Anti-media-consolidation activists plan to use the flap over Sinclair Broadcast Group Inc.'s airing of a documentary critical of John Kerry to push for reimposition of the Federal Communications Commission's personal-attack rules and fairness doctrine.
In a conference call with reporters Wednesday, representatives of Common Cause, the Alliance for Better Campaigns, Media Access Project, Media for Democracy, and the Office of Communication of the United Church of Christ said that Sinclair's decision to carry the documentary three weeks before the election on all of its 62 stations represented a political agenda at odds with its responsibilities as licensees to be, well, fair and balanced.
"Acts of extreme bias may violate broadcasters’ statutory public interest obligations, and should be addressed in license renewal hearings at the Federal Communications Commission," said Meredith McGehee, executive director for the Alliance For Better Campaigns.
The groups were not asking for the documentary to be pulled, pointing out that they hadn't seen it and it wasn't the government's place to do so anyway.
But they do want Sinclair to offer a similar amount of time for an opposing view. If Sinclair doesn't offer the time, all 62 of its TV licenses could be challenged, though on what grounds beyond the interpretation of the public interest remains to be seen. Sinclair has offered rebuttal time to candidate John Kerry, but the groups say that is not sufficient to balance the documentary.
Whether or not Sinclair provides the other side in this instance, the groups want the FCC to make it mandatory again as a check on the consolidated media. Media Access Project head Andrew Schwartzman said they would ask the FCC to reinstate the personal attack rule, which was thrown out by the courts in 2000 after the FCC on several occasions failed to justify why it was still on the books.
The rule was a corollary of the fairness doctrine, which the FCC threw out in 1987. Once that doctrine was gone, the court asked the FCC to justify why its corollaries, which also included the political editorializing rule, were not similarly invalidated.
The Fairness Doctrine grew out of Section 315 of the Communications Act, which still requires broadcasters who allow one candidate to use their airtime to make time available to opposing candidates (the so-called equal opportunities clause), though they are not required to offer time to either (they are required to sell time to candidates).
The FCC extended those rules into a general doctrine that station had to "Afford reasonable opportunity for the discussion of conflicting views on issues of public importance." The Supreme Court upheld the doctrine as constitutional in the 1959 Red Lion decision--invoked by activists Tuesday in arguing for enforced fairness--citing the scarcity of broadcast frequencies as a rationale for what they conceded resulted in a lesser First Amendment for broadcasters.
The 1987 commission, under Chairman Dennis Patrick, scrapped the doctrine in 1987, saying that the scarcity rationale no longer applied and that the doctrine amounted to editorial decisions imposed by "bureaucratic fiat."
The personal attack and editorializing rules, which were opposed by both the National Association of Broadcasters and the Radio-Television News Directors Association, required broadcasters to to provide airtime for respondents to political editorials or personal attacks.
the 1987 FCC said it wasn't sure its ruling encompassed the corollaries and that it would address that issue "in the near future." It didn't.
The court threw the corollaries out in 2000 for the FCC's failure to justify them, but did not rule on their legal merits. Armed with the Red Lion and the court's openness to a justification of the corollaries on their merits, a new FCC is free to revive them so long as they justify the move and that justification passed the inevitable court challenge.
The groups will have at least one advocate on the commission. "The commission has weakened or eliminated virtually all the public interest responsibilities of broadcasters," FCC Commissioner Michael Copps said Wednesday of the the activists' effort. "It's long overdue for the commission to consider reimposing the personal attack and political editorializing rules."