The Broadcaster Freedom Act (HR 2905), sponsored by Rep. Mike Pence (R-IN), aims to permanently prohibit the FCC and future presidents from enforcing the Fairness Doctrine. A policy formulation written in 1928 then adopted as a rule by the FCC in 1949, the doctrine stated that broadcasters “must show due regard for the opinions of others.”
In 1959 Congress amended the Communications Act of 1934 to enshrine the Fairness Doctrine into law, rewriting Chapter 315(a) to read: “A broadcast licensee shall afford reasonable opportunity for discussion of conflicting views on matters of public importance.”
History of the Fairness Doctrine
Later, in 1967, two corollary doctrines were added. The first was the political editorial rule, requiring that if a station editorialized either for or against a candidate for public office, the station had to notify the disfavored candidate within 24 hours and allow him/her to reply to the editorial; the second was the personal attack rule, which states that when a person or group’s character or integrity is impugned during the discussion of a controversial issue, the station must notify the person within one week, and offer a reasonable time for response.
Under the direction of Reagan-appointed FCC chair, Mark S. Fowler, the FCC stopped enforcing the doctrine in the 1980s. In 1986, “Judge Robert Bork and then-Judge Antonin Scalia … simply declared that Congress had not actually made the doctrine into a law.” The FCC repealed the doctrine in 1987. In 2000, the two corollary rules were repealed.
According to “The Structural Imbalance of Political Talk Radio”, a report (.pdf) published by Center for American Progress and Free Press on 21 June 2007:
First, from a regulatory perspective, the Fairness Doctrine was never formally repealed. The FCC did announce in 1987 that it would no longer enforce certain regulations under the umbrella of the Fairness Doctrine, and in 1989 a circuit court upheld the FCC decision.11 The Supreme Court, however, has never overruled the cases that authorized the FCC’s enforcement of the Fairness Doctrine. Many legal experts argue that the FCC has the authority to enforce it again—thus it technically would not be considered repealed.12
Moreover, the original Communications Act of 1934 still authorizes the FCC to require “reasonable access to or to permit purchase of reasonable amounts of time” by a legally qualified candidate for federal elective office, and equal opportunities must be afforded all other candidates for that office.13 These obligations come from the same set of concerns from which the Fairness Doctrine arose. And Section 315 of the Communications Act still requires commercial broadcasters “to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views of issues of public importance.”
Yesterday, Pence spoke via telephone with radio talk show personality, Janet Parshall, and husband Craig, the Senior Vice President and General Counsel of the National Religious Broadcasters Association. Arguments against the Fairness Doctrine popularised during the Reagan Revolution were given a new splash of outrage, such as Christianity and the marketplace of ideas are under attack. It is antithetical to the Parshalls that Christians “fund” the views of evolutionists and abortionists.
There are many misconceptions about the Fairness Doctrine. For instance, it did not require that each program be internally balanced, nor did it mandate equal time for opposing points of view. And it didn’t require that the balance of a station’s program lineup be anything like 50/50.
Nor, as Rush Limbaugh has repeatedly claimed, was the Fairness Doctrine all that stood between conservative talkshow hosts and the dominance they would attain after the doctrine’s repeal. In fact, not one Fairness Doctrine decision issued by the FCC had ever concerned itself with talkshows. Indeed, the talkshow format was born and flourished while the doctrine was in operation. Before the doctrine was repealed, right-wing hosts frequently dominated talkshow schedules, even in liberal cities, but none was ever muzzled (The Way Things Aren’t, Rendall et al., 1995). The Fairness Doctrine simply prohibited stations from broadcasting from a single perspective, day after day, without presenting opposing views.
An ideal marketplace offers a variety of products to consumers. Monopolies are antithetical to the free market. Radio has been monopolised by conservative ideologues but it was Bill Clinton who signed the takeover into law (.pdf):
The Telecommunications Act of 1996 removed the national limit on the number of radio stations that one company could own. This resulted in the wave of consolidation that carried Clear Channel from 40 stations to over 1,200, and many other conglomerates to several hundred stations apiece.
The economics of radio station ownership changed in this period as a result of consolidation. Large, non-local owners aired syndicated programming on a wider scale across their national holdings. Advertising on local stations was marketed and sold by national firms, undermining the ability of local owners to compete.
Therein lies the rub, as Janet Parshall might say. A few people rounded-up the nation’s soapboxes and their influence has grown exponentially every year. Their marketplace offers the choices of listen to their programming or turn the radio off.
What rubs me the wrong way is that an even-playing field, in the conventional sense of the term, would still be a monopoly of powerful interests. A debate between Democrats and Republicans is not a marketplace of ideas but a breakdown of communication whose moderators leash the nation like a dog to a shed in the backyard whilst the important business of the state is conducted by its masters in DC.