Unfairness Doctrine

Periodically over the years, online discussion of various news and information sources and their shortcomings will pivot to assertions that the whole problem is a result of some president (generally asserted to be one of those opposing the ideology of the speaker) “repealing the Fairness Doctrine.”  More often than not this is “blamed” on Ronald Reagan, as it was during his term that we saw the advent of cable news networks, starting with CNN which began broadcasting during the Iran Hostage Crisis in 1980, and it is usually the bias (real and perceived) of these networks that is the subject of contention when this comes up.

Unfortunately for proponents of this solution, it won’t work and it can’t work.  The FCC has no power to regulate content on private networks, and never has; that’s how HBO and PPV porn and all the other “adult” content available on cable TV now came into being.

Extending the FD as active practice much beyond the advent of CNN would have only served to tie the hands of local and network broadcast TV news and radio news, without doing anything to prevent cable news from showing however much bias they wanted.

The Fairness Doctrine didn’t die because someone was ideologically motivated to kill it; it died because it was an unworkable rule in the age of subscription broadcasting that would have left traditional broadcasters using “public airwaves” stuck in a model of being locked in to a set of regulations that subscription (cable) broadcasters were free to ignore.

Similar idiosyncrasies of broadcasting regulation are the reason Presidential debates are no longer required to feature third party and independent candidates; they’re not produced by the networks anymore.  The networks were required to provide “equal time” to qualified candidates when they sponsored/hosted the debates.  Since the Commission for Presidential Debates was formed as a non-profit owned by the two major parties in 1987, there has been only one independent or third-party candidate allowed to participate:  Ross Perot in 1992.  It’s speculated that the only reason this happened is that Perot was polling around 20% at the time and refusing to allow him to participate would have too egregiously revealed to the general public that the debates were now under the exclusive control of the two major parties.

The FCC has regulatory authority over the mechanical functions of cable and satellite broadcasts. For instance, they can allocate bandwidth for particular purposes and provide for penalties when these frequencies are misused.  These allocations change over time, for instance in April 2017 auctioning of the “600mhz band” of frequencies to mobile phone carriers was completed.  This had the practical effect of making all wireless microphone and monitor transmitters/receivers operating in that band (roughly 614mhz to 698mhz) functionally illegal. Prior to the advent of digital broadcasting this bandwidth had been allocated to television broadcast channels 38-51; microphone manufacturers used this space as well, offering each of their models in several “bands” that would allow them to avoid interfering with television stations in a given locality, e.g. if Shure microphone’s designated Band A was 614Mhz and you lived in a city with a UHF Channel 38, you wouldn’t want to use a Shure Band A wireless mic in that city.

That bandwidth has now been auctioned off, with a “grace period” to decommission existing equipment that ends, I believe on Jan 1 2020.  After that, using the old wireless systems that operate somewhere in that range runs the risk of very serious fines and potentially criminal charges if your equipment steps on signals from the mobile phone providers who have leased that bandwidth and will begin operating within it at that time.

As a matter of regulatory authority, now that this segment of bandwidth has moved from the “public” to the “private” sphere as it’s now leased by private companies rather than allocated/licensed by the FCC to individual broadcasters, the FCC cannot regulate the content that is broadcast over those frequencies.  We’ll explore why that’s important below.

The Fairness Doctrine only applied to broadcast licencees – broadcasters using public airwaves under FCC license.  This means it did not apply to cable television or satellite channels, and that is why the FCC stopped enforcing it; it was not only pointless but unfair to do so as it exerts a restriction on over-the-air broadcasters that cannot be exerted over cable and satellite broadcasters (or newspapers, by the way).  The FCC doesn’t have authority over cable and satellite content because cable and satellites are privately owned, including those segments of the radio frequency spectrum leased by satellite and mobile service operators. The only way to legally grant the FCC authority over cable television content would also allow them the ability to regulate various protected expression on private property including political speech, adult content, etc., which means repealing the first amendment.

The FCC has control over the content of over-the-air broadcasts because 1) the “air” is legally the property of the people and 2) what’s broadcast over the “air” can be received unintentionally – without your consent – or by people it’s not intended to reach, like children. This means that information broadcast on public airwaves can be said to be “forced” – you are no longer engaged in “free speech,” but in dictating your point of view to a “captive” audience, even if that audience is “captive” only by virtue of having stumbled across your broadcast. It’s a very thin and fine line, but it’s been pretty clearly defined over a century and a half of regulation and jurisprudence.

This is exactly the reason the Supreme Court ruled in favor of the FCC during the “Seven Dirty Words” case (FCC v Pacifica Foundation), but was also VERY clear in ensuring their ruling applied only to that case and not to other future cases where the same or similar words might be contested. The “safe harbor” hours of 10pm to 6am, during which over-the-air broadcasters may broadcast indecent (but not “obscene”) material, was also established in this ruling. The entire thing hinged on the idea that a fifteen year old kid heard Carlin’s 7DW routine broadcast uncensored while flipping through the radio dial in the car in the afternoon; he couldn’t avoid hearing the dirty words, and the court said that’s not cool but only in this case; if he heard those words because he came across, say, a broadcast of the Watergate Tapes, maybe that’s a different thing and we’ll consider it when it happens (it hasn’t happened yet). The “safe harbor” hours (2200-0600 in the US) were based on the premise that anyone young enough to be “damaged” by hearing or viewing “indecent” content would likely be asleep during those hours.

