The Fairness Doctrine is Alive and Well in Venezuela (I)

Venezuela's Law of Social Responsibility in Radio and Television seemingly parallels the U.S. Fairness Doctrine.

Part I. Overview (*)

The Venezuelan National Assembly is presently debating the enactment of the Law of Social Responsibility in Radio and Television (“LSRRT”), which proposes to guarantee public access to media and ensure media broadcasting during children’s viewing hours abides by socially responsible guidelines. The LSRRT was already approved by the National Assembly’s Commission on Science, Technology and Social Communications Media in May 2003[1] and should enter into final debate for passage by Venezuela’s general National Assembly before the end of the 2003 term.[2]

The LSRRT has come under heightened scrutiny and attack by international journalism organizations, including the Committee to Protect Journalists, Reporters Without Borders and watchdog groups such as Human Rights Watch[3], who have been quick to declare the proposed law jeopardizes the vast freedom of expression enjoyed by Venezuelan journalists and citizens alike by attempting to regulate content. Yet the LSRRT does not contain any provisions that endeavor to control the content of programming on private media stations, rather, it proposes to enforce regulations concerning appropriate broadcasts during children’s viewing hours and to support independent media outlets, democratization of radio and television and public access to and participation in communications media.

Despite the outcry by private media outlets in Venezuela and groups such as Human Rights Watch and the Committee to Protect Journalists, many of the provisions and basic ideas behind the LSRRT are familiar to proponents of media reform and those aware of the legal history of communications law in the United States. In fact, the LSRRT seemingly parallels one of the most important communications policies developed during the past century in the U.S.: the Fairness Doctrine.

The obligation of broadcasters to air diverse views on public issues was first declared a policy of the Federal Radio Commission (“FRC”) in 1929, in Great Lakes Broadcasting.[4] The FRC, which predated the Federal Communications Commission, reasoned that because broadcast frequencies were limited, broadcasters were subject to a standard of “public interest, convenience and necessity” based on a duty to the listening public.[5] After two decades of confusion about the application of this fairness principle, in 1949, the Federal Communications Commission (“FCC”) established the twofold duty of broadcasters that became known as the Fairness Doctrine. The FCC explained that, “the needs and interest of the general public for new and diverse opinions could only be satisfied by making available to the public varying and conflicting views held by responsible members of the community.”[6] As part of the Fairness Doctrine, the FCC required broadcasters (1) to devote a reasonable percentage of airtime to the discussion of public issues and (2) to present contrasting views in the case of controversial issues of public importance.[7]

The Fairness Doctrine, widely applauded by media reformists, judges and scholars yet highly criticized by broadcasters and First Amendment purists, imposed a general obligation on broadcasters to ensure that diverse ideas were presented. Broadcasters reserved the right to determine which views or issues were to be presented and by whom, yet they had to ensure a balanced account was aired. In 1969, the U.S. Supreme Court declared in Red Lion Broadcasting Co. v. FCC[8], that key provisions of the Fairness Doctrine were constitutional. In that landmark decision, the U.S. Supreme Court held that the Fairness Doctrine served to enhance, rather than abridge the freedoms of speech and press protected by the First Amendment. They further proclaimed that, “It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.[9]” This language has characterized the foundations of the media reform movement today, which seeks a more diversified, accessible communications media.

In 1987, after a series of federal cases slowly chipped away at the Fairness Doctrine[10], the Reagan-era FCC implemented its deregulatory philosophy by striking down key provisions, claiming they conflicted with the public interest and the First Amendment. Specifically, the Commission argued that its intrusion into the editorial judgments of broadcasters was no longer necessary to ensure the airing of diverse views on important public issues because there had been an “explosive growth” in the number and variety of information outlets since Red Lion upheld the Fairness Doctrine in 1969.

Yet the Supreme Court of the United States has not ventured to overturn its landmark decision in Red Lion, which remains good law today. Additionally, the FCC has maintained Fairness Doctrine-related policies, including the personal attack and political editorializing rules, and the Zapple Rule, which holds that supporters of opposing candidates must be given the same amount of airtime during election campaigns.[11] These policies echo the general view that operations of broadcasters should be carried out in the public interest. The FCC sets strict regulations governing children’s programming and viewing hours, as well as guidelines for the broadcasts of political viewpoints and issues.

