FCC Strikes Fairness Doctrine From Fed Rulebook

Removes personal attack and free response corollaries, 83 other media-related rules that FCC says are unnecessary

By John Eggerton -- Broadcasting & Cable, 8/22/2011 2:00:00 PM

The FCC said Monday it has officially removed the Fairness Doctrine from its rulebook, along with the doctrine's personal attack and free response corollaries, plus 83 other media-related rules the FCC says are no longer needed. It will release the item on Wednesday  after a 48-hour notice period, according to a spokesman, but announced the move Monday, which does not require a vote by the commissioners.

The FCC has not enforced the doctrine, which required broadcasters to affirmatively seek out opposing viewpoints on controversial issues, in almost a quarter century, but it continued to cast a shadow over the agency from the viewpoint of many Republicans, broadcasters (particularly religious broadcasters) and others concerned about the speech regulation implications of its return.

The Fairness Doctrine's departure back in 1987 helped usher in conservative talk radio, and some Democrats in the past have argued for its return as a governor on that speech.

But FCC Chairman Julius Genachowski and President Obama had said they did not support the doctrine and that it was not coming back. But some Republicans saw its shadow in issues like proposals of community advisory boards for TV station public interest programming.

Genachowski reiterated his opposition to the doctrine again Monday in a statement on the stricken rules. "The elimination of the obsolete Fairness Doctrine regulations will remove an unnecessary distraction," he said. "As I have said, striking this from our books ensures there can be no mistake that what has long been a dead letter remains dead. The Fairness Doctrine holds the potential to chill free speech and the free flow of ideas and was properly abandoned over two decades ago. I am pleased we are removing these and other obsolete rules from our books."

Republican FCC Commissioner Robert McDowell, one of the doctrine's strongest critics, pointed out in a speech to the Telecommunications Industry Association in May that the doctrine, which the FCC concluded was unconstitutional and unenforceable back in 1987, was still in the Code of Federal Regulations (CFR). That meant that to start enforcing it again, a new Commission would simply need to come to a different conclusion than the Republican-led Commission that scrapped it.

In the wake of that revelation, House Republicans called on the Democratic FCC chairman to deep-six the doctrine once and for all, which he pledged to do by the end of this month.

The Fairness Doctrine required broadcasters to afford reasonable opportunity for the airing of both sides of "issues of public importance." The doctrine was scrapped in 1987 when the Republican-led FCC concluded the Commission had originated the rule rather than it being embedded in statute, and thus could stop enforcing it, which it did, holding that it was an unconstitutional infringement on speech.

Congress then tried to embed it in statute, but President Ronald Reagan vetoed the bill.

Also still on the books were corollaries to the doctrine providing for free response time for personal attacks and providing equal time for other candidates if a station endorsed a candidate in an editorial. The corollaries were repealed by the FCC in 2000 but were also still on the books.

In 2000, a court also threw out corollaries to the doctrine that required broadcasters to provide response time to personal attacks and political editorials. Those, too, have now been stricken from the record.

Among the other rules biting the dust Monday were ones related to the "broadcast flag, cable programming service tier rates, and broadcast applications and proceedings rules," essentially housekeeping moves according to FCC officials familiar with the changes. The flag, which had to do with copy protection of content, was struck down by the courts in 2005, while regulation of cable basic rates sunset in 1999 but was still on the books. The broadcast application and proceedings rules are duplicates of others elsewhere in the codebook.

In a statement, the Commission said the removal of the rules was part of FCC Chairman Julius Genachowski's longstanding commitment to regulatory review, as well as in response to the president's executive order on reviewing regs for their impact on the economy and jobs. In fact, the FCC billed the elimination of the 83 regs the Code of Federal Regulations as enhancing "competition, investment and job creation," which has been the chairman's regulatory mantra.

With the latest rule excisions, the FCC under Chairman Genachowski has gotten rid of over 130 rules and is in the process of phasing out 25 data collections requirements.

Moday's reg revisions all came out of the Media Bureau, but look for other bureaus to weigh in with their own cuts in the coming months, as well as an overall FCC reg review outline in response to the president's recent request for ones from independent agencies, which were not bound by his initial executive order to submit a formal reg review plan to the White House.

"I'm not sure we had to kill the Fairness Doctrine twice; it was already a dead letter," said FCC Commissioner Michael Copps of the excision. "Frankly, I think we should focus on tackling the very live challenges that face broadcast news in the 21st century: where have all the journalists gone and why? Whatever happened to the kind of fact-filled investigative journalism that held the powerful accountable? Why do so many important stories go untold?  Part of the shortfall has been an FCC that has been asleep at the switch for the better part of 30 years in meeting its statutory public interest oversight responsibilities. Instead of burying the dead, we should be breathing new life into the Commission's real duty to promote localism, diversity and competition in our media."