The Fairness Doctrine
How we lost it, and why we need
by Steve Rendall
Fairness and Accuracy in Reporting
(FAIR) newsletter (Extra!), February 2005
"A license permits broadcasting,
but the licensee has no constitutional right to be the one who
holds the license or to monopolize a frequency to the exclusion
of his fellow citizens. There is nothing in the First Amendment
which prevents the Government from requiring a licensee to share
his frequency with others .... It is the right of the viewers
and listeners, not the right of the broadcasters, which is paramount."
U.S. Supreme Court, upholding the constitutionality
of the Fairness Doctrine in Red Lion Broadcasting Co. v. FCC,
When the Sinclair Broadcast Group retreated
from preelection plans to force its 62 television stations to
preempt prime-time programming in favor of airing the blatantly
anti-John Kerry documentary Stolen Honor: Wounds that Never Heal,
the reversal wasn't triggered by a concern for fairness: Sinclair
backpedaled because its stock was tanking.
The staunchly conservative broadcaster's
plan had provoked calls for sponsor boycotts, and Wall Street
saw a company that was putting politics ahead of profits. Sinclair's
stock declined by nearly 17 percent before the company announced
it would air a somewhat more balanced news program in place of
the documentary (Baltimore Sun, 10/24/04).
But if fairness mattered little to Sinclair,
the news that a corporation that controlled more TV licenses than
any other could put the publicly owned airwaves to partisan use
sparked discussion of fairness across the board, from media democracy
activists to television industry executives.
Variety (10/25/04) underlined industry
concerns in a report suggesting that Sinclair's partisanship was
making other broadcasters nervous by fueling "anti-consolidation
forces" and efforts to bring back the FCC's defunct Fairness
Sinclair could even put the Fairness Doctrine
back in play, a rule established in 1949 to require that the networks-all
three of them-air all sides of issues. The doctrine was abandoned
in the 1980s with the proliferation of cable, leaving citizens
with little recourse over broadcasters that misuse the public
airwaves, except to oppose the renewal of licenses.
The Sinclair controversy brought discussion
of the Fairness Doctrine back to news columns (Baltimore Sun,
10/24/04; L.A. Times, 10/24/04) and opinion pages (Portland Press
Herald, 10/24/04; Fort Worth Star-Telegram, 10/22/04) across the
country. Legal Times (11/15/04) weighed in with an in-depth essay
headlined: "A Question of Fair Air Play: Can Current Remedies
for Media Bias Handle Threats Like Sinclair's Aborted Anti-Kerry
Sinclair's history of one-sided editorializing
and right-wing water-carrying, which long preceded its Stolen
Honor ploy (Extra!, 11-12/04), puts it in the company of political
talk radio, where right-wing opinion is the rule, locally and
nationally. Together, they are part of a growing trend that sees
movement conservatives and Republican partisans using the publicly
owned airwaves as a political megaphone-one that goes largely
unanswered by any regular opposing perspective. It's an imbalance
that begs for a remedy.
A short history of fairness
The necessity for the Fairness Doctrine,
according to proponents, arises from the fact that there are many
fewer broadcast licenses than people who would like to have them.
Unlike publishing, where the tools of the trade are in more or
less endless supply, broadcasting licenses are limited by the
finite number of available frequencies. Thus, as trustees of a
scarce public resource, licensees accept certain public interest
obligations in exchange for the exclusive use of limited public
airwaves. One such obligation was the Fairness Doctrine, which
was meant to ensure that a variety of views, beyond those of the
licensees and those they favored, were heard on the airwaves.
(Since cable's infrastructure is privately owned and cable channels
can, in theory, be endlessly multiplied, the FCC does not put
public interest requirements on that medium.)
The Fairness Doctrine had two basic elements:
It required broadcasters to devote some of their airtime to discussing
controversial matters of public interest, and to air contrasting
views regarding those matters. Stations were given wide latitude
as to how to provide contrasting views: It could be done through
news segments, public affairs shows or editorials.
Formally adopted as an FCC rule in 1949
and repealed in 1987 by Ronald Reagan's pro-broadcaster FCC, the
doctrine can be traced back to the early days of broadcast regulation.
