Static - and unfairness - at the FCC

A LITTLE-noticed dispute now taking place in Congress will determine much of the future for broadcasting in the United States. The dispute concerns the Federal Communications Commission's former ``fairness doctrine,'' but its impact ranges far beyond that specific policy. The FCC abolished the fairness doctrine Aug. 4. Congress promptly passed a bill, by large margins in both Houses, overturning the commission's decision. President Reagan vetoed the bill, however, and an override was not attempted. Congressional supporters of the doctrine had a different plan. They would attach the doctrine to some piece of ``veto proof'' legislation which the President would have no choice but to sign. Until a few weeks ago, the precise details of the plan were a closely guarded secret. Then several plans emerged. The most important, by Rep. John Dingell, would attach the doctrine to one of the continuing funding resolutions pending in the House.

The outcome of this legislative activity will profoundly affect the future of broadcasting. In abolishing the fairness doctrine, the FCC held that the doctrine violated the First Amendment. This rationale calls into question virtually every form of broadcast regulation that concerns programming. Such regulation now includes, for example, broadcasters' obligations to carry programming responsive to their communities' needs, to avoid exploitative children's programming, and to provide reasonable access for advertising by federal candidates.

Such forms of program regulation have been upheld by the courts against previous First Amendment challenges. The courts have consistently used the same rationale, one last used by the Supreme Court when it upheld the fairness doctrine in a 1969 case, Red Lion v. FCC. By attacking Red Lion and its underlying rationale, the commission has in effect challenged the constitutionality of all program regulation.

The courts give great deference to the FCC's opinions, so it is possible that they will now abandon their support of program regulation. On the other hand, the courts give even greater deference to Congress. Legislation adopting the fairness doctrine will almost certainly reinforce the courts' traditional approach.

Failure by Congress to enact legislation is likely to have another very different, but equally profound, effect on broadcasting. To understand why, it is necessary to go back to the origins of the Communications Act.

Before 1927, anyone who wanted a broadcast license needed only to apply for one. By the mid-'20s, however, this policy had created so many stations that interference in the broadcast spectrum made reliable reception difficult or impossible. In 1927, Congress passed the Radio Act, predecessor of today's Communications Act. The Radio Act severely restricted the number of stations to be licensed, but it also contained a quid pro quo. Those stations that received the privilege were now required to broadcast in a way that serves the public interest.

From the beginning, the FCC held that a broadcast station serves the public interest through its programming. A station's public-interest responsibilities included, the FCC held, duties to cover controversial issues of public importance and to cover all significant points of view concerning those issues. These two duties ultimately became the fairness doctrine.

If the public-interest standard and its subordinate fairness doctrine are now abandoned, the quid pro quo in the Communications Act will no longer exist. Broadcasters will receive an exclusive public franchise, but they will have no public obligation in return. Nature abhors a vacuum, and Congress is a natural animal. Although Congress has rejected substantial spectrum fees in the past - in effect, broadcast rental fees - the vacuum may make such fees inevitable.

In light of the profound effect this legislative activity will have, it is important to examine whether the FCC's rationale for abolishing the fairness doctrine is valid. The commission held that the doctrine violates the First Amendment even though the Supreme Court unanimously held to the contrary in Red Lion.

The commission attempts, of course, to distinguish Red Lion, but are its reasons sufficiently sound to justify the course into which it has pitched the American public and the broadcast industry?

The commission says there are many more stations now than in 1969. This is true, but irrelevant. Red Lion was based not on the number of stations then in existence, but on the practical necessity to exclude speakers from the broadcast spectrum. The court recognized that additional stations may appear. It held, however, that the additional stations may not be enough to accommodate everyone who seeks to broadcast. The court's reasoning has even more force today. Precisely because of the increase in stations, there is today very little spectrum left to accommodate new stations.

Nor has the rising number of broadcast stations produced a rising number of broadcast voices, as the commission seems to suggest. Concentration of control has grown at just about the same pace as the increase in stations.

Now demand greatly exceeds supply. New radio channels draw 20 to 40 applicants. Prices for existing stations in the United States have soared far above the rate of inflation.

The fairness doctrine ensures that although the public may be denied access to broadcast stations, it will not be denied access to a diversity of viewpoints. This purpose is consistent with the First Amendment, as the court held in Red Lion. If Congress fails to reinstate the doctrine, broadcasting will be fundamentally altered for an invalid reason.

Michael J. Hirrel is of counsel to the law firm of Davis, Graham & Stubbs and has practiced communications law for 10 years.