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The Fairness Doctrine, a Federal Communications Commission regulation that has not been enforced for 20 years, recently received new interest online. The doctrine was originally enacted for the purpose of presenting controversial issues of public importance in a balanced manner. It placed a two-fold duty on broadcasters, requiring that they cover public issues and that each side of the issue be given fair coverage. It is alleged that some lawmakers are considering a push to reinstate the doctrine. Although its goals were noble, the doctrine was considered outdated and unworkable when it was abandoned in 1987. The renewed interest in reinstating today is perplexing. The Fairness Doctrine was adopted by the FCC in 1949. At that time, very few broadcast frequencies were available and the demand for licenses far exceeded the supply. Given this scarcity, there was a concern that the few broadcasters who obtained licenses could dominate the airwaves with their ideology. The FCC imposed a public duty on the licensed broadcasters, which would be fulfilled by complying with the doctrine. Subsequently, two corollary rules to the doctrine were developed. The first was called the political editorial rule. Under this rule, if a station endorsed a candidate in a political editorial, the other candidate had to be offered reply time. The second rule, the personal-attack rule, required that the station give notification and offer to reply time to a person whose character was attacked during the discussion of a controversial issue. (See http://www.museum.tv/archives/etv/F/htmlF/fairnessdoct/fairnessdoct.htm & Red Lion Broadcasting Co., Inc. v. FCC.) The Fairness Doctrine was addressed by the U.S. Supreme Court in Red Lion Broadcasting Co., Inc. v. FCC. In that case, a radio station, Red Lion Co., carried a program where author Fred J. Cook was personally attacked. When Cook heard the broadcast, he demanded free reply time, which the station refused. The FCC declared that the program was an attack on Cook and that Red Lion failed to meet its obligations under the Fairness Doctrine. On appeal to the Supreme Court, the court upheld the Fairness Doctrine. In support of its ruling, the court pointed to the scarcity of broadcast frequencies, the government’s role allocating those frequencies, and the legitimate claims of those unable without assistance to gain access to those frequencies for expression of their views. Doubt over the Fairness Doctrine’s validity and necessity continued to build. The Supreme Court stated in a 1974 case ( Miami Herald Publishing Co. v. Tornillo) that government-enforced right of access “inescapably dampens the vigor and limits the variety of public debate.” By the 1980s, most broadcasters believed that the doctrine was a needless burden. Many avoided coverage of controversial issues in order to steer clear of the requirements of the doctrine. Additionally, the “scarcity” rational was evaporating with the increasing number of alternative media outlets, including cable television. (See http://www.museum.tv/archives/etv/F/htmlF/fairnessdoct/fairnessdoct.htm & Miami Herald Publishing Co. v. Tornillo.) The FCC re-examined the public policy and constitutional implications of the Fairness Doctrine in 1985 in its report concerning general Fairness Doctrine obligations of broadcast licensees. In the report, the FCC determined that the doctrine no longer served the public interest and could be chilling speech. The FCC did not immediately abandon the doctrine because it was unclear whether Congress had mandated its enforcement. The Court of Appeals for the D.C. Circuit held that Congress did not, paving the way for the doctrine’s demise. The FCC dissolved the doctrine in August of 1987. (See http://www.pbs.org/now/politics/fairness.html.) The renewed interest in the Fairness Doctrine is not easily identified. One possible reason is frustration with the current status of talk radio. In a recent report titled The Political Imbalance of Talk Radio, the Center for American Progress concludes that of “the 257 news/talk stations owned by the top five commercial station owners, 91 percent of the total weekday talk radio programming is conservative, and 9 percent is progressive. � Each weekday, 2,570 hours and 15 minutes of conservative talk are broadcast on these stations compared to 254 hours of progressive talk � 10 times as much conservative talk as progressive talk.” (See http://www.americanprogress.org/issues/2007/06/talk_radio.html.) However, in the report, the Center for American Progress does not conclude that the answer to the imbalance is bringing back the Fairness Doctrine. They argue that the doctrine, by itself, was never an effective tool for ensuring the fair discussion of important issues. Instead, the report suggests three steps to increase progressive radio voices in talk radio: restoring local and national caps on the ownership of commercial radio stations; ensuring greater local accountability over radio licensing; and requiring commercial owners who fail to abide by enforceable public interest obligations to pay a fee to support public broadcasting. (See http://www.americanprogress.org/issues/2007/06/pdf/talk_radio.pdf.) Joseph Farah of World Net Daily believes any attempt to reinstate the Fairness Doctrine is a direct attack on conservative talk radio, “retribution for talk radio’s role in killing the immigration bill.” (See http://worldnetdaily.com/news/article.asp?ARTICLE_ID=56473.) Although, he points to Democrats who have mentioned bringing back the doctrine, it was Republican Sen. Trent Lott that stated after rejection of the immigration bill that “talk radio is running American. � We have to deal with that problem.” (See http://www.nytimes.com/2007/06/15/washington/15immig.html?ex=1339560000&en=4c38b62d6957cc46&ei=5088&partner=rssnyt&emc=rss.) Mathew Lasar thinks that recent attention to the Fairness Doctrine is a political ruse. He believes that even if the Democrats had control of the White House, they still would not be able to muster up support for the policy, “controversial as it is even among many liberal media folks.” He contends that the panic over the Fairness Doctrine is “less about the issue” and more about conservative lawmakers “getting back in touch with the base.” (See http://www.lasarletter.net/drupal/node/427.) Lasar’s conclusion appears plausible, considering that the Fairness Doctrine has not received much support, even from moderate and progressive bloggers. For example, Jack Balkin from the Balkinization blog believes that the Fairness Doctrine is just bad public policy. He believes that it was easy to evade and does little to improve the quality of broadcasting. Specifically, licensees could decide for themselves what issues were of public concern, limiting how the doctrine affected them. Also, “licensees were permitted to decide what �both sides’ of the relevant issue were and who would represent those sides.” Thus, licensees could include only extremist positions to discredit the side they did not like. Balkin suggests that there are more effective methods for reforming broadcasting. (See http://balkin.blogspot.com/2007/07/fairness-doctrine-part-i.html.) Erik Zorn, blogger for the Chicago Tribune, wishes there were more progressive talk-radio hosts. But he still believes the current state of affairs is better than the talk radio in the era of the Fairness Doctrine. He remembers that serious talk programs back then tended to be cautious and neutral, so as to keep government regulators at bay. (See http://blogs.chicagotribune.com/news_columnists_ezorn/2007/06/fairness-and-th.html.) Whatever the reason, interest in reinstating the Fairness Doctrine is surprising, if it even actually exists. In the 20 years since the Fairness Doctrine was abandoned, its justification based on scarcity has further (if not completely) eroded. Along with continued growth of cable TV, the Internet has drastically increased the public’s ability to present and discuss controversial issues. Blogs have opened new doors for public discourse, as evidenced by their new and essential role in congressional and presidential campaigns. Each day, new technologies are developed which will provide innovative formats for expressing opinions. Although the goal of ensuring fair discussion of controversial topics remains desirable, this is now achieved through the numerous options for receiving and conveying information. The Fairness Doctrine was designed for different times and different technologies. It simply no longer has a place.

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