CONGRESS SET TO BATTLE FCC OVER FAIRNESS RULING

The Federal Communications Commission’s decision last week to abolish radio and television’s 38-year-old fairness doctrine has not necessarily killed the controversial rule.

Rather, the Ronald Reagan-appointed panel’s 4-0 vote appears to have thrown a gauntlet at the steps of a Democrat-controlled Congress that wants to make the fairness doctrine the law of the land.

So get ready for a clash of wills that is almost certain to come when Congress returns from its summer recess in September. Congressional leaders are searching the Administration’s fall legislative agenda for a veto-proof bill that can carry a fairness doctrine amendment.

“I don’t like it (the FCC’s action),” Sen. Ernest F. Hollings (D-S.C.), chairman of the Senate Commerce Committee, said when he learned of the FCC’s decision. “It’s a total disregard for the guidelines that we in the Congress set out. They don’t seem to care. . . . Generally they’re irresponsible.”

Before last Tuesday’s FCC vote, Congress had, figuratively, warned the regulatory agency to keep its hands off the policy that required radio and TV stations to cover controversial issues of public importance and to provide reasonable opportunities for all sides to air their views.

Instead, the FCC took its cue from U.S. Supreme Court nominee Robert H. Bork, who 11 months ago wrote a 2-1 decision for the U.S. Court of Appeals for the District of Columbia declaring that the fairness doctrine was not law and could be abolished by the commission without congressional action. The case was brought by a Syracuse, N.Y., TV station that, the FCC said, violated the fairness doctrine by not balancing paid pro-nuclear power advertisements with anti-nuclear messages.

(Bork-nomination handicappers take note: His opinion was the case of a restrained judiciary encouraging regulatory activism--in effect inviting the FCC to assume the judiciary’s traditional role by declaring the doctrine invalid because it impinged on the First Amendment rights of broadcasters.)

But most members of the House and Senate--who sometimes can be as attuned to the public’s likes and dislikes as a Nielsen Co. People Meter--seem to like the fairness rule.

It has been invoked over the years by the government in forcing blatantly racist and anti-Semitic broadcasters off the air, by public and corporate interests imploring broadcasters to expose the public to different positions on social and political issues, by individuals demanding an opportunity to respond to on-air personal attacks, by the Central Intelligence Agency in denying a network news report and, even, by health organizations countering the sweetness and light of cigarette advertising.

In California and elsewhere, the fairness doctrine has been instrumental in expanding the televised debate on ballot referendums--including recent toxic-waste and glass-bottle initiatives--that pit one well-organized and well-funded side against a diverse and less well-heeled opposition.

The impending fight over the future of the fairness doctrine promises to extend beyond the hearing rooms and hallways of Congress--back to the courts if the Syracuse case is appealed by the anti-nuclear groups and, probably, back to the White House too. That, after all, was where Reagan, a former broadcaster, vetoed House- and Senate-passed fairness doctrine legislation earlier this summer.

After smarting from that defeat and the FCC’s vote, Congress’ fairness-doctrine advocates are looking for a bill that the President very much wants and to which they can attach a fairness-doctrine rider.

None of the principals is revealing his choice, but a good candidate, some long-time Hill watchers speculate, appears to be the Administration’s announced desire for as much as $150 million in new aid to the Nicaraguan contras .

“It just depends on how angry the Hill is going to be,” said David Hankin, a former FCC fairness-doctrine administrator who is now with the Los Angeles City Department of Telecommunications. “It’s the Hill’s move right now.”

“The Senate will persist in trying to codify” the fairness doctrine, said the upper house’s top staff communications specialist, Thomas W. Cohen.

It’s bad tactics to let the White House in on plans ahead of time, Cohen said, but a fairness-doctrine amendment is “a priority” with his bosses on the Commerce Committee and its subcommittee on communications, which, as it happens, is chaired by the Iran-contra hearings’ Sen. Daniel K. Inouye (D-Hawaii).

