Free speech is different from fair speech. The constitution demands free speech and a free press. Advocates of fairness simply don't like that. That's why there's a debate over the Fairness Doctrine and whether broadcasters are entitled to freedom or fairdom in their programming. Who does freedom help? What imbalance does fairness address? Is it possible that some imbalances were intended by the Framers of the Constitution? Is a fair media more noble than a free one? Or is fairness a lower journalistic (or human) standard? Is a fair country better than a free one? Is a fair media worse than one that's free? Who is free to decide what's fair? For fifty years most Americans assumed that the public owned the airwaves. And because they owned this scarce resource, their government claimed an obligation to police it. Suddenly there are questions about both the propositions of scarcity and public ownership of the broadcast spectrum. Plus there's drawing skepticism over the motive, method, and lawfulness of the government's intrusion into the flow of speech and expression through those airways. Understand one thing before we begin, he who defines fairness, defines what is speech, and what isn't. It's the power to liberate and to censor. It is the oldest and most primal debate because it is all about power. In 1895 Guglielmo Marconi discovered the radio waves. In 1927, the American government declared that it owned them. Because of a limited number of positions on the broadcast spectrum it became necessary to allot frequencies and wattage among competing broadcasters. But the Radio Act of 1927 assumed not just a governmental right to regulate traffic, it went further and socialized the airwaves. Oddly, that public ownership claim has never since been tested, even though the courts refer to it as "presumed" in a number of decisions. Meaning? It is nowhere clear that the public, and particularly the government, owns the airwaves. What is clear is that the authority to grant licenses and to regulate traffic was simply presumed because of the scarcity of spots on the radio dial. And all further authority to regulate broadcasters is built upon that same premise. In fact, it's called the Spectrum Scarcity Doctrine, and it looms large as the government moves to reimpose a firm regulatory hand upon the broadcast industry. Decades passed and politicians realized the enormous power of the electronic media. A law in 1934 created the Federal Communications Commission and it maintained: the public interest, convenience and necessity was the standard to be used in allocating frequencies by the new commission. Why? Because of scarcity. "The Public Interest" - if you have ten people in a room, and you ask each of them what those three words mean - how many answers will you get? What sort of power did those three fuzzy words grant to the Federal Communications Commission? Well, in 1931, the government stripped radio station KFKB of its license because it didn't like the way they programmed. That's right. Because of what the station said on the air, the business was shut down. And the courts agreed, that a review of program content was not the same as prior restraint. That means this wasn't censorship. Incidentally, the problem in this case had to do with Dr. J. R. Brinkley, a pharmacist, who owned the station and insisted on running what we'd call info-mercials today. Unsurprisingly, the pharmacist felt censored. In 1932, the Reverend Doctor Shuler felt censored as well when his Trinity Methodist Church lost its license to run KGEF. In this case the government disagreed with Dr. Shuler's theology - and religious broadcasters felt a chill come over their confidence in First Amendment protections. But the real answer to just what "The Public Interest" meant came in 1949 when the FCC released its report on broadcast editorializing stating that broadcasters must (1) Give adequate coverage to issues of public importance, and (2) Ensure that such coverage accurately reflects opposing views. In the public interest, the Commission declared what came to be called the Fairness Doctrine. Well so what? Who could denounce fairness? Did this not merely assure the public greater access to its own airwaves? Why not require rich licensees who were exploiting a scarce public resource for their own profits to put something back? What's wrong with encouraging more, rather than less speech? And isn't there a compelling government interest in an electorate informed by vigorous debate over controversial issues? After all, no broadcasters would ever get into trouble for carrying more rather than less speech - nor should they, right? Some grumbled that the FCC was only an administrative body, and that such a sweeping imposition upon private businesses ought to be codified by Congress itself - carrying the power of law. So in each of the debates over various broadcasting laws and their amendments from the Twenties into the Eighties, Congress did propose such legislation, but it never became enacted. Why not? What sort of Congressperson would vote against fairness. There was one curious exception to the string of Fairness Doctrine losses. In 1959 Congress wanted the networks to be able to air their party nominating conventions and have broadcasters interview their major party candidates without the pesky requirements for equal time to lesser challenges. So they amended the 1934 Communications Act to allow just that and added the then little noticed statement that news program exemptions did not constitute an exemption "from the obligations imposed upon broadcasters under the Communications Act to operate in the public interest and to afford reasonable opportunity for discussion of conflicting views on issues of public importance." Did that make the Fairness Doctrine law? Hmmmmmm. We'll come back to this. Red Lion is a comfortable little city snuggled in the rolling hills of South Central Pennsylvania. It's conservative Republican politically and Fundamentalist theologically; colorfully so back in the mid 60's. Then their radio station, WGCB was owned by the Reverend Doctor Carl McIntyre, a vibrant preacher with peppery religious and political ideas. And it was the sight for the single most important event in American broadcast history. In 1967, WGCB allowed the Reverend Billy James Hargis to interview an author, but refused airtime to a person who insisted that he was attacked by that writer. In 1969, the courts upheld the FCC's action to remove Dr. McIntyre's license. The FCC's ability to act in this case was supported explicitly because of spectrum scarcity. The Supreme Court understood that while newspapers were protected from such government seizure of their livelihoods by the First Amendment protections, frequency limitations presented a compelling case for the government to act in the public interest against broadcasters. However, the court also said that if it could be later shown that the Fairness Doctrine tended to limit speech or if technology changed to overcome the limits of spectrum scarcity, then the issue would have to be revisited. So the FCC's right to impose a Fairness Doctrine upon broadcasters got judicial approval based upon the idea of SPECTRUM SCARCITY! Red Lion meant the government, for the first time, had court approval to regulate the free expression of America's media based upon this one razor thin theory. As David