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FLOOR DEBATE: AMENDMENT NO. 573

02-27-2009

   Mr. DeMINT. Madam President, I ask unanimous consent to set aside the pending amendment and call up DeMint amendment No. 573.

   The PRESIDING OFFICER. Without objection, it is so ordered.

   The clerk will report.

   The bill clerk read as follows:

   The Senator from South Carolina [Mr. DeMint] proposes an amendment numbered 573.

   Mr. DeMINT. Madam President, I ask unanimous consent that reading of the amendment be dispensed with.

   The PRESIDING OFFICER. Without objection, it is so ordered.

   The amendment is as follows:

(Purpose: To prevent the Federal Communications Commission from repromulgating the fairness doctrine)

    At the end of the bill add the following:

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or ascertain opposing viewpoints on issues of public importance, commonly referred to as the `Fairness Doctrine', as repealed in In re Complaint of Syracuse Peace Council against Television Station WTVH, Syracuse New York, 2 FCC Rcd. 5043 (1987); or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

   Mr. DeMINT. Madam President, I ask unanimous consent to add as cosponsors to my amendment Senators VITTER, INHOFE, WICKER, BOND, BENNETT, ENZI, BARRASSO, BROWNBACK, and ALEXANDER.

   The PRESIDING OFFICER. Without objection, it is so ordered.

   Mr. DeMINT. Thank you, Madam President.

   This has been a good debate, not just about DC voting rights but constitutional rights in our country, and if we are going to go by our own opinions and good intentions or are we going to follow the Constitution. Clearly, a lot of us wish to give fair representation to everyone who lives in the District of Columbia. But our oath of office is not to our good intentions, it is to protect and defend the Constitution of the United States.

   The Constitution is very clear that Congressmen and Senators are allocated only to States. The District of Columbia was set up as a neutral entity, certainly where people will live and work associated with the business of the Federal Government, but there is nothing in the Constitution that would give a Congressman or Senators to this Federal District of Columbia. So we are talking about a constitutional issue.

   We have had other constitutional issues, such as the Bill of Rights guarantee to bear arms, and there will be an amendment to that effect with the bill. I wish to bring up another constitutional issue, which is the right of free speech and the freedom of the press.

   A number of Members of Congress have been talking about the annoyance of having radio talk show hosts talk about what we are doing here. I do not blame the other side for being annoyed when a radio talk show host actually describes what is in a bill, since we have gotten in the habit of not actually reading them ourselves. When we have radio talk show hosts all around the country going through page by page, contradicting what is actually being said here, I can understand that people wish to muzzle those radio talk show hosts. That could be the opinion of some of those in Congress today, but it happens to go against the Constitution when we try to decide what people can say and what they believe.

   There is actually a doctrine that was mentioned by the Senator from Kansas

called the fairness doctrine that is one of those political doublespeak titles that is radio censorship that actually tries to control what radio talk show hosts could say. That doctrine was dispensed with by Reagan, and since then we have thousands of radio talk shows with wide varieties of opinion. But many are starting to talk about bringing back this radio censorship idea to try to force radio stations to present alternative opinions every time a radio talk show host presents an opinion of their own.

   What this would do is create a dysfunctional situation where no radio station could afford to have a talk show host express an opinion of any kind if they had to go out and find someone to express the opposite opinion and in the meantime face lawsuit after lawsuit from the ACLU and others. Because whose opinion is going to determine what is fair, what is balanced, what is diverse? But the whole implication here is that the Federal Government and the Federal Communications Commission are somehow going to decide for us what is fair and what is balanced and what is diverse.

   The amendment I am offering today, which we call the Broadcaster Freedom Act, would prohibit the Federal Communications Commission from reestablishing any part of what is called the ``fairness doctrine'' into their regulatory structure today.

   Plain and simple, most people here have said they do not want it to come back. President Obama said last week he is against the fairness doctrine. So who could oppose us making it a law that some bureaucrat over at the Federal Communications Commission could not write into regulations all or parts of this censorship of radio talk shows across the country?

   It is a pretty simple amendment, but I have a feeling it is getting ready to sound lot more complicated when the other side starts presenting what is in it. We have found in this body that the facts, the truths, sometimes do not make a lot of difference. But anyone who votes against my amendment, the Broadcaster Freedom Act, is voting against the Constitution. They are voting against the freedom of the press. They are voting against the freedom of speech in this country.

   The one hope we have to turn this Government around, to stop this spending, and the intervention in all areas of our life, is a free press that can tell people the truth about what is going on. More and more, we have the radio talk show hosts and the bloggers and some cable news that every day are telling Americans more about what we are doing, and Americans are getting more informed, they are getting more engaged and increasingly more outraged about what we are doing.

