Fairness Doctrine

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The Fairness Doctrine was a policy of the United States Federal Communications Commission (FCC), introduced in 1949, that required the holders of broadcast licenses to both present controversial issues of public importance and to do so in a manner that was, in the Commission's view, honest, equitable and balanced. The FCC eliminated the Doctrine in 1987, and in August 2011 the FCC formally removed the language that implemented the Doctrine.[1]

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. The doctrine did not require equal time for opposing views but required that contrasting viewpoints be presented.[2]

The main agenda for the doctrine was to ensure that viewers were exposed to a diversity of viewpoints. In 1969 the United States Supreme Court upheld the FCC's general right to enforce the Fairness Doctrine where channels were limited. But the courts did not rule that the FCC was obliged to do so.[3] The courts reasoned that the scarcity of the broadcast spectrum, which limited the opportunity for access to the airwaves, created a need for the Doctrine. However, the proliferation of cable television, multiple channels within cable, public-access channels, and the Internet have eroded this argument, since there are plenty of places for ordinary individuals to make public comments on controversial issues at low or no cost at all.

The Fairness Doctrine should not be confused with the Equal Time rule. The Fairness Doctrine deals with discussion of controversial issues, while the Equal Time rule deals only with political candidates.

Origins[edit]

The 1949 FCC Commission Report served as the foundation for the Fairness Doctrine. It established two forms of regulation on broadcasters: to provide adequate coverage of public issues, and to ensure that coverage fairly represented opposing views.[4] The second rule required broadcasters to provide reply time to issue-oriented citizens. Broadcasters could therefore trigger Fairness Doctrine complaints without editorializing. The commission required neither of the Fairness Doctrine's obligations before 1949. Until then broadcasters had to satisfy only general “public interest” standards of the Communications Act.[5][6]

The doctrine remained a matter of general policy and was applied on a case-by-case basis until 1967, when certain provisions of the doctrine were incorporated into FCC regulations.[7]

In a 1969 textbook case, the United States courts of appeals, in an opinion written by Warren Burger, directed the FCC to revoke Lamar Broadcasting's licence for television station WLBT due to the station's segregationist politics and ongoing censorship of NBC network news coverage of the US civil rights movement.[8]

Application of the Doctrine by the FCC[edit]

In 1974, the Federal Communications Commission stated that the Congress had delegated it the power to mandate a system of "access, either free or paid, for person or groups wishing to express a viewpoint on a controversial public issue..." but that it had not yet exercised that power because licensed broadcasters had "voluntarily" complied with the "spirit" of the doctrine. It warned that:

In one landmark case, the FCC argued that teletext was a new technology that created soaring demand for a limited resource, and thus could be exempt from the Fairness Doctrine. The Telecommunications Research and Action Center (TRAC) and Media Access Project (MAP) argued that teletext transmissions should be regulated like any other airwave technology, hence the Fairness Doctrine was applicable (and must be enforced by the FCC). In 1986, Judges Robert Bork and Antonin Scalia of the United States Court of Appeals for the District of Columbia Circuit concluded that the Fairness Doctrine did apply to teletext but that the FCC was not required to apply it.[10]  In a 1987 case, Meredith Corp. v. FCC, two other judges on the same court declared that Congress did not mandate the doctrine and the FCC did not have to continue to enforce it.[11]

Decisions of the United States Supreme Court[edit]

In Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969), the U.S. Supreme Court upheld (by a vote of 8-0) the constitutionality of the Fairness Doctrine in a case of an on-air personal attack, in response to challenges that the doctrine violated the First Amendment to the U.S. Constitution. The case began when journalist Fred J. Cook, after the publication of his Goldwater: Extremist of the Right, was the topic of discussion by Billy James Hargis on his daily Christian Crusade radio broadcast on WGCB in Red Lion, Pennsylvania. Mr. Cook sued arguing that the Fairness Doctrine entitled him to free air time to respond to the personal attacks.[12]

Although similar laws are unconstitutional when applied to the press, the Court cited a Senate report (S. Rep. No. 562, 86th Cong., 1st Sess., 8-9 [1959]) stating that radio stations could be regulated in this way because of the limited public airwaves at the time. Writing for the Court, Justice Byron White declared:

The Court warned that if the doctrine ever restrained speech, then its constitutionality should be reconsidered.

