It's hard sometimes to know where to start when trying to figure out which criticism of Net Neutrality is the most misguided. Bullying and threats are always a good standby. The telephone companies have done it for decades as an all-purpose answer to anything they didn't like. Pass X regulation and we won't invest. Pass Y rule and we won't deploy. Pass Z and jobs will be lost. Regulators are to be blamed for lower earnings.
The big media companies have it in their playbook also. If they don't get another, bigger, badder protection/penalty against “piracy,” then all their wonderful content will be shut down. The penalties have increased steadily for years and they are still complaining and threatening to withhold content or even not create some new masterpiece. 60 Minutes ran a Nov. 1 segment on “piracy” that made some of the same claims, despite the facts to the contrary. More movies are being made than ever, and box office receipts are up – just the opposite of what is “supposed” to occur under the threat of “piracy.” Viacom threatened in 2002 to withhold high-definition content without copy controls on broadcast signals. Never happened.
It doesn't matter which industry does it. The health care industries threaten death and doom if they get some real competition. Oil and gas companies threaten the end of our lifestyle if climate change legislation is passed. Pick an issue and some big industry bullies and threatens. It's a wonder that anyone takes any of this seriously after all is said and done, or not done. But as long as feckless legislators believe it, there's no reason to stop, is there?
In the Net Neutrality debate, there is another issue with another dimension. It's not a basic fake economic issue. In a way it's more dangerous because it's political and pushes one of the conservative hot buttons – the Fairness Doctrine. And making Net Neutrality out to be the new Fairness Doctrine is right up there on the misguided list.
The Fairness Doctrine is one of those red flags sure to raise right-wing temperatures, from the most prominent broadcasting bloviator to the most obscure rabid web site. For the conservatives, the Fairness Doctrine is a government plot to curb right-wing radio. Glenn Beck told his listeners last year that, “They are going to do everything they can to silence our voices.” “They” of course are the Obama Administration and Congressional allies, who have said they won’t bring it back. Sen. Jim DeMint (R-SC) introduced legislation to ban the Fairness Doctrine. In doing so, DeMint said, “Democrats want to impose an unfair doctrine that destroys talk radio and silences the voices of millions of Americans who disagree with their vision for America.”
As a general matter, it’s a shame that “fairness” has become such a pejorative expression to conservatives and it’s too bad that in their paranoia they view any discussion of bringing the views of progressives or liberals to the mass media as a plot to shut them up.
Federal Communications Commissioner Robert McDowell was one of the first to suggest that Net Neutrality is a latter-day version of the Fairness Doctrine, thus combining one flash point with another. In a speech to the Media Institute on Jan. 28, 2009, McDowell discussed the potential return of the Fairness Doctrine and suggested: “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, 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.”
Rep. Marsha Blackburn (R-TN) picked up the theme more recently. Kim Hart reported in The Hill on Blackburn’s October 20 speech in which Blackburn said, “Net neutrality, as I see it, is the fairness doctrine for the Internet.”
Speaking to a group representing Tennessee songwriters and entertainers, Blackburn is quoted as saying that content creators “”fully understand what the Fairness Doctrine would be when it applies to TV or radio. What they do not want is the federal government policing how they deploy their content over the Internet and they want the ISPs to manage their networks and deploy the content however they have agreed on with ISP. They do not want a czar of the Internet to determine when they can deploy their creativity over the Internet. “They do not want a czar to determine what speeds will be available….We are watching the FCC very closely as it relates to that issue.”
Net Neutrality Is The Opposite of The Fairness Doctrine
Without understanding either concept, many conservative commentators and legislators picked up the meme. Search “fairness doctrine” and “Net Neutrality” and a rash of rabid sites pop up. On one hand, the Doctrine, repealed 22 years ago by the Federal Communications Commission (FCC), which created it in 1949, is the antithesis of Net Neutrality. Looked at another way, however, the Fairness Doctrine has some valuable insights into why Net Neutrality is necessary. The Fairness Doctrine, and the reasons behind it are much more nuanced than conservatives give credit for.
The Fairness Doctrine is an affirmative obligation given to broadcasters by the FCC. As then-U.S. Supreme Court Justice Byron White wrote in the 1969 Red Lion opinion upholding the Doctrine, “The Federal Communications Commission has for many years imposed on radio and television broadcasters the requirement that discussion of public issues be presented on broadcast stations, and that each side of those issues must be given fair coverage.”
In its original 1949 order setting out the Fairness Doctrine, the FCC said that broadcasters needed to be active participants in making certain that the public received many sides of an issue: “It is clear that any approximation of fairness in the presentation of any controversy will be difficulty (sic) if not impossible of achievement unless the licensee plays a conscious and positive role in bringing about balanced presentation of the opposing viewpoints.”
