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Public Statements

Inhofe Warns ‘Durbin Doctrine' is New ‘Fairness Doctrine'

Press Release

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Date:
Location: Washington, DC

Yesterday evening, U.S. Senator Jim Inhofe (R-Okla.) issued a warning on the Senate Floor about the dangers of Democrats' latest attempt to stifle Free Speech through their efforts to promote diversity in communication media ownership and promote Broadcast Localism. Though the Senate last week passed legislation (S.Amdt.573) that prohibits the Federal Communications Commission (FCC) from reinstituting the fairness doctrine, it also approved an amendment by Senator Dick Durbin (R-Ill.), "encouraging and promoting diversity in communication media ownership," which is really just a new means of censorship on the airways and will give the FCC unfettered authority to interpret the language of the legislation in any way they please. The following are excerpts from Sen. Inhofe's floor speech:

"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 liberals to regulate the airwaves," Senator Inhofe warned. "I have long been outspoken on this issue, and 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 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,' and essentially makes an end-run around the fairness doctrine.

"This legislation is so incredibly vague and so potentially far-reaching that I can't 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.

"Not only do I continue stand firm in my opposition to the fairness doctrine, but I am adamantly opposed to any attempt aimed at regulating the airwaves, such as broadcast localism, more stringent licensing requirements, and vague diversity regulations aimed at an industry whose authorizing authority is the First Amendment to the Constitution. I intend to fight against the regulation of free speech, not just the Fairness Doctrine, but in all its various forms. Let this be a warning, just as the Fairness Doctrine has always been a loser for the left, so too will any infringement upon the free speech of the American people."

Senator Inhofe's Full Remarks as prepared for Delivery:

MR. INHOFE. Mr. President, last week I joined 86 of my colleagues and passed Senate Amendment 573, offered by Senator Jim DeMint to the DC Voting Rights Act, which prohibited the Federal Communications Commission from reinstituting 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 liberals to regulate the airwaves. I have long been outspoken on this issue, and 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 partly-line vote, Democrats chose to adopt Senator Durbin's amendment 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," and essentially makes an end-run around the fairness doctrine. Those on the other side of the aisle believed that 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've 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 that I know, when you take choice out of the market, and when you impose 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" even mean? I certainly can't tell you what it means, and the legislation offers no words of clarification or specificity. If I were an FCC commissioner, I wouldn't know what to do with this language, and in any other line of work I'd 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 and impose their will upon the industry that they regulate. And my democratic colleagues who promoted this amendment like this type of language because it (1) means that they don't have to spend the time drafting quality legislation aimed at solving a specific problem, and (2) means that they can disavow their true intention of having greater government regulation of the airwaves. This legislation is so incredibly vague and so potentially far-reaching that I can't 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 on January 24, 2008. While the regulations were ultimately dropped, they are indicative of future attempts to regulate the airwaves through localism and something that all Americans need to know about. Among other things, the proposal would have required radio stations to: (1) adhere to programming advice from community advisory boards; (2) report every three months on the content of their programming, the producers of their programming, and how their programming reflects community interests, and (3) 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—stations strive to endear themselves to the local community to be successful. It makes programming sense to cover local news and events because that increases ratings. Why should Washington regulate what local stations are doing already? 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 that 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 broadcasters to appeal to their market rather than 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, and 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, Pennsylvania. 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 regulations, 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 it must be protected. Re-imposing any form of a fairness doctrine threatens First Amendment rights. Some on the Left of the political spectrum are frustrated that more talk radio shows have a conservative political leaning than have a liberal political leaning. In response, I say that the content is market driven. If more people want to listen to a certain type of talk radio, then those programs in demand will be sustained by advertising, donations, and other sources of income. Within the current market system, American consumers are getting what they want. If the demand for liberal programming were greater, there would be more shows with that content. Any attempt by a few liberals to reinstate regulation of the airwaves clearly goes against the will of Congress and the American people.

Not only do I continue stand firm in my opposition to the fairness doctrine, but I am adamantly opposed to any attempt aimed at regulating the airwaves, such as broadcast localism, more stringent licensing requirements, and vague diversity regulations aimed at an industry whose authorizing authority is the First Amendment to the Constitution. I intend to fight against the regulation of free speech, not just the Fairness Doctrine, but in all its various forms. Let this be a warning, just as the Fairness Doctrine has always been a loser for the left, so too will any infringement upon the free speech of the American people.


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