WHY BRINGING BACK THE FAIRNESS DOCTRINE WON’T CURE WHAT AILS MODERN MEDIA

The Beloved, If Misunderstood, FCC Rule’s Promise Was Far Greater Than Its Performance

Why Bringing Back the Fairness Doctrine Won’t Cure What Ails Modern Media | Zocalo Public Square • Arizona State University • Smithsonian

A couple listens to the radio in 1957. Courtesy of the Library of Congress Prints and Photographs Division.

by ALLISON PERLMAN | APRIL 12, 2021 (zocalopublicsquare.com)

The Fairness Doctrine—the federal communications policy, in place from 1949 to 1987, that required U.S. broadcasters to address controversial issues and provide airtime to conflicting sides—is newly popular. Advocates for the policy’s return view it as a potential solution to divisive and destructive problems of our contemporary media environment, particularly as a way to mitigate disinformation in partisan media outlets. But restoring the original rule, especially with its narrow application to broadcast stations, would do no such thing.

It’s useful to understand the new interest in the Fairness Doctrine as a form of nostalgia for an era in U.S. media regulation in which the “public interest” ostensibly guided policy decisions. But this longing overlooks the actual role of the “public interest” in U.S. broadcast regulation over the first 75 years of its history. The “public interest” was always buffeted by business, political, and technological forces. The Fairness Doctrine itself was unevenly enforced, its applicability was unclear, and its effectiveness was uncertain. Its promise was always far greater than its performance.

Broadcast regulation in the United States historically faced limitations. Congress passed its first substantive regulation of radio after the tragedy of the Titanic—which had been exacerbated by the presence of a nearby ship that did not receive its distress signal, and by allegations that radio amateurs had spread false information about the scale of the disaster. The Radio Act of 1912 created a regulatory structure for the new medium that sought to assure responsible radio airwave use, reconstituting such use as a privilege to be bestowed through a license, not a right accessible to everyone. The act created a hierarchy: The Navy would get access to the best frequencies, corporations the next most valuable, and amateurs the least desirable. The law gave the Commerce Department the authority to issue licenses, but no power to deny them to qualified applicants.

Congress updated federal oversight as radio broadcasting expanded in the 1920s. The Radio Act of 1927 created the Federal Radio Commission (FRC), a temporary entity that was empowered to limit the number of radio licenses awarded, based on technical considerations, and to determine who would get them. Congress instructed the FRC to consider the “public interest, convenience, and necessity” in awarding radio licenses. Reasoning that serving the public interest required serving the largest possible number of people, the FRC favored large commercial stations, especially those owned by or affiliated with burgeoning national networks such as NBC and CBS. The agency’s policies sidelined and marginalized the non-profit stations run by educational institutions, unions, immigrant communities, and faith organizations.

In 1934, Congress created the Federal Communications Commission (FCC) to replace and expand upon the FRC. In exchange for the privilege to use an increasingly scarce public resource—the airwaves—the FCC reasoned (and federal courts concurred) that it could impose regulations in the public interest to promote competition within the broadcasting sector, assure diversity of viewpoint, and encourage local programming. Federal statutes required licensees to provide equal time to candidates seeking political office and prohibited them from airing obscene, indecent, or profane language (and, later, content). Beginning in 1941, the FCC also prohibited broadcast stations from editorializing. This policy, known as the Mayflower Rule, was adopted amidst anxieties about the use of radio as a tool of propaganda, from the virulently anti-Semitic broadcasts of Father Charles Coughlin in the U.S., which reached a domestic audience of around 40 million people, to radio’s deployment by Hitler in Germany. In an environment in which very few controlled the instruments of shared communication, the FCC held, government had an affirmative role to assure that those entities did not bend public discourse to their will.

But the regulatory structure created by Congress did not always address on-the-ground broadcast practices. Though national networks distributed a great deal of programming, federal authority primarily regulated the recipients of broadcast licenses—local stations. If a network distributed a program containing indecent content, it was the stations who aired the program who were liable for violating an FCC rule. What’s more, even though the FCC had authority to revoke or not renew a broadcasting license if a station’s programming record failed to serve the “public interest”, the agency rarely exercised this power. After World War II, the FCC signaled it would base licensing renewal decisions on the public service record of stations and issued guidelines, known as the “Blue Book,” that outlined programming expectations for local stations. But the Blue Book was never enforced; the red-baiting commercial broadcast industry successfully tarred the FCC’s interventionist approach as anti-American, akin to a communist approach to media.Symbolically, if not always in practice, the rule exemplified a view of media regulation that put the interests of the public above the editorial freedoms of media companies. It was a reminder to stations of the ostensible precarity of their licenses and their obligations to program responsibly. But the Fairness Doctrine was not a panacea.

