**Remarks of Commissioner Robert M. McDowell**

**Media Institute**

**Wednesday, January 28, 2009**

**The Four Seasons Hotel**

**Washington, D.C.**

**As prepared for delivery**

Thank you, Patrick, for your kind introduction. I am honored to be your
featured speaker this afternoon.

Before I get to the main topic, I'd like to discuss briefly the more
urgent issue of the digital television transition. At this hour, it is
still unclear whether Congress will extend the analog television cut-off
deadline. I understand that whip counts are still being tallied in the
House. As I have been preparing my remarks over the past few days, I
have re-written several different sections on the DTV transition. In
fact, I was just re-writing some of it in the car ride over here. But I
think it is important for all of us to stay focused on February 17
regardless of what Congress does or does not do. Most broadcasters are
prepared to shut off their analog signals on that date, and with good
reason. Not only has the government been working with them for three
years to realize this goal, but broadcasters have invested hundreds of
millions of dollars in new DTV equipment in the past few years. On top
of that, in some cases broadcasters must spend more than \$10,000 per
month in additional electric costs to broadcast in both analog and
digital. I know that they are eager to go all-digital as soon as
possible, and many of them already have -- sometimes on a market-wide or
even statewide basis. In short, if broadcasters are poised to go
all-digital as soon as possible, they should be allowed to do so. At the
same time, we should all be aware that many TV viewers will be left
behind regardless of when the cut-off date is. As I have been saying for
months now, this transition will be messy whenever it happens.

And when it comes to the DTV transition, I want to give a big "shout
out" to my friend and colleague, Acting Chairman Mike Copps who is doing
all that he can, with the energetic support of Commissioner Adelstein
and myself, to minimize the inevitable collateral damage this transition
will cause -- again, regardless of when it happens. I know that the FCC
will work diligently to carry out any new Congressional mandate under
Acting Chairman Copps' leadership. I just hope that if Congress extends
the deadline, that it would also give us the resources we will need to
carry out the new mandate effectively. In the meantime, let's all stay
on message: if you need a converter box, get it today and hook it up
today and start enjoying the benefits of digital television today.

While DTV is the most immediate media issue facing America, a
longer-simmering debate over the freedom of expression lurks in the
background -- and may soon jump back into the foreground. I hope my
remarks today will help start a rational and thoughtful conversation
about a topic that typically produces much hyper-ventilation among
people of all political and ideological stripes: the possible return of
the so-called "Fairness Doctrine." The mere mention of its name raises
not only blood pressure but also many questions \-- from all quarters:
Is it returning? If so, under what name this time? Would it apply to
more media platforms than before? How would it be enforced in practical
terms? Would it really serve the public interest? Would the courts
strike it down? Inquiring minds want to know -- or at least talk show
hosts want to talk about it.

It's hard to tell if current calls for its return will gain traction or
not. On the one hand, recently several prominent Members of Congress
have called for its restoration. Still others are strongly opposed to
its revival. Frequently when I give interviews about DTV, I am asked
about the Doctrine instead. So perhaps this is the perfect time to
examine why it was created to begin with, historical abuses of it by
both Republicans and Democrats, practical enforcement difficulties, and
the legal difficulties its restoration would create.

Let's start with how and why this rule was ever engendered to begin
with. Jump back in time with me to the era of flappers, speakeasies, the
Red Scare and a new controversial technology: radio. In the 1920s, the
FCC's predecessor -- the Federal Radio Commission -- began to grapple
with the problem of too many people trying to broadcast messages at the
same time and at different power levels in the then-limited space of the
radio dial. This spectral free-for-all caused interference that
effectively undercut the ability of anyone to be heard.

My father would tell stories about growing up on a ranch along the
Tex-Mex border near Del Rio, Texas. Del Rio's twin city across the Rio
Grande in Mexico was Villa Acuna, the home of the infamous Dr. Brinkley
and his one-million watt radio station. Dad said that Dr. Brinkley's
signal was so powerful, it caused the screen doors and bed springs to
act as radio receivers causing them to "talk."

