The Death of the Fairness Doctrine - and Dick Durbin's work-around

Just to get this part out of the way:

The real point of a “fairness doctrine” would be to silence such voices as Mark Levin, Laura Ingraham & Glenn Beck – by forcing radio stations to broadcast equal time-slots of such personalities as Joy Behar, Al Franken, and Roseanne Barr. This would (as has been demonstrated) offset the money-making ability of the conservative shows, and very likely make the whole endeavor not worth the financial-effort for the local radio stations – which would, in turn, drop the whole talk-radio format in favor of something that would reliably sell advertising.

There - now we're all on the same page.


If you were paying close attention to the news recently, you may have heard that senator Jim DeMint was able to push through an amendment to prevent the FCC from forcing the enactment of a “Fairness Doctrine” – which would use the FCC’s “public interest” clause under TITLE 47, CHAPTER 5, SUBCHAPTER III, Part I, § 303. Powers and duties of Commission
to force (in the “public interest”) broadcast media (read: Talk Radio) to devote “equal time” to opposing-viewpoints.

Senator Jim DeMint, realizing that a bureaucratic-process quashing of free-speech would be just as egregious as any other kind, inserted an amendment into Senate Bill 160 – the District of Columbia House Voting Rights Act of 2009 - A bill with the intended purpose of granting that : ”… the District of Columbia shall be considered a Congressional district for purposes of representation in the House of Representatives.”

Knowing that the assembled body would be …(ahem).. ‘unlikely’ to vote-down a bill granting DC one more voice on the national stage, Senator Demint included the following amendment:


DeMint Amdt. No. 573 - To prevent the Federal Communications Commission from repromulgating the fairness doctrine.

SEC. 9. FAIRNESS DOCTRINE PROHIBITED.

(a) Limitation on General Powers: Fairness Doctrine.--Title III of the Communications Act of 1934 is amended by inserting after section 303 (47 U.S.C. 303) the following new section:

``SEC. 303A. LIMITATION ON GENERAL POWERS: FAIRNESS DOCTRINE.
``Notwithstanding section 303 or any other provision of this Act or any other Act authorizing the Commission to prescribe rules, regulations, policies, doctrines, standards, guidelines, or other requirements, the Commission shall not have the authority to prescribe any rule, regulation, policy, doctrine, standard, guideline, or other requirement that has the purpose or effect of reinstating or repromulgating (in whole or in part)--

``(1) the requirement that broadcasters present or ascertain opposing viewpoints on issues of public importance, commonly referred to as the `Fairness Doctrine', as repealed in In re Complaint of Syracuse Peace Council against Television Station WTVH, Syracuse New York, 2 FCC Rcd. 5043 (1987); or

``(2) any similar requirement that broadcasters meet programming quotas or guidelines for issues of public importance.''.

(b) Severability.--Notwithstanding section 7(a), if any provision of section 2(a)(1), 2(b)(1), or 3 or any amendment made by those sections is declared or held invalid or unenforceable by a court of competent jurisdiction, the amendment made by subsection (a) and the application of such amendment to any other person or circumstance shall not be affected by such holding.

So there it is, right?

After a winning vote of 87-11, the FCC cannot (even under threat or political pressure) bureaucratically, or by virtue of internal process, re-enact the conditions of the Fairness Doctrine – “Done and done”, as they say.

...Well,...not quite.


Enter Senator Dick “Americans are Nazis” Durbin


You see, knowing that Senator Demint was moving to block the re-emergence of the Fairness Doctrine in a time & way unlikely to be opposed, Senator Durbin countered by inserting his own amendment into the very same Bill.

Knowing also that he couldn’t insert an amendment with language in direct-opposition to an already-accepted amendment, Senator Durbin (in a move remniscent of colleague Barney Frank) went quietly for a back-door:

Durbin S.Amdt. 591: To encourage and promote diversity in communication media ownership, and to ensure that the public airwaves are used in the public interest.

``SEC. 303B. CLARIFICATION OF GENERAL POWERS.

``(a) Certain Affirmative Actions Required.--The Commission shall take actions to encourage and promote diversity in communication media ownership and to ensure that broadcast station licenses are used in the public interest.

``(b) Construction.--Nothing in section 303A (the section created by Demint’s Amendment – MD) shall be construed to limit the authority of the Commission regarding matters unrelated to a requirement that broadcasters present or ascertain opposing viewpoints on issues of public importance.''.

(b) Severability.--Notwithstanding section 7(a), if any provision of section 2(a)(1), 2(b)(1), or 3 or any amendment made by those sections is declared or held invalid or unenforceable by a court of competent jurisdiction, the amendment made by subsection (a) and the application of such amendment to any other person or circumstance shall not be affected by such holding.

Looking at the money-quotes there:

- The Commission shall take actions to encourage and promote diversity in communication media ownership

- ...to ensure that broadcast station licenses are used in the public interest.

- Nothing in section 303A shall be construed to limit the authority of the Commission

- ...regarding matters unrelated to a requirement that broadcasters present or ascertain opposing viewpoints on issues of public importance.''.


Written with specific language intended to thwart the spirit of Demint’s amendment – with the application of Durbin’s oh-so-thinly-veiled amendment language – the FCC may not be able to specifically dictate the content of a particular radio station’s programming…

But they can determine that the “decisions” of a particular radio-station-owning company indicate that their ownership of said radio-stations does not sufficiently “encourage and promote diversity” – demonstrating, in turn, that license is not being used “in the public interest”.

Ownership & Licensing decisions that “Nothing in Section 303A” shall limit.


In short:

While Durbin couldn’t find a way to allow the FCC to dictate “diverse-broadcast-content”, he could make sure that no-one could stop the FCC from shutting-down a radio station for lack of “diverse-broadcast-ownership”.

[Click on the title above, or date stamp below, to see the full article.]



In the face of losing the Fairness Doctrine, Dick Durbin has created a back-door.

So now what do we do?

- MuscleDaddy