DOES THE FAIRNESS DOCTRINE
SERVE PUBLIC INTEREST?
By Elaine McKellips
The Fairness Doctrine is a two-fold provision of the Communications Act of 1934 applied by the Federal Communications Commission to radio and television broadcasters throughout the United States. Reinforced by Congress in 1959, the doctrine requires that,
"television and radio stations devote adequate time to controversial issues of public importance and allow reasonable time for opposing viewpoints. The equal opportunities requirement of the doctrine also states that in the presentation of newscasts, news interviews, and on-the-spot coverage of news events, broadcasters be obligated to operate in the public interest"
Although the Fairness Doctrine was drafted with the honorable objective of procuring equal access and equitable debate, the insertion of the term "public interest" places in jeopardy the very freedom that the doctrine was designed to protect.
The evolution of the Fairness Doctrine began with the Radio Act of 1927, which established a five-person Federal Radio Commission (FRC) to grant and evoke licenses, assign frequencies, and determine station power and locations. Airwaves were defined as a public resource that broadcasters could be licensed to use but not own. The act declared that the FRC exercise its powers "as public convenience, interest, or necessity requires". Later, the Federal Radio Commission's authority was augmented by the passage of The Communications Act of 1934. The act centralized regulation of the telephone, telegraph, and broadcast media and created a seven-person Federal Communications Commission with expanded regulatory powers. It also included a provision for equal opportunities in the form of the "Fairness Doctrine". In 1959, Congress passed an amendment "declaring their intention to re-examine the Fairness Doctrine from time to time to ascertain its effectiveness and practicality. The amendment also requires that the FCC provide an annual report along with recommendations as it deems necessary in the public interest".
In 1986, the constitutionality of the Fairness Doctrine was challenged in the appeals court. Judge Bork concluded that the doctrine was not codified and remanded the case to the FCC. The Federal Communications Commission responded by narrowing the doctrine's scope, repealing all applications except as they apply to candidates and ballot issues. In 1987, as a result of the Bork decision and the subsequent deregulation by the FCC, there were numerous calls to codify the doctrine to guarantee balanced programming and protect public interest. The 100th Congress voted to codify the doctrine with the Fairness In Broadcasting Act of 1987, but it was vetoed by President Reagan. In a letter that accompanied his veto, Reagan stated that, "History has shown that the dangers of an overly timid or biased press cannot be averted through bureaucratic regulation, but only through the freedom and competition that the First Amendment sought to guarantee".
In February 1988, a report was issued by the U.S. Public Interest Research Group indicating that station coverage was "grossly unbalanced" due to the 1987 repeal. They argued that broadcasters were "not disposed to cover opposing viewpoints when they do not view themselves as subject to the Fairness Doctrine obligation". The 101st Congress in the House of Representatives introduced H.R. 315 in January of 1989. It was a bill designed "to clarify congressional intent, and to codify certain requirements of the Communications Act of 1934". Endless debate prevented the bill's passage. Later, the Senate held hearings on Broadcasters' Public Interest Obligations and S. 217, The Fairness In Broadcasting Act of 1991, legislation reinstating the Fairness Doctrine. The sponsors of S. 217 believed that the doctrine "enhances free speech and furthers the First Amendment principals". The bill, like that of the House of Representatives', was lost in debate.
Currently, S.333, The Fairness In Broadcasting Act of 1993 is on the Senate house floor. The bill is sponsored by Senator Hollings (D-NC), referred to as the "mad dog of fairness" by Rush Limbaugh, a controversial radio talk show host. Although most agree with the public trustee concept that "is premised on the idea that, in exchange for use of the public airwaves, broadcasters will provide programming that reflects local community needs and issues, discuss conflicting viewpoints on controversial issues, and contribute to the development of an informed electorate" The debate continues on the necessity of "must-carry" rules to achieve greater access to debate on matters of public importance. In their report to Congress in June 1991, the U.S. Public Interest Group recommended that the pre-1987 Fairness Doctrine be codified "into statutory law…[to]…force the FCC into honoring Congressional intent and ensure balance on publicly-owned airwaves".
The Federal Register, on the public interest standards, states, "a complete laissez-faire policy on the part of the government would lead to the destruction of effective radio communication and thus to a frustration of the basic goals of the First Amendment". It states further that, "the continuing evolution of the media…has led…to a different approach to the First Amendment…[it] recognizes the responsibility of government in maintaining and enhancing a system of freedom of expression".