Early on, legislators wrestled over competing
visions of the future of radio: Should it be commercial or noncommercial?
There was even a proposal by the U.S. Navy to control the new
technology. The debate included early arguments about how to address
the public interest, as well as fears about the awesome power
conferred on a handful of licensees.
"American thought and American politics
will be largely at the mercy of those who operate these stations,
for publicity is the most powerful weapon that can be wielded
in a republic. And when such a weapon is placed in the hands of
one person, or a single selfish group is permitted to either tacitly
or otherwise acquire ownership or dominate these broadcasting
stations throughout the country, then woe be to those who dare
to differ with them. It will be impossible to compete with them
in reaching the ears of the American people."
Rep. Luther Johnson (D.Texas), in the
debate that preceded the Radio Act of 1927 (KPFA, 1/16/03)
In the Radio Act of 1927, Congress mandated
the FCC's forerunner, the Federal Radio Commission (FRC), to grant
broadcasting licenses in such a manner as to ensure that licensees
served the "public convenience, interest or necessity."
As former FCC commissioner Nicholas Johnson
pointed out (California lawyer, 8/88), it was in that spirit that
the FRC, in 1928, first gave words to a policy formulation that
would become known as the Fairness Doctrine, calling for broadcasters
to show "due regard for the opinions of others." In
1949, the FCC adopted the doctrine as a formal rule (FCC, Report
on Editorializing by Broadcast Licensees, 1949).
In 1959 Congress amended the Communications
Act of 1934 to enshrine the Fairness Doctrine into law, rewriting
Chapter 315(a) to read: "A broadcast licensee shall afford
reasonable opportunity for discussion of conflicting views on
matters of public importance."
"It is the purpose of the First
Amendment to preserve an uninhibited marketplace of ideas in which
truth will ultimately prevail, rather than to countenance monopolization
of that market, whether it be by the government itself or a private
licensee. It is the right of the public to receive suitable access
to social, political, esthetic, moral and other ideas and experiences
which is crucial here. That right may not constitutionally be
abridged either by Congress or by the FCC."
U.S. Supreme Court, Red Lion Broadcasting
Co. v. FCC, 1969.
A decade later the United States Supreme
Court upheld the doctrine's constitutionality in Red Lion Broadcasting
Co. v. FCC (1969), foreshadowing a decade in which the FCC would
view the Fairness Doctrine as a guiding principle, calling it
"the single most important requirement of operation in the
public interest-the sine qua non for grant of a renewal of license"
(FCC Fairness Report, 1974).
How it worked
There are many misconceptions about the
Fairness Doctrine. For instance, it did not require that each
program be internally balanced, nor did it mandate equal time
for opposing points of view. And it didn't require that the balance
of a station's program lineup be anything like 50/50.
Nor, as Rush Limbaugh has repeatedly claimed,
was the Fairness Doctrine all that stood between conservative
talkshow hosts and the dominance they would attain after the doctrine's
repeal. In fact, not one Fairness Doctrine decision issued by
the FCC had ever concerned itself with talkshows. Indeed, the
talkshow format was born and flourished while the doctrine was
in operation. Before the doctrine was repealed, right-wing hosts
frequently dominated talkshow schedules, even in liberal cities,
but none was ever muzzled (The Way Things Aren't, Rendall et al.,
1995). The Fairness Doctrine simply prohibited stations from broadcasting
from a single perspective, day after day, without presenting opposing
In answer to charges, put forward in the
Red Lion case, that the doctrine violated broadcasters' First
Amendment free speech rights because the government was exerting
editorial control, Supreme Court Justice Byron White wrote: "There
is no sanctuary in the First Amendment for unlimited private censorship
operating in a medium not open to all." In a Washington Post
column (1/31/94), the Media Access Project (MAP), a telecommunications
law firm that supports the Fairness Doctrine, addressed the First
Amendment issue: "The Supreme Court unanimously found [the
Fairness Doctrine] advances First Amendment values. It safeguards
the public's right to be informed on issues affecting our democracy,
while also balancing broadcasters' rights to the broadest possible
Indeed, when it was in place, citizen
groups used the Fairness Doctrine as a tool to expand speech and
debate. For instance, it prevented stations from allowing only
one side to be heard on ballot measures. Over the years, it had
been supported by grassroots groups across the political spectrum,
including the ACLU, National Rifle Association and the right-wing
Accuracy In Media,
Typically, when an individual or citizens
group complained to a station about imbalance, the station would
set aside time for an on-air response for the omitted perspective:
"Reasonable opportunity for presentation of opposing points
of view," was the relevant phrase. If a station disagreed
with the complaint, feeling that an adequate range of views had
already been presented, the decision would be appealed to the
FCC for a judgment.
