Thursday, March 14, 2019

Who says life has to be fair? The rise and fall of broadcasting’s Fairness Doctrine

Presented to the Club on Monday evening, January 14, 2019, by Brad Spear

The headline in the Saturday, December 22 Washington Post article said it all, “‘This Is Tyranny of Talk Radio Hosts, Right? ‘: Limbaugh and Coulter Blamed for Trump’s Shutdown of Portions of the Federal Government.” Here we are 23 days later, and the “partial shutdown” of the federal government continues.

Two days before, conservative radio talk show host Rush Limbaugh and conservative podcaster Ann Coulter separately ridiculed the President over a compromise that had been reached with Senate Democrats to avoid a government shutdown by partially funding the construction of a wall at the Mexico-US border. Upon hearing the ridicule, Mr. Trump suddenly reversed his position, thereby closing the federal government on Friday, December 21. According to the Post article, CNN commentator Jeffrey Toobin was quoted as saying, the reason for the President’s reversal of position was because Limbaugh and Coulter “had questioned his manhood.”

Have these two pillars of right-wing talk radio always had such sway over the nation’s affairs? The answer is “no;” at least not until the repeal in 1987 of a longtime tenant of American broadcasting: the Federal Communications Commission’s “Fairness Doctrine.”

As a graduate student at Syracuse between 1973 and 1974, I and my classmates in the graduate program spent many an hour in class learning the niceties of the (then current) Fairness Doctrine…along with the significance of the personal attack rule (and the right of broadcast reply) that arose from a judicial ruling known as the Red Lion case and the equal time provision accorded qualified political candidates in Section 315 in the amended version of the Federal Communications Act of 1934. But rather than focus on dry case law and an examination of a section of a federal act no longer in effect, I’d rather turn your attention to the birth, the life, the death and the current impact that the Fairness Doctrine has had over the years.

Wireless radio (and its offspring, television, delivered over the air, via cable, satellite, or streamed over the internet) is barely 120 years old. Guillermo Marconi, with the backing of the British Royal Post Office, began transmitting wireless messages over a 12-mile span of British countryside in 1897.

By the early 1920s radio broadcasting had developed in earnest worldwide. In 1927 Congress made a fateful determination: like publicly owned grazing lands out West, the entire radio spectrum within the confines of America’s borders was the property of the American people. And the administration of this public property through the issuance of time-limited broadcast licenses was given over to an entity dubbed the “Federal Radio Commission.”

The purpose of this commission, first and foremost, was to assign frequencies and allocate transmission power limits that would prevent one station interfering with the reception of a distant station on the same frequency. This recognition of the technical limitations of the medium established an important principal: that of scarcity.

In the beginning the Federal Radio Commission had no charge toward reviewing the content of programming, other than reviewing during the license renewal process after the fact the performance of the licensee in presenting programming that served the public’s “convenience, interest, and necessity.”

With the advent of the Roosevelt Administration in 1932, Congress in 1934 transformed the Federal Radio Commission into the Federal Communications Commission. One of the FCC’s first actions was to respond to a federal court finding that the Mayflower Broadcasting Corporation of Boston had failed to serve the public’s interest through the broadcast of nothing but conservative viewpoints on issues of public importance. According to the first chairman of the FCC, radio’s dependence upon the sale of advertising as its sole source of support was causing the medium to become overly commercialized and biased toward business-friendly conservative viewpoints.

As a result, the FCC issued the “Mayflower Doctrine,” which required broadcasters “to allot a reasonable amount of time to…controversial issues and…to seek (and) provide…all responsible shades of opinion.” It also went on to prohibit radio broadcasters from issuing editorials. The radio industry howled and insisted that the Mayflower Pronouncement was a violation of statutory prohibitions against censorship. But it stuck.

The second world war came, and the FCC policies and practices became nearly unassailable. By war’s end the American public had been exposed to the power and influence that government-produced domestic media had had on pre-war Germany. Josef Goebbels’ polished single-point-of-view manipulation of Germany’s radio and film industries contributed to the loss of millions of lives.
Regardless, the broadcasters began to push back, insisting that the Mayflower Doctrine was an infringement of their First Amendment rights. Defenders, on the other hand, considered it a necessary safeguard for society.

After three years of unrelenting industry pressure, the FCC agreed to hold hearings on the legitimacy of the Mayflower Doctrine. In late March and early April of 1948, forty-nine witnesses appeared to testify either for or against the doctrine. The FCC waited over a year to issue a subsequent ruling. In June of 1949, the Mayflower Doctrine was repealed.

However, not long thereafter the FCC issued a report entitled In the Matter of Editorializing by Broadcast Licensees. The report led the FCC to reaffirm its authority to protect the public’s “convenience, interest, and necessity” through both the medium of radio and the growing new medium of television. In early 1950, the FCC established the Fairness Doctrine, which required radio and television broadcasters to present issues of controversial importance and have all sides fairly represented in their presentation (akin to the Mayflower Pronouncement). But the Fairness Doctrine went on to grant broadcasters the right to editorialize for the first time, so long as editorials were identified as such.

