Fairness Doctrine, R.I.P.
JUNE 01, 1989 by JORGE AMADOR
Jorge Amador is a freelance columnist and editor of The Pragmatist, a current-affairs commentary.
On August 4, 1987, the Federal Communications Commission (FCC) repealed most aspects of the “Fairness Doctrine,” the regulation requiring broadcasters to cover contrasting views of important issues. With the exception of questions that are to be derided by voter referenda, Fairness Doctrine enforcement would stop. ‘
It was the end of the civilized world, to hear some react to the prospect of unregulated debate. Without the Fairness Doctrine, predicted one Congressman, “Candidates would lose the right to reply, parties out of power would not be able to respond, radio stations could allow supporters of one candidate to dominate the news, and local and state ballot issues could no longer be covered.” “I am concerned that . . . broadcasters could use the public airwaves as their bully pulpit,” said another. “They could every day pound away at their point of view, with absolute, total disregard to the other point of view.”
The national director of Americans for Democratic Action simply warned that “The public would be considerably less informed if the Fairness Doctrine is repealed.” Supporters twice passed bills in Congress to make the FCC regulation into law, only to be frustrated by Presidential veto.
And yet, nearly two years later, the sky has not fallen. Radio and television stations did not suddenly become vehicles for one-sided debate. The opposition party is still getting its weekly reply to the President’s Saturday radio message. Election-year coverage clogged the airwaves with news and views about candidates, conventions, and issues.
However, the new administration may turn out less hostile to the Fairness Doctrine. A Federal court has been asked to review the FCC’s decision to abolish the doctrine. Some background will help us understand why the old doctrine may yet rise out of its coffin.
“A Façade of Pious Theories”
The Fairness Doctrine was a cornerstone of government regulation of broadcasting. Ernest Hollings, the U.S. Senate’s most eloquent proponent of the Fairness Doctrine, identifies four assumptions underpinning broadcast regulation:
1. “A valuable public resource, the electromagnetic spectrum, remains scarce relative to demand; broadcast channels are limited, despite the introduction of new video and audio services.”
2. Congress in the Communications Act of 1934 “has chosen a system where a select few are licensed to utilize the broadcast spectrum in exchange for a commitment to operate in the public interest as public trustees.”
3. “The doctrine has permitted those who do not own broadcast stations to have an opportunity to participate in important public debate and has provided the public with a greater range of views upon which to make informed decisions.”
4. The doctrine is simply “no more than good journalistic practice that does not chill the speech of broadcasters.”
Government control over broadcasting is premised on the idea that the spectrum is a limited natural resource which many more people want to use than it can physically accept. Without regulation, users will interfere with each other’s signals and render the whole medium useless. Hence government must step in to decide who gets to broadcast; to narrow down the field, it conditions broadcast licenses on the applicant’s willingness to serve the “public interest, convenience or necessity.”
Around this logic has been spun a web of justifying mythology. “Before 1927, the allocation of frequencies was left entirely to the private sector, and the result was chaos,” wrote Justice Byron White in the Supreme Court’s 1969 decision, Red Lion Broadcasting v. Federal Communications Commission, upholding the Fairness Doctrine. “Without government control, the medium would be of little use because of the cacophony of competing voices, none of which could be clearly and predictably heard.”
Fairness Doctrine advocates are better theorists than historians. As one author put it, “to a large extent” broadcast regulation “serves as no more than a façade of pious theories.”
Contrary to Justice White’s assertion, spectrum allocation has never been “left entirely to the private sector.” Before 1927—when the Federal Radio Commission was established—frequency allocation was in the hands of government, and the result was indeed chaos.
Almost from the beginning the story of broadcasting largely has been one of market pressures slowly advancing against attempts to limit by decree the voices speaking through the airwaves.
The Radio Act of 1912
As radio’s possibilities for mass, long-distance communication began to be understood, the federal government assumed control of the airwaves. In 1912, Congress passed and the President signed the first Radio Act. The Secretary of Commerce and Labor was empowered to assign frequencies and hours of operation; operators were required to pass an examination to obtain a license to transmit. Only U.S. citizens were eligible for licenses.
