Conservative radio and the risks of FCC pressure on broadcast licensees

Conservative radio is one of the most potent forces in American politics. It emerged from Federal Communications Commission (FCC) deregulation that fostered free speech and a multiplicity of voices, and it continues to thrive in freedom.

However, that freedom could be at risk if the FCC continues to use the Communications Act’s public interest obligation to pressure broadcast spectrum licensees. The FCC has a history of regulating licensee content—actions upheld by the Supreme Court.

Radio and television stations use broadcast spectrum subject to the Communications Act’s requirement that they serve the “public interest, convenience and necessity.” Congress didn’t define public interest, so it has been up to the FCC and courts to interpret it. Under the public interest obligation, the FCC has developed regulatory policies such as the fairness doctrine and the news distortion standard that apply to licensee news and information content.

A key driver for the public interest regulation of licensees has been scarcity. Because there is a limited amount of broadcast spectrum and a limited number of users of that spectrum at any one time, the FCC can regulate not only the technical aspects of radio transmission traffic, but the “composition of that traffic,” meaning licensee content.

As with many regulations, these efforts produced unintended consequences. The fairness doctrine was imposed in 1949 in the name of the public’s right to be informed. It held that the public interest obligation required that when a licensee expressed its opinions or ideas on a topic, it had “an affirmative duty generally to encourage and implement the broadcast of all sides and to make available demand opportunities for the expression of opposing views.” For example, if a television station broadcast an editorial that expressed the opinion of station management, the station had an obligation to offer time to an opposing view.

The fairness doctrine not only failed to advance the public’s right to be informed, it actually impeded it. In repealing the fairness doctrine in 1987, the Reagan FCC found that it “actually thwarts the purpose which it is designed to achieve” by inhibiting broadcasters from covering controversial issues of public importance. In other words, in order to avoid the fairness doctrine’s compliance requirements, licensees were avoiding controversial topics altogether.

The fairness doctrine’s repeal removed a regulatory constraint on free speech. Once liberated from continually considering whether a piece of news content triggered the requirement for an opposing response, licensees were free to tackle a range of topics of public importance.

With music moving from AM to FM and airtime to fill, stations discovered that conservative radio responded to an underserved market and filled the void. Appealing to listeners and advertisers alike, it has since flourished.

But FCC Chair Brendan Carr’s expansive interpretation of the public interest obligation and the FCC’s authority over licensee content presents risks to conservative radio.

At some point, there will be another Democrat in the White House. Imagine the potential effect on conservative radio if a Democratic FCC chair takes a similarly expansive interpretation of the public interest and the FCC’s authority.

Protecting free speech requires the FCC to take a deregulatory approach and redefine scarcity to recognize the multiplicity of voices in the media marketplace today. While there is still a limit on the amount of available spectrum and its users, there’s no scarcity of news and information sources. Scarcity should be considered in terms of today’s news and information landscape, not tethered to a bygone era of fewer alternatives.

The public interest should also be interpreted to recognize today’s absurdly tilted regulatory playing field. Only broadcast station licensees must contend with FCC content regulation. Cable channels, podcasters, newspapers, and streamers have no public interest obligation because they don’t have FCC broadcast licenses. This creates an uneven playing field that puts licensees, including stations airing conservative radio, at a competitive disadvantage.

Moreover, freedom is the foundation of the public interest and the touchstone for any public interest analysis. As the Reagan FCC found in repealing the fairness doctrine, the public interest lies in free expression and a multiplicity of views. It does not lie in FCC regulation that pressures radio and television stations solely because they have FCC licenses.

As it has in the past, conservative radio will thrive in deregulation and freedom. And freedom is the public interest.