TechKnowledge No. 80

Return of the (Un)Fairness Doctrine: The Media Ownership Reform Act,

By Adam D. Thierer
April 20, 2004

Rep. Maurice Hinchey (D-NY) recently introduced a bill titled The Media Ownership Reform Act, which proposes the radical re-regulation of the media marketplace in America. His draconian bill (H.R. 4069) would not only undo all the limited ownership reforms that the FCC pushed through last summer, it would reinstate cable-broadcaster cross-ownership regulations that were struck down by the courts and more tightly restrict the number of radio stations a firm can own locally and nationally. Worst of all, the bill would resurrect two disastrous FCC rules that were thought to have been swept into the dustbin of history long ago: the so-called “Fin-Syn” rules and the hideously misnamed Fairness Doctrine.

Fin-Syn. The Financial Interest and Syndication (or “Fin-Syn”) rules were put into effect by the FCC in 1970 to prohibit a TV network from holding a financial stake in independently produced programs. Networks were forced to either purchase all of their programming from independent producers or develop programs in-house. But in-house production capabilities were also limited by consent decrees that the three major television networks were forced to enter with the Justice Department. The logic behind these restrictions was that vertical integration of broadcast television program creation and distribution would allow broadcasters to gain excessive control over prime-time programming on their airwaves.

But by 1993, the FCC came to realize that the Fin-Syn rules were counterproductive and began dismantling them. The result was a great deregulatory success story. In the wake of decontrol, media operators were free to structure new business arrangements and alliances to finance increasingly expensive new programs, as well as entirely new networks and cable stations. (The UPN and WB television networks largely owe their existence to the repeal of Fin-Syn.) Also, by eliminating Fin-Syn and allowing greater integration of programming and distribution, content providers were able ensure that their shows were given wider distribution on not only network television but cable channels as well. In the words of a recent FCC report, such vertical integration “makes it possible for network companies to spread their expertise in program selection, promotion, and advertising sales over a larger range of outputs (i.e., networks) and possibly realize some economies of scope in network operation.”

Critics contend that firms should not be allowed to make such alliances for fear that they would discourage more “independent production” or “alternative voices” on the airwaves. But viewers have more choices today than ever before and there is a greater diversity of viewpoints now than when the Fin-Syn rules were in effect. Moreover, independent studios have no “right” to have their programs carried by anyone. They are free to try to cut deals with the many distributors that exist, but they should not be able to directly or indirectly compel distributors to carry their programs.

The (Un)Fairness Doctrine. The so-called Fairness Doctrine was put in place by the FCC in 1949 to require broadcasters to “afford reasonable opportunity for the discussion of conflicting views of public importance.” After coming under attack by the courts, the FCC discarded the rule in 1987 because, contrary to its purpose, the doctrine failed to encourage the discussion of more controversial issues. Still, regulatory revisionists seem to pretend that the world would be a better place if government officials sat in judgment of “fairness” on the broadcast airwaves and have attempted to resurrect the Fairness Doctrine a few times since it was abolished. By requiring, under threat of potential license revocation, that broadcasters “fairly” represent both sides of a given issue, advocates of the doctrine argue that more opinions will be aired while the editorial content of the station can remain unaltered.

But the notion that the threat of regulation will encourage a greater diversity of viewpoints has been flatly contradicted by the facts. After decades of academic and judicial scrutiny, it was revealed that instead of expanding the range of viewpoints on the airwaves, the Fairness Doctrine had a chilling effect on free speech. With the threat of potential FCC retaliation hanging over their necks, most broadcasters were more reluctant to air controversial opinions because it might require them to air alternative perspectives that their audience did not want to hear. Alternatively, they feared they would not be able to air enough, or the right type of, responses to make regulators happy. Consequently, the Fairness Doctrine actually stifled the growth of disseminating views and, in effect, made free speech less free. As the FCC noted in repealing the doctrine in 1987, it “had the net effect of reducing, rather than enhancing, the discussion of controversial issues of public importance.”

More disturbingly, the Fairness Doctrine was used by public officials to threaten suppression of political opposition. Communications scholar Thomas Hazlett has noted that under the Nixon administration, “License harassment of stations considered unfriendly to the administration became a regular item on the agenda at White House policy meetings,” and that “in an attempt to affect network programming, administration staffers used threats of Fairness Doctrine challenges in meetings and phone calls with top [network] executives.” There is also evidence that the Kennedy administration used the Fairness Doctrine to intimidate opponents.

Finally, practically speaking, how would a revived Fairness Doctrine apply to today’s media marketplace with its countless partisan radio and TV programs? Presumably Al Franken and his colleagues would not take kindly to the proposition that Rush Limbaugh and Bill O’Reilly are entitled to equal response time on their liberal Air America network in the name of “fairness.” And vice versa. Such partisan talk shows have become wildly popular in the years following the abolition of the Fairness Doctrine. Aren’t these exactly the sort of distinct and antagonistic viewpoints that policymakers desire?

Apparently not. As the previous TechKnowledge noted, recent debates over media ownership and indecency regulation on Capitol Hill have illustrated “that what Congress wants is a media obedient to its will,” in the words of a recent Broadcasting & Cable editorial. What media critics like Representative Hinchey propose is for government to exert more control over media in America in the name of expanding choice and “preserving democracy.”

If that sounds hopelessly contradictory or even downright dangerous, it should. The First Amendment was not written as a constraint on private speech or actions, but rather as a direct restraint on government actions as they relate to speech. But media critics like Hinchey are fond of contorting the First Amendment into the equivalent of an affirmative “media access” mandate that requires anyone who has a built a soapbox to let the rest of the world stand on it with them. That means government officials will have to sit in judgment of what is “fair” and determine when certain groups are allowed to co-opt others’ property for their own purposes. It is impossible to reconcile such notions with a faithful reading of the First Amendment or the principles of a free society.

Adam Thierer (athierer [at] cato [dot] org) is the director of telecommunications studies at the Cato Institute in Washington, D.C. To subscribe, or see a list of all previous TechKnowledge articles, visit www.cato.org/tech/tk-index.html.