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Fairness Doctrine: beast or benefactor?

"The record reflects that stations which do elect to editorialize are inhibited by the Fairness Doctrine requirements."

Fairness Doctrine Report, 1985

THE SPOTTED OWL is not the only living creature on the endangered species list. So, too, may be the broadcast editorialist.

The predator is the Fairness Doctrine, draped in the sheepskins of the U.S. Congress and perhaps the new administration.

At least, proponents of the First Amendment view it that way. The doctrine, thrown out in 1987 by the Federal Communications Commission, required that broadcasters offer contrasting viewpoints on controversial issues of public importance.

The FCC abolished the doctrine because, the agency said, it "had a chilling effect on broadcasters' speech," was counterproductive, and discouraged rather than encouraged diverse viewpoints.

At the time, FCC chair Mark Fowler said it was "an indictment of misguided government policy." From the smallest radio station to the television networks, the doctrine "creates a climate of timidity and fear unexperienced by print journalists," the FCC said.

During the Reagan administration, Congress passed fairness legislation. But Reagan vetoed the bill, and there were not enough votes to override. Since those deregulation years, only the threat of another veto has prevented the doctrine from becoming statutory law.

Changing of the guard

Today, the changing of the guard has let a new hunting party back in -- the party now in control of the White House and the congressional majority. It is led by familiar faces: Senators Ernest Hollings (D-S.C.) and Daniel Inouye (D-Hawaii), and Representatives John Dingell (D-Mich.) and Edward Markey (D-Mass.).

"The implications for journalism ... could be ominous," says David Bartlett, president of the Radio-Television News Director's Association.

Dan Rather, anchor and managing editor of the CBS Evening News, told the FCC that he remembered newsroom conversations about what the regulatory 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," Rather once said.

WISC-TV in Madison, Wis., is new to editorializing, having begun twice-a-week broadcasts in April 1992. Editorial director Neil Heinen says that if the doctrine is re-enacted, broadcasters would have a seductive tool: They could reply to complaints by stating that they must broadcast fairly because they operate under the government's rules.

"It's the government seal of approval, but I don't buy it," Heinen says. "I think it's every bit an intrusion and has a chilling effect."

Industry leaders such as the National Association of Broadcasters and RTNDA have long said that judgments about editorial fairness should be made by viewers -- not special interest groups or government.

"I think journalists have a general ethic of being fair, but it's not fairness as judged by the government, because the government has too often an ax to grind," says RTNDA general counsel Laurent Scharff.


Broadcasters also say the Fairness Doctrine's chill over free speech results not so much from what government officials will do, but from the stations' own self-censorship. Anytime the government looks over your shoulder, there's danger a station will become bland, so as not to borrow trouble, Scharff says.

"It certainly does not encourage robust debate," he says. "The second-guessing leaves you uncertain about whether you're doing the right thing, and when you're uncertain ... you may do nothing."

Seven years ago, J.T. Whitlock, then president and general manager of the Lebanon-Springfield Broadcasting Company, emphasized that point to the FCC, which it included in its Fairness Report. Because his station feared having to defend a Fairness Doctrine complaint, it did not editorialize on an important local issue even though, in his judgment, the situation "... cried for editorials by the station."

"The real chilling effect was that |the doctrine~ froze to inaction so many broadcasters to whom the medium was a business, first and foremost, from doing anything to jeopardize their station license . . . their money-machine," says Ted Powers, one of the founders of the now-defunct National Broadcast Editorial Association.

Specifically, smaller markets can be more easily intimidated from dealing with controversial issues, says Steve Bookshester, NAB associate general counsel.

"Practicing law is not what they do for a living," he adds. "They run stations, and if it all gets too complex, they would just as soon not do it."

And financial costs to defend a complaint against an editorial or other news program can be daunting even if the station ends up vindicated. NBC's legal costs topped $100,000 when a Fairness Doctrine complaint was lodged against a documentary on abuses in the private pension industry.

A fairness complaint lodged by the then-mayor of Milwaukee against WTMJ-TV ended in favor of the station but cost two months in staff time and thousands of dollars in court fees.

"We could afford the $17,000, but that might be the entire profit for a small-town radio station that likes to editorialize," says Ed Hinshaw, WTMJ-TV editorial affairs manager. He notes that the idea of the doctrine is sound, but "the minute you turn it into a regulation, it's subject to the kind of abuse we went through."

Paper trail

While some stations aren't worried that the doctrine would have a chilling effect upon their editorials or program content, they are concerned about the paperwork.

"I think the logistics of managing that whole process could become a real nightmare," says Pamela Steele, vice president and director of public affairs at KIRO Radio & TV in Seattle.

Indeed, complaints created a troublesome paper trail for the FCC, which has incomplete records that span the 40-year life of the doctrine. Many of the complaints came via telephone and were lumped in with inquiries.

"We kept very few records mainly because we just had no one to do it," says Milton Gross, the FCC official in charge of policy enforcement.

Mixed opinion

Despite the threat of government interference, self-censorship, and an out-of-control paper glut, not all broadcasters find fault with the doctrine.

"We've never had a problem with the Fairness Doctrine and would not at all be dismayed to see it reconstituted," says Ken Schram, editorial director for KOMO Radio & TV in Seattle.

Schram says that in the 12 years he has broadcast editorials he has "never felt inhibited or restrained" in what he said, regardless of whether the doctrine was in effect.

"We operate the same whether the legislation exists or not," notes Jack Comers, vice president and general manager of WICS-TV in Springfield, Ill. "The concept of fairness is fundamentally what we're doing. It hasn't made a lick of difference to us."

Shortly after the doctrine's repeal in 1987, Pittsburgh station KDKA-AM-TV aired an editorial advocating support of the doctrine. "We need a Fairness Doctrine to ensure that we get the whole story about the issues that affect us all," the station reported. "Unless the FCC reconsiders, it's up to Congress to make this important policy into actual law."

The future

While opinions are mixed in the broadcast community, the future of the Fairness Doctrine rests not in broadcasters' hands -- but in the hands of the new administration, Congress, and ultimately the courts.

Congressional aides say fairness bills should easily pass the House and Senate and are likely to find a friend in the White House. Vice President Al Gore has supported the doctrine in the past. President Clinton has been silent on the issue. But supporters of the doctrine take that as an optimistic sign, since other presidents have come out early with their opposition.

"It's never a done deal until it's actually signed," says a Senate aide. "However, we're not expecting him to veto it."

Scarcity in the marketplace?

THE Fairness Doctrine was enacted at a time when broadcasting was in its infancy and the number of radio and television stations were few. However, the scarcity-in-the-marketplace argument has been discounted by the FCC.

In 1949 when the doctrine was enacted, 2,564 over-the-air radio stations existed. Today, that number is 11,318.

In television that same year, there were 51 stations compared with 1,509 today.

Add to that the voices from another 1,306 low-power TV stations, which were authorized to originate programming in 1982.

As for the influence of cable, 79% of the nation's households receive 20 or more signals, according to the National Cable Television Association.

NCEW member Jill Olmsted is an assistant professor of broadcast journalism at The American University in Washington, D.C., and a Capitol Hill reporter for WGN-TV and WGN-Radio in Chicago.
COPYRIGHT 1993 National Conference of Editorial Writers
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1993, Gale Group. All rights reserved. Gale Group is a Thomson Corporation Company.

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Author:Olmsted, Jill
Publication:The Masthead
Date:Jun 22, 1993
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