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1Since the election of Barack Obama to the presidency, some Democratic members of Congress have ramped up the rhetoric on reinstitution of the Fairness Doctrine. The FairnessDoctrine was a Federal Communications Commission (FCC) regulation in place from 1949 to198

7 that ―

required broadcasters to identify issues of public importance, decide to cover thoseissues, and then to afford the best representatives of the opposing views on the issue theopportunity to present their case to the community.

‖

Ironically, they say that a fairness standardis needed to counter the influence of conservative talk radio on the American people and to bring

―

accountability and standards

‖

to the airwaves. Yet despite conservative talk radio dominance,Democrats swept the 2008 elections and now hold the presidency and a majority in both housesof Congress. But is the return of the Fairness Doctrine even a remote possibility?At least one liberal blogger has insisted that conservatives need not worry aboutreinstitution of th

e Fairness Doctrine because ―[t]

here's no bill to reinstate it in Congress, nopublic interest advocates are campaigning for it, and the netroots aren't interested

.‖

Besides, hewrites, the senators talking about it are not likely to bring a bill from their posts on theagriculture and banking committees.

However, Senator John Kerry of Massachusetts has beenpicked to chair the new Communications and Technology Subcommittee under the SenateCommerce Committee, and he is on record in favor some reincarnation of the Fairness Doctrine.

Adding to the apprehension, President Obama says that he opposes bringing back the

Kathleen Anne Ruane,

Fairness Doctrine: History and Constitutional Issues

, 1, Congressional Research Service(2009).

Michael Calderone,

Sen. St

abenow Wants Hearings on Radio “Accountability”; Talks Fairness D

octrine

OLITICO

COM

, Feb. 5, 2009 (quoting Senator Debbie Stabenow, a senator from Michigan, whose husband, TomAthans is a liberal talk radio executive).

Craig Aaron,

The Fairness Doctrine: Just Say No

, H

UFFINGTON

OST

COM

, Feb. 13, 2009.

John Eggerton,

Kerry Named To Head New Communications & Tech Subcommittee

, B

ROADCASTING

ABLE

,Feb. 12, 2009, http://www.broadcastingcable.com/article/174073-Kerry_Named_To_Head_New_Communications_Tech_Subcommittee.php

. Kerry has called the demise of the Fairness Doctrine ―one of

the ‗

most profound changes

in the balance of the media,‘

in a 2007 radio interview, adding that c

onservatives have been able to ‗

squeeze downand squeeze out opinion of opposing views. I think it has been a very important transition in the imbalance of our

public dialog.‘‖

2Fairness Doctrine, but that

he does support ―

media-ownership caps, network neutrality, publicbroadcasting, as well as increasing minority own

ership of broadcasting and print outlets.‖

Accordingly, a fear of some new fairness standard is not at all unfounded.But why do conservatives oppose it? After all, Americans value diversity of thought andthe principle that everyone is entitled to his or her opinion. Why should there not be a standard inplace to ensure a level playing field in the marketplace of ideas? Times have changed, say the

doctrine‘s opponents

, and we should let the market decide, and protect the free speech rights of the radio hosts and radio station owners.Among the most outspoken of the opponents are the conservative talk radio hoststhemselves, most notably Rush Limbaugh.

Limbaugh‘s long career in syndication began in 1988,

the year after the Fairness Doctrine was abolished.

Limbaugh argues that the Fairness Doctrinewould only cause station managers to dump any political debate

programming in response to ―

abunch of liberals demanding that they get some time on the radio to respond to whatever . . .conservative hosts are saying

.‖

Limbaugh says that ―

management just wouldn't put up with [it].

. . . they [would] just shut it down.‖

Such a limitation, says Limbaugh, is a violation of his and

station management‘s First Amendment right of free speech.

Also weighing in

conservatives‘ favor is that with the technological advances of the late

twentieth century, i.e., the Internet and satellite TV and radio, the wide availability of opposing

John Eggerton,

Obama Does Not Support Return of Fairness Doctrine

, Broadcasting & Cable, June 25, 2008,http://www.broadcastingcable.com/article/114322-Obama_Does_Not_Support_Return_of_Fairness_Doctrine.php

Anthony L. Green,

Limbaugh, Rush

, E

NCYCLOPÆDIA

RITANNICA

(2009), Encyclopædia Britannica Online, Feb.16 2009

. Pundits still debate whether the proliferation of conservative talk radio was due to the Fairness Doctrine‘s

repeal, but there exists at least a correlation.

Rush Limbaugh,

The Fairness Doctrine Will Just Be the Tip of the Iceberg

, ¶ 2, The Rush Limbaugh Show, June25, 2008, http://www.rushlimbaugh.com/home/daily/site_062508/content/01125112.member.html.

Rush Limbaugh,

The Show US Presidents--Then and Now--Don't Want You to Hear

, ¶ 3, The Rush LimbaughShow, Feb. 13, 2009, http://www.rushlimbaugh.com/home/daily/site_021309/content/01125109.member.html

(―

Hasthis nerd never heard of the First Amendment? . . . Enforced media accountability is not permitted by the USConstitution.

‖).

3viewpoints through various and extensive media renders the Fairness Doctrine unnecessary. Thiswas the argument adopted by the FCC in 1987 when it abolished the Fairness Doctrine. The FCC

―

reasoned that increased competition in the marketplace, First Amendment concerns, andevidence that the Fairness Doctrine actually chilled speech rather than facilitating it justifiedabandoning the policy.

‖

The argument holds true today. Renewal of the Fairness Doctrine orimplementation of its effectual equivalent in the new technological age is an unnecessary andunconstitutional burden on purveyors of conservative political speech. Its reinstitution would bea shameful abandonment of free market and free speech principles.The first section of this paper examines the history of the Fairness Doctrine, followed bya discussion of the recent calls for its revival. The next section summarizes

today‘s talk radio

market

—

largely dominated by conservative commentators, with a sprinkling of liberals. Finally,constitutional concerns with the Fairness doctrine are discussed in light of twenty-first centurytechnology and media realities. This paper covers the Fairness Doctrine only as it relates to talk radio, and not as it relates to any other medium. It touches on questions concerning mediaownership, but only as much as its regulation amounts to a back-door Fairness Doctrine.

Fairness Doctrine Past and Present

Former Life

In the 1930‘s radio was the only broadcast medium, and the scarcity of airwaves caused

Congress to set up a licensing scheme for those wishing to broadcast over them, so as to avoidinterference from broadcasters competing for the same frequency.

The Communications Act of 1934 required that the FCC grant broadcast licenses

only ―

if public convenience, interest, or

Ruane,

supra

note 1, at 1.

of 00

Power Grab

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