However, in the case of Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), Chief Justice Warren Burger wrote (for a unanimous court):

This decision differs from Red Lion v. FCC in that it applies to a newspaper, which, unlike a broadcaster, is unlicensed and can theoretically face an unlimited number of competitors.

In 1984, the Supreme Court ruled that Congress could not forbid editorials by non-profit stations that received grants from the Corporation for Public Broadcasting (FCC v. League of Women Voters of California, 468 U.S. 364 (1984)). The Court's 5-4 majority decision by William J. Brennan, Jr. stated that while many now considered that expanding sources of communication had made the Fairness Doctrine's limits unnecessary:

After noting that the FCC was considering repealing the Fairness Doctrine rules on editorials and personal attacks out of fear that those rules might be "chilling speech", the Court added:

Revocation[edit]

Basic doctrine[edit]

In 1985, under FCC Chairman Mark S. Fowler, a communications attorney who had served on Ronald Reagan's presidential campaign staff in 1976 and 1980, the FCC released a report stating that the doctrine hurt the public interest and violated free speech rights guaranteed by the First Amendment.

In August 1987, under FCC Chairman Dennis R. Patrick, the FCC abolished the doctrine by a 4-0 vote, in the Syracuse Peace Council decision, which was upheld by a panel of the Appeals Court for the D.C. Circuit in February 1989.[14] The FCC suggested in Syracuse Peace Council that because of the many media voices in the marketplace, the doctrine be deemed unconstitutional, stating that:

At the 4-0 vote, Chairman Patrick said,

The FCC vote was opposed by members of Congress who said the FCC had tried to "flout the will of Congress" and the decision was "wrongheaded, misguided and illogical.".[16] The decision drew political fire and tangling, where cooperation with Congress was at issue.[17] In June 1987, Congress attempted to preempt the FCC decision and codify the Fairness Doctrine,[18] but the legislation was vetoed by President Ronald Reagan. Another attempt to revive the doctrine in 1991 was stopped when President George H.W. Bush threatened another veto.[19]

Fowler said in February 2009 that his work toward revoking the Fairness Doctrine under the Reagan Administration had been a matter of principle (his belief that the Doctrine impinged upon the First Amendment), not partisanship. Fowler described the White House staff raising concerns, at a time before the prominence of conservative talk radio and during the preeminence of the Big Three television networks and PBS in political discourse, that repealing the policy would be politically unwise. He described the staff's position as saying to Reagan:

Instead, Reagan supported the effort and later vetoed the Democratic-controlled Congress's effort to make the doctrine law.

Corollary rules[edit]

Two corollary rules of the doctrine, the personal attack rule and the "political editorial" rule, remained in practice until 2000. The "personal attack" rule applied whenever a person (or small group) was subject to a personal attack during a broadcast. Stations had to notify such persons (or groups) within a week of the attack, send them transcripts of what was said and offer the opportunity to respond on-the-air. The "political editorial" rule applied when a station broadcast editorials endorsing or opposing candidates for public office, and stipulated that the unendorsed candidates be notified and allowed a reasonable opportunity to respond.

The U.S. Court of Appeals for the D.C. Circuit ordered the FCC to justify these corollary rules in light of the decision to repeal the Fairness Doctrine. The FCC did not provide prompt justification and ultimately ordered their repeal in 2000.

