What Happened to the Fairness Doctrine?

By Mike Lillis
The Washington Independent
Monday 31 March 2008

No repercussions in "60 Minutes" blackout case, even if politics at play.

Last month, as 10.5 million Americans were watching a "60 Minutes" episode implicating the Bush administration in an alleged conspiracy to prosecute political opponents, television viewers in Huntsville, Ala., found something different: a black screen.

The rare event - occurring at WHNT-TV, Huntsville's CBS affiliate - aroused the suspicions of Democrats and media watchdogs, not least because the segment focused on the corruption-related imprisonment of a leading state Democrat, former Alabama Gov. Don Siegelman. Friday, Siegelman was released on bond pending an appeal, vaulting his saga into the national spotlight, and signaling that his charges of a politically motivated prosecution - the same charges many Alabamans missed on "60 Minutes" - could ultimately exonerate him.

The Federal Communications Commission has launched an official inquiry into the blackout. But legal experts say that, even if WHNT acted purposefully, and for the most naked political reasons, the station could at worst walk away with a slap on the wrist. In fact, they say, years of deregulation have left broadcasters with broad freedoms over the content they air, and their reasons for doing so.

(Matt Mahurin) "If they say, 'Look, we're owned by conservative Republicans and we don't want to show something that makes the party look bad,' they can do it," said Michael Botein, director of the Media Law Center at New York Law School. "There are almost no rules today."

Andrew Jay Schwartzman, president and CEO of the Media Access Project, a nonprofit First Amendment watchdog group, said that Reagan-era deregulation could, indeed, allow broadcasters to black out programs of their choosing. Even if WHNT is found to have acted "for the most nefarious reasons," Schwartzman said, "it's not at all clear that any violation of any FCC regulation was involved."

The controversy stems from a Feb. 24 "60 Minutes" episode suggesting that the Bush administration had for years conspired to pin corruption charges on Siegelman, a popular Democrat in a largely Republican state. Central to CBS' investigation was Dana Jill Simpson, an Alabama lawyer who claimed to have done "opposition research" for the Republican Party. In 2001, Simpson told CBS, then-senior White House advisor Karl Rove asked her to get evidence of Siegelman cheating on his wife.

It was not the first time Rove had targeted Siegelman, Simpson said. "I had other requests for intelligence before." Through a lawyer, Rove denied the allegations, CBS reported.

In 2004, the administration brought one of its several long-running investigations against Siegelman to court, charging the Democrat with involvement in a Medicaid-scam. The judge dismissed the case for lack of evidence.

In 2006, the Justice Dept. brought a new case against Siegelman. This time the charge was bribery for accepting $500,000 from a health company executive in support of a lottery campaign the governor had pushed. In exchange, the executive was given a seat on a hospital regulatory board. A jury found Siegelman guilty, and he was sentenced to seven years in federal prison - a case currently under appeal.

CBS' Siegelman segment ran for 13 minutes of the hour-long news program. In Huntsville, the blackout lasted 12 minutes, coinciding directly with that story.

WHNT first claimed the blackout was the result of a faulty feed originating with CBS in New York. A more thorough investigation, station officials later said, revealed that the trouble was a local equipment failure preventing WHNT from receiving the CBS signal - a situation remedied 12 minutes into the Siegelman segment. In response to local complaints, WHNT re-ran the segment four hours after it was initially scheduled, and again the following evening. But the re-runs did little to cool the suspicions of Democrats. FCC Commissioner Michael Copps, a Democrat, pushed hard for an official inquiry, which was initiated nine days following the blackout.

Legal experts and media watchdogs say that blackouts of such length are extremely rare, particularly during peak viewing hours.

"Blackouts, of some duration, probably happen all the time," said Aaron Craig, communications director of Free Press, a non-partisan media reform group. "Now, do they happen during prime-time, when the story is focused on potential corruption in the same state? At best, it's an unfortunate coincidence."

Botein agreed, saying that the sophistication of today's broadcast equipment - combined with the commercial appeal of the program in question - makes such a coincidence highly unlikely.