   I encourage my colleagues to support my amendment and to vote against this side by side that is being presented by the Democratic majority. What we are seeing in this side by side is the real intention of the Democratic majority as far as dealing with this fairness doctrine. They are going to propose that we as a Congress direct the Federal Communications Commission--that we are going to say: ``shall take actions to encourage and promote diversity in communication media ownership.''

   Now, they are not just saying radio here. This is ``communication.'' This includes the Web, the Internet, the blogs, blogisphere, television, newspapers. This language would direct the Federal Communications Commission to take action to enforce diversity in communication. This is Soviet-style language that you are going to get some rosy picture of in a minute. But it is so open and so vague that about every communication outlet in this country is going to be faced with accusations that their ownership is not diverse.

   What does ``diverse'' mean? Does it mean ``white and black''? What they are after is what they believe, what their opinions are. If this were applied to our offices here in the Senate, we could not say anything, I could not express my opinion today without being obligated by law to go find somebody to say something completely opposite of what I am saying. This is not freedom. Anyone who votes for this alternative is voting to repress the freedom of speech in this country, the freedom of media.

   The second part of what they have after ``promote diversity in communication media''--all media; only the lawyers and the bureaucrats are going to tell us what that means--is ``to ensure that broadcast station licenses are used in the public interest.'' That is already a law, and that is good, and television and radio stations that use the public airwaves all over the country are held accountable by current law to do things in the public interest, and many of them are very good at that, and it is very helpful in our communities.

   But I will ask my colleagues not to let this distraction confuse them about the real intention. If we pass the broadcaster freedom amendment today, we are going to close the front door to taking away the freedom of speech in this country. But this alternative opens the backdoor to what the Democratic majority is after; that is, to muzzle this annoyance of people on the radio who are telling the truth about what is going on in this Congress.

   If they can go out and threaten a station that they are not diverse in their ownership, and some judge or some bureaucrat is going to decide whether they are diverse--and who knows what that means--we are going to create such risk and such liability and such intimidation that this will not even look like America in a few years.

   This is dangerous material that is being offered on the other side. I will encourage my colleagues to remember our oath of office. It has nothing to do with enforcing our opinions or some judge's opinion on some radio station out there that is trying to give its opinion to the American people. We are dangerously close to the enslavement of socialism in this country with the expansion of Government on every front.

   This is intolerable. Do not let the pretty language you are getting ready to hear confuse you because this is against everything we swear an oath to in this Congress. I encourage my colleagues to vote against the Durbin amendment, vote for the Broadcaster Freedom Act, and I would appreciate their support.

   Thank you, Madam President, and I reserve the remainder of my time.

   The PRESIDING OFFICER. The Senator from Illinois.

AMENDMENT NO. 591

   Mr. DURBIN. Madam President, I am beginning to believe the Senator from South Carolina opposes my amendment. He has called it unconstitutional, Communist, socialistic, enslavement, and he is just getting started. So I wish to explain what the debate is all about.

   It is a fundamental question, and it is one I have reflected on. The fairness doctrine is the idea that broadcasters should cover issues important to local viewers and should cover these issues fairly;

   in other words, allow for different viewpoints to be heard and allow those ideas to be presented in a way that is balanced or, as one of the networks say, fair and balanced.

   The fairness doctrine isn't a new idea; it is one that has been around in some shape or form since the 1920s, and it was formally adopted by the Federal Communications Commission as a standard in 1949--60 years ago. Back then, though, the world was a lot different. Television was in its infancy. It was just starting. In the 1950s, of course, there emerged three major television networks--NBC, ABC, and CBS. Congress and the FCC had a legitimate concern that these three networks and their local stations could abuse their power, because when you broadcast to radio and television consumers, you are not using something you own, you are using the public airways. We own it. All of us collectively as Americans own it. We license those who use it and say: You are allowed to broadcast your television signal or your radio signal and you have to do it under certain rules and regulations. Listening to the Senator from South Carolina, he is basically saying: Government, step aside. If a private entity wants to get involved in broadcasting, that is an exercise of free speech.

