The fairness doctrine was a Federal Communications Commission (FCC) policy. The FCC believed that broadcast licenses (required for both radio and terrestrial TV stations) were a form of public trust and, as such, licensees should provide balanced and fair coverage of controversial issues. The policy was a casualty of Reagan Administration deregulation.



The Fairness Doctrine should not be confused with the Equal Time Rule.

History

This 1949 policy was an artifact of the predecessor organization to the FCC, the Federal Radio Commission. The FRC developed the policy in response to the growth of radio ("unlimited" demand for a finite spectrum lead to government licensing of radio spectrum). The FCC believed that broadcast licenses (required for both radio and terrestrial TV stations) were a form of public trust and, as such, licensees should provide balanced and fair coverage of controversial issues.

The "public interest" justification for the fairness doctrine is outlined in Section 315 of the Communications Act of 1937 (amended in 1959). The law required broadcasters to provide "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." However, this equal opportunity offering did not (and does not) extend to news programs, interviews and documentaries.

Supreme Court Affirms Policy

In 1969, the U.S. Supreme Court unanimously (8-0) ruled that Red Lion Broadcasting Co. (of Red Lion, PA) had violated the fairness doctrine. Red Lion's radio station, WGCB, aired a program that attacked an author and journalist, Fred J. Cook. Cook requested "equal time" but was refused; the FCC supported his claim because the agency viewed the WGCB program as a personal attack. The broadcaster appealed; the Supreme Court ruled for the plaintiff, Cook.

In that ruling, the Court position the First Amendment as being "paramount," but not to the broadcaster but to the "viewing and listening public." Justice Byron White, writing for the Majority:

The Federal Communications Commission has for many years imposed on radio and television broadcasters the requirement that discussion of public issues be presented on broadcast stations, and that each side of those issues must be given fair coverage. This is known as the fairness doctrine, which originated very early in the history of broadcasting and has maintained its present outlines for some time. It is an obligation whose content has been defined in a long series of FCC rulings in particular cases, and which is distinct from the statutory [370] requirement of 315 of the Communications Act [note 1] that equal time be allotted all qualified candidates for public office...

On November 27, 1964, WGCB carried a 15-minute broadcast by the Reverend Billy James Hargis as part of a "Christian Crusade" series. A book by Fred J. Cook entitled "Goldwater - Extremist on the Right" was discussed by Hargis, who said that Cook had been fired by a newspaper for making false charges against city officials; that Cook had then worked for a Communist-affiliated publication; that he had defended Alger Hiss and attacked J. Edgar Hoover and the Central Intelligence Agency; and that he had now written a "book to smear and destroy Barry Goldwater."...

In view of the scarcity of broadcast frequencies, the Government's role in allocating those frequencies, and the legitimate claims of those unable without governmental assistance to gain access to those frequencies for expression of their views, we hold the regulations and [401] ruling at issue here are both authorized by statute and constitutional.[note 28] The judgment of the Court of Appeals in Red Lion is affirmed and that in RTNDA reversed and the causes remanded for proceedings consistent with this opinion.

Red Lion Broadcasting Co. v. Federal Communications Commission, 395 U.S. 367 (1969)

As an aside, part of the ruling could be construed as justifying Congressional or FCC intervention in the market to limit monopolization, although the ruling is addressing the abridgment of freedom:

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.

Supreme Court Looks Again

Only five years later, the Court (somewhat) reversed itself. In 1974, SCOTU Chief Justice Warren Burger (writing for a unanimous court in Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241) said that in the case of newspapers, a government "right of reply" requirement "inescapably dampens the vigor and limits the variety of public debate." In this case, Florida law had required newspapers to provide a form of equal access when a paper endorsed a political candidate in an editorial.

There are clear differences in the two cases, beyond the simple matter than radio stations are granted government licenses and newspapers are not. The Florida statute (1913) was far more prospective than the FCC policy. From the Court decision. However, both decisions discuss the relative scarcity of news outlets.

Florida Statute 104.38 (1973) [is] a "right of reply" statute which provides that if a candidate for nomination or election is assailed regarding his personal character or official record by any newspaper, the candidate has the right to demand that the newspaper print, free of cost to the candidate, any reply the candidate may make to the newspaper's charges. The reply must appear in as conspicuous a place and in the same kind of type as the charges which prompted the reply, provided it does not take up more space than the charges. Failure to comply with the statute constitutes a first-degree misdemeanor...

Even if a newspaper would face no additional costs to comply with a compulsory access law and would not be forced to forgo publication of news or opinion by the inclusion of a reply, the Florida statute fails to clear the barriers of the First Amendment because of its intrusion into the function of editors. A newspaper is more than a passive receptacle or conduit for news, comment, and advertising.[note 24] The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials - whether fair or unfair - constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time. Accordingly, the judgment of the Supreme Court of Florida is reversed.

Key Case

In 1982, Meredith Corp (WTVH in Syracuse, NY) ran a series of editorials endorsing the Nine Mile II nuclear power plant. Syracuse Peace Council filed a fairness doctrine complaint with the FCC, asserting that WTVH "had failed to give viewers conflicting perspectives on the plant and had thereby violated the second of the fairness doctrine's two requirements."

The FCC agreed; Meredith filed for reconsideration, arguing that the fairness doctrine was unconstitutional. Before ruling on the appeal, in 1985 the FCC, under Chair Mark Fowler, published a "Fairness Report." This report declared that the fairness doctrine was having a "chilling effect" on speech and thus could be a violation of the First Amendment.

Moreover, the report asserted that scarcity was no longer an issue because of cable television. Fowler was a former broadcast industry attorney who argued that television stations have no public interest role. Instead, he believed: "The perception of broadcasters as community trustees should be replaced by a view of broadcasters as marketplace participants."

Almost concurrently, in Telecommunications Research & Action Center (TRAC) v. FCC (801 F.2d 501, 1986) the D.C. district court ruled that the Fairness Doctrine was not codified as part of the 1959 Amendment to the 1937 Communications Act. Instead, Justices Robert Bork and Antonin Scalia ruled that the doctrine was not "mandated by statute."

FCC Repeals Rule

In 1987, the FCC repealed the Fairness Doctrine, "with the exception of the personal attack and political editorializing rules."

In 1989, the DC District Court made the final ruling in Syracuse Peace Council v FCC. The ruling quoted the "Fairness Report" and concluded that the Fairness Doctrine was not in the public interest:

On the basis of the voluminous factual record compiled in this proceeding, our experience in administering the doctrine and our general expertise in broadcast regulation, we no longer believe that the fairness doctrine, as a matter of policy, serves the public interest...

We conclude that the FCC's decision that the fairness doctrine no longer served the public interest was neither arbitrary, capricious nor an abuse of discretion, and are convinced that it would have acted on that finding to terminate the doctrine even in the absence of its belief that the doctrine was no longer constitutional. Accordingly we uphold the Commission without reaching the constitutional issues.

Congress Ineffective

In June 1987, Congress had attempted to codify the Fairness Doctrine, but the bill was vetoed by President Reagan. In 1991, President George H.W. Bush followed suit with another veto.

In the 109th Congress (2005-2007), Rep. Maurice Hinchey (D-NY) introduced H.R. 3302, also known as the "Media Ownership Reform Act of 2005" or MORA, to "to restore the Fairness Doctrine." Although the bill had 16 co-sponsors, it went no where.