Over the past decade,
the Internet has given new life to one of the oldest forms of media:
the urban legend. Sometimes an urban legend is complete fiction. More
often a story is based on events that may be partially true but which
become greatly exaggerated. The legend’s spread can do lasting damage
— especially when it falsely informs an already contentious policy

Case in point: an event in the Midwestern town of Minot,
North Dakota, has provided the impetus of the past few years to restore
the so-called Fairness Doctrine and other media controls that would
reverse the gains of conservative talk radio. The story involves a
train derailment and chemical spill and a supposed delayed response by
the town’s radio stations. It has been used as an effective propaganda
tool by critics of media deregulation.

The tale goes: Between 1
and 2 a.m. on the morning of January 18, 2002, a train derailed just
outside Minot. The train spilled toxic ammonia fertilizer over Minot,
from which one person died and several were injured.

tried calling the town’s radio stations to get them to send the word
out, but they faced a daunting dilemma. All six commercial radio
stations in Minot were operating on autopilot with prerecorded
programming. Phone calls to the station went unanswered, and radio
warnings were delayed.

The culprit pointed to was the owner of
all six stations, Clear Channel Communications: the huge, national,
homogenizing, Big Radio corporation everyone loves to hate.

story is employed as an example of the evils of media consolidation in
debates about localism today. It has been featured prominently on the
PBS program NOW with Bill Moyers and various Leftie blogs calling for
"media reform."

By fueling the perception that national radio
companies weren’t adequately serving local communities, the Minot
incident probably played a role in influencing the Bush administration
Federal Communications Commission to push through a pending regulation
on "localism," which many are calling a stealth Fairness Doctrine.

The localism rule, now in its "proposal" stage, has been criticized by both commercial and religious broadcasters
as hearkening back to the days before Ronald Reagan rescinded the
Fairness Doctrine in the mid ’80s. During the previous decades when the
doctrine was in effect, radio and television stations would be
bombarded with response time requests from pressure groups if they
aired a conservative or other controversial point of view.

new rule would require that broadcast licensees "convene and consult
with permanent advisory boards" that include "representatives of all
segments of the community." The rule then mandates that station license
renewals be "based on their localism programming performance," which
would be determined by members of the advisory board.

The boards could have the same "chilling effect" on controversial speech that the Fairness Doctrine once had.

WHERE DID THIS rule come from and why did Bush’s FCC Chairman Kevin Martin sign on?

According to the Broadcast Law Blog, "The proposed new requirements seem to stem from the notorious ‘Minot incident.’" In his speech
introducing the proposed rules, Martin declared, "It has become
apparent, however, that some broadcasters may not be doing all they can
or should to serve their local communities."

In an apparent
reference to Minot, Martin said, "These actions are designed…to
ensure that vitally important local information and viewpoints are
provided to the community."

But hold on. Before Martin and other
commissioners rush to reregulate, and put in policies that would likely
stifle alternative viewpoints, they need to take another look at the
real facts of the Minot incident that fueled the controversy.

moralistic folk tale is far from the whole story. Serious analyses of
the incident have shown that local first responders were as much, if
not more, to blame as the radio stations for failing to get the word
out. And among the lessons that really can be drawn from Minot are that
even existing top-down "public interest" requirements for local
stations are often counterproductive.

As Slate media critic Jack Shafer has written in an analysis of the event, when a disaster strikes, first responders are not even supposed to call
radio and television stations to tell them to alert the public. Rather,
the federal Emergency Alert System (formerly the Emergency Broadcast
System) allows authorities to directly break into station broadcasts to
warn the public of the emergency.

The real problem that early
morning in Minot, according to Shafer and others examining the
incident, was that "when Minot authorities attempted to use the EAS,
they failed."

In an article from Law Enforcement News, a Minot police lieutenant acknowledges
that part of the delay was "our fault." The local police did not
understand the new system, receive full training on it, or install it
properly. Law Enforcement News makes clear that rather than a
failure of broadcast deregulation, "what happened in Minot is a stellar
example of how little thought has been given to the communication and
information systems that are the heart of all public safety and
critical incident response."

The Clear Channel stations were
also not unique in carrying automated late-night programming and in
having few if any station employees on deck during that time of day
(though Clear Channel insists there was at least one person in the
Minot offices that night and that phone lines were simply jammed or

Nor was this unusual. Even in the big market of
San Diego, only two music stations broadcasted live programming after
midnight in 2002, according to Wired.
And before this automated programming was available, stations would
simply shut down around midnight. Remember the "Star-Spangled Banner"

Thus, authorities wouldn’t even have had the option to break into station broadcasts at 2 a.m.

REALLY, HOW much of a difference would it have made? Even if everything
went like clockwork that night in Minot, it was still two in the
morning. How many people would have been listening to the radio at that

The most effective system of warning people would seem to
be the tried-and-true method of blaring sirens and knocking on doors.
Now, they might improve on the old methods with new media innovations,
including texting everybody’s cell phones with a warning about a
dangerous chemical spill.

Colleges, for instance, from Pennsylvania State University to the University of Arizona
have set up registries for the administration to send students text
messages if there is an emergency. Small towns like Minot could set up
a voluntary registry for their citizens who wish to receive emergency

After all, if so many sign up for the Obama-Biden vice presidential publicity stunt, it’s not too much to think that there are some who might want be notified about events in which their lives could be at stake.

the meantime, the new media marketplace is giving more choices to
residents of Minot, as it is to all American media consumers. As Shafer
points, radio consolidation has brought a greater diversity of
programming in Minot and other towns. The number of radio formats went
up from three to six after Clear Channel took over the six Minot

Frequently, when independently-owned stations compete
for a given audience, they tend to duplicate formats — such as new
popular music. But when companies like Clear Channel own several
stations, they attempt to appeal to as broad a customer base as
possible, and so offer different sorts of programming on each channel.

new localism rules are imposed, Minot and other cities and towns would
experience a true threat in the silencing of controversial viewpoints.
The ensuing First Amendment emergency will be no urban legend.

John Berlau is the director of the Center for Entrepreneurship at the Competitive Enterprise Institute and author of Eco-Freaks. Alex Harris, a 2008 Summer Research Associate at CEI, is as first-year student at Stanford Law School.