An “unnecessary distriction,” Genachowski called the Fairness Doctrine, which “holds the potential to chill free speech and the free flow of ideas and was properly abandoned over two decades ago. I am pleased we are removing these and other obsolete rules from our books.”

Killing the Fairness Doctrine twice? You’re confused, right? Ok. First here’s the technical legal reason why the FCC says it is doing this; then the political reason.

Legal

The FCC enforced “The Doctrine” from the late 1940s through the early 1980s. The agency, not Congress, created the rule. It said that broadcasters had to provide reasonable opportunity for contrasting points of view. In the early 1980s the FCC concluded that the policy (which, in fact, was rarely enforced) was having a “chilling effect” on broadcasters, and let it go. Then Congress tried to restore it several times, but these efforts were vetoed by Presidents Reagan and the first President Bush.

But even though the Commission stopped enforcing the regulation, it left the following sentence on its rule books:

The Fairness Doctrine is contained in section 315(a) of the Communications Act of 1934, as amended, which provides that broadcasters have certain obligations to afford reasonable opportunity for the discussion of conflicting views on issues of public importance.

Section 315(a) covers broadcasters obligations to political candidates. It says that if radio and TV station licensees offer air time to any given political candidate, they have to offer “equal opportunities” to other candidates, except when it comes to news stories. BUT, the section adds:

Nothing in the foregoing sentence shall be construed as relieving broadcasters, in connection with the presentation of newscasts, news interviews, news documentaries, and on-the-spot coverage of news events, from the obligation imposed upon them under this Act to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views of issues of public importance.

A long debate ensued over whether this enshrined the Fairness Doctrine into Federal law. In 1985 the agency concluded that it did not. Two years later the FCC vote to retire the policy.

Political

For the last five years, however, liberals have periodically made noises about bringing The Doctrine back, and conservatives have called these moves a demonic plot to censor Rush Limbaugh and Glenn Beck and similar notables. In the past I’ve referred to these episodes as Fairness Doctrine Panics.

So finally, in a recent report on media, the FCC hinted that it was going to make it clear once and for all that the Fairness Doctrine is over-croaked-dead-yes-way-for-real. “It is unclear why the Commission did not eliminate this when it repealed the Fairness Doctrine policy,” the survey noted. “The sentence has no force of law or policy import, but, it should be said, the language remains ‘on the books’.”

Now it, and 82 other “outdated and obsolete media-related rules” have been dumped, Genachowski pledged.

“The elimination of the obsolete Fairness Doctrine regulations will remove an unnecessary distraction,” his press statement added. “As I have said, striking this from our books ensures there can be no mistake that what has long been a dead letter remains dead.”

Sorry Julius. The Fairness Doctrine will never end in the mind of demogogues. Any FCC rule that appears to even the playing field for ordinary radio listeners and TV watchers, community broadcasters, web and application developers, or consumers will somehow be construed as the Fairness Doctrine from now until the day that our sun turns into a red dwarf.

Localism rules, net neutrality rules, even tax increases—they’re all the Fairness Doctrine now, a necessary and even indispensable distraction. The Doctrine has become an intricate part of our conspiracy theory culture. You can count on this. You can even put it on your books.

So how have people taken the news? Like any decent blogger, I turned to the Internet to find out.

The fall of Air America Radio is being hailed as a triumph for conservatives, wrapping up a two-day series of unfortunate events for American liberals, including the loss of Senator Ted Kennedy’s seat to Republican Scott Brown and a recent decision by the Supreme Court to essentially destroy all limitations on corporate contributions to political campaigns. Transforming the downfall of Air America Media into a political issue, many conservatives seem to be attempting to use the company’s situation as a symbol for the general decline and failure of liberal talk shows, often citing pay discrepancies and total number of listeners as evidence.

Mark Krikorian, a blogger for the National Review, even went as far as stating, “Air America and Camelot snuffed out in the same week! So maybe the work does not go on, the cause does not endure, the hope does not live, and the dream really can die.”

