Birth of a notion


The Fairness Doctrine evolved in the late 1940s from a series of FCC decisions and positions that expanded Section 315 of the Communications Act of 1934. That law required, and still requires, that broadcasters who allow a candidate to use their airtime must offer airtime to other candidates. Broadcasters are not required to give up airtime to any candidate, however, so it is an all- or-nothing scenario.

The Fairness Doctrine was the FCC's extension of that law into a general rule that broadcasters had an affirmative obligation to "afford reasonable opportunity for the discussion of conflicting views on issues of public importance," thus a kind of equal time for issues. It was upheld as constitutional by the Supreme Court in the 1959 Red Lion decision, which offered spectrum scarcity as a justification for what the court conceded was a lesser First Amendment status than that of print media.

The personal attack and political editorializing corollaries represented a codification by the FCC of Fairness Doctrine principles. Until last week, the rules required that a) if a broadcaster's presentation of views on a controversial issue includes a personal attack, the broadcaster had to notify the subject of the attack and offer airtime for reply, and b) if a broadcaster endorses a candidate, said broadcaster must seek out other "qualified" candidates and offer them airtime.

The rules were codified in 1967, including the provision that "bona fide" news broadcasts were exempt from the personal attack rule. RTNDA/NAB's court challenge of the rules dates from July of that year, when they, along with CBS, first filed suit challenging the rules, saying they violated the First Amendment. Broadcasters would make that case on and off for two decades before victory appeared theirs.

In 1987, the FCC, saying the scarcity rationale no longer applied, struck down the Fairness Doctrine, saying: "If we must choose between whether editorial decisions are to be made in the free judgment of individual broadcasters or imposed by bureaucratic fiat, the choice must be for freedom." At the time of codification in 1967, the commission said the personal attack/political editorializing rules "will serve to effectuate important aspects of the well-established Fairness Doctrine; they do not alter or add substance to the Doctrine."

This statement led many in the industry to believe that with the FCC's decision to ditch the Doctrine, the corollaries must surely follow. They didn't. The 1987 FCC said it wasn't sure its ruling encompassed the corollaries and would address the question in "the near future." After 13 years, more NAB/RTNDA challenges and several new commissions, the FCC's "near future" finally ran out last week.