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McDowell Warns Against Re-Imposing Fairness Doctrine, Cites Obama's Opposition

FCC commissioner says re-imposing Doctrine could undermine local and kid's TV regulations 1/28/2009 04:30:08 PM Eastern

FCC Commissioner Robert McDowell had a message for Democrats, or anyone else contemplating trying to re-impose the fairness doctrine: The move could undermine the justification for existing localism and children's TV regulations, and could be used against public radio.

He also suggested it would not come back wearing a big sign saying, "it's me, the fairness doctrine," but would likely instead be rebranded.

Those were some of the observations McDowell provided Wednesday in a speech to The Media Institute in Washington, which is a strong opponent of the doctrine. A copy of the speech was supplied to B&C.

In the speech McDowell cited candidate Barack Obama's statement to B&C--through an aide--that he did not support the doctrine, and added that "the new administration has a terrific opportunity to enunciate its strong opposition to anything resembling the fairness doctrine.

He spoke at length about the doctrine's origins and its use by both Democrats and Republicans against their opponents. He said he did not know whether recent calls for its return would bear fruit, but felt it was a good time to talk to his audience--of media executives, lobbyists, journalists and others--about its creation, its historical abuses, and the legal difficulties involved with restoring it and trying to enforce it.

The fairness doctrine, which was scrapped by the FCC as unconstitutional in 1987, required broadcasters to air both sides of controversial issues.

McDowell warned that if the doctrine were revived, it might not "wear the same label. That's just Marketing 101: if your brand is controversial, make a new brand," he told his audience.

He suggested the doctrine could be woven into the fabric of policy initiatives with names like localism, diversity or network neutrality. "According to some, the premise of any of these initiatives is similar to the philosophical underpinnings of the Doctrine: the government must keep electronic conduits of information viewpoint neutral," he said.

McDowell suggested that a stealth version of the doctrine may already be teed up at the FCC in the form of community advisory boards to help determine local programming. McDowell says he is fine with those boards if they are voluntary--some stations already seek such input. But that if they are required, as the FCC has proposed, "Would not such a policy be akin to re-imposition of the Doctrine, albeit under a different name and sales pitch?"

McDowell also said that efforts to re-impose the doctrine could stretch to cable, satellite, and even the Internet. "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," adding: "I am not making this up."

In a move obviously calculated to strike fear into the hearts of regulatory-minded Democrats, the same ones who have been making noises about liking the fairness doctrine when it comes to reining in talk radio critics, McDowell had this:

"Actually, in a string of media cases stretching back over more than 20 years, various judges on the D.C. 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 bulls-eye for those who wish to make that happen. That development would have implications far beyond the Doctrine itself. Much of our content regulation of broadcasters - including most of the FCC's existing localism rules and the regulations requiring three hours a week of children's programming - rest on the spectrum scarcity rationale. If that rationale is invalidated, serious legal challenges to all those other content rules may follow."

McDowell said he was hopeful that the Obama administration understood all this.

"As I watched his inaugural address last week," he said, "I was struck by the relevance of the debate over the Doctrine to a section of his speech where he said, 'To those who cling to power through corruption and deceit and the silencing of dissent, know that you are on the wrong side of history ....' 'I am 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."

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