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The Obama Administration 'Change' Effect on FCC Regulations
November 14, 2008
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The first question to jump into the mind of a broadcaster after the victory and the concession speeches was, "What does this mean for broadcaster regulation?" You could see from the anonymous quotations in all of the trade press that no reasonably prudent communications lawyer would go on the record with their prognostications. However, a number of indicators convince pretty much everyone that there will be a heightened climate of regulation.
It really didn't matter who won the White House. Senator McCain was not considered a friend to broadcasters, and a tougher regulatory climate would have been expected from his administration, too. The Obama Administration would likely herald heightened regulation, as well as stricter enforcement of the regulations already on the books.
One of the first concerns that reverberated from the press following a Democratic victory was whether there would be a return to the Fairness Doctrine. The biggest winners in Talk radio have come from the far right, and they are a loud voice. The left has had little success in generating a commercial audience. So, naturally, with a Democratic President and a Democratic majority in to both Houses, it's natural to wonder if a return to the Fairness Doctrine is around the corner.
President-elect Obama's views on the Fairness Doctrine are unknown, although his campaign staff has told media that he does not support re-imposing it. Moreover, neither of his former FCC Chairmen advisors, Reed Hunt and Bill Kennard, attempted to revive the doctrine during their stewardships of the Commission. The only real voice coming from the Hill advocating for the doctrine seems to be from Sen. Charles Schumer (D-NY), who has been quoted as believing that the government has a role in ensuring fairness in the media, even though his comments were in the context of indecency regulation. As the chair of the Democratic Senatorial Campaign Committee, Schumer does swing some weight. Speaker Nancy Pelosi has not committed, but has not removed it from a list of possibilities.
Others, such as Chris Van Hollen and Ben Cardin, both rising Democratic stars, told CNS that even if they wanted it, new technology may have overtaken the Fairness Doctrine and that constitutional issues remain. So, at the end of the day, it's still a long shot that any serious effort to bring it back would succeed.
Does that mean that broadcasters can expect a free ride on regulation? After all, we're not the banking industry! The answer ... NO! There is still plenty of regulation on the books that require respect from broadcasters and much of that will see renewed attention from an Obama-appointed Democratic FCC majority.
For example, the FCC's program of EEO regulation has received little attention from the Commission since adoption of the current rules in 2001. Despite promises of strong enforcement, the minority community has complained bitterly that the FCC has done little of the strong oversight and enforcement that it warned the industry to be ready for when the rules were implemented. Aside from a few cases and periodic audit letters, there has been little enforcement. Smart broadcasters will tune up their recruitment efforts now, and take advantage of the services available to assist in recruitment and self-assessment, such as EEO1Source and Broadcast Compliance Service.
Any attempt to increase localism through rulemaking will likely meet the same defeat as Chairman Martin's attempt, but we may see more serious attention paid to the contents of the public file, particularly the issues and programs statements. It is here that the remains of the old Fairness Doctrine may see new life.
Few broadcasters actually realize that ALL of the Fairness Doctrine was not abandoned in 1987 as unconstitutional. The doctrine has always had two parts. The first part was an obligation to address controversial issues of public importance. It was only the second part of the doctrine that was discarded; the obligation to present opposing points of view. The first part was channeled into the issues and programs list, but there has been scant review of those lists and with few exceptions, the Commission has repeatedly rejected challenges to the nature of the issues or the adequacy of the programs. This is an area where objective standards could be fashioned to escape First Amendment objections and increased enforcement attention could be paid to a regulation that is already on the books.
Indeed, the public file has been one area where the commission has actively enforced regulation, even if only at renewal time. Now that the regular renewal cycle has been completed, the staff is dealing with deferred renewals, and there has been a steady stream of fines and sanctions on stations that failed to properly maintain their public file.
Overall, it is still risky business to predict what an Obama majority-led FCC will do, without even knowing who will compose that majority and what effect the advent of new technologies will have over the next few years. However, it is likely that whoever they are, there will be heightened attention to the regulations that are already on the books. While the Commission has always strictly enforced its technical regulation, we can now expect a return to stronger enforcement of the content and behavioral regulation that has largely been ignored over the last decade.
So what to look for? Who really knows? But here's a good guess:
- No return to the 2nd obligation of the Fairness Doctrine of fairness
- Increased attention to the 1st obligation of the Fairness Doctrine to serious issues and programs
- Serious EEO enforcement
- Get your public file in order and pay attention to the details
Broadcasters would be wise to begin regulatory review and audits of their own to shape up station compliance and be ready for things to come. I would be remiss not to mention that your FCC counsel may be of substantial help in fashioning and implementing such an audit.
This column is provided for general information purposes only and should not be relied upon as legal advice pertaining to any specific factual situation. Legal decisions should be made only after proper consultation with a legal professional of your choosing.
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