If the Nov. 4 election plays out as the polls and pundits were predicting last week, Democrats will control the White House and increase their holds on the House and Senate.
The combination of Barack Obama in the White House, Nancy Pelosi as House Speaker and Harry Reid as Senate Majority Leader has breathed new life into conservatives' fears that a new Democratic-controlled Washington will try to rein in their broadcast critics by reimposing the Fairness Doctrine. At the same time, opponents of the FCC's indecency crackdown are buoyed by what they see as the prospect of less, not more, government control of content.
The Fairness Doctrine was the FCC rule that required broadcasters to air both sides of controversial topics. Its nullification by the commission in 1987 paved the way for Rush Limbaugh, Sean Hannity and others, whose opinionated radio talk shows don't have to pull punches to placate a government standard of fairness.
Speaker Pelosi's office has raised the specter of its return. More recently, Sen. Jeff Bingaman (D-N.M.) said in an interview on talk station KKOB-AM Albuquerque that he hoped there would be a push for the doctrine, saying that “all stations should have to represent a balanced perspective…instead of always hammering away at one side of the political [spectrum].”
Combine that with conservative George Will, who flatly declared in his syndicated column in September that “unless [John] McCain is president, the government will reinstate the…misnamed Fairness Doctrine,” and other talk shows and online message boards began buzzing about the threat to conservative media from an Obama victory.
WMAL-AM Washington, co-owned with KKOB and a strong conservative voice in the nation's capital, devoted a segment two weeks ago to the prospects of the doctrine's return under a Democrat-controlled government, drawing calls from concerned listeners.
Obama's press secretary reiterated last week that Obama stands by the statement he gave B&C in June that he “does not support reimposing the Fairness Doctrine on broadcasters,” calling the debate over the doctrine “a distraction from the conversation we should be having about opening up the airwaves and modern communications to as many diverse viewpoints as possible.”
Obama and McCain agree about reimposing the doctrine, if not on many other things. McCain introduced the Broadcaster Freedom Act in 2007, a bill that would prevent the reinstatement of the doctrine. “This regulation had a chilling effect on free speech,” he said at the time, “and it is hard to imagine that the American people would support reinstating a policy where the federal government would be required to police the airwaves to ensure differing viewpoints are offered.”
An Obama administration is also less likely to have the FCC policing the airwaves for stray swear words and swaths of uncovered skin.
On the same day that the fate of the next administration is being determined, the Supreme Court will hear oral arguments in the FCC's appeal of its lower-court loss in the fleeting-profanity finding against Fox. The FCC's indecency enforcement regime has had a huge impact on the industry, from tape delays to self-censorship to huge fines and consent-decree settlements.
While the indecency crackdown has had bipartisan backing, an Obama administration would likely be less interested in regulating TV content than the Bush administration. Obama told B&C in an interview earlier this year that he favors parenting and technology over government regulation of what consumers see and hear. This will depend to a certain extent on the Supreme Court's decision in the Fox case and what the instructions to the FCC wind up being, as well as who is charged with carrying them out.
If FCC Commissioner Michael Copps, a Democrat, becomes chairman, veteran indecency attorney John Crigler says he does not see a major change in indecency policy. But Crigler adds that the commission's other Democrat, Jonathan Adelstein, would be more open to change as chairman: “I think [Adelstein] would welcome a chance to rethink [indecency enforcement] using some judicial instructions [from the Supreme Court] as a justification.”
That would certainly square with Obama's stated philosophy, Crigler says: “I think [Obama's] approach to indecency would be similar to his approach to war—indecency regulation would be a last resort.”
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