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


Rep. Maurice Hinchey (D‑NY) recently introduced a bill titledThe Media Ownership Reform Act, which proposesthe radical re‐​regulation of the media marketplace in America. Hisdraconian bill (H.R. 4069) would not only undo all the limitedownership reforms that the FCC pushed through last summer, it wouldreinstate cable‐​broadcaster cross‐​ownership regulations that werestruck down by the courts and more tightly restrict the number ofradio stations a firm can own locally and nationally. Worst of all,the bill would resurrect two disastrous FCC rules that were thoughtto have been swept into the dustbin of history long ago: theso‐​called “Fin‐​Syn” rules and the hideously misnamed FairnessDoctrine.

Fin‐​Syn. The Financial Interest and Syndication(or “Fin‐​Syn”) rules were put into effect by the FCC in 1970 toprohibit a TV network from holding a financial stake inindependently produced programs. Networks were forced to eitherpurchase all of their programming from independent producers ordevelop programs in‐​house. But in‐​house production capabilitieswere also limited by consent decrees that the three majortelevision networks were forced to enter with the JusticeDepartment. The logic behind these restrictions was that verticalintegration of broadcast television program creation anddistribution would allow broadcasters to gain excessive controlover prime‐​time programming on their airwaves.

But by 1993, the FCC came to realize that the Fin‐​Syn rules werecounterproductive and began dismantling them. The result was agreat deregulatory success story. In the wake of decontrol, mediaoperators were free to structure new business arrangements andalliances to finance increasingly expensive new programs, as wellas entirely new networks and cable stations. (The UPN and WBtelevision networks largely owe their existence to the repeal ofFin‐​Syn.) Also, by eliminating Fin‐​Syn and allowing greaterintegration of programming and distribution, content providers wereable ensure that their shows were given wider distribution on notonly network television but cable channels as well. In the words ofa recent FCC report, such vertical integration “makes it possiblefor network companies to spread their expertise in programselection, promotion, and advertising sales over a larger range ofoutputs (i.e., networks) and possibly realize some economies ofscope in network operation.”

Critics contend that firms should not be allowed to make suchalliances for fear that they would discourage more “independentproduction” or “alternative voices” on the airwaves. But viewershave more choices today than ever before and there is a greaterdiversity of viewpoints now than when the Fin‐​Syn rules were ineffect. Moreover, independent studios have no “right” to have theirprograms carried by anyone. They are free to try to cut deals withthe many distributors that exist, but they should not be able todirectly or indirectly compel distributors to carry theirprograms.

The (Un)Fairness Doctrine. The so‐​calledFairness Doctrine was put in place by the FCC in 1949 to requirebroadcasters to “afford reasonable opportunity for the discussionof conflicting views of public importance.” After coming underattack by the courts, the FCC discarded the rule in 1987 because,contrary to its purpose, the doctrine failed to encourage thediscussion of more controversial issues. Still, regulatoryrevisionists seem to pretend that the world would be a better placeif government officials sat in judgment of “fairness” on thebroadcast airwaves and have attempted to resurrect the FairnessDoctrine a few times since it was abolished. By requiring, underthreat of potential license revocation, that broadcasters “fairly“represent both sides of a given issue, advocates of the doctrineargue that more opinions will be aired while the editorial contentof the station can remain unaltered.

But the notion that the threat of regulation will encourage agreater diversity of viewpoints has been flatly contradicted by thefacts. After decades of academic and judicial scrutiny, it wasrevealed that instead of expanding the range of viewpoints on theairwaves, the Fairness Doctrine had a chilling effect on freespeech. With the threat of potential FCC retaliation hanging overtheir necks, most broadcasters were more reluctant to aircontroversial opinions because it might require them to airalternative perspectives that their audience did not want to hear.Alternatively, they feared they would not be able to air enough, orthe right type of, responses to make regulators happy.Consequently, the Fairness Doctrine actually stifled the growth ofdisseminating views and, in effect, made free speech less free. Asthe FCC noted in repealing the doctrine in 1987, it “had the neteffect of reducing, rather than enhancing, the discussion ofcontroversial issues of public importance.”

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

Finally, practically speaking, how would a revived FairnessDoctrine apply to today’s media marketplace with its countlesspartisan radio and TV programs? Presumably Al Franken and hiscolleagues would not take kindly to the proposition that RushLimbaugh and Bill O’Reilly are entitled to equal response time ontheir liberal Air America network in the name of “fairness.” Andvice versa. Such partisan talk shows have become wildly popular inthe years following the abolition of the Fairness Doctrine. Aren’tthese exactly the sort of distinct and antagonistic viewpoints thatpolicymakers desire?

Apparently not. As the previous TechKnowledge noted, recent debatesover media ownership and indecency regulation on Capitol Hill haveillustrated “that what Congress wants is a media obedient to itswill,” in the words of a recent Broadcasting & Cable editorial.What media critics like Representative Hinchey propose is forgovernment to exert more control over media in America in the nameof expanding choice and “preserving democracy.”

If that sounds hopelessly contradictory or even downrightdangerous, it should. The First Amendment was not written as aconstraint on private speech or actions, but rather as a directrestraint on government actions as they relate to speech. But mediacritics like Hinchey are fond of contorting the First Amendmentinto the equivalent of an affirmative “media access” mandate thatrequires anyone who has a built a soapbox to let the rest of theworld stand on it with them. That means government officials willhave to sit in judgment of what is “fair” and determine whencertain groups are allowed to co‐​opt others’ property for their ownpurposes. It is impossible to reconcile such notions with afaithful reading of the First Amendment or the principles of a freesociety.