July 19, 2007

Is the Fairness Doctrine Fair Game?

A PEJ Backgrounder

by Dante Chinni, Senior Researcher, Project for Excellence in Journalism

It has been 20 years since the Fairness Doctrine was repealed by the Federal Communications Commission (FCC). Yet in recent weeks, the rule that required broadcasters to balance views they aired on controversial subjects has re-emerged as a topic of debate in media circles—and particularly on talk radio.

Some hosts in the conservative-dominated talk radio universe have warned listeners that Congressional Democrats and liberals want to revive the Fairness Doctrine in an effort to silence voices and views they don’t like. And some have warned that any return to the rule would produce a “Hush Rush Bill.” (The National Review published a recent cover story on the topic, complete with a photo of Rush Limbaugh gagged with duct tape.)

A few weeks ago, Limbaugh raised that prospect when he described his show as something “that frightens and scares the American left to the point that they want to deny this program Constitutional access to the First Amendment.”

Conversely, Ed Schultz, a syndicated liberal talker, has accused conservatives of setting up a “straw man” by playing up the threat of a new Fairness Doctrine. “I can guarantee you folks that no one is out there saying ‘let’s have the Fairness Doctrine,”’ Schultz declared, and he blamed conservatives for trying to stifle liberal voices on the air.

What is the Fairness Doctrine and what is going on here? Some background seems in order:

What exactly was the Fairness Doctrine and what happened to it?

Created by the FCC in 1949, the Fairness Doctrine was a set of rules based on the idea that the airwaves were in scarce supply and were owned by the public, with TV and radio stations functioning as “public trustees.” As such, the FCC required that broadcasters provide a reasonable opportunity for “ample play for the free and fair competition of opposing views … [for all] issues of importance to the public.”

Stations, in other words, had to carry contrasting opinions on the important issues of the day.

The Fairness Doctrine survived for decades and was affirmed as constitutional by the Supreme Court in 1969. But in the 1980s, during Ronald Reagan’s administration, the FCC revisited the subject. The agency concluded that the rise of cable television had eased some of the scarcity issues and that the Fairness Doctrine might be chilling speech by keeping broadcasters from addressing important issues out of a reluctance to represent both sides. In August 1987, the FCC repealed the Fairness Doctrine.

Did ending the Fairness Doctrine give birth to conservative talk radio?

Some observers have long held that the end of the Fairness Doctrine helped usher in the era of conservative-dominated talk radio by ending the requirement of editorial balance. Under the doctrine, Limbaugh’s conservatism would need a counterpoint, and positioning a radio station format solely toward a conservative audience would have been impossible.

That’s not quite accurate, according to Andrew Schwartzman of the Media Access Project, a non-profit media and telecom law firm.

The major reason for the rise of national talk personalities like Limbaugh, Schwartzman believes, was a change in the cost of national satellite distribution. Syndicated programming meant that stations no longer had to develop their own local talent. Instead, they could simply bring in national voices that had already proven themselves in other markets for less money. Those national voices belonged to the most successful talk hosts, many of whom were conservatives.

“Rush Limbaugh was around before 1987,” Schwartzman said. “In the 1980s what really happened was national syndication and it happened in a big way.”

The Fairness Doctrine, however, was not forgotten. Congress twice tried to reestablish it — in 1987 and later during the George H.W. Bush administration — but both efforts ran into presidential opposition and failed.

Whatever the reason, the news/talk radio format took off in the 1990s. According to one industry data base, there were about 360 news/talk stations in 1990. Today, there are more than 1,300.

Why are people arguing over a rule that hasn’t existed for 20 years?

In late June, a confluence of events suddenly pushed the long-buried Fairness Doctrine back into the media spotlight.

For one thing, The Center for American Progress, a liberal advocacy group, released a report on June 20 headlined, “The Structural Imbalance of Political Talk Radio.” It concluded that among the top five radio station owners “91% of the total weekday talk radio programming is conservative.”

Around the same time, a number of talk hosts, predominantly conservative, mounted an aggressive campaign against the immigration bill supported primarily by President Bush and a coalition that included Senate Democrats and some Republicans. After a bitter legislative battle, the measure died in the Senate on June 28, and some of the talkers openly celebrated that result on the air, even taking credit for helping make it happen.

The talk hosts’ role in the immigration debate got some Democrats talking about a possible return to the Fairness Doctrine. In a June 25 interview with Fox News, California Senator Dianne Feinstein said she was “looking at” bringing it back. Two days later, a Capitol Hill newspaper quoted Illinois Senator Dick Durbin saying it was “time to reinstitute the Fairness Doctrine.”

Even some conservative Republicans expressed frustration with the radio hosts. Appearing with Feinstein on Fox News, Mississippi Sen. Trent Lott uttered the memorable statement that “Talk radio is running America. We have to do something about that problem.”

Given those comments, some in Congress decided to move preemptively. On June 28, the House (by a 309-115 vote) passed a measure pushed by Republicans that would deny the FCC the money to implement the Fairness Doctrine, should it be reinstated.

Schwartzman said the recent Fairness Doctrine furor has a lot to do with constituent politics. While liberals are making their “ritual remarks” about restoring it, in part to please their base, conservatives are seizing on those remarks for much the same reason, he said.

What are the chances the Fairness Doctrine will be coming back soon?

Even according to some Democratic lawmakers who have expressed interest in the issue, there isn’t significant momentum for a revival of the Fairness Doctrine.

A spokesman for Feinstein said there is no pending legislation, no scheduled hearings, nor any meetings related to the subject. On the House side, a spokesperson for Democratic Ohio Congressman Dennis Kucinich, who heads the subcommittee with authority over the FCC, also said no action is pending in that body.

The Center for American Progress, which issued the report asserting that talk radio is ideologically tilted to the right, is not calling for a reinstatement of the Fairness Doctrine. The group, which said the repeal of the doctrine is not an adequate explanation for the dominance of conservative talk, focuses more on the issue of the conglomeration of media ownership as a cause.

Tom Taylor, publisher of a radio industry newsletter, has no doubts about the Fairness Doctrine’s ability to stir passions. “You think the Israeli-Palestinian conflict is full of hard feelings,” he said, “you watch what happens if you try to hold a hearing on the Fairness Doctrine.” However, for all the rhetoric floating around, Taylor believes there is virtually no likelihood of a legislative effort to revive it.

Taylor said that even if the doctrine were reinstated, it wouldn’t “hush Rush.” Conservative and liberal talkers wouldn’t be required to introduce balance into their own programs. Rather the stations that air those shows would have to allow opposing views to be heard at some point in the day. (And that could be in the wee small hours of the morning.)

“Let’s just be kind and say there is some bad information floating around out there,” Taylor said. “But, you know, it sure is a great topic for talk radio.”

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