Bartlett of the Radio and Television News Directors Association (RTNDA) says, "Dispose of scarcity and the government's case for censoring the broadcast media collapses." Censoring the broadcast media? Strong words. How could a demand for fairness be construed as censorship? Well, let's return to the Fairness Doctrine itself for a moment. Remember there were two parts, or prongs as they're called in the legal biz. The FCC said that broadcasters had an obligation to: (1) Give adequate coverage to issues of public importance, and (2) Ensure that such coverage accurately reflects opposing views. That first part means the station can decide what issues are of public importance. No station had ever been sanctioned for failing to cover an issue. The second prong is the one that impales.....Once a broadcaster decides that an issue is publicly important, necessitating coverage - then affirmative action (there's a familiar expression) has to be taken to insure all sides are adequately represented. What the hell does that mean? If a broadcaster chooses to avoid controversy - no problem. If a broadcaster chooses to air controversy, well then how is adequate coverage of all sides assured? In minutes of air-time? In the hour scheduled? In the frequency of the message? In the timeliness of the rejoinders? May truth like bologna, be cut by the inch or ounce? And what - or who - are competent to provide adequate coverage of all sides of a definitially controversial debate? Surely such minute and subjective scrutiny of program content must be at odds with the First Amendment. And if a broadcaster makes the wrong decision about inclusion - bang! License revocation and/or up to a $250,000 fine for each separate infraction. Now there's an incentive to report on issues of controversy, eh? Well no. David Bartlett of the RTNDA once again, "What's ironic is that what the Fairness Doctrine was supposed to protect and encourage - controversy and ideas - is the very thing it discouraged. A station was never prosecuted for too little controversy." There seem to be four sorts of chilly breezes blowing around the governmental intrusion into broadcast programming. First the threat of outright revocation of a license, stopping a station dead and leaving no negotiating room in a sale. As talk programmer Ed Graham of the Woman's Radio Network (WRN) points out, "After a station receives a first letter or fine, owners will become very careful to take action to follow a political line. Stations are dollar driven, they have to be." Secondly, there's the threat of non-renewal of the license (every five years for TV, every seven for radio). Ed McLaughlin is the President of EFM Media which owns the Rush Limbaugh Radio show, "The threat is greatest of course," McLaughlin says, "to the smallest broadcasters in the smallest markets. The big guy has great resources, they can handle FCC problems, but in the smaller markets, where there is already a tendency to have the least discussion of things controversial, it's there that over 50% of a manager's time is already spent on things other than sales and programming. That's where the chill is harshest." Thirdly, there's the threat of a license challenge at renewal time. According to the FCC, there is evidence that complainants invoked a licensee's Fairness Doctrine obligations in an attempt to intimidate broadcasters to censor specific programming or to harass licensees into presenting particular spokespeople or broadcasts. Fourthly, the BIG CHILL - the cost of a challenge. The Federal Communications Commission reported that during its enforcement of the Fairness Doctrine, virtually all broadcasters incurred some administrative and financial costs which resulted from presenting responsive programming and negotiating with complaints. In New York Times v. Sullivan, the Supreme Court recognized that financial considerations, "may be markedly more inhibiting to a journalist than the fear of prosecution under a criminal statute." And a defense never came cheap, how about the $100,000 in 1970's dollars that NBC spent on a Fairness Doctrine suit they won. Some win. And finally there are the intangible costs that a third party suffers whether right or wrong, only because they have been accused - just think of the frenzy over allegations of sexual harassment or child abuse. And the chills kept blowing. In 1972, Brandywine-Main Line Radio Inc., owners of WXUR lost their license. The incontrovertible facts of the case were that controversial programming was an extensive part of WXUR during its term of license. The religious station did provide coverage of opposing viewpoints but it was disciplined because, "those holding viewpoints contrary to those of the moderators were forced to give their opinions in an antagonistic setting." Does any of this ring familiar? Hello Larry King? As a consequence, the Commission refused to renew the license of WXUR. According to the FCC, the decision had the direct result of reducing the amount of controversial issue programming available to the Philadelphia public. As the courts later ruled in upholding the FCC, "The record is clear that through its interview and call-in shows WXUR did offer a variety of opinions on a broad range of public issues, and that it never refused to lend its broadcast facilities to spokesmen of conflicting viewpoints." Can't believe the license was lifted? Check out the words of Chief Judge David Baezelon, "It is beyond dispute that the public has lost access to information and ideas. This is not a loss to be taken lightly, however, unpopular or disruptive we might judge these ideas to be." With all this there's little surprise that someone like Rich Wood of the WOR Radio Network would say, "The Fairness Doctrine in most cases is a political weapon used as a club." Or that John Mainelli, program director for the nation's most listened-to talk radio station WABC argues that, "It enforces editorial decisions by stopwatch. If they try to reimpose it, speaking for myself, I will defy it." "See," Ed Graham says, "Risks get sued. And under the Fairness Doctrine people who take the most risks, to air the most controversy, they get sued the most." Is this the paranoid prattle of broadcasters? Consider the FCC's own words, "The Fairness Doctrine in its operation encourages broadcasters to air only the minimal amount of controversial issue programming sufficient to comply with the first prong of the doctrine, therefore often discouraging the amount of controversial issue programming, in order to avoid litigation and sanctions under the second prong." Testifying before the FCC in 1985 - here are the words of the managing editor of the CBS Evening News with Dan Rather, "When I was a young reporter, I worked briefly for wire services, small radio stations and newspapers, and I finally settled into a job at a large radio station owned by the Houston Chronicle. Almost immediately on starting work in that station's newsroom, I became aware of a concern which I had previously barely knew existed - the FCC. The journalists at The Chronicle did not worry about it; those at the radio station did. Not only the station manager but the newspeople as well were very much aware of this government presence looking over their shoulders. I can recall newsroom conversations about what the FCC implications of broadcasting a particular report would be. Once a newsperson has