U.S. Broadcasting Policy
by Val E. Limburg
The policy of the United States Federal Communications Commission
that became known as the "Fairness Doctrine" is an attempt
to ensure that all coverage of controversial issues by a broadcast
station be balanced and fair. The FCC took the view, in 1949,
that station licensees were "public trustees," and as
such had an obligation to afford reasonable opportunity for discussion
of contrasting points of view on controversial issues of public
importance. The Commission later held that stations were also
obligated to actively seek out issues of importance to their community
and air programming that addressed those issues. With the deregulation
sweep of the Reagan Administration during the 1980s, the Commission
dissolved the fairness doctrine.
This doctrine grew out of concern that
because of the large number of applications for radio station
being submitted and the limited number of frequencies available,
broadcasters should make sure they did not use their stations
simply as advocates with a singular perspective. Rather, they
must allow all points of view. That requirement was to be enforced
by FCC mandate.
From the early 1940s, the FCC had established
the "Mayflower Doctrine," which prohibited editorializing
by stations. But that absolute ban softened somewhat by the end
of the decade, allowing editorializing only if other points of
view were aired, balancing that of the station's. During these
years, the FCC had established dicta and case law guiding the
operation of the doctrine.
In ensuing years the FCC ensured that
the doctrine was operational by laying out rules defining such
matters as personal attack and political editorializing (1967).
In 1971 the Commission set requirements for the stations to report,
with their license renewal, efforts to seek out and address issues
of concern to the community. This process became known as "Ascertainment
of Community Needs," and was to be done systematically and
by the station management.
The fairness doctrine ran parallel to
Section 315 of the Communications Act of 1937 which required stations
to offer "equal opportunity" to all legally qualified
political candidates for any office if they had allowed any person
running in that office to use the station. The attempt was to
balance--to force an even handedness. Section 315 exempted news
programs, interviews and documentaries. But the doctrine would
include such efforts. Another major difference should be noted
here: Section 315 was federal law, passed by Congress. The fairness
doctrine was simply FCC policy.
The FCC fairness policy was given great
credence by the 1969 U.S. Supreme Court case of Red Lion Broadcasting
Co., Inc. v. FCC. In that case, a station in Pennsylvania, licensed
by Red Lion Co., had aired a "Christian Crusade" program
wherein an author, Fred J. Cook, was attacked. When Cook requested
time to reply in keeping with the fairness doctrine, the station
refused. Upon appeal to the FCC, the Commission declared that
there was personal attack and the station had failed to meet its
obligation. The station appealed and the case wended its way through
the courts and eventually to the Supreme Court. The court ruled
for the FCC, giving sanction to the fairness doctrine.
The doctrine, nevertheless, disturbed
many journalists, who considered it a violation of First Amendment
rights of free speech/free press which should allow reporters
to make their own decisions about balancing stories. Fairness,
in this view, should not be forced by the FCC. In order to avoid
the requirement to go out and find contrasting viewpoints on every
issue raised in a story, some journalists simply avoided any coverage
of some controversial issues. This "chilling effect"
was just the opposite of what the FCC intended.
By the 1980s, many things had changed.
The "scarcity" argument which dictated the "public
trustee" philosophy of the Commission, was disappearing with
the abundant number of channels available on cable TV. Without
scarcity, or with many other voices in the marketplace of ideas,
there were perhaps fewer compelling reasons to keep the fairness
doctrine. This was also the era of deregulation when the FCC took
on a different attitude about its many rules, seen as an unnecessary
burden by most stations. The new Chairman of the FCC, Mark Fowler,
appointed by President Reagan, publicly avowed to kill to fairness
By 1985, the FCC issued its Fairness Report,
asserting that the doctrine was no longer having its intended
effect, might actually have a "chilling effect" and
might be in violation of the First Amendment. In a 1987 case,
Meredith Corp. v. FCC, the courts declared that the doctrine was
not mandated by Congress and the FCC did not have to continue
to enforce it. The FCC dissolved the doctrine in August of that
However, before the Commission's action,
in the spring of 1987, both houses of Congress voted to put the
fairness doctrine into law--a statutory fairness doctrine which
the FCC would have to enforce, like it or not. But President Reagan,
in keeping with his deregulatory efforts and his long-standing
favor of keeping government out of the affairs of business, vetoed
the legislation. There were insufficient votes to override the
veto. Congressional efforts to make the doctrine into law surfaced
again during the Bush administration. As before, the legislation
was vetoed, this time by Bush.
The fairness doctrine remains just beneath
the surface of concerns over broadcasting and cablecasting, and
some members of congress continue to threaten to pass it into
legislation. Currently, however, there is no required balance
of controversial issues as mandated by the fairness doctrine.
The public relies instead on the judgment of broadcast journalists
and its own reasoning ability to sort out one-sided or distorted
coverage of an issue. Indeed, experience over the past several
years since the demise of the doctrine shows that broadcasters
can and do provide substantial coverage of controversial issues
of public importance in their communities, including contrasting
viewpoints, through news, public affairs, public service, interactive
and special programming.
