There has been much discussion lately on Capitol Hill of reinstating the Fairness Doctrine. A number of Democratic senators and congressmen seem to think that “talk radio” – that is, Rush Limbaugh and others like him – is too one-sided, and that the Fairness Doctrine would cause broadcast stations to be more balanced in their presentation of news and talk programming.
Any discussion of the Fairness Doctrine should start with some background about what it actually was, what it did and, most important, what it did not do.
The FCC adopted the Fairness Doctrine in 1949 and repealed it in 1987. The Fairness Doctrine was never an FCC rule. It was a policy that was never codified into the FCC’s rules. Two prior congressional attempts to enact a statutory Fairness Doctrine were met with Presidential vetoes, and President Bush has stated that he would veto any such legislation.
Under the Fairness Doctrine, every broadcast station had an affirmative obligation to broadcast information on controversial issues of public importance; and, every broadcaster had the obligation to present contrasting points of view on controversial issues of public importance that were discussed on the station. There was never an “equal time” component to the Fairness Doctrine. (Nor is “equal time” a part of the present political broadcasting rules, even though people often use that phrase. The correct term is “equal opportunity.”) There was never a “stop watch test” in the Fairness Doctrine, and the balancing of views did not have to be presented within the same program or time slot. Rather, a station, in its overall broadcasts, had to be fair, rather than one-sided, in discussing and presenting information regarding a particular controversial issue of public importance.
There was a corollary of the Fairness Doctrine called the personal attack rule. This rule lasted longer than the Fairness Doctrine but, like the Fairness Doctrine, is no longer part of the Commission’s rules or policies. The personal attack rule stated that if, during the course of a discussion of a controversial issue of public importance, someone attacked an individual’s reputation or integrity, the station had to send a transcript of the broadcast to the person attacked and offer him/her an opportunity to respond.
As pointed out above, some legislators seem to think that enacting a new Fairness Doctrine, by statute, would defang the Rush Limbaughs of the broadcast world. However, that would not be the case if the new Fairness Doctrine resembled the old one. A station that broadcast the Rush Limbaugh program could simply broadcast a different program, in a different time slot, that took the opposite approach. The Limbaugh program would not have to change at all.
The original rationale for the Fairness Doctrine was “scarcity” – that is, there were far fewer broadcast stations then than now, and the spectrum had always been viewed as a “scarce” resource. However, that was before we had multiple cable channels and the Internet, before the FCC created hundreds of new FM allotments in the 1980s and licensed many new television stations, and before the development of new networks beyond the original three. Although the spectrum is still, in an absolute sense, “scarce,” no one can argue that there is a shortage of programming and information sources available to the American public, even for households that do not have Internet access or subscribe to multi-channel television service.
The principal argument in favor of the Fairness Doctrine is that a broadcast license is a privilege and license holders should try to be balanced in their presentations of programming on controversial issues.
As Senator Dick Durbin (D-IL) put it recently: “[W]hen Americans hear both sides of the story, they’re in a better position to make a decision.” The main argument against the Doctrine is that it is an infringement of broadcasters’ First Amendment rights. Chief Justice Warren Burger stated the point succinctly in 1974 in the case of Miami Herald Publishing Co. v. Tornillo: “Government-enforced right of access inescapably dampens the vigor and limits the variety of public debate.”
One Washington pundit called the debate “this summer’s silliness.” As pointed out above, President Bush has already announced he would veto any legislation attempting to enact a new Fairness Doctrine, and FCC Chairman Kevin Martin announced in July that the FCC has no plans to reinstate the Doctrine. Thus, while I don’t think broadcasters should be concerned that a new Fairness Doctrine will go into effect any time soon, I think it is important for broadcasters to understand some of the history and background of the Fairness Doctrine in order to address the issue if it comes up in discussions with politicians, community leaders or your audience.