The FCC is up to No Good

Last Thursday, the Wall Street Journal ran an editorial entitled “The FCC Muzzle” which spelled out the shenanigans the FCC intends to pull prior to next year’s presidential elections.  They seek to do an end run around the Citizen’s United decision and accomplish by regulatory fiat what Democrats in congress couldn’t do.  And that is to place requirements that top donors to organizations running ads be identified.  Current law requires only the organizations paying for the commercials to be identified.

In today’s politicized atmosphere, thuggish intimidation of Republican and conservative corporate support by leftists has become endemic.  It has reached absurd levels in Wisconsin where unions have threatened small businesses with boycotts if they don’t display signs supporting them.  The Journal’s editorial starts:

Congress tried and failed last year to limit corporate political speech in the wake of the Supreme Court's Citizens United decision, but the threat hasn't gone away. The new liberal hope is that the Federal Communications Commission will do the deed.

Liberal activists at the Media Access Project filed a petition last week asking the FCC to re-interpret decades of law to require that groups that run political ads disclose the names of their top donors. The 1934 Communications Act already requires any group paying for an ad—whether commercial or political—to disclose its identity as part of the ad. But liberals want President Obama's FCC to stretch this reading to require the on-air disclosure of any donor providing 25% or more of funding.

It continues with what the Journal considers the intent:

The goal here is to use "transparency" to intimidate businesses out of making political donations. Disclosure sounds good, but liberals have begun to wield it as a weapon to vilify business donors. Exhibit A was last year's smearing of Target Corp., after it donated to an independent group that ran ads supporting Minnesota GOP gubernatorial candidate Tom Emmer. MoveOn.org twisted the contribution into a claim that Target was "anti-gay" and organized a boycott of Target stores. The company stopped donations.

When the Citizens United decision was handed down, Senator Schumer went berserk and promised legislation (Disclose Act) to reveal contributors.  It failed.  So now the FCC has been given the task to carry Schumer’s water.

This is not the first time the ruse of “transparency” was attempted to intimidate and pressure political supporters.  It happened before in the Deep South in the 1950s.  There are parallels to what happened then and what is being happening now. Fortunately the Supreme Court then put a halt to it in NAACP v. Alabama which recognized that confidentiality was needed to prevent intimidation.

I used that case to write a Letter to the Editor of the Journal.  It ran Monday (4/4/11):

Sometimes Disclosure Begets Intimidation

The threat of intimidation against contributors that would come from mandatory FCC disclosure rules would have a chilling effect on the political process ("The FCC Muzzle," Review & Outlook, March 31).

Such was the case in the racially charged atmosphere of the mid-1950s, when the state of Alabama refused to allow the NAACP to do business in the state. The central issue was a requirement to force the NAACP to turn over its financial records and a list of its members and agents to the state, which the NAACP refused to do. In a landmark decision, the U.S. Supreme Court ruled (NAACP v. Alabama, 1958) for the NAACP, citing the need for privacy and the ability to freely associate to advance its beliefs and ideals.

Other organizations have modeled themselves after the NAACP to protect their members and contributors, most notably the National Right to Work Committee and its legal arm, the National Right to Work Legal Defense Foundation. This is done to shield its members and contributors from union intimidation.

Crosby Boyd
Sanibel, Fla.

Will this deter the FCC?  Probably not.  Recently they simply ignored the ruling of the 10^th Circuit that Congress had not  granted them authority over the Internet (Comcast v. FCC) and simply went ahead and issued regulations anyway.  Fortunately we have a Supreme Court that recognizes the importance of the First Amendment and its fragility.

