On Monday, FCC chairman Julius Genachowski announced the elimination of 83 regulations, including one of the agency’s most famous: the Fairness Doctrine. What is the Fairness Doctrine, and why is it gone?
What it was: The Fairness Doctrine, as initially laid out in the report, ”In the Matter of Editorializing by Broadcast Licensees,” required that TV and radio stations holding FCC-issued broadcast licenses to (a) devote some of their programming to controversial issues of public importance and (b) allow the airing of opposing views on those issues. This meant that programs on politics were required to include opposing opinions on the topic under discussion. Broadcasters had an active duty to determine the spectrum of views on a given issue and include those people best suited to representing those views in their programming.
Additionally, the rule mandated that broadcasters alert anyone subject to a personal attack in their programming and give them a chance to respond, and required any broadcasters who endorse political candidates to invite other candidates to respond. However, the Fairness Doctrine is different from the Equal Time rule, which is still in force and requires equal time be given to legally qualified political candidates.
How it came about: In the Radio Act of 1927, Congress dictated that the FCC (and its predecessor, the Federal Radio Commission) should only issue broadcast licenses when doing so serves the public interest. In 1949, the FCC interpreted this more strictly to mean that licensees should include discussions of matters of public importance in their broadcasts, and that they should do so in a fair manner. It issued “In the Matter of Editorializing by Broadcast Licensees,” which announced the Fairness Doctrine, and began enforcing it.
How it was ended: The Fairness Doctrine sustained a number of challenges over the years. A lawsuit challenging the doctrine on First Amendment grounds, Red Lion Broadcasting Co., Inc. v. Federal Communications Commission , reached the Supreme Court in 1969. The Court ruled unanimously that while broadcasters have First Amendment speech rights, the fact that the spectrum is owned by the government and merely leased to broadcasters gives the FCC the right to regulate news content. However, First Amendment jurisprudence after Red Lion started to allow more speech rights to broadcasters, and put the constitutionality of the Fairness Doctrine in question.
In response, the FCC began to reconsider the rule in the mid-80s, and ultimately revoked it in 1987, after Congress passed a resolution instructing the commission to study the issue. The decision has been credited with the explosion of conservative talk radio in the late ‘80s and early ‘90s. While the FCC has not enforced the rule in nearly a quarter century, it remains technically on the books. As a part of the Obama administration’s broader efforts to overhaul federal regulation, the FCC is finally scrapping the rule once and for all.