The Radio Act seemed necessary because the Navy complained that amateur enthusiasts were sweeping through the frequencies and interfering with transmissions between ships and onshore installations. It was the era of radio experimentation; the spectrum was a newly opened frontier where explorers roamed and the claims of settlers went largely unrecognized. Before long the government claimed the frontier for itself.
During World War I, the Navy seized or shut down all private radio operators, ostensibly on security grounds. Comfortable with the arrangement, following the war the Navy asserted that radio was a “natural monopoly,” and that this monopoly should as a matter of course remain with itself. Navy Secretary Josephus Daniels argued that it would “enable the Navy to continue the splendid work it has carried on during the war,” and that “we would lose very much by dissipating it and opening the use of radio communication again to rival companies.” Navy Commander S.C. Hooper allowed that “either the government must exercise that monopoly by owning the stations or it must place the ownership of these stations in the hands of some one commercial concern . . . .” The Navy did not get its way. But when the government did begin to allocate frequencies to private operators, it did so in a manner almost guaranteed to create “chaos.”
The new commercial radio industry burst onto the scene in 1920-22. In the first six months of 1922 alone, the Commerce Department issued 354 new broadcasting licenses. But, difficult as it may be to believe today, they were all assigned the same frequency, 833.3 kilohertz!
After confining them to the same channel, the government left the stations to work out timesharing arrangements among themselves to avoid interference. Remarkably, for a few years they were able to. “When the Bamberger department store inaugurated WOR in Newark early in 1922,” writes broadcast historian Erik Barnouw, “it quickly arrived at a treaty with WJZ [an older station]. On one day WOR would have sunrise to sunset, and WJZ the remaining hours; on the following day the arrangement would be reversed, and so on.”
As a result, “The schedule became a checkerboard of short time patches. Some stations had an hour or two during the week. In Los Angeles, twenty-three stations shared the channel.” Not surprisingly, “New arrivals were increasingly resented by earlier stations.”
Local stations, deferring to listeners’ requests to hear stations from other cities, agreed among themselves to remain silent at certain time slots. The practice became known as Silent Night. However, as the commercial value of radio time grew, so did the pressure to remain on the air, and Silent Night was abandoned in 1927.
The Commerce Department only reluctantly opened new channels to relieve the artificial congestion. In the summer of 1922, a second band was opened for broadcast at 750 kilohertz. To escape the clutter, some stations attempted to broadcast slightly above or below the assigned frequencies, but this was not tolerated for long.
Secretary of Commerce Herbert Hoover, who proclaimed the air “a national resource to be guarded,” resisted proposals to treat channels as property that individuals could own, sell, and buy. Congress backed him up in 1926 with a joint resolution to require licensees to sign a waiver of property claims in the spectrum. However, the same year a Federal court ruled that the government did not, after all, have authority under the 1912 Act to regulate a station’s hours, power, or frequency.
The industry was thus left in an intolerable situation. Broadcasters could not defend themselves against others intruding on their signals, yet the government would not act to prevent interference. The frontier was kept open to foragers and wanderers at the expense of homesteaders.
After encouraging this chaos on the air, government offered itself as the savior. In the Radio Act of 1927, Congress declared unequivocally that the airwaves “belong” to “the people.” Instead of a no-man’s land, the spectrum became public property. Regulators were given new powers to deny or revoke licenses; the landlord would decide which peasants got to use the newly established manor.
Like any other natural resource, spectrum space is not unlimited. But government has made it more limited. “Whatever scarcity there is for commercial broadcasting and other private uses of radio is partly a man-made problem whose dimensions are defined by the executive branch.”
For decades the government has reserved for itself a large portion of the spectrum, which it has kept out of the reach even of regulators. Section 305 of the Communications Act exempts from the FCC’s jurisdiction all “radio stations belonging to and operated by the United States.” As late as 1977 government retained exclusive use of more than one-half of the spectrum, while another one-fourth was shared between government and private users. By 1925, Hoover was already declaring that “all wave lengths are in use”—all that the government would part with, that is. Since then the number of broadcast outlets has increased twentyfold. During the Carter administration the shared government-private spectrum rose to 40 percent; the frequencies available to private users, to only 35 percent.