Well, it was similar scenarios that led to the solution of government
licensing of frequencies to specific users. And that quickly led to
questions about what duties licensees owed to the general public. The
idea behind such regulation was that only a finite amount of spectrum
existed and it was a natural resource belonging to the public. Yet a
licensee was allowed to use his or her radio frequency to the exclusion
of others. In short, licensees had the power to air their point-of-view
and no one else's. In fact, back then few stations ever aired regular
"letters to the editor" features, and even fewer were subjected to major
defamation suits. With only the print media as its competitor, and a
mere 623 radio stations on-air by 1935, this new medium seemed to many
to be a powerful political threat. Thus was borne the concept of
"spectrum scarcity" -- the underpinning of the regulation of speech,
including even core First Amendment-protected political speech,
broadcast over the airwaves.

As early as 1929, the old Federal Radio Commission decided that it would
hear complaints from those denied the right to express their views over
a broadcast station. The FRC was concerned that some licensees might be
running "propaganda stations" rather than facilities that provided
"ample play for the free and fair competition of opposing views." Of
course, the "propaganda" of concern back then emanated from budding
socialist and Communist movements in the U.S. And interestingly, to the
FRC, "propaganda" also included quacks like Dr. Brinkley who offered
false cures for cancer.

By 1940, fascism had trumped communism to become the more immediate
threat to western democracies. Controversies around radio editorials for
and against the rise of fascism convinced the FCC to ban broadcast
editorializing altogether. But, after we had defeated fascism during
World War II, in 1949 the agency backed away from that extreme stance.
Instead, the Commission framed what later was dubbed the "Fairness
Doctrine": a two-pronged obligation requiring broadcasters to, first,
air coverage of "controversial issues of public importance" in the
station's community; and, second, afford a reasonable opportunity for
the presentation of contrasting viewpoints on such issues. In short,
government was requiring viewpoint neutrality. While intending to build
a shield against hostile political ideas, the FCC also created a
political weapon.

The Fairness Doctrine, also called the "Censorship Doctrine" and "Forced
Political Speech Doctrine" by some (but which I will try to refer to
only as "the Doctrine," to be fair) has been abused by Democrats and
Republicans alike as a weapon against political dissenters. One of the
best sources of the Doctrine's political history is Fred Friendly's 1976
book *The Good Guys, the Bad Guys and First Amendment: Free Speech vs.
Fairness in Broadcasting*. Friendly, a former CBS News president, and by
then a professor at Columbia University, interviewed several members and
reviewed the papers of the Kennedy, Johnson and Nixon administrations
about White House efforts to use the FCC's power against their perceived
media opponents. Kennedy aides told Friendly that the JFK White House
first explored the potential political uses of the Doctrine in 1963,
when the President's advocacy of a nuclear test ban treaty with the
Soviet Union was under attack by conservative radio commentators. The
aides advised political allies on how to demand reply time on those
stations under the Doctrine.

That success led another Kennedy aide to begin monitoring conservative
radio broadcasts from the basement of his home in Bethesda -- an
operation that moved, with Democratic Party financial support, to a more
professionally run outside entity during the Johnson Administration.
Then that organization helped to direct what became, in the words of a
former Kennedy Administration official, a "massive strategy ... to
challenge and harass right-wing broadcasters and hope that the
challenges would be so costly to them that they would be inhibited, and
decide it was too expensive to continue." The effort included the
establishment of the "National Council for Civic Responsibility," what
Friendly called "a bipartisan front organization" to run print ads
critical of conservative broadcasters and provide training to assist in
the filing of Fairness Doctrine complaints.

The action didn't stop with the establishment of the LBJ-era "National
Council." Once Richard Nixon took office, Republicans reportedly also
were attracted to the promise of the Doctrine -- or the FCC more
generally -- as a political weapon. A 1969 memo from Jeb Magruder to
H.R. Halderman details "approximately 21 requests from the President in
the last 30 days requesting specific action relating to what could be
considered unfair news coverage." Magruder recommended establishing "an
official monitoring system through the FCC.... If the monitoring system
proves our point, we have then legitimate and legal rights to ... make
official complaints from the FCC." Magruder went on to "liken this to
the Kennedy Administration in that they had no qualms about using the
power available to them to achieve their objectives. On the other hand,
we seem to march on tip-toe into the political situation and are
unwilling to use the power at hand to achieve our long-term goals...."
The FCC's 1985 Fairness Doctrine Report, however, notes that there is no
evidence indicating that a Nixon-era Fairness Doctrine "monitoring
program" was ever established -- even though the Nixon Administration
eventually dispensed with the subtleties of "tip-toeing" during its
political pursuits.