to stop and consider what a government agency will think of something he or she wants to put on the air, an invaluable element of freedom has been lost." I'm a broadcaster, have been for years. As I write this piece, I wonder how differently I might write it - if I could at all - were a Fairness Doctrine imposed upon the print media that will publish this. The real question is, "How will the government react to these words if they're read on radio." Seem inconsistent with the average citizen's understanding of the First Amendment and freedom of expression? In fact, just a few years after the Red Lion Case, in Miami Herald v. Tornillo, the Supreme Court refused to allow the State of Florida to impose a law which would allow political candidates a right to reply to newspapers who attacked them. The justices said, "A government enforced right of access inescapably dampens the vigor and limits the variety of public debate." They went further stating that the "power to compel speech comes close to the power to censor speech: both must be forbidden." Wow! I added that emphasis because it just sounded so chilling, huh? But did the court's ruling apply to broadcasters? Well no. In fact in 1977 the Warren Court specifically ruled that because of spectrum scarcity, "there is no unbridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish." Thanks to Red Lion and spectrum scarcity, broadcasters were so chilled that when the FCC did a survey in the mid-eighties they could find only 45% of broadcasters who dared any kind of programming on controversial issues. And they also reported that significant numbers of large stations refused to run political advertisements or ballot proposition advertising for fear of the Fairness Doctrine forcing them to provide expensive free time to opponents. All of this results in a massive advantage to already well-known incumbents and to the preservation of the status quo at the expense of competitors or reform. In the words of the FCC again, "In those instances in which we determined that the licensee failed to broadcast a sufficient amount of responsive programming which is mandated under the Fairness Doctrine, we have imposed sanctions, including the ultimate penalty of non- renewal, upon broadcasters who have actually provided large amounts of controversial issue programming. With respect to these broadcasters, the result of the Fairness Doctrine.....is to inhibit or silence licensees who make a significant contribution to the marketplace of ideas." So the Fairness Doctrine did exactly what it wasn't supposed to do. It created less speech rather than more. Grim as that sounds, there was a still uglier side warned of by liberal Supreme Court Justice William O. Douglas, "the regime of federal supervision under the Fairness Doctrine is contrary to our constitutional mandate and makes the broadcast licensee an easy victim of political pressures and reduces him to a timid or submissive segment of the press whose measure of the public interest will not be echoes of the dominant political voice that emerges after every election." The Fairness Doctrine becomes the blandness doctrine, or worse, the broadcaster becomes an intimidated co-conspirator in the re- election campaigns of incumbents. Could it happen? Did it happen? Uh- huh. As the FCC, the Wall Street Journal and the Los Angeles Times reported, the Democratic National Committee used the Fairness Doctrine to levy punitive taxes on conservative radio stations by making them give away air time to pro-administration editorials. Specifically, they quoted Bill Ruder, President John Kennedy's Assistant Secretary of Commerce as saying, "Our massive strategy was to use the Fairness Doctrine to challenge and harass the right wing broadcasters and hope that the challenges would be so costly to them that they would be inhibited and decide that it was too expensive to continue." Not to be outdone, a White House official during the Nixon years recommended the administration respond to the alleged "unfair coverage" of the broadcast media by showing "favorites within the media," establishing an "official monitoring system through the FCC and making official complaints through the FCC." So, mandated by spectrum scarcity and propelled by the public interest, the government established a Fairness Doctrine which diminished broadcasters' constitutional guarantees of free expression, and inextricably involved the government in the dangerous task of evaluating the merits of particular viewpoints and editorial decisions. Why dangerous? Well in a case involving yet another religious broadcaster, the Supreme Court wrote, "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion." Like November in New England, fairness can be beautiful - then nasty. Freedoms versus fairdoms. Who could be surprised to hear some politician paraphrase Dr. King as, "Fair at last, fair at last. Oh thank God, I'm fair at last."? How often do politicians wrestle with the rascally political problems caused by freedoms. In NAFTA we hear about fair, not free trade. In quota debates we hear of fair employment not free. Over the disabled, the cause was fair access, not free. In problems as diverse as fetal viability to educational choice, the dilemma is posed between fair and free. But in the case of broadcasting, fairness to whom? To the audience/public? To minority interests? To politicians? To ideologies? To movements? When ratings drive programming, then fairness to the public/audience is guaranteed. But fair speech rejects ratings as a means of distributing ideas just as certainly as socialism rejects price as a means of distributing wealth. Fair speech nationalizes ideas as surely as fair wages socialize private property. What is freedom? Now there's a question - one answered by individual action. What is fairness - that's a collective question. What is best? Well politicians claim that spectrum scarcity propels them to impose fairness upon broadcasters. America; land of the brave, home of the fair. Of course the irony is in the lack of need for inflicting any of this governmental gadgetry upon the marketplace of ideas. Why? David Barlett explains, "The decision about fairness can merely be left to the audience. A personality, a station, even a format will disappear if it acts less fair than its audience permits." And the public gets what it wants as if guided by an invisible hand - or tongue. "But they're public airwaves," say the romantic, the agent of the cherished interest, and the idealist. "They belong to me, so if I want to use them, well why not? Gimme." When the government nationalized the airways with the Communications Act of 1927, it argued that they were a scarce resource, and that spectrum scarcity demanded regulation, hence public ownership. Cities regulate building codes, imagine if they used that function to justify grabbing your house - bizarre. Yet homes are scarce. Everything's scarce. Does every newly discovered resource belong to the government? Now that's a real downer for technical research. Are all philosophical, intellectual, and scientific breakthroughs publicly owned? "Garbage," says constitutional scholar and columnist Bruce Fein, "because something was discovered since the writing of the constitution does not imply that the government owns it, nor does it justify the suppression of constitutional claims of ownership by others. Otherwise the