It all culminated in a Senate vote on September 16 to repeal part of the decision by the FCC to relax media ownership rules. The old rules prohibit a company from owning television stations that reach more than 35 percent of homes nationwide; the new rules allow up to 45 percent. (The FCC, in the same 3-2 vote led by chairman Michael Powell, also abolished regulations that prohibited a company from owning a newspaper and a television station in the same area, but there was insufficient support in the Senate to repeal this cross-ownership provision.)
But the Senate vote is only the beginning of a much larger campaign for some who have been itching to re-regulate television and radio for the last two decades. By tweaking media consolidation rules, the FCC reopened a debate that started at the commission's creation in 1934. The "fairness doctrine," a set of rules requiring that radio and television broadcast stations present a variety of opposing views, was in effect from 1945 until 1987 (when Reagan's FCC repealed it), and the scuffle over the FCC's latest decision has reinvigorated efforts to bring it back.
Three days after the FCC announced the new rules back in June, Maurice Hinchey, Democratic congressman from New York, released a statement headlined "Hinchey Vows to Reclaim Airwaves for Public." Repealing the FCC's action is not enough, he says. In the coming weeks, he plans to introduce a bill that would reinstate the fairness doctrine not as a mere FCC rule, but as legislation. Though the fairness doctrine is often referred to as the "equal time rule," Hinchey says his bill would not explicitly require equal time, only "more diverse" views on all stations.
The concept behind the fairness doctrine seems innocuous. But in practice, Hinchey's bill would get the FCC into the business of dictating content, and owners of radio and television stations would be forced to broadcast opinions they don't espouse. Aside from a host of First Amendment concerns, critics of the doctrine say it could actually result in more uniformity, not more diversity. If every station offers the same pair of "opposing viewpoints" in order to fulfill its obligations to the FCC, stations will become indistinguishable.
The FCC, which licenses broadcasters to use discrete portions of the broadcast spectrum, has a responsibility to promote the "widest possible dissemination of information from diverse and antagonistic sources," according to its charter. The broadcast spectrum is a limited public resource, say defenders of the fairness doctrine, and to ensure that it meets the demands of its charter, the FCC must react to this scarcity by monitoring content.
But it turns out we have a lot more spectrum than we thought, and a lot less demand for it than anticipated in 1934, during the fledgling days of television. The fairness doctrine was crafted before cable television, digital television, and the Internet relieved demand for spectrum space. The existing rules predicated on scarcity are simply outdated, rendered irrelevant by unforeseen technological advances, according to Powell's FCC.
In 1980, there were 75 all-talk radio stations in the country. Now there are more than 1,300. Hinchey dismisses the proliferation of media outlets, saying the "alleged existence of a great diversity" is undermined by the fact that the outlets "are increasingly controlled by a limited number of organizations and people."
Those 1,300 talk stations, nearly all born since the repeal of the fairness doctrine and nearly all right-leaning--with the exception of Pacifica Radio--will be in the thick of the battle over Hinchey's bill. The legislation--which has been called the "Crush Rush" bill (most notably by the king of conservative talk himself, Rush Limbaugh)--would hurt conservative radio the most. But it would also have a chilling effect on political coverage on stations with other formats, says Braden Cox, technology counsel at the Competitive Enterprise Institute, making broadcasters reluctant to address controversial issues for fear of running afoul of the FCC. After all, radio and television stations depend on the FCC for their existence, and can't afford to antagonize the entity that renews their licenses.
Limbaugh, Sean Hannity, and dozens of less popular shows have already begun efforts to stop the reinstatement of the fairness doctrine. And though Limbaugh himself has a large enough audience to guarantee that he won't be kicked off the air, his second- and third-tier colleagues are less secure, and he's more than willing to put up a fight to keep them from getting cancelled to make room for mandatory "opposing view" programming.
Congressmen who support Hinchey's bill may be "sorry they pulled this tiger's tail," says James Gattuso, research fellow in regulatory policy at the Heritage Foundation, when the talk radio hosts "really get geared up." They will be fighting for their livelihood, and there won't be any law (yet) that says they have to give airtime to the other side of the argument.
The current attempts to overturn the FCC's June ruling serve as a trial balloon for Hinchey, who says he has been interested in getting the fairness doctrine back on the books "since the '80s." Though the "congressional veto" of the FCC's decision made it through the Senate by a comfortable 54-40 (Trent Lott and Kay Bailey Hutchison voted for it, a move they may later regret), House majority leader Tom DeLay declared the bill "dead on arrival" in the lower chamber and said it won't come up for a vote anytime soon. The president has indicated that he will veto the bill if it comes to his desk. It would be his first veto.
In case the House fails to go along with the Senate's Tuesday vote, Republican Ted Stevens of Alaska has covered all the bases by inserting a rollback provision in the Senate appropriations bill for the Commerce, Justice, and State Departments. The rollback would prohibit the FCC from using any of its funds to implement the new regulations. Though this provision may be challenged now, it could easily be incorporated into an omnibus appropriations bill later in the year, and become law when Bush signs the budget.
In short, it's business as usual--the FCC is stalled. But bringing back the fairness doctrine is not the way to break the deadlock, and attempts to do so will unleash the wrath of a thousand right-wing talk radio hosts. It won't be a pretty sight.
Katherine Mangu-Ward is a reporter at The Weekly Standard.