July 6, 2007

July 6, 2007 | Commentary on Regulation

Fairness Doctrine, R.I.P.

Stay tuned for the real fight over media regulation.

Victory was fast and shockingly easy. The battle over the Fairness Doctrine ended last week when the House of Representatives voted 309-115 against allowing the Federal Communications Commission to re-impose the regulation on broadcasters. The vote almost certainly means that the long-dead rule will not be revived anytime soon. That's good news. But the celebrations should be tempered: the real battle over media regulation is still to come, and won't involve the words "Fairness Doctrine."

The Fairness Doctrine required broadcasters to air contrasting points of view on controversial issues. It was repealed some 20 years ago, after the commission concluded that the rule was actually stifling, rather than fostering, coverage of disputatious issues.

And history proved the FCC right. The years following repeal saw the birth of modern talk radio, a phenomenon that brings brash public debate into the homes of America daily.

Not all have been pleased with this development. The greatest successes in talk radio have been unapologetically conservative voices. And that has made talk radio made a thorn in the side of the left.

Not surprising, then, that almost immediately after liberals regained power in Congress, Rep. Dennis Kucinich (D., Ohio) called for restoring the long-dead Fairness Doctrine. The "idea of uninhibited exchange of ideas in the marketplace" he said, "needs to be looked at in the era of media consolidation".

Kucinich's call attracted much media attention, and more than a little criticism, but little was actually done to advance the idea legislatively. It probably would still be on the back burner were it not for -- of all things -- illegal immigration. During the acrimonious debate over immigration reform, "AM armies" roused by conservative talk-show hosts proved to be a powerful -- and to many legislators, unwelcome -- force.

Angered by this, a number of amnesty opponents -- from both sides of the aisle lashed out against talk radio. Liberal leaders seized the moment to call for the Fairness Doctrine's return.

It was a political mistake of the first order. Conservative radio-talk-show hosts from Rush Limbaugh to the smallest local personality hit back hard against the idea. It seemed near impossible to turn on your car radio without hearing about the issue. But it wasn't just incensed conservative talkers who quashed the idea. No one seemed to like it. Even the normally liberal-leaning blogosphere produced few defenders of a Fairness Doctrine revival. It was just too obviously an attempt to stifle speech.

In the end, it was the rule's opponents -- not its supporters -- who took the offensive. Led by Rep. Mike Pence (R., Ind.), a former radio talker himself, regulation opponents proposed an amendment to the FCC's appropriations bill banning the agency from using any funds to adopt a fairness rule. The vote was decisive: a majority of Democrats joined with a unanimous Republican caucus to forestall efforts to revive the failed doctrine.

Politically, this seems to end any short-term possibility that Congress might reimpose a Fairness Doctrine. With so many members now on record opposing the rule, it would take a political Frankenstein to raise the doctrine from the regulatory grave in this Congress.

To forestall future reimposition, Pence -- along with over 100 cosponsors -- has introduced legislation to permanently eliminate the FCC's authority to impose the regulation. Similar legislation has been introduced in the Senate.

So is it time for conservatives to celebrate? Not quite yet. The real battle over American media has hardly begun.

The odd Dennis Kucinich aside, few on the Left ever seriously thought the Fairness Doctrine could be reinstituted. Last week's win was mostly over undefended ground. But the Left has been very active in promoting a number of much more subtle "reforms" meant to alter what broadcasters do and say.

These approaches were detailed in report jointly released last month by the liberal advocacy groups Free Press and the Center for American Progress. Entitled "The Structural Imbalance of Talk Radio," many conservative commentators mistakenly assumed the report endorsed the Fairness Doctrine. Far from it: The authors dismiss the doctrine as "ineffective."

Instead, they propose an alternative agenda, including:

  • Strengthened limits on how many radio stations on firm can own, locally and nationally;

  • Shortening broadcast license terms;

  • Requiring radio broadcasters to regularly show they are operating in the "public interest;"

  • Imposing a fee on broadcasters who fail to meet these "public interest obligations" with the funding to go to the Corporation for Public Broadcasting.

The goal of the reforms is the same as the Fairness Doctrine: to reduce the influence of conservative talk radio. Limiting ownership, the authors believe, will eliminate many of the owners who favor conservative causes. Public interest requirements can be defined almost any way a regulator wants -- up to and perhaps even beyond that required by the old Fairness Doctrine. And the proposed fee provides regulators with a quite effective stick to compel compliance -- as well as to direct funds to more ideologically compatible public broadcasters.

Free speech and free markets enjoyed a great victory last week in the defeat of the Fairness Doctrine. But the real fight to protect the media from government interference is just beginning.

James L. Gattuso is senior research fellow in regulatory policy at the Heritage Foundation.

About the Author

James L. Gattuso Senior Research Fellow in Regulatory Policy
Thomas A. Roe Institute for Economic Policy Studies

First appeared in the National Review Online