June 30, 2002

                  
Commentary / Edward Monks: The end of                  
fairness: Right-wing commentators have a                  
virtual monopoly when it comes to talk                  
radio programming                  
By EDWARD MONKS
                  
For The Register-Guard

                  ONCE UPON A TIME, in a country that now seems
                 
far away, radio and television broadcasters had an

                  
obligation to operate in the public interest. That

                  
generally accepted principle was reflected in a rule

                  
known as the Fairness Doctrine.

                  
The rule, formally adopted by the Federal Communications

                  
Commission in 1949, required all broadcasters to devote a

                  
reasonable amount of time to the discussion of controversial

                  
matters of public interest. It further required broadcasters to air

                  
contrasting points of view regarding those matters. The Fairness

                  
Doctrine arose from the idea embedded in the First Amendment that

                  
the wide dissemination of information from diverse and even

                  
antagonistic sources is essential to the public welfare and to a

                  
healthy democracy.

                  
The FCC is mandated by federal law to grant broadcasting licenses

                  
in such a way that the airwaves are used in the “public

                  
convenience, interest or necessity.” The U.S. Supreme Court in

                  
1969 unanimously upheld the constitutionality of the Fairness

                  
Doctrine, expressing the view that the airwaves were a “public

                  
trust” and that “fairness” required that the public trust accurately

                  
reflect opposing views.

                  
However, by 1987 the Fairness Doctrine was gone – repealed by

                  
the FCC, to which President Reagan had appointed the majority of

                  
commissioners.

                  
That same year, Congress codified the doctrine in a bill that

                  
required the FCC to enforce it. President Reagan vetoed that bill,

                  
saying the Fairness Doctrine was “inconsistent with the tradition of

                  
independent journalism.” Thus, the Fairness Doctrine came to an

                  
end both as a concept and a rule.

                  
Talk radio shows how profoundly the FCC’s repeal of the Fairness

                  
Doctrine has affected political discourse. In recent years almost all

                  
nationally syndicated political talk radio hosts on commercial

                  
stations have openly identified themselves as conservative,

                  
Republican, or both: Rush Limbaugh, Michael Medved, Michael

                  
Reagen, Bob Grant, Ken Hamblin, Pat Buchanan, Oliver North,

                  
Robert Dornan, Gordon Liddy, Sean Hannity, Michael Savage, et al.

                  
The spectrum of opinion on national political commercial talk radio

                  
shows ranges from extreme right wing to very extreme right wing –

                  
there is virtually nothing else.

                  
On local stations, an occasional nonsyndicated moderate or liberal

                  
may sneak through the cracks, but there are relatively few such

                  
exceptions. This domination of the airwaves by a single political

                  
perspective clearly would not have been permissible under the

                  
Fairness Doctrine.

                  
Eugene is fairly representative. There are two local commercial

                  
political talk and news radio stations: KUGN, owned by Cumulus

                  
Broadcasting, the country’s second largest radio broadcasting

                  
company, and KPNW, owned by Clear Channel Communications,

                  
the largest such company.

                  
KUGN’s line-up has three highly partisan conservative Republicans –

                  
Lars Larson (who is regionally syndicated), Michael Savage and

                  
Michael Medved (both of whom are nationally syndicated), covering

                  
a nine-hour block each weekday from 1 p.m. until 10 p.m. Each host

                  
is unambiguous in his commitment to advancing the interests and

                  
policies of the Republican party, and unrelenting in his highly

                  
personalized denunciation of Democrats and virtually all Democratic

                  
Party policy initiatives. That’s 45 hours a week.

                  
For two hours each weekday morning, KUGN has just added

                  
nationally syndicated host Bill O’Reilly. Although he occasionally

                  
criticizes a Republican for something other than being insufficiently

                  
conservative, O’Reilly is clear in his basic conservative viewpoint.

                  
His columns are listed on the Townhall.com web site, created by

                  
the strongly conservative Heritage Foundation. That’s 55 hours of

                  
political talk on KUGN each week by conservatives and Republicans.

                  
No KUGN air time is programmed for a Democratic or liberal political

                  
talk show host.

                  
KPNW carries popular conservative Rush Limbaugh for three hours

                  
each weekday, and Michael Reagan, the conservative son of the

                  
former president, for two hours, for a total of 25 hours per week.

                  
Thus, between the two stations, there are 80 hours per week,

                  
more than 4,000 hours per year, programmed for Republican and

                  
conservative hosts of political talk radio, with not so much as a

                  
second programmed for a Democratic or liberal perspective.

