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McDowell: Fairness Doctrine Has History Of Abuse

WASHINGTON -- January 29, 2009: In remarks at the Media Institute in Washington yesterday, FCC Commisioner Robert McDowell discussed the practical and legal implications of a potential return of the Fairness Doctrine. But first, he said, "It's hard to tell if current calls for its return will gain traction or not. On the one hand, recently several prominent members of Congress have called for its restoration. Still others are strongly opposed to its revival."

McDowell said the main historical justification of the Fairness Doctrine was based on "spectrum scarcity" and ensuring that broadcasters steered away from "propaganda" for one political viewpoint or another. But, he said, "While intending to build a shield against hostile political ideas, the FCC also created a political weapon."

McDowell continued, "History proves that abuses of power brought forth by the doctrine are not partisan. Both right-leaning and left-leaning broadcasters have been attacked and intimidated. With that in mind, if the doctrine is reimposed in any form, how do we know that it will not be used to silence political adversaries?"

He also cited a long list of practical and enforcement problems that could arise from a revival of the doctrine, saying, "Once doctrine complaints were filed, unelected bureaucrats would be put in the position of determining: (1) what the opposing view, or views, might be; (2) which of several potential speakers should get a chance to voice them; and (3) when and how such opposing views should be presented."

Would It Stand Up In Court?

McDowell also believes that a revived Fairness Doctrine might well not stand up in court, saying that the "concept of 'spectrum scarcity' is an anachronism." He said, "In a string of media cases stretching back over more than 20 years, various judges on the DC Circuit -- both Democratic and Republican appointees -- have suggested that it is time for the Supreme Court to rethink the concept of spectrum scarcity as a justification for limiting broadcasters' First Amendment rights. A revived doctrine would provide a big, bright bull's-eye for those who wish to make that happen." He noted that if the "scarcity" rationale is invalidated, there may be serious legal challenges to other FCC regulations that rely on it, such as the children's programming requirement for television.

McDowell also said that those who are "most concerned about the 'fairness' of conservative talk [radio] shows" should "pause to consider the widespread popularity -- and potential vulnerability -- of public radio programs to doctrine complaints."

Would It Cover Other Media?

McDowell also noted that a revived Fairness Doctrine might well be struck down as "underinclusive" if it does not cover other, non-broadcast media and said, "It is not clear how the imposition of the doctrine on cable and satellite could survive constitutional attack, given the higher degree of First Amendment protection afforded to these subscription-based media."

McDowell also talked about the potential effects of a new Fairness Doctrine on the Internet, saying, "The underlying infrastructure of the Internet also is subject to federal regulatory control, as is some of the content carried on it. Certain legal commentators have suggested that a new corollary of the doctrine should be fashioned for the Internet, on the theory that web surfers should be exposed to topics and views that they have not chosen for themselves. I am not making this up."

McDowell then quoted President Obama's inaugural address, in which Obama said those who "cling to power through corruption and deceit and the silencing of dissent, know that you are on the wrong side of history," and said he is "encouraged that President Obama can, once and for all, end the speculation of whether something akin to the doctrine will come back to life during his term."

(2/4/2009 6:33:27 AM)
The spectrum scarcity was never based on the number of broadcast outlets. At the time of the seminal Red Lion case, there were 7000 broadcast radio stations - far more than the number of daily newspapers. The Supreme Court explained that more people wanted to broadcast than there were available frequencies (which is still true today); the Government could have limited the license to broadcast to just a few weeks or months; instead, it chose to award a license (now for eight years) to one entity but with the requirement that it act as a trustee for all those the Government is keeping off the frequency; and at renewal the licensee must show that it acted as a public trustee for its community. The fairness doctrine stemmed from this public trustee scheme.

- John Gallagher
(2/2/2009 12:04:29 PM)
Actually, puts people who disagree with him on the air all the time. And listens to them, which obviously is more than you bother to do when people disagree with you.

Amazing how many lefties adore the idea of silencing those who disagree with them.

- Tuxer
(1/31/2009 2:57:38 PM)
Mr. Aamodt:

You label someone with whom you disagree a Nazi, yet call THEM hateful?

You say they speak without challenge? They ARE the challenge to many powerful voices. Even then they are then challenged again, many times over.

I'd be quite surprised if you've ever listened to the full Rush Limbaugh or Sean Hannity program even a few times. Yet you demand that government shut them up because they disagree with you.

- Brian T. Johnson
(1/30/2009 12:45:50 PM)
The very reason we need a Fairness Doctrine is because of the hateful rhetoric of the Limbaugh's and Han-nazi's and their ilk. They spew their divisive message without challenge, as they refuse to engage on the air people with a different point of view. Put a co-host on with Limbaugh and Han-nazi and their hate-filled mesasge will quickly become diluted.

- Dave Aamodt
(1/30/2009 12:06:24 PM)
AMEN: The comiss is thinking, and so am I. It's time we booted government, all government out of the media. If they want air time, let them buy it properly at standard going rates just like Pepsi, or Direct Buy or USA. I sick of these twits flushing their brains threw their mouths while their two goals in life are simply to control the human race from womb to tomb and sit around and talk all day. Go get a real job and help the economy, if anybody would even consider hiring you!

- Arnie Jackson

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