government could fly jet bombers over your house without liability for any damage." Odd that the government claims ownership of the airwaves, but not of the airways. It makes it clear where Washington priorities lie. While everyone agrees that the constitution grants an opportunity to speak, only congressional incumbents figure the constitution also guarantees an audience. It's fashionable to guarantee results rather than simply opportunity. "The government," Fein says, "has no plausible claim for ownership rights over the airwaves, merely the privilege of regulation to prevent inefficient use of the broadcast spectrum in a technical sense." "Yet, it's an odd claim," Dirk Roggeveen of the Institute for Justice points out. "The First Amendment right to speak doesn't demand that others use your soapbox." As recently as 1983, the courts called "Public ownership of the airwaves" a "Conclusionary Proposition" - meaning it is an assertion which had never been constitutionally tested. The courts, for example, have been very clear that individuals, not the government retain property rights to professional licenses. And even should the public own the airwaves, that is not the same as government ownership. The government is not the public. Moreover, unlike roads or parks, taxpayers do not pay for the creation or maintenance of airwaves. But even if the government owns the airwaves, does that imply the right to regulate ideas? Dirk Roggeveen reminds us that, "Newspapers use public streets without fairness rules demanding others use their boxes, or control their editorial policies." And in the case of cars, Craig Smith points out that, "While the government can regulate speed and direction, once licensed to drive, you're free to go anywhere you want, as long as you break no existing laws dealing with property or the safety of others - laws that apply as well to broadcasters as to drivers or to newspaper publishers. In 1927," Smith continued, "broadcast regulation meant staying within frequency and power requirements. Under the Fairness Doctrine, it meant something much more menacing." From the need to direct spectrum traffic, politicians concluded that broadcast speech is a privilege, not a right protected by the constitution. Bruce Fein notes that, "Public ownership of the parks and roads does not diminish the freedom to assemble or to demonstrate in public places guaranteed under the First Amendment. The courts have long since made it clear that government ownership does not alter the constitutional rights of users." Picture police stopping cars to monitor the conversations of licensed drivers, "Sorry, ma'am, but the spin of this discussion is dangerously pro-life, here, take Max along with you, he's sociologically certified to generate a constitutionally robust debate. And have a nice day." Likewise the Supreme Court in Banzhaf v. the FCC ruled that "The technically imposed necessity for some regulation of broadcasting.....does not adequately answer the First Amendment complaints against the Fairness Doctrine and other FCC regulations against programming content." Still some say that spectrum scarcity gave the government the right to diminish the freedom of expression of broadcasters. "The argument's rubbish," Craig Smith says. "Everything's scarce. And since scarcity is the norm, how can it be applied only in this one case of broadcast censorship?" Even the courts have ruled that the, "attempt to use a universal fact to justify specific constitutional limitations is rubbish. By that argument, no thing, or no one, has constitutional protections." Quietly, Ed Graham adds, "The White House is my house, but I can't sleep there tonight. Any country where the government doesn't control the airwaves is free." So what exactly is it that makes the broadcast spectrum so scarce that it justified denial of First Amendment rights to broadcasters under the Fairness Doctrine? Well some say it was the regulators themselves who caused scarcity by dividing the spectrum space up into a certain number of licenses with different power and directions. The number of media voices was limited right then by administrative fiat. These critics argue that redividing the bands into a series of non-directional 250 watt daytime, 50 watt nighttime frequency allotments would immediately saturate the market for radio broadcast licensees. No more scarcity. Yet others say that the fact licenses have value prove that they are scarce. By that standard all goods in a market economy are scarce and subject to diminished constitutional protections along with their owners, renters and users. Under this argument newspapers which exist in fewer markets each day yet sell for millions - well they would be considerably more subject to regulation than broadcast facilities. Yet the courts have consistently ruled the application of such fairness gag rules to newspapers to be intolerable. It's scarcity that gives things value. In America, it's price that rations scarce resources. A speaker who claims that the mere value of a station demonstrates its scarcity shows either profound economic illiteracy, disdain for the way a market economy uses price to ration scarce goods, or contempt for the economic literacy of that speaker's audience. It's the argument of either a fool or a knave. Of course there are more people who want to broadcast than there are frequencies. There are more people who want to become actresses than there are jobs. Is it time to regulate the ideas of actresses? Maybe so. But how do defenders of censoring broadcasters explain the simultaneous freedom of newspapers? Anyone, they'll claim, might start a newspaper, but, because of limited dial space, a license is required to become a broadcaster. Might anyone start a newspaper? Oh, a child can pass out handbills, but to call a kid scattering mimeo sheets a publisher is like calling some crank with a bullhorn a broadcaster. There are significant scale economies in the publishing business, not only in purchasing ink and newsprint, but in the associated overhead, marketing and distribution of the product as well. Thus economic forces effectively limit entry into print. Those costs are so enormous that The Washington Times and USA Today report millions in annual losses in their multi-year start-up efforts. Every year the number of markets without competing newspapers grows. If ever there was an argument for the cost of a business proving its scarcity, it's in daily publishing. Unlike broadcasting, far fewer people can start a newspaper. Whether from the opportunity to purchase an existing viable business, or the prospects of starting a successful new enterprise, the availability of a realistic opportunity to enter the marketplace of ideas is far higher in broadcasting than in print. When the First Amendment was passed there were just 9 daily newspapers and 70 bi-monthlies. No question that newspapers were a scarce resource. No one can reasonably assume that the framers intended scarcity of the press to justify government regulation of its content. It's a bogus argument. Dirk Roggeveen is baffled by the effort to cling to the word "press" in the First Amendment to explain why only the printed word can be free of censorship, "It's maniacal, liberals have become some sort of Borkian Strict Constructionists!" Yet spectrum scarcity remains their principal justification for broadcast censorship