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The 1968 congressional study on the legislative history concluded: “The enactment of the Communications Act in the 73rd Congress provided another instance wherein language similar to the present Fairness Doctrine was unsuccessfully proposed for incorporation into the law.”
Nonetheless, the FCC, which under the 1934 law replaced the FRC, advanced the FRC’s vision for regulating content.
In 1941, a potential competitor sought a license to take over the frequency used by WAAB in Boston, which the FCC found had broadcast editorials “from time to time urging the election of various candidates for political office or supporting one side or another of various questions in public controversy.”
The FCC renewed WAAB’s license but warned that a broadcaster could not operate a station “devoted to the support of principles he happens to regard most favorably.”
“In brief,” said the FCC, “the broadcaster cannot be an advocate.”
It should be noted that this sweeping regulatory ruling came down at a time when a single party had controlled the Congress and White House for eight years.
FORMAL PRONOUNCEMENT
It was not until eight years later that the FCC modified its position by issuing a follow-up opinion on the question of “whether the expression of editorial opinions by broadcast station licensees on matters of public interest and controversy is consistent with their obligations to operate their stations in the public interest.”
Here the Fairness Doctrine was formally pronounced. It was OK for stations to editorialize, said the FCC, but the public interest “requires that licensees devote a reasonable percentage of their broadcasting time to the discussion of public issues of interest in the community served by their stations and that such programs be designed so that the public has a reasonable opportunity to hear different opposing positions on the public issues of interest and importance in the community.”
Ten years later, the issue came up in Congress again. The FCC ruled that a broadcaster that gave exposure to a politician in routine news coverage must give equal time to rival candidates. Congress—full of incumbents likely to gain exposure in routine news coverage—sought to overrule this.
Again, there was disagreement about codifying a requirement that broadcasters also air opposing sides of public issues. In 1959, the exemption to the candidate equal-time rule Congress finally approved warned broadcasters that it did not exempt them “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 on issues of public importance.”
The meaning of this provision was disputed. Like the 1968 staff of the Interstate Commerce Committee, author Steven J. Simmons studied the legislative history of the Fairness Doctrine. “Whether by congressional mandatory compulsion on licensees or by congressional authorization of FCC mandatory compulsion on licensees, it is obvious that Congress in 1959 was approving the commission’s Fairness Doctrine,” Simmons wrote in his 1978 book, “The Fairness Doctrine and the Media.” “If the amendment compels the fairness doctrine, then the FCC cannot remove it without congressional approval. … If, by the 1959 amendment, the Commission is simply authorized, and not compelled, to impose the doctrine, then the Commission could indeed suspend its enforcement if it deemed this to be in the public interest.”
RULED ‘CONSTITUTIONAL’
In the 1969 case of Red Lion Broadcasting v. FCC, the Supreme Court ruled that the Fairness Doctrine was constitutional. In the 1986 case of Telecommunications Research and Action Center v. FCC, the U.S. Court of Appeals for the District of Columbia settled the dispute on the meaning of the 1959 amendment.
“We do not believe that language adopted in 1959 made the Fairness Doctrine a binding statutory obligation; rather, it ratified the commission’s longstanding position that the public interest standard authorizes the Fairness Doctrine,” said the court. “The language, in its plain import, neither creates nor imposes any obligation, but seeks to make it clear that the statutory amendment does not affect the Fairness Doctrine obligation as the commission had previously applied it.” The opinion was written by Judge Robert Bork, and joined by Judge Antonin Scalia.
As far as the courts were concerned, the Fairness Doctrine was constitutionally permissible, but not statutorily mandated. That is how the law stood in 1987 when the FCC exercised its discretion to stop enforcing the doctrine, and that is how it stands today.
Editors' note: This article is a free preview from the February issue of Townhall Magazine. Click here to subscribe and receive a free copy of Ann Coulter's new book, Guilty.
THE GOAL: WEAKEN RIGHT-WING SPEECH
Today’s congressional opponents and proponents of the Fairness Doctrine have reached a stalemate, but that does not mean the FCC cannot take steps that, without actually re-imposing the doctrine, can achieve the same end: diminishing the conservative presence on radio.
After his one-year funding moratorium passed in 2007, Rep. Pence introduced a bill to permanently prohibit the FCC from reviving the doctrine. When the Democratic leadership refused to bring it up, Pence started a “discharge petition” that if signed by 218 members would have forced a vote. It garnered only 202.
This year, Pence has joined with Republican Sen. Jim DeMint, S.C., to reintroduce his bill. But in a Congress that has a larger Democratic majority, it will not see the light of day.
The experience of Rep. Maurice Hinchey, a New York Democrat who sponsored a bill to revive the Fairness Doctrine, illustrates the problem for its proponents. When Hinchey appeared on Tucker Carlson’s MSNBC program in 2007 to defend his proposal, he ended up defending the right of Holocaust deniers to be heard on TV.
“So, I’m required to put a holocaust denier on?” asked Carlson.
“Any particular point of view that you have, if somebody has an alternative point of view, then there is a responsibility to give that point of view an opportunity to be heard,” said Hinchey.
Supporters of legislatively mandating the Fairness Doctrine risk putting themselves in a politically untenable position.
“Obama is way smarter than that,” conservative writer Jack Thompson noted in a November column in Human Events.
So is John Podesta, who led Obama’s transition team, whom conservative critics such as Thompson and other close observers of the Fairness Doctrine debate believe has already laid out an alternative strategy for censuring talk radio.
Podesta, a former Clinton White House chief of staff, is president of the Center for American Progress (CAP). In 2007, CAP published a study detailing the policy steps needed to reverse conservative domination of talk radio. It neither rejected nor recommended resurrecting the Fairness Doctrine.
But it did argue that the free market does not work in radio.
“When 91 percent of the talk radio programming broadcast each weekday is solely conservative—despite a diversity of opinions among radio audiences and the proven success of progressive shows—the market solution has clearly failed to meet audience demand,” said the CAP study.
CAP said its study showed “that stations owned by women, minorities or local owners are statistically less likely to air conservative hosts or shows,” while “stations controlled by group owners— those with stations in multiple markets or more than three stations in a single market—were statistically more likely to air conservative talk.”
HOW OBAMA COULD SQUELCH TALK RADIO
To increase “progressive” talk and decrease conservative talk, CAP recommended capping the number of stations any organization can own, increasing the percentage of stations owned by women and minorities, shortening the lifespan of broadcasting licenses from eight years to three, and compelling licensees to show they are serving the local “public interest.”
Could an Obama administration do this?
The FCC has fi ve commissioners appointed by the president, who chooses the chairman from among them. No more than three can be from one party. The commission is now missing a Republican member whose term expired. Obama can immediately name a Democrat to fi ll the vacancy, securing a Democratic majority, and elevate one of the Democrats to the chairmanship.
Obama spokesman Michael Ortiz told Broadcasting & Cable last year that Obama does not favor the Fairness Doctrine, considering discussion of it “a distraction from the conversation we should be having about opening up the airwaves and modern communications to as many diverse viewpoints as possible.” Ortiz mentioned “media-ownership caps” and “increased minority ownership of broadcasting and print outlets” as things Obama did support.
In a 2007 letter to the FCC, Obama criticized the commission because he believed it “failed to further the goals of diversity in the media and promote localism.
Obama’s team may be preparing not to censor Rush Limbaugh but to have the FCC transfer broadcast licenses to station owners who will hire someone else in his place.
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