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Com 400: FAIRNESS DOCTRINE |
Copyright, 2001
Dr. Janet McMullen
Last Updated: Thursday, April 26, 2001
Our First Amendment is based on the concept of the market place of ideas. The fundamental goal is to encourage debate:
As we have discussed many times before, broadcasting is considered to be unique because of the scarcity principle. This uniqueness led to the Fairness Doctrine, and its development illustrates that point.
1928 FRC v. Great Lakes Broadcasting
"There is not room on the spectrum for every school of thought, religious, political, social, and economic, to have its separate broadcasting station... Such ideas must find their way into the marketplace of ideas by the existing public service stations, and if they are of sufficient importance, a microphone will undoubtedly be available. If it is not, a well-founded complaint will receive careful consideration of the commission in its future action with reference to the stations complained of."
This case established the importance of:
= the uniqueness of broadcasting
1941: Broadcasters cannot be advocate (Mayflower) Here a broadcaster was chastised for editorializing over the station. But after eight years of thought, the FCC did a complete "180".
1949: BLUE BOOK: "Report on Editorializing by Broadcast Licensees."
"One of the most vital questions of mass communications in a democracy is the development of an informed public opinion through the public dissemination of news and ideas concerning the vital public issues of the day."
The Blue Book Established that:
1959: "equal" opportunity amendment to sec. 315.
Language established the phrase "conflicting views on issues of public importance" This language gave statutory support to what had been policy/regulation before. Congress considered fairness in coverage of controversial issues to be in the public interest . (Carter 69)
1962: Personal attack rules established -- Times-Mirror Broadcasting If a party were attacked on the air, the party had a right to be notified of that attack and given time to respond to it.
1969: Supreme Court ruled on the constitutionality of Fairness Doctrine in Red Lion Broadcasting v. FCC.
1964 Rev. Billy James Hargis, an evangelist, discussed a book by Fred J. Cook on WGCB (W God Christ Bible) in Red Lion, Pa. The station was owned by Rev. John Norris. The book under discussion was Goldwater, Extremist on the Right.
Hargis charged that Cook
Cook demanded time to reply.
WGCB refused.
FCC said Hargis had broadcast a "personal attack"
This case is extremely important for five reasons:
1. Justice White's very important statement (Carter 78) "It is the right of the viewers and listeners, not the right of the broadcaster which is paramount."
2. Scarcity principle established as still important.
3. It solidified the uniqueness of broadcasting.
4. First Amendment does not prohibit "sharing."
5. It supported the concept of "fairness."
But Print was held to different standards in within a very few months:
Torillo Case illustrates the difference between print and broadcast: Miami Herald attacked a candidate on its editorial page. Tornillo wrote a letter to the editor to respond, but the paper wouldn't print it. He tried to buy advertising space, but they wouldn't sell it to him. He sued. (1974)
The Supreme Court upheld the paper.
The issue in Tornillo and Red Lion is not the NUMBER of radio/tv stations vs. the number of newspapers in the country (scarcity) Rather is the fact that the FCC (due to limitations of the spectrum) must decide who can use the spectrum. The "Chosen Few" must then give access without having First Amendment rights compromised. On the other hand, the government does not say who can and cannot own a newspaper. Therefore newspapers don't to provide access.
Two other cases occurred about the same time:
CBS v. Democratic National Committee (S Ct. 1973)
Combined two cases:
All of this resulted in a bit of confusion for broadcasters who asked the FCC to clarify the issue
In 1974 the FCC issued a FAIRNESS REPORT:
FCC POSITION:
What are Controversial issues of PUBLIC IMPORTANCE
CIA (V. ABC) 1984 (Carter p. 238)
What is "reasonable opportunity?"
So the fairness doctrine had two basic parts (according to the FCC)
AFFIRMATIVE DUTY TO RAISE ISSUE: station must devote a certain amount of time to controversial issues of public importance
1976: (Carter #15, p.238) Commission applied the first part of the Fairness Doctrine. This section rarely drew attention from the FCC) Congresswoman Patsy Mink sent an 11-minute tape about strip mining to W. Virginia radio station WHAR to counter a pro-strip mining tape sent by the U.S. Chamber of Commerce. WHAR refused to play it because it hadn't played the first tape. She filed a complaint at renewal because strip mining was a BIG issue. Even though WHAR had covered the issue in the news, that wasn't enough. The FCC ordered WHAR to tell FCC within 20 days how they were going to meet their Fairness obligations.
THE DUTY TO PRESENT CONTRASTING VIEWS:
Not all issues are of "public importance." Religious issues have never been included (No response was necessary to a program called "In Search of Noah's Arc")
In reference to both....
a. ISSUES must be clearly defined (national security is too broad)
b. PERSONAL ATTACK rules applied...[ found at 45 C.F.R. #73.123 ]
"When during the presentation of views on a controversial issue of public importance, an attack is made upon the honesty, character, integrity or the like personal qualities of an identified person or group, the licensee shall, within a reasonable time and in event no later than one week after the attack, transmit to the person or group attacked
(This was not applicable to foreign groups, etc.; political candidates, etc. in a campaign, bona fide news exceptions to 315...)