Reinstatement considered[edit]

Support[edit]

In February 2005, U.S. Representative Louise Slaughter (D-NY) and 23 co-sponsors introduced the Fairness and Accountability in Broadcasting Act (H.R. 501)[21] in the 1st Session of the 109th Congress of 2005-7 (when Republicans held a majority of both Houses). The bill would have shortened a station's license term from eight years to four, with the requirement that a license-holder cover important issues fairly, hold local public hearings about its coverage twice a year, and document to the FCC how it was meeting its obligations.[22] The bill was referred to committee, but progressed no further.[23]

In the same Congress, Representative Maurice Hinchey (D-NY) introduced legislation "to restore the Fairness Doctrine". H.R. 3302, also known as the "Media Ownership Reform Act of 2005" or MORA, had 16 co-sponsors in Congress.[24]

In June 2007, Senator Richard Durbin (D-IL) said, "It's time to reinstitute the Fairness Doctrine,"[25] an opinion shared by his Democratic colleague, Senator John Kerry (D-MA).[26] However, according to Marin Cogan of The New Republic in late 2008:

On June 24, 2008, U.S. Representative Nancy Pelosi (D-CA), the Speaker of the House at the time, told reporters that her fellow Democratic Representatives did not want to forbid reintroduction of the Fairness Doctrine, adding "the interest in my caucus is the reverse." When asked by John Gizzi of Human Events, "Do you personally support revival of the 'Fairness Doctrine?'", the Speaker replied "Yes."[28] On October 22, 2008, Senator Jeff Bingaman (D-NM) told a conservative talk radio host in Albuquerque, New Mexico:

On December 15, 2008, U.S. Representative Anna Eshoo (D-CA) told The Daily Post in Palo Alto, California that she thought it should also apply to cable and satellite broadcasters.

On February 11, 2009, Senator Tom Harkin (D-Iowa) told Press, "...we gotta get the Fairness Doctrine back in law again." Later in response to Press's assertion that "...they are just shutting down progressive talk from one city after another," Senator Harkin responded, "Exactly, and that's why we need the fair—that's why we need the Fairness Doctrine back."[31] Former President Bill Clinton has also shown support for the Fairness Doctrine. During a February 13, 2009, appearance on the Mario Solis Marich radio show, Clinton said:

Clinton cited the "blatant drumbeat" against the stimulus program from conservative talk radio, suggesting that it doesn't reflect economic reality.[32]

Opposition[edit]

The Fairness Doctrine has been strongly opposed by prominent conservatives and libertarians who view it as an attack on First Amendment rights and property rights. Editorials in The Wall Street Journal and The Washington Times in 2005 and 2008 said that Democratic attempts to bring back the Fairness Doctrine have been made largely in response to conservative talk radio.[33][34]

In 2007, Senator Norm Coleman (R-MN) proposed an amendment to a defense appropriations bill that forbade the FCC from "using any funds to adopt a fairness rule."[35] It was blocked, in part on grounds that "the amendment belonged in the Commerce Committee's jurisdiction".

In the same year, the Broadcaster Freedom Act of 2007 was proposed in the Senate by Senators Coleman with 35 co-sponsors (S.1748) and John Thune (R-SD) with 8 co-sponsors (S.1742)[36] and in the House by Republican Representative Mike Pence (R-IN) with 208 co-sponsors (H.R. 2905).[37] It provided that:

Neither of these measures came to the floor of either house.

On August 12, 2008, FCC Commissioner Robert M. McDowell stated that the reinstitution of the Fairness Doctrine could be intertwined with the debate over network neutrality (a proposal to classify network operators as common carriers required to admit all Internet services, applications and devices on equal terms), presenting a potential danger that net neutrality and Fairness Doctrine advocates could try to expand content controls to the Internet.[39] It could also include "government dictating content policy".[40] The conservative Media Research Center's Culture & Media Institute argued that the three main points supporting the Fairness Doctrine — media scarcity, liberal viewpoints being censored at a corporate level, and public interest — are all myths.[41]

On February 16, 2009, Mark Fowler said:

