Changes in store at the FCC

From the Winter 2009 issue of The News Media & The Law, page 13.

There may be changes ahead at the Obama-era Federal Communications Commission in the prevailing views on media ownership and indecency regulation. But experts say that despite rumblings of a possible return to the Commission’s former and controversial Fairness Doctrine, that particular shift is unlikely to materialize.

Fairness Doctrine

The Fairness Doctrine was a 20th century FCC rule that required broadcasters to provide equal airtime to all sides of a political issue. The policy was repealed in the 1980s. Some Democratic leaders, such as House Speaker Nancy Pelosi, have spoken out somewhat positively about reinstating the doctrine. Conservative commentators have been sounding the alarm about the potential return, but those familiar with FCC policy say the panic is probably baseless. No such legislation has been introduced so far, nor does Obama appear keen to press the issue.

“I’m not sure whether this is a red herring that conservative radio personalities are putting out there to get their base riled up, but based on indications from the Obama campaign from the summer, it’s not something that he is interested in,” said LaVonda Reed-Huff, a communications law professor at Syracuse University College of Law. Rather, she thinks the Obama administration will focus on diversity in media as a top administration priority.

Indeed, an Obama spokesman last year called talk of returning to the fairness doctrine “a distraction” and said the then-presidential candidate did not support reimposing it.

Regardless, concern about the Fairness Doctrine lingers. Republican FCC Commissioner Robert M. McDowell in a Jan. 29 speech blasted the doctrine, and said it “could be intertwined into other communications policy initiatives that are more certain to move through the system, such as localism, diversity or net 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,” McDowell said.

The commitment to localism and diversity is a long-standing FCC-imposed obligation on broadcasters. Because broadcasters use public airwaves, they are required to serve their local communities’ needs and interests. Unlike the Fairness Doctrine, these rules have held steadily in place for decades.

Obama himself has explicitly touted the importance of the communications policy initiatives McDowell cites as being dangerously close to the Fairness Doctrine.

“I think communications policy must be more focused on the public interest, more inclusive of non-industry voices and analysis, and maximize opportunities for the expression of a diversity of views,” Obama said in a 2008 interview with Broadcasting & Cable.

Those in favor of greater media diversity caution against mistaking Obama’s support of diversity in media ownership for an affinity for the Fairness Doctrine.

“The Fairness Doctrine is a very specific set of policies having to do with broadcasters’ coverage of controversial issues. The obligations to be responsive to the needs of the community, while not unrelated to the goals of the Fairness Doctrine, are much broader,” said Andrew Jay Schwartzman of the Media Access Project. Commentators “are painting it with a broad brush because opponents of enhanced regulation with respect to the broader obligations are trying to ‘expand the brand’” of the Fairness Doctrine.

Media Ownership Rules

During George W. Bush’s presidency, former FCC Chairmen Michael Powell and Kevin Martin backed the loosening of media ownership rules, which would likely result in a greater consolidation of media sources. But Congress blocked that effort.

Obama’s influence is expected to slow for the next few years the remaining push-pull on FCC media ownership rules. While former FCC leaders have attempted to relax those rules, Obama has repeatedly spoken out against allowing more consolidation, and voiced his support for diversity in ownership.

The clearest example of the tension between opposite sides of the media ownership debate occurred in 2008, when the FCC renewed a push to change a 1975 rule that prohibited a newspaper in a major media market — that is, a specific metropolitan area — to own a television or radio station in the same market. The polarization was drastic and immediate. In response to the new rule, the Bush administration released a “Statement of Administration Policy” claiming that the rule “modestly and judiciously modernize[d] decades-old media ownership regulations that highly restrict cross-ownership of newspapers and broadcast stations” and that it actually furthered the public interest, not by ensuring a diversity of sources, but by providing greater financial flexibility to media outlets.

Others vehemently disagreed. Then-Sen. Obama and Sens. Joseph Biden and Hillary Clinton, who are now vice president and secretary of state, co-sponsored a bipartisan resolution that would block the new rule. The resolution passed on May 15, and the ownership rule remained in its old form.

Since then, Obama has continued to assert his desire to increase the amount of diversity on the airwaves, partially by slowing media consolidation.

One likely change in the FCC will be “much more aggressive review of proposed mergers,” Schwartzman, Media Access Project’s president, said.

Indecency

Finally, Obama’s official policy statements on indecency regulation of broadcast television seem to be a break with the policies of years past by placing the First Amendment at the forefront.

The Obama administration’s official report on technology pledges to “give parents the tools and information they need to control what their children see on television and the Internet in ways fully consistent with the First Amendment,” which seems to signal blocking technologies such as the V-chip, a device required to be installed on every modern television set by law. The Obama platform embraces what some advocates see as a more appropriate balance between preserving family-friendly programming during safe-harbor hours (6 a.m. until 10 p.m.) and limiting the potential for self-censorship by content producers. Citing First Amendment freedoms and rights to artistic expression, the Obama policy stated it “does not view regulation as the answer.”

“Given modern technology and increasingly sophisticated cable and satellite boxes and services, the market should be able to rise to meet the market demand to protect kids from indecent content,” Obama told Broadcasting & Cable in 2008. “If the market fails to meet that demand, legislative and regulatory action may be necessary — but it must be crafted carefully and focus not on content censorship, but rather on tools for parents.”

However, because of what was at times broad bipartisan support for aggressive indecency regulation, along with intense congressional pressure, how the new FCC will actually regulate in that area is very much unknown, Schwartzman said.

Another aspect that might affect FCC policy under Obama is the Supreme Court’s issuing of an opinion this term in FCC v. Fox, a dispute over the legality of an abrupt Commission policy change on fining broadcasters who air expletives that are not repeated and not intentional, also known as “fleeting expletives.”

“The FCC might have to tweak its indecency rules to address whatever the court’s decision is,” law professor Reed-Huff said.