The Federal Radio Commission, established following the Radio Act in 1927, set out to eliminate 164 of the 681 stations then in operation, even as technological developments undermined its rationale. “During 1930, broadcasting experienced ‘almost a complete revolution in the type of equipment used’” which enabled stations to keep closer to their frequencies—theoretically permitting more stations to operate without interfering with each other. Nevertheless, the FRC’s campaign proceeded apace, and by 1932 at least 77 stations had been abolished.
Defenders of regulation concede that the government could have allocated the spectrum differently to give more people a chance to use the airwaves. As Senator Hullings points out, instead of a smaller number of full-power stations, it could have called for a greater number of stations at less power, mandated stations to share frequencies, or treated stations as “common carriers” offering use of the spectrum to anyone at set rates and without control over programming.
But legislators instead “concluded that the public interest would be best served by fewer stations with greater power each under the control of a single owner. While the opportunity for members of the public was thereby limited, broadcasters were required by statute to act as trustees for all the public in exchange” for the privilege.
Because the government allows only certain people to operate broadcast stations, the views expressed by the chosen ones are said to enjoy an unfair advantage over the rest of us who aren’t permitted to operate a station. “Since all who wish to broadcast cannot do so, there is an inherent danger that the flow of information can be restricted.” As part of their public interest duties, broadcasters therefore should cover issues of local interest and provide citizens with the opportunity to express their views. This is the heart of the Fairness Doctrine.
If broadcasters don’t allow responses, where can the average citizen turn? When the Fairness Doctrine was in effect, anybody who felt his side had been slighted could file a complaint with the FCC, which could order stations to give free time. Broadcast regulation—and specifically the Fairness Doctrine—hence promotes public debate, say its defenders. “The genius of the Fairness Doctrine,” write Ralph Nader and David Danner, “is that it promotes debate without interfering in the editorial process. Nothing in the Fairness Doctrine ever denies a broadcaster the right to say what he or she pleases. Rather, compliance is attained by carrying more, not less, discussion of issues.”
Again, Fairness Doctrine backers prove better theorists than empiricists. Rather than invigorating public debate, the Fairness Doctrine chilled it. Instead of improving citizens’ access to the airwaves, it was a reason to deny them. As Representative Howard Coble put it during House debate on the doctrine, “In the abstract, ‘fairness’ is laudable. In the reality of an often expanding regulatory atmosphere, a governmental determination of ‘fairness’ will consistently fall short and fail to serve faithfully the public interest.”
“Cocked Gun” Regulation
There was little objection to the Fairness Doctrine when the FCC formally adopted it in 1949. In fact, it was an improvement over the previous rule, the Mayflower Doctrine, which prohibited broadcasters from editorializing at all.
Not that they all wanted to. Broadcasters and regulators were already aware of the threat that a spirited debate could mean to the licensee. AS early as 1934, it was known that “An innocuous schedule could mean prompt renewal” of the broadcast license, while “A provocative one could bring delays.” “Any vigorous presentation of a point of view will of necessity annoy or offend at least some listeners,” noted the FCC in its 1946 Blue Book. “There may be a temptation, accordingly, for broadcasters to avoid as much as possible any discussion over their stations, and to limit their broadcasts to entertainment programs which offend no one.”
Nevertheless, declared the Commission, “the public interest clearly requires that an adequate amount of time be made available for the discussion of public issues.” In its report formalizing the Fairness Doctrine three years later, the FCC called on “broadcast licensees to provide a reasonable amount of time . . . to the discussion and consideration of public issues.” Avoiding “serious and provocative program content” was considered “an unfair use of broadcast facilities,” and could be grounds for revoking a station’s license.