Aren't these tales alarming? History proves that abuses of power brought
forth by the Doctrine are not partisan. Both right-leaning and
left-leaning broadcasters have been attacked and intimidated. With that
in mind, if the Doctrine is reimposed in any form, how do we know that
it will not be used to silence political adversaries? Justice William O.
Douglas made that point in the 1973 case of *Columbia Broadcasting
System v. Democratic National Committee*, in his concurrence, where he
said that he would have invalidated the Doctrine outright. He
elaborated, "the regime of ... federal supervision under the Fairness
Doctrine is contrary to our constitutional mandate ... and makes the
broadcast licensee an easy victim of political pressures and reduces him
to a timid or submissive segment of the press whose measure of the
public interest will now be echoes of the dominant political voice that
emerges after every election."

But let's get back to the era of free love, Woodstock and burning draft
cards: the 1960s. While all of these political shenanigans under the
Doctrine were playing out, the courts delicately upheld it. The seminal
case was the Supreme Court's *Red Lion* decision. The facts pitted a
small, politically conservative, religious station against an
investigative reporter who had written a book critical of Barry
Goldwater. Shortly after the 1964 election, the station aired a
syndicated program by Rev. Billy James Hargis attacking the reporter,
Fred J. Cook, as "a professional mudslinger" who was dishonest and
alleged he supported Alger Hiss to boot. Cook and Hargis had a history
of hating each other and openly expressed their mutual disdain. After
the November 1964 broadcast, Cook, the reporter, fired off queries to
more than 200 stations under a corollary of the Fairness Doctrine called
the "personal attack rule," asking whether they aired the Hargis program
and, if so, demanding response time. Radio station WGCB, in Red Lion,
Pennsylvania, refused to cooperate and thus thrust itself into
constitutional history. As a result of WGCB's defiance, Mr. Cook filed a
complaint at the FCC.

Eventually Mr. Cook pressed his case to the Supreme Court and won,
thereby helping to enshrine into law the principle that broadcasting
deserves less First Amendment protection than other media. The Court's
decision was not premised on the power of broadcasting to shape public
opinion but, rather, on the "spectrum scarcity" rationale, which has
become the foundation of much broadcast content regulation beyond the
Doctrine. Nonetheless, the Court went out of its way to emphasize that
its decision was based on the scarcity of broadcast frequencies "in the
present state of commercially acceptable technology as of 1969." The
Court added, "if the experience with the administration of those
doctrines indicates that they have the net effect of reducing rather
than enhancing the volume and quality of coverage, there will be time
enough to reconsider the constitutional implications."

So let's fast-forward to the time of big hair, the Talking Heads and
Ronald Reagan: the 1980s. Accepting the Court's invitation to
"reconsider" the state of the marketplace is exactly what the FCC did
with its 1985 Fairness Doctrine Report. In short, the Commission's study
found that administration of the Doctrine created a danger of
politically motivated intimidation of broadcasters by government
officials. The FCC also concluded that broadcasters would rather shelve
plans to air political opinion -- or even cover some controversial
issues in their news reporting - rather than be subjected to possible
license revocation. In sum, the FCC found that the Doctrine:

-   Lessened the "amount of diverse views;"

-   Inhibited "expression of unorthodox opinions;"

-   Placed "government into \[the\] intrusive and constitutionally
    disfavored role of scrutinizing content;"

-   Imposed "unnecessary economic costs on broadcasters and the
    Commission;" and

-   Was not needed "in light of \[the\] increased number and type of
    information sources."

Anticipating repeal of the Doctrine by the Commission, both houses of
Congress passed the Fairness in Broadcasting Act of 1987, which would
have required not only broadcasters but, for the first time, cable
operators to abide by the Doctrine's political speech regulation. The
bill was met by a swift veto from President Reagan.

