Fairness doctrine

[Johnny Morgan]

The Fairness Doctrine itself did not have any effect on music programming. The legal reasoning behind the Fairness Doctrine did.

What?


Quote
Hence, why the Commission could force a format to remain on a signal if there was a transfer OR if there was complaints about the format's impending extinction and lack of service to that portion of the community.

There is not one case in the 40 history of the FD where a station was "forced" to make a format change. Again you are confusing the FD with license transfers?


Quote
Because the Fairness Doctrine (and FCC regulation) was upheld to First Amendment scrutiny on a viewpoint analysis because of the peculiar position of broadcasting and the limited resources available, that same viewpoint scrutiny could very well uphold a format regulation based on the limited resources available.

What?

Why don't you go back to debating the differences between liberal and progressive talk radio. Even that discussion made more sense than you are making now.

Actually I said all of that, not Radio Realist.

And since "what?" is either you not understanding what I'm saying, in which case I'll try to describe it better, or in any case, not an argument, I don't really know how to respond.

The Fairness Doctrine is constitutional. And its constitutionality was based on the scarcity of the frequencies available, as well as the FCC's statutory power to regulate broadcasters. What Red Lion stated was the Fairness Doctine permitted a viewpoint distinction.

Since the Fairness Doctrine was constitutional as a viewpoint disctinction, format regulation based on viewpoint distinction would also be permissible.

And we saw the FCC do this sort of format regulation to preserve a programming service in the community through the 1970s, even outside the realm of license transfers.

The fact of the matter is that the LEGAL and CONSTITUTIONAL authority for the Fairness Doctrine is also the LEGAL and CONSTITUTIONAL authority for format regulation as preserving a service or viewpoint missing from the airwaves should the Commission decide it is in the public interest to so regulate formats.

The Fairness Doctrine is not implicated in format regulation at all, only its legal and constitutional authority. The FCC could regulate formats WITHOUT the Fairness Doctrine. The history of the Doctrine matters not one bit with regard to what we're discussing here, because the Doctrine itself is not implicated, only the constituitional basis for it (set forth in Red Lion, and to a lesser extent, in Pacifica).

Understand now?

 

[Radio_Realist]

you know I was responding to a post regarding the effect of the FD on music programming

There have been no posts on the effect of the Fairness Doctrine on music programming. None, zero, zip, zilch, nada. There have been posts about the regulatory power of the Federal Communications Commission to control all aspects of program content on radio stations. The FCC can, if it chooses, give names to the regulations it promulgates, such as "the Fairness Doctrine". It can also choose to not give a name to a regulation or set of regulations. Those who run the FCC could choose to simply number their regulations.

The point about the FCC's legal power to control all aspects of radio program content was to demonstrate that the FCC could not only regulate political opinion content using a new, revised version of the old Fairness Doctrine, they could also, if they so decided, control music format radio content. That point refuted the specious argument that just because the FCC showed restraint in how they worded and enforced the old Fairness Doctrine that they would automatically show similar restraint with a new, revised Fairness Doctrine. There is neither evidence nor is there any logical or reasonable expectation that a new Fairness Doctrine would be less constraining than the old Fairness Doctrine.

If there is a shift in Congress and the current minority party becomes the majority party in both houses of Congress next Tuesday, then I believe there is a very high probability that there will be a new Fairness Doctrine which will be a statute passed by Congress rather than a regulation written by the FCC, and that new Fairness Doctrine will be so draconian that it will effectively kill news/talk radio as we currently know it.

I believe that anyone who works in news/talk radio and wants to remain employed, or anyone who enjoys listening to news/talk radio and wants it to stay on the air should educate themselves about which election outcome will be most beneficial to keeping news/talk format radio on the air.

 

[kaufcom]

Sorry about the mix-up. I'll try to respond to your post although I still think that you are taking this discussion into a overly theoretical and legalistic direction

The Fairness Doctrine is constitutional.