while ease of market entry is the explanation for press freedom. Go figure. Still the fact of scarcity of broadcast locations on the dials remains. Surely such scarcity reduces the possibility for robust debate upon issues of substantial public concern? Advocates of the Fairness Doctrine prey on this point. They see broadcast licensees alone in a journalistic desert, as if no other media exists. But their argument dissolves even within its own terms. When the Supreme Court decided Red Lion in 1969, it agreed that it would be forced to revisit the Fairness Doctrine if it could be shown that technological change overcame the spectrum scarcity justification, and/or if the Fairness Doctrine could not, as claimed, promote rigorous debate. As evidence of the chilling effect overwhelmingly demonstrated - fairness does not promote freeness. But what of the technological changes since 1969? According to the Broadcasting Year Book, listeners in the top 25 markets have an average of 59 radio stations, at the same time fewer than 125 cities in the country have two or more daily newspapers. According the the Federal Communications Commission in 1987, "that without the enhancing capability of cable television, 96 percent of the television households were able to receive five or more signals off the air. In 1969, only 59 percent of these households were able to receive five or more stations." The Freedom of Expression Foundation reports that even in the smallest markets the average listener can receive nine radio choices without cable. Nationwide, there are some 1,400 television stations and 12,500 radio stations. Since the Red Lion decision, TV and radio licenses have increased some 65% each. Presently there are almost 1,700 daily newspapers. "Not enough broadcast growth," according to the ACLU which supports the Fairness Doctrine. They argue that the growth has been largely among technically less efficient independent UHF TV stations and music oriented FM outlets which are least likely to program controversy. Yet during that same time Fox has strung a network together largely from those new TV stations, a network competent to grab network share and place shows consistently among the top twenty. And so intense and focused has radio controversy become that after being denied the first attempt at the famous constitutional pay increase, powerful California Congressional Democrat Vic Fazio grimly told the media that, "Congress has become the cartoon cannon fodder of talk radio." There are always people who want to control the other guy's thoughts - and their excuses often get daffy. For example, take the sorehead who says that because TV news has become so credible, that more Americans get their news that way. So, since TV has diminished the effectiveness of other news sources, it's put television into an elite position. Given the overriding governmental interest in an informed electorate, fairness then needs to be imposed upon television journalists. Of course the argument is specious, since the achievement of newspapers tomorrow in supplanting TV successes, would in no way diminish print's constitutional rights under the First Amendment, neither should it diminish the expression freedoms of broadcasters. Do even the people who present this preposterous representative believe the framers meant Congress shall make no law abridging the freedom of the least effective speech, or of the least successful press? Be careful not to fall into the definitional traps of the Fairness Doctrine's supporters. Of course, technical limits will always restrict the maximum number of broadcast opportunities. And no matter how creative engineering becomes, advocates of broadcast censorship will cling to the scarcity defense until there are an infinite number of spectrum positions, even while overlooking the ravages of costs and competition upon the potential availability of newspaper publishing activities. Sensitive to the recurring nature of this argument, the FCC concluded in their 1985 hearings, "While it is true that the limited availability of the electromagnetic spectrum may constitute a per se justification for certain types of government regulation, such as licensing, it does not follow that all other types of governmental regulation, particularly rules which affect the constitutionally sensitive area of content regulation are similarly justified." That's because it's not availability of the broadcast media along which guarantees a robust debate of issues of legitimate controversy. Rather than limiting the debate to spectrum scarcity, it's essential to look at scarcity in the marketplace of ideas. Craig Smith asks, "What scarcity are you talking about when 98% of households receive six TV and nine radio stations over the air plus the some or all of the entire communications marketplace of newspapers, newsletters, periodicals, cable channels (including fifty cable general service networks, almost two dozen pay cable networks, and a number of super stations), movies, video recordings, audio recordings, speakers programs, libraries and books? Add to all of those the relatively new technologies of: Teletext, facsimile transmissions, Satellite News Gathering, the use of FM sub-carriers, videotext, modem computer access to tele-information services, Lexus & Nexus, direct satellite broadcasting and digital disk readers along with emerging technologies like: Low Power Television, Multipoint Distribution Service, Multichannel Multipoint Distribution Service, Satellite Master Antenna Service.....the argument is bogus. There's no scarcity." Upon abolishing the Fairness Doctrine, the FCC pointed out, "the relevant question is not how many media are located in or licensed to a local community, but what media can the community actually receive?" Some like to say that because it costs so much to get into broadcasting that it's a monopoly of the rich, and people will hear only their views without fairness regulations. John Mainelli's reaction to that claim? "Absurd. There are 65 signals on New York radio, certainly not a monopoly. There are half a dozen papers, dozens of video channels and magazines - clearly there is a free marketplace for ideas in this city." And Ed McLaughlin weighs in, "It's simply wrong to say that most radio operators are wealthy. Most lose money. Unless you want to talk about the big public companies; but they seem to have left radio, particularly AM." So by that reason should AM radio be the only band exempt from fairness regulation? It's peculiar that the most egalitarian sector of broadcasting is simultaneously the place where censors are most anxious to prey. With the extraordinary costs of daily papers, if anything can be called a monopoly of the rich, it's print. Yet it remains constitutionally protected from fairness gag rules. But since the demise of the Fairness Doctrine, its advocates argue that there's been a reduction in "News Responsibility," meaning programming on or about significant issues of local importance. They point particularly to the demise of local news departments. "News and public affairs coverage," according to Michael Castello, President of the Daynet radio network, "is driven by costs, not the Fairness Doctrine. A shark and a dolphin may look the same, but they ain't. The emergence of birds (satellites), and news/talk formats are all the result of costs. And news, "Castello argues, "goes