Barack Obama says he wouldn't reintroduce the Federal Communications Commission's most infamous speech-squashing regulation. But there are more mundane reasons to spectre the next FCC. | November 2008 First the talented news: The fairness concept is still dead, and it quite will check extinguished even if Barack Obama becomes president. The doctrine, a law that gave the sway the influence to tar and feather broadcasters for being insufficiently balanced, was killed off 21 years ago. It isn't fitting to return, in defiance of tireless rumors that the regulation's rotting body will creep from its casket and disembowel Rush Limbaugh.
But you can't disapprobation a talk transistor fans for worrying. When the Federal Communications Commission enforced the doctrine, from 1949 to 1987, it was a advantageous clubhouse for politicians and share groups itching to inhibit their critics. During the carry on couple of years, House Speaker Nancy Pelosi and other apparent Democrats have publicly pined for its return, a alter that would effectively coerce any outlet that transmits Sean Hannity's show to either aside a chunk of its appoint to rebutting him or, more likely, dial back its administrative programs totally and air a jock or a psychiatrist instead. Pelosi's champion hasn't come fast to restoring the rule, but they've handed a formidable political weapon to the opposition: Every schedule the Dems father the subject, right-wing radio shows and blogs transmission the news to an steamed up conservative base.
In a year when rank-and-file Republicans are uncomfortable with their party's presidential nominee, it's a forceful distance to argue into them to hold their noses and preference for John McCain. And so the true-blue weekly Human Events warns that "liberals are chafing at the bit, waiting for leadership substitute in Washington to give them the power to reinstate the 'fairness doctrine.' " Michael Medved, the flick critic and AM talker, announces in unrestrained funds letters that "THOSE RADIO HOSTS WHO CLAIM THAT MCCAIN AND HIS DEMOCRATIC RIVALS ARE 'INTERCHANGEABLE' SHOULD NOT IGNORE THIS CRUCIAL ISSUE." And Cliff Kincaid of Accuracy in Media-an organism that never shied from wielding the fairness idea against the left-frets that "if Obama captures the White House and gets the time to fix the FCC chairman, liberals would then have a 3-2 womanhood effectual of bringing back the Fairness Doctrine through administrative action, without the requisite for congressional approval." It won't happen, says Obama.
On June 25, in a savvy federal move, his smooth secretary sent an email to the exertion minute-book Broadcasting & Cable. Deftly deflating the scare, the secretary stated flatly that "Sen. Obama does not underwrite reimposing the Fairness Doctrine on broadcasters." Now the pernicious news.
There's a proprietress of other show regulations that Obama has not foresworn. In the worst-case scenario, they suggest a crowd where the FCC creates unsought budding rules by fiat, meddles more with the size of stations' programs, and uses the unfinished extensions of broadband access as an possibility to put its paws on the Internet. At a regulate when cultural casting has been exploding, fueled by increasingly separate and participatory fresh media, we would be stepping back toward the days when the radio media were a centralized and cozy public-private partnership. Such threats might not rile up the red-state debased the motion the fairness proposition does, in division because it's far from comprehensible that the GOP would be any better. Under its au courant chairman, Republican Kevin Martin, the FCC has been no familiar to either above-board scheme or emancipate speech.
It has severely increased federal restrictions on the media, with a Pharisaical war against "indecent" broadcasting; novel regulations for dependant radio, wireless phones, and other communications industries; and an have a go to assert unprecedented powers over mooring TV. "Martin is the most regulatory Republican FCC chairman in decades," says Adam Thierer, chairman of the anti-censorship Center for Digital Media Freedom. "He wants to authority over elocution and will use whatever tools he has to get there." An Obama FCC might portend still more steps toward reregulation.
Coming on the heels of Martin's commission, it could also exceptional a relevant reprieve-even, in some areas, a forward away from instruct and control. A lot depends on events, and a lot depends on which incline groups gain the most pressurize in his administration. Here are four factions to subsistence an guard on. The Players The idealists.
There is a rough coalition on the Heraldry sinister that calls itself the media change movement. Its members are seldom the most strong populace in the room, but they inevitably whoop the loudest. They forgather in public-interest groups-Free Press, Public Knowledge, the Media Access Project-that troupe themselves as populists fighting the critical media corporations, which they accuse of centralizing control and shutting out recusant perspectives. In their more libertarian moments, they'll roar for beginning up more spectrum, loosening copyright controls, and rolling back culturally right-wing restrictions on speech.
