Would you believe the FCC is seriously considering assigning an official local board of censors to each local radio and TV station that reports local news to approve, spike or rewrite news stories? The proposal is on FCC Chairman Julius Genachowski's desk right now. It’s the biggest unreported news story in the broadcast and electronic news industry.
I was minding my own business the other morning, listening with one ear to local AM talk radio, when something hit my radar screen so hard it darned near broke it. What I heard was a guest phone interview with a man as credible as his words were chilling. The nature of his discussion was the FCC’s proposed new Localism, Balance and Diversity Doctrine. Google those five words, and you will see this topic has received scant attention. The guest, Corydon Dunham, was NBC’s executive legal counsel from 1965 to 1990. He wrote a book in 2012 titled “Government Control of News: A Constitutional Challenge.” I pried my jaw from the floor and started taking notes.
Fairness foundation
In terms of news and controversial issues, FCC policy was once defined by the Communications Act of 1934. It broadly required broadcasters to satisfy the general “public interest.” The year 1949 was the age of a couple of commercial TV networks generally relying on the telephone company for live program distribution to affiliates across the network. There were no satellites or videotape, and no other programming sources were available other than locally originated live or film content.
Politicians feared television, thinking networks and station owners had too much concentration of power. Clearly, there was a lack of diversity when you could count all TV news and information sources in any given market on one hand. In 1949, the FCC applied emerging rules governing radio news to television, and the Fairness Doctrine was born. It required broadcasters to devote some — but not necessarily equal — airtime to discussing matters of public interest and to air contrasting points of view. It could be done in the context of news, public affairs, editorials and other programming. The idea was to expose viewers to a diversity of viewpoints when all markets had only a few stations providing television news and programming.
With congressional backing, the FCC responded to complaints about radio and TV news, conducted investigations of station news reports and ordered changes in news coverage for balance and other government rules on news content. This wasn’t known to most in the public nor did many know that the Fairness Doctrine wasn’t just being used to change news coverage.
In 1987, the FCC unanimously found the Doctrine was also being used by the Commissioners, who were appointed by the president to prevent criticism of the president. After an exhaustive review of the facts the Commission voted to terminate the Fairness Doctrine. They also found the Fairness Doctrine didn’t stimulate debate as promised. They found that in fact, it suppressed news and made stations leery of covering some news stories that should be reported for fear of an unpredictable FCC ruling that could result in the loss of their broadcast license.
At that vote, Commission Chairman Patrick said, “We seek to extend to the electronic press the same First Amendment guarantees that the print media have enjoyed since our country's inception.” Later, in 1987 and again in 1991, Congress attempted to overrule the FCC and reinstate the doctrine. Both attempts were vetoed by the sitting president. The FCC’s decision had been argued and upheld by a D.C. Circuit Appeals Court in 1989. In his first presidential campaign, Senator Obama said he would not bring back the Fairness Doctrine.
In Congress, all seemed quiet until 2005, when a congressperson introduced the Fairness and Accountability in Broadcasting Act. It died in committee. In 2007, reinstatement of the Fairness Doctrine began picking up support among some in the U.S. Senate. At a Chicago public meeting on Sept. 20, 2007, Ken Bennett, Illinois State Director for then Senator Barack Obama, read a statement from the Senator saying, "I fully endorse a call for new rules promoting greater coverage of local issues, greater responsiveness of broadcasters to the communities they operate in. I also believe that broadcasters' license renewal requests, the periodic review required to ensure that broadcasters are complying with their public interest obligations to local communities for using the public spectrum, should require greater FCC scrutiny and public input should occur more frequently."
The controversy again seemed to quiet down, and in 2009, a White House spokesman reportedly said President Obama continues to oppose reinstatement of the Doctrine. That opposition seemed to grow and on Aug. 11, 2011, the FCC voted to formally repeal even the few provisions that were still on the books of the Fairness Doctrine along with dozens of other “unnecessary regulations.” You might think that would be the end of the story.
Like the "Die Hard" movie franchise, the Fairness Doctrine is back with vengeance, and this one’s as serious as a heart attack. Now pending before the FCC is a proposal known as the Localism, Balance and Diversity Doctrine that would subject all local news content to government review and change. Change would be ordered as it was under the old Fairness Doctrine by majority vote of 3 of 5 Commissioners, all of whom, by law, are Presidential appointees.
Commissioners are generally appointed because of their political backgrounds and are not necessarily experts in broadcasting or news. Each has personal political views. Three of five would once again have the power to pull, amend and change news stories and how they are presented, at will.
This time, the government proposes to add an official local board of censors at each local station to make sure the station complies. If not, the board is to recommend the station’s license to be revoked. This would apply to radio and TV news across the country. Networks would have to supply programs to stations that comply, or its affiliates would be in trouble. The FCC took control of the Internet last year and is now expanding its reach over its content and its news, too.
Because the rules are necessarily vague, it’s difficult to predict how three Commissioners will vote on a given subject. Under the threat of losing its license, stations would be easily intimidated if questions or investigations were to arise due to news coverage non-compliance. Internet organizations would also be controlled.
The idea of presenting balanced viewpoints may seem like a good idea, but the problem and threat is found in who decides. Even If local producers, reporters and stations decide, the decision of the three Commissioners in Washington will determine the outcome. Local stations will have to predict where Washington’s politics will lead those Commissioners at the local level. If a local station’s coverage doesn’t agree with Commission-approved politics, stations will have to change the stories.
In 2011, a Special Staff Report on the FCC investigated whether the Fairness Doctrine should be brought back and the new rules adopted. The Special Staff Report concluded this would be against the public interest and such a proceeding should not continue. Since then, the Commission Chairman has refused to dismiss it, which means it’s still pending. All it takes is three votes to restart the censorship atmosphere. It’s that close.
What can you do? Get the word out. The Localism, Balance and Diversity Doctrine has been around in proposal form for a year or so, but now it is all being done behind the scenes in Washington D.C. with virtually no publicity. All a private citizen can do is to contact your congressperson, state senators and Congressional Commerce Committee members listed here and the Senate Commerce Committee members listed here.
Nothing speaks louder than a well thought out hand-written, signed and mailed letter, although phone calls and e-mails may have a some effect, too. Numbers speak louder than words.
In the early 1970s at The University of Kansas' journalism school, I took two Propaganda and Censorship courses. I thought everyone in J-schools across America agreed with Professor Calder Pickett’s passionate appeals for future journalists to be vigilant for this kind of activity. "Never again." he used to say. If you read it here first, apparently not everyone agreed.
Editor’s note: Corydon B. Dunham is a Harvard Law School graduate. His Government Control of News study was initiated at the Woodrow Wilson International Center for Scholars, Smithsonian Institute, and expanded and developed for the Corydon B. Dunham Fellowship for the First Amendment at Harvard Law School and the Dunham Open Forum for First Amendment Values at Bowdoin College. In addition to his long legal career at NBC, he was on the board of directors of the National Television Academy of Arts and Sciences, American Corporate Counsel Association, and American Arbitration Association among other posts. His 2012 book, "Government Control of News: A Constitutional Challenge,” is written with footnotes, citations and references so readers can decide for themselves the seriousness of the threats.