                  
For anyone old enough to remember 15 years earlier when the

                  
Fairness Doctrine applied, it is a breathtakingly remarkable change

                  
– made even more remarkable by the fact that the hosts whose

                  
views are given this virtual monopoly of political expression spend

                  
a great deal of time talking about “the liberal media.”

                  
Political opinions expressed on talk radio are approaching the level

                  
of uniformity that would normally be achieved only in a totalitarian

                  
society, where government commissars or party propaganda

                  
ministers enforce the acceptable view with threats of violence.

                  
There is nothing fair, balanced or democratic about it. Yet the

                  
almost complete right wing Republican domination of political talk

                  
radio in this country has been accomplished without guns or

                  
gulags. Let’s see how it happened.

                  
As late as 1974, the FCC was still reporting that “we regard strict

                  
adherence to the Fairness Doctrine as the single most important

                  
requirement of operation in the public interest – the sine qua non

                  
for grant for renewal of license.” That view had been ratified by the

                  
U.S. Supreme Court, which wrote In glowing terms in 1969 of the

                  
people’s right to a free exchange of opposing views on the public

                  
airwaves:

                  
“But the people as a whole retain their interest in free speech by

                  
radio and their collective right to have the medium function

                  
consistently with the ends and purposes of the First Amendment. It

                  
is the right of the viewers and listeners, not the right of the

                  
broadcasters, which is paramount,” the court said. “Congress need

                  
not stand idly by and permit those with licenses to ignore the

                  
problems which beset the people or to exclude from the airwaves

                  
anything but their own views of fundamental questions.”

                  
Through 1980, the FCC, the majority in Congress and the U. S.

                  
Supreme Court all supported the Fairness Doctrine. It was the

                  
efforts of an interesting collection of conservative Republicans (with

                  
some assistance from liberals such Sen. William Proxmire, a

                  
Wisconsin Democrat, and well-respected journalists such as Fred

                  
Friendly) that came together to quickly kill it.

                  
The position of the FCC dramatically changed when President

                  
Reagan appointed Mark Fowler as chairman in 1981. Fowler was a

                  
lawyer who had worked on Reagan’s campaign, and who

                  
specialized in representing broadcasters. Before his nomination,

                  
which was well received by the broadcast industry, Fowler had

                  
been a critic of the Fairness Doctrine. As FCC chairman, Fowler

                  
made clear his opinion that “the perception of broadcasters as

                  
community trustees should be replaced by a view of broadcasters

                 

as marketplace participants.” He quickly put in motion of series of

                  
events leading to two court cases that eased the way for repeal of

                  
the Fairness Doctrine six years later.

                  
At almost the same time, Sen. Bob Packwood, R-Ore., who became

                  

chairman of the Commerce Committee when Republicans took

                  
control of the Senate in 1981, began holding hearings designed to

                  
produce “evidence” that the Fairness Doctrine did not function as

                  
intended.

                  
Packwood also established the Freedom of Expression Foundation,

                  
described by its president, Craig Smith, long associated with

                  
Republican causes, as a “foundation which would coordinate the

                  
repeal effort using non-public funds, and which could provide

                  
lobbyists, editorialists and other opinion leaders with needed

                  
arguments and evidence.”

                  
Major contributors to the foundation included the major broadcast

                  
networks, as well as Philip Morris, Anheuser-Busch, AT&T and

                  
TimesMirror.

                  
Packwood and the foundation argued that the Fairness Doctrine

                  
chilled or limited speech because broadcasters became reluctant to

                  
carry opinion-oriented broadcasts out of fear that many

                  
organizations or individuals would demand the opportunity to

                  
respond. The argument, which appealed to some liberals such as

                  
Proxmire, thus held that the doctrine, in practice, decreased the

                  
diversity of opinion expressed on public airwaves.

                  
In 1985, the FCC formally adopted the views advanced by

                  
Packwood and the foundation, issuing what was termed a

                  
“Fairness Report,” which contained a “finding” that the Fairness

                  
Doctrine in actuality “inhibited” broadcasters and that it “disserves

                  
the interest of the public in obtaining access to diverse viewpoints.”

                  
Congress, and much of the rest of the country, remained

                  
unconvinced.

                  
Shortly thereafter, in a 2-1 decision in 1986, the U.S. Court of

                  
Appeals for the District of Columbia upheld a new FCC rule refusing

                  
to apply the Fairness Doctrine to teletext (the language appearing

                  
at the bottom of a television screen). The two-judge majority

                  
decided that Congress had not made the Fairness Doctrine a

                  
binding statutory obligation despite statutory language supporting

                  
that inference. The two judges were well-known conservatives

                  
Antonin Scalia and Robert Bork, each thereafter nominated to the

                  
U.S. Supreme Court by President Reagan. Their ruling became the

                  
beginning of the end for the Fairness Doctrine.

