Fairness Doctrine Demise Gives Rise to the Public Interest

August 25, 2011

Wednesday, August 24, 2011, the FCC made it official: the Fairness Doctrine is dead and buried.

But shed no tears: the FCC also made it clear that the broadcasters' obligations to the "Public Interest" are alive and well!

The announcement about the final elimination of the Fairness Doctrine, (first made Monday but not officially codified until Wednesday,) came as no surprise to this writer. The rule, which provided that radio and TV stations must "provide coverage of vitally important controversial issues of interest in the community served by the station; and afford a reasonable opportunity for the presentation of contrasting viewpoints" was abolished by President Reagan's FCC in 1987, but the language still remained in FCC literature. President Obama has repeatedly said he did not support it, and the FCC, in its "Information Needs of Communities" report released June 9, 2011, specifically called for Fairness Doctrine language to be removed from its books. Even FCC Commissioner Michael Copps, a stalwart supporter of protecting the public interest, has told me for years that the Fairness Doctrine was, as he put it Monday, a "dead letter." 

It's not like there's been any serious talk about restoring it, (although Newt Gingrich supported the restoration of the Fairness Doctrine back in the Reagan years.) These days the only people really talking about restoring the Fairness Doctrine were former right wing radio talk host Mike Pence, R-IN, who sponsored the Broadcaster Freedom Act , and right wing radio talkers like Sean Hannity, who have spent years on radio microphones trying to make the Fairness Doctrine a boogey man to the American people.  

That's not to say the demise of the Fairness Doctrine did not have an adverse effect. I produced public affairs programming under that rule at KCBS-TV in Los Angeles, and found it very workable. I did not have to tell both sides of the story, I just had to try to do so. I also witnessed how, once it was abolished, TV programs that covered the local community just disappeared. And on the radio side, once the Fairness Doctrine went away, there is little question that Rush Limbaugh went hard right on a national microphone, attacking Democrats and anyone else who gets in the way of his pro-corporate right wing agenda. Copycats soon moved in, creating an industry of right wing propagandists. In 90% of radio programming today, no real debate is allowed (unless a brave or committed few sneak past the microphone hoarders' screeners.)

But the Fairness Doctrine wasn't perfect. Part of the problem was it employed a top down approach, with Big Daddy Government putting broadcasters in the untenable position of being liable for lawsuits even over content in comedy programs. (CBS was sued under the Fairness Doctrine when the Norman Lear character Maude had an abortion in the TV show of the same name; opponents sued, saying CBS must do other shows where women did not have an abortion.) Rather than face such reprise, some broadcasters chose not to cover any controversial issues at all, which many argue chilled debate rather than engendered it.

In August, 2011, the final nail has been pounded into the coffin of the Fairness Doctrine.
But there is much to celebrate about Wednesday's rule change. The FCC ruling shows the agency clearly understands that broadcasters do have an obligation to "serve the public interest," which is critical. Note the following language in today's official ruling: 

"[T]he FCC reasoned that the doctrine imposed substantial burdens on broadcasters without countervailing benefits. As a result, the FCC concluded that the doctrine was inconsistent with both the public interest and the First Amendment principles it was intended to promote.”

So what "Public Interest Obligations" do broadcasters have? In January, 2009, as noted by Brad Friedman in BradBlog.com, President Obama noted on the White House Technology page his goal to "clarify the public interest obligations of broadcasters who occupy the nation's spectrum." But two and a half years later, neither the President nor the FCC has defined such obligations of broadcasters.

So now, based in part on the FCC Information Needs of Communities report which recommends citizen involvement in the process, there is a new movement for citizens of communities to define their own public interest obligations and demand them from their local broadcasters.

It starts with the understanding that We the People legally own the frequencies over which TV and Radio stations broadcast. There are only a few such frequencies in any given community, and it is their scarcity which makes broadcasting unique and subject to government oversight. As stated last month in a Third Circuit Court of Appeals decision, 

"We agree with the FCC that the rules do not violate the First Amendment because they are rationally related to substantial government interests in promoting competition and protecting viewpoint diversity."

People need to understand that broadcasters only receive licenses to broadcast IF they "serve the public interest." Those licenses only come up for renewal once every eight years. It happens that those licenses are coming up on the radio side on a rotating basis across the country starting now through July 2014; on the TV side, they come up for renewal starting September 2012 through July 2015. If stations clearly are not serving the public interest, those licenses can be legally challenged within that time frame and should be rescinded, giving new broadcasters opportunities to both make the big bucks broadcasters do (TV stations are making as much as 46% profit, according to the most recent report issued by the FCC) and serve the public interest at the same time.

But the public needs different things in different communities. For example, are radio stations in tornado country airing tornado warnings? They should; such announcements are absolutely neccesary to public safety, but not all stations do so. During elections, should every talk radio station in one community provide opportunities for citizens to evaluate various political agendas? That would serve the public interest far better than the one-sided "conservative" political agenda that, according to a Free Press/ Center for American Progress study is promoted in 90% of radio stations throughout the country today.  And what about two TV stations in the same town sharing just one newsroom, firing all the reporters at the other? Such arrangements may benefit shareholders, but does it serve communities' needs for more and better local journalism? 

This is not to say the only way to get broadcasters to serve the public interest is by filing legal challenges to their licenses. The Sacramento Media Group, affiliated with Common Cause, has successfully employed a model of knocking on TV stations' doors, asking for five minutes of daily political coverage on TV during election season. It took meetings with station management making that request, monitoring stations' coverage for three election cycles, writing several reports and releasing them to local newspapers (which caused the stations considerable embarrassment.) But today, SMG has found success. Their next goal is to ask local Talk radio stations for balanced political coverage, again during election seasons.

At the end of the day, the publicly owned airwaves are about public safety, about community, and about ensuring First Amendment rights for everyone in the public square of broadcasting. Luckily, the Supreme Court is on our side. In Red Lion Broadcasting v FCC, the Supreme Court held that

"the First Amendment is relevant to broadcasting, but it is the right of the viewer and listener, not the broadcaster, which is paramount."

That's the First Amendment Right of all the viewers and listeners, not the just ones who listen to the most profitable formats for corporations.

There is much energy around restoring the Public into the Public Interest.   A grassroots movement started earlier this year in Florida, when the UU Legislative Ministry supported an 11 city media reform tour featuring Broadcast Blues.

But it is really finding its legs next month with the 2011 Wisconsin Media Reform Tour featuring Broadcast Blues.  (Broadcast Blues is the 2009 documentary film I made which delves into issues of Public Interest Obligations of broadcasters. ) Thanks to the organizing efforts of local folks, I'll be traveling to eight cities in Wisconsin, showing the film, then surveying citizens as to their specific public interest needs. Next, we'll work on how they can approach their local broadcasters, not just by email, but with personal visits, and convey to the broadcasters what they need. In some cases, friendly visits will get great results: heck, the manager of the station could be somebody you went to high school with. But other times, protests, boycotts, maybe even legal petitions to deny the stations' licenses may need to be filed.

We'll do whatever it takes to restore the public – all the public – into the public interest obligations of broadcasters.

But unlike the Fairness Doctrine, this is a bottom up approach. This is "We the People" holding both broadcasters - and the FCC accountable to us. We are taking back that which we already own: our public airwaves.