But in practice a band of regulators in Washington cannot possibly monitor every station’s programming 24 hours a day, 365 days a year. It must rely on citizens to make sure that the “trustees” are fulfilling their obligations. Yet, as Senator Robert Packwood points out, “Most people are not aggravated by what they do not hear; they are aggravated by what they hear, and they think it is not fair, so they complain” to the FCC. Despite their obligations, broadcasters “simply avoid controversial issues, and nobody sues them much for that.”
It was not until 27 years after the Fairness Doctrine was proclaimed, in 1976, that the FCC cited a station for not covering a specific controversial issue of local importance.
An FCC report released in August 1985 described more than 60 specific examples where broadcasters “shied away from covering controversial issues in news, documentaries and editorial advertisements” for fear of triggering fairness complaints, and concluded that the Fairness Doctrine “chilled” speech. It resulted in a “net loss, not an enhancement, of speech,” said FCC general counsel Diane Killory in her statement announcing repeal of the doctrine. As the Des Moines Register observed, “The doctrine doesn’t promote fairness; it promotes blandness.” Instead of getting opposing sides, listeners often ended up getting no sides of a debate.
Doctrine supporters are quick to note that complaints rarely resulted in action by the FCC, as if this were an argument in favor of the Fairness Doctrine. Colorado Senator Tun Wirth estimates that 98 percent of fairness complaints were routinely dismissed as frivolous or unfounded.
Between 1980 and 1987, the FCC received about 50,000 fairness complaints, but found only one violation. In the 35 years 1934-1978, only 5 broadcast licenses were revoked for violations of the doctrine. For the overwhelming majority of people, then, the Fairness Doctrine in practice just didn’t give us access to the airwaves.
But if so, how could the doctrine really have chilled broadcasters? Simple: it was a “cocked gun.” As the Supreme Court said in another press-freedom case, “it is not merely the sporadic abuse of power . . . but the pervasive threat inherent in its very existence that constitutes the danger to freedom of discussion.”
Defending against even frivolous complaints is expensive. The cost to the station averages about $60,000 if the FCC calls a hearing. It’s cheaper to keep quiet, just in case.
Nobody disputes that striving for balanced coverage is a desirable aspect of competent news journalism. Unfortunately, however, one person’s “objectivity” is another’s “hatchet job.” A look at a list of organizations supporting the Fairness Doctrine, released by Representative John Dingell, reveals dozens of pressure groups on opposite sides of a wide assortment of emotional issues, each supporting the doctrine for its own ends: Americans for Democratic Action and American Conservative Union; General Motors and United Auto Workers; American Jewish Committee and National Association of Arab Americans; Mobil Oil and Fund for Renewable Energy; People for the American Way and American Baptist Churches; Accuracy in Media and Media Access Project.
Given the array of contending groups, each one sharply tuned to the slightest hint that the other side might have put an extra spokesman or one more statement on the air, even the most scrupulous reporter can hardly cover any controversial topic in a way that will avoid bitter charges of “bias” from one side, maybe from both. When the charges may be accompanied by demands for time under threat of referral to regulators, it is not difficult to understand why under the Fairness Doctrine broadcasters often preferred to avoid certain topics altogether. And, given the way competing ideological groups use the media for one-upmanship, it is not difficult either to understand why uninterested observers might find most fairness complaints frivolous.
For a hint of how public debate might proceed without the Fairness Doctrine, compare television with a medium where the doctrine has never applied—cable television. In 1986, W. R. Grace & Co. had great difficulty placing on national television a series of ads attacking the Federal budget deficit. The networks were reluctant to air “advocacy advertising” that might have triggered demands for free rebuttal time. On the other hand Cable News Network, as a non-broadcast operation, did not have to offer free rebuttal time, and felt free to present strong citizen-initiated messages such as Grace’s spots.
Ironically, the Fairness Doctrine thus both frequently inhibited broadcasters from covering controversy, and seldom permitted citizens to reply to what they perceived as “biased” programming. Broadcasters were chilled and the public ignored.
Many Ways Out
The spectrum is not as scarce as we have been told, and in any event the Fairness Doctrine, despite notable individual cases, by and large failed both to encourage vigorous debate and to provide for public participation.
