Beyond the Fairness Doctrine

Barack Obama says he wouldn't reintroduce the Federal Communications Commission's most notorious speech-squashing regulation. But there are more mundane reasons to fear the next FCC.

First the good news: The fairness doctrine is still dead, and it probably will stay dead even if Barack Obama becomes president. The doctrine, a rule that gave the government the power to punish broadcasters for being insufficiently balanced, was killed off 21 years ago. It isn't likely to return, despite persistent rumors that the regulation's rotting corpse will crawl from its coffin and disembowel Rush Limbaugh.

But you can't blame talk radio fans for worrying. When the Federal Communications Commission enforced the doctrine, from 1949 to 1987, it was a convenient club for politicians and interest groups itching to silence their critics. During the last couple of years, House Speaker Nancy Pelosi and other prominent Democrats have publicly pined for its return, a change that would effectively require any outlet that transmits Sean Hannity's show to either devote a chunk of its schedule to rebutting him or, more likely, dial back its political programs altogether and air a jock or a psychiatrist instead. 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 angry conservative base. In a year when rank-and-file Republicans are uncomfortable with their party's presidential nominee, it's a potent way to persuade them to hold their noses and vote for John McCain.

And so the conservative weekly Human Events warns that "liberals are chafing at the bit, waiting for regime change in Washington to give them the ability to reinstate the 'fairness doctrine.' " Michael Medved, the movie critic and AM talker, announces in towering capital letters that "THOSE RADIO HOSTS WHO CLAIM THAT MCCAIN AND HIS DEMOCRATIC RIVALS ARE 'INTERCHANGEABLE' SHOULD NOT IGNORE THIS CRUCIAL ISSUE." And Cliff Kincaid of Accuracy in Media—an organization that never shied from wielding the fairness doctrine against the left—frets 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."

It won't happen, says Obama. On June 25, in a savvy political move, his press secretary sent an email to the industry journal Broadcasting & Cable. Deftly deflating the scare, the secretary stated flatly that "Sen. Obama does not support reimposing the Fairness Doctrine on broadcasters."

Now 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 when cultural production has been exploding, fueled by increasingly diverse and participatory new media, we would be stepping back toward the days when the broadcast media were a centralized and cozy public-private partnership.

Such threats might not rile up the red-state base the way the fairness doctrine does, in part because it's far from clear that the GOP would be any better. Under its current chairman, Republican Kevin Martin, the FCC has been no friend to either free enterprise or free speech. It has sharply increased federal restrictions on the media, with a sanctimonious crusade against "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," says 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 might mean still more steps toward reregulation. Coming on the heels of Martin's commission, it could also mean a relative reprieve—even, in some areas, a move away from command and control. A lot depends on events, and a lot depends on which interest groups acquire the most influence in his administration. Here are four factions to keep an eye on.

The Players

The idealists. There is a loose coalition on the left that calls itself the media reform movement. Its members are rarely the most powerful people in the room, but they inevitably shout the loudest. They gather in public-interest groups—Free Press, Public Knowledge, the Media Access Project—that cast themselves as 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. Prominent reformers will also, alas, support a host of new economic regulations and speech controls.

Some members of the movement, such as the communications historian Robert McChesney, prefer to stress the reregulation. In his 2008 book The Political Economy of Media, McChesney goes so far as to describe "private ownership of media" as one of "the primary internal impediments to a viable free press." Other reformers, such as the legal scholars Lawrence Lessig and Tim Wu, aren't so statist; even when they call for new controls, they say they prefer broad and simple rules aimed at encouraging innovation, not diktats meant to force a specific outcome. "We need to radically carve back on the scope and reach of what the FCC is doing," Lessig says, "not to the world of no regulation, but to the world of regulation for the objective of facilitating proper competition, not protecting against competition."

Lessig has met with Obama to discuss technology policy, and while he has his disagreements with the candidate—he didn't appreciate Obama's vote this year to give telecom companies retroactive immunity for illegally assisting government spies—he strongly supports the Democratic ticket. From the other end of the coalition, McChesney told the National Conference for Media Reform in June: "Our job doesn't end if he's elected. It begins. But at least we're in play."

