The day the Fairness Doctrine died

Beginning in 1934, the Federal Communications Commission (FCC) limited broadcast license ownership as part of the public interest, “the belief that the public should get the greatest number of viewpoints from diverse, competing sources.”

Airwaves are publicly owned; the FCC licenses broadcasters to “[prevent] interference from competing broadcasters.”

A 1949 FCC report, In the Matter of Editorializing by Broadcast Licensees, detailed what became known as the Fairness Doctrine. The FCC “affirmatively established the duty of broadcast licensees to cover controversial issues of public importance in a fair and balanced manner.”

The Fairness Doctrine addressed two basic requirements:
(1) that every licensee devote a reasonable portion of broadcast time to the discussion and consideration of controversial issues of public importance; and
(2) that in doing so, [the broadcaster must be] fair – that is, [the broadcaster] must affirmatively endeavor to make … facilities available for the expression of contrasting viewpoints held by responsible elements with respect to the controversial issues presented.

Congress also endorsed the policy, in 1959, when amending Section 315 of the Communications Act of 1934.

“Nothing in the foregoing sentence shall be construed as relieving broadcasters … from the obligation imposed upon them under this Act to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public importance.”

The US Supreme Court supported the “fairness” portion of the doctrine for television broadcasts but not newspaper articles:

In 1969’s Red Lion Broadcasting Co. v. FCC, journalist Fred Cook sued a Pennsylvania Christian Crusade radio program after a radio host attacked him on air. In a unanimous decision, the Supreme Court upheld Cook’s right to an on-air response under the Fairness Doctrine, arguing that nothing in the First Amendment gives a broadcast license holder the exclusive right to the airwaves they operate on. But when Florida tried to hold newspapers to a similar standard in 1974’s Miami Herald Publishing Co. V. Tornillo, the Supreme Court was less receptive. Justices agreed that newspapers — which don’t require licenses or airwaves to operate — face theoretically unlimited competition, making the protection of the Fairness Doctrine unneeded.

In the 1970s the FCC called the doctrine the “single most important requirement of operation in the public interest – the sine qua non for grant of a renewal of license.”

But Ronald Reagan ushered in an era of deregulation in 1981.

In June 1987, Congress passed the Fairness Doctrine (Fairness in Broadcasting Act of 1987 S. 742) in a belated effort to codify the doctrine. President Reagan vetoed the legislation on 22 June 1987. The Senate initially passed the bill 59-31 but the veto-override vote was only 53-45, far short of the two-thirds needed. The House had approved the bill on a voice vote.

On 04 August 1987, the Federal Communications Commission abolished the Fairness Doctrine (4-0).

How did we do a 180 in less than 20 years?

The FCC claimed that “the scarcity rationale was no longer applicable” because the number of broadcast stations had grown. Nothing about who owned them.

In explaining the conclusion that its fairness rules were ”no longer necessary to achieve diversity of viewpoint,” Ms. Killory, the commission’s counsel, noted the major growth of broadcast outlets in recent years.

There are now more than 1,300 television stations and more than 10,000 radio stations in the United States – in contrast to 1,700 daily newspapers – and 95 percent of viewers receive five or more television signals. Radio listeners in the biggest 25 markets receive an average of 59 radio stations.

[…]

Ernest F. Hollings, a South Carolina Democrat who heads the Senate Commerce Committee, called today’s decision “wrongheaded, misguided and illogical,” and said the doctrine provides the only means for many members of the public to be heard.

Note that the Fairness Doctrine has not ever applied to cable television; it only applied to broadcast (over the air) radio and television stations.

Reagan’s FCC

During the Reagan Administration, the FCC “began to question the continued necessity of the Fairness Doctrine. The FCC believed that broadcast markets needed an “unregulated marketplace of ideas.”

The philosophy came to a head in a New York case involving WTVH Syracuse, which the FCC initially agreed was a Fairness Doctrine violation (1984).

In the summer of 1982 Meredith ran a series of advertisements over WTVH arguing that the Nine Mile II nuclear power plant was a “sound investment for New York.” Syracuse Peace Council complained to the Commission that Meredith had failed to give viewers conflicting perspectives on the plant and had thereby violated the second of the fairness doctrine’s two requirements.

In its initial decision the Commission agreed with Syracuse that Meredith had failed to fulfill its obligations under the doctrine and demanded that the station within 20 days give notice of how it planned to meet those obligations. Syracuse Peace Council, 99 F.C.C.2d 1389, 1401 (1984).

Meredith filed a petition for reconsideration in which it argued that the fairness doctrine was unconstitutional.

On 17 January 1987, the FCC published its revised decision in favor of Meredith in the Federal Register. It foreshadowed the August announcement.

Media ownership, then and now

By 1954, the FCC had set the following ownership limits for broadcast companies. At the national level, a single broadcast media business could own and operate to no more than seven AM radio stations, seven FM radio stations and seven TV stations (established 1953-54).

The rules were more strict at the local and regional levels:

A station owner generally is prohibited from building or acquiring another station if he would then own a TV-radio combination in the same community.

[…]

The regional ownership rules prohibit the acquisition
of 3 broadcast stations if any 2 are within’ 100 miles
of the third and any of the stations have overlapping primary areas of service.

In 1976, television station ownership was disparate: 128 owners controlled 61% of all commercial TV stations.

Ben Bagdikian wrote that in 1983 the owners of the top 50 mass media companies in the United States “could have fit comfortably in a modest hotel room.”

By 2003, five men controlled all the media outlets that those 50 companies had controlled, 20 years earlier [Chapter 2].

What happened in-between? Congress and the FCC continually loosened ownership rules, particularly for television stations.

 

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