Prominent reformers will also, alas, shore up a drove of additional productive regulations and speech pattern controls. Some members of the movement, such as the communications historian Robert McChesney, lean to importance the reregulation. In his 2008 rules The Political Economy of Media, McChesney goes so far as to traverse "private ownership of media" as one of "the direct internal impediments to a supportable relaxed press." Other reformers, such as the acceptable scholars Lawrence Lessig and Tim Wu, aren't so statist; even when they invite for brand-new controls, they turn they put forward broad and understood rules aimed at encouraging innovation, not diktats meant to jemmy a determined outcome.
"We need to radically fashion back on the scope and reach of what the FCC is doing," Lessig says, "not to the set of no regulation, but to the everybody of directive for the objective of facilitating proper competition, not protecting against competition." Lessig has met with Obama to debate technology policy, and while he has his disagreements with the candidate-he didn't worth Obama's suffrage this year to give telecom companies retroactive release for illegally assisting domination spies-he strongly supports the Democratic ticket. From the other end of the coalition, McChesney told the National Conference for Media Reform in June: "Our burden doesn't end if he's elected. It begins. But at least we're in play.
" Incidentally, Trinity Church, the argumentative concert-hall of homage that Obama attended until May, is associated with the United Church of Christ, a body that has been heavily affected with the media reorganize movement. During the end few years, the church has urged the FCC to restrict result deployment on television, to cast-offs to redo the licenses of stations that don't make enough children's programming, to let more low-power transmit stations on the air, to chunk media consolidation, and-yes-to rejuvenate the fairness doctrine. Minority broadcasters. Obama has the burdensome backing of the hyacinthine community.
Generally speaking, that includes blacks in the broadcasting business. The Democratic coalition has a experience of racket for more minority-owned enterprises, and that's not tenable to novelty during an Obama presidency. There's some overlie between this group's goals and those of the media recovery movement. Public-interest lobbies generally rule the need for more racial disparity in both ownership and programming, and organizations such as the National Association of Black Owned Broadcasters (known by the charming acronym NABOB) often adjoin the reformers in condemning concentrated ownership of the media.
But the two programme programs are not an consummate match. When the two-dimensional businesses that deliver up much of the minority broadcasting community look out on at some of the regulations endorsed by the reformers, they discover red stripe and bureaucratic discrimination. David Honig, a trouper of Jesse Jackson's Rainbow Coalition who now runs the Minority Media and Telecommunications Council, has intensely criticized the FCC for the ways "regulation acts as a filtering utensil to undertake admission by favored groups and to daunt listing by disfavored groups.
" Naturally, the accord changes when the regulations favor minority ownership. Both Honig's agglomeration and NABOB mark the commission should favour nonwhite applicants when awarding sow licenses. Tech support. Barack Obama may refer to with activists hungry to bring the media and telecom companies to heel, but he receives more than enough of production support as well.
Some of those companies pledge wealth to both candidates, but the lion's share of the depredate is going to the Democrat. As of July, according to the Center for Responsive Politics, Obama had received $12,351,351 from the communications and electronics sector, as opposed to just $3,055,535 for McCain. The computer and Internet industries favored Obama over McCain, $3,729,991 to $920,554; TV, movie, and music companies preferred Obama as well, $4,701,382 to $815,451. (Telephone utilities, on the other hand, gave $379,835 to the Republican and $249,072 to the Democrat.) This layout has alarmed Obama's supporters in the media repair camp.
Writing in May, McChesney and The Nation's John Nichols warned that "industry resources is growing to Obama in intuition of his victory." At the National Conference for Media Reform, McChesney added that the reformers would difficulty to "apply pressure" from the other direction. It's quality noting, though, that the reformers and enterprise aren't always at odds. The most eye-catching pattern is grid-work neutrality-the idea, endorsed by Obama, that Internet providers should not be intolerant in figure or precedency between separate uses of the Net. Like the reformers, but for its own self-interested reasons, Google strongly supports judiciary enforcement of this principle.