In reviewing the renewal applications of broadcasters every three years, the FCC determined whether the licensee had been proactive and had exercised good judgment in selecting representatives from all sides in the presentation of controversial issues. After all, the stated purpose of the Fairness Doctrine was to stimulate fair debate and to help create a well-informed electorate.

Over the next 35 years the Doctrine and other practices of the FCC were the subjects of considerable debate at the Congressional level. The National Association of Broadcasters, an interest group representing both radio and television owners, grew wealthy as their constituents grew wealthy. The question of deregulating the whole of American industry arose in earnest during the Carter administration, and broadcasting was part of the discussion, as well.

And along came the Reagan Administration.

Ronald Reagan had risen in the 1940s as a B-movie leading man. A confirmed Democrat, he served as the president of the Screen Actors Guild, one of the film community’s labor unions, from 1947 to 1952 and again for another eight months from 1959 to 1960. During that same period, he served as a public spokesman for General Electric, for his film career was in decline. He left the Democratic Party in 1962, declared himself a conservative Republican, and worked diligently to support the presidential run of Barry Goldwater in 1964. When that failed, he succeeded the Old Ranger as the host of a TV western anthology series, “Death Valley Days.” After only a year, he left the show to run for governor of California. There he succeeded, serving in that capacity from 1967 to 1975.
When Reagan defeated Jimmy Carter’s re-election bid in 1980 and became President of the United States, he brought to the White House a sizeable group of supporters who had made their individual fortunes in the booming California real estate business. One of the first places the effect manifested itself? At the FCC of all places.

Before the Reagan Administration (as mentioned earlier) a broadcast license required renewal every three years. In addition, there were limits on the number of radio and television licenses any entity could own: 5 AM and 2 FM licenses, and 5 VHF (channels 2 to 13) and 2 UHF (channels 14 to 83 — and an entity could own only 1 TV license, 1 AM license, and 1 FM license in any market). At the time the income from these licenses, strategically located in in the nation’s top 10 markets, provided enough revenue to underwrite the cost of CBS, NBC, and ABC’s network functions, including their national and international news operations.

Before the advent of the Reagan Administration, trying to sell a broadcast license required a considerable commitment of time and resources; it was a lawyer’s field day. The sale of Hartford’s WTIC-AM and FM and its VHF television license by the Travelers Insurance Company in 1974 to the Washington Post broadcast division required three years to complete: one year for the television license to be sold to the Post, and another two years for the AM/FM license to be transferred (at the FCC’s insistence) to a locally controlled entity known as the 1080 Corporation.

The FCC under Reagan in 1981 reduced the amount of time and expense required to sell a broadcast license to roughly six months, which introduced a “real-estate” style of property speculation that had characterized the boom years of the California real estate business: buy a run-down station, fix it up, build its audience, sell it at a considerable profit, and enjoy the capital gain. With Reagan’s FCC raising the TV and Radio ownership cap to 12, so long as the total national viewership of the 12 TV stations did not exceed 25% of the national audience, building wealth through capital gains has been the name of the game in broadcasting ever since.

The Reagan FCC also in 1981 lengthened the time a television license could be held from three to five years and the length of time an AM or FM radio license could be held was stretched to seven years. Later, during the Clinton Administration in 1996, both TV and radio licenses were lengthened to eight years.

Today the FCC does not limit the number of TV stations a single entity may own nationwide so long as the stations collectively reach no more than 39% of all US TV households. An entity can own more than one TV station in a market so long as 8 independently owned stations remain after the combination is made.

In those markets with at least 20 independently owned “media voices,” full power radio and TV stations, the cable system in the market, and a major newspaper, any entity can own either two TV stations and six radio stations or one TV station and seven radio stations. Smaller markets have smaller ownership caps.

And radio-only ownership restrictions are similar and based on a sliding scale that varies by the size of the market. For instance, in a market of 45 or more stations (Boston, the tenth largest market is home to 45 commercial and non-commercial AM and FM signals), a single entity can own up to eight stations (with neither AM nor FM ownership exceeding 5).

With the advent of digital television broadcasting and HD radio on both AM and more widely on FM, each broadcast license is now capable of generating up to three sources of programming on radio and up to 7 on TV. While ownership has become more concentrated, the capacity of each medium has expanded considerably.

Throughout the Reagan Administration, broadcasters began to lobby for the dissolution of the Fairness Doctrine. With their newly expanded licensing periods, a sense of entitlement began to develop among broadcasters and the license renewal process by a more laissez faire FCC became less feared. The nation’s passion for deregulation had firmly taken hold at the FCC, which in 1985 issued an order raising two significant questions: would the marketplace become sufficiently competitive with the anticipated development of cable-only television services (consider outside the purview of the FCC) to permit the repeal of the Fairness Doctrine, and had previous enforcement of the doctrine actually chilled rather than encouraged free speech?

The FCC noted that as media outlets of any sort proliferated, the constitutionality of the Fairness Doctrine as applied to the scarcity of broadcasting outlets was becoming increasingly suspect. Was the enforcement of content fairness and balance with one among many new voices not subject to license renewal, a service or disservice to the general public?

