This article is an abridged version of a forthcoming essay to be published by the Cornerstone Project, The Media Institute’s public awareness and education program celebrating the First Amendment. SPJ is a member of the Cornerstone Project Advisory Council. For more information about the Cornerstone Project, visit the Web site at www.mediainstitute.org/cornerstone
Over the course of the past four decades, I have witnessed the unfolding of FCC regulatory policy from a number of different perspectives (as general counsel, commissioner, chairman and, more recently, in the private practice of law). During this long period of time, I have seen numerous instances in which FCC commissioners acted to regulate broadcast “speech” with the very best and loftiest of intentions.
All too often, however, their efforts came to naught when – in the light of actual experience – it became clear that these actions brought about unexpected negative consequences that were seriously detrimental to the interests of the listening and viewing public. Several examples are worth noting.
Prior to its repeal in 1987, the Commission’s so-called “fairness doctrine” mandated that broadcast coverage of controversial issues be “fair” by affording “reasonable opportunity for the presentation of contrasting viewpoints.”
After several decades of experience, however, the Commission concluded that the results were very much the opposite. The fairness doctrine established “substantial disincentives” that caused broadcasters to cut back their coverage of controversial issues of importance, thereby reducing the diversity of viewpoints reaching the public. In addition, the Commission found that the very existence of the doctrine created a danger of politically motivated intimidation of broadcasters by government officials.
For almost a quarter-century, the FCC’s so-called financial interest and syndication (fin/syn) rule severely restricted network ownership interests and syndication rights in TV programs. A companion regulation, known as the Prime Time Access Rule (PTAR), generally precluded the airing of network programming from 7 p.m. to 8 p.m. The commission hoped that these rules would strengthen independent producers and reduce “network dominance.”
Over time, however, it became apparent that the fin/syn rule actually hampered the entry of new production firms. The courts ultimately forced the FCC to abandon the rule. Then the agency repealed the PTAR – after finding, among other things, that local stations had filled that hour with cheaply produced game shows.
The FCC has long maintained an array of regulations that limit the number of media outlets that can be owned by a single entity. The agency hoped that an increase in the number of owners would likely bring about a corresponding increase in the diversity of editorial views presented over the media.
But regulatory limits on media combinations are not merely ineffectual in achieving their stated aims; they have a substantial tendency to undermine the efficiency and viability of regulated media outlets. For example, by generally limiting television broadcasters to one channel per market, the rules have the effect of limiting the efficiency and competitiveness of free over-the-air broadcasting vis-‡-vis cable, DBS, and other multichannel video distribution services.
Other examples of failed regulatory schemes could be cited, such as rules that once governed radio formats, candidate debates, personal attacks and political editorializing. What should the FCC have learned from all of this? It seems to me that there are at least two important lessons:
(1) In virtually every case, FCC regulation of electronic media “speech” has resulted in substantial unforeseen negative consequences; and
(2) Even when these results became apparent to virtually all disinterested observers, the agency has historically been very slow in bringing about appropriate regulatory reforms.
A Way Out
In an ideal world, an application of conventional First Amendment principles would provide an analytic framework that would facilitate regulatory reform. Unfortunately, this isn’t an ideal world. In the 1969 Red Lion decision, the Supreme Court determined that broadcasters are not entitled to full First Amendment protection comparable to that enjoyed by the print media.
However, a promising development surfaced this year when the U.S. Court of Appeals for the District of Columbia Circuit released its opinion in Fox Television Stations Inc. v. FCC. The court explained that the FCC’s “content-based” regulations must be subjected to heightened First Amendment scrutiny – they can be upheld only if they are “narrowly tailored to further a substantial governmental interest.” The D.C. Circuit also held that the 1996 Telecom Act “carries with it a presumption in favor of repealing or modifying the ownership rules.”
Regardless of the final resolution of this particular issue, it appears that the D.C. Circuit has provided a road map that will be instructive in showing a way out of this long-standing regulatory quagmire. Indeed, the cause of freedom of expression is likely to be substantially strengthened through the combination of heightened First Amendment scrutiny for the FCC’s content-based rules and the statutory “presumption” favoring repeal of the media ownership rules.
Richard E. Wiley is a senior partner at Wiley Rein & Fielding, one of the largest communications law practices in the United States. He is a former chairman, commissioner and general counsel of the Federal Communications Commission.