Political Hay

His Royal Fairness

Fairness Doctrine or not, content regulation may still be coming under Obama.

By 6.22.09

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President Obama's nominee to head the Federal Communications Commission (FCC), Julius Genachowski, told a Senate panel on Tuesday that he opposed bringing back the Fairness Doctrine. Senator Kay Bailey Hutchison (R-Texas) pushed the issue further, clarifying that "you do not support reviving it (the Fairness Doctrine) or anything like it, directly or indirectly through 'localism' and that sort of thing."

For opponents of heightened media regulation, does this mean that it is okay to breathe easier at last? Not so fast. In quintessential Obama administration fashion, the devil lies in the details, as this bunch is far too politically savvy to employ such a blunt tool, like the Fairness Doctrine, when more surreptitious means can accomplish similar results.

The Fairness Doctrine may be dead, but media content regulation is another story. Just as the Obama administration has appointed White House policy czars to skirt the constitutionally required "advise and consent" of Senate approval, the FCC has been discussing activist media regulatory initiatives without subjecting the policies to a public debate in Congress.

Obama allies will call this alarmist fear-mongering, but do not take my word for it; take Michael Copps', the current FCC Chairman who not long ago delivered remarks at the conspicuously titled "Changing Media in Washington, D.C." summit. The mainstream media largely focused on the fact that Copps said the Fairness Doctrine is not returning. However, the rest of his underreported remarks betray the FCC's true intentions.

In striking language, Copps talked of "seiz[ing] the opportunity" to bring about a "new, progressive promised land", asking rhetorically, "What about the core values of localism, diversity and competition that Free Press fights so valiantly for?" He said the American media was in trouble due to "two decades of mindless deregulation," which he partially blamed on the Internet and bloggers. And while he added that "The Fairness Doctrine is long gone and it's not coming back--as much as some conspiracy theorists see it lurking behind every corner," he also quickly added that, "we finally got the FCC back on track to do something about the shameful state of minority and female ownership of media properties." Copps has told Genachowski that diversity initiatives should be his first priority.

The FCC is also discussing plans to require stations to provide "locally-oriented programming," which sounds a bit similar to requiring banks to serve the credit needs of their local communities. (We know how well that worked). According to internal FCC documents obtained by the watchdog group, Judicial Watch, localism rules could require "permanent advisory boards," which must contain "underserved community segments." These boards will then play a role in the licensing process, which is how regulators bludgeoned banks into making loans to underserved community segments.

Copps explained that "we still need to get serious about defining broadcasters' public interest obligations and reinvigorating our license renewal process…It is time to say 'Good-bye' to post card renewal every eight years and 'Hello' to license renewals every three years with some public interest teeth."

In February, he also stated, "If markets cannot produce what society really cares about, like a media that reflects the true diversity and spirit of our country, then government has a legitimate role to play." In other words, the public may not actually realize what it cares about, so it is the government's job to clarify.

Jay Sekulow, a constitutional law litigator and Chief Counsel for the American Center for Law and Justice, said, "Simply not calling regulations or legislation the Fairness Doctrine does not resolve the unconstitutional nature of the piecemeal result. The First Amendment is abridged through localism, content diversity and mandatory equal time provisions. In fact, subverting the legislative process through a regulatory scheme is even more dangerous. What can be worse than content control without debate?"

If one thing is clear several months into the Obama presidency, it is that the administration is not afraid to empower bureaucrats at the expense of individuals. Maybe the Fairness Doctrine has, in fact, been sent to the dustbin of history, but we cannot be so sure about stealth regulations that will have a similar effect. Now more than ever, it is imperative that we carefully ask administration officials what the meaning of "is" is. 

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About the Author
Brett Joshpe is an attorney and entrepreneur in New York City. He is Of Counsel to the American Center for Law & Justice and co-authored the book Why You're Wrong About the Right (Simon & Schuster, 2008).