According to Andrew Jay Schwartzman, president
of MAP, scheduling response time was based on time of day, frequency
and duration of the original perspective. "If one view received
a lot of coverage in primetime," Schwartzman told Extra!,
"then at least some response time would have to be in primetime.
Likewise if one side received many short spots or really long
spots." But the remedy did not amount to equal time; the
ratio of airtime between the original perspective and the response
"could be as much as five to one," said Schwartzman.
As a guarantor of balance and inclusion,
the Fairness Doctrine was no panacea. It was somewhat vague, and
depended on the vigilance of listeners and viewers to notice imbalance.
But its value, beyond the occasional remedies it provided, was
in its codification of the principle that broadcasters had a responsibility
to present a range of views on controversial issues.
The doctrine's demise
From the 1920s through the '70s, the history
of the Fairness Doctrine paints a picture of public servants wrestling
with how to maintain some public interest standards in the operation
of publicly owned-but corporate-dominated-airwaves. Things were
about to change.
The 1980s brought the Reagan Revolution,
with its army of anti-regulatory extremists; not least among these
was Reagan's new FCC chair, Mark S. Fowler. Formerly a broadcast
industry lawyer, Fowler earned his reputation as "the James
Watt of the FCC" by sneering at the notion that broadcasters
had a unique role or bore special responsibilities to ensure democratic
discourse (California Lawyer, 8/88). It was all nonsense, said
Fowler (L.A. Times, 5/1/03): "The perception of broadcasters
as community trustees should be replaced by a view of broadcasters
as marketplace participants." To Fowler, television was "just
another appliance. it's a toaster with pictures," and he
seemed to endorse total deregulation (Washington Post, 2/6/83):
"We've got to look beyond the conventional wisdom that we
must somehow regulate this box."
Of course, Fowler and associates didn't
favor total deregulation: Without licensing, the airwaves would
descend into chaos as many broadcasters competed for the same
frequencies, a situation that would mean ruin for the traditional
corporate broadcasters they were so close to. But regulation for
the public good rather than corporate convenience was deemed suspect.
Fowler vowed to see the Fairness Doctrine
repealed, and though he would depart the commission a few months
before the goal was realized, he worked assiduously at setting
the stage for the doctrine's demise.
He and his like-minded commissioners,
a majority of whom had been appointed by President Ronald Reagan,
argued that the doctrine violated broadcasters' First Amendment
free speech rights by giving government a measure of editorial
control over stations. Moreover, rather than increase debate and
discussion of controversial issues, they argued, the doctrine
actually chilled debate, because stations feared demands for response
time and possible challenges to broadcast licenses (though only
one license was ever revoked in a dispute involving the Fairness
Doctrine-California Lawyer, 8/88).
The FCC stopped enforcing the doctrine
in the mid-'80s, well before it formally revoked it. As much as
the commission majority wanted to repeal the doctrine outright,
there was one hurdle that stood between them and their goal: Congress'
1959 amendment to the Communications Act had made the doctrine
Help would come in the form of a controversial
1986 legal decision by judge Robert Bork and then-Judge Antonin
Scalia, both Reagan appointees on the D.C. Circuit of the U.S.
