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Fairness Doctrine is Ruse

Posted by aurorawatcher on Friday, September 04, 2009 12:23:38 AM
I believe that most of the argument over the Fairness Doctrine is a ruse to keep our attention off the far more insidious and much more likely backdoor regulation that's being considered.

In a June 2008 debate before the conservative Federalist Society, former FCC chief Reed Hundt, serving as a surrogate for Obama, said the then-candidate "doesn't think there should be any more media consolidation until new policies are developed to promote diversity and localism." (emphasis mine). Obama himself co-sponsored a bill in 2007 to prevent the FCC from loosening the rules restraining newspapers from owning broadcast stations and vice versa.

Meanwhile, out in the marketplace, the media have been going through a wave of, mostly market-driven, deconsolidation. In 2008 CBS announced plans to sell off 50 radio stations. Clear Channel, the biggest radio chain, put more than 400 stations up for sale in 2006. Time Warner has been spinning off properties for years.
 
Frankly, I find it weird to work up a sweat about media monopolies at a time when the media themselves are sweating over the new forms of competition they're facing, especially when media reformers didn't appear worried about media consolidation in the 1990s when AOL Time Warner stood like a colossus atop the horizon.

The persistant concern with consolidation would be harmless, even productive, if it manifested itself as a sustained effort to let more people onto the airwaves. We don't appear headed in that direction, however, as an FCC on the prowl against "media monopolies" is more than willing to interfere with future mergers not to block mergers per se, but to extract concessions from the merging companies.

In 2007 America's two satellite radio companies, XM and Sirius, asked the government for permission to merge. Thirteen months later, the Federal Trade Commission approved the deal. Four months after that, the FCC also agreed to the merger, but it attached some conditions to this union. Among other concessions, the combined company would have to cap its prices for three years, extend its service to Puerto Rico, and offer "à la carte" programming packages in which customers can unbundle their subscriptions and pay only for particular channels. That's right, the FCC imposed new controls on a single business without the rulemaking procedures that are ordinarily required before regulations can be adopted. In doing so, the FCC may have found a way around institutional impediments to its power. The "à la carte" proposal, for example, received fairly widespread support from those who saw it as a good way to help viewers avoid indecent programming, but it was less popular among the people who run niche channels (like the minority broadcasting community) because it will cut into their potential audiences. Last I knew, thanks to public outcry, the Bush administration failed to make this law, but if it can be imposed on enough cable companies through the back door, a formal change to the federal code might not be necessary.

Recognize that this is not a new threat. The Bell Atlantic/NYNEX merger of 1997 started the ball rolling; the companies "voluntarily" embraced a series of conditions before the FCC approved the merger, making it seem like it was their idea. The FCC has grown more brazen since then, as commissioners from both parties learned to love the process. With bipartisan backing, no major politician is likely to restrain them, let alone that very political animal, Barack Obama. The industry hasn't protested much either. When the government imposes company-specific laws, you can divide most businesses into those that have managed to survive the process and those that aren't affected by the conditions.

The good news is that the commission refrained from restricting what XM/Sirius could actually put on the air. (Clear Channel, for example, had asked the FCC to bar the satellite network from offering any local content, thus insulating its terrestrial stations from space-based competition.) But as these back-door regulations grow more common, it's easy to imagine a future commission insisting that, say, a media conglomerate submit its cable channels to the same indecency rules imposed on over-the-air stations.