How can the Fairness Doctrine be constitutional if it doesn't exist? It is has been non-existent for almost 20 years.

its constitutionality was based on the scarcity of the frequencies available, as well as the FCC's statutory power to regulate broadcasters.

The Red Lion decision was in 1969. It involved the Fairness Doctrine's applicability to the television industry not to radio. In 1969 only 10% of TV homes had cable and the other 90% had access to three networks and a handful of independent stations in -- mostly in the top 50 markets. There were no basic cable channels like ESPN, TBS, USA Network etc and no pay channels like HBO and Showtime. Today the average TV viewer has access to 60 or more channels.

Since the Fairness Doctrine was constitutional as a viewpoint disctinction, format regulation based on viewpoint distinction would also be permissible.

You still lost me here.

And we saw the FCC do this sort of format regulation to preserve a programming service in the community through the 1970s, even outside the realm of license transfers.

Examples please

The fact of the matter is that the LEGAL and CONSTITUTIONAL authority for the Fairness Doctrine is also the LEGAL and CONSTITUTIONAL authority for format regulation as preserving a service or viewpoint missing from the airwaves should the Commission decide it is in the public interest to so regulate formats.

With the exception of a handful of decisions regarding license transfers, when has the Commission ever regulated radio formats?

The Fairness Doctrine is not implicated in format regulation at all, only its legal and constitutional authority. The FCC could regulate formats WITHOUT the Fairness Doctrine. The history of the Doctrine matters not one bit with regard to what we're discussing here, because the Doctrine itself is not implicated, only the constituitional basis for it (set forth in Red Lion, and to a lesser extent, in Pacifica).

So it sounds like you are making a theoretical argument about a law that doesn't even exist anymore.

Once again, sorry about the mix-up

 

[Radio_Realist]

How can the Fairness Doctrine be constitutional if it doesn't exist? It is has been non-existent for almost 20 years.

It did not vanish into thin air, leaving only a puff of smoke. It wasn't made to disappear, it was simply rendered inoperative. Since it is a regulation, and not a law, the FCC could reactivate it any time they wanted to, as easily as switching on an electric light.

"It involved the Fairness Doctrine's applicability to the television industry not to radio."

The specifics of the decision covered television, but the general principles covered all broadcasting over the airwaves. And, the decision was a matter of comparing the law to the Constitution to determine if there was a match. Issue like cable television (or satellite radio) are moot with respect to the FCC's powers under the Communications Act of 1934. Only another act of Congress can change those powers that the court confirmed in 1969.

"With the exception of a handful of decisions regarding license transfers, when has the Commission ever regulated radio formats?"

The issue of whether or not the Commission has ever regulated radio formats or not is moot. Regardless of whether they have done so in the past or not, they have the authority to pass regulations regarding program content. That could include a total ban on all song lyrics that make reference to urban street violence. Such a regulation would make it almost impossible stations to continue any format that includes a large amount of songs with lyrics about urban street violence. Or the FCC could issue a regulation that all stations in any market of larger than a certain size in which there are minority populations who speak a language other than English must include program content in that language in proportion to the minorities in the market. I'm not saying that the FCC would do that, but legally they could do that.

"So it sounds like you are making a theoretical argument about a law that doesn't even exist anymore."

Then you are reading it wrong. The "Fairness Doctrine" is not now, and never was, a law. It was a regulation. Congress delegated to the FCC, which is part of the Executive Branch, the power to write regulations which have the same force and weight as laws, but that are not debated in Congress nor subject to normal checks and balances. The FCC can simple write any regulation it wants to write, and those regulations are the functional equivalent of a law. The FCC can also change those regulations at any time it wants to change them. It can make them weaker or stronger, it can enforce them with great vigor or with a very relaxed attitude.

As to whether this argument is "theoretical" or not, if you depend on the broadcast industry functioning as it does today in order to earn a living, you should be very concerned about these "theoretical" matters. If the Democrats take over Congress next week, they could pass legislation requiring the FCC to either re-activate the old Fairness Doctrine, or write a law mandating a new Fairness Doctrine, or even cut a deal with the other party that if the GOP wants something, in exchange for getting that, they must instruct the FCC to restore the Fairness Doctrine.

