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While this action has been greeted by some as confirmation that we will not see the Fairness Doctrine revived by the Commission, that jubilation seems a little unwarranted.  If there was a future FCC that decided that they wanted to impose some degree of Fairness obligations on broadcasters, they still would have ways of doing so.  After all, broadcasters are subject to an overall obligation to operate in the public interest, a standard that has, over the years, changed as Commissions change their interpretation of what it means.  As we've written before, some would like to put more teeth into the standard, which could include some Fairness-like requirements.  Section 315 of the Communications Act, dealing with equal opportunities for political candidates, itself has language that implies that there is some sort of Fairness obligation of broadcasters, at least in connection with their news coverage:

Nothing in the foregoing sentence shall be construed as relieving broadcasters, in connection with the presentation of newscasts, news interviews, news documentaries, and on-the-spot coverage of news events, from the obligation imposed upon them under this chapter to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public importance.

Thus, just because the Fairness Doctrine has been repealed, one cannot conclude that the FCC will never meddle in the speech of broadcasters.  These debates over what is permiited and what should be restricted on the air have gone on as long as there have been broadcasters, and they will not end with yesterday's announcement.

What will be most interesting about the text of this action will be seeing what the other 82 rules are that are being repealed.  The Obama administration has recently announced a push to decrease Federal regulation as a way to stimulate economic growth.  There are plenty of broadcast rules that impose monetary obligations on broadcasters for little public interest benefit (e.g.the public file rule), that have been the subject of FCC consideration as to whether they are still justified.  Action on changing some of these rules would bring real relief to broadcasters - far more than the symbolic repeal of a Doctrine not enforced in 25 years. 

In fact, the first three questions asked by the FCC all go to First Amendment issues that we raised in our prior post.  Do we want the FCC to be deciding what musical artists a station plays on the air?  If a broadcaster decides not to play an artist because of his or her position on gay marriage or gun control or foreign policy, do we want the FCC to intercede and judge the quality of the reason for denying airplay?

Do we want the FCC to decide the truth or falsity of advertising?  The FCC does not even get into that issue with broadcast candidate ads, yet MusicFirst is asking that the FCC make that judgment here.  Do we want the FCC making judgments, for example, on the truth of ads about the health care reform debate, which may very well have a direct effect on broadcasters bottom line? 

Do we want the FCC to decide what advertising a station takes?  Last week, the FCC's Media Bureau, in dismissing a Petition to Deny a broadcast station's license renewal, found that, other than in connection with political advertising by candidates, stations were free to set their own advertising rates and policies.  In that case, the FCC found that broadcasters did not need to treat obituaries as public service announcements, but were free to charge for those announcements.   Why should ads for a music royalty - a proposal that is an anathema to most radio broadcasters - be different than obituaries or any other advertising?  The broadcaster is not a common carrier, as the FCC has said many times including in Friday's case, and it is free to make decisions as to what it will air and what it will not.

The one remaining issue, the public file issue, seems to turn on the provisions of the Bipartisan Campaign Reform Act's requirements that certain issue advertising have the same public file requirements as political candidate ads (see our post here).  Specifically, Section 315 of the Communications Act requires that a station keep records of "a request to broadcast time" dealing with a Federal candidate or a Federal issue.  Where a broadcaster itself chooses to run a spot of its own opposing the Performance Royalty, there would seem to be no "request to purchase time" and thus no public file obligation.  On the other hand, if MusicFirst makes an actual request to purchase airtime on a specific station, the station should note in its public file whether or not the request was accepted.

We are also troubled by the lack of specificity in the MusicFirst petition.  Artists and stations involved are not named.  How can the Commission take action when there is no one to take action against?  Why are they even considering a petition that does not allege any specific wrongdoing but instead raises wrongdoing but does not identify any alleged wrongdoer?

We hope that this is just an attempt by the FCC to demonstrate the openness of its process on what is admittedly a controversial issue.  But we also hope that the First Amendment rights of broadcasters will be respected in the final decision.   

And, all over, there were other discussions about the potential return of the Doctrine in some form or another.  One of my partners, Bob Corn-Revere, wrote an article for the Media Institute blog expressing concern about the possibility of the return of the doctrine, either directly or through some form of localism regulation that would mandate specific types of programming. Republican FCC Commissioner Robert McDowell expressed similar concerns about the return of the Doctrine perhaps disguised as some sort of Localism requirement that mandates full coverage of local controversies. Former FCC General Counsel Henry Geller Geller wrote in response to Commissioner McDowell and defended the doctrine (while expressing doubt about its return). Mr. Geller stated that the doctrine was not that much of a burden to broadcasters as it did not demand mathematical equality (as we stated in our post last week), but instead only required that a broadcaster allow those from both sides of an issue to present their views. He suggested that even Rush allows that by inviting guests to discuss and debate topics with him on the air.

But while the doctrine in theory seem easy to comply with, there were many battles at the FCC costing broadcasters many thousands of dollars in legal debates over whether what they aired really did give all sides of an issue an adequate opportunity to have their say. And, more importantly, by its very nature, the Doctrine is a burden on the free speech rights of broadcasters, and puts the government in a position where it should never be – deciding what speech should or should not be made.

Look at the logical extension of the Fairness Doctrine. While it is seemingly a debate of liberals against Rush that is prompting the talk right now – the Doctrine requires fairness on all controversial issues of public importance.  Sometimes there are far more than 2 sides to an issue.  Who decides which sides get heard and which don't?  For instance, right now, the Catholic Church is embroiled over a controversy about some fringe priests who deny the existence of the holocaust. If a station were to air one of the many movies now in theaters about the holocaust, would the Fairness Doctrine compel broadcast stations to provide time to the deniers to advance their views? Affirmative action is another issue that may come to the fore in the near future. Client stations of mine have had to deal with political candidates from avowedly racist parties, and to put these candidates ads on the air under the equal time rules that apply to candidates. Under a Fairness Doctrine, would they also have to allow spokesman from these groups to have a say when affirmative action or discrimination issues are discussed?

These may seem like extreme examples – where all rational people should agree that these extreme views should not be allowed on the air – that more moderate voices may suffice to provide balance on affirmative action debates, and that no one can deny the existence of the holocaust, and that therefore it is not a controversial issue requiring fairness. But even these seemingly obvious determinations contain value judgments that the government should not be in the business of making in these extreme circumstances any more than it should be making these distinctions in the much closer cases that would arise every day.  No one would ever suggest that the government should be able to regulate what content goes on the editorial pages of the New York Times or the Washington Times. No one should be able to dictate that the Nation and the National Review present both sides of every issue that they cover. Why should broadcasters have a different version of the First Amendment applicable to their speech?

With an administration and a Congress that have expressed concerns over the abuse of human rights and the trampling of constitutional protections under the last administration, how can Congress seriously talk about the return of the Fairness Doctrine and the First Amendment concerns that such a return would bring? These positions seem so inconsistent that we can only hope that the rumblings that have been heard in Washington this last week are just rumblings – outgrowths of some of the partisan squabbles brought about by the intense debate over how best to get the economy moving again that will pass with time. But broadcasters and civil rights advocates of all political persuasions should be on guard against any potential infringement of their rights – and be read to do battle if these proposals are really put forward.