Incidentally, Trinity Church, the controversial house of worship that Obama attended until May, is affiliated with the United Church of Christ, a body that has been heavily involved with the media reform movement. During the last few years, the church has urged the FCC to limit product placement on television, to refuse to renew the licenses of stations that don't offer enough children's programming, to let more low-power radio stations on the air, to block media consolidation, and—yes—to restore the fairness doctrine.

Minority broadcasters. Obama has the overwhelming support of the black community. Generally speaking, that includes blacks in the broadcasting business. The Democratic coalition has a history of calling for more minority-owned enterprises, and that's not likely to change during an Obama presidency.

There's some overlap between this group's goals and those of the media reform movement. Public-interest lobbies frequently proclaim the need for more racial diversity in both ownership and programming, and organizations such as the National Association of Black Owned Broadcasters (known by the delightful acronym NABOB) often join the reformers in condemning concentrated ownership of the media. But the two policy programs are not an exact match. When the small businesses that make up much of the minority broadcasting community look at some of the regulations endorsed by the reformers, they see red tape and bureaucratic discrimination. David Honig, a veteran of Jesse Jackson's Rainbow Coalition who now runs the Minority Media and Telecommunications Council, has fiercely criticized the FCC for the ways "regulation acts as a filtering device to guarantee entry by favored groups and to discourage entry by disfavored groups."

Naturally, the tune changes when the regulations favor minority ownership. Both Honig's group and NABOB think the commission should prefer nonwhite applicants when awarding broadcast licenses.

Tech support. Barack Obama may consult with activists eager to bring the media and telecom companies to heel, but he receives plenty of industry support as well. Some of those companies donate money to both candidates, but the lion's share of the loot is going to the Democrat. As of July, according to the Center for Responsive Politics, Obama had received $12,351,351 from the communications and electronics sector, as opposed to just $3,055,535 for McCain. The computer and Internet industries favored Obama over McCain, $3,729,991 to $920,554; TV, movie, and music companies preferred Obama as well, $4,701,382 to $815,451. (Telephone utilities, on the other hand, gave $379,835 to the Republican and $249,072 to the Democrat.)

This pattern has alarmed Obama's supporters in the media reform camp. Writing in May, McChesney and The Nation's John Nichols warned that "industry money is going to Obama in anticipation of his victory." At the National Conference for Media Reform, McChesney added that the reformers would need to "apply pressure" from the other direction.

It's worth noting, though, that the reformers and industry aren't always at odds. The most prominent example is net neutrality—the idea, endorsed by Obama, that Internet providers should not discriminate in price or priority between different uses of the Net. Like the reformers, but for its own self-interested reasons, Google strongly supports legal enforcement of this principle. As of July, Google accounted for $373,212 in donations to the Obama campaign.

The bureaucracy. And then there's the commission itself, which has its own momentum. "The FCC is, structurally, an independent agency," points out Kevin Werbach, an assistant professor of legal studies at the Wharton School, a prominent champion of spectrum reform, and an Obama supporter. "The president selects the chairman and nominates the commissioners, but the president does not tell the FCC it must rule this way or that way on a particular proceeding."

Both of the current Democratic commissioners, Jonathan Adelstein and Michael Copps, have supported increases in regulatory controls, with Copps in particular leading the charge against both vulgar broadcasting and media mergers. Neither is likely to leave next year. For some observers, that alone is enough to indicate what to expect from a new administration. It's "not hard to envision an Obama FCC—just read the speeches and opinions of Adelstein and Copps, and you're there," says Ben Compaine, co-editor of the Journal of Media Economics. (Both Adelstein and Copps declined to be interviewed for this article.)

With those frequently conflicting forces in the background, here's how the most important issues at the FCC might play out under Obama.

'Indecent' Speech

In the last seven years, the commission has ramped up its war on "indecency," levying unprecedentedly high fines and attempting to extend its influence into cable and satellite broadcasting. (Under current law, its rules against swearing and smut do not apply to such subscription services.) This shift of policy actually preceded 2004's Super Bowl debut of Janet Jackson's right breast, but the crackdown has only intensified since then, with steeper fines and sillier targets.