As of July, Google accounted for $373,212 in donations to the Obama campaign. The bureaucracy. And then there's the commission itself, which has its own momentum.
"The FCC is, structurally, an sovereign agency," points out Kevin Werbach, an auxiliary professor of statutory studies at the Wharton School, a unmistakeable guard of spectrum reform, and an Obama supporter. "The president selects the chairman and nominates the commissioners, but the president does not require the FCC it must authority this trail or that scheme on a fastidious proceeding." Both of the coeval Democratic commissioners, Jonathan Adelstein and Michael Copps, have supported increases in regulatory controls, with Copps in marked important the sally against both uncultured broadcasting and media mergers. Neither is suitable to pull up stakes next year.
For some observers, that matchless is enough to hint what to anticipate from a untrodden administration. It's "not hostile to forecast an Obama FCC-just understand the speeches and opinions of Adelstein and Copps, and you're there," says Ben Compaine, co-editor of the Journal of Media Economics. (Both Adelstein and Copps declined to be interviewed for this article.) With those c oftentimes conflicting forces in the background, here's how the most vital issues at the FCC might frolic out under Obama. 'Indecent Speech' In the endure seven years, the commission has ramped up its make on "indecency," levying unprecedentedly tipsy fines and attempting to stretch forth its bias into line and sidekick broadcasting. (Under posted law, its rules against swearing and smut do not administer to such promise services.) This sell of tactic indeed preceded 2004's Super Bowl debut of Janet Jackson's healthy breast, but the crackdown has only intensified since then, with steeper fines and sillier targets.
"Give attribution where it's due," says Thierer. "Obama is quite tickety-boo on this issue." The Democrat's officer technology map condemns violent, sexual, and one-sided language and images in the media, but it also states when that the seeker "values our First Amendment freedoms and our sane to artistic speech and does not take in setting as the surrejoinder to these concerns. Instead, an Obama provision will give parents the tools and intelligence they straits to guide what their children greet on small screen and the Internet.
" That's a far fret from the views of Kevin Martin, who once said, "You can always cycle the goggle-box off and, of course, hamper the channels you don't want. But why should you have to?" That said, the bureaucratic power on this affair favors the progress crusade. In 2004, People asked the squire who put Martin in direction of the FCC what to do about "foul style and libidinous titillation" on television.
Bush's reply: "They put the on/off button TVs for a reason." It was a put wise answer, just identical to Obama's comments about the First Amendment. And it didn't nip in the bud the crackdown.
"I don't follow Obama as much as I follow the FCC," says Matthew Lasar, a left-leaning historian at the University of California at Santa Cruz and a reiterative contributor to the tech install Ars Technica. "Think in terms of what he's contemporary to inherit." The go for higher indecency penalties isn't coming only from the Republican chairman.
On the Democratic side, Adelstein and Copps are vigorous censors as well, with Copps in distinct urging the commission to come down harder on tasteless expression. In 2004, when the working fined Clear Channel $755,000 for a series of crass ghetto-blaster skits and some joint incidents of obscene recordkeeping, Copps objected that the company's stations should have paid even more-or, better still, unchaste their licenses to relay altogether: "I am discouraged," he wrote, "that my colleagues would not verge on me in winning a condensed stopover against indecency on the airwaves." "Michael Copps and Jonathan Adelstein are moderately invested in the indecency process, because it brings various parties together around the pay-off of believing in regulation," says Lasar. "They survive this as a means to draft clan into the pro-regulator camp.
" Reversing that thing would augur skin down an rooted unregulated bureaucracy. "I'd be surprised if Obama can fetch much of a dent in that, assuming he exceptionally wants to," Lasar concludes. Congress, too, seems united to regulating shameful language. The judiciary, however, may be prejudice in another direction. In July the U.S. Court of Appeals for the 3rd Circuit ruled that the FCC "acted arbitrarily and capriciously" when it fined CBS $50,000 for Janet Jackson's nipple slip.
In a equivalent case, involving the government's beneficial to whip stations for airing unplanned, fly-by-night four-letter words, the 2nd Circuit rebuffed the commission on the same grounds, adding that it was "skeptical that the Commission can present a reasoned cause for its 'fleeting expletive' administration that would manoeuvre constitutional muster." The command has appealed that decision, and the U.S. Supreme Court will listen the cover soon. Local Speech During the after few decades, portable stations have relied increasingly on programs produced elsewhere.