In this context, the FCC revisited the Mayflower Rule, replacing it with the Fairness Doctrine in 1949. Broadcasters, under the new guidelines, no longer had to shun editorializing; in fact, they had an affirmative obligation to address controversial topics of interest and to provide diverse perspectives on the air. The new policy struck a middle ground between competing ideas about the editorial responsibilities of broadcasters. Some had advocated for a retention of the Mayflower Rule, seeing in it a protection from broadcasters using their stations to advocate solely for pro-corporate policies; others called for its complete repeal, arguing for the absolute editorial freedom of local stations. The Fairness Doctrine provided broadcasters editorial discretion, but mandated that they air competing views on controversial topics, not just those that reflected the perspective of the licensee.

In theory, the Fairness Doctrine was supposed to assure listeners had access to a robust marketplace of ideas. In practice, it was clunky and confusing. Enforcement relied on listeners filing complaints with the commission when a station failed to comply. Stations and complainants alike confused its provisions with the equal time rules that applied to candidates for political office. Whether broadcast addresses by elected officials required stations to provide time for responses was unclear, as was whether issues of national import, but not directly related to local communities, activated Fairness Doctrine requirements. Some stations ignored the affirmative obligation to address controversial topics and avoided tackling them altogether. Broadcast networks tightened their control over their news divisions, asserting that airing documentaries produced by independents or non-U.S. media companies could render affiliates vulnerable to Fairness Doctrine complaints. Paradoxically, the rule may have diminished the marketplace of ideas while shoring up network control over national public affairs programming.

The Fairness Doctrine, importantly, was a tool that enabled a range of communities to pressure stations to include their perspectives on the airwaves, and to program with the diversity of their publics in mind. Symbolically, if not always in practice, the rule exemplified a view of media regulation that put the interests of the public above the editorial freedoms of media companies. It was a reminder to stations of the ostensible precarity of their licenses and their obligations to program responsibly.

But the Fairness Doctrine was not a panacea. Much of the rule’s power came from activists who monitored local stations and requested time to respond to broadcasts on controversial topics. Like much of U.S. media policy, its enforcement hinged on individuals and communities equipped with the informational and social capital to level a complaint. While it required stations that discussed civil rights activities to include voices beyond segregationists, it did nothing to address the extraordinary paucity of people of color in control of or employed by local stations. While it required opposing perspectives, it gave broadcasters discretion as to what constituted a legitimate viewpoint and who was a capable spokesperson to articulate it.

In the end, the Fairness Doctrine’s impact was questionable. The FCC jettisoned it in 1987, as part of a broader sweep of media deregulation championed by broadcasters, the Reagan administration, and their allies in Congress. Regulators abandoned the scarcity rationale for broadcast regulation, as the commission asserted that the expansion of cable, an increase in local stations, and the availability of the VCR portended an abundant and diverse media ecology. The end of the Fairness Doctrine also marked the end an interpretation of speech rights that understood the First Amendment as enabling democratic self-governance and that required, in the words of education reformer and philosopher Alexander Meiklejohn, “not that everyone shall speak, but that everything worth saying shall be said.”

In its place, U.S. regulators have adopted a view of speech rights that prohibits the government from restricting anyone’s speech, corporations and people alike. The result is a media environment defined by fragmentation, misinformation, and informational siloes. It is an arena in which the greatest threat to free speech is understood not as the wide distribution of disinformation, the prevalence of corrosive hate speech and threats, the disproportionate power of corporations and the wealthy in political campaigns, or the escalation of conspiracy theories that threaten democratic institutions—but rather, any government action to curb them.

It is logical that some Americans desire a return to a perceived simpler era, in which media companies operated in the public interest and produced shared knowledge about the world we collectively inhabit. The call for a revitalized Fairness Doctrine perhaps speaks more to a desire not for the reinstatement of a sometimes ineffective and insufficient rule that emerged in a very different media environment, but to a nostalgia for an imagined regulatory system that was responsive, in policy prescription if not always in practice, to the public interest; one devoted to making media enable, rather than dismantle, the capacities for democratic processes.

ALLISON PERLMAN is a historian and film and media studies scholar at the University of California, Irvine. She is the author of Public Interests: Media Advocacy and Struggles Over U.S. Television.

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