   Well, historically, the courts have not agreed with my friend from South Carolina. They have said that you can impose reasonable obligations on those who have licenses to use the airwaves. They don't own the airwaves; the public owns the airwaves, and there is a public interest in reaching certain goals in those airwaves. One of those

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public interests was expressed and defined for many years as the fairness doctrine. The fairness doctrine basically said Americans are entitled to hear both sides of the story so there is balance and fairness in the news and in the expressions of ideas on these radio and TV stations. The fairness doctrine was clearly I think American, not Communist; constitutional--no one struck it as unconstitutional during the period of time it was in effect--and I don't know about the enslavement of socialism; I will have to reflect on that for a minute. But the fact is, it was the law of the land. The mightiest broadcast stations, radio and TV stations that could have gone to court, I say to my friend from South Carolina, and challenge that idea as unconstitutional were not successful in doing so. It is hard to imagine we would restrict their broadcasting and they wouldn't challenge it if it was unconstitutional. Well, that is a fact. Facts sometimes are hard to deal with in debates such as this, but that was the reality.

   That was then and this is now. The world has changed. The world of broadcasting has changed. We still have the major networks--ABC, NBC, and CBS--but we also have CNN, FOX News, MSNBC, and hundreds of other channels on cable TV. We have public broadcasting. We have more than 14,000 AM and FM radio stations, hundreds of satellite radio stations, and we have the Internet. It is clear that technology has changed dramatically since 1949 and the institution of the fairness doctrine. There are more ways now than ever to hear a variety of perspectives on a number of issues.

   So when the fairness doctrine was repealed in 1987, many of us objected. The basic argument: Americans have the right to hear both sides of the story; television and radio stations should still hold themselves to that standard. Let the American people decide. Don't let one major network jam through a political viewpoint over the public airwaves that the American people, frankly, have to take or leave. I thought that was the right position then in 1987, but I will tell my colleagues the world has changed.

   President Obama has said while on the campaign trail and in the White House that he doesn't support reinstating the fairness doctrine, and neither do I. You will find no mention of the fairness doctrine on the White House Web site; you will find no effort to reinstitute the fairness doctrine in my amendment. Because, quite honestly, now it isn't a question of NBC giving me one point of view and I have to take it or leave it. We all know what happens when you go home with the remote control; you have more choices than you know what to do with. That gives a variety of opinions an opportunity to be expressed on television--the same thing is true on radio--for Americans to hear a different point of view. If they want to switch from Rachel Maddow to Bill O'Reilly, they will hear a much different view of the world. It is there. It reflects the reality of technology and media today.

   So I think it is interesting that the Senator from South Carolina still bangs away at this notion that some people on the floor want to reinstate the fairness doctrine. I don't. There may be others who do. My amendment has nothing to do with that.

   The amendment Senator DeMint has written was not carefully written. I don't know if he understands some of the language he included. I call his attention to a paragraph in his amendment, paragraph 2 of section 303A. It seems like a very general statement that shouldn't cause any trouble, but I am afraid it does, because after he goes after eliminating the fairness doctrine, he also includes any similar requirement that broadcasters meet program and quotas or guidelines for issues of public importance. Now, that is a problem. I don't know if he understands it is a problem, but it is. This amendment does more than ban the FCC from doing something it wasn't going to do anyway. Incidentally, nobody is talking about reinstating the fairness doctrine. This is the ``bloody shirt.'' That term is a political term that came about after the Civil War when people would come to the floor and try to inflame passions, and they said: You are waving the bloody shirt of the war; stop that. Let's have a rational conversation.

   Well, the rightwing broadcasters on their side, conservative broadcasters, have been waving this bloody shirt of the fairness doctrine for months. They love this. They have set up this kind of false choice that you are going to take away the right of free speech and they are trying to impose the fairness doctrine. It hasn't happened, it isn't going to happen, and I am not trying to make it happen.

   The DeMint amendment also contains a provision which I read to my colleagues that seriously cripples the FCC's ability to ensure responsible broadcasting. Remember: Public airwaves that the radio and TV station owners apply for a license from the Government to use to make money. The public airwaves truly are the property of the American people. We say to broadcasters that in return for a license to use those airwaves, your Government is going to ask that you use them in the public interest. Now, what does it mean to say we use the airwaves in the public interest? According to Senator DeMint, it is the enslavement of socialism. Well, here are the 14 major elements listed by the FCC when it comes to defining the public interest: Opportunity for local self-expression, development and use of local talent, programs for children, religious programs, educational programs, public affairs programs, editorialization by licensees, political broadcasts, agricultural programs, news programs, weather and market services, sports programs, service to minority groups, and entertainment programming.

