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Those Who Hate The Fairness Doctrine Should Love Net Neutrality

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Nothing gets the right wing all riled up like a good phony fight. Think "death panels." Think of the coming "War on Christmas." Think of all the bile directed toward the extinct Fairness Doctrine, which the Federal Communications Commission (FCC) repealed in 1987.

The Obama administration has said it won't bring it back, but that didn't stop conservative legislators from introducing, and prodding their colleagues in Congress to pass, legislation to stop the Fairness Doctrine from being re-instituted -- and then claiming victory.

What would be even more gratifying than to ban an extinct policy would be if the people railing against it had a better idea of that policy against which they campaigned. Because if they truly understood the Fairness Doctrine, then they wouldn't go around using it as a justification for opposing Net Neutrality -- the idea that the companies which run the telecom networks to your house shouldn't play favorites. The two ideas are polar opposites.

The Fairness Doctrine is one of those hot-button issues sure to raise right-wing temperatures, from the most prominent broadcasting bloviator to the most rabid obscure web site. For the conservatives, the Fairness Doctrine is a government plot to curb right-wing radio. Glenn Beck told his audience that, "They are going to do everything they can to silence our voices." "They" of course are the Obama administration and Congressional allies, who have said they won't bring it back. Sen. Jim DeMint (R-SC), who introduced the legislation to ban the Fairness Doctrine, said, "Democrats want to impose an unfair doctrine that destroys talk radio and silences the voices of millions of Americans who disagree with their vision for America." As a general matter, it's a shame that "fairness" has become such a pejorative expression to conservatives and it's too bad that in their paranoia they view any discussion of bringing the views of progressives or liberals to the mass media as a plot to shut them up.

FCC Commissioner Robert McDowell was one of the first to suggest that Net Neutrality is a latter-day version of the Fairness Doctrine, thus combining one flash point with another in a speech in January when he said the Fairness Doctrine "could be intertwined into other communications policy initiatives that are more certain to move through the system, such as localism, diversity or net neutrality."

Rep. Marsha Blackburn (R-TN) picked up the theme more recently. Kim Hart reported in The Hill on Blackburn's October 20 speech in which Blackburn said, "Net neutrality, as I see it, is the fairness doctrine for the Internet."

The Fairness Doctrine was an affirmative obligation given to broadcasters by the FCC. As then-U.S. Supreme Court Justice Byron White wrote in the 1969 Red Lion opinion upholding the Doctrine, "The Federal Communications Commission has for many years imposed on radio and television broadcasters the requirement that discussion of public issues be presented on broadcast stations, and that each side of those issues must be given fair coverage."

In its original 1949 order setting out the Fairness Doctrine, the FCC said that broadcasters needed to play a "conscious and positive role in bringing about balanced presentation of the opposing viewpoints."

Net Neutrality is different. Perhaps the best legal expression of Net Neutrality so far was the condition the Commission imposed in its 2007 order approving the AT&T takeover of BellSouth. The FCC said the new giant company had agreed "not to provide or to sell to Internet content, application, or service providers, including those affiliated with AT&T/BellSouth, any service that privileges, degrades or prioritizes any packet transmitted over AT&T/BellSouth's wireline broadband Internet access service based on its source, ownership or destination."

Another version is the legislation (HR 3458) introduced by Reps. Edward Markey (D-MA) and Anna Eshoo (D-CA). Their bill provides, in part that Internet Service Providers (ISPs) shall "not block, interfere with, discriminate against, impair, or degrade the ability of any person to use an Internet access service to access, use, send, post, receive, or offer any lawful content, application, or service through the Internet." ISPs also could not "provide or sell to any content, application, or service provider, including any affiliate provider or joint venture, any offering that prioritizes traffic over that of other such providers on an Internet access service."

Net Neutrality, then, is the polar opposite of the Fairness Doctrine. One, the Fairness Doctrine, requires active participation by a broadcaster in determining content. The other, Net Neutrality, requires the service provider to stay out of the way. Is that a "government mandate?" as some conservatives claim? Perhaps. But it's a mandate to let traffic flow without attempting to judge the worth of one person's traffic over another. They have no relation to one another. People who opposed, and oppose, the Fairness Doctrine should support Net Neutrality.

That said, however, what both ideas have in common is the notion, which goes back to the beginnings of our telecommunications law, that the interests of the public trump those of businesses or government. The idea that clear in the earliest days of broadcasting, just as it should be clear today. Herbert Hoover said in 1925 that there has to be a "public benefit" to broadcasting. U.S. Supreme Court Justice White in the Red Lion opinion also, said: "It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount."

That's why when DeMint and his colleagues had it backwards when their legislation to prohibit the Fairness Doctrine is called the "Broadcaster Freedom Act of 2009." Under our system, the freedom of the public trumps the freedom of broadcasters. In the Internet age, we can do nothing less. The freedom of the public to hear what it wants to hear, to see what it wants to see, and to create what it wants to create should not be subject to the business plans of the telephone and cable companies. That's what our traditions and laws demand; that's what the public deserves. That's why Net Neutrality is so important.