Why the Fairness Doctrine is totally totally totally unnecessary

Ian Gallagher responded in the comments:

It’s confusing to me when I hear people call for government to stay out of the broadcasting business. Broadcasting as we know it would not exist were it not for government involvement in assigning exclusive use of portions of the public airwaves and enforcing those rights against any encroachers. By contrast, newspapers don’t rely on the exclusive use of public property to provide service. If the government owned all of the printing presses in the country and gave them out on an exclusive basis to certain selected citizens, the analogy to broadcasting would be more accurate.

This government-created system permits the government to impose fiduciary duties on broadcasters that it could not impose on newspapers under the First Amendment.

. A license permits broadcasting, but the licensee has no constitutional right to be the one who holds the license or to monopolize a radio frequency to the exclusion of his fellow citizens. There is nothing in the First Amendment which prevents the Government from requiring a licensee to share his frequency with others of his community and present those views which would otherwise, by necessity, be barred from the airwaves

No one has a First Amendment right to monopolize a broadcast frequency. Unlike newspaper owners, every broadcaster knows going in that his ability to pursue his private interests are constrained by the obligation to serve the public

And we should not be deterred in this critical task by those who would use specious constitutional arguments

Dear Ian,

If you look into the industry literature, you will discover that wireless, coaxial cable, and optical fiber offer limitless bandwidth for digital signals. The ability of equipment to encode and compress information in ever smaller slices is the limiting factor. How will the inviolable wireless frequencies be determined? Shall we use the frequency bands that were necessary for 1930's radio and television technology or those that are necessary now, or those that will become possible in the future? I don't know whether you are from the US or England or Titan, where I live. When I talk specifics, I will talk about one of these places, and not about the others.

If I were to summarize your argument, it would be: Since the government has allocated frequencies and assigned them at some time in the distant past for far less money than they are worth now, and as the government allows the legal system to have jurisdiction over the property rights, so the government can impose fiduciary and ideological duties on broadcasters even though these duties fly in the face of the First Amendment. You did not mention an ideological duty, but that is plainly the purpose of the Fairness doctrine you favor. The Fairness Doctrine does not require some fiduciary duty to keep a certain level of profit or employment or even to maximize payments to the government, but it does require that any message that a government bureaucrat thinks is ideologically loaded be balanced by some other message with a different ideological content.

Let us posit a fairness doctrine that balances messages ideologically with other messages, using some balancing scheme determined by the bureaucracy. Conservative messages need to be balanced with polygamous transgendered messages. Liberal messages need to be balanced with Communist messages. Spanish messages need to be balanced with Polish messages. Muslim messages need to be balanced with messages from the Voluntary Human Extinction movement. This is balance when fallible people define it. In the end, the meaning of balance depends on the whim of the government bureaucracy that enforces it.

This is only the beginning of the problem.

In your argument you have touched on an important question. Is a licensed radio frequency (a) property belonging to its owner, or is it (b) a government granted monopoly that can be withdrawn at any time for any politically desirable reason, or is it (c) a government monopoly that is run by the government at the whim of the bureaucrats in charge of the monopoly? Under a fairness doctrine, someone has to decide what is fair. That person will inevitably be a government bureaucrat. Thus control of the licensed frequency is actually at the whim of the government bureaucrat. Regardless of who is responsible for paying the bills, and who gets the profits if there are any, the one in control of the frequency is the government bureaucrat. And that bureaucrat can make the business that owns the frequency fail, or he can make it succeed. The owner of the frequency has two choices if he wants to have popular programming, lots of advertising, and a profitable business. He can ban political content from his station and offer the most vapid content possible, or he can undermine the regulatory regime with payments to the government watchdog to treat his business favorably. Instituting a fairness doctrine will produce a defacto government controlled monopoly, vapid content, and corruption of the government bureaucracy. This is the inevitable result of the Fairness Doctrine.

That is the overriding problem with the Fairness Doctrine. It brings the country that embraces it closer to government enforcement of ideological purity, much as in Nazi Germany, North Korea, China, Saudi Arabia, and Cuba. The Fairness Doctrine leads to Fascism.

The other question that must be answered is this. Are the television and radio channels few enough in number that they should be treated as a scarce resource and thus have access controlled to some degree by government fiat?

Look at the pretty-good Wikipedia entry for VHF broadcasting. You can see for yourself how inefficiently the bandwidth ranges are allocated for VHF. UHF is channelized more efficiently, but the analog UHF technology is very vulnerable to interference. This is why the US is going to digital television and selling off the upper parts of the UHF television spectrum for private licenses. The US will end up with 50 to 80 broadcast digital television stations available in each market.

There are an enormous number of unused radio channels in both the AM and FM radio bands in the US. Currently, the VHF bandwidth range allows for 205 distinct FM radio channels right above TV channel 6. And AM radio can support 119 distinct AM radio channels if you include the extended AM band. Do you have this many radio stations in your locality? I didn't think so. Are high number of unused frequencies the sign of a scarce resource?

Now if you open things up to wired technology we already have far more than 100 television stations available in any locale. I have about 500 TV stations on my digital cable system (if I should want to pay for them all) and 100 music stations. The Internet (and thousands of streaming radio stations) comes in on the same media, and so does my telephone service.

Now is this richness of media a result of government granted monopolies, fairness codes, central planning, and fascism, or a result of the marketplace encouraging innovation?

How many choices is enough so that there are a sufficient number of different opinions being broadcast, so that the government does not need to stick its nose into every single program in order to determine whether the content meets some bureaucrat's idea of fairness? How many media channels are enough so that they can be treated as real property with property rights accruing to the owner, instead of being government-granted monopolies with the problems that go hand in hand with government-granted monopoly power: graft and corruption; high prices; propaganda; red tape; bad customer service; and fascism?

If you were around during the latter days of the Fairness Doctrine you will remember two things about radio. First, FM radio was all music because it supported stereo signals. Second, AM radio was dead, the home of all-weather-and-traffic stations, sports stations, and the golden moldies. Public Radio had no news. It was strictly classical music.

In 1987 there were fifty or a hundred media sources available in every market, many unused frequencies available in all markets other than New York and Los Angeles, and thus the frequencies could not justifiably be regulated like scarce resources. After the Fairness Doctrine was repealed that year, NPR spread to every public radio station in the country, taking with it far left programming from the BBC, CBC, and such loony-left classic programs as All Things Considered and Fresh Air. Shock jocks and Morning Zoos took over the FM band. Conservative talk radio took over the AM band, and spread over the country.

The talented talk radio people on the left side of the aisle went to public radio, and are now found on NPR, which reaches every town in the country that has any radio signal at all, even in towns that don't get any conservative talk radio. The talented talk radio people on the right side of the aisle went into talk radio, learned how to entertain and educate their audiences, and now are a force to be reckoned with. But so is NPR!

When it comes to television, the big three networks are stuck in the mentality of the Fairness Doctrine days. They don't want to air conservative messages, because they fear they will be required to air opposing messages. But leftist messages get free play because the on-air and production talent are so far left they cannot imagine that anyone would find anything to disagree with in a leftist message. Fox News exploited the huge opening for news that wasn't slanted so far left. That's why Fox News is the most popular news station on Cable. Add the Military Channel and a few other manly channels to LOGO and Lifetime and Nick, BET, MTV, EWTN and HGTV and Telemundo and you can tell that there is now some balance in television, because of 24-hour cable television. That is how competition produces balance, through abundance and the marketplace of ideas. Not through scarcity and rationing.

Best of all, Fascism is not required!


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