Two months later, the FCC repealed the Doctrine. But Congress has tried
several times to revive it. Should it return again, as several current
Members of Congress have called for, I doubt it would wear the same
label. That's just Marketing 101: if your brand is controversial, make a
new brand. The Doctrine could be intertwined into other communications
policy initiatives that are more certain to move through the system,
such as localism, diversity or net neutrality. According to some, the
premise of any of these initiatives is similar to the philosophical
underpinnings of the Doctrine: the government must keep electronic
conduits of information viewpoint neutral. But policy makers must ask:
would such a policy really best serve the public interest? How would the
government implement such policy? What are the practical implications of
enforcement?

History teaches us that the government is a poor arbiter of editorial
decisions, all constitutional implications aside. After the *Red Lion*
case, the courts started to recognize that practical application of the
Doctrine was problematic, at best. For instance, the D.C. Circuit shot
down the FCC's 1973 attempt to use the Doctrine to second guess NBC's
editorial decisions when producing an expose of pension mismanagement.
The court concluded, "\[i\]n general, ... the evils of communications
controlled by a nerve center of Government loom larger than the evils of
editorial abuse by multiple licensees who are not only governed by the
standards of their profession but aware that their interest lies in
\[the\] long-term confidence" of their audiences.

If the Doctrine were to return in some form or another, does anyone
think that the Commission is any better equipped today than it was in
1973 to untangle the knotty problems of enforcement by assuming the role
of editor-at-large for the entire country? The *Pensions* case
illustrates that Doctrine disputes were centered *not* on inaccuracies
or defamation but, rather, on tone, balance and other aspects of the
editorial process. Even if the FCC had a large number of people to
devote to such reviews, which it doesn't, and even if the prospect of
government regulators scrutinizing individual editorial choices were not
so constitutionally unsavory, which it is, in practical terms
enforcement of the Doctrine presents intellectually thorny challenges.
Once Doctrine complaints were filed, unelected bureaucrats would be put
in the position of determining: (1) what the opposing view, or
view[s]{.underline}, might be; (2) which of several potential speakers
should get a chance to voice them; and (3) when and how such opposing
views should be presented.

In the real world, then, should a challenged station be obligated only
to carry *some* opposing views -- meaning that the broadcaster has
discretion to choose? Or should the station be required to air the most
opposed views -- meaning the broadcaster would have to take the
hard-core advocate but not the proponent of some compromise alternative?
Or should the station be made to air the most popular rival views? All
rival views? All the seemingly-credibl*e* rival views? How should the
Commission decide this?

If the station has discretion about which views to choose, what if the
broadcaster deliberately chooses the most extreme speakers who are just
inarticulate or foolish -- to present the contrary views? Would this be
"unfair" because it might undermine the persuasiveness of the opposing
position? Would the KKK have to be given time to respond to the views of
the racially tolerant? Would jihadists have to be given time to respond
to critical statements made against al Qaeda?

And how much time must the station devote to presenting contrary views?
As much time as was given to the original views, or less time? Or maybe
more? And must the opposing views be presented in the same program
series, or would the same daypart be good enough? How about airing
opposing views at 3 a.m.? These are questions that cannot be answered in
anyone's law review article, committee hearing, reply comments or
appellate brief. It would be more constructive if such discourse were
left to America's free market of ideas, and the decision of whether to
respond left to individuals, not to the state. And I think the courts
would ultimately agree in this New Media Age.

In the meantime, let's rewind the tape for a minute to the *Red Lion*
case. There, the Court explicitly recognized that the spectrum scarcity
rationale depended on "the present state of commercially acceptable
technology as of 1969" -- and, therefore, could be rendered invalid by
technological developments. And over the last 30 years, an impressive
array of "new" media that would have been considered outrageous science
fiction in 1969 has become an established fact in modern American life:
cable and satellite television (with its hundreds of channels);
satellite radio (with its hundreds of channels); and, of course, the
Internet (with its millions of low-cost or free outlets for speech). Add
on top of that a plethora of new delivery platforms, such as over 271
million wireless handsets through which Americans can - and are -
accessing more and more audio and video content. After just a short
while, it becomes obvious that we are awash in not only more sources of
information, but more conduits to deliver that data than ever before.

