Speculation over whether Congress might reinstate the Fairness Doctrine, which the FCC repealed in 1987, and possibly extend its reach beyond traditional broadcast media to include the Internet has been growing over the past several months.

Conservative radio talk show hosts, including Rush Limbaugh, Mark Levin, and Laura Ingraham, have expressed concern that Democrats might step up efforts to renew the FCC policy known as the Fairness Doctrine as a way to correct what liberals view as a lack of diverse views in media coverage of important public issues.

Sen. Chuck Schumer, D-N.Y., exacerbated these fears on Election Day when he said during an interview on Fox News that radio stations should be “fair and balanced.”

“The very same people who don’t want the Fairness Doctrine want the FCC to limit pornography on the air,” he said. Schumer said it was inconsistent to have the government intervene in a commercial enterprise in one area but not in another.

In February 2005, Democrats attempted to revive the Fairness Doctrine through H.R. 501, the Fairness and Accountability in Broadcasting Act, sponsored by Rep. Louise Slaughter, D-N.Y. Among the bill’s 22 cosponsors were Democratic Reps. Charles Rangel, of New York, George Miller of California, John Conyers of Michigan, and Dennis Kucinich of Ohio.

A communiqué on Slaughter’s congressional Web page says the FAB “will force broadcasters to provide balance and diversity in their news coverage and meet their public interest obligations to their local communities. It will also reinstate the Fairness Doctrine to ensure that broadcasters afford reasonable opportunity for the discussion of conflicting views on issues of public importance.”

Though the FAB bill did not become law, conservative critics worry that Democrats might succeed in their efforts now that they have won not only a larger majority in Congress but also the presidency.

Localism: Access, Diversity, and Fairness

The Fairness Doctrine isn’t the only potential weapon in the liberals’ arsenal. The Center for American Progress, headed by John Podesta, former chief of staff to former President Bill Clinton and leader of president-elect Barack Obama’s transition team, is pushing a concept called media localism.

In its “Metric for Local Media Diversity,” CAP advocates for tougher media regulation and increased local accountability over radio licensing. The group wants the FCC to mandate greater diversity in both media content and media ownership. CAP advocates complained in a 2007 report on political talk radio that the “absence of localism in American talk radio markets” has led to a dominance of conservative over liberal talk.

CAP is pushing the FCC to examine “all media outlets that serve the local media market, including print, broadcast, cable, and Internet media” to determine the level of media diversity that supports local democratic engagement and public access to “sources of information which educate and inform all Americans.”

Podesta was reported to have selected Henry Rivera to head Obama’s FCC transition team. A recent article in the American Thinker reported, “Rivera’s law firm is also the former home of Kevin Martin, the current FCC chairman. Martin is himself an advocate of more stringent localism requirements.” The article also said, “Obama needs only three votes from the five-member FCC to define localism in such a way that no radio station would dare air any syndicated conservative programming.”

However, once it was learned Rivera was a lobbyist, he was chosen to lead the National Science Foundation transition team. Nonetheless, he remains a part of the FCC transition team chaired by Kevin Werbach, assistant professor of legal studies and business ethics at Wharton, and Susan Crawford, professor of communications and Internet law at the University of Michigan.

Both Werbach and Crawford participate in and are fans of virtual or online worlds, according to GigaOM on its post Nov. 18. Werbach is “a hardcore World of Warcraft player,” and Crawford is big fan of Second Life.

These selections might signal an intent toward greater media regulation. The GigaOM post speculated that Werbach and Crawford “will craft strategic policy positions relevant to online games and worlds, including broadband usage, content regulation, etc.” The blog post ends by saying, “for perhaps the first time, FCC policies will be drafted by a team who clearly understand the potential of online worlds in a fundamental, and first-hand, way.”

James Egan, writing in Massively.com on Nov. 19, echoed a similar sentiment, praising Werbach and Crawford as “seasoned Net Neutrality advocates.”

“It’s a positive sign that individuals connected with the FCC and its policies really understand how people are using technology to socialize, collaborate, and play,” Egan said.

Federal regulation of media content began in 1927 with passage of the Federal Radio Commission. In 1934, Congress passed the Federal Communications Act, giving the FCC the power to license and oversee broadcasters according to “the public interest, convenience or necessity.”

In 1949, the FCC instituted what is commonly referred to as the Fairness Doctrine, which had two mandates. First, broadcasters were required to seek out and cover controversial issues of public interest in the communities they serve. Second, broadcasters were to provide an opportunity for contrasting views on such issues to be heard.