Are these individuals on to something? Does the fall of Air America symbolize the dominance of conservative talk show hosts over broadcasting? To be honest, I’m not sure, although I’m certain that many individuals disagree with the aforementioned arguments. Regardless, one thing that people seem to agree on is that the fall of Air America was no surprise, particularly with the company’s highly publicized decision to apply for bankruptcy protection in 2006. In 2009 revenue for radio dropped by about 21%.

So, what now? Dana Loesch, a conservative talk show host from St. Louis, seems to believe that liberals will use this event as motivation to renew the Fairness Doctrine. Only time will tell, but it should be interesting.

#8 in our series on radio trends of the decade

It was the summer of 2007. Not moments after the Republican far right triumphed over President Bush’s hated immigration reform law than Representative Mike Pence, Republican of Indiana, introduced a rider to a budgetary bill in the House that would forbid funding for the Federal Communications Commission to enforce the Fairness Doctrine.

The bill overwhelmingly passed the House on Thursday, June 26. This was odd, because the FCC hadn’t enforced the policy in 20 years.

Broadcaster freedom

The Fairness Doctrine was a regulation tailored to the mid-20th century’s Internetless, cable TV-less, three network video broadcasting world. It required license owners to present opposing viewpoints on issues of public importance. In the 1980s the FCC began to pull back from the rule, issuing a “Fairness Doctrine Report” in 1985 that suggested that the policy inhibited rather than encouraged controversial dialog over the air waves.

Two years later an appeals court ruled that since Congress had never actually passed legislation authorizing the Fairness Doctrine, the FCC did not have to enforce it. In response, the House and Senate passed a Fairness Law, but the Senate could not override President Reagan’s veto, or the subsequent veto of President Bush I. The FCC abandoned the practice.

Yet absurdly, two decades later conservatives couldn’t scream loudly enough about the policy. John McCain, who had taken a beating for his support of the Bush administrations immigration proposals, quickly chimed in with a Broadcaster Freedom Act that went beyond Pence’s largely symbolic one year budget rider. It would just by plain old Act of Congress prevent the FCC from enforcing the concept, once and for all.

McCain’s sudden passion for the cause  can be read as an attempt to get right again with the Right. But from whence came this terror over a decades dead policy? Oklahoma Republican Senator and noted global warming denialist James Inhofe declared that he overheard California Senator Barbara Boxer and New York’s Hillary Clinton plotting something against talk radio in a Capitol Hill elevator. Various statements sympathetic to the Fairness Doctrine made by John Kerry, Nancy Pelosi, and Diane Feinstein were paraded out for all to see and dread.

And so the red state blogo-punditocracy went completely beer nuts over the issue, ranting that if the Doctrine was restored, Al-qaeda might be able to demand equal time over the airwaves. Bloggers promised that those sneaky Dems were just watching and waiting, biding their time regarding the Fairness Doctrine, plotting to retake the White House. And then . . . gotcha!

“The bottom line is that, without a massive public outpouring in favor of the First Amendment, comparable to the opposition to the immigration bill, the Broadcaster Freedom Act will die,” one warned. “And that means that with a Democrat in the White House, the Fairness Doctrine, as well as limits on conservative ownership of media properties, will be passed into law.”

Bwahaha!

The problem, of course, was that the ultimately successful Democratic contender, Barack Obama, announced that he opposed the Fairness Doctrine. Ditto, declared his FCC Chair pick, Julius Genachowski. So too did Washington, D.C.s leading reform group, Free Press. But the Fearness Doctrine crowd found a precious artifact that allowed them to keep the crusade going, a study published by The Center for American Progress and Free Press titled “The Structural Imbalance of Talk Radio.”

“[T]he Fairness Doctrine was never, by itself, an effective tool to ensure the fair discussion of important issues,” the paper argued . . . .

“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 key principle here is not shutting down one perspective or another—it is making sure that communities are informed about a range of local and national public affairs.”

