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?