"Give credit where it's due," says Thierer. "Obama is pretty good on this issue." The Democrat's official technology plan condemns violent, sexual, and bigoted speech and images in the media, but it also states directly that the candidate "values our First Amendment freedoms and our right to artistic expression and does not view regulation as the answer to these concerns. Instead, an Obama administration will give parents the tools and information they need to control what their children see on television and the Internet." That's a far cry from the views of Kevin Martin, who once said, "You can always turn the television off and, of course, block the channels you don't want. But why should you have to?"

That said, the bureaucratic momentum on this issue favors the current crusade. In 2004, People asked the man who put Martin in charge of the FCC what to do about "foul language and sexual titillation" on television. Bush's reply: "They put the on/off button on TVs for a reason." It was a wise answer, just like Obama's comments about the First Amendment. And it didn't prevent the crackdown.

"I don't follow Obama as much as I follow the FCC," says Matthew Lasar, a left-leaning historian at the University of California at Santa Cruz and a frequent contributor to the tech site Ars Technica. "Think in terms of what he's going to inherit." The drive for higher indecency penalties isn't coming only from the Republican chairman. On the Democratic side, Adelstein and Copps are enthusiastic censors as well, with Copps in particular urging the commission to come down harder on vulgar expression. In 2004, when the agency fined Clear Channel $755,000 for a series of crass radio skits and some related incidents of improper recordkeeping, Copps objected that the company's stations should have paid even more—or, better still, lost their licenses to broadcast altogether: "I am discouraged," he wrote, "that my colleagues would not join me in taking a firm stand against indecency on the airwaves."

"Michael Copps and Jonathan Adelstein are pretty invested in the indecency process, because it brings various parties together around the issue of believing in regulation," says Lasar. "They see this as a way to draw people into the pro-regulator camp." Reversing that trend would mean facing down an entrenched independent bureaucracy. "I'd be surprised if Obama can make much of a dent in that, assuming he really wants to," Lasar concludes.

Congress, too, seems attached to regulating indecent language. The judiciary, however, may be leaning in another direction. In July the U.S. Court of Appeals for the 3rd Circuit ruled that the FCC "acted arbitrarily and capriciously" when it fined CBS $50,000 for Janet Jackson's nipple slip. In a similar case, involving the government's right to punish stations for airing unplanned, fleeting four-letter words, the 2nd Circuit rebuffed the commission on the same grounds, adding that it was "skeptical that the Commission can provide a reasoned explanation for its 'fleeting expletive' regime that would pass constitutional muster." The government has appealed that decision, and the U.S. Supreme Court will hear the case soon.

Local Speech

During the last few decades, radio stations have relied increasingly on programs produced elsewhere. With voicetracking technology, a DJ in Dallas can record hours of shows for stations around the country in less than 30 minutes, complete with regional references to be inserted into different outlets' transmissions. Meanwhile, local musicians and community activists often have trouble getting any airtime at all.

It's technologically feasible to let the locals start small stations of their own, but regulators have made that a long, cumbersome, and expensive process. The entry barriers range from costly technical requirements to outdated channel separation rules that tighten the number of available licenses.

The obvious solution is to reduce those barriers. But you'll also hear calls to compel existing stations to make room for more locals, or to require broadcasters to air other kinds of "public interest" programming. Think of it as the flip side of the indecency debate: This is the speech that everyone professes to like, at least when it takes the form of broad buzzwords such as diversity and localism and not actual programming that might offend people.

In January, for example, the FCC released a report on broadcast localism, which among other recommendations suggested that each station should "convene a permanent advisory board made up of officials and other leaders" to advise it on "community needs and issues." The report also declared that the commission should give aggrieved listeners "more straightforward guidance" on "how individuals can directly participate in the license renewal process."

