Guest Blog: The Unfairness Doctrine

By William O’Shaughnessy

An influential communications blog recently called for the re-imposition of the so-called Fairness Doctrine, suggesting that House Speaker Nancy Pelosi might favor the effort. “It will not surprise us if the Fairness Doctrine returns and we wouldn’t get all that upset about it. Speaker Nancy Pelosi wants it back on the books. It could be good for broadcasting.”

I’m absolutely opposed to this and just to make myself clear, we’ll refer to it henceforth as the Unfairness Doctrine.

The misnamed doctrine was struck down on August 4, 1987 by an enlightened FCC of its day. And although the darn thing sometimes resembles Lazarus in the Bible in that it keeps jumping up again and again, I hope we won’t associate ourselves with any recurring assault on the First Amendment rights of broadcasters, no matter how agreeable and deceptively named.

It’s very simple and very fundamental: The Federal Communications Commission and the Congress should not be allowed to dictate our agenda or shape our priorities. Our opposition to any Unfairness Doctrine is based, in every season, on the bedrock, fundamental wisdom of the Founders: “Congress shall make no law. . .” You know the rest.

The bloggers may have Nancy Pelosi on their side. I’m afraid I only have James Madison.

In our best moments we are electronic journalists at the People’s business. And clearly, it (any doctrine by government fiat or decree) would be an impermissible intrusion into the editorial process and an inhibitor rather than promoter of controversial expression. It would unquestionably inhibit the presentation of controversy. So much for “balance.”

I don’t think we want to be among those who would intensify the chill an Unfairness Doctrine would induce. We either believe in the principle that broadcasting is entitled to the full freedom of the press that the First Amendment guarantees. . .or we do not.

Governor Mario Cuomo instructs us:

“You can’t get at bad taste and destructive communication through regulation. That’s just substituting one evil for another. The ceding of authority, on a basic principle, has to come back to haunt us.”

The great Cuomo (whom the Boston Globe calls “the preeminent philosopher-statesman of the American nation”) is saying that maybe this generation of broadcasters, buffeted by new technology and competition (and consolidation), can survive by what I’ve called our “obsequious acquiescence” and by pulling our punches on free speech and content issues like an Unfairness Doctrine, but our kids won’t—the people we leave our businesses to.

BARGAINING CHIP. I’m afraid broadcasters are not united in pushing for our long-overdue independence from content regulation. In every season, it seems, structural, so-called “pocketbook” issues take precedence among the speculators and investors, and even some broadcasters—those “market managers” who operate out of airport lounges with their PalmPilots and Blackberries, beholden to corporate masters a whole continent away. They’ll beat their breasts about ownership caps, newspaper-broadcast cross-ownership, multicast-must carry, dual-carriage, retransmission consent, a la carte pricing, fin-sin rules, performance taxes, the DTV spectrum and those white spaces in the DTV band, low power FM, satellite radio, SOARS repeaters, copyright royalties, main studio location, competition from telcos and iPods, etc.

But the broadcasting establishment and the NAB Board, sadly, have always viewed the First Amendment as a stepchild among our priorities and even, occasionally, as a bargaining chip.

So before anyone attempts to bestow their imprimatur, it would be wise to give this some thought lest a lot of owners, people who make profits in this business (again, read: profession), will sell freedom for fees or accommodation on structural, competitive issues. They will make deals with Speaker Pelosi and Congress. They will accept regulation we shouldn’t be accepting—all in exchange for an opportunity to make more money, thus adding their weight to a destructive principle.

And what’s more (and worse), they will flee from any controversial or meaningful programming and throw Radio back to its “jukebox era.”

That is the real danger. And I don’t think you want to encourage that.

UNITED EFFORT. Why not instead use our resources and energy to revive our own flagging spirits and lack of attention to these fundamental issues? All elements of today’s modern media would be better served by a united effort by broadcasters, podcasters, bloggers, Internet entrepreneurs, cable operators et. al.—all those now firmly fixed, and those just entering, the Information Age—to develop a consolidated, joint resolve against government intrusion into content and free expression.

Fairness? Balance? No matter how comforting it would be for the Congress and the Commission to wrap themselves around “fairness,” a concept not explicitly or penumbrally protected by the Constitution as free speech and free press expressly are, I am confident the Supreme Court will one day be compelled to concentrate on the clear, certain, elegant, unvarnished language in the First Amendment of the Bill of Rights should we ever again be confronted by the siren song of “fairness” by government fiat, decree or doctrine.

No one disputes what has been called the “coarsening” of our culture. And yet the quest for “fairness” and “balance,” while understandable, and even commendable, is every much a fool’s errand as the crusade to install “decency” on the nation’s airwaves. And perhaps even more dangerous.

Bill O’Shaughnessy is president & CEO of Whitney Radio and editorial director of WVOX, New Rochelle, NY. He can be reached via cindy@wvox.com.