In the 111th Congress (January 2009 to January 2011), the Broadcaster Freedom Act of 2009 (S.34, S.62, H.R.226) was introduced to block reinstatement of the Doctrine. On February 26, 2009, by a vote of 87-11, the Senate added that act as an amendment to the District of Columbia House Voting Rights Act of 2009 (S.160),[42] [a bill which later passed the Senate 61-37, but not the House of Representatives].[43] The Associated Press reported that the vote on the Fairness Doctrine rider was:

The AP report went on to say that President Obama had no intention of reimposing the doctrine, but Republicans (led by Sen. Jim DeMint, R-SC) wanted more in the way of a guarantee that the doctrine would not be reimposed.[44]

Suggested alternatives[edit]

Not to be confused with Unfairness doctrine.

Media reform organizations such as Free Press feel that a return to the Fairness Doctrine is not as important as setting stronger station ownership caps and stronger "public interest" standards enforcement (with funding from fines given to public broadcasting).[45]

In June 2008, Barack Obama's press secretary wrote that Obama (then a Democratic U.S. Senator from Illinois and candidate for President):

In February 2009, a White House spokesperson said that President Obama continues to oppose the revival of the Doctrine.[47]

Public opinion[edit]

In an August 13, 2008 telephone poll released by Rasmussen Reports, 47% of 1,000 likely voters supported a government requirement that broadcasters offer equal amounts of liberal and conservative commentary, while 39% opposed such a requirement. In the same poll, 57% opposed and 31% favored requiring Internet websites and bloggers that offer political commentary to present opposing points of view. By a margin of 71%-20% the respondents agreed that it is "possible for just about any political view to be heard in today’s media" (including the Internet, newspapers, cable TV and satellite radio), but only half the sample said they had followed recent news stories about the Fairness Doctrine closely. (The margin of error was 3%, with a 95% confidence interval.)[48]

Formal revocation[edit]

In June 2011, the Chairman and a subcommittee chairman of the House Energy and Commerce Committee, both Republicans, said that the FCC, in response to their requests, had set a target date of August 2011 for removing the Fairness Doctrine and other "outdated" regulations from the FCC's rulebook.[49]

On August 22, 2011, the FCC formally voted to repeal the language that implemented the Fairness Doctrine, along with removal of more than eighty other rules and regulations, from the Federal Register following a White House executive order directing a "government-wide review of regulations already on the books", to eliminate unnecessary regulations.[1]

See also[edit]

References[edit]

