McDowell: Fairness Doctrine Still Needs To Be Repealed

Two decades after supposed repeal, still codified in CFR

FCC Commissioner Robert McDowell is calling on the commission to officially repeal the so-called Fairness Doctrine, which most people thought the FCC did more than two decades ago.

In a speech to the Telecommunications Industry Association in Dallas, McDowell said that he has discovered that the doctrine, which the FCC concluded was unconstitutional and unenforceable back in 1987, is still on the books.  That means that a new commission would simply need to come to a different conclusion than the Republican-led commission that stopped enforcing it to exhume the rule.

"The Fairness Doctrine is literally still codified in the CFR," he planned to tell the  crowd, according to a copy of his prepared text. "We stumbled on this forgotten fact while researching material for this speech," he said, adding that it would likely be the headline coming out of his speech, which dealt more broadly with regulations the FCC could just as well do without, starting with the network neutrality rules passed over his objections last December.

Republicans continue to raise the specter of the doctrine, which required broadcasters both to air and to seek out opposing viewpoints on controversial issues of public importance.

Its departure helped usher in conservative talk radio, and some democrats in the past have argued for its return as a governor on that speech. FCC Chairman Julius Genachowski and even the president have said they do not support the doctrine and that it is not coming back. But some Republicans see its shadow in issues like proposals of community advisory boards for TV station public interest programming.

But McDowell was not talking shadows. "The...Fairness Doctrine.  It still exists!" he said.  "No, it doesn't still exist the way Elvis 'still exists.' The Fairness Doctrine is literally still codified in the CFR [the Code of Federal Regulations, 'the codification of the general and permanent rules published in the Federal Register by the executive departments and agencies of the Federal Government']. We stumbled on this forgotten fact while researching material for this speech. For those of you who have no idea what I am talking about, the Fairness Doctrine was a rule... well, still IS a rule, apparently ... that thrust the government's coercive reach into editorial decisions of broadcasters.  In short, the Doctrine regulated political speech."

Suffice it to say that political speech is core protected speech under the First Amendment, and the Fairness Doctrine is patently unconstitutional.  The FCC decided as much in 1987 when everyone assumed the FCC killed it. We thought that this monster's dead and stinking corpse was left to rot in a government graveyard.  Instead, it appears that the Commission merely opted not to enforce the rule. Its words still defile the pages of the CFR, and we should erase it with a repeal order immediately."

But McDowell went farther. He said the FCC should immediately initiate "a full and thorough review of every FCC rule, not just those that apply to telecom companies, but all rules that apply to any entity regulated by the Commission. The presumption of our review should be that a rule is not necessary unless we find compelling evidence to the contrary."

He said the first rules he would get rid of are the net neutrality rules, but conceded that would realistically be a job for the courts, where the rules, not yet in effect, will almost certainly be challenged.

He said he would also get rid of the 2007 requirement that TV stations to tell the government what kind of public service programming they were airing and when. He says that broadcasters estimated that would add the cost of two full-time jobs to comply. "[A]t the time of its adoption I overheard one advocate exclaim joyfully, ‘Two full-time jobs? That's terrific. That's job creation!'" said McDowell. "Of course, they didn't realize that the new requirement would result in the elimination of two jobs elsewhere at the station, such as the newsroom, to pay for the new mandate."