[Congressional Record Volume 155, Number 37 (Tuesday, March 3, 2009)]
[Senate]
[Pages S2680-S2681]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     FAIRNESS DOCTRINE AND LOCALISM

  Mr. INHOFE. Madam President, last week I joined 86 of my colleagues 
to pass Senate amendment No. 573, offered by Senator DeMint to the DC 
Voting Rights Act, which prohibited the Federal Communications 
Commission from reinstating the fairness doctrine.
  This has become an issue over the years where you can recall the 
action that took place back in the middle 1980s--I think 1986--that 
recognized the fact that we have so many opportunities for people to 
get at information that it is no longer necessary to have what they 
call the fairness doctrine.
  Last week's vote was the first nail in the coffin of the fairness 
doctrine, but it was not the end of the attempt on the part of some 
people to regulate the airwaves. I have long been outspoken on this 
issue. It gives me great satisfaction that so many of my colleagues 
voted in favor of free speech over Government regulation last week. But 
the debate has changed. In a straight party-line vote, Democrats chose 
to adopt Senator Durbin's amendment No. 591, which calls on the FCC to 
``encourage and promote diversity in communication media ownership and 
to ensure that broadcast station licenses are used in the public 
interest.''
  Essentially, it makes an end run around the fairness doctrine. Those 
on the other side of the aisle believed this would allow them to 
proclaim their opposition to a reinstatement of the fairness doctrine, 
which has always been a losing issue for them, while at the same time 
replacing it with an equally heinous piece of legislation that gives 
the FCC unfettered authority to interpret that language however they 
please.
  So we have potentially taken away the threat of the fairness 
doctrine, which requires broadcasters to ``present controversial issues 
of public importance in an equitable and balanced manner,'' and 
replaced it with ``encouraging and promoting diversity in communication 
media ownership.'' At least with the fairness doctrine, broadcasters 
had an initial choice of how to interpret ``controversial issues of 
public importance'' before answering to the FCC, but this new authority 
gives all the power to a Government agency and none to the people of 
the broadcast industry.
  One thing I know: When you take choice out of the market, and when 
you impose the Government's will on an industry, that market and that 
industry will suffer, and that is exactly what Senator Durbin's 
legislation attempts to accomplish. What was once the fairness doctrine 
has now become the Durbin doctrine.
  What, I ask, does ``encourage and promote diversity in communication 
media ownership'' really mean? I certainly cannot tell you what it 
means, and that is what concerns me because it is up to someone else's 
interpretation. The legislation offers no words of clarification or 
specificity. If I were an FCC commissioner, I would not know what to do 
with this language, and in any other line of work, I would send it 
directly back with a little note attached asking to please be more 
specific. But Federal agencies love this kind of language because it 
gives them greater leeway to interpret it however they like--which 
could be interpreted differently by different governmental agencies--
and impose their will upon the industry they regulate.
  My Democratic colleagues who promoted this amendment like this type 
of language because it, first, means that they do not have to spend the 
time drafting quality legislation aimed at solving a specific problem, 
and, two, it means they can disavow their true intention of having 
greater Government regulation of the airwaves. Now, at the same time, 
they can say: Well, I voted for the DeMint amendment. So that offered 
cover for these individuals.
  This legislation is so incredibly vague and so potentially far 
reaching that I cannot say with any certainty what the end result will 
be. This is not good governance, and it is not good legislative 
practice to cede such authority to any agency of our Government, 
especially when the right to speak freely over the airwaves will most 
certainly be impacted.
  Another threat to our freedom of speech is a stealth proposal called 
``localism,'' which could force local radio stations to regulate the 
content they broadcast. It is important to note that ``localism'' as 
FCC policy already exists, but new policies that have been proposed 
reach far beyond ensuring that broadcasters serve their local 
communities.
  The FCC gave notice of proposed rulemaking. This was back on January 
24, I believe it was, of 2008. While the regulations were ultimately 
dropped, they are indicative of future attempts to regulate the 
airwaves through localism and something about which all Americans need 
to know.
  Among other things, the proposal would have required radio stations 
to, one, adhere to programming advice from community advisory boards; 
two, report every 3 months on the content

[[Page S2681]]

of their programming, the producers of their programming, and how their 
programming reflects community interests; and, three, meet burdensome 
license renewal requirements.
  The localism rule, had it been promulgated, would have meant that 
radio stations would have to comply with blanket regulations and 
broadcast programming that may not be commercially viable, rather than 
taking into account the diverse needs of communities across the 
country.
  One of my constituents, Dan Lawrie, who is vice president and manager 
of Cox Radio Tulsa, and president of the Oklahoma Association of 
Broadcasters, stated that:

       regulations requiring additional and unnecessary 
     documentation of programming in order to show proof of 
     broadcasting that we already provide to our local communities 
     is entirely unnecessary. To burden our Tulsa radio group with 
     this type of ascertainment documentation would cause us to 
     lay off several staff members to offset the expense of 
     completing the increased paperwork.