Remember, bringing back the old Fairness Doctrine only requires the stroke of a pen. Nothing more. If you work in news/talk radio, that stroke of the pen could put you on the unemployment line so fast you wouldn't know what hit you.

 

[smedge2006]

At many heritage talk stations, there were probably more local talk show hosts (never mind more people in general) employed under the Fairness Doctrine than are employed at these same stations today. Calm down. If people lose their jobs it won't be because of FD. It might add some jobs for liberals who've had a hard time finding work in talk since the "Billary" wave of 1994, when PDs decided that the way to talk radio success was to clone Rush 24-7.

 

[Radio_Realist]

At many heritage talk stations, there were probably more local talk show hosts (never mind more people in general) employed under the Fairness Doctrine than are employed at these same stations today.

I won't dispute that. However, at the stations I was able to listen to over 20 years ago, the local talk hosts seldom engaged in controversial political talk. Instead, they engaged in casual conversation with dial-in callers. What I remember of talk radio from before the Fairness Doctrine was suspended (and that's all it was, suspended) was lots of trivia contests and light bantering about sports, the weather, and other casual matters of local interest.

If there is a new incarnation of a Fairness Doctrine, I don't think spoken word formats will do very well. But, if any survive, they won't be news/talk as it exists today. It will be a return to Talk Lite, as it was in days gone by.

 

[smedge2006]

Too bad you didn't get to hear Bob Grant in the 70's on WMCA, Gene Burns in the 80's in various markets,
the early Neil Rogers, the early Tom Leykis (who actually did serious talk before developing the "Leykis 101" schtick), and many other hosts who did substantive cutting-edge talk under FD.

If a station was doing "talk lite", that was more likely due to fear of advertiser pressure than FCC pressure. Advertiser pressure remains with us today (see the John De Petro case in Boston, where Harvard Pilgrim Health Care was complaining about his act long before the remark about the Green Party candidate).

 

[Radio_Realist]

If a station was doing "talk lite", that was more likely due to fear of advertiser pressure than FCC pressure.
Again, that's another point I cannot dispute. It is a correct observation of how things were back then. However, I do not believe that it will be so in the near future if Congress turns Democrat and a new Fairness Doctrine is enacted as a law, not a mere regulation.

In the past 20 years, advertisers have, for the most part, gotten over the idea that pitching their wares on a controversial program hurts their sales. Good marketing research has debunked that old myth. So even though advertiser pressure was indeed the major stumbling block for controversial political talk programs on the radio back before the mid 80's, in the 21st Century, it will be the fear of loss of license and/or the expense of legal defenses against spurious lawsuits from pressure groups.

Perhaps Johnny Morgan might be able to confirm what I suspect about one difference between a regulation and a statute. I believe that it is easier for a pressure group to file a lawsuit charging an entity with violating a statute than it is to file a lawsuit challenging an entity with violating a regulation.

In other words, a new Fairness Doctrine law would attract more pressure group lawsuits than the old Fairness Doctrine regulation did. It would do so for two reasons. First, there are more pressure groups today, and those groups have a track record of using lawsuits as a weapon. Second, it's easier to file and win lawsuits over violations of law than over violations of regulations.

It amazes me that anyone who really cares about news/talk radio would rather say nothing on this topic and ignore it until after it's too late to prevent the damage.

 

[smedge2006]

In the past 20 years, advertisers have, for the most part, gotten over the idea that pitching their wares on a controversial program hurts their sales. Good marketing research has debunked that old myth.

Apparently those advertisers who told ABC not to place their spots in Air America (or Rush Limbaugh) haven't gotten the memo.

So even though advertiser pressure was indeed the major stumbling block for controversial political talk programs on the radio back before the mid 80's, in the 21st Century, it will be the fear of loss of license and/or the expense of legal defenses against spurious lawsuits from pressure groups.