The unfairness of Fairness

On Wednesday evening Stanley Kurtz, an investigative reporter for National Review, appeared with host Milt Rosenberg on Chicago’s WGN, for a two hour of talk discussing the Obama/Ayers relationship. The switchboard lit up with hundreds of calls orchestrated by the Obama campaign attempting to shut the interview down. The following is from show producer Zack Christenson:

It’s interesting to see what lengths the Obama campaign is willing to reach to stifle dissenting voices. Kurtz said it best at the end of the show- If a respected conservative who writes for mainstream conservative publications like the Weekly Standard and National Review can’t speak his mind, then what dissenting opinion can be voiced? Did we see a preview of the fairness doctrine tonight?

This is just one more desperate effort to keep any discussion of the Obama/Ayers connection from “getting legs.” Obama supporters have bombarded TV stations carrying American Issues Project commercials with over 90,000 emails and tried to bully their advertisers. They have filed complaints with the FEC seeking to have the commercials banned. They have urged the Justice department to investigate AIP’s officers, directors and contributors. It is a thuggish effort to stifle free speech. But it is just dancing in the daisies compared to what Democrats really want. They want the Fairness Doctrine back. They want Rush off the air. The Fairness Doctrine is doublethink for a system that will eliminate political discourse on radio. That’s what Democrats want.

The Fairness Doctrine began in the late 1940s when radio was king. The rule applied only to radio and not TV. It held that with the scarcity of frequency spectrum, radio stations were obligated present opposing views. It is not the “equal time provision,” and doesn’t require equal time. Equal Time is a different rule affecting election time political attacks on radio and TV, and is no longer in effect.

While its purpose is admirable, Fairness in reality places an inordinate burden on broadcasters, chilling political discourse. You have to understand the mindset of the broadcaster. Protecting the broadcast license is the top, top priority, nothing else even comes second. They live in daily fear of the FCC yanking it. It is their livelihood. In the old days (pre-deregulation) license renewal came up every three years. When that time came, a station would prepare a summary of its public interest programming and community involvement showing they were in compliance with FCC guidelines. From thousands and thousands of pages of records showing religious broadcasting, community access, public affairs and news, they would cull the information into a report showing they had satisfied the public interest programming goals.

But the most important issue to be addressed at license renewal was, and still is, showing that every programming complaint from the public has been noted, addressed and resolved. Currently most, but not all complaints involve sexually explicit content, But that will change under Fairness. Based the recent Obama/Ayers commercial and WGN flap, it is not unreasonable for a station to expect several hundred partisan emails a day complaining about the fairness of Rush or Hannity. No station can respond to that kind of volume to the satisfaction of the FCC. AM stations that have brought us the most vibrant political discourse for the past 21 years, will revert to 50’s rock or go dark as many did in the 1980s under Fairness.

How will Fairness be reimposed? If there is a Democrat president, it most likely will be done under the rulemaking authority of the FCC, though it can be legislated. But that needs a filibuster proof Democrat Senate, a Democrat majority in the House and a Democrat president. Already Democrat FCC commissioners are trying to increase bureaucratic strictures on broadcast stations. They want to reduce the current 8 year license period to the former 3, and add vastly more detailed public interest programming reporting requirements. They just want to bring back the rule of fear the old system brought us. The advantage for having the FCC to do the dirty work of bringing back Fairness, instead of congress, is they can simply reimpose the old rule, avoiding debate on the issue of excluding the TV spectrum. Under no circumstances will Fairness be applied to TV. It will harm Democrats best friends, and bring a firestorm from the National Association of Broadcasters. Radio is only a small part of the broadcast money pie. TV is the pie. But it is this selectivity is that will ultimately kill Fairness in the courts.

It’s difficult to rationalize how the 6 mHz of an HDTV channel is somehow less important than 10 kHz of an AM station 1/600th the size. In fact the entire AM radio spectrum would fit into less than 20% of a single HDTV channel. Fairness was once upheld by the Supreme Court in 1969 (Red Lion), in an era before deregulation and before the internet and other media opened up massive new channels for political discussion. Ultimately any decision will be based on the First Amendment issue of whether the Fairness Doctrine encourages freedom of speech or chills it. The anwer is obvious. Fairness will be deemed unfair