Does that mean that government regulation of free speech is in the public's interest? In April of 1994, a House panel debated the effects of television news on foreign policy. Ed Turner and Ted Koppel appeared before the House Foreign Affairs Committee to defend the medium against criticism that its on-the-spot reporting forces politicians "to react quickly, perhaps too quickly to a crisis", in the words of Rep. Lee Hamilton (D-IN). With lawmakers in office who believe that the public would best be served by sifting and rationing information to manipulate international interpretation, the objective of the First Amendment is indeed at risk. The Constitution guarantees the spontaneous right of free speech to leave the choice of interest to the public. Honorable Alfred C. Sikes, Chairman of the FCC testified before Congress in June 1991 that "they were gridlocked on the idea of a public interest standard because no person could come up with an acceptable definition".
The term "public interest" seems to be the self-defeating flaw of the Fairness Doctrine. Clarence Dill, principal sponsor of the Communications Act is quoted as saying, "he borrowed the language for the FCC standard of public interest, convenience, and necessity from provisions of public utility laws". Yet, the law clearly defines airwaves a public resource. In his testimony to Congress, Alfred Sikes also states that, "the public interest standard too often also functioned as a codeword for Government intervention, particularly to regulate the specific content of broadcast programming". Judge David Bazelon warned that, "If we are to go after gnats with a sledgehammer like the Fairness Doctrine, we ought to at least look at what else is smashed beneath our blow".
Balance in programming and opinion is endowed by the sheer number of outlets available. The freedom of speech gives everyone a voice; the airwaves merely provide a medium. In 1935, there were only 623 radio stations on the air. By the mid-1980s, there were 10,600 radio and 14,000 television stations broadcasting nationwide. The airwaves are concentrated with a diversified range of information sources. To regulate programming content would be approving censorship in a free democracy. The First Amendment clearly forbids regulation by stating that "Congress shall make no law…abridging the freedom of speech, or of the press".
In today's market, there are a number of programs that devote their format primarily to controversial issues while offering uncensored debate with their audience. Those who disagree are encouraged to call in and support their position to balance the issue. Through a telephone line, an individual can voice their opinion to the nation-at-large. The public is no longer confined by the scarcity of access. News based programs are broadcasted 24-hours a day, providing on-the-spot, live coverage of important events. Wars, natural disasters, congressional debates, and investigative hearings can be witnessed as they occur, preventing the biased interpretation of the media.
To preserve freedom of speech, the public's unrestricted line of communication must not be squelched by Government regulation. In the beginning, congress distanced themselves from the enforcement of airwave requirements by establishing the Federal Communications Commission to keep the airwaves open to the public and free from interference. However, the 1959 Amendment to the Communications Act re-involved government in the policies of broadcasting. By establishing their intent to re-examine the Fairness Doctrine to determine its effectiveness and practicality, Congress has kept alive the possibility of censoring media content, thus controlling public information. History has proven that the danger of straining information sources is the production of government-fed propaganda.
Since the 1987 repeal of the Fairness Doctrine, the FCC no longer requires broadcasters to keep meaningful records. Instead, they are urged to comply with the menial request of keeping a public file containing programming directed toward public and political issues. The file is subject to inspection by the FCC and broadcasters are simply fined for violations. Due to the enormous number of radio and television stations, the FCC is incapable of monitoring the airwaves themselves. They rely on public complaints to avert their attention to potential infractions. Unfortunately, the commission does not make themselves readily available to the public they serve. Equal public access is essential in protecting such a valuable resource if it is truly to act in the public's interest.
The FCC's lack of concern is matched only by the public's indifference and the broadcasters' desire to stay in business. On the media's reaction to the possibility of re-instating the Fairness Doctrine, New York's Governor, Mario Cuomo said, "I get the sense…that a lot of the people who make profits in this business will sell freedom for fees…" A recent newspaper article by the Associated Press states that, "Radio listeners do not have legal standing to pursue…complaints beyond the FCC". If the Federal Communications Commission, established by the government to protect a public resource from itself, concedes their regulatory and enforcement powers to Congress, the public's interest cannot be served. The public must not sanction the FCC's handing over the First Amendment to Congress. They must hold the Federal Communications Commission responsible for their role as public trustees of a resource that is crucial in the preservation of a democracy.
