The Fairness Doctrine Law: A Historical Perspective

The Fairness Doctrine, enforced by the Federal Communications Commission (FCC), was introduced in 1949 and mandated that broadcast networks devote time to contrasting views on issues of public importance. While it was never a law, Congress did back the policy in 1954 and amended the Communications Act of 1934 in 1959 to formalize the doctrine. In 1987, the FCC abolished the Fairness Doctrine, prompting some to urge its reintroduction through either Commission policy or congressional legislation.

The Fairness Doctrine's two basic elements

The Fairness Doctrine, a policy introduced by the United States Federal Communications Commission (FCC) in 1949, had two basic elements:

• It required broadcasters to devote some of their airtime to discussing controversial matters of public interest.
• It required broadcasters to air contrasting views regarding those matters.

Stations were given the freedom to choose how to provide contrasting views. They could do so through news segments, public affairs shows, or editorials. The doctrine did not require equal time for opposing views but did require that contrasting viewpoints be presented.

The Mayflower Decision

Flynn then created a company called Mayflower Broadcasting and attempted to get the FCC to award him the license for WAAB. The FCC refused and instead issued the Mayflower Decision, which established the principle that radio stations must remain neutral in news and political matters and not use their platforms to promote specific political positions or candidates.

The fairness doctrine was abolished by the FCC in 1987, with some calling for its reintroduction through commission policy or congressional legislation. The FCC removed the rule from the Federal Register in August 2011.

The Supreme Court upholds the Fairness Doctrine

The Fairness Doctrine was a policy introduced in 1949 by the United States Federal Communications Commission (FCC). It required broadcast license holders to present controversial issues of public importance and to do so by fairly representing differing viewpoints.

The Supreme Court upheld the Fairness Doctrine in the 1969 case of Red Lion Broadcasting Co. v. FCC. In this case, journalist Fred Cook sued a Pennsylvania Christian radio program after a host attacked him on air. The Supreme Court unanimously upheld Cook's right to an on-air response under the Fairness Doctrine. The Court argued that nothing in the First Amendment gives a broadcast license holder the exclusive right to the airwaves they operate on.

The Court's decision was rooted in what some refer to as the "Scarcity Doctrine," which states that because of the scarcity of radio frequencies, the government can put restraints on licensees in favour of others whose views should be expressed. However, the Court cautioned that if the Fairness Doctrine ever began to restrain speech, it should be reconsidered.

In the years following the Red Lion Broadcasting Co. v. FCC decision, the Supreme Court continued to address the Fairness Doctrine in cases such as Miami Herald v. Tornillo (1974) and FCC v. League of Women Voters of California (1984). Despite the Supreme Court's initial support for the Fairness Doctrine, it was abolished by the FCC in 1987.

The FCC's repeal of the Fairness Doctrine

The Fairness Doctrine was repealed by the FCC in 1987, under FCC Chairman Dennis Patrick, and with a 4-0 vote. The repeal was upheld by a panel of the Appeals Court for the D.C. Circuit in February 1989, though the court did not reach the constitutional issue.

The report stated that:

> The intrusion by government into the content of programming occasioned by the enforcement of [the fairness doctrine] restricts the journalistic freedom of broadcasters ... [and] actually inhibits the presentation of controversial issues of public importance to the detriment of the public and the degradation of the editorial prerogative of broadcast journalists.

The repeal of the Fairness Doctrine was opposed by members of Congress, who believed that the FCC was attempting to "flout the will of Congress" and that the decision was "wrongheaded, misguided and illogical". In June 1987, Congress tried to preempt the FCC's decision by passing the Fairness in Broadcasting Act of 1987 (S. 742), but this was vetoed by President Ronald Reagan.

The repeal of the Fairness Doctrine has been cited as a contributing factor to the rising level of party polarisation in the United States.

Congress's attempts to reinstate the Fairness Doctrine

The Fairness Doctrine was introduced in 1949 by the Federal Communications Commission (FCC) as a policy that required the holders of broadcast licenses to present controversial issues of public importance and to do so in a manner that fairly reflected differing viewpoints.

In 1987, the FCC abolished the Fairness Doctrine, prompting some to urge its reintroduction through congressional legislation. Since then, there have been several attempts by Congress to reinstate the doctrine:

• In June 1987, Congress passed the Fairness in Broadcasting Act of 1987 (S. 742) to preempt the FCC's decision and codify the Fairness Doctrine. However, this legislation was vetoed by President Ronald Reagan, and Congress could not muster enough votes to overturn the veto.
• In 1991, Congress made another attempt to write the Fairness Doctrine into law, but this effort was thwarted by a veto threat from President George H.W. Bush.
• In February 2005, Representative Louise Slaughter and 23 co-sponsors introduced the Fairness and Accountability in Broadcasting Act (H.R. 501), which sought to shorten a station's license term and require license-holders to cover important issues fairly. However, the bill did not progress beyond being referred to committee.
• In the same year, Representative Maurice Hinchey introduced the Media Ownership Reform Act of 2005 (H.R. 3302), also known as H.R. 3302, with 16 co-sponsors. This legislation aimed to restore the Fairness Doctrine, but it did not become law.
• In 2007, Senator Norm Coleman proposed an amendment to a defense appropriations bill to prohibit the FCC from using funds to adopt a fairness rule. The amendment was blocked due to jurisdictional issues.
• In 2007, the Broadcaster Freedom Act of 2007 (S.1748, S.1742, and H.R. 2905) was proposed in both the Senate and the House. This legislation aimed to prevent the FCC from reinstating the Fairness Doctrine. While it gained significant support, neither measure made it to the floor of either house.
• In 2009, the Broadcaster Freedom Act of 2009 (H.R.226) was introduced to block reinstatement of the doctrine. The act was added as an amendment to the District of Columbia House Voting Rights Act of 2009 (S.160), which passed the Senate but not the House of Representatives.
• On September 19, 2019, Representative Tulsi Gabbard introduced the Restore the Fairness Doctrine Act of 2019 (H.R. 4401). The bill was referred to the House Committee on Energy and Commerce and the Subcommittee on Communications and Technology but did not receive a vote.

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