But those numbers don't even begin to capture the explosion of new
competition *within* traditional media itself since the *Red Lion*
decision. The number of full-power broadcast stations has more than
doubled since 1969 -- growing from 6,197 radio stations and 851 TV
stations back then, to 14,124 radio and 1,758 TV stations in 2008. These
stations also now have access to "multicasting" technology, which allows
each TV and radio station to broadcast multiple programming channels at
the same time. And let's not overlook low-power broadcast stations.
Since 1969, we should add another 851 LPFM radio, 550 Class A TV and
2,272 LPTV stations. That takes total broadcast facility numbers up to
19,555, nearly a three-fold increase since 1969. And it's a more than
30-fold increase over the 623 radio stations on the air in 1935, when
the Doctrine was emerging. Furthermore, if one takes into account the
fact that our spectral efficiency doubles every two and a half years and
that, as a result, we are one trillion times more spectrally efficient
than when radio was first invented, it becomes obvious that the concept
of "spectrum scarcity" is an anachronism.

The FCC in recent years has recognized that the expansion of media
outlets has eroded the position of traditional broadcasters, and
reviewing courts have agreed. Even as it remanded the Commission's
controversial 2002 media ownership decision back to the agency, the
Third Circuit in the *Prometheus Radio* case agreed that the FCC's
relaxation of the broadcast ownership limits in the light of modern
marketplace realities was reasonable and justified. The court simply
disagreed with how the Commission justified drawing its ownership lines
at that time. Today, a court reviewing a reinstituted Doctrine would
have to recognize today's "present state of commercially acceptable
technology" -- to quote the *Red Lion* Court - in determining whether to
give the government the same deference it enjoyed three decades ago to
restrict broadcaster speech.

Actually, in a string of media cases stretching back over more than 20
years, various judges on the D.C. Circuit -- both Democratic and
Republican appointees -- have suggested that it is time for the Supreme
Court to rethink the concept of spectrum scarcity as a justification for
limiting broadcasters' First Amendment rights. A revived Doctrine would
provide a big, bright bulls-eye for those who wish to make that happen.
That development would have implications far beyond the Doctrine itself.
Much of our content regulation of broadcasters -- including most of the
FCC's existing localism rules and the regulations requiring three hours
a week of children's programming -- rest on the spectrum scarcity
rationale. If that rationale is invalidated, serious legal challenges to
all those other content rules may follow.

The Court in *Red Lion* also suggested another inherent limitation in
its decision. It stated that "if experience with the administration of
\[the Fairness Doctrine\] indicates that \[it has\] the net effect of
reducing rather than enhancing the volume and quality of coverage, there
will be time enough to reconsider the constitutional implications." I'm
willing to bet that the courts will take judicial notice of the fact
that, by any objective measure, America enjoys more news and opinion
today than in 1969. A return to the days of the Doctrine may also be a
return to the days when broadcasters would prefer to air no
controversial content rather than risk losing their licenses.

To proponents of the Doctrine who contend that the Doctrine is needed
because radio has become the sole domain of conservative commentators, I
ask: have you actually listened to the radio recently? Have you
especially listened to FM radio? FM is home to major news, commentary
and talk radio, too, and proponents of the doctrine who are most
concerned about the "fairness" of conservative talk shows should pause
to consider the widespread popularity -- and potential vulnerability --
of public radio programs to Doctrine complaints. National Public Radio,
the largest nationwide distributor of noncommercial radio content,
attracted only about two million listeners in the mid-1980s. Today, NPR
serves 26 million listeners across the nation, making it a vibrant force
in radio news and public affairs. It airs some of the most listened-to
radio news programming -- in the form of the "Morning Edition" and "All
Things Considered" -- and an array of afternoon talk shows, such as
"Talk of the Nation" and "Fresh Air." It should go without saying that
NPR does not hesitate to tackle controversial subjects. In fact, NPR and
many individual public stations either cut back or eliminated classical
music programming in favor of news and public affairs.