Reagan’s FCC also examined the effect of Fairness Doctrine enforcement on the behavior of radio and television broadcasters. Under previous administrations most cases had concentrated on whether broadcasters had failed to present all valid viewpoints on a controversial issue. The Reagan Administration contended that broadcasters had figured out a way to beat the system. You wouldn’t suffer the expense of having to defend your license if you simply avoided raising controversial issues in the first place. Was the enforcement of the Fairness Doctrine having a detrimental effect on the amount of time dedicated to the coverage of controversial issues?

Raising these issues at the FCC led John Dingell, a Democratic representative from Michigan, and Fritz Hollings, a Democratic senator from South Carolina, to introduce legislation in their respective chambers that would codify into law the basic provisions of the Fairness Doctrine.

In response the FCC declined to repeal the Fairness Doctrine in 1985, electing instead to wait for further guidance from Congress. The Dingell-Hollings bill eventually passed both the House and the Senate in early 1987 and landed on President Reagan’s desk in late June. He promptly vetoed the measure, stating he considered the Fairness Doctrine unconstitutional. Neither the House nor the Senate could muster the votes necessary to override the veto.

The regulations at the FCC pertaining to the Fairness Doctrine stayed on the books unenforced from that day forth. Today the regulations no longer exist. They were swept off the books by a larger effort during the Obama Administration to decommission regulations at all federal agencies that were no longer being enforced.

From time to time, voices in Congress will raise the cry, “Bring back the Fairness Doctrine!” Questions worth pondering: do we need a new iteration of the Fairness Doctrine? Has our current marketplace of ideas become so skewed and riven with strife to merit such a move?

Since the Reagan Administration, I have long thought that we needed a new Fairness Doctrine, one applied to all media voices that depended upon the people’s spectrum to deliver its programming (even though cable delivered programming has long been exempt from FCC oversight, the entire cable delivery system, from TV studio to your living room television, utilizes terrestrial microwave and C or Ku band satellite transmission, all FCC licensed components, and all subject to renewal on a regular basis).

But late last fall, while watching an MSNBC evening broadcast by Rachel Maddow and thinking about the topic of this paper I’m delivering tonight, a thought struck me: the model of Maddow’s presentation is so very close to that of her radio antithesis, Rush Limbaugh. There was Rachel, making some point that I agreed with (I’m certain of it), but where was the counterpoint?
Right wing broadcasting, despite their claims to the contrary, attracts a remarkably small audience. An evening of prime-time programming on Fox New Channel attracts an average audience of 2.42 million viewers; the average audience for an hour-long episode of “Wait, Wait; Don’t Tell Me” on public radio every weekend is over six million listeners. Fox News Channel, it appears, is a notably small giant among midgets.

Likewise, the weekly audience for Rush Limbaugh, the radio commentator whose visceral reaction to Trump’s compromise with House Democrats led to the shutdown of the federal government, is 13 million. The weekly audience for NPR’s Morning Edition? 13 million.

Maybe Reagan’s FCC was right. The proliferation of channels might obviate the need for a new Fairness Doctrine.

Also, consider the fact that most of our media resources are slowly gravitating to a single, unregulated means of delivery, the internet. Given the global reach of the internet, soon it will be nigh unto impossible to regulate content. At this very moment, the signal of a locally broadcast right-wing radio station from any given market is competing over the internet with a direct feed from London of the BBC World Service. Correspondingly, the internet streaming of the TV signal for Fox News Channel is competing with the streamed signal of RT (Russia Today).

Given the political divisions that exist in the United States today and given the Republic Party’s historical animosity toward the Fairness Doctrine, the notion of reinstating the doctrine through either regulation or legislation is little more than a wishful fantasy.

There are measures, however, that might stimulate more balanced coverage both in the short and in the long run. Return to the ownership limitations of an earlier era: one owner per station per market, either TV or radio, and a maximum of five radio stations and and/or five TV stations nationwide. Given recent technical developments in digital TV and HD radio broadcasting, each TV station has the potential of broadcasting seven video signals, and each radio station has the potential of broadcasting three audio signals. Just how many stations in each market controlled by one owner is enough? Decentralize the program decision-making by reducing the concentration of ownership. The Rush Limbaughs will still be there, but many more station programming executives will have to be convinced to broadcast the program.

Also reduce the length of the license period for both TV and radio to the original three years, and in doing so, at license renewal time require the licensees to demonstrate that they have been operating their broadcast station in the public’s convenience, interest, and necessity.

The broadcast industry will certainly oppose such measures. But expanding the marketplace of ideas is something both political parties have supported in the past. The NAB, the lobbying arm of American commercial radio and TV broadcasters, wields considerable political clout. But as alternative sources of content arise, the NAB’s influence will no longer be what it once was.
American radio and TV’s contribution to our politically divided electorate won’t be staunched by reinstating the Fairness Doctrine but by busting up the concentration of media ownership. More programming decision makers are needed in our increasingly interconnected media environment, not fewer — all in the name of the public’s convenience, interest, and necessity.

Photo Credit: Scales of Justice by Michael Coghlan, used under Creative Commons License.

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