With the 2020 election looming, some of “we the people” ponder the public-interest protections once found in the now-defunct 1949 Fairness Doctrine. Rooted in the 1927 Radio Act, passed to manage the public’s airwaves, the Federal Communications Commission revoked it in 1987, part of the Reagan administration’s commitment to deregulation. Resuscitation efforts have failed.
As competing communication channels opened, the scarcity of broadcast spectrum became moot. The concept of airwaves as a public trust fell by the wayside. Cable television and satellite signals gained ground, and the internet, with its promise of diversity, lay on the horizon. In 2011, during the Obama administration, the FCC scrapped the doctrine’s last provisions. Today, the Restore the Fairness Doctrine Act of 2019, introduced in September (U.S. Rep. Tulsi Gabbard, D-HI), languishes in committee.
That’s a shame. “Although the Fairness Doctrine’s effectiveness and enforceability are debatable, it encouraged sensitivity toward programming biases and provided local communities an important tool with which to hold broadcasters accountable,” writes Victor Pickard in a 2018 article in the International Journal of Communications. Pickard is professor at the University of Pennsylvania’s Annenberg School for Communications.
The doctrine’s larger purpose, often overlooked, was to make sure broadcast licensees covered issues of public importance in a fair manner. A lamentable loss, given continued consolidation and the polarizing, partisan news that sprang up after the doctrine’s death. Public interest issues back in the day included workers’ rights, nuclear plant construction, even diet and health. If stations failed to seek and air opposing views, they could lose licenses or face renewal problems or be required to provide time for competing views if they hadn’t been aired. In its ruling, the FCC cited the “chilling effect” on broadcasters’ free speech. Since most violations centered on failure to air valid opposing views, some broadcasters quit airing public-interest issues, and even paid programming, that might trigger their Fairness Doctrine obligations.
President Reagan vetoed the bill Congress passed to reinstate the doctrine; President George H.W. Bush’s veto threat prevented another effort. The doctrine had survived one free speech challenge in 1969 when the Supreme Court upheld its first-amendment constitutionality. In its finding, SCOTUS weighed audiences’ rights more heavily than those of broadcasters, with reasoning since questioned. In 1987, the FCC found the Fairness Doctrine violated the first amendment rights of broadcasters, though no court has addressed the constitutional question. The original doctrine’s public-interest provision has often been conflated with the equal opportunity rule, which still exists, but only for political candidates, not supporters, and with exceptions. Scheduled appearances in interviews, documentaries, and spot news coverage are exempt. This applies to a wide-range of programs, even “The Late Show” with Stephen Colbert, entertainment that sometimes features candidates as guests.
Without a candidate’s recognizable voice or image, the equal time rule doesn’t apply. Complaints were filed against license renewals of two Wisconsin radio stations because they failed to give equal time to supporters of Republican Gov. Scott Walker’s opponent in a recall election, after the stations aired support for Walker. The FCC in 2014 dismissed those complaints: “A licensee has broad discretion—based on its right to free speech—to choose the programming that it believes serves the needs and interests of the members of its audience.”
While it’s tempting to wholly blame the rise in partisan news on the doctrine’s demise, the issue is not so simple. Deregulation fueled consolidation as advances in technology changed the media-scape. Personal listening devices, for instance, made radio’s music formats less appealing and less profitable. Talk helped fill that void.
The Fairness Doctrine does survive, in public discussions, though it’s often raised by conservatives as a symbol of regulatory overreach. They link it to net neutrality, the idea that internet providers should treat all data the same, rather than privilege one type of content, user, platform, website, equipment and such, over another. But this principle is irrelevant to the Fairness Doctrine. The only parallel between the two ideas, Pickard notes in an email exchange, is that “both are public interest protections that are trying to address commercial excesses in communication systems.”
These days, losses in journalism and concentrated commercial media have undermined public-interest news. Policy interventions could help restore public trust. British broadcasters follow “due impartiality” rules in political coverage, Pickard notes, which sensitizes media firms and audiences to balance.
What might a 21st century vision of public interest coverage look like? I posed this question to Pickard. “That news outlets should feel compelled to cover important policy issues from multiple perspectives. What, for example, Fox News is doing would not be acceptable. But it is difficult to imagine how as a society we can mandate this responsibility of highly profitable media conglomerates whose first loyalty will always be the bottom line, democracy be damned. Well-funded public alternatives may be our last, best hope.”
Betty Joyce Nash reported for the Hendersonville Times-News and the Greensboro News & Record before moving to Virginia. She writes journalism and fiction from Charlottesville. In 2017, the University of New Mexico Press published Lock & Load: Armed Fiction, a book of short stories she co-edited with a colleague. The stories probe Americans’ complicated relationship to firearms. For more information, see www.bettyjoycenash.com