Court of Appeals. Their 2-1 opinion avoided the constitutional
issue altogether, and simply declared that Congress had not actually
made the doctrine into a law. Wrote Bork: "We do not believe
that language adopted in 1959 made the Fairness Doctrine a binding
statutory obligation," because, he said, the doctrine was
imposed "under," not "by" the Communications
Act of 1934 (California Lawyer, 8/88). Bork held that the 1959
amendment established that the FCC could apply the doctrine, but
was not obliged to do so-that keeping the rule or scuttling it
was simply a matter of FCC discretion.
"The decision contravened 25 years
of FCC holdings that the doctrine had been put into law in 1959,"
according to MAP. But it signaled the end of the Fairness Doctrine,
which was repealed in 1987 by the FCC under new chair Dennis R.
Patrick, a lawyer and Reagan White House aide.
A year after the doctrine's repeal, writing
in California Lawyer (8/88), former FCC commissioner Johnson summed
up the fight to bring back the Fairness Doctrine as "a struggle
for nothing less than possession of the First Amendment: Who gets
to have and express opinions in America." Though a bill before
Congress to reinstate the doctrine passed overwhelmingly later
that year, it failed to override Reagan's veto. Another attempt
to resurrect the doctrine in 1991 ran out of steam when President
George H.W. Bush threatened another veto.
Where things stand
What has changed since the repeal of the
Fairness Doctrine? Is there more coverage of controversial issues
of public importance? "Since the demise of the Fairness Doctrine
we have had much less coverage of issues," says MAP's Schwartzman,
adding that television news and public affairs programming has
decreased locally and nationally. According to a study conducted
by MAP and the Benton Foundation, 25 percent of broadcast stations
no longer offer any local news or public affairs programming at
all (Federal Communications Law Journal, 5/03).
The most extreme change has been in the
immense volume of unanswered conservative opinion heard on the
airwaves, especially on talk radio. Nationally, virtually all
of the leading political talkshow hosts are rightwingers: Rush
Limbaugh, Sean Hannity, Michael Savage, Oliver North, G. Gordon
Liddy, Bill O'Reilly and Michael Reagan, to
name just a few. The same goes for local talkshows. One product
of the post-Fairness era is the conservative "Hot Talk"
format, featuring one right-wing host after another and little
else. Disney-owned KSFO in liberal San Francisco is one such station
(Extra!, 3-4/95). Some towns have two.
When Edward Monks, a lawyer in Eugene,
Oregon, studied the two commercial talk stations in his town (Eugene
Register-Guard, 6/30/02), he found "80 hours per week, more
than 4,000 hours per year, programmed for Republican and conservative
talk shows, without a single second programmed for a Democratic
or liberal perspective." Observing that Eugene (a generally
progressive town) was "fairly representative," Monks
concluded: "Political opinions expressed on talk radio are
approaching the level of uniformity that would normally be achieved
only in a totalitarian society. There is nothing fair, balanced
or democratic about it."
Bringing back fairness?
For citizens who value media democracy
and the public interest, broadcast regulation of our publicly
owned airwaves has reached a low-water mark. In his new book,
Crimes Against Nature, Robert F. KennedyJr. probes the failure
of broadcasters to cover the environment, writing, "The FCC's
pro-industry, anti-regulatory philosophy has effectively ended
the right of access to broadcast television by any but the moneyed
According to TV Week (11/30/04), a coalition
of broadcast giants is currently pondering a legal assault on
the Supreme Court's Red Lion decision. "Media General and
a coalition of major TV network owners-NBC Universal, News Corp.
and Viacom made clear that they are seriously considering an attack
on Red Lion as part of an industry challenge to an appellate court
decision scrapping FCC media ownership deregulation earlier this
Considering the many looming problems
facing media democracy advocates, Extra! asked NW's Schwartzman
why activists should still be concerned about the Fairness Doctrine.
What has not changed since 1987 is that
over-the-air broadcasting remains the most powerful force affecting
public opinion, especially on local issues; as public trustees,
broadcasters ought to be insuring that they inform the public,
not inflame them. That's why we need a Fairness Doctrine. It's
not a universal solution. It's not a substitute for reform or
for diversity of ownership. It's simply a mechanism to address
the most extreme kinds of broadcast abuse.
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