   Senator DeMint's amendment--that second paragraph I read which has not been carefully written--goes way beyond stopping the fairness doctrine; it undermines the FCC's ability to make sure broadcasters meet these public interest obligations. So what. What if the public interest requirement disappeared tomorrow? What difference would it make? Let me tell my colleagues the difference it would make. There would be no requirement that your local station provide local news and weather. There would be no requirement that your local television station provide children with programming that is free from sex and violence. There would be no requirement to make sure advertising to children is subject to appropriate limitations and no requirement to provide a minimum amount of educational programming on each channel. Does that have anything to do with the fairness doctrine? It doesn't. What Senator DeMint is doing is undermining broadcasting in the public interest.

   If a station decided to run a religious program, they would be doing it in the public interest. Senator DeMint removes that definition of public interest. In fact, he says--let's go back to the exact language of his

   amendment. He says, ``any similar requirement that broadcasters meet programming quotas or guidelines for issues of public importance.'' So his language goes too far.

   What we have tried to do is to make sure we don't limit the FCC's ability to protect the most vulnerable and impressionable viewers and listeners in America--our kids and our grandkids. The DeMint amendment takes away that requirement of licensees, radio and TV licensees, to protect children from sex and violence. They might do it anyway, they might not, but there would be no license requirement under the DeMint language.

   I still believe broadcasters who use public airwaves should use them in a fair and reasonable way in the public interest, and I believe the FCC should be able to enforce this. If the DeMint amendment is passed and if it became law, if you wanted to enforce the fact that on Saturday morning, when a lot of kids are watching television, the local television station is running a gory movie or one that is on the edge when it comes to sexual content, it would be hard, if not impossible, to do it. I am sure that is not the Senator's intent, but that paragraph was very poorly written, and that is why I change it.

   Now, there is also the suggestion by the Senator from South Carolina that if we encourage diversity of media ownership, somehow that is communistic. From my point of view, it is not. Diversity of ownership opens the public airwaves to a variety of different owners. I am not saying here--and no one is suggesting--that the law for the Federal Communications Commission says you can give this license to a Republican and this one to a Democrat or

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this one to a liberal and this one to a conservative. When I talk about diversity of media ownership, it relates primarily to gender and race and other characteristics of that nature. We don't mandate it, even though you would think we did when you hear Senator DeMint read from my amendment. What we say is the Commission shall take actions to encourage and promote diversity in communications media ownership. I don't think that is a mandate to give licenses to any one group; it just says ``take actions to promote and encourage,'' something that is already in the law.

   I might say to the Senator, section 307B of the Communications Act--and I hope you will have your staff look at it--requires that the FCC ensure that license ownership be spread among diverse communities. It is there already. It is there already. This enslavement of socialism, in the words of the Senator from South Carolina, is already there. I don't think this is socialistic, communistic or unconstitutional. It is in the law. So to say we are going to promote what the law already says is hardly a denial of basic constitutional freedoms. Second, the Communications Act requires the FCC to eliminate market entry barriers for small businesses to increase the diversity of media voices. That is section 257, which I hope your staff will look at too.

   To argue that what I am putting in here is a dramatic change in the law or is going to somehow muzzle Rush Limbaugh is not the case. What we are suggesting is, it is best that we follow the guidelines already in the law to promote and encourage diversity in media ownership. Even with cable, satellite, and Internet, broadcast TV and radio, there are still important ways we learn about what is going on in our communities and in our country.

   The Senator from South Carolina went on to say this amendment would affect the Internet and blogs. I have to remind the Senator they are not licensed. They don't have FCC licenses. They are not affected by this debate. You can start a blog tomorrow, I can, too, and I don't have to go to the FCC for approval. They certainly cannot monitor that blog to determine whether it is in the public interest. That is not the law. The Senator is on this rampage and, yet, when you look at the facts, they do not apply to the Internet or blogs.

   We should be concerned, however, that the policies of the last decade have led to bigger and more consolidated media outlets controlling more of the stations and more of the content. As a result of these policies today, women and minorities are less likely to own media stations, even though the existing law says that is a goal when it comes to licensure. Nationwide, women own just 5 percent of all broadcast TV stations. Racial or ethnic minorities own just 3.3 percent. In Chicago, the city I am proud to represent--diverse and vibrant with many significant minority communities--there is only one commercial TV station owned by a racial or ethnic minority. The numbers are almost as dismal in radio. Nationwide, women own just 6 percent of broadcast stations; minorities, 7.7 percent. In Chicago, only four radio stations are owned by minorities. That is about 5 percent of the radio stations in Chicago, less than the national average.

   The content of the media should reflect the diversity of America. These statistics show this is not currently the case. The law says that should be our goal. The existing law says that should be our goal. I restate the existing law, and the Senator from South Carolina calls it communism. I don't think it is. I think it is still a worthy goal so that there is diversity in ownership, diversity in stations. I am acknowledging the obvious.