With voicetracking technology, a DJ in Dallas can archive hours of shows for stations around the countryside in less than 30 minutes, round off with regional references to be inserted into unique outlets' transmissions. Meanwhile, close by musicians and community activists often have uprising getting any airtime at all. It's technologically sensible to let the locals head start uncharitable stations of their own, but regulators have made that a long, cumbersome, and precious process.
The entrance barriers traverse from costly technologic requirements to outdated path disintegration rules that make tighter the horde of at licenses. The indisputable result is to compress those barriers. But you'll also be told calls to compel existing stations to designate space for more locals, or to desire broadcasters to declare other kinds of "public interest" programming. Think of it as the twist inconsiderable of the indecency debate: This is the spiel that each and every one professes to like, at least when it takes the ceremony of explicit buzzwords such as variegation and localism and not manifest programming that might rile people.
In January, for example, the FCC released a clock in on advertise localism, which amongst other recommendations suggested that each train station should "convene a permanent consultative board made up of officials and other leaders" to guide it on "community needs and issues." The article also declared that the commission should give aggrieved listeners "more straightforward guidance" on "how individuals can entirely participate in the permit renewal process." It sounds mild-but then again, so did the fairness doctrine, which solely asserted that stations should "afford thinking occasion for argument of conflicting views on matters of visible importance." When "individuals" arbitrate to "participate" at approve renewal time, that's when would-be censors toady out of the woodwork.
The United Church of Christ, for example, has distributed a handbook to activists with intelligence on how to goal a railway station for termination. It includes a taste petition, filed by Rocky Mountain Media Watch in 1998, urging the superintendence to "protect" the custom by refusing to relicense a Denver TV outlet, on the grounds that its newscasts "are punitively unbalanced, with immoderate coverage of wild topics and trivial events, and, consequently, flawed front-page news coverage of a comprehensive range of stories and vivifying social issues. In addition, newscasts remaining stereotypical and unfavorable depictions of women and minorities." Imagine having to contend with such petitions, from both the port side and the right, every era you have to entreat the FCC for acceptance to keep broadcasting.
Even if you get to incarcerate your license, it'll scurvy spending more time and specie dealing with the hassle. The usual impulse will be to throw some bones to your critics, especially the ones who have managed to debark spots on your community bulletin board. For some Republicans, the suggested regulations are a speed to occasion the fairness doctrine back into the conversation. In a June epistle to Kevin Martin, House Minority Leader John Boehner charged the FCC with a "stealth enactment of the Fairness Doctrine," arguing that "the distraction of pre-1980s prediction boards will pad transmit media squarely on a method toward rationed speech." A assemblage called Save Christian Radio worries that since the community warning boards must be "broadly agent of an area's population," the redesigned rules could churlish that "Christian scatter stations could be laboured to take programming guidance from people whose values are at probability with the Gospel.
" Maybe yes, perhaps no: The FCC is still receiving freeman comments on its initial proposals-most of them tournament against the idea-so it's actively to say how onerous the final rules will be, if on my oath they're passed at all. But if you're apprehensive about an Obama administration, this is where there's the most implicit for mischief. The aspirant has broadly endorsed rules requiring more particular programming. He also supports a layout the Martin commission has rejected: shortening the ease between proclaim license renewals from eight years to two.
Much of the media modification shift has endorsed these ideas. The minority broadcasting community is less enthusiastic. In the spring, the Minority Media and Telecommunications Council and the Independent Spanish Broadcasters Association submitted comments to the commission criticizing the localism report, arguing that "many of the proposals…would have a disparate cancelling strike on minority broadcasters because of their to some degree young enormousness and small access to capital.
" In particular, "very few small, resident disseminate owners can grant to formally superintend the durable notice boards." Opening Up Spectrum A better progress to promote localism is to tolerate more local stations on the air. At this cape the technical fetch of starting a station is so low, and the developing competition for advertising is so cutthroat, that an fair marketplace might actually favor small, volunteer-run, noncommercial outlets created out of a desire for music or to demonstrate a also persnickety point of view. For a harsh comparison, look at the Internet, where passion-driven websites breed even when e-commerce hits a downturn.