It sounds mild—but then again, so did the fairness doctrine, which merely asserted that stations should "afford reasonable opportunity for discussion of conflicting views on matters of public importance." When "individuals" decide to "participate" at license renewal time, that's when would-be censors crawl out of the woodwork. The United Church of Christ, for example, has distributed a manual to activists with advice on how to target a station for termination. It includes a sample petition, filed by Rocky Mountain Media Watch in 1998, urging the government to "protect" the public by refusing to relicense a Denver TV outlet, on the grounds that its newscasts "are severely unbalanced, with excessive coverage of violent topics and trivial events, and, consequently, inadequate news coverage of a wide range of stories and vital social issues. In addition, newscasts present stereotypical and unfavorable depictions of women and minorities."

Imagine having to contend with such petitions, from both the left and the right, every time you have to ask the FCC for permission to keep broadcasting. Even if you get to keep your license, it'll mean spending more time and money dealing with the hassle. The natural impulse will be to throw some bones to your critics, especially the ones who have managed to land spots on your community advisory board.

For some Republicans, the suggested regulations are a way to bring the fairness doctrine back into the conversation. In a June letter to Kevin Martin, House Minority Leader John Boehner charged the FCC with a "stealth enactment of the Fairness Doctrine," arguing that "the recreation of pre-1980s advisory boards will place broadcast media squarely on a path toward rationed speech." A group called Save Christian Radio worries that since the community advisory boards must be "broadly representative of an area's population," the new rules could mean that "Christian broadcast stations could be forced to take programming advice from people whose values are at odds with the Gospel."

Maybe yes, maybe no: The FCC is still receiving citizen comments on its initial proposals—most of them running against the idea—so it's hard to say how onerous the final rules will be, if indeed they're passed at all. But if you're worried about an Obama administration, this is where there's the most potential for mischief. The candidate has broadly endorsed rules requiring more local programming. He also supports a proposal the Martin commission has rejected: shortening the time between broadcast license renewals from eight years to two.

Much of the media reform movement has endorsed these ideas. The minority broadcasting community is less enthusiastic. In the spring, the Minority Media and Telecommunications Council and the Independent Spanish Broadcasters Association submitted comments to the commission criticizing the localism report, arguing that "many of the proposals…would have a disproportionate negative impact on minority broadcasters because of their relatively small size and limited access to capital." In particular, "very few small, local broadcast owners can afford to formally administer the permanent advisory boards."

Opening Up Spectrum

A better way to promote localism is to allow more local stations on the air. At this point the technical cost of starting a station is so low, and the potential competition for advertising is so cutthroat, that an open marketplace might actually favor small, volunteer-run, noncommercial outlets created out of a passion for music or to express a particular point of view. For a rough comparison, look at the Internet, where passion-driven websites proliferate even when e-commerce hits a downturn.

Ushering in those stations requires little more than loosening the federal government's grip. Simply allowing FM broadcasters to use the space allocated to TV channel 6, for example, could make room for thousands of new stations around the United States. But that option, like many others, has been shut off, largely because the National Association of Broadcasters is good at persuading Washington to protect the incumbent industry from competition.

Unsurprisingly, the lobbyists who push hardest for these barriers are often the first to protest the public-service regulations beloved by the media reform movement. Meanwhile, the media reformers can suddenly sound like libertarians when the topic turns to letting community groups start their own stations. Many of them, in fact, support even more sweeping changes to the FCC's controls on the electromagnetic spectrum. In his 2001 book The Future of Ideas, Lessig wrote that "the only thing that government-controlled spectrum has produced is an easy opportunity for the old to protect themselves against the new. Innovation moves too slowly when it must constantly ask permission from politically controlled agencies." The real debate, he argued, is between those who think spectrum should be treated as private property and those who believe new technologies allow the ether to function as an open commons.

Both Obama and McCain would probably be pretty good on the specific issue of allowing more community outlets. William Kennard, the Clinton-era FCC chair who championed licensed low-power radio, is an Obama adviser. McCain initially opposed the idea—in 1999 he suggested that anyone who wants to start a low-watt station should get "a Web page or a leased access cable channel" instead—but he has reversed himself since then. Last year he co-sponsored the Local Community Radio Act, which would allow more stations on the air.