Since the left now has a toehold in talk radio, I suspect that a new FD won't look precisely like the pre-1987 version. It may take a look at a multiple-station owner's entire portfolio in a given market. If a company runs Rush and Sean on one station and Randi and Stephanie and Eddie on another, it could get a pass. This may lead to more local radio. From my experience, any complaints about "unfairness" can be easily dealt with by inviting the complainer on the air. That's more easily done with local hosts than with syndication. Key also is having good people available to answer the phones and assuage callers. Getting voice mail or a surly board op can just stoke outrage and may be the difference between no trouble and an FCC complaint. Another argument for re-staffing today's computerized empty edifices of radio.

 

[kaufcom]

In the past 20 years, advertisers have, for the most part, gotten over the idea that pitching their wares on a controversial program hurts their sales.

Excuse me? Have you listened to Rush Limbaugh Show lately. You don't see many high profile advertisers on his show. In fact in the last ten years ad sales on Limbaugh's Show have decreased by 50% while his audience has only declined by 50%

I believe that it is easier for a pressure group to file a lawsuit charging an entity with violating a statute than it is to file a lawsuit challenging an entity with violating a regulation.

Unless you're a Republican, than you don't need to file a lawsuit in either case. Just hire Jack Abramhoff.

In other words, a new Fairness Doctrine law would attract more pressure group lawsuits than the old Fairness Doctrine regulation did. It would do so for two reasons. First, there are more pressure groups today

On the basis of what do you make this claim?

Second, it's easier to file and win lawsuits over violations of law than over violations of regulations.

This isn't true and proves that you have no idea what you are talking about.

 

[gr8oldies]

Any stats to back those claims up, Baroosk?

 

[kaufcom]

Any stats to back those claims up, Baroosk?

Thanks for asking this question. There was an error in my post. It should have stated

“in the last ten years ad sales on Limbaugh's Show have decreased by 50% while his audience has only declined by 15%”

The ad sales number is based on some confidential information that I have acquired since Limbaugh’s show peaked in the mid-90s.

The ratings information is derived from numbers provided by Premiere

 

[Johnny Morgan]

To answer the easier to challenge law or regulation question, both can be challenged in a court. Both have their own succeptiblity.

Laws can only invalidated by interference with the Constitution. For example, a law passed by Congress that suspends habeas corpus for all American citizens today would be unconstitutional (Article I, sec. 9, cl. 2). If a statute already exists that covers the same issue, or substantially the same issue, and the new statute does not explicitly repeal the older one, the court will read both statutes together, to the extent they can be read together, to make sure that the intent of Congress is fully administered (a doctrine called in pari materia).

Regulations, however, must agree with both an underlying statute and the Constitution. That is, the agency promulgating the regulation must have the power to do so, granted by statute, and the regulation must not violate the statute.

How this works is the following, something called the Chevron Doctrine. An agency regulation is only enforceable if it is within the regulatory power given to it by Congress. Normally what happens is that Congress leaves a lot of ambiguity in statutes to permit the maximum amount of policy execution at bthe agency level. Mundanities are done by regulation, for the most part.

So, as Chevron works, if a statute passed by Congress speaks to an issue the agency has also passed a regulation on, the statute controls as the supreme legislation on the topic. However, if the statute is silent, and Congress left ambiguity or openness in the statute, the court will determine whether the agency's regulation is a reasonable and permissible reading of the statute, allowing the agency the power to regulate independently of the statute.

Getting past that hurdle, however, isn't enough, for even though a regulation may be permissible under the statute, it may be too broad or too vague or too restrictive such that it violates a Constitutional provision.

Example: Congress passed the 1934 Communications Act, which regulated broadcast communications. Let's say the FCC, an agency adopted under the 1934 Act, promulgates a statutorily-valid regulation preventing stations from airing any profane language (ignore for the moment 18 USC 1464). The regulation is permissible under the Chevron Doctrine, since in the 1934 Act, Congress left regulation of broadcasting up to the FCC. However, the no profane language prohibition by regulation would certainly violate the First Amendment because profanity, in and of itself, is free speech and has been held to be so, even f**k and s**t (recent FCC precedent notwithstanding).