  1. ^ a b Boliek, Brooks (August 22, 2011). "FCC finally kills off fairness doctrine". POLITICO. 
  2. ^ Rendall, Steve (2005-02-12). "The Fairness Doctrine: How We Lost it, and Why We Need it Back". Common Dreams (Fairness and Accuracy In Reporting). Retrieved 2008-11-13. 
  3. ^ a b Red Lion Broadcasting Co. v. FCC, decided June 8, 1969, also at 395 U.S. 367 (1969) (Excerpt from Majority Opinion, III A; Senate report cited in footnote 26). Justice William O. Douglas did not participate in the decision, but there were no concurring or dissenting opinions.
  4. ^ Jung, D.L. (1996), The Federal Communications Commission, the broadcast industry, and the fairness doctrine 1981-1987, New York: University Press of America, Inc.
  5. ^ Donahue, H.(1988). The battle to control broadcast news. Cambridge, Mass.: MIT Press
  6. ^ Report on Editorializing by Broadcast Licensees, 13 F.C.C. 1246 [1949])
  7. ^ Donald P. Mullally, "The Fairness Doctrine: Benefits and Costs", The Public Opinion Quarterly, Vol. 33, No. 4 (Winter, 1969-1970), p. 577
  8. ^ The FCC & Censorship: Legendary Media Activist Everett Parker on the Revocation of WLBT’s TV License in the 1960s for Shutting Out Voices of the Civil Rights Movement, Democracy Now, March 06, 2008
  9. ^ In the Matter of THE HANDLING OF PUBLIC ISSUES UNDER THE FAIRNESS DOCTRINE AND THE PUBLIC INTEREST STANDARDS OF THE COMMUNICATIONS ACT, 48 F.C.C.2d 1 (F.C.C. 1974)
  10. ^ Telecommunications Research and Action Center v. FCC, 801 F.2d 501 (D.C. Cir. 1986) retrieved on August 17, 2008
  11. ^ Meredith Corp. v. FCC, 809 F.2d 863 (D.C. Cir. 1987), February 10, 1987, retrieved on August 17, 2008
  12. ^ Tom Joyce: “His call for a reply set up historic broadcast ruling; Fred J. Cook, whose book was attacked on Red Lion radio station WGCB in 1964, died recently at age 92.” York Daily Record (Pennsylvania), May 6, 2003, retrieved on August 17, 2008
  13. ^ The quotation is from Section III C of Red Lion v. FCC 395 U.S. 367 (1969). Justice Brennan's opinion was joined by Justices Thurgood Marshall, Harry Blackmun, Lewis Powell and Sandra Day O'Connor. Dissenting opinions were written or joined by Chief Justice Warren Burger and Justices William Rehnquist, Byron White and John Paul Stevens
  14. ^ Syracuse Peace Council v. FCC, 867 F.2d 654 (D.C. Cir. 1989), retrieved on August 17, 2008
  15. ^ FCC Video, NBCUniversal (1987) ("Today we reaffirm our faith in the American people. Our faith in their ability to distinguish between fact and fiction without any help from government.") "FCC 1987"; see Robert D. Hershey, Jr., F.C.C. Votes Down Fairness Doctrine in a 4-0 Decision, New York Times, August 5, 1987 [http://www.nytimes.com/1987/08/05/arts/fcc-votes-down-fairness-doctrine-in-a-4-0-decision.html
  16. ^ Robert D. Hershey, Jr., F.C.C. Votes Down Fairness Doctrine in a 4-0 Decision, New York Times, August 5, 1987 [1]
  17. ^ Sandra Salmans, Regulator Unregulated: Dennis Patrick; At the FCC, Another Man Who Loves Free Markets. [2]
  18. ^ The Fairness in Broadcasting Act of 1987, S. 742 & H.R. 1934, 100th Cong., 1st Sess. (1987)
  19. ^ Val E. Limburg, "Fairness Doctrine", April 27, 2009, Museum of Broadcast Communications
  20. ^ a b The Mark Levin Show, February 16, 2009 (a 26-Megabyte MP3 file), from about 17 minutes 15 seconds into the broadcast to 25 min. 45 sec.
  21. ^ H.R. 501, Fairness and Accountability in Broadcasting Act (109th Congress, 1st Session) (full text) from GovTrack.us, retrieved on November 13, 2008.
  22. ^ Congressional Research Service summary of H.R. 501--109th Congress (2005): Fairness and Accountability in Broadcasting Act, GovTrack.us (database of federal legislation), retrieved on November 13, 2008
  23. ^ Overview of H.R. 501 (109th Congress, 1st session) from GovTrack.us, retrieved on November 14, 2008.