It's harder to imagine either candidate pushing for sweeping spectrum reform. But there is one policy debate that could propel that issue onto the table: the question of "white spaces," unused spots in the spectrum between the frequencies used by TV broadcasters. Many in the media reform movement have been pushing the FCC to open those areas to unlicensed devices delivering wireless Internet access. Microsoft unveiled a prototype last year that it said could use those spaces without interfering with television signals. (So far the commission doesn't agree.) A number of free market economists, meanwhile, have called for the FCC to auction off the spaces and let different potential users bargain for the right to use them. Still other policy watchers have called for a mix of the two approaches. What all these ideas have in common is that they would allow much more flexible uses of spectrum, pulling the FCC back from its role as the zoning board of the airwaves and setting a precedent for larger reforms.

Even if Obama's appointees let that happen, industry lobbies could still stop the idea. "I would expect the National Association of Broadcasters would do what they did with low-power FM," says Lasar. "They'd take a fear-mongering campaign to Congress and make some sort of bid for a law to restrict what the FCC can do." Legislators of both parties, he argues, are "pretty susceptible to the National Association of Broadcasters' position, which is that unlicensed broadband applications will create a gigantic crisis for the entire broadcasting industry, will interfere with TV, will interfere with medical devices, will ruin the world. Which they have all but said in FCC proceedings."

Back-Door Regulation

In a June debate before the conservative Federalist Society, former FCC chief Reed Hundt, serving as a surrogate for Obama, said the candidate "doesn't think there should be any more media consolidation until new policies are developed to promote diversity and localism." The candidate himself co-sponsored a bill last year 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 deconsolidation, most of it market-driven. CBS recently announced that it will 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. It's 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—weirder, at least, than it was a decade ago, when the headlines were filled with mergers and 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. But that's not where it seems to be heading now. An FCC on the prowl against "media monopolies" is an FCC that's more willing to interfere with future mergers. Not to block mergers, but to extract concessions.

Last year 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 agreed that the marriage should go forward, but it also attached some conditions to the ketubah. Among other commitments, 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.

In other words, the FCC imposed new controls on a single business, and it did so without the rulemaking procedures that are ordinarily required before regulations can be adopted. In the process, it may have found a way around institutional impediments to its power. The "à la carte" proposal, for example, has been enthusiastically supported by Chairman Martin (and by John McCain), who thinks it would be a good way to help viewers avoid indecent programming. It is less popular among the people who run niche channels—including, by and large, the minority broadcasting community—because it will cut into their potential audiences. So far Martin hasn't been able to make the idea law. But if he can impose it on enough cable companies through the back door, a formal change to the federal code might not be necessary.

This isn't a new threat. The Bell Atlantic/NYNEX merger of 1997 started the ball rolling, with a series of conditions the companies embraced "voluntarily" before the FCC approved the combination. But the agency has grown more brazen since then, as commissioners from both parties learned to love the process. Given that bipartisan backing, neither Obama nor McCain is likely to restrain them. The industry hasn't protested much either. When the government imposes company-specific laws, you can divide most businesses into two categories: 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.

Convergence

It used to be easy to divide the broadcast issues at the FCC from the other areas it regulated. Not in the Internet era, 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 Net.

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 wants to build an ad-supported national broadband network in which consumers can 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. Then Kevin Martin 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 fond of the incumbent wireless industry—hardly free market heroes—to appreciate how inappropriate it is for the government to tilt the scales in a single firm's favor. But it wasn't just wireless companies and supporters of equal treatment who protested Martin's plan. Civil libertarians were aghast, because Martin's conditions included a requirement that the auction winner filter pornography from its free tier of services.

At press time it's unclear whether Martin's slanted auction will ever take place. But there's a broader issue at stake. When the commission starts granting favors to companies in exchange for regulatory concessions, it's just a matter of time before those regulations include restrictions on speech.

That's the threat to fret about under the next FCC, be it Democratic or Republican. It's hard to imagine President Obama trying to bring back the fairness doctrine: Even if he's prone to breaking his campaign promises, it's just dumb to invite a fight with a big, noisy enemy that's able to instantly mobilize an army of angry listeners. The real danger is more subtle and more mundane. It's a bipartisan bureaucracy slowly, steadily increasing its power.

Managing Editor Jesse Walker is the author of Rebels on the Air: An Alternative History of Radio in America (NYU Press).