   I am acknowledging the obvious: We are no longer in the world of three television networks; we are in a world where we have many different choices. I ask that we reaffirm diversity and media ownership so there will be choices. I hope the Senator from South Carolina cannot argue that we should not have choices, that we cannot turn the dial to our favorite stations, or punch the remote control to reach those stations. I think that as long as America has those choices, it serves the original goal of letting us hear different sides of the story and doesn't reimpose the fairness doctrine, which none of us are asking for.

   We need to make the media more accessible to all voices in America. Isn't that what we are all about in this country? Don't we basically say we trust the people of this country to hear both sides of the story and make up their own minds? We sure do. We give them a right to vote. I guess that is the most instructive delegation of authority you can give to a person: you get to pick your leadership based on your opinion.

   All I am asking is that we encourage diversity of media ownership so there are more options, more opinions being shared, and Americans can choose the ones they want. I will repeat so my friend from South Carolina understands clearly, I do not favor the reinstatement of the fairness doctrine. The world has changed. The world of media and technology has changed. I believe Americans are entitled to hear different points of view, and that is why I restate the existing law--and I have given citations for both sections of the Communications Act--which is that we need to have more diversity in media ownership in America. I have not proposed taking away a license from anybody or giving one to anybody. Setting this as a goal is as American as apple pie and has nothing to do with communism or Marxism.

   I say to the Senator I was careful in writing this amendment, so I included a section very similar to his section (2) but narrowing it to the issue of fairness. I say--and this is so short that I will read parts:

   The Commission shall take actions to encourage and promote diversity in communication ownership and ensure that broadcast station licenses are used in the public interest.

   That is so there is diversity in ownership and we protect kids from sex and violence. If the Senator thinks that is communism, I disagree with him.

   Then I say:

   Nothing in section 303A--

   Which is what we are talking about in this amendment--

   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.

   I protect what I think was the intent of his amendment to prohibit the reinstitution of the fairness doctrine, which nobody has suggested, but to make it clear that is as far as we go. We are not eliminating the requirement of broadcasting in the public interest for obvious reasons: We want to protect kids; we want to protect families; we want to keep sex and violence away from kids; and make sure there is local news and weather so people can turn on the TV stations and learn about it.

   All of these things, from my point of view, are constructive, and I hope we all agree. The Senator from South Carolina has said that old DURBIN will argue for the fairness doctrine. Let's correct the record. I am not doing that. The fairness doctrine, in 2009, doesn't make sense. It might have made sense in 1948. We should not reinstitute that, but let's not give up on fairness. Let's make sure American viewers of television and listeners of radio have choices. Making those choices can form an opinion that leads to their expression of points of view and their votes. There is nothing wrong with that.

   For the people who want to take a license and use the airwaves, there are basic rules. We don't want you to put gory movies and sex on television during early morning hours on a Saturday when kids are watching. We want you to be careful in your content so you don't do something that is abusive of your use of our public airwaves.

   I yield the floor.

   The PRESIDING OFFICER. The Senator from South Carolina is recognized.

 Mr. DeMINT. Madam President, I always enjoy a good debate with the Senator from Illinois. He is certainly good at what he does and, in this case, that is confusing facts. The good news for us and all Americans is, this afternoon, on radio talk shows all across the country, they can find out what is in both of these amendments and what it really means. They are not going to hear it here today. There have been a lot of distortions but interesting admissions.

   Certainly, the Senator from Illinois made it very clear that he should be a part of determining what is fair and balanced and how we should determine

what is both sides. He mentioned there are 14,000 radio stations. What he does with his amendment is he orders ``shall take action to encourage and promote diversity and communication media ownership.'' He wants our FCC to monitor 14,000 radio stations to decide if their ownership is diverse. He said it doesn't apply to the Internet, but we do regulate the Internet. We regulate everything in America, folks--everything that a Federal dollar touches.

   Believe me, this language is not just about radio stations; it is about doing the impossible, and that is to centrally manage the ownership of radio and other communications in this country. It goes back to his original opinion that, yes, he believes there should be fair and balanced perspective presented in the media. But what he believes--and what many on his side believe--is that fairness should be determined by those of us in Government rather than the listeners and viewers who tune into that radio or the TV station or go to that Web site.

   It is not for us to determine what is fair and balanced. His distortion about my amendment and what it does is exactly wrong. We do not address or change in any way the requirements of radio stations to act in the public interest. The nonsense about children's programming and indecency has nothing to do with this. It is another section in the law. I don't affect that in any way.