                  
The next year, 1987, in the case Meredith Corp. vs. FCC, the FCC

                  
set itself up to lose in such a way as to make repeal of the Fairness

                  
Doctrine as easy as possible. The opinion of the District of Columbia

                  
Court of Appeals took note of the commission’s intention to

                  
undercut the Fairness Doctrine:

                  
“Here, however, the Commission itself has already largely

                  
undermined the legitimacy of its own rule. The FCC has issued a

                  
formal report that eviscerates the rationale for its regulations. The

                  
agency has deliberately cast grave legal doubt on the fairness

                  
doctrine. …”

                  
The court was essentially compelled to send the case back to the

                  
FCC for further proceedings, and the commission used that

                  
opportunity to repeal the Fairness Doctrine. Although there have

                  
been several congressional attempts to revive the doctrine,

                  
Reagan’s veto and the stated opposition of his successor, George

                  
Bush, were successful in preventing that.

                  
It is difficult to underestimate the consequences of repeal of the

                  
Fairness Doctrine on the American political system. In 1994, when

                  
Republicans gained majorities in both chambers of Congress, Newt

                 
Gingrich, soon to become speaker of the House, described the

                  
voting as “the first talk radio election.”

                  
Although it is not susceptible to direct proof, it seems clear to me

                  
that if in communities throughout the United States Al Gore had

                  
been the beneficiary of thousands of hours of supportive talk show

                  
commentary and George W. Bush the victim of thousands of hours

                  
of relentless personal and policy attack, the vote would have been

                  
such that not even the U.S. Supreme Court could have made Bush

                  
president.

                  
Broadcasters’ choice to present conservative views is not purely

                  
about attracting the largest number of listeners. Broadcasters and

                  
their national advertisers tend to be wealthy corporations and

                  
entities, operated and owned by wealthy individuals. Virtually all

                  
national talk show hosts advocate a reduction or elimination of

                  
taxes affecting the wealthy. They vigorously argue for a reduction

                  
in income taxes, abolition of the estate tax and reduction or

                  
elimination of the capital gains tax – positions directly consistent

                  
with the financial interests of broadcasters and advertisers.

                  
Imagine a popular liberal host who argued for a more steeply

                  
graduated income tax, an increase in the tax rate for the largest

                  
estates and an increase in the capital gains tax rate.

                  
Broadcasters and advertisers have no interest in such a host, no

                  
matter how large the audience, because of the host’s ability to

                  
influence the political climate in a way that broadcasters and

                  
advertisers ultimately find to be economically unfavorable.

                  
Hence we wind up with a distortion of a true market system in

                  
which only conservatives compete for audience share. Whether the

                  
theory is that listeners listen to hear views they agree with, or

                  
views they disagree with, in a purely market driven arena,

                  
broadcasters would currently be scrambling to find liberal or

                  
progressive talk show hosts. They are not.

                  
The beneficiaries of the talk show monopoly are not content.

                  
Immediately after he became House speaker, Newt Gingrich led the

                  
Republican battle to eliminate federal funding for the Corporation

                  
for Public Broadcasting, which, free of some commercial

                  
considerations, had broadcast a wider spectrum of opinion.

                  
Although not fully successful, that campaign led to a decrease in

                  
federal funding for the CPB, a greater reliance on corporate

                  
“sponsors” and a drift toward programming acceptable to

                  
conservatives.

                  
No reasonable person can claim that the repeal of the Fairness

                 
Doctrine has led to a wider diversity of views – to a “warming” of

                  
speech, as the FCC, the Freedom of Expression Foundation and

                  
others had predicted.

                  
Perhaps it should not be a surprise that the acts of President

                  
Reagan, Reagan’s FCC appointments, Sen. Packwood, Justice Scalia

                  
and failed Supreme Court nominee Bork and the first President

                  
Bush should combine to ultimately produce, in my town, a 4,000

                  
hour to zero yearly advantage for Republican propaganda over the

                  
Democratic opposition.Nor should we overlook the Orwellian irony

                  
that the efforts of an organization calling itself the Freedom of

                  
Expression Foundation helped result in so limited a range of public

                  
expression of views.

                  
Perhaps the current president, aware that the repeal of the

                  
Fairness Doctrine had the opposite effect of what was publicly

                  
predicted by his predecessors and aware that a monopoly on public

                  
expression is inconsistent with a democratic tradition, will direct his

                  
administration to reinstate the Fairness Doctrine. What about that

                  
cold day in hell?

                  
Edward Monks is a Eugene attorney.

 

COURTESY: J. LEWIS!