away on the music side because listeners drive it away. Some formats are enhanced by news, others aren't." Like newspapers, broadcasters since the demise of the Fairness Doctrine have found economic necessity dictates the division of a significant amount of time to controversial issues in the absence of governmental requirements. The market has become the driver of information programming. Ed Graham of WRN figures that, "If local news is disappearing, and I haven't seen those numbers, but if it is, well it's disappearing because the public demands it. Do the airwaves belong to the listeners or the government? The people or their rulers? There's a simple solution to the government's demand for more news," Graham says. "If they want it, let them buy it as they do with C-Span and PBS plus the extravagant electronic production facilities they've installed in each house of Congress." It's brazen to charge that it's a reduction in "news responsibility" that's propelling Congressional efforts to reinstate fairness gag rules upon broadcasters when, in fact, it's the explosion of ideas and controversy since the demise of the Fairness Doctrine that's focused political attention upon broadcasters, and particularly talk radio. WABC's John Mainelli candidly calls the Fairness Doctrine, "another division of the talk police." In light of the evidence it's difficult not to conclude the Fairness Doctrine advocates want more of a captive audience for their own ideas, or a smaller audience for everyone else's. Or in David Bartlett's words, "Only a politician could imagine that the government could be a judge of fairness. We've got a classic case here of the inmates seizing the asylum." Speaking of cheeky, fairness advocates question broadcaster's rights to even defend themselves against reimposition of the Fairness Doctrine gag rule. They've moved to restrict broadcasters from hearings on the grounds that licensees have a direct interest in the outcome. When government agencies take evidence only from those who have no interest in the outcome, it will be impossible to reach any conclusions. Still, we're left with some nagging questions like; why shouldn't broadcast owners who agreed to accept fairness in return for a broadcast license not keep their bargain? And of course, who elected Barry Farber, Ted Byrne, Alan Colmes, Chuck Harder, Gene Burns, Michael Harrison, or Doug Stephan to discuss public policy? When was Rush Limbaugh inaugurated? In the first case, the FCC itself answers the question, "Approximately 75% of today's radio station owners and 60% of TV owners acquired their current licenses on the open market by purchasing them." Therefore broadcast licenses are allocated just as taxi medallions and liquor store licenses, "through a function of the private market." So, after the initial licensing, the only relevant barrier to acquiring a broadcast license is not governmental, but like the acquisition of a newspaper, economic. There is no remaining argument for public trustee. And as far as who elects the talkers, the answer's simple - the millions who vote for them daily with their ears and eyes and time. Far more people choose Limbaugh daily than vote for any congressperson. Yet it's undeniable the talk spectrum's become more political since the demise of the Fairness Doctrine in 1987. Why is that? WABC's John Mainelli says, "The first reason to choose a host is for entertainment, far down on the list is political belief. But general issue talk has become political because there are few places people can candidly talk things out." While some call the latest attempt to impose a fairness gag the "Hush Rush Rule" - passage of a fairness law has been part of the liberal agenda in congress since the FCC killed the rule in 1987. In spite of the clear evidence proving the chilling effect of a Fairness Doctrine gag rule, advocates argue that it presents no threat to broadcasters. In evidence they point to the last year of its existence when the FCC "only" received 6,000 fairness complaints which resulted in "only" six letters of inquiry being mailed. And that no one was prosecuted. Besides they argue, no station's ever lost its license over the Fairness Doctrine. The conclusion? Rumors of a chilling effect are overstated. "Sophistry!" charges NAB's Jeff Bauman. "The danger of the Fairness Doctrine is that in every editorial decision that a broadcaster makes, the government is looking over his shoulder." Dirk Roggeveen responds by saying, "Hey, when 6,000 are charged with only 6 indicted, doesn't that suggest a system that encourages frivolous complaints?" It also suggests an average of half a complaint per station or one every other year, each complaint presenting the threat of political intimidation and extravagant cost to the licensee at the regulatory whim of a government interested in political retribution. In fact, broadcasters are convinced that the move to reinstate the Fairness Doctrine is little more than an undisguised act of political vengeance. Revenge is winning's evil twin, and vengeance is its military arm. That bitterness toward talk radio, for example, is palpable among powerful incumbents like Vic Fazio is public record. As Rich Wood of WOR puts it, "Congress intends to have the Fairness Doctrine destroy divergent viewpoints. The Fairness Doctrine is intended to strip broadcasters of the opportunity to build an audience." "Look," Ed McLaughlin says, "the local congressperson had a monopoly of air time before the end of the Fairness Doctrine. See, talk radio's not hurt citizens, taxpayers or the public that cares - it has hurt politicians." And sources say Congress is angry over two things. First the obvious beating they took from broadcast critics during the last election over things like the House Bank, government waste and the like. Then there's the turf problem. For that, let's go back to 1987. The Federal Communications Commission had an opportunity in 1985 to stop enforcing the Fairness Doctrine - when they concluded, "the Fairness Doctrine is seriously flawed because: (1) The Spectrum Scarcity argument of Red Lion was overwhelmed by competition that now exists in the marketplace for ideas. (2) The Fairness Doctrine created a chilling effect that acts to deter the full debate of controversial ideas on subjects of controversial local interest. (3) The Fairness Doctrine violates the First Amendment and contravenes the public interest." But, uncertain whether the Congress had acted to codify the Doctrine in its revisions to the 1953 law - the Commission declined to abolish the Doctrine arguing that action might better be taken by Congress or the courts. Congress had no intention of such action. The Democratic Congress had passed a Fairness Doctrine law a number of times in the Eighties, only to have Republican presidents veto them. Without enough votes for an override, Congress simmered. However, they took some consolation in those ambiguous words an earlier Congress had added back in 1959 when they amended the Communications Act. Remember they then said that nothing in that amendment is intended to remove licensees, "from the obligations imposed upon broadcasters under the Communications Act to operate in the public interest and to afford reasonable opportunity for discussion of conflicting views on issues of public importance." This convinced Congress that the thing was codified and that the