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The FCC has on the table a policy that would resurrect broad censorship rules – very similar to those that were revoked in 1987 because of their chilling effect on free speech and the television press.
The proposed new Localism, Balance and Diversity Doctrine could eventually also affect news on the Internet. The FCC has already begun transferring the broadcast spectrum used by local television to the Internet to make it the nation’s primary communications platform,and the agency has already started to regulate the Internet.
I served as NBC’s executive legal counsel from 1965 to 1990, so I was in the trenches in dealing with the Fairness Doctrine. I share the history of that policy, which dates back to 1934, its goals and consequences, in my book, “Government Control of News: A Constitutional Challenge” — the result of a study initiated at the Woodrow Wilson International Center for Scholars at the Smithsonian Institute.
When the rules governing radio news were applied to TV in 1949, it was because government officials recognized they were dealing with a powerful new medium. There were only a few broadcast stations, so they feared the stations and network owners had too much power. The government instituted the Fairness Doctrine as a way to ensure stations aired opposing viewpoints on issues.
But what was touted as an attempt to encourage robust discourse became a tool for censoring the news. If a complaint was made about a view that had been broadcast, the FCC investigated. If it concluded that a view should be changed, it ordered that. If it concluded other views should be presented, or even related issues, it ordered that.
Failure to comply could result in no license renewal, renewal for a shorter period of time, or a “negative record” applied at renewal time.
In 1987, the FCC unanimously revoked the Fairness Doctrine, with court approval, after finding it had deterred news reporting on controversial issues, and had repeatedly been used to suppress viewpoints and help some officials pursue their own political objectives.
For two decades, Congress tried to revive the Fairness Doctrine, and in 2008, the FCC released a new proposed body of rules for TV news – the Localism, Balance and Diversity Doctrine.
It has many of the same characteristics of the old Fairness Doctrine and we can expect it will have similar results. News broadcast by television stations would have to meet government criteria for local news production and coverage (localism) as well as a regulatory balance and diversity of viewpoints. A three-vote majority of five FCC commissioners at a central government agency would make local news judgments and override those of thousands of independent, local TV reporters and editors.
It would also be enforced by having a local board at each station monitor programming, including news, and recommend against license renewal if the station did not comply with FCC policy.
In 2011, the FCC-sponsored Future of Media Study recommended the localism doctrine proceeding be ended, but that hasn’t happened. The present chief of the White House regulatory office has long recommended that the government regulate news to advance its political and social objectives.
And TV is not the only medium potentially affected.
At the end of 2010, the FCC decided to take over regulation of the Internet in this country. It will regulate its traffic and gain some power to review content. The president, Congress and the FCC have also agreed to transfer the entire broadcast spectrum (currently used by TV stations) to the Internet over the next 10 years. If the localism doctrine is adopted, it could apply to the Internet and its participants as users of the FCC-controlled spectrum.
Requiring journalists to comply with a central government agency’s policy on how to report the news means those journalists will no longer be free and independent. The threat of loss of license will deter station news coverage, particularly of controversy, and the public will lose news and information.
If the broadcast press is not free and independent of government, it cannot act as a watchdog for the public, which is its constitutional role.
I urge all Americans to contact their federal legislators and ask them to take steps to kill the Localism, Balance and Diversity Doctrine – before blogs like this disappear.
Corydon B. Dunham is a Harvard Law School graduate. His “Government Control of News” study was 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.
Published: December 6, 2012 – Volume 11 – Issue 34