Why we NEED the Fairness Doctrine

Following is an abbreviated version of Steve Rendall’s comprehensive report on the Fairness Doctrine. The bottom line is that, while clearly not a panacea, the Fairness Doctrine would at least allow all points of view some access to the American public’s airwaves. Although this is a long read, it is important for us as Americans to be aware of how OUR airways are being manipulated. The link at the title of this post leads to the full text of the article, which can be found at http://www.commondreams.org/views05/0212-03.htm – this excerpt is just to whet your interest: PLEASE USE THE LINK AND READ THE FULL ARTICLE!


The Fairness Doctrine
How We Lost it, and Why We Need it Back
by Steve Rendall

“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, 1969.

When the Sinclair Broadcast Group retreated from pre-election 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 back-pedaled 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.

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 Fairness Doctrine had two basic elements: it required broadcasters to devote some of their air time 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.

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.

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 views.

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.

The Doctrine’s demise
From the 1920s through the 1970s, 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.”

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’s 1959 amendment to the Communications Act had made the doctrine law.

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.

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.” [Dot Calm's italics] 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
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 right-wingers: 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.

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. Kennedy Jr. 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 interests.”

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.

Steve Rendall is FAIR's senior analyst and co-host of CounterSpin, FAIR's national radio show.