When I was taking my media law classes, it was fairly easy to divide the broadcast issues at the FCC from the other areas it regulated. That was pre-Internet, when you might find yourself receiving TV shows over your phone lines. Today, some of the most intrusive restrictions on broadcasting aren't even enforced by the FCC. It's the Federal Election Commission that restricts the content of paid political speech during a campaign, and it's the Copyright Office that imposes onerous fees on Web radio stations, threatening to drive the entire industry off the Internet. Within the FCC, the issues surrounding broadband deployment could become a foothold for controls on online expression. Consider the adventures of M2Z, a California-based company that wanted to build an ad-supported national broadband network in which consumers could pay extra for speedier connections. In 2007 it asked the FCC to grant it the spectrum for free. When the commission refused, the company sued to overturn the decision. Kevin Martin, a Bush appointee, proposed another sort of back-door regulation: The government would auction off the spectrum, but it would attach conditions on how those airwaves could be used—conditions that happen to dovetail with M2Z's original business plan. You needn't be a fan of the wireless industry (they're not exactly free market heroes) to appreciate how inappropriate it is for the government to tilt the scales in a single firm's favor, but wireless companies, supporters of equal treatment and civil libertarians were all aghast because Martin's conditions included a requirement that the auction winner filter pornography from its free tier of services.
 
I'm not exactly an advocate for unfettered broadcast. I believe that, if the airwaves belong to the people, the people (all of us) should have some say in the content broadcast on the airwaves. That necessitates some regulation because, unfortunately, most media companies seem unwilling to police themselves on issues of pornography and violence. The attitude remains that those who object should just not watch TV or listen to radio and stay off the Internet too. I disagree with attitude, because -- well, if the public owns the airwaves ....
 
However, I see great danger in the current affairs at the FCC, because when the FCC starts granting favors to companies in exchange for regulatory concessions, it's just a matter of time before those regulations include restrictions on speech. Although President Obama has proven rather foolish about what he's willing to do to bring about his agenda, it still seems unlikely that he would waste political capital on bringing back the Fairness Doctrine -- at least, not under that name. That would be inviting a fight with a big, noisy enemy that's able to instantly mobilize an army of already frustrated listeners. After health care reform, I don't think he'll have enough political gas to go after such a large target. However, the real danger is more subtle and mundane. Bipartisan bureaucracy is slowly, steadily increasing its power. As the miners of Kantishna, Alaska, can tell you, bureaucracy is far more deadily to liberty than are laws and there are no checks and balances on bureaucrats. While Alaskans dealt in what they thought was good faith on the D2 lands debacle, the bureaucrats set up impediments to mining that proved insurmountable and they continued to move the goalposts everytime Kantishna miners got close to them.
 
While our minds are on the Fairness Doctrine, the bureaucrats' minds are on regulation of speech. I believe most conservatives recognize that, while most liberals just want everything to be "fair". What is fair? Well, I think fair is a right to an open and civil conversation in the public square. Everyone gets a chance to speak and everyone has to listen respectfully, but then they get their time to talk as well. Those with the best ideas win. To my liberal coworker, however, fair is not hearing any opposition to her ideas. She is, after all, right and anyone opposing her is incorrect, so therefore, should not have a voice in the public square.
 
So, when some ask for the return of the Fairness Doctrine, I always want to ask:
 
      Is silence fair?
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History and the Fairness Doctrine

Posted by aurorawatcher on Wednesday, September 02, 2009 1:27:21 AM
For those of us who have actually studied the Fairness Doctrine, it is manifestly clear that it was anything but fair. Like a lot of really high-sounding legislation and regulation, it had consequences. While obstensibly suggesting that it protected the rights of all opinion holders to state their opinion, it actually resulted in a silencing of opinion because broadcasters were afraid of being deemed "unfair and imbalanced" and therefore, simply avoided public opinion of all kinds. Unfortunately, the news itself is often biased. Today, we have a plethora of media to balance one another out, but under the Fairness Doctrine those who recognized that the network news was biased were not afforded a voice to state their evidence and evaluation. For example, Walter Cronkite (who was, and still is, a personal hero of mine for the fine reporting of his early career) did not like the Vietnam War and reported it in such a way that public opinion was swayed against it, up to and including convincing the American public that we were losing the "police action" when in fact, as we later were told by the Vietnamese government, we were within weeks of winning the conflict when we began to withdraw our troops and left our allies without backup, assuring the enemy victory. There were American observers who at least suspected this, but the network broadcasters and most local outlets would not give them air time because of the chilling effect of the Fairness Doctrine.
 
