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.  Not just in Wilmington, 
North Carolina, but in Hawaii, Nevada and West Virginia, among other places.  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. 
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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 
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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. 
 4
 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 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. 
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 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 
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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 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 
 7
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 opinion;” 
• Placed “government into [the] intrusive and constitutionally unfavored 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, 
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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.  
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Once Doctrine complaints were filed, unelected bureaucrats would be put in the position of 
determining:  (1) what the opposing view, or views, 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-credible 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 
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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 
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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. 
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 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. 
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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 
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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 
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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? 
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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 Sippel, 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, Sippel 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 
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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. 
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