The doctrine that imposes affirmative
responsibilities on a broadcaster to provide coverage of issues
of public importance that is adequate and fairly reflects differing
viewpoints. In fulfilling its fairness doctrine obligations, a
broadcaster must provide free time for the presentation of opposing
views if a paid sponsor is unavailable and must initiate programming
on public issues if no one else seeks to do so.
Between the 1940s and 1980s, federal regulators attempted to guarantee
that the broadcasting industry would act fairly. The controversial
policy adopted to further that attempt was called the fairness
doctrine. The fairness doctrine was not a statute, but a set of
rules and regulations that imposed controls on the content of
the broadcasting media. It viewed radio and television as not
merely industries but servants of the public interest. Enforced
by the Federal Communications Commission (FCC), the fairness doctrine
had two main tenets: broadcasters had to cover controversial issues,
and they had to carry contrasting viewpoints on such issues. Opponents
of the doctrine, chiefly the media themselves, called it unconstitutional.
Although it survived court challenges, the fairness doctrine was
abolished in 1987 by deregulators in the FCC who deemed it outdated,
misguided, and ultimately unfair. Its demise left responsibility
for fairness entirely to the media.
The fairness doctrine grew out of early regulation of the radio
industry. As the medium of radio expanded in the 1920s, its chaotic
growth caused problems: for one, broadcasters often overlapped
on each other's radio frequencies. In 1927, Congress imposed regulation
with its passage of the Radio Act (47 U.S.C.A. § 81 et seq.).
This landmark law established the Federal Radio Commission (FRC),
reestablished in 1934 as the Federal Communications Commission.
Empowered to allocate frequencies among broadcasters, the FRC
essentially decided who could broadcast, and its mandate to do
so contained the seeds of the fairness doctrine. The commission
was not only to divvy up the limited number of bands on the radio
dial; Congress said it was to do so according to public "convenience,
interest, or necessity." Radio was seen as a kind of public
trust: individual stations had to meet public expectations in
return for access to the nation's airwaves.
In 1949, the first clear definition of the fairness doctrine emerged.
The FCC said, in its Report on Editorializing, "[T]he public
interest requires ample play for the free and fair competition
of opposing views, and the commission believes that the principle
applies to all discussion of issues of importance to the public."
The doctrine had two parts: it required broadcasters (1) to cover
vital controversial issues in the community and (2) to provide
a reasonable opportunity for the presentation of contrasting viewpoints.
In time, additional rules were added. The so-called personal attack
rule required broadcasters to allow opportunity for rebuttal to
personal attacks made during the discussion of controversial issues.
The "political editorializing" rule held that broadcasters
who endorsed a candidate for political office had to give the
candidate's opponent a reasonable opportunity to respond.
Enforcement was controversial. Complaints alleging violations
of the fairness doctrine were to be filed with the FCC by individuals
and organizations, such as political parties and unions. Upon
review of the complaint, the FCC could take punitive action that
included refusing to renew broadcasting licenses. Not surprisingly,
radio and TV station owners resented this regulatory power. They
grumbled that the print media never had to bear such burdens.
The fairness doctrine, they argued, infringed upon their First
Amendment rights. By the late 1960s, a First Amendment challenge
reached the U.S. Supreme Court, in Red Lion Broadcasting Co. v.
FCC, 395 U.S. 367, 89 S. Ct. 1794, 23 L. Ed. 2d 371 (1969). The
Court upheld the constitutionality of the doctrine in a decision
that only added to the controversy. The print and broadcast media
were inherently different, it ruled. In the broadcast media, the
Court said, "it is the right of the viewers and listeners,
not the right of the broadcasters, which is paramount it is the
right of the public to receive suitable access to social, political,
esthetic, moral, and other ideas and experiences which is crucial
Although the fairness doctrine remained in effect for almost two
more decades following Red Lion, the 1980s saw its abolishment.
Antiregulatory fervor in the administration of President Ronald
Reagan brought about its end. The administration, which staffed
the FCC with its appointees, favored little or no restrictions
on the broadcast industry. In its 1985 Fairness Report (102 F.C.C.2d
145), the FCC announced that the doctrine hurt the public interest
and violated the First Amendment. Moreover, technology had changed:
with the advent of multiple channels on cable television, no longer
could broadcasting be seen as a limited resource. Two years later,
in August 1987, the commission abolished the doctrine by a 4-0
vote, intending to extend to radio and tele- vision the same First
Amendment protections guaranteed to the print media. Congress
had tried to stop the FCC from killing the fairness doctrine.
Two months earlier, it had sent President Reagan the Fairness
in Broadcasting Act of 1987 (S. 742, 100th Cong., 1st Sess. ),
which would have codified the doctrine in federal law. The president
President Reagan's veto of the 1987 congressional bill to establish
the fairness doctrine as law did not end the controversy, however.
Even into the mid-1990s, proponents continued to call for its
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