Public broadcast stations would be prime targets under a revived
Doctrine. Noncommercial licensees were subject to the rules before, and
they could not constitutionally be carved out of any revival now. Public
broadcasting's content and alleged slant, coupled with taxpayer funding
of the Corporation for Public Broadcasting, have long been a bane of
conservative critics. There is no reason why motivated critics would
ignore the new opportunities provided by a resurrected Doctrine. Such
attacks happened to arguably "mainstream" commercial networks, so why
wouldn't allegedly left-of-center public broadcasters be attacked under
the Doctrine as well?

But a resurrected Doctrine would have to survive more than just the
constitutional arguments previewed in the *Red Lion* case. The history
of political abuses would likely give any appellate court great concern.
Would the current Supreme Court, for instance, wish to "bless" a rule
that has been (and could once again be) used as a tool for government
censorship of core political speech? There is nothing theoretical about
what happened in the past -- and it happened on a bipartisan basis. At
least some of those involved had the grace to be embarrassed about it
afterward. A public relations professional involved the in the "National
Council for Civic Responsibility" effort later told Fred Friendly that
"\[i\]f we did in 1974 what we did in 1964, we'd be answering questions
before a congressional committee." Another involved in the same
operation said, "\[L\]et's face it, we decided to use the Fairness
Doctrine to harass the \[our opponents\]. In light of Watergate, it was
wrong. We felt the ends justified the means. They never do." Regret is
good, but will the regrets of so long ago be remembered should the
Doctrine gain new life?

At the same time, if proponents of a revived Doctrine managed to get
around all of these constitutional hurdles, they would face another
First Amendment obstacle that was not well developed at the time of *Red
Lion*. In the last couple of decades, courts have struck down speech
restraints for being "underinclusive" -- meaning that a restriction
cannot survive if it burdens some speakers but not others who contribute
significantly to the same issue that the restraint is supposed to
address. The lawyers among you may remember that the FCC itself ran
afoul of this line of jurisprudence ten years ago in the *Greater New
Orleans Broadcasting* case. There, the Supreme Court struck down a
federal rule that barred broadcasters from airing ads for casinos --
largely because that ban had been riddled over the years with exceptions
for on-air promotion of other forms of gambling, state lotteries and
charitable bingo games. The Court found that the exceptions were so
broad that the remaining ban could not actually work to tamp down the
public's interest in gambling activities.

It's not hard at all to see how this precedent would apply to a new
Doctrine. If the government's goal in resurrecting such rules is a broad
one -- such as ensuring "fairness" in the presentation of opposing
viewpoints on important issues -- then limiting them to broadcasting
simply will not work. Some supporters of the Doctrine understand this.
Don't forget that the bill President Reagan vetoed in 1987 would have
extended the Doctrine to cable TV, the "new media" of the day. And
recently one Member of Congress has been quoted as saying that a
reconstituted Doctrine would have to apply to cable and satellite media,
as well as broadcasting.

It is not clear how the imposition of the Doctrine on cable and
satellite could survive constitutional attack, given the higher degree
of First Amendment protection afforded to these subscription-based
media. For that matter, could a new Doctrine stop at broadcasting, cable
and satellite and still be effective enough to avoid being struck down
as underinclusive? The underlying infrastructure of the Internet also is
subject to federal regulatory control, as is some of the content carried
on it. Certain legal commentators have suggested that a new corollary of
the Doctrine should be fashioned for the Internet, on the theory that
web surfers should be exposed to topics and views that they have not
chosen for themselves. I am not making this up. These thinkers are
concerned about the fragmented "pull" rather than "push" nature of new
media. Alarmed by the potentially negative effect that self-selected,
and self-satisfying, web grazing may have on the functioning of our
democracy -- or so their thinking goes -- commenters, such as a
prominent Harvard law professor who will be joining the Obama
Administration, has broached the idea of encouraging -- or maybe even
requiring -- that partisan websites provide neutrally presented links to
opposing points of view. UCLA Law Professor Noah Zatz, analogizing to
the First Amendment doctrine of "public forum" law, has gone even
further: He speculates about establishing "sidewalks in cyberspace"
that, triggered by a web surfer's search, could bring up an advocacy
group's website when the surfer meant to tap into something else.