FCC couldn't abolish it without new legislation. Then in 1986, a special interest group, the Syracuse Peace Council overreached. They successfully argued that WTVH-TV should be punished for not giving them free air time to respond to paid advertising the station ran that took a side different from their's on the construction of a nuclear plant. The FCC agreed, WTVH went to court and the D.C. Court of Appeals (which then contained two of the present Supreme Court Justices) made an unprecedented ruling. It sent the decision back to the FCC demanding that the Commission show how Commissioners, who took an oath to defend the Constitution of the United States, could enforce an act which their own 1985 report found unconstitutional? And in refusing the hear the appeal, the Supreme Court concurred. At the same time, a Public Research Interest Group called Telecommunications Research and Action Center (TRAC) sued a newspaper to have the Fairness Doctrine Law applied to the new Teletext and Videotext technologies. Well, the same D.C. Court of Appeals upheld by the Supreme Court ruled that there was no such law, and that the 1953 amendments Congress made, merely certified the FCC's power to make such regulations as the Fairness Doctrine. So when the FCC was finally presented with a clear ruling that the Fairness Doctrine was not codified, and that the Commission's constitutional worries about the doctrine were serious - they dropped the whole doctrine. And they did it without requesting congressional hearings. Congresspersons were stripped of their complacent belief that they were protected from broadcast journalists by a law that never was. And they were doubly piqued that a federal agency had acted without asking permission. Congress was anxious to show the FCC who the boss was. Unfortunately, with Reagan and then Bush in office, their frustrations over the independence - first of the FCC, then of broadcast commentators - could only fester. Have broadcast stations lost licenses to government regulation? Yes. And license revocation is capital punishment, the ultimate censorship of speech and ideas. For example, ask some of the specific victims of government intervention into programming content like: Dr. J.R. Brinkley of KRKB or the Reverend Dr. Shuler of KGEF. You'll hear similar stories from WXUR in Philadelphia and Dr. Carl McIntyre about Red Lion's WGCB. Or the folks at WTVH-TV in Syracuse who spent a bundle to overrule a threatening FCC decision against them. Of course the list of censured and fined stations is longer. The advocates of enacting a Fairness Doctrine Law are confident of victory. Democrats control both houses of Congress and President Clinton campaigned on a promise to sign the law if passed. Currently the Senate is considering S-333; The Fairness in Broadcasting Act of 1993: It's before Senator Daniel Inouye's (D. HW), Committee on Commerce, Science, and Transportation. The House has an identical piece of legislation, H.R. 1985; The Fairness in Broadcasting Act of 1993: Ed Markey (D. MA), is chairing the relevant Sub-committee on Telecommunications and Finance. In both cases the early wording reads, "Broadcast licensees shall afford reasonable opportunity for the discussion of conflicting views on issues of public importance." Welcome back to both prongs. And a sharp eye will notice that these bills will apply only to broadcast licenses. Congress has found no constitutionally defensible method yet to replace freedom for fairness among cable broadcasters, movie makers, publishers, musicians, or computer services. There's a spooky preamble attached to both bills which claims the new Fairness Doctrine is justified because of: (1) Spectrum Scarcity, (2) Demand for broadcast licenses exceeds supply, (3) Broadcast licenses are a valuable public resource, therefore making the broadcaster a trustee for the American people, (4) There is a genuine public interest in the widest possible dissemination of information from diverse and antagonistic sources by presenting a reasonable opportunity for the discussion of conflicting views on issues of public importance, (5) The Fairness Doctrine has enhanced free speech for over forty years through robust debate, (6) Because it only requires more speech, the Fairness Doctrine has no chilling effect, and finally, (7) The Fairness Doctrine was given statutory approval by the Congress in 1959. Ah, if wishing would only make it so. As the evidence and history of the Fairness Doctrine demonstrated first to the FCC and then to the courts, these chestnuts are so old even Pia Zadora won't marry them. But why worry about history when incumbents are quivering to prove that he who controls the present controls the past, and he who controls the past controls the future. Will the bill pass? David Bartlett at the RTNDA says many Congresspersons cannot contain their delight, "Until September, most legislators did not realize their potential power to gag the media." A similar bill got two thirds of the Senate votes in 1987 indicating bipartisan support. The main problems just now are in drawing a bill that will conciliate religious broadcasters who have special reason to remember the control government can bring to silence unpopular theology. But there's doubt that such a provision can be written broadly enough, leaving only the option of exempting non-profit broadcasters. That however won't affect the many for-profit religious stations. But exempting non-profits, as they're discussing, will have the serendipitous result of immunizing Public Broadcasting and particularly Public Radio and its alma mater, Pacifica Broadcasting. Apparently however, opposition is being mobilized by talk radio hosts, especially Rush Limbaugh. And that public reaction may have slowed the passage of the bill somewhat, delaying its passage to November rather than October. Some Congresspersons already carrying the baggage of supporting the largest tax increase in the history of history are getting squeamish about publicly voting to gag their critics in the media. However, the queasy will apparently remain a minority, and smart money's betting the bill will pass, sending the real action to the courts. When? And what will be the impact? Interesting questions. The actors in this drama are coming on stage. In support of the new legislation will be the majority party and some powerful Republicans. They'll be led by Andy Schwartzman and his Media Access Project, and joined by the various Nader groups, the ACLU and most environmental, anti-nuke, civil rights, union, abortion rights, and feminist groups along with a handful of broadcasters. In opposition will be the NAB, much of the media, the RTNDA, the Institute for Justice, the Freedom of Expression Foundation, Mario Cuomo, probably the Religious Broadcasters Association, Harvard Professor Lawrence Tribe and TALKERS magazine. Unclear at the moment are the positions of such groups as the National Chamber, NRA, Eagle Forum and the like. There are three possible legal strategies that can be mounted against the new Fairness Doctrine and each implies a different time table and set of risks for broadcasters facing the chill of loss of livelihood from format devastation or loss of livelihood from FCC action. (1) Something called a Facial Case might be brought, claiming the ACT is unconstitutional on its face and asking for an expedited First Amendment