Aha! They now declared. The Obama Nazis are going to push the Fairness Doctrine through the back door via regulations requiring more localism and diversity, and rules limiting the percentage of broadcast stations any entity can own!

It’s all coming together now

Sorry, Fearness Doctrine mongers. To this day, there is no Fairness Doctrine at the FCC. And so preoccupied is the agency with broadband and wireless issues, that it has left those diversity and localism proposals in a box way up in the attic. In the end, The Great Fairness Doctrine Panic was about a weakened and internally divided Republican party, circling the wagons around its most crucial resource—conservative talk radio and TV—and desperately glomming onto any cause to maintain unity with its base.

The main casualty of this hysteria been constructive and practical discussion about what the FCC can do, not to monitor the politics of radio via the back door, but to encourage more localism and connections to communities through the front.

Mark Lloyd

The Federal Communications Commission’s Diversity Officer defended himself this morning from the veritable avalanche of attacks he has sustained since he took his job. Speaking at a Washington, D.C. conference, Mark Lloyd asked to be allowed to “clear away some mud:”

“I am not a Czar appointed by President Obama. I am not at the FCC to restore the Fairness Doctrine through the front door or the back door, or to carry out a secret plot funded by George Soros to get rid of Rush Limbaugh, Glenn Beck or any other conservative talk show host. I am not at the FCC to remove anybody, whatever their color, from power. I am not a supporter of Hugo Chavez. The right wing smear campaign has been, in a word – incredible, generating hate mail and death threats. It is the price we pay for freedom of speech. And I do support free speech.”

We’ve been following this story here for a while. The sheer level of hysteria that has followed Lloyd’s tenure has made it all but impossible to have a reasonable debate about his ideas, some of which I agree with, particularly rules encouraging more local media—although I don’t want them in order to ensure more “balance” in programming.

In any event, while Lloyd sounds somewhat scarred by the rhetoric of the last few months (including threats made against him), it isn’t often that you hear a speech as historically grounded as this one:

“We Americans have been wrestling with the problem of what policies to put in place to promote an informed citizenry since the founding of the nation. Even though Madison believed that communication between North and South might lead to a civil war, even though Madison worked to delay any debate about slavery in Congress, he believed that communication service to all was necessary to establish a more perfect union. The answer Madison and the founders settled on in 1792 was to establish a government run program, a program that dwarfed every other government operation of the time – the Post Office – and to subsidize the distribution of newspapers.

I do not suggest that we return to that model, only that we have something to learn from it. Much has changed since the late 1700s. But all the new technologies, from the telegraph to radio to television to cable and now to the Internet, have not solved the problem of promoting an informed citizenry. Despite all the early promise and fervent hope renewed with each new communications technology, we still face the challenge of how to provide a people who mean to be their own governors the information they need.”

It’s a shame that this important (and interesting) discussion has been buried in sludge for the last few months. The other problem that broadcasting/localism/diversity questions face is that they’ve been almost completely subsumed by broadband issues. The broadband project is so huge that it has eclipsed localism and other questions at the FCC,  except of course when somebody wants to rant that any attempt to encourage localism is really a secret attempt to bring back the Fairness Doctrine.

Not sure where the light is in this particular tunnel . . .

FCC Fairness Doctrine enforcer, back in the Bad Old Days

Federal Communications Commission Chair Julius Genachowski is in hot water with the right wing talk radio crowd. They’ve discovered that his Associate General Counsel and Chief Diversity Officer, Mark Lloyd, is a co-author of that noted and/or notorious study, The Structural Imbalance of Political Talk Radio. So Senator Charles Grassley, Republican of Iowa, has written Genachowski an open letter, expressing worry that Lloyd’s presence at the FCC may signal a return to [insert Vampire flick music here] the Fairness Doctrine, which Genachowski has promised not to bring back.