Does this seem far-fetched? Does anyone think that this would not be
intrusive and unconstitutional? At a minimum such pop-ups would be
extremely annoying; but conceptually Professor Zatz's idea is not much
different from some proposals before the Commission right now. Consider
the idea of mandatory "community advisory boards," which is teed up in
our Localism docket. I support the use of such boards as a voluntary
measure by broadcasters who want to use them as a way of staying in
close touch with their communities. It is good business to do so and
broadcasters have every economic incentive to keep their local
communities happy, especially these days. But such advisory boards
should not be required. All Americans should be very troubled by any new
rules that might give community board members a legal right to dictate
broadcast content decisions. Would not such a policy be akin to
reimposition of the Doctrine, albeit under a different name and sales
pitch?

Furthermore, it is important for proponents of the Doctrine's
restoration and expansion to understand that they have opponents from
across the political spectrum, including prominent liberals. In a recent
*Wall Street Journal* op-ed, Jon Sinton, the founding president of the
liberal Air America Radio network, wrote that although he disagrees
strongly with conservative talk radio hosts on just about everything,
when it comes to the Doctrine he wrote, "I couldn't agree with them
more. The Fairness Doctrine is an anachronistic policy that, with the
abundance of choices on radio today, is entirely unnecessary." In
helping to found the left-leaning radio network, Sinton went on to say,
"\[i\]t never occurred to me to argue for reimposing the Fairness
Doctrine. Instead, I sought to capitalize on the other side of a market
already built."

Similarly, Marvin Ammori, a law professor at the University of Nebraska
and counsel to the advocacy group Free Press, recently called the
Fairness Doctrine "a flawed means to attain a noble goal." While
characterizing the current discussion, at least on talk radio, as "a
partisan wedge" designed to "detract from more pressing and timely media
policy issues," Ammori in a recent law review article took pains to
explain that a revived Doctrine could be applied to "Ed Schultz,
Democracy Now, Pacifica, and Air America no less than it would to Rush
Limbaugh, Sean Hannity, and Michael Savage." He also detailed how
difficult the doctrine would be to enforce.

Is there not also a generational divide here? Plenty of empirical data
-- including the Commission's most recent media ownership studies -
reveal that the older you are, the more likely it is that you read a
daily newspaper and/or listen regularly to local broadcast news. Younger
Americans simply do not turn to broadcasting and newspapers for their
news, information and commentary; they look to the web. New market data
emerging every day confirms that the rise of new media has eroded the
mainstream media's old "gatekeeping" and "agenda-setting" power when it
comes to the dissemination of information and ideas. Just look at the
sites in the Net Roots realm like the Daily Kos or, on the other side,
the Drudge Report. But older generation people some of whom are now in
charge of policy-making are still thinking in Old World and Old Media
terms. What they don't understand is that the media market place has
passed them by and the factual basis for a Doctrine restoration does not
exist.

I am hopeful that our new President may understand this new media
paradigm. As I watched his inaugural address last week, I was struck by
the relevance of the debate over the Doctrine to a section of his speech
where he said, "To those who cling to power through corruption and
deceit and the *silencing of dissent*, know that you are on the wrong
side of history ...." (Emphasis added.) I am encouraged that President
Obama can, once and for all, end the speculation of whether something
akin to the Doctrine will come back to life during his term. During the
campaign, a spokesperson for candidate Obama told *Broadcasting & Cable*
that he, "'does not support reimposing the Fairness Doctrine on
broadcasters,' calling the debate over the doctrine 'a distraction from
the conversation we should be having about opening up the airwaves and
modern communications to as many diverse viewpoints as possible.'"
Although that statement is not entirely clear, the new Administration
has a terrific opportunity to enunciate its strong opposition to
anything resembling the Doctrine.

I hope that those who either agree or disagree with my observations will
do so in a thoughtful and rational way. But even if you do not, I will
fight for your First Amendment right to disagree with me unreasonably
without unnecessary interference from the government.

Thank you again for inviting me here today, and I am happy to take a few
questions.