  24. ^ Summary at "Media Ownership Reform Act of 2005". Archived from the original on 2007-09-02. Retrieved 2007-09-12.  - Full text at H.R. 3302 Media Ownership Reform Act of 2005 retrieved on August 17, 2008.
  25. ^ Alexander Bolton, GOP preps for talk radio confrontation TheHill.com, June 27, 2007, retrieved on October 27, 2008
  26. ^ John Eggerton (June 27, 2007). "Kerry Wants Fairness Doctrine Reimposed". Broadcasting and Cable. Retrieved October 27, 2008.  describing an interview on The Brian Lehrer Show on WNYC radio
  27. ^ Marin Cogan, Bum Rush: Obama's secret plan to muzzle talk radio. Very, very secret, The New Republic, December 3, 2008, retrieved on November 20, 2008
  28. ^ John Gizzi (June 25, 2008). "Pelosi Supports Fairness Doctrine". Human Events. Retrieved October 27, 2008. 
  29. ^ Pete Winn (October 22, 2008). "Democratic Senator Tells Conservative Radio Station He'd Re-impose Fairness Doctrine--on Them". CNS News. Retrieved October 28, 2008. [dead link]
  30. ^ San Francisco Peninsula Press Club (December 16, 2008). "Rep. Eshoo to push for Fairness Doctrine". San Francisco Peninsula Press Club. Retrieved December 15, 2008. 
  31. ^ Michael Calderon (February 11, 2009). "Sen. Harkin: 'We need the Fairness Doctrine back'". Politico. Retrieved February 11, 2009. 
  32. ^ John Eggerton (February 13, 2009). "Bill Clinton Talks of Re-Imposing Fairness Doctrine or At Least "More Balance" in Media". Broadcasting & Cable. Retrieved February 13, 2009. 
  33. ^ "Rush to Victory". The Wall Street Journal. April 4, 2005. Retrieved July 1, 2008. 
  34. ^ "‘Fairness’ is Censorship". The Washington Times. June 17, 2008. Retrieved July 1, 2008. 
  35. ^ Frommer, Frederic J. (July 14, 2007). "Democrats Block Amendment to Prevent Fairness Doctrine". Associated Press. Retrieved August 10, 2008. 
  36. ^ Broadcaster Freedom Act of 2007, Open Congress Foundation, retrieved on November 14, 2008
  37. ^ Broadcaster Freedom Act of 2007, introduced February 1, 2005, "To prevent the Federal Communications Commission from repromulgating the fairness doctrine", Open Congress Foundation, retrieved on November 14, 2008
  38. ^ Text of H.R. 2905: Broadcaster Freedom Act of 2007, GovTrack.us, retrieved on November 14, 2008
  39. ^ Jeff Poor, "FCC Commissioner: Return of Fairness Doctrine Could Control Web Content", August 13, 2008, Business & Media Institute
  40. ^ http://www.eyeblast.tv/Public/Video.aspx?rsrcID=34016 See also Commissioner McDowell's speech to the Media Institute in January 2009.
  41. ^ Culture & Media Institute report on The Fairness Doctrine. - accessed August 13, 2008.
  42. ^ "Senate Backs Amendment to Prevent Fairness Doctrine Revival". FOXNews.com. February 26, 2009. [dead link]
  43. ^ Warren, Timothy (February 26, 2009). "Senate votes to give D.C. full House vote". The Washington Times. Retrieved February 26, 2009.  The Senate roll call is here.
  44. ^ Senate bars FCC from revisiting Fairness Doctrine The Associated Press, February 26, 2009
  45. ^ "The Structural Imbalance of Talk Radio", Free Press, Center for American Progress
  46. ^ John Eggerton, "Obama Does Not Support Return of Fairness Doctrine", Broadcasting & Cable, June 25, 2008, retrieved on October 30, 2008, citing an e-mail from Obama's press secretary, Michael Ortiz.
  47. ^ "White House: Obama Opposes 'Fairness Doctrine' Revival". Fox News. February 18, 2009. 
  48. ^ 47% Favor Government Mandated Political Balance on Radio, TV, Rasmussen Reports press release, Thursday, August 14, 2008 and Toplines - Fairness Doctrine - August 13, 2008 (Questions and answers from the survey).
  49. ^ Gautham Nagesh, FCC sets August target for striking Fairness Doctrine, "Hillicon Valley" blog, The Hill, June 28, 2011, quoting Republican Representatives Fred Upton (R-Michigan), Chairman of the Energy & Commerce Committee, and Greg Walden (R-Oregon), Chairman of its Telecommunications Subcommittee.

Further reading[edit]

External links[edit]