To enforce so-called fairness, the FCC could revoke a license or refuse to renew a license for any broadcaster deemed to have violated these rules.

According to a March 1997 report for the Cato Institute, “Chilling the Internet? Lessons Learned from FCC Regulation of Radio Broadcasting,” Thomas Hazlett and David Sosa said both political parties at one time or another intimidated and punished media outlets for unfavorable coverage “through Fairness Doctrine complaints and license renewal challenges,” notably the Nixon and the Kennedy-Johnson administrations.

Special-interest groups, such as environmental and antismoking activists, also used the Fairness Doctrine to restrain all types of speech including commercial speech, said Hazlett and Sosa, by mounting complaints against ads from automobiles, cigarettes, snowmobiles, and toothpaste to trash compactors.

Such abuses, the Cato report said, led the FCC in the mid-1970s to begin eliminating content controls and instead allow market forces to “achieve public interest goals.” In 1981, further regulatory reforms took place under the Carter administration. In 1987, the FCC, under the Reagan administration, abolished the Fairness Doctrine, concluding, “There was strong evidence that the Fairness Doctrine ‘actually inhibits the presentation of controversial issues of public importance.’”

Less Regulation, More Access

Since the Fairness Doctrine was repealed in 1997, data show a “dramatic increase in the amount of informational programming,” especially on controversial issues precisely because broadcasters are free to do so “without fear of Fairness Doctrine challenges,” Hazlett and Sosa said.

The world has changed dramatically since the 1980s. The Internet, satellite radio, and cable broadcasting, for example, have given consumers greater access than ever before to the most diverse content. Consumers have access to information all day and all week.

The notion that somehow media consolidation has limited access and led to less-diverse content is absurd, analysts, broadcasters, and legal scholars say. “There are many more ways to get out a message today,” said Mark J. Prak, a Raleigh communications lawyer who represents broadcast, cable, print, Internet, and all other media clients.

However much the Democrats might like to shut down conservative talk radio or control media content, Prak doesn’t think they would prevail. Editorial intrusion whereby the government can tell broadcasters what issue or how much of an issue they should cover is clearly a First Amendment infringement, Prak said.

“That doesn’t mean Democrats and a new FCC under the Obama administration won’t try to find new ways to define localism or roll back the rules to pre-1984,” Prak said, “but the FCC would need a factual, rational reason to show that the market is failing to provide access to diverse content when it has previously shown that the market is providing it.” The FCC would have both administrative and constitutional problems should they try to reinstate content controls, and Congress would have a hard time getting past the Court of Appeals.

Prak also pointed out that Democrats during the Clinton administration voted to allow media consolidation.

Rick Martinez, director of news and programming for NewsTalk 680 WPTF in Raleigh, agreed. “There’s more access than ever before to diverse programming, and much less regulation has led to more public affairs programming,” he said.

“When I joined WPTF, I wanted to broaden and diversify the programming,” Martinez said. For example, about six months ago, Bill LuMaye began inviting more guests on his talk show, many of whom are Democrats who are as passionate in expressing their views as is LuMaye or his callers.

Martinez thinks that liberals mistake popularity for access, and because conservative talk is more popular than progressive talk radio, they think access to diverse viewpoints is limited.

Ultimately, broadcasting is “a matter of delivering compelling content. If someone on the progressive side was as talented as Rush Limbaugh, they’d be successful. Rush is popular because he is first and foremost a broadcaster. Liberals listen to him even when they disagree because they find the content compelling,” Martinez said.

Another problem is that liberals confuse commercial speech and political speech. “Talk radio is just a format, not a political or a news program, just as public radio is a format — a different business model,” Martinez said.

“Commercial stations must consider the commercial viability of their programming and whether it serves their listeners’ needs,” Martinez said. While liberals complain about the popularity of talk radio, conservatives complain about liberal bias in newspapers as well as on network and cable TV.

Both Martinez and Prak said the debate over whether the Fairness Doctrine will be reinstated or other similar regulation is forthcoming constitutes political theater by both liberals and conservatives. Conservative policy analysts and legal scholars are adamant that any attempt at media content control would ultimately fail. Those in media consider their work to be a public trust and they take it seriously, Prak said. As for broadening regulation to the Internet, Prak said the FCC has no jurisdiction over the Internet or Internet radio.

Karen McMahan is a contributing editor of Carolina Journal.