   What this is about is, saying to your face, America, that they are not for reinstating the censorship of radio, while at the same time introducing an amendment that would allow us to go in and make our judgment, our opinion, about what is diverse ownership of a radio station.

   Let me read again what this provision in my amendment addresses. He says it takes away the public interest clause. It has nothing to do with that. But it prohibits this backdoor approach to getting back to the principles of the fairness doctrine by saying broadcasters do not have to meet programming quotas and guidelines. In other words, we can't decide how many opinions they have to offer and what the guidelines for those opinions are. It is not for us to say. They have to fulfill their public interest obligations. We don't change that. But this clause would keep the good Senator from Illinois and those on his side who want to censor radio from allowing the FCC to go in and set some kind of quotas on how often, how they need to state their opinions, and the guidelines for that. It creates a license for us to go in and determine what opinions, how many opinions, and basically it is the fairness doctrine through the back door.

   I will restate that this Broadcasters Freedom Act protects the constitutional rights of freedom of speech and freedom of the press. It does nothing to dislodge or change the requirement that public stations--radio or whatever communications--meet the current law requirements to act in the public good. But it does keep us, as a government, from setting quotas and guidelines of what opinions can be expressed and how often they can be expressed.

   Mr. LIEBERMAN. Will the Senator yield for a question?

   Mr. DeMINT. Yes.

   Mr. LIEBERMAN. On that last point, am I correct in reaching the conclusion--and that second clause is prohibiting any similar requirement that broadcasters meet programming quotas or guidelines for issues of public importance--that you do not intend to affect or dislodge in any way existing FCC laws or guidelines with regard to, for instance, decency standards, language, or sexually loaded content, or violent content that currently prevails?

   Mr. DeMINT. The Senator is right. We have legal opinions on that, and it doesn't overrule any existing commission regulations. We asked the broadcasters' legal counsel, and this is intended to narrow this fairness doctrine backdoor approach of controlling what people say by establishing quotas and guidelines about how that is done. I thank the Senator for that question.

   We have probably talked enough about this subject. I reserve the remainder of my time. I yield the floor and suggest the absence of a quorum.

   The PRESIDING OFFICER. The clerk will call the roll.

   The legislative clerk proceeded to call the roll.

   AMENDMENT NO. 591

   Mr. DURBIN. Mr. President, I ask unanimous consent that the pending amendment be set aside and that the clerk report the amendment which I have pending at the desk.

   The clerk will report the amendment.

   The assistant legislative clerk read as follows:

   The Senator from Illinois [Mr. DURBIN] proposes an amendment numbered 591.

   Mr. DURBIN. I ask unanimous consent that the amendment be considered as read.

   The PRESIDING OFFICER. Without objection, it is so ordered.

   The amendment is as follows:

(Purpose: To encourage and promote diversity in communication media ownership, and to ensure that the public airwaves are used in the public interest)

    At the end of the bill add the following:

   SEC. 9. FCC AUTHORITIES.

    (a) Clarification of General Powers.--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. 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 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.

   Mr. DURBIN. Mr. President, I suggest the absence of a quorum.

   The PRESIDING OFFICER. The clerk will call the roll.

   The assistant legislative clerk proceeded to call the roll.

   Mr. FEINGOLD. Mr. President, the fairness doctrine was repealed by the FCC over 20 years ago. I do not support its reinstatement because I don't like the idea of the government micromanaging speech. I also have serious questions about whether it would be constitutional to reinstate the fairness doctrine, given the wide variety of media outlets available for the expression of different points of view. That is why I voted for the amendment offered by Senator DeMint banning the fairness doctrine.

   Unfortunately, that amendment was drafted so broadly that it could have also restricted the FCC from encouraging localism and ensuring that broadcasters are living up to their public interest responsibilities. These are responsibilities that broadcasters agree to when they are provided a segment of spectrum--a valuable piece of public property--and they should not be undone. I supported the Durbin amendment to clarify that public interest obligations remain, while ensuring that the fairness doctrine does not return.

   Mr. DORGAN. My vote on the DeMint amendment, No. 573, should not be construed as a vote in favor of restoring the fairness doctrine. I do not favor restoring the fairness doctrine.

   However, the DeMint amendment went much further than legislating on the fairness doctrine. His amendment would have prohibited the FCC from establishing any program guidelines at all no matter how reasonable. For example, his amendment would have prohibited the FCC from establishing guidelines for children's programs or guidelines to prohibit violent programming during a family viewing hour in the evening. These are just two examples that the DeMint amendment would have prohibited.