Venezuela’s current debate over the LSRRT is decades old in the United States. While the FCC has recently leaned toward deregulation, these underlying concepts of fairness, public access and equal airtime continue to prevail in U.S. policy and lawmaking. Today, it is the broadcast media that serve to disseminate ideas to the populace. With the growth of media conglomerates owned by the influential and profit-oriented, these broadcasters influence the public in a manner inconceivable to the authors of the U.S. Constitution.[12] Nowadays, instead of promoting a diversity of viewpoints, broadcast media merely perpetuate a monopoly of ideas from the political and sociological mainstream. In the case of Venezuela, media is used to advance political agendas, often at the expense of ethics and constitutional order.[13]

The U.S. Congress, the highest courts of the land and the Federal Communications Commission have recognized the need to mandate citizen access to broadcast media in order to maintain a diverse marketplace of ideas. Contrary to declarations made by Human Rights Watch and private media owners within Venezuela, the LSRRT will create the balanced, diversified, accessible media so desperately needed in that nation. It will enhance and ensure freedom of expression for all Venezuelans, and not just media owners. Media reformists in the United States should be supporting this resurgence of the treasured Fairness Doctrine and movement towards democratization of media in Venezuela, especially in light of the FCC’s upsurge of deregulation and media concentration.

(*) This is the first in a series of articles about the media’s pivotal role in Venezuelan politics and the delicate balance between freedom of the press and freedom of expression. The author is a Venezuelan/American practitioner of immigration and international human rights law, currently focusing on issues concerning Venezuela.

[1] Proyecto de Ley de Responsbilidad Social en Radio y Televisión, Aprobada por la Comisión de Ciencia, Tecnología y Medios de Comunicación Social de la Asamblea Nacional, Mayo 2003, publicado por CONATEL (Comisión Nacional de Telecomunicaciones, Venezuela).

[2] Proposed laws are first debated in the National Assembly, then suggestions, comments and critiques made in the general session by all assembly members are thoroughly analyzed by the commission overseeing the particular issue, which then modifies the draft law, making appropriate changes, issues its approval and returns it to the National Assembly for a final debate. The LSRRT is awaiting this final debate in order to secure its enactment.

[3] Human Rights Watch takes issue with several articles in the proposed LSRRT, which it believes would infringe upon basic norms of democracy. See “Venezuela: Limit State Control of Media, Letter to President Chávez”, July 1, 2003. Human Rights Watch’s Executive Director of the Americas, José Miguel Vivanco recently ratified their position that “Venezuela enjoys the amplest margins of freedom expression. Also, in Venezuela democracy reigns and freedom of expression is exerted in the fullest terms.” (see http://www.venezuelanalysis.com/news.php?newsno=1077).

[4] Great Lakes Broadcasting, 3 F.R.C. Ann. Rep. 34 (1929).

[5] Id. at 33. The FRC further stated: “[T]he emphasis is on the listening public, not on the sender of the message . . . . In so far as a program consists of discussion of public questions, public interest requires ample play for the free and fair competition of opposing views, and the commission believes that the principle applies not only to addresses by political candidates but to all discussions of issues of importance to the public. “

[6] In re Editorializing by Broadcast Licensees, 13 F.C.C. 1246, 25 P&F Rad. Reg. 1901 (1949).

[7] Fairness Doctrine and Public Interest Standards; Handling of Public Issues (The Fairness Report), 48 F.C.C.2d 1, 30 P&F Rad. Reg. 2d 1261 (1974).

[8] Red Lion Broadcasting v. FCC, 395 U.S. 367 (1969).

[9] Id at 390.

[10] See Telecommunications Research and Action Center v. FCC (DC Circuit), Meredith Corp. v FCC (DC Circuit), FCC 1985 Fairness Doctrine Report.

[11] Syracuse Peace Council, 2 F.C.C.R. 5043, 5063.

[12] “The Constitution could have hardly envisioned, on the part of the press, a power, a scale and, above all, a unity, which is in part, but no means entirely, a result of technological advance,” Renata Adler RECKLESS DISREGARD 19 (1986).

[13] See Naomi Klein, “Venezuela’s Media Coup”, The Nation, February 2003.