Cable and satellite broadcasts are things you must choose to receive by subscribing and paying a fee. Consequently they are considered “private property,” and any regulation of their content immediately violates the First Amendment.

So, why aren’t there snuff films or bestiality or kiddie porn on cable television? Because those things are already illegal in and of themselves; it’s not legal to possess them at all, period. So if HBO broadcast a snuff movie, they wouldn’t get busted for broadcasting it; they’d get busted for possessing it in the first place. This is also why films with content that some may feel pushes the boundaries of legality, like “Pretty Baby,” “Taxi Driver,” or “The Blue Lagoon” (all films which have generated considerable public disagreement on definitions of obscenity and sexual exploitation of children) don’t end up in court when they’re shown on pay-TV channels; whatever contention might be involved in deeming them illegally obscene would be a question of challenging the films themselves on their content, not of challenging the subsequent broadcasting of the films.  If it’s legal to own, it’s legal to broadcast on cable television, no matter how you or I may feel about whether it’s “obscene.”

Another argument one hears frequently when pointing these realities out in conversation is that since utility poles are public property, the FCC has the right to regulate what’s carried on them.  However, utility poles aren’t public property and haven’t been since the days of the telegraph, although this is a common misconception. They’re owned by the utilities who put them up and there’s a whole framework of laws in place to regulate how they must-should-shouldn’t-can’t be shared among carriers.

I would, as an ideological matter of opinion, like very much to shut Fox News up, or down as the case may be.  They broadcast outrageous lies that have done incalculable damage to our national discourses and politics, and the harm they have done amounts to an overt treason against the principles of freedom and democracy on which this country is based, in my opinion.

However, there is no legal way to do so without putting the government in a position of being legally allowed to dictate content on privately owned media. One might think that’s fine and dandy when one is ideologically aligned with the government in power; when one is opposed, however, one can readily see why this is a serious problem.

To give the FCC legal authority to say what may and may not be broadcast over a private network would IMMEDIATELY give them the legal authority to tell you what you can and cannot write and publish on the internet, or even on your cell phone in private conversation. The Trump Administration says your analysis of the Russia investigation is “fake news,” and poof! Your analysis is no longer legal and you are subject to prosecution because the government has been given the authority to determine what is and isn’t okay to say on a private network.

Indeed, granting the federal government this power would give them the legal authority to listen to every phone conversation and potentially sanction or charge participants who said anything “obscene,” which would definitely end the sexual aspect of many long-distance relationships and, here in 2018, entirely wipe out a huge chunk of the adult entertainment business (and if you know your com tech history, stifle further innovations; streaming, compression, and most other technologies we take for granted that power platforms like YouTube and Netflix started off as horndogs trying to find ways to look at higher quality dirty pictures faster).

This is also the big stumbling block to regulating the internet as a utility. Once you do that, you open a Pandora’s box of possibilities for abuses of power by the currently-reigning administration, whoever they may be at any given time.

FCC regulations are written (authorized, really, but in the legal sense they’re written) by Congress. “Congress shall make no law…abridging the freedom of speech, or of the press…” First amendment strikes again. The only way to give the FCC that much power would be to repeal the first amendment, and I think we can all agree that’s a bad idea. This is why the FCC’s regulations regarding “fleeting expressions” of indecency were ruled unconstitutional by the courts in 2010.

What CAN be done is focus on education and empowerment of consumers so they stop falling for, and propping up, Fox-style “news” organizations that just pander to confirmation bias and call it information rather than what it is, which is opinion. This is done through fully funded public education requiring comprehensive instruction in critical thinking, to include media analysis.

That’s the only way you get rid of Fox News – or it’s recently emerged analogues “on the left,” for that matter – in a free country: teach people why they don’t deserve the support of advertisers and viewers, and they’ll go away.  Unfortunately this is a difficult and slow process, and opposed by many conservative members of school boards across the country who oppose critical thinking because it encourages young people to question parental, governmental, and ecclesiastical authority, and lacking any reasonable means to continue exerting that authority those conservative members lose power and respect in their families and their communities.  In short, it’s an ego battle waged by those who lack any reasonable basis to hold power over other people.

Ending that is the only way to end the influence of “bad” news regardless of ideology.

Any other solution requires repealing the first amendment, and that is simply not acceptable in a free society.

Finally,regarding the basic factual accuracy of the rise and fall of the Fairness Doctrine, it stopped being enforced by the FCC around 1987 at the direction of the Reagan Administration.  It was not formally repealed until President Obama did so in August of 2011.

As a matter of well-reasoned critical analysis, please by all means don’t take my word for any of this.  I’m just relaying what I was taught in COMM2400 at Western Michigan University from September to December of 2011, according to my notes. (Psst:  that means I paid to learn these things and understand them, and now I’m passing that understanding on to you for free!  If you feel like it’s worthwhile, you can send me a thank-you tip via https://paypal.me/johnhenryus!)  You should be able to find the same information, including the court rulings, by exploring the footnotes to Wikipedia’s article about the “Seven Dirty Words” case at https://en.wikipedia.org/wiki/Seven_dirty_words