The Fairness Doctrine was a policy promulgated by the Federal Communications Commission (“FCC”) which applied to television and radio broadcast licensees. The policy required each broadcast licensee to devote a reasonable amount of its broadcast time to the coverage of issues of public importance and, when it covered those issues, to provide an opportunity for the presentation of contrasting points of view. The Fairness Doctrine never required a broadcaster to provide an equal opportunity for opposing views, nor did it require balance in any individual program, but merely required each broadcaster to air various points of view on public issues it covered in its overall programming over the course of the term of its license. In 1987, the FCC ceased to enforce the Fairness Doctrine.
Didn’t the Fairness Doctrine allow the FCC to censor a broadcaster’s or programmer’s speech?
No. The Fairness Doctrine never applied to persons or companies who produce programs; it applied to the licensees of over-the-air radio and television stations (it never applied to cable television, satellite systems or the Internet). The FCC explicitly left the manner by which a broadcast licensee covered controversial issues of public importance to the editorial judgment of the licensee. The FCC left to each broadcast licensee’s own judgment to determine the choice of subjects it would consider, the format of the programs devoted to subjects of its choosing, the choice of opinions to be represented and the spokespersons representing various opinions. The FCC expressly forbade broadcast licensees from allowing others to select program content.
How did the FCC enforce the Fairness Doctrine?
The FCC would respond to individual complaints that specific broadcasters did not, in their overall programming, present contrasting views on a specific issue covered by the broadcaster. The FCC would receive a response from the broadcaster, and, based on these filings, would inquire whether it was apparent that the licensee acted in a reasonable fashion and was not arbitrary. Out of thousands of complaints filed in the last years in which the Fairness Doctrine existed, the FCC dismissed the majority of complaints and only in six cases asked for a broadcaster response. The usual sanction imposed if the FCC determined that a complaint was valid was a letter of admonition.
What is the FCC proposing to do now?
The FCC is asking for public comments on several proposed new rules to improve how television and radio broadcasters relate to the community in which the broadcasters do business. The Communications Act of 1934, the statute which created the FCC and established the basic framework for broadcast regulation, requires each broadcast licensee to serve the public interest, convenience and necessity. Congress and the federal courts have mandated that broadcasters serve as public trustees of the channels on which they are licensed to broadcast. The FCC has tentatively concluded that not all broadcasters are adequately meeting the broadcast needs of their communities. To help correct this, the FCC has proposed that each broadcaster convene an advisory board made up of members of the broadcaster’s community, and receive from them ideas about local issues the broadcaster can consider covering in its overall programming, or to have other regular contacts with members of its community of license. The FCC specifically recognized, from the comments of some broadcasters, that many broadcasters already contact their communities to receive ideas about programming. The FCC also is proposing that each broadcaster use a standardized form to inform the FCC and the public about the programming it aired in a specific time frame, broken down by program categories (national news, local news produced by the station, local news produced by an outside producer, other local public service announcements, paid public service announcements, religious programming and closed captioned programs), and the dates and times of this programming. The FCC intends that this information will provide the public with a meaningful opportunity to provide input when a broadcaster applies for renewal of its license.
How are those proposals like the Fairness Doctrine?
They are not. These proposals, which have not been promulgated into any rules and which are still open for public comment and discussion, do not recreate the Fairness Doctrine. They propose that broadcasters talk to members of their local community to gather ideas about how broadcasters can address local issues important to the community in their programming. They do not require any particular programs be aired. They also merely require broadcasters to provide information about their programming so that the public can give the FCC opinions about broadcasters’ performance as a licensee.
Is there a proposal to reintroduce the Fairness Doctrine?
No. The current acting Chairman of the FCC, the President, and the Chairman of the Senate Commerce Committee (which has jurisdiction over communications matters) have stated that they oppose the Fairness Doctrine and have no plans to revive it.
Revised Spring, 2010