There are those who assert today that this would not be the case; they often claim "right-wing" power brokers have a stranglehold on the US media. For conservatives, however, we often find that we tune into MSNBC, CNN, NBC, CBS, and ABC to find extremely liberal points of view and unbalanced news coverage. Fox News is the only major news network that presents anything close to the conservative view of today's events. I do know that liberals want to believe that Fox News and talk radio tell conservatives what to believe rather than covering news that the other news outlets ignore, but that's exactly the reason why I have difficulty talking to most liberals. They automatically assume that conservatives aren't very bright, based only on the evidence that our opinion differs from theirs. They seem never to ask themselves if perhaps their opinion is based upon false or prejudiciously-presented information and they are quite unwilling to challenge their own prejudices and actually watch, read, listen to, or entertain any information or opinion that disagrees with their established thinking.
 
I understand this mindset. I was trained to ask "what's the other side of the story" and often under the Fairness Doctrine, I would suspect that information was wanting, but it was only a suspicion. Surely other journalists were as ethical in presenting the news as I was. Well, not so much. My first real taste of this came during the Alaska D2 lands controversy. It absolutely amazed me how the networks presented only part of the story. By the time I got my degree, I knew that somehow the major outlets really didn't understand Alaskan politics and it seemed like they just needed to get the full story. Then I started hearing from friends who had taken jobs in the Lower 48. It was not for want of information that the media portrayed a land grab as an environmental issue. The regulators were actually gigging Alaskan miners for being environomentally conscience prior to the regulations being in place. Reporters knew this and refused to report it. When reporters like myself tried to bring the other side to light, we were shut out as giving an opinion rather than presenting the full news. The Fairness Doctrine was the duct tape our opponents used to keep the full truth from getting out.
 
Having done my homework, I know that there are interest groups who seek the re-establishment of the Fairness Doctrine for whom fairness for all is anything but the goal. The broad spectrum of these groups appear to be at odds with one another, but their ultimate goal seems aimed at the same target -- control of the media and the message. A loose coalition of liberals bills itself the "media reform movement." Deceptively influential, its members are rarely the most powerful people in the room, but they inevitably shout the loudest, casting themselves as beleaguered populists fighting the major media corporations, which they accuse of centralizing power and shutting out dissident perspectives. In their more libertarian moments, they'll call for opening up more spectrum, loosening copyright controls, and rolling back culturally conservative restrictions on speech. Then they'll turn around and support a host of new economic regulations and speech controls.  Some claim to prefer broad and simple rules aimed at encouraging innovation, not dictates meant to force a specific outcome, but you can find out what they really want by digging into their testimonies before regulatory boards and their own publications.
 
President Obama was a 20-year member of Trinity Church, which is affiliated with the United Church of Christ, which has been heavily involved in the media reform movement, including a reimposition of the Fairness Doctrine to assure that "minority" points of view will not be overwhelmed by larger voices.
It's also worth noting, that while these reformers claim to be champions against the media industry, their goals are not always at odds. In fact, there have been a number of back-door deals over recent years that have allowed media industry expansion while also giving concessions to the reformers. The FCC is often controlled by party politics. While obstensibly an independent agency, the chairman and commissioners are selected and nominated by the president and, though they may vote however they please, they owe back-scratching services to the guy who buttered their bread.
 
So, while I've said I believe the Fairness Doctrine is unlikely to return from the grave in Obama's first term (let's hope, pray, implore heaven that he doesn't have a second one), I think many people succumb to looking at the shiny illusion when we really ought to be wondering what else the magician has up his sleeve. Although those of us who value balanced and open debate should not want to see a resurrection of the Fairness Doctrine, that's not the ace card. There are far more wide-ranging and insidious media controls on the horizon.
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Fairness Doctrine

Posted by aurorawatcher on Tuesday, September 01, 2009 2:31:35 AM
Let me preface this by saying that I hold a degree in Print Journalism and worked as a reporter for a small newspaper for a number of years, so while this is outside of my usual realm of discussion, it is not outside of my fields of expertise.  Aurora
 
First the good news: The fairness doctrine still has a stake in its heart. The doctrine, which until its demise 21 years ago was a rule that gave government the power to punish broadcasters for being "insufficiently balanced", is not likely to return, despite persistent rumors that the regulator's rotting corpse will crawl from its coffin and desanguinate Rush Limbaugh.
 