review. Advantage? If a stay is granted, it will stop rule making and intimidation completely under the ACT until the Supreme Court decides or until the stay is lifted. If the decision is favorable for free expression, then fairness will be terminated. If it is unfavorable, then all is lost. (2) Litigants can wait until rules are promulgated and an action is taken by the FCC against some broadcaster so that a test case can be brought. If a stay is successful in this case it will be limited in all probability to the narrow terms of the case and the litigants, allowing the chill to continue upon all others. If the case is won, it will probably be on the narrowest terms, again granting little relief to others who would be forced to comply or to chop away further at considerable expense. Such a strategy would have the longest time span before relief, but would generate the narrowest risks. The NAB's Jeff Bauman is pessimistic about the chance of a stay in both of these cases because courts are reluctant to overturn or delay an entire act of Congress without a hearing. (3) A case against the enabling rules once they're announced by the FCC. This offers the best chance for a stay since it will be aimed at an agency action and not Congress. It has most of the potential benefits of a Facial case and all of its risks. So it appears, once again, that broadcasters are about to become second class journalists, for a time anyway, as soon as Mr. Clinton signs the new Fairness Doctrine Gag rule. While many constitutional scholars think that in this court, the case is solid for First Amendment protections still - there are two judicial positions that could be turned over before the case is heard. With or without changes, the sure thing bet has yet to be invented when it comes to the Supreme Court of the United States. Where fairness is concerned, logic is dead and panic rules. It's safe to say that the new law will impose a penalty upon broadcasters and audiences at least in terms of reduced coverage of public issues. In the past, the stations that programmed the most debate were the ones most likely to be attacked and disciplined. That's the idea of the act; it's worked before. The impact of the new Fairness Doctrine will be focused where the explosion of controversies occurred; on talk radio and to a lesser degree talk television. And the greater access enjoyed by the public to debate will be abated. There are possible ramifications for the debate over television violence here as well. Can the political tensions that drive talk radio survive a new Fairness Doctrine Gag Rule. Will the format survive? Ed McLaughlin's not sure, "It will be sick and saddening if a station who just found a niche in talk radio to pay its bills - for that station to lose the format that's making it a success." Because they felt the marketplace of ideas was too delicate to be left to politicians, the framers of the First Amendment prohibited any governmental regulation, "abridging the freedom of speech or of the press." The framers clearly intended the media to be the watchdogs of government. Political advocates of the Fairness Doctrine, by definition, want it the other way around. Congress feels free to decide what's fair. Does that make them freer than the rest of us? If the framers meant fair speech and fair press, why did they choose the word freedom? By calling their proposed legislation, The Fairness in Broadcasting Act of 1993, politicians terrify everyone who understands that fairness is a utopian theory of social experimentation, like Marxism or Fascism; while free expression, on the other hand, is a constitutionally protected right to defend us from such theories gone malignant. AT A GLANCE CHRONOLOGY OF FAIRNESS DOCTRINE 1895: Guglielmo Marconi Discovers Radio Waves 1910: Wireless Telegraphy Act protects sailors. 1912: Radio Communications Act - Required first licenses. 1924: Communications Act creates the FCC and maintains "The Public Interest" standard for regulation. 1927: The Radio Act - Congress declares it owned the `ether' - nationalizes the radio spectrum. 1931: KFBK - Pharmacist loses license for programming info-mercials. 1934: KCER - Trinity Methodist Church and Rev. Doctor Shuler lose license when government disagrees with their theological views. 1943: NBC v. U.S. - Courts uphold FCC's power to regulate non- broadcasting activities. 1949: FCC Report on Broadcast Editorializing publishes the Fairness Doctrine. 1959: Congress modifies the 1927 Communications act in way that made many believe it had codified fairness. 1963: Banzhaf v. the FCC, Court ruled that a technically imposed necessity to regulate was not justification for regulating programming content. Also that public ownership of the airways was merely a presumptive claim not a tested constitutional right. 1969: The Red Lion Case, stripping WGCB of its license - Court said FCC could because of "Spectrum Scarcity" - promises to revisit the decision should technology outdate it. 1972: WXUR loses license for creating a hostile/antagonistic setting for call-in programming. 1974: Miami v. Tornillo - Court refused to allow states to impose fairness upon print media, ruled it chilling. 1977: FCC v. National Citizens Council - Court rules that spectrum scarcity overwhelms the full First Amendment rights of broadcasters. 1982: New York Times v. Sullivan - Court rules that "Fear of financial loss may be more inhibiting to speech than fear of prosecution under statute." 1985: FCC hearings determine that spectrum scarcity was technologically obsolete and that Fairness Doctrine chilled speech and reduced amount of controversial programming. Declined to abolish it - preferred either Congress or courts act. 1986: FCC rules against WTVH-TV Merideth Broadcasting - courts overrule and demand to know how they can enforce a rule they determined was unconstitutional. 1986: TRAC sues under presumed 1953 amendments to have fairness law applied to Teletext and Videotext. Court rules that 1953 act did not codify doctrine, it was merely a rule of the FCC. 1987: FCC abolishes the Fairness Doctrine calling it chilling and an unconstitutional infringement upon broadcaster's First Amendment rights. 1987: Democratic majority in Congress passes legislation to make Fairness Doctrine Law. Reagan vetoes. No override. 1991: Clinton promises if elected to sign Fairness in Broadcasting Act. 1993: Fairness in Broadcasting Act Submitted to committees in House and Senate. EDITOR'S NOTE: When we contacted the above article's author, Ted Byrne, to let him know that his 1993 piece was going to be posted on the TALKERS magazine Web site, he stated the following: "There has only been one decision of any note since I wrote it, and that was the Howard Stern thing, which was a bit of a setback, affirming the FCC in its attempts to regulate speech. Actually, there's nothing wrong with states or even municipalities establishing reins on expletives. However, when the Feds do it...it's chilling. State constitutions do depart from the Federal and the Federal Constitution was, again, "interpreted" by the Justices to find that decision within it. Ah well, it did, in fact, no short term harm. The words Howard Stern was fined over are the norm today, even on broadcast TV." TED BYRNE heads Startegic Marketing and Communications, a marketing management consulting firm. He can be reached at stratmark@redrose.net.