Origin

A station licensee's duty to present diverse views on public issues was first declared by the Federal Radio Commission in 1928. A dozen years later, however, the FCC reversed direction when it strongly criticized a station for its practice of editorializing. In its 1941 Mayflower decision, the FCC concluded that with limited frequencies available for broadcasting, the public interest could not be well served by dedication of a broadcast facility to the support of its own partisan ends. In line with the Mayflower decision, broadcasters began to prohibit the sale of commercial time to deal with controversial issues-a policy that also helped them financially since such ads would only serve to anger some listeners and other advertisers.

In 1949 the FCC reversed itself, reconfirming that while stations have an obligation to cover controversial issues of public importance they now could (but did not have to) editorialize. When WHKC in Columbus, Ohio, refused to sell airtime to a labor union, the FCC stated that the station must be sensitive to the problems of public concern in the community and make sufficient time available on a nondiscriminatory basis. The commission concluded that radio stations have the "responsibility for determining the specific program material to be broadcast over their stations." Therefore, they were required to devote broadcast time to "issues of interest in the community served by their stations and [ensure] that such programs be designed so that the public has a reasonable opportunity to hear different opposing positions on the public issues of interest and importance in the community."

To nail down the proposed new policy on editorializing, the FCC held hearings on the matter. From the hearings came a 1949 statement, In the Matter of Editorializing by Broadcast Licensees, which placed two primary obligations on the broad- casters. What would become known later as the "fairness doctrine" required broadcasters (1) to cover controversial issues of public importance, and (2) to provide a reasonable opportunity for the presentation of contrasting viewpoints on those issues.

Development

A decade later, in 1959, Congress entered the fray. Legislators amended Section 315 (the political "equal opportunity" section of the Communications Act) to limit the applicability of the requirement to four types of news programs. At the same time, they made more concrete the broadcaster's responsibility to afford reasonable opportunity for the discussion of conflicting views on issues of public importance. This added phrase would cause considerable legal confusion in the future.

By 1967 the FCC had extended what was now commonly referred to as "the fairness doctrine" to include broadcast advertising of cigarettes, reasoning that because smoking was a controversial health issue, broadcasters were therefore required to provide contrasting viewpoints (This provision lasted until cigarette advertising was removed from the air entirely in the early 1970s.)

Complaining about yet another extension of the fairness doctrine, broadcasters asked what other types of program or advertising might trigger fairness doctrine concerns. To clarify the scope of their doctrine, the FCC instituted a wide-ranging inquiry into the fairness doctrine and its efficacy. As one result, the commission created three "contingent rights of access" policies similar to Section 315: the Zapple rule, the political editorializing rules, and the personal attack rules. The Zapple rule (named for a long-time Senate staff member, Nicholas Zapple, who had been involved with the issue) held that supporters of opposing political candidates must be given approximately the same amount of airtime during election campaigns. In its political editorial rule, the FCC required broadcasters to contact a legally qualified candidate within 24 hours of any station editorial opposing the candidate or endorsing an opponent and to provide a script or tape as well as free time to reply. The political editorial rule pertained only when a station editorial represented the views of the station licensee. Political commentators who were independent of management were subject only to the general fairness doctrine. Finally, the FCC's personal attack rules specified that broadcasters must offer reply rime if the honesty, character, or integrity of an identified person or group was attacked during the discussion of a controversial issue of public importance. A person attacked had to be notified within a week of the date, time, and identification of the broadcast. The licensee was required to provide a script, tape, or accurate summary of the attack and offer a reasonable opportunity for the attacked person to respond over the same station at no charge.

The Supreme Court firmly supported the fairness doctrine's constitutionality in its 1969 landmark decision in Red Lion Broadcasting Co. v FCC. Broadcasters argued that the number of commercial radio and TV stations in the country was higher than that of newspapers (for which no such "fairness" policy existed because of the First Amendment)-and growing. Therefore, they argued that the fairness doctrine was unnecessary because the public suffered no shortage of opportunities to hear different stations and diverse viewpoints. Broadcasters also contended that the fairness doctrine actually "chilled" or curtailed First Amendment rights of broadcasters by encouraging self-censorship-in other words, that many controversial issues might not be covered at all. The Court rejected both of these contentions, asserting that as long as demand for stations exceeded supply (the high sales price of stations was one such indicator), scarcity of spectrum remained, and thus allowed such FCC policies. In addition, the Court ruled that the doctrine did not violate a broadcaster's First Amendment rights since the right of the viewers and listeners to hear diverse viewpoints was paramount to the right of broadcasters to express their views.

Another Supreme Court case decided five years later, Tornillo v Miami Herald (1974), however, concluded that a fairness-type of requirement on newspapers in the state of Florida was clearly unconstitutional. Decided by the same court membership as had decided Red Lion five years earlier, the decision showed the stark difference in how the law viewed newspaper and broadcast journalists.

About the same time, the FCC adopted another Fairness Report, which reaffirmed the conclusions of its 1949 decision and upheld the application of a general fairness doctrine requirement for broadcast licensees on both statutory and constitutional grounds.

Demise

Despite the FCC's continuing series of reports and codifications of the fairness doctrine requirements through the 1970s, broadcasters still had problems with the doctrine. They continued to argue that it was too difficult to determine what issues were controversial, which viewpoints should be represented, and suggested that the doctrine was having a "chilling" effect on the Aow of ideas: broadcasters would be reluctant to cover controversial issues because according to the doctrine they would be required to report "fairly." IN FCC v League of Women Voters of California (1984) the Supreme Court concluded that the scarcity rationale underlying the doctrine might be flawed and that the doctrine might be limiting the breadth of public debate. A footnote suggested that the Court awaited some kind of an indication from the FCC as to whether the conditions that had led to the fairness doctrine (and the Red Lion decision) had significantly changed. The doctrine was increasingly difficult to enforce and went against the grain of an increasingly deregulatory commission.