“I am concerned that despite his statements that the Fairness Doctrine is unnecessary, Mr. Lloyd supports a backdoor method of furthering the goals of the Fairness Doctrine by other means,” Grassley wrote.

This missive was quickly followed by the usual alarmist headlines: New FCC Chief Supports the Fairness Doctrine . . . Fairness Doctrine Raises Its Ugly Head Under New FCC ‘Diversity Czar’ . . . Mark Lloyd: FCC Chief Diversity Officer Seeks to Punish Conservative Broadcasters.

You don’t even have to read these articles to get the idea. Hopefully people will eventually calm down about this stuff. Here’s my attempt at rational thinking on the matter.

Not shutting down perspectives

The FCC upheld the Fairness Doctrine for almost 40 years. It required radio and television stations to provide reasonable access to contrasting points of view. The Supreme Court upheld its constitutionality in 1969. Liberals blame the rightward drift of media on its abandonment by the Commission in 1987. Conservatives says its return would kill free speech—theirs’ in particular (and isn’t that what usually matters most).

As Grassley noted, Structural Imbalance did not call for the return of the Fairness Doctrine, although it observed that over 90 percent of weekday talk radio programming is conservative. Here, in fact, is what the article says:

“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,” Lloyd and six other authors from Free Press and the Center for American Progress wrote. “The key principle here is not shutting down one perspective or another—it is making sure that communities are informed about a range of local and national public affairs.”

Interestingly, hardly anyone challenges the paper’s assertion that conservatives overwhelmingly dominate talk radio. But Lloyd et al also made a lot of recommendations that conservative critics charge are, shall we say, “Fairnessdoctrinesque.”

“This analysis suggests that any effort to encourage more responsive and balanced radio programming will first require steps to increase localism and diversify radio station ownership to better meet local and community needs,” they wrote, and came up with three ways to achieve this goal:

Provide a license to radio broadcasters for a term no longer than three years.

Require radio broadcast licensees to regularly show that they are operating on behalf of the public interest and provide public documentation and viewing of how they are meeting these obligations.

Demand that the radio broadcast licensee announce when its license is about to expire and demonstrate how the public can participate in the process to determine whether the license should be extended. In addition, the FCC should be required to maintain a website to conduct on-line discussions and facilitate interaction with the public about licensee conduct.

In fact, none of these measures would constitute the Fairness Doctrine, per se. A recent Congressional Research Service analysis defined the Fairness Doctrine as “a content-based restriction on speech because it requires a government agent, the FCC, to examine the speech of private actors and to make subjective judgments regarding the fairness of the speech.” That’s exactly right. The Doctrine forced the Commission to evaluate the politics of radio and television stations on a case by case basis and decide whether to take what it saw as corrective steps. These recommendations are not nearly that intrusive.

But they do flow from the assumption that the government should be involved in encouraging “balanced radio programming.” And that’s where I part company with the article. I don’t think the  state should regulate radio stations directly or indirectly with an eye towards adjusting their politics.

Baseline needs

I do think, however, that the FCC has a responsibility to make sure that radio stations provide communities with certain baseline services. People should be able to get first rate coverage about emergency situations from their radio stations. Some licenses fail quite spectacularly in this area.

The public should also be able to get top quality news about local issues, most importantly news about elections and government. And local musicians and non-profit groups should be heard from and about, frequently, on the radio. Serious FCC requirements that these things happen would not interfere with anyone’s politics. Conservative stations could offer these services with a conservative perspective; liberal stations could offer them via a liberal slant.

There will be some, of course, who will call this the Fairness Doctrine as well. They just want the big right wing talk dinosaurs to rule the radio airwaves, and to heck with everything else. They’re always yelling about free speech. But all they really care about is theirs’. I just hope there are enough people in this discussion who know that radio is about more than pleasing the dittoheads.