Ushering in those stations requires hardly ever more than loosening the federal government's grip. Simply allowing FM broadcasters to use the latitude allocated to TV direct 6, for example, could write area for thousands of imaginative stations around the United States. But that option, derive many others, has been shut up off, generally because the National Association of Broadcasters is adept at persuading Washington to keep the incumbent industry from competition.
Unsurprisingly, the lobbyists who onslaught hardest for these barriers are often the foremost to protest the public-service regulations dear by the media reform movement. Meanwhile, the media reformers can rapidly practical like libertarians when the area of study turns to letting community groups founding their own stations. Many of them, in fact, second even more broad changes to the FCC's controls on the electromagnetic spectrum. In his 2001 order The Future of Ideas, Lessig wrote that "the only apparatus that government-controlled spectrum has produced is an cosy opening for the past it to protect themselves against the new.
Innovation moves too slowly when it must constantly invite leniency from politically controlled agencies." The material debate, he argued, is between those who ruminate spectrum should be treated as not for publication property and those who believe new technologies stand the ether to function as an divulge commons. Both Obama and McCain would perhaps be pretty good on the defined issue of allowing more community outlets.
William Kennard, the Clinton-era FCC rocking-chair who championed licensed low-power radio, is an Obama adviser. McCain initially opposed the idea-in 1999 he suggested that anyone who wants to bulge a low-watt post should get "a Web foot-boy or a leased access telegram channel" instead-but he has reversed himself since then. Last year he co-sponsored the Local Community Radio Act, which would own more stations on the air. It's harder to for granted either entrant pushing for universal spectrum reform.
But there is one ways and means mull over that could move that broadcasting onto the table: the pump of "white spaces," abandoned spots in the spectrum between the frequencies employed by TV broadcasters. Many in the media mend one's ways flicker have been pushing the FCC to uncovered those areas to unlicensed devices delivering wireless Internet access. Microsoft unveiled a model concluding year that it said could use those spaces without interfering with telly signals. (So far the commission doesn't agree.) A total of gratis Stock Exchange economists, meanwhile, have called for the FCC to auction off the spaces and let remarkable future users bargain for the propitious to use them.
Still other policy watchers have called for a combination of the two approaches. What all these ideas have in shared is that they would brook much more flexible uses of spectrum, pulling the FCC back from its lines as the zoning provisions of the airwaves and setting a precedent for larger reforms. Even if Obama's appointees let that happen, sedulousness lobbies could still halt the idea.
"I would envision the National Association of Broadcasters would do what they did with low-power FM," says Lasar. "They'd steal a fear-mongering competition to Congress and be placed some group of bid for a law to qualify what the FCC can do." Legislators of both parties, he argues, are "pretty suggestible to the National Association of Broadcasters' position, which is that unlicensed broadband applications will forge a walloping critical time for the entire broadcasting industry, will interrupt with TV, will interfere with medical devices, will deflowering the world. Which they have all but said in FCC proceedings." Back-Door Regulation In a June deliberate before the right-winger Federalist Society, late FCC most important Reed Hundt, serving as a surrogate for Obama, said the runner "doesn't assume there should be any more media consolidation until revitalized policies are developed to upgrade diversity and localism.
" The nominee himself co-sponsored a bill model year to prevent the FCC from loosening the rules restraining newspapers from owning seed stations and immorality versa. Meanwhile, out in the marketplace, the media have been flourishing through a roller of deconsolidation, most of it market-driven. CBS recently announced that it will convey off 50 crystal set stations.
Clear Channel, the biggest present chain, put more than 400 stations up for purchasing in 2006. Time Warner has been spinning off properties for years. It's eerie to duty up a distress about media monopolies at a time when the media themselves are sweating over the strange forms of striving they're facing-weirder, at least, than it was a decade ago, when the headlines were filled with mergers and AOL Time Warner stood twin a colossus atop the horizon. The persistant solicitude with consolidation would be harmless, even productive, if it manifested itself as a unremitting crack to let more common people onto the airwaves. But that's not where it seems to be heading now.
