Legislation would block the resurrection of TV's 'Fairness Doctrine'

If your YouTube video makes a statement, and it gets onto somebody's HDTV some day, is YouTube obligated to make time available for opposing viewpoints? Certainly not...or so you might think.

Since 1949, a law has existed on the US federal books mandating that broadcasters who grant time for certain viewpoints or opinions grant "equal time" to opposing viewpoints. This is the infamous Fairness Doctrine, which is still the law of the land -- according to a Supreme Court ruling -- although the federal mandate for the FCC to enforce that law was officially repealed in 1985.

It would not take anything less than a tilting of opinion in the new FCC, which could take shape soon after the swearing-in of President Obama, for that law to suddenly become enforced again. And while that may not seem likely on the surface, the "convergence" of television and the Internet poses an entirely new problem for lawmakers: Although right now, Internet content and television content are governed under completely different regulations (IP content is treated more like private transactions), the possibility that CES 2009 demonstrates of both content streams merging into one at the TV receiver (witness, for example, the renewed interest in Yahoo Widgets) could potentially serve as a catalyst for lawmakers to reconsider enforcing the Doctrine.

So a Republican-backed bill was introduced Wednesday in the Senate that would add a single paragraph to the Communications Act of 1934, effectively disabling the FCC's ability to enforce the Doctrine permanently...even if the law itself isn't repealed.

"The Commission shall not have the authority to prescribe any rule, regulation, policy, doctrine, standard, or other requirement that has the purpose or effect of reinstating or repromulgating (in whole or in part) the requirement that broadcasters present opposing viewpoints on controversial issues of public importance, commonly referred to as the 'Fairness Doctrine'," reads the text of S. 34, which will be formally introduced when Congress reconvenes next month.

Representing broadcasters' interests, National Association of Broadcasters' Executive Vice President Dennis Wharton issued this statement on Thursday: "Since the Fairness Doctrine's elimination in 1987, America has witnessed an absolute explosion in alternative media outlets, providing a rich diversity of viewpoints from all sides of the political spectrum. NAB salutes these lawmakers for their dedication to ensuring Americans have continued access to a free and robust press unfettered from government interference."

With Internet content not being considered broadcasting -- at least, not at the moment -- the FCC can't regulate it. But that fact isn't immune to change over time, especially as CE manufacturers make deals with content providers such as Netflix and YouTube for IPTV content directly to their displays. Must federal regulation make certain that any "channel" that Sony, Toshiba, Panasonic, or others select for their HDTVs, present "fair and balanced" viewpoints? This new legislation could become an "anti-regulation regulation," if the new Congress finds time to debate it next session.