“First of all,” began Senator Kay Bailey Hutchison of Texas as soon as it was time for questioning McDowell, “on the Fairness Doctrine, that is something that is very important to many people. . . ”

Ban all unbanning

Robert M. McDowell at his senate confirmation hearing

Now, before we continue with Hutchison’s question, let’s step back and make an observation. The fact that the Fairness Doctrine is “very important to many people” is a curiosity to many other people, including me. This FCC rule, which required radio and television stations to offer “reasonable access” to opposing points of view, has been deservedly extinct for 21 years. The President of the United States says he opposes its return. Michael Copps, current Chair of the FCC opposes its return. Genachowski said he won’t bring it back. A few Democrats say they favor it, but there is no bill in the House or Senate calling for its restoration, although an amendment has passed the Senate which would forever ban its being unbanned in the unlikely event somebody actually wanted to unban it, said unbanning the present and future Chairs of the FCC promising not to do (as has already been noted).

But oodles of right wing talk radio loving conservatives and libertarians insist that it is coming back, or something like it is coming back, and Robert McDowell has been one of these insisters on occasion. “Should it return again, as several current Members of Congress have called for, I doubt it would wear the same label,” he told the Media Institute last year. “That’s just Marketing 101: if your brand is controversial, make a new brand. The Doctrine could be intertwined into other communications policy initiatives that are more certain to move through the system, such as localism, diversity or net neutrality.”

Basically the plot, as it has been outlined by way too many bloggers to shake a stick at, is that instead of bludgeoning right wing talk radio/TV via the Fairness Doctrine, it will be weakened by other means, somehow. Rules requiring more local programming or diversity will sap its Samsonian strength; and the real point of these rules is not to get more locally based programming or wider range of voices on broadcast radio and TV, but to move broadcasting in a more leftward direction, which is basically what the Fairness Doctrine was supposedly designed to do.

As for how net neutrality will accomplish this—frankly, with localism and diversity at least I can summarize the argument, even if I don’t agree with it. With net neutrality, I can’t even outline the logic.

You were saying

In any event, sorry to interrupt Senator Hutchison, but some background seemed necessary. ” . . . and reinstating [the Fairness Doctrine] is something that everyone I know thinks would be a bad idea,” she continued. “And I wanted to ask you if you see any signs of the Commission moving in that direction through the localism effort. What is your view about what is going on?”

Well, surely here was an opportunity for McDowell to have a grand old time with this frisky subject. But instead he replied as thus:

“First of all, Senator, I’ve spoken out for quite a while about my concerns about any reimposition of the Doctrine. Some call it the Censorship Doctrine. Others call it the Forced Speech Doctrine. So I will simply call it The Doctrine in order to be fair. But I believe it probably is unconstitutional.”

“I don’t have any concerns at the moment that the Commission will pursue it. I take Mr. Genachowski at his word that he will not pursue it. But there are some other concerns that I have regarding heaping more obligations on broadcasters, especially at this time, but throughout as well. The broadcast industry is really taking it on the chin right now, due in part certainly to the recession. About a third of their advertising revenue comes from car dealerships alone, and, of course, we all know the fate of car dealerships. There are more and more broadcast stations in distress these days. And then there’s the whole aspect of all the new media competition I outlined in my opening statement. The eyeballs and ears and ad dollars are going to new media. And I think we need to be mindful of that before we impose any new regulations.”

This response satisfied Hutchison, and the discussion moved on. But it’s important to note that although McDowell brought various localism proposals into the conversation, he held back from suggesting that they were a back door means of reimposing the Fairness Doctrine. Instead he simply characterized them as potentially burdensome to broadcasters.

Why didn’t McDowell rise to the occasion? Possibly because he was in mixed company (there were Democrats in the room who probably would have angrily challenged him on the matter) or perhaps because he has chosen to step back from all the frothy Fairness Doctrine rhetoric, which critics have characterized as conspiratorial.

In any event, conservatives hoping for a little red meat on this issue surely must have been disappointed by his response. I wasn’t. I want these proposed localism and diversity rules debated on their own merits or demerits, and was grateful for McDowell’s restraint.