   To be clear, I support the provision in the DeMint amendment that would have precluded the restoration of the fairness doctrine. My view is that the fairness doctrine is not appropriate for today's market. I do support the creation of reasonable public interest standards that attach to a broadcast license dealing with localism issues and community responsibility. But, I could not vote for such a broad amendment that would have stripped from FCC reasonable and appropriate regulation of the type described above.

   AMENDMENT NO. 591

   The PRESIDING OFFICER (Mr. Bennet). The Senator from Illinois.

   Mr. DURBIN. It is my understanding the vote is scheduled for 2 o'clock.

   The PRESIDING OFFICER. The Senator is correct.

   Mr. DURBIN. I ask unanimous consent that it be moved until 2 minutes after 2 and I be allowed to speak and there be response.

   The PRESIDING OFFICER. Without objection, it is so ordered.

   Mr. DURBIN. Mr. President, before us is a debate on the fairness doctrine. Sixty years ago, the Federal Communications Commission said radio and TV stations had to tell Americans both sides of the story. In those days, television was just starting. In the 1950s,

three networks emerged and the fairness doctrine applied for decades.

   Then, in 1987, the FCC canceled the fairness doctrine, and there has been a debate ever since whether we should return to it.

   Well, if you want to argue whether Americans should hear both sides of every story to make up their minds, I think it is a pretty basic concept. But while we were debating whether to return to the fairness doctrine, media and technology changed dramatically. It is no longer three networks, it is 200 channels, cable channels, and all sorts of opportunities for information.

   So the fairness doctrine in its day was the right thing for the right reason. Today it is not. Senator DeMint wants to eliminate it--make sure no one brings it back. No one is planning on bringing it back. There is no problem with that. But he included some language in his amendment that goes too far. It takes away the authority of the Federal Communications Commission to basically determine that radio and TV stations use their Federal licenses in the public interest. What does that mean?

   It means the FCC can tell a television station it cannot put on a violent movie early on Saturday morning when kids are tuning in to cartoons. It cannot put on something with sexual tones to it at a time when children and family are watching. There are limitations because it is using America's airwaves to make money. Use them responsibly in the public interest. I think it was inadvertent, but, in fact, he removed that. He removed that authority of the FCC.

   My amendment says two things. It is the first amendment we will vote on. First, the existing statutory requirement for diversity in media ownership is going to be encouraged so we have more and more different people applying for licenses for radio and TV stations. There is nothing wrong with that, as I see it. It is already in the law. Secondly, do not take away the FCC's power to say to public licensees of television and radio: Operate in the public interest. Make sure you have local news and weather. Make sure you do not have sexual content and violence on children's shows--basic things that are common sense.

   I do not think the Senator from South Carolina wanted to change that. He did inadvertently. My amendment cleans it up. If the Durbin amendment is adopted, I encourage people to support both the Durbin amendment and the DeMint amendment. If my amendment is not adopted, I hope they will reconsider their support for Senator DeMint's amendment.

   The PRESIDING OFFICER. The Senator's time has expired.

   The Republican leader is recognized.

   Mr. McCONNELL. Mr. President, I am going to proceed for a few moments on leader time.

   The PRESIDING OFFICER. The Senator may proceed.

   Mr. McCONNELL. Mr. President, in recent months, a number of our colleagues on the other side of the aisle have expressed support for reinstating the so-called fairness doctrine. But let's be honest. The fairness doctrine was anything but fair. It amounted to Government control over political speech, and in the end it actually resulted in less, not more, political discourse over the airwaves because broadcasters did not want to deal with all of its redtape. That is precisely why the Federal Communications Commission repealed it back in 1987, and why we must keep it from being reinstated now.

   The reality behind this so-called fairness doctrine is that some of my friends on the other side do not like what they are hearing on the radio these days. So instead of addressing the criticisms head on, they want to silence them.

   Americans will not stand for that, and we will not let it happen. Government is not the speech police, and I will not support--and I am confident the American people do not support--efforts to restrict free speech.

   The Founding Fathers enshrined the right to free speech in the very first amendment to the Constitution because they knew it was fundamental--that it was the one right without which the others would lose their force. They also knew future generations would have to continue to defend that right from those who viewed it as an obstacle to their goals.

   We should adopt the DeMint amendment to kill the so-called fairness doctrine once and for all.

   I yield the floor.

   The PRESIDING OFFICER. The question is on agreeing to amendment No. 591 offered by the Senator from Illinois.

   Mr. DURBIN. Mr. President, I ask for the yeas and nays.