That's good news for talk radio fans and those of us who watch Fox, who worry that no salt has been sown around this demon. When the Federal Communications Commission enforced the doctrine (1949 to 1987) it was a convenient club for politicians and interest groups itching to silence their critics. I was a local news reporter in the 1980s and my friends in broadcast from that time tell me that they weighed, judged and usually rejected every political comment that came along for fear that someone would demand equal time. The early 1980s was the time of D2 lands and consideration of Alaskan cessation due to federal abuse of authority, but local broadcast stations hardly touched the topic hat most of the voting population of the state were discussing. There are some who believe that the Alaska Independence Party's original platform might have won out if it had had a truly public hearing. Instead, the topic was confined to bar rooms and the Borough Assembly chambers (that's like a county seat). That doesn't seem fair to many given that we are still dealing with D2 issues 25 years later.
 
During the last couple of years, House Speaker Nancy Pelosi and other prominent Democrats have publicly pined for a return of the Fairness Doctrine. It's a change that would effectively require any outlet that transmits, for example, Sean Hannity's show to either devote a chunk of its schedule to rebutting him or, more likely, dial back its political programs altogether. We'd go back to the days of self-help programming instead of political discussions. Pelosi's party hasn't come close to restoring the rule, but they've handed a powerful political weapon to the opposition: Every time the Dems raise the subject, right-wing radio shows and blogs broadcast the news to an increasingly-frustrated conservative base. In the midst of last year's presidential election, the conservative weekly Human Events warned that "liberals are chafing at the bit, waiting for regime change in Washington to give them the ability to reinstate the ‘fairness doctrine.' " Cliff Kincaid of Accuracy in Media—an organization that never shied from wielding the fairness doctrine against the left—fretted that "if Obama captures the White House and gets the opportunity to appoint the FCC chairman, liberals would then have a 3-2 majority capable of bringing back the Fairness Doctrine through administrative action, without the need for congressional approval."

Obama "promised" during the election that it wouldn't happen, stating that he did not support reimposing the Fairness Doctrine on broadcasters. That's good news if you believe him, but now for the bad news. There's a host of other broadcast regulations that Obama has not foresworn. In the worst-case scenario, they suggest a world where the FCC creates intrusive new rules by fiat, meddles more with the content of stations' programs, and uses the pending extensions of broadband access as an opportunity to put its paws on the Internet. At a time of increasingly diverse and participatory new media, we would essentially turn the clock back to the days when the broadcast media were a centralized and cozy public-private partnership.

Perhaps because of its more widespread nature, threats such as the above don't seem to rile the conservative base the way the fairness doctrine does. That may be because it's not altogether clear if the GOP would be any less intrusive in these areas. Republican Kevin Martin as chair of the FCC was no friend to either free enterprise or free speech, in the opinion of many (particularly Libertarian conservatives) and sharply increased federal restrictions on the media, targetting "indecent" broadcasting; new regulations for satellite radio, wireless phones, and other communications industries; and an attempt to assert unprecedented powers over cable TV. "Martin is the most regulatory Republican FCC chairman in decades," said Adam Thierer, director of the anti-censorship Center for Digital Media Freedom. "He wants to control speech and will use whatever tools he has to get there."

An Obama FCC may seem like a relative reprieve to some, following Martin's commission, because any appointee of his is more likely to ignore cultural clashes like pornography on media. On the other hand, a lot depends on the interest groups that have acquired the most influence in his administration.
 
That will be the subject of my next post.
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