Will the Senate attach the fairness doctrine as a rider to a contra-funding bill?

“Who knows?” Cohen said. “Let’s just wait and see.”

Cohen’s counterpart in the House is equally coy about tactics and equally insistent about strategy.

“We will codify the fairness doctrine,” said Larry Irving, a staff aide on the telecommunications subcommittee of the House Energy and Commerce Committee. “It’s only a matter of time, only a question of whether a month or two months.”

Although the congressional leadership has been unable to muster the necessary votes to override Reagan’s June 20 veto, the legislation codifying the doctrine passed both houses easily--302-102 in the House and 59-31 in the Senate.

Likewise, the fairness doctrine itself enjoys wide public support that extends across the political spectrum--from anti-abortion activist Phyllis Schlafly and media hounddog Reed Irvine on the right to consumer activist Ralph Nader and the American Civil Liberties Union on the left.

With that kind of support for legislation and an influential but politically less powerful journalism coalition led by the National Assn. of Broadcasters, the Radio-Television News Directors Assn. and the American Newspaper Publishers Assn. on the other side, some veteran Washington watchers are saying the FCC’s move last week amounted to little more than, in one lawyer’s words, “a lot of wheel spinning.”

“Everything that happened last week will be moot,” said Washington public-interest communications attorney Andrew Schwartzman. “Congress said (to the FCC before its vote), ‘Don’t do this. Don’t waste our time.’ ”

Nonetheless, he added, the four members of the FCC decided to “go through the motions and pat themselves on the back” with last Tuesday’s unanimous vote.

Less cynical was Los Angeles and former Washington communications attorney Charles M. Firestone.

He sensed no grandstanding on the part of the FCC. Quite the opposite. Firestone said the members of the commission were “definitely sincere” in their vote to abolish the rule.

“My sense of (FCC Chairman) Dennis Patrick is that he is more attuned to getting along with Congress than (former chairman Mark S.) Fowler was,” Firestone said.

Also attuned to the mood of the Hill were four former FCC chairmen and five commissioners who wrote last week to Congress’ two principal champions of the fairness-doctrine legislation--Sen. Hollings and Rep. John Dingell (D-Mich.), chairman of the House Energy and Commerce Committee.

“The fairness doctrine has served the public well and it should be kept as long as monopolistic licenses are granted by the government,” wrote the former commissioners--including former FCC chairmen Newton (“vast wasteland”) Minow, Charles Ferris, Robert Lee and Rosel Hyde, who presided over the 1949 adoption of the doctrine.

The group called the FCC vote last week a “rash action.”

They said that the vote “undermines the very foundation of the Communications Act of 1934--the public trusteeship concept” that holds that radio and TV stations must perform in the public convenience, interest and necessity because they are licensed to operate on frequencies and channels assigned by the federal government.

That compact has been rewritten in the six-year deregulation of broadcast TV and radio that began with former FCC Chairman Mark Fowler and continues under new chairman Patrick.

They have argued that the tremendous growth in the total video marketplace--satellite TV, cable and videocassettes, in addition to traditional over-the-air TV--has rendered the old public-interest concept obsolete.

The public interest is what the public is interested in, the deregulators say, and the fairness doctrine is one of the last vestiges of government control over a once limited but now abundant video marketplace.

Amid the “multiplicity of broadcast voices available to the public,” the fairness doctrine is not necessary “to assure the public’s access to diverse viewpoints,” said FCC general counsel Diane Killory.

Nor, she said, has the doctrine served the public interest, because it chilled broadcasters’ presumed First Amendment rights and inhibited their efforts to broadcast controversial ideas and viewpoints.

Others disagree.

“During our many years on the commission, we very seldom heard the actual station programmers complain about the doctrine,” said the group of former FCC members. “It did not ‘chill’ Edward R. Murrow from attacking Sen. Joseph McCarthy. Nor do we believe it ever deterred any other serious commentator.”