Applications to COMMERCIALS:
Banzhaf vs. the FCC (1968) [You saw him in the video shown in class.]
Banzhaf was the chair of the FTC. (Carter p. 243) (remember, this was heavy-duty trusteeship time) Court upheld FCC's decision that commercials for cigarettes required stations to present some programming on the dangers of smoking. FCC wanted to treat cigarettes as unique.
BUT
Friends of the Earth vs. FCC wanted to treat gas guzzling cars as a controversial issue. Courts said, FCC had to be consistent! Soon snowmobiles were added to the list of "controversial products." FCC tried to distinguish between spots which just sold something and those which tried to "advocate" something or were "editorial" commercials.
When the FCC denied "fairness" concerns for snowmobiles, they were seen as retreating and the court said that was okay.
In 1969 Congress passed The Cigarette Advertising Act which prohibited cigarette advertising on broadcast stations after 1/1/71. BROADCASTERS, not cigarette manufacturers challenged it on the basis of free speech. Court said licensee could still broadcast pro-smoking messages, just not commercial ones.
applies when section 315 does not...
but when PRESIDENT speaks; opposing party has no automatic right of reply.
CULMAN DOCTRINE: A station broadcasting a spot/piece on one side of a controversial issue cannot refuse to air a spot on the other side of the issue just because the opposing side cannot afford to pay for the time.
ELIMINATION OF THE FAIRNESS DOCTRINE:
1985 COMMISSION issued a FAIRNESS REPORT
which concluded....
"The interest in viewpoint diversity is fully served by the multiplicity of voices in the marketplace today....intrusion by government into the content of programming by the occasioned enforcement of the doctrine unnecessarily restricts journalistic freedom of broadcasters.....inhibits presentation of controversial issues of public importance.." (Chilling)
[Spokane station spent $20,000 successfully defending fairness challenge--legal fees; NBC spend $100,000 defending "Pensions" case.
MEREDITH CORPORATION v. FCC (1987)
The FCC under Dennis Patrick's leadership declared the Fairness Doctrine UNCONSTITUTIONAL!
According to the FCC, the First Amendment is there to protect people not from Journalists, but from government and if offers full protection against content regulation for both people and for journalists. THEREFORE, the Fairness Doctrine contravenes the First Amendment, and the FCC would no longer enforce it.
(In Congress the "stuff" hit the fan. Who did Dennis Patrick think he was (a political appointee) declaring something UNCONSTITUTIONAL?! That was the realm of the courts and the congress.)
The FCC did not eliminate:
In 1989, the U.S. Court of Appeals upheld the FCC's decision that terminating the fairness doctrine means that broadcast stations are no longer required to provide balanced coverage of ballot issues. No longer would the FCC require balanced coverage of referenda, initiatives, recall efforts, and bond proposals. These would no longer be required because they came from the Fairness Doctrine.
1992: The question was tested again. FCC ruled that the Fairness Doctrine's Ballot Issue Corollary was eliminated:
"Any requirement that licensee provide balanced coverage of a ballot issues is entirely delivered from fairness doctrine."
Complaint against KARK-TV in Little Rock by Arkansas AFL-CIO and the "Committee Against Amendment 2" saying that the station didn't provide adequate coverage of their position on the issue." FCC said "no."
The case was appealed and decision was made in 1993: Arkansas AFL-CIO v. FCC (1993). The union and the Committee Against Amendment 2 complained that Little Rock TV station KARK-TV had not covered their position fairly. The FCC rejected the complaint, since the position was based on "fairness". The plaintiffs then appealed, challenging the FCC's authority to dump the Fairness Doctrine. Five of the 7 8th Circuit Court of Appeals agreed that the FCC could do what they did because the Fairness Doctrine had been an FCC regulation and not a STATUTE. The five dissenting judges said the Congress HAD included the Fairness Doctrine in statutory law when it amended Section 315.
This case gave a Judicial stamp of approval to the FCC action in eliminating the Fairness Doctrine.
In 1993 and 1994, it seemed likely that, after several tries, the Fairness Doctrine would be recodified into law, as a statute passed by Congress. The elections in 1994 brought a Republican majority to Congress and little has been said about the Fairness Doctrine since. There is still some talk about reviving it if a public trusteeship contract is negotiated with broadcasters in exchange for their DTV spectrum or in exchange for the NTSC spectrum which is scheduled to be turned back to the government when DTV implementation is complete. (2006)
Arguments made by the Democratic party members, including President Clinton, were that conservative talk show hosts were berating him day after day unfairly and he didn't have an equal opportunity to respond. Conservatives said the same thing happened to Presidents Reagan and Bush. Rush Limbaugh saw the movement to codify the Fairness Doctrine as a direct assault on the success of his program. In all probability, had the F.D. been re-instituted, someone could have claimed "equal opportunity" to respond to Rush's 3 hours of programming each day. That could play heck with a station's schedule (and pocketbook) or force them to air a "liberal" host which they might not have chosen who might not do well in the market. The end result might be that Rush Limbaugh might not be carried on as many stations. Reinstitution of the Fairness Doctrine was seen by many as an effort to "shut him up."