"A show like '60 Minutes' gets incredible ratings," Botein said. "A 12-minute blackout? - It'd never happen. They'd lose half their audience."

The rare incident caught the attention of Sen. John Kerry (D-Mass.), who sent a Mar. 5 letter to FCC Chairman Kevin Martin, a Republican appointed by President George W. Bush, wondering "whether the nature of the content played a role" in the blackout. Kerry asked that the full results of the FCC inquiry be shared with Congress.

Kerry's suspicions are not without merit. While WHNT is owned by Oak Hill Capital, a Texas-based private equity firm with a long history of support for Democratic candidates and causes, the day-to-day operations are run by a newly created Oak Hill venture called Local TV LLC. Based in Kentucky, Local TV is headed by Robert Lawrence, a long-time GOP supporter whose many political contributions include $2,000 to the Bush campaign in 2004, and $7,000 to the Republican National Committee in 2000.

Local TV's previous CEO, Randy Michaels, a controversial figure who once headed the radio division at Clear Channel Communications, the nation's largest radio conglomerate, also has a long history of ties to conservative figures. Michaels is credited with discovering the popular conservative talk show host Sean Hannity in the early 1990s. He also signed enormous radio deals with Rush Limbaugh and Dr. Laura Schlessinger, two powerhouses on the conservative talk-radio circuit.

WHNT General Manager Stan Pylant said the FCC inquiry will reveal that there was no political foul play on the part of the station. "Indeed, the record will show that our team worked quickly to get CBS back on the air that night," Pylant said in a Mar. 7 statement.

In any case, experts say there is little the FCC can do regardless of the inquiry's conclusions. "While the First Amendment protects not only one's right to say what he or she has to say, it also protects one from being required to say something," Miriam Smith, professor of broadcast and electronic communication at San Francisco State University, said in an e-mail. "WHNT cannot be forced to engage in speech they do not wish to make."

Media experts say that a former federal regulation, the Fairness Doctrine, would have given the FCC greater punitive powers in this case. That rule required broadcasters to air stories of public importance, regardless how controversial, and also mandated equal time for opposing views.

The Fairness Doctrine was repealed in 1987, during a period of widespread deregulation under the Reagan administration. A congressional effort to prevent the repeal was vetoed by President Ronald Reagan. A 1991 attempt to reinstall it also failed, this time under veto threat from President George H.W. Bush.

What remains relevant is a federal requirement that broadcasters serve the public interest. If the Huntsville blackout is found to be politically motivated, then the FCC, currently composed of three Republicans and two Democrats, could deem it an act of censorship. This would be a taken into consideration when the station's license came up for renewal, which happens every eight years. License revocations are rare, however. Experts say it would require a years-long pattern of censorship - not just one event.

"In this case, they're certainly not going to pull their license over it," said Clay Calvert, communications professor at Pennsylvania State University and co-author of Mass Media Law, the nation's top-selling undergraduate communications law textbook. "At most, it might merit a warning."

Considering the partisan make-up of the FCC, it might not even merit that. The commission's "notice of inquiry" falls short of an investigation. And if Martin, the panel's Republican chairman, accepts the station's claim that the trouble was strictly technical, then the process could end there.

Kerry said his pursuit of the story will hinge on the FCC's actions. "[T]he FCC should carry out a full investigation before we take any further action," he said in an e-mail. "If the FCC fails to do so, then we will have to make a decision about further congressional action."

The FCC launched its inquiry on Mar. 4. WHNT has until Apr. 3 to respond. Mary Diamond, an FCC spokeswoman, declined to say whether the agency has received a response. Messages left with the station Friday were not returned.

Meanwhile, last week was doubly eventful for Siegelman. First, the House Judicial Committee on Thursday requested his temporary release to allow his testimony in Washington on events leading to his conviction. A day later, an appeals court secured his release on bond pending an appeal.

In his first interview after his release, Siegelman gave no indication of easing his campaign to tie Rove to his conviction.

"His fingerprints are smeared all over the case," he told The New York Times.