To be clear, broadcasters were required to insert themselves into the process of determining which viewpoints were presented in order to maintain the required balance of views. There is no doubt this was not as easy a task as that 1949 order assumed. The Commission could, and did, tie itself in knots over striving to maintain fairness in a whirl of complaints and counter-complaints over all sorts of issues, particularly surrounding the Vietnam War. The adjunct to the Fairness Doctrine, the rules which allowed responses to personal attacks, were the basis of the case that led to the Red Lion decision. Those rules required broadcasters to offer a “reasonable opportunity to reply” if there was in the course of covering a controversial issue an “attack is made upon the honesty, character, integrity or like personal qualities of an identified person or group.”
Net Neutrality, on the other hand, is the polar opposite of the Fairness Doctrine. Perhaps the best legal expression of Net Neutrality so far was the condition the Commission imposed in its order approving the AT&T takeover of BellSouth: “AT&T/BellSouth also commits that it will maintain a neutral network and neutral routing in its wireline broadband Internet access service. This commitment shall be satisfied by AT&T/BellSouth’s agreement not to provide or to sell to Internet content, application, or service providers, including those affiliated with AT&T/BellSouth, any service that privileges, degrades or prioritizes any packet transmitted over AT&T/BellSouth’s wireline broadband Internet access service based on its source, ownership or destination.”
Another version is the legislation (HR 3458) introduced by Reps. Edward Markey (D-MA) and Anna Eshoo (D-CA). Their bill provides, in part that Internet Service Providers (ISPs) shall “not block, interfere with, discriminate against, impair, or degrade the ability of any person to use an Internet access service to access, use, send, post, receive, or offer any lawful content, application, or service through the Internet.” ISPs also could not “provide or sell to any content, application, or service provider, including any affiliate provider or joint venture, any offering that prioritizes traffic over that of other such providers on an Internet access service.”
Here is the difference between the Fairness Doctrine and Net Neutrality. One, the Fairness Doctrine, requires active participation by a broadcaster in determining content. The other, Net Neutrality, requires the service provider to stay out of the way. Is that a “government mandate?” as some conservatives claim? Perhaps. But it’s a mandate to let traffic flow without attempting to judge the worth of one person’s traffic over another. They have no relation to one another. People who opposed, and oppose, the Fairness Doctrine should support Net Neutrality.
What The Fairness Doctrine's History Can Teach Us About Net Neutrality
The Fairness Doctrine was created in an era of scarce public access to mass media – a condition that still exists to some degree today and, depending on the outcome of some deals being negotiated, may be even more scarce. Net Neutrality was created in an era of infinite access to the Internet and unparalleled opportunities to speak and to be heard. On that basis as well, the two ideas could not be more different.
At the heart of each of them, however is a strikingly similar philosophy about the relationship between the government, business and the American people. It’s a philosophy that connects Net Neutrality back to the very beginnings of mass media in this country and applies both in industries or scarcity and of abundance.
Herbert Hoover, then Secretary of Commerce, said this about radio in 1925: “Four years ago we were dealing with a scientific toy; to-day we are dealing with a vital force in American life. We are, I believe, bringing this lusty child out of its swaddling clothes without any infant diseases.” Stretch out the time line a little and the description isn’t so different from the origins and development of the Internet. In that same speech, he added: “The use of a radio channel is justified only if there is public benefit. The dominant element for consideration in the radio field is, and always will be, the great body of the listening public, millions in number, countrywide in distribution.”
The idea that a communications medium, any medium, exists to serve the public, is at the core of our communications laws. It carried through into the Communications Act for radio and telephone, which exist to serve the “public interest, convenience and necessity.” The 1949 FCC order similarly recognized that the “right of the public to be informed” trumped the interests of government and of private business, saying at one point that radio stations should not be used for the “private interest, whims or caprices of the particular persons who have been granted licenses, but in manner which will serve the community generally.”
Justice White, in upholding the Fairness Doctrine, put the relationship into perspective: “It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount. It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee. It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here. That right may not constitutionally be abridged either by Congress or by the FCC.”
That’s why when DeMint and his colleagues had it backwards when their legislation to prohibit the Fairness Doctrine is called the “Broadcaster Freedom Act of 2009.” Under our system, the freedom of the public trumps the freedom of broadcasters. In the Internet age, we can do nothing less. The freedom of the public to hear what it wants to hear, to see what it wants to see, and to create what it wants to create should not be subject to the business plans of the telephone and cable companies.
That’s what our traditions and laws demand; that’s what the public deserves. That’s why Net Neutrality is so important.