An FCC on the slink against "media monopolies" is an FCC that's more enthusiastic to trammel with unborn mergers. Not to brick mergers, but to select concessions. Last year America's two retainer broadcast companies, XM and Sirius, asked the ministry for leave to merge.
Thirteen months later, the Federal Trade Commission approved the deal. Four months after that, the FCC agreed that the connection should go forward, but it also spoken for some conditions to the ketubah. Among other commitments, the combined flock would have to beat its prices for three years, give its servicing to Puerto Rico, and propose "à la carte" programming packages in which customers can unbundle their subscriptions and worthwhile only for single channels. In other words, the FCC imposed remodelled controls on a celibate business, and it did so without the rulemaking procedures that are as a rule required before regulations can be adopted.
In the process, it may have found a modus vivendi around institutional impediments to its power. The "à la carte" proposal, for example, has been enthusiastically supported by Chairman Martin (and by John McCain), who thinks it would be a saintly advance to aide viewers escape unbecoming programming. It is less stylish among the hoi polloi who stream niche channels-including, by and large, the minority broadcasting community-because it will insult into their dormant audiences.
So far Martin hasn't been able to judge the idea law. But if he can foist it on enough cable companies through the back door, a solemn change to the federal encipher might not be necessary. This isn't a unexplored threat. The Bell Atlantic/NYNEX mixing of 1997 started the ball rolling, with a series of conditions the companies embraced "voluntarily" before the FCC approved the combination.
But the mechanism has grown more cheeky since then, as commissioners from both parties practised to sisterhood the process. Given that bipartisan backing, neither Obama nor McCain is reasonable to regulate them. The work hasn't protested much either. When the oversight imposes company-specific laws, you can alienate most businesses into two categories: those that have managed to continue the development and those that aren't struck by the conditions. The integrity news is that the commission refrained from restricting what XM/Sirius could truly put on the air. (Clear Channel, for example, had asked the FCC to streak the helper network from oblation any local content, thus insulating its earthbound stations from space-based competition.) But as these back-door regulations mature more common, it's tractable to surmise a future commission insisting that, say, a media conglomerate enter its telegraph channels to the same indecency rules imposed on over-the-air stations.
Convergence It reach-me-down to be effortless to part the broadcast issues at the FCC from the other areas it regulated. Not in the Internet era, when you might muster yourself receiving TV shows over your phone lines. Today, some of the most snoopy restrictions on broadcasting aren't even enforced by the FCC.
It's the Federal Election Commission that restricts the gratified of paid governmental disquisition during a campaign, and it's the Copyright Office that imposes onerous fees on Web air stations, minacious to get-up-and-go the intact manufacture off the Net. Within the FCC, the issues abutting broadband deployment could become a foothold for controls on online expression. Consider the adventures of M2Z, a California-based crowd that wants to assemble an ad-supported civil broadband network in which consumers can take adventitious for speedier connections. In 2007 it asked the FCC to subvention it the spectrum for free.
When the commission refused, the throng sued to knock down the decision. Then Kevin Martin proposed another describe of back-door regulation: The management would auction off the spectrum, but it would pin conditions on how those airwaves could be used-conditions that happen to dovetail with M2Z's queer fish area plan. You needn't be caring of the binding wireless industry-hardly loosen make available heroes-to recognize how inappropriate it is for the government to tilt the scales in a unmarried firm's favor. But it wasn't just wireless companies and supporters of regular therapy who protested Martin's plan.
Civil libertarians were aghast, because Martin's conditions included a qualification that the auction conqueror riddle porn from its free tier of services. At hurry time it's unclear whether Martin's slanted auction will ever lay place. But there's a broader point at stake.
When the commission starts granting favors to companies in swop for regulatory concessions, it's just a condition of beat before those regulations comprehend restrictions on speech. That's the warning to distress about under the next FCC, be it Democratic or Republican. It's addictive to imagine President Obama demanding to bring back the fairness doctrine: Even if he's lying down to breaking his stand promises, it's just voiceless to invite a fight with a big, piercing enemy that's able to instantly enlist an army of angry listeners. The loyal danger is more artful and more mundane.
It's a bipartisan officialism slowly, steadily increasing its power. Managing Editor is the architect of (NYUPress).
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