The Fairness Doctrine, a longtime controversial feature of the Federal Communications Commission’s media policy and a landmark of First Amendment law, died Wednesday in Washington, DC. It was 62.
The cause of death was the FCC’s decision to eliminate an “unnecessary distraction” as it deleted “83 outdated and obsolete media-related rules,” said FCC Chairman Julius Genachowski. The Fairness Doctrine had remained on the FCC's books despite not being enforced since 1987. Other announced deletions included the vacated 2003 broadcast flag rules and certain cable rules that had not been properly amended to reflect the Commission’s repeal of the personal attack and political editorial rules in 2000. Yesterday's decision also referenced the executive order signed by President Obama in January aimed at eliminating burdensome or unnecessary regulations of independent agencies.
Born in 1949, the Fairness Doctrine was part of the FCC’s effort to require broadcasters to adequately cover, and to air conflicting viewpoints on, issues of public importance. At 20, the Fairness Doctrine survived a constitutional challenge in Red Lion Broadcasting Co. v. FCC. The U.S. Supreme Court found in 1969 that broadcasters have First Amendment speech rights but that the scarcity of broadcast frequencies justified the FCC’s exercise of authority via the Fairness Doctrine and associated rules.
Nevertheless, by 1987 the FCC decided to stop enforcing the Fairness Doctrine, finding that the doctrine did not serve the public interest. In 1989, the U.S. Court of Appeals for the District of Columbia affirmed without reaching the constitutional issues. The change in enforcement paved the way for expansion in political talk radio. The Fairness Doctrine, however, remained on the FCC's books, and questions lingered about whether it would be revived.
The Fairness Doctrine is survived by other FCC rules governing political broadcasting, including requirements for broadcasters to provide reasonable access to candidates for federal elective office, to provide equal opportunities to political candidates for any legally qualified office, to apply the lowest unit rate for candidate ads during specified days before primaries and elections and to properly identify sponsors of political ads. Yesterday’s order did not address the “Zapple Doctrine,” a rule based on the Fairness Doctrine that required stations to provide “quasi-equal” opportunities when supporters of a candidate appear on a broadcast station. Unlike the Fairness Doctrine, the Zapple Doctrine never has been explicitly overturned. In addition, the ongoing vitality of the Red Lion decision and the FCC's regulatory authority likely will be among the issues in the U.S. Supreme Court’s consideration of the FCC’s appeal of U.S. Appeals Court decisions finding FCC indecency policies to be unconstitutional.
The Order will take effect upon publication in the Federal Register.