Fair Use, Media and Education in the Digital Age

Moving away from my philosophical inquiry into the meaning of fairness, I am now turning my attention to 20th century communications law and policymaking. I’m beginning to take a look at what the Federal Communications Commission, our three branches of government, broadcasters, legal scholars, and activists (for and against the issue) each determined was fair, and unfair, about the Fairness Doctrine.

In reviewing this piece of communications legal history, I read the Fairness Doctrine: Controversial Issue in Broadcasting Policy (2004) by Steve Kang and The Fairness Doctrine: Benefits and Costs (1969) by Donald P. Mullally. There were two significant parts of the doctrine that applied to broadcasters, which Mullally succinctly describes in the following passage

The general fairness doctrine is the simple requirement that contrasting views be presented. The personal attack rules are those rules adopted in 1967, requiring notice, presentation of of a script or tape, and the offer of reply time to specific persons or groups.

Dating back to 1928, the Federal Radio Commission (now the FCC) stated that it was “a station licensee’s duty to present diverse views on public issues” (Kang, 563). Based on frequency spectrum scarcity upon which licenses were designated during this time, the FCC determined that the fairness doctrine was required for broadcasters to act in the public interest.

So what did fairness really mean in the fairness doctrine? As I explored in my last post, the “presence of conflicting claims” between the Mayflower Broadcasting Corp. and the FCC (1940) played a major role in determining what fairness meant in this case. The FCC determined that it was unfair for broadcasters to editorialize, eventually leading to the adoption of the fairness doctrine.

As Kang describes, the Supreme Court continued “to support the fairness doctrine’s constitutionality in its 1969 landmark decision in Red Lion Broadcasting v. FCC.” It determined that

“As long as demand for stations exceeded supply (the high sale price of stations was one such indicator), scarcity of spectrum remained, and thus allowed such FCC policies.” (564)

But with future cases brought before the FCC during the 1970s and the 80s, the Supreme Court reassessed its position, saying “that the scarcity rationale underlying the doctrine might be flawed and the the doctrine might be limiting the breadth of debate” (Kang, 564). It was at this point that the meaning of fairness began to change.

While the Supreme Court began to adopt a new measure of fairness in the 1980s, the U.S. Court of Appeals for the D.C. Circuit decided that the issue of editorializing was also a first amendment issue. “The courts declared that the doctrine was not mandated by Congress and the FCC did not have to continue to enforce it” [1]. As a result, fairness could no longer be measured by the same public interest standards that had been used by the FCC for the past 60 years, bringing the FCC to ultimately conclude that “the Consitution bars us form enforcing the fairness doctrine” (Kang, 565).

On the end of the personal attack rules, Kang writes that the courts also decided they were unconstitutional after two broadcast lobbies challenged them in 1998.

“Angry at the slow moving commission, in October 2000 the court finally ordered that the rules be vacated (dropped) immediately, and the FCC complied. the last vestiges of the long-lasting fairness doctrine were gone.” (566)

To review, we can see that the meaning of fairness in the fairness doctrine changed over time with the presence of conflicting claims involving the argument of spectrum scarcity and the constitutionality of the FCC in requiring broadcasters to present “contrasting views.”