Another concern was among religious broadcasters. Since many times controversial issues are addressed from the pulpit, religious broadcasters might have to "censor" their sermons in order to prevent broadcasters carrying the program from being subject to fairness complaints. It was feared that many programs would be dropped from stations not wanting to risk the legal/fairness hassles. In one case in the mid-80's James Robinson's program was removed from the air on a Dallas station, because the station feared fairness complaints regarding Robinson's positions on abortion, among other things.
The important things to remember about the Fairness Doctrine:
One of the first papers I did in graduate school was on this issue. Have studied it for years, I really wasn't sure which position I held. I had seen broadcasters abuse their power and not cover issues adequately; I had also seen ample evidence of "chilling."
Until the mid nineties, I probably would have been more FOR than AGAINST. But now, think the Fairness Doctrine should stay dead.
Ultimately, you will have to examine the issues and come to your own conclusion on this one. Just don't assume it's gone away forever....Few things ever do in this business. To illustrate, just look what happened in the last few months......
Personal Attack Rule and Rules on Political Editorializing Dumped by U.S. Circuit Court of Appeals -- down but not dead!
The issue surfaced again in 2000. For the previous four years, the law firm owned by former FCC chair, Richard Wiley had, at the urging of NAB and RTNDA, been trying to get the FCC to do away with the remaining parts of the Fairness Doctrine, the Personal Attack Rules and the Ruled on Political Editorializing. They argued that the rules were old, outdated, unnecessary and unconstitutional. Nothing happened. When the U.S. Court of Appeals for the D.C. Circuit agreed to hear the case, the FCC decided to act. Chairman Kennard suspended the rules for 60 days. During the suspension, broadcasters were supposed to compile a record of the effect of the suspension on editorials and personal attacks and that information was to be presented to the FCC in February, 2001. At the same time, the FCC would consider the Fairness Doctrine as well, reviewing its usefulness and potential re-establishment.
The FCC explained that the reason it hadn't done anything for four years was because the commission had been deadlocked. Chairman Kennard had worked on Fairness issues back in the 1980s when he worked for NAB. For that reason, he believed he had a conflict of interest. Commissioners Tristani and Ness believed the rules should stay. Commissioners Powell and Furghott-Roth believed they should go. When Kennard checked with the ethics office at the commission, he was given the go-ahead to participate in the issue, and of course, he sided with fellow Democrats.
Broadcasters freaked!!! The last thing they wanted was the Fairness Doctrine brought back. For many of them, it was another good reason to vote Republican in the November Presidential election! Immediately, RTNDA and NAB voiced concerns against revival of the doctrine, while groups like the Media Access Project supported its return. Andrew Schwartzman, spokesman for that organization, contended that stations were backing off from stories that were controversial in nature and that they weren't even really covering all important local issues since the demise of the Fairness Doctrine. "A very large lumber of broadcasters have stopped doing any news and public affairs programming an have tried to fulfill their obligation to the public interest with various public-service activities...Sending Bozo the Clown to the hospital and covering it on the news is a perfectly fine thing to do but does not fulfill their duty." (McConnell, 9/4/00, p. 5)
The U.S. Court of Appeals in Washington seemed to settle the matter in October of 2000, when it three out the Personal Attack Rules and the Ruled on Political Editorializing. But, as reported in Broadcasting and Cable, "...like a horror movie killer, they could still rise again." (Albiniak, 10/16/00 p. 6) The court threw out the rules because the FCC has failed to justify them, but the rules could be revived -- including the full Fairness Doctrine -- should the FCC decide to provide that justification. The Democratic party pledged to bring back the doctrine, and Chairman Kennard, upon hearing the court's ruling, promised the FCC would look at what constituted the public interest obligations of broadcasters after they switched to digital. Such obligations might well include the Fairness Doctrine or something very much like it. Predictably the NAB and RTNDA were overjoyed, and the Media Access Project said the public had once again been "victimized" by an FCC that couldn't "get its act together." (Albiniak, 10/16/00,p. 6)
But now that President Bush has been elected, Michael Powell is Chairman, and the tone is definitely de-regulatory. The likelihood that this FCC will consider the resurrection of the Fairness Doctrine or any of its corollaries is highly unlikely. However, should the political climate change with a democratic controlled Congress or the election of a Democratic president in 2004, the issue could be very much alive again
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Copyright, 2001
Dr. Janet McMullen