  As you can see, this is a real threat to broadcast media as a whole.
  Let's look at this from a market standpoint. I have often said: 
People who think maybe the content is too progressive or not 
progressive enough or too conservative--I have heard some pretty heated 
accusations made at various popular talk radio hosts--forget about the 
fact that this is market oriented. The market is determining how this 
should be. I can remember it was not too long ago--last year--I believe 
Senator Harkin wanted to regulate the type of content that was going 
over the airwaves to our troops who were listening overseas, and we 
were able to stop that because they overwhelmingly wanted, in their 
eyes, conservative content to be broadcast. We won that one. But the 
effort is still out there.
  Look at it from a market standpoint. Stations strive to endear 
themselves to the local community to be successful. It makes 
programming sense to cover local news and events because it increases 
the ratings. Why should Washington regulate what local stations are 
already doing? They are doing this now because people who listen to the 
radio may want to hear some talk show host, but you find right through 
intermingled within these comments, every 15 minutes or so, or every 10 
minutes, they stop and tell what the local weather is, they tell of 
different activities, what is happening in the local community. They 
are doing this already. That is just good business sense, and that is 
why in the highly competitive environment we find our local radio 
stations, they have to do these things. They are already doing it.
  The reason is this: These community advisory boards, or local content 
boards, coupled with the threat of license renewal requirements, are 
just one more way liberals can affect what is broadcast over the 
airwaves. They have created a regulatory avenue by which to accomplish 
their goal of silencing talk radio because they are incapable of 
competing in the broadcast radio market.
  President Obama has expressed support for new localism regulations, 
and it is expected to come up again under his administration. All those 
who value their right to listen to the things that are important to 
them, and important to their community, must be aware of the great 
potential for infringement on free speech that localism will bring.
  What is perhaps most concerning to me is the enforcement procedure 
for breaches of localism and diversity promotion. We simply do not know 
which pathway the FCC will choose when it comes time to enforce these 
nebulous regulations. License revocation is a real threat to the 
willingness of the broadcasters to appeal to their market rather than 
to conform to FCC regulations. Senator Durbin's amendment requires 
affirmative action on the part of the FCC, stating: ``The Commission 
shall take actions to encourage and promote diversity.'' It doesn't 
stipulate what actions or to what degree but instead leaves the 
enforcement mechanism up to the determination of the FCC. I find this 
to be extremely dangerous.
  Any enforcement of Government regulation of the airwaves could have a 
serious detrimental effect, not only on talk radio but also on the 
willingness of Christian broadcasters to air political and perhaps even 
religious messages. It is well known that the only radio station ever 
taken off the airwaves was a Christian radio station, WGCB in Red Lion, 
PA. In that particular instance, the supposed offense was a personal 
attack against the author of a political publication. The ACLU and 
other liberal organizations could attempt to file lawsuits against 
anyone who presents a message that they deem to be counter to Federal 
localism and diversity regulation, and though I believe these lawsuits 
would ultimately fail on first amendment grounds, the chilling effect 
that the mere threat of a lawsuit will have on religious broadcasters 
could be substantial.
  Free speech is fundamental to what it means to be an American, and we 
must protect it. Reimposing any form of a fairness doctrine threatens 
first amendment rights. Some on the left of the political spectrum are 
frustrated that more talk show hosts have conservative political 
leanings than liberal political leanings. In response, I say the 
content is market driven. When the market is on the other side, they 
will do that. The market has worked well throughout the history of this 
country, and people listen to it.
  I think we are also forgetting about the fact that the broadcasting 
industry is very competitive. We have companies that own broadcast 
media. They are not making a lot of money. It is competitive. A lot of 
them go broke every year. What they are trying to do is come up with 
something they know people want and is sellable. They depend on people 
buying advertisement for them to exist. So this is what this is all 
about. I believe there are two attacks out there. I applaud Senator 
DeMint for the language he was able to get in, and I applaud all the 
Republicans and most of the Democrats for voting for it. But to turn 
around and pass something that undoes what he did with that amendment I 
think is something that needs to be looked at.
  So I am concerned. I am concerned that so many of these stations out 
there that are right on the border of surviving in this very difficult 
economy we have are now looking at another threat, another bunch of 
regulations that are there, as well as the fear of the unknown, the 
nebulous language that says what a localism is, what power does the 
local community have. So that is a difficult thing.
  I will only say to those individuals who think the problem of the 
fairness doctrine being reinvoked is not over: It is there, and our 
first amendment rights are threatened at this time.
  I would anxiously pursue any effort we can that is going to preclude 
the fairness doctrine, and I think the first thing we should do would 
be to rename the fairness doctrine because it is certainly not fair and 
not fair to the people in the broadcast industry.

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