Responding to a complaint brought by a group called the Syracuse Peace Council, on 26 October 1984 the FCC concluded that WTVM-TV (a Syracuse, New York, television station owned by Meredith Corporation), had violated the fairness doctrine in its treatment of a controversy surrounding construction of a nuclear power plant, a conclusion that the Meredith Corporation vigorously contested. A few months

later the FCC released another in its series of Fairness Reports

to publicly reevaluate the need for the doctrine. The commission concluded that:

On the basis of 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 interests. In making this determination, we do not question the interest of the listening and viewing public in obtaining access to diverse and antagonistic sources of information. Rather, we conclude that the Fairness Doctrine is no longer a necessary or appropriate means by which to effectuate this interest. We believe that the interest of the public in viewpoint diversity is fully served by the multiplicity of voices in the marketplace today and that the intrusion by government into the content of programming occasioned by the enforcement of the doctrine unnecessarily restricts the journalistic freedom of broadcasters. Furthermore, we find that the Fairness Doctrine, in operation actually inhibits the presentation of controversial issues of the public importance to the detriment of the public and in degradation of the editorial prerogative of broadcast journalists (FCC, Inquiry into Fairness Doctrine Obligations of Broadcast Licensees, 102 FCC 2d145, 1985).

The report argued that (1) the doctrine was contrary to the public interest because it "chilled" expression, and, therefore, (2) the doctrine was probably unconstitutional. Despite these conclusions, the FCC retained the doctrine because it doubted that it had the power to abandon it. The FCC'S legal advisors concluded that with its 1959 amendments in the 1934 act, Congress had formally incorporated the doctrine into Section 315, and thus the FCC could not remove it. Therefore, the FCC asked Congress to abolish the doctrine; Congress did nothing. Meanwhile, in the Meredith case, the FCC was in the awkward position of enforcing a doctrine that it was fervently denouncing. On 19 September 1986 the U.S. Court of Appeals for the District of Columbia (D.C.) Circuit·cleared up a legal ambiguity by ruling that the fairness doctrine had never been made a part of the 1934 law but was simply a regulation of the FCC. This meant that the FCC could drop its own regulation.

In the meantime the Meredith Corporation appealed the FCC fairness decision on constitutional grounds. In January 1987 the U.S. Court of Appeals for the D.C. Circuit instructed the FCC to address Meredith's constitutional argument against the fairness doctrine. Faced with this opportunity, on 6 August 1987 the FCC formally announced it would abandon the fairness doctrine on the several bases already argued, chiefly that the doctrine was probably unconstitutional and that it certainly had a chilling effect, exactly opposite from what was intended. The FCC concluded that "the Constitution bars us from enforcing the fairness doctrine," and argued that as the fairness doctrine chilled speech, it could not be construed to be sufficiently narrowly tailored to achieve a substantial government interest-the usual Supreme Court standard for content rules. Therefore, the FCC concluded that the fairness doctrine contravened the public interest.

Shortly after the FCC's decision to drop the fairness doctrine, Congress tried several times to resurrect it by making the doctrine part of federal law. One of the proposed bills stated:

[The fairness doctrine) ha[sj enhanced free speech by securing the paramount right of the broadcast audience to robust debate on issues of public importance; and ... [it] fairly reflects the statutory obligation of broadcasters under the [Communications] Act to operate in the public interest ... [The fairness doctrine) strikes a reasonable balance among the first amendment rights of the public, broadcast licensees, and speakers other than owners of broadcast facilities (H.R. Bill 1934, 119th Congress, 1st Session, proposing new Section 3I 5(a) to the Communications Act, 3 June 1987).

President Reagan vetoed the bill, calling the fairness doctrine a "content-based" regulation and antagonistic to the freedom of expression. In a veto message drafted at least in part by former FCC Chairman Mark Fowler (who had long sought to end the doctrine), Reagan claimed that

S.74 2 simply cannot be reconciled with the freedom of speech and the press secured by our Constitution. It is, in my judgment, unconstitutional. Well-intentioned as S.742 may be, it would be inconsistent with the First Amendment and with the American tradition of independent journalism. Accordingly, I am compelled to disapprove of this measure (23 Weekly Compilation of Presidential Documents, 715-16, 1987).

Congress was unable to override the veto. Attempts to revive the bill in 1989, 1991, and 1993 failed of passage. Such attempts largely ended when Republicans took control of congress in 1994.

The Supreme Court effectively supported the FCCs decision not to continue the doctrine when in 1990 it declined to review a lower court decision upholding the FCC action. Three years later, a federal appeals court decision reaffirmed that the fairness doctrine had been merely a commission policy and not a congressionally mandated law.

Aftermath

After the FCC abandoned the fairness doctrine, it announced it would no longer enforce fairness requirements for broadcast discussions of referenda, initiatives, recall efforts, and bond proposals. However, the commission made clear that its related personal attack, political editorializing, and Zapple rules remained in force. Broadcasters had first asked the FCC to abolish these rules in 1981, following up with at least four more formal requests over the next 16 years; all to no avail.

In December 1998, two leading broadcast trade organizations-the Radio-Television News Directors Association and the National Association of Broadcasters--challenged the constitutionality of the FCC's personal attack and political editorial rules in the U.S. Court of Appeals for the D.C. Circuit. In a series of decisions over the next two years, the FCC was unable to sustain its rules against the Court's firm finding that they appeared to be unconstitutional limits on broadcaster freedom. Angry at the slow moving commission, in October 2000 the court finally ordered that the rules be vacated (dropped) immediately, and the FCC complied. The last vestiges of the long-lasting fairness doctrine were gone.