Hope that makes sense.

 

[AKLes]

“in the last ten years ad sales on Limbaugh's Show have decreased by 50% while his audience has only declined by 15%”

So why, in the face of a declining audience, does Limbaugh continue? He has enough money to own an island nation...why not just buy one and live there?

It's like this:

A person has made a fortune running a grocery store. Could easily close it down and go do something else. Doesn't really want to start something new. She owns the building and fixtures; owes nobody anything. Kind of needs a little something to do. Stops ordering new goods but keeps selling the old stuff. As business falls off, lays off staff. Then as business falls off just comes in for a few hours a day. So long as this is bringing any more money than the cost of heat and lights, why not? It keeps her off the streets and outta trouble.

Serious real happening:

Family owned restaurant in Connecticut...used to go there often. Younger generations worked there but went on to college and got other jobs. Old timer continued to run the place with reduced staff and fewer hours. Business slowed due to shorter hours. Reduced orders for fresh food; didn't need much. One morning he woke up and decided to go back to sleep. Later in the day decided he didn't want to do it anymore. Laid off few remaining on the staff, locked the doors and had the water, gas and electricity turned off. Left the remaining food in the (rapidly warming) freezer and refrigerators. Let the pipes freeze and never went back again. Last I looked the building was still standing. Didn't even have a "for sale" sign on it. Owner had made enough for his needs; didn't need the place so just left it.

Of course contractural stuff will keep Rush from just walking away some day but a sudden medical emergency (real or contrived) might provide an out when the time is ripe. But as long as he's having fun and not losing any money, why not keep toying with the fragile emotions of the politically overwrought?

 

[country24]

"So why, in the face of a declining audience, does Limbaugh continue? He has enough money to own an island nation...why not just buy one and live there?"

1. He has the most popular show on radio today.

2. He's making lot's of money. (Sure he doesn't need it, but then neither do most highly successful people who are in business.)

3. He loves what he is doing, so why should he quit?

I suspect that if you were to ask Rush, he could come up with lots of other good reasons.

 

[Radio_Realist]

Well, considering how the election turned out, we'll see what will happen in January after the newly elected Congress is sworn in. I doubt if any action on a new Fairness Doctrine, passed as a law instead of as a regulation, will take place in the first few weeks. If this prediction does come to pass, I suspect it will be only after lengthy public hearings with lots of opportunities for the newly elected committee heads to get lots of face-time on C-Span and other media. I predict that public hearings and discussions on a new Fairness Doctrine will dominate news/talk radio as well as all other news media for weeks, possibly months.

It will, after all, be a useful distraction for when there are other issues that the government would rather the public didn't think about much, issues that the moderator would only delete or move elsewhere if they were enumerated in here.

Of course, at least one curmudgeon in this forum would prefer that there be no advance discussions regarding anything, and that we only talked about those things that were already a fait acompli.

 

[kaufcom]

Well, considering how the election turned out, we'll see what will happen in January after the newly elected Congress is sworn in. I doubt if any action on a new Fairness Doctrine, passed as a law instead of as a regulation, will take place in the first few weeks. If this prediction does come to pass, I suspect it will be only after lengthy public hearings with lots of opportunities for the newly elected committee heads to get lots of face-time on C-Span and other media. I predict that public hearings and discussions on a new Fairness Doctrine will dominate news/talk radio as well as all other news media for weeks, possibly months.

It will, after all, be a useful distraction for when there are other issues that the government would rather the public didn't think about much, issues that the moderator would only delete or move elsewhere if they were enumerated in here.

Of course, at least one curmudgeon in this forum would prefer that there be no advance discussions regarding anything, and that we only talked about those things that were already a fait acompli.

