Government in the newsroom

Published on July 19, 2007 08:28 AM
by Michael Schrimpf

File Under: Faulty Assumptions, Other, Press

Yesterday, former chairman of the Federal Communications Commission, Dennis Patrick delivered a provocative lecture on the origins, abolishment, and future of the Fairness Doctrine at the National Press Club. CCP was fortunate enough to have a front row seat for the lecture.  Below are highlights from Chairman Patrick's remarks:

"The origins of the Fairness Doctrine lie in the FCC's 1949 ‘report on editorializing by broadcast licensees.'  Over time it evolved to encompass two discreet elements:

(1) An affirmative obligation to cover controversial issues of public importance to the community; and

(2) A related "access" element requiring the broadcaster to provide a reasonable opportunity for the presentation of contrasting viewpoints on those issues, even if air time had to be granted for free.

Most would agree that the doctrine encompassed journalistic principles to which most broadcasters would subscribe anyway...

The problem arose from federal enforcement...by federal officials thousands of miles removed from those communities...

Radio and TV station owners quickly learned that license challenges thrived on controversial news coverage...When a broadcaster simply presented a modicum of bland, uncontroversial ‘top of the hour news', and some opinion on very safe issues, the requirements of the Doctrine were cheaply satisfied...License renewals were assured..."

While it was a safe and cheap strategy for broadcasters, "it was an expensive strategy for the public.  Because the cost to society included the issues not covered, the controversies not engaged, the information not conveyed...To avoid the tax, controversy was avoided and free speech was chilled..."

The constitutionality of the Doctrine was eventually challenged in Red Lion co. vs. FCC (1969).  The Court found that the editorial discretion of print journalist would never be tolerated under the Constitution but "the scarcity of radio frequencies" shielded "the doctrine from the First Amendment's blanket prohibition on federal abridgement of a free press.  In reaching its decision, the court relied heavily on the FCC's assurance that the net effect of the doctrine was to increase the coverage of controversial issues."

The Court, as if inviting reconsideration based on new or better data added:

‘if experience with the administration of these doctrines indicates that they have the net effect of reducing rather than enhancing the volume and quality of coverage, there will be time enough to reconsider the constitutional implications."

In 1985, in its fairness doctrine report, the FCC concluded:

"The Fairness Doctrine-in stark contravention of its purpose-operates as a pervasive and significant impediment to the broadcasting of controversial issues of public importance."

The commission's 1985 report also documented explosive media growth and questioned the scarcity rationale.

The FCC, despite acknowledging that the Doctrine was "terrible public policy and probably unconstitutional," bowed to political pressure and continued to enforce the Doctrine.

Soon, a broadcaster, Meredith in New York challenged an FCC ruling that found them in violation of the Fairness Doctrine.  Meredith petitioned for reconsideration by essentially saying "why are you enforcing a doctrine you believe disserves the public interest and is probably unconstitutional?"

The DC district court soon became involved and in January of 1987 directed the FCC to address the constitutional challenge.  In the meantime, Congress voted to codify the Fairness Doctrine, but President Reagan vetoed the bill.  It was clear, though, that members of Congress "supported the Fairness Doctrine because it gave them a federal club with which to discourage broadcasters from airing perspectives they found politically offensive."

Despite the political landmines, on August 4, 1987 the FCC unanimously recommended abolishing the Fairness Doctrine.  They found "overwhelming evidence that the net effect of the doctrine was to discourage the coverage of controversial issues...but the commission did not stop there.  The order challenged the underlying scarcity premise of Red Lion."

The underlying question was always does the Fairness Doctrine chill speech?  The answer is yes.

"In an exhaustive study, Drs. Tom Hazlett and David Sosa documented a dramatic increase in informational programming on radio after the elimination of the Fairness Doctrine.  Most impressively, the percentage of AM stations programming news, talk and public affairs jumped from just over 7% in 1987 to over 27% in 1995.  To put that in perspective, in 1975 there were no AM station in America with a news/talk format.  In 1995 there were 854...when discussion is tax free, it abounds."

Now, though, some members of Congress want to re-establish the fairness doctrine.  But Patrick seems clear that doing so would be a terrible idea.  According to Patrick, "the Fairness Doctrine was unconstitutional on its face."

And broadcasters are unquestionably part of the press.  "To suggest otherwise is to suggest the framers of our constitution intended to protect from federal coercion only those who used the technology of the day-a proposition absurd on its face."  It is also undeniable that the doctrine abridged speech by "directing broadcasters who chose to cover an issue, to cover both sides...After all, Alexander Hamilton in penning the federalist papers was not required to summarize the case for decentralized power...

Numerically, there simply is no longer any meaningful scarcity...In 1969 there were 6,595 radio stations in the U.S. Now there are 13,837.  In 1969, there were 837 television stations.  Now there are 1,756."  And as has been previously discussed the fairness doctrine decreased the supply of controversial issue programming.

"All regulations have unintended consequences-the Fairness Doctrine was no different...it was used by Democratic and Republican administrations alike as a tool to discourage the broadcast of objectionable perspectives...

An assistant cabinet secretary in the Kennedy administration was quoted on this point: 'our...strategy was to use the fairness doctrine to challenege and harass right wing broadcasters in the hope that the challenges would be so costly to them that they would be inhibited and decide it was too expensive to continue.'"

A former Nixon official at the Press Club also noted that the Fairness Doctrine was well-liked by Nixon's political people because it "put us in the newsroom."

In closing, Patrick left the audience with two important thoughts:

"It is worth noting that the cry to re-impose the Fairness Doctrine comes from inside the Washington beltway: from incumbents and professional policy wonks."

And

"The only thing worse than a media dominated by your philosophical opponents is a media regulated by the federal government."