   The PRESIDING OFFICER. Is there a sufficient second?

   There appears to be a sufficient second.

   The clerk will call the roll.

   The assistant legislative clerk called the roll.

   Mr. DURBIN. I announce that the Senator from Massachusetts (Mr. KENNEDY) is necessarily absent.

   The PRESIDING OFFICER. Are there any other Senators in the Chamber desiring to vote?

   The result was announced--yeas 57, nays 41
AMENDMENT NO. 573

   The PRESIDING OFFICER. There will now be 2 minutes of debate, equally divided, before a vote in relation to amendment No. 573 offered by the Senator from South Carolina. Who yields time?

   The Senator from South Carolina.

   Mr. DeMINT. Mr. President, if I could have my colleagues' attention for just a moment, I think this should be an easy vote for all of us. President Obama has expressed his opposition to the fairness doctrine. Senator Durbin has expressed his opposition to the fairness doctrine. This amendment, the Broadcasters Freedom Act, prohibits the Federal Communications Commission from implementing all or part of the fairness doctrine, which has been repealed.

   I wish to clear up one misunderstanding that has been stated on the other side. This amendment does not affect the public interest requirements of broadcast radio. It does not change children's programming or opposition to indecency. What it does is, it prohibits quotas and guidelines on programming, which is another way to prohibit the implementation of the fairness doctrine.

   While the fairness doctrine is a direct and obvious method to burden and chill broadcaster speech, there are also several indirect ways that are not as well-known, but no less available to proponents of limiting the freedom of our national media.

   Last year's FCC Localism Notice of Proposed Rulemaking--MB Docket No. 04-233, released January 24, 2008, ``Localism Notice''--contained a number of ``tentative conclusions'' that, if adopted, would result in greater regulation of broadcaster speech.

   First, the FCC proposed to reintroduce license renewal processing ``guidelines'' that would measure specific categories of speech aired by broadcasters.

The guidelines would pressure broadcasters to air Commission-specified amounts of programming in Commission-defined program categories. Although the Localism Notice does not specify which categories broadcasters would be measured by, political programming, public affairs programming, and local news are mentioned as possible types of programming to be regulated. Broadcasters that do not meet the thresholds to the Commission's satisfaction would risk losing their license to broadcast.

   While ostensibly the renewal processing guidelines are meant to increase the total amount of local programming, the adjective ``local'' is ill-defined in this proceeding. It could be expanded to include an almost limitless array of speech and could shift with the political winds.

   My amendment, DeMint No. 573, would not eliminate the FCC's power to develop license renewal processing guidelines completely, but only its authority to develop processing guidelines that mimic its past authority under the fairness doctrine, hence the language which limits it to quotas or guidelines for issues of public importance.

   The second way in which the Commission has proposed to indirectly regulate broadcaster speech is by return of ascertainment requirements, which would mandate that every broadcaster develop and meet with an ``advisory board'' made up of community groups and local officials that would ``inform the stations' programming decisions.'' This proposal would make broadcasters very vulnerable to pressure or even harassment by groups that do not approve of their programming.

   A similar ascertainment requirement was eliminated in the early 1980s after the Commission determined that the rule did more to create bureaucratic burdens than it did to improve broadcasting.

   Like the processing guidelines, the ascertainment requirement could become a factor for broadcasters at license renewal. Groups that feel a local broadcaster did not listen to their suggestions through the advisory board--suggestions to, for example, air more programming that addresses whatever social or political issue is of concern to these groups--could challenge the broadcasters' license and argue that the broadcaster ignored the ``needs and interests'' of their local community. Talk radio would be particularly vulnerable to this type of harassment, as would religious broadcasters.

   Again, my amendment, DeMint No. 573, would not eliminate the Commission's authority to mandate ascertainment completely, but only its authority to mandate that broadcasters seek out opposing viewpoints on ``issues of public importance.''

   I encourage all of my colleagues to support this amendment.

   The PRESIDING OFFICER. Who yields time in opposition?

   Mr. LIEBERMAN. Mr. President, I yield back the time on our side.

   Mr. DeMINT. Mr. President, I ask for the yeas and nays.

   The PRESIDING OFFICER. Is there a sufficient second? There is a sufficient second. The question is on agreeing to the amendment.

   The clerk will call the roll.

   The assistant legislative clerk called the roll.

   Mr. DURBIN. I announce that the Senator from Massachusetts (Mr. Kennedy) is necessarily absent.

   The PRESIDING OFFICER (Mr. Merkley). Are there any other Senators in the Chamber desiring to vote?

   The result was announced--yeas 87, nays 11

 

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