Here's what's going to happen. There will no re-introduction of the FD. Bush is still President (unless he has a nervous breakdown and resigns) However, the Democratic Congress will do enough jaw-boning to get the radio industry all worked up. What will happen is that Clear Channel and the other large radio groups will start rolling out liberal talk radio in many of the top 200 markets. Mostly struggling AMs. Their hope will be that this will keep the FCC from reintroducing regulations that will reimpose the FD.

 

[Radio_Realist]

Their hope will be that this will keep the FCC from reintroducing regulations that will reimpose the FD.

Some things you don't seem to be aware of:

The FCC as it stands right now consists of people appointed by President Bush. There is no possible way that any broadcasting company that wants to curry favor with the Bush appointees on the FCC Board are going to launch more liberal talk shows. They might launch more liberal talk shows because they think it's a good idea and they might make a profit from it. But how in heaven's name would anyone think that they will favorably influence a bunch of conservatives appointed by President Bush by increasing the amount of liberal news/talk radio they put on the air? Specifically, why on earth would Clear Channel think that rolling out liberal talk radio would keep the conservative Republican appointed FCC from imposing a new Fairness Doctrine?

 

[kaufcom]

why on earth would Clear Channel think that rolling out liberal talk radio would keep the conservative Republican appointed FCC from imposing a new Fairness Doctrine?

You obviously either don't understand how things work in Washington or how the Democratic Party takeover of the House and Senate will effect the balance of power. In the weeks and months ahead there will be a lot of give and take between the Democratic Congress and the Republican Executive. While changing direction of the FCC is way down the list of priorities, such a change could be interpreted as a give by the Republicans. The Dems now control the Congressional oversight of the FCC. That means tough hearings before Congressman Dingell's Energy and Commerce Committee. To think this is not going to result in changes in telecommunications policy -- particularly regarding broadcast regulation is very naive. Right now it is unclear what will happen, however, it is safe to say the 10 year policy of deregulation is over and there will probably be a move to re-regulate parts of the broadcast industry, including radio. My reference to "jaw boning" simply means that the industry will voluntarily make changes before the regulatory authorities get involved.

 

[Tom Wells]

I read with great interest all the posts in this entire thread, as I had started one on the FCC policy board.
I hope any new FD would parallel the intent and spirit of the old one. It effectively kept divisive pontificating to a minimum, while placing the burden upon broadcasters to determine that their offerings were balanced. Truly, this did mean that many broadcasters opted for the "less is more" policy, offering public service shows that were more or less useless.
HOWEVER, we did not hear monologues and caller-bashing.
I would much rather hear "personalities" speaking with their sensibilities engaged, than mindlessly bashing.

The compliance paperwork of the former FD was a nightmare, and did not address 3rd, 4th etc opinions.

ALL opinions of the public have a right to the limited resource.
"Should drugs be legalized?" "Only if the vending machines are privately owned."

I WANT to hear the FULL RANGE of America's opinions, and advertisers be damned.
I WANT to hear the Polkas, civil war songs, jazz from borgestavia, show tunes, rap, sea shanties, war propaganda songs, Rusty Limbaugh,
AND the Dave Baum show. All on the same station. The present model is too.... excuse me, fascist for my tastes.

Benito Mussolini semiquoted: "fascism is the best form of government because it is a combination of state and corporate power."

Until corporations' rights are reduced to a level playing field equal to those of natural persons, it will be impossible to offer a balanced view in broadcasting unless a regulation or law requires them to do so.

And as long as radio/TV are primarily functions of corporations, we can only expect them to serve the bottom line, not the highest ideals of the republic.

"We welcome your opposing viewpoint." See how easy it is to say?
Now when someone calls in with a viewpoint from another planet, give it airtime.
It is too easy to roll out one's own concluding view, hanging up on the caller silently while driving your party line home.
It's also too much like listening to the Reich's controlled viewpoint on "people's receivers", designed to hear only the local position?
"Shall we invade the Sudatenland? Of course, it is our destiny!"