications Act today. Today, however, the act once again simply has no teeth.

How broadcast licensees meet their responsibility of fair discussion of important public issues has varied considerably over 80 years of federal regulation. But the image of eager federal bureaucrats peering over the shoulders of all of America’s radio talk show hosts with a stopwatch in hand is as absurd as it is impractical.

We trace the rise and influence of Rush and other conservative radio hosts to relaxed ownership rules and other pro-big business regulation that destroyed localism. The supposed “repeal” of the Fairness Doctrine did not create Rush Limbaugh, just as the supposedly onerous Fairness Doctrine did not destroy Joe Pyne in the 1960s or Father Charles Coughlin in the decades before Pyne.

To be fair, even some progressives are confused about the Fairness Doctrine. A recent news story reported that the League of United Latin American Citizens, or LULAC for short, has asked Speaker of the House Nancy Pelosi (D-CA) to reintroduce the Fairness Doctrine—even as the same article reports on a speech to LULAC by ABC News correspondent John Quinones, who spoke of his work bringing to audiences a hard-earned perspective to the long-running immigration debate.

Quinones told the LULAC audience that he got his start because a San Antonio community organization threatened that if the stations didn’t hire more Latinos, the group would go to the FCC and challenge their licenses. "Thank God for them," Quinones said. "I wouldn’t be here."

Equal opportunity employment policies. Local engagement. License challenges. Nothing in there about the Fairness Doctrine.

The other part of our proposal that gets the dittoheads upset is our suggestion that the commercial radio station owners either play by the rules or pay. In other words, if they don’t want to be subject to local criticism of how they are meeting their license obligations, they should pay to support public broadcasters who will operate on behalf of the local community. Commercial broadcasters want to be trustees of public property but without responsibility.

Unlike newspapers and movies and blogs and cable channels, the federal government gives commercial broadcasters a free license to use public property—the airwaves. There are still more people who want these licenses than the government is able to satisfy. In exchange for this very valuable and scarce license, and federal protection against “pirate” (unlicensed) radio operators, broadcasters are supposed to operate in the public interest.

That’s the deal. The broadcasters like the free license and the free protection, but they just don’t want the public involved in telling them whether they are actually serving the public interest. For 80 years the public interest has been defined as, you guessed it, providing a reasonable opportunity for the diverse expression of issues of local importance.

For over 25 years Henry Geller, a distinguished telecommunications attorney, has argued that broadcasters ignore the local public interest, that the whole “public trustee” idea is broken, and that instead of trying to make broadcasters play by the rules we should just make them pay a reasonable fee to support public broadcasting. But spectrum license fees should not be put in the federal treasury as they are now. Instead, they should be used to advance the public’s First Amendment interest in diverse speech at the local and national levels. We think Geller makes a strong argument.

We at the Center are delighted at the increased attention our report has brought to the obligations of broadcasters to provide local communities they are licensed to serve with opportunities for diverse expression of important issues. The status quo does not serve our democracy well. We want to create more ownership opportunities and more speech focused on local interests. We want either clear rules that promote these First Amendment values or a reasonable payment to the public for the use of its property.

All of these public policy objectives are there for Congress and the FCC to act upon within current law. There is no need to return to the Fairness Doctrine.

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