What, then, can activists and concerned individuals expect now that broadcasters have been freed from fairness requirements? Is the only option to give up and tell broadcasters: “We are at your mercy; go ahead and say what you will, we can’t do anything about it”?
Hardly. There may be a scarcity of broadcast alternatives in a theoretical sense, but this does not mean that there is a dearth of opportunities to utter opinion on the airwaves. Only certain people are licensed to broadcast, but they are not “few.” Even today’s artificially limited market offers numerous outlets to hear and express our views.
There are 1,570 television stations and 10,837 radio stations in the United States. Ninety-six percent of U.S. television households receive five or more television signals, and 71 percent receive nine or more.
Local television stations offer approximately 600 public affairs programs, 170 talk shows, and 124 “civic,” “ecology,” or news commentary programs. Radio stations produce some 2,200 separate public affairs programs, 1,400 talk shows, and close to 1,000 civic, ecology, or news commentary programs. Every one of these airs on at least a weekly basis.
With or without the Fairness Doctrine, today’s broadcast marketplace offers no paucity of alternatives for people to hear and express diverse views. Talk shows, even all-talk radio stations, have demonstrated their commercial viability. They will not go away merely because the Fairness Doctrine was repealed.
We don’t need a broadcast license in order to be heard. There are literally thousands of stations and programs to which groups of various political stripes can turn to voice their opinions—at no charge. But if a station refuses to grant free air time to rebut a one-sided report, we can offer to buy time.
One of the ironies of the Supreme Court’s celebrated Red Lion decision upholding the Fairness Doctrine is that the station airing the offending broadcast, WGCB in Red Lion, Pennsylvania, offered the plaintiff, Fred Cook, 15 minutes to reply at the regular rate of $7.50. The offending program also had been a paid 15-minute broadcast.
Instead, Cook demanded free air time under the Fairness Doctrine. Off to the FCC and the courts they went, and he got the time—five years later. By then the issue in contention was dead, and Cook declined the offer. Had he bought the time he could have rebutted the original broadcast while it still mattered, and for a lot less trouble.
If a station refuses to sell us time, there are plenty of others in the market who’ll be happy to do so, and who will air our spot as many times as we wish, often at surprisingly affordable rates.
In 1985, we could buy a full half-hour program slot on radio station WPOW in New York City for $200; for $85 on KAFF-FM in Flagstaff, Arizona; or for $75 on WEUP in Huntsville, Alabama. If we didn’t need that much time to tell off our opponents, we could buy a one-minute spot for $30 in Provo, Utah; $21.50 in Lawrence, Kansas; or $14.75 in Salem, Oregon. Multiple airings cost even less per spot.
In 1962, 66 percent of AM radio and 25 percent of FM stations reported a profit. In 1972 the figures rose to 72 and 38 percent, respectively. By 1980, the proportion of profitable AM stations was down to 59 percent, while 50 percent of FM stations made a profit.
The historical pattern for television stations is similar, though more favorable. In 1955, 63 percent of VHF and 27 percent of UHF stations reported a profit; in 1977, 92 and 73 percent, respectively; but in 1980, profitable VHF stations were down to 89 percent, UHF to 58 percent.
The point is that, despite the market-limiting effects of broadcast licensing, having a license does not amount to “a license to print money.” Broadcasting can indeed be very profitable, but there are plenty of stations which are hungry for revenue and which will eagerly sell air time to individuals or groups with something to say.
This is not to imply that all broadcasters, now freed from the strictures of the Fairness Doctrine, will automatically sell air time for political debate or cover both or even one side of an is-sue-any more than while the doctrine was in effect all broadcasters shied away from the issues. But on the whole we can expect, if anything, less timid coverage and more robust debate to come on the air from broadcasters and citizens alike.
The Fairness Doctrine was a questionable theory born of poor history. It both chilled broadcasters’ freedom of speech and limited citizens’ access to the airwaves, free or paid. What slender logic may have buttressed it in the beginning has long since given way to the proliferation of audio and video services.
Without the “fairness” gun cocked at their heads, station operators will feel a lot more comfortable airing spots on controversial issues. And we’ll have a better chance to get our say.