It was long ago and far away, but between 1949 and 1987, there once was a time when American broadcasters actually behaved with a sense of civic responsibility and honored their obligation to operate their stations in “the public interest, convenience, and necessity.” That concept has been a core tenet of American broadcast regulation since the Radio Act of 1927, the forerunner of the 1934 Communications Act, which remains today the guiding statute for commercial broadcasting.
Broadcasters came to this view not by altruism, but by government mandate: specifically, the Fairness Doctrine, a regulation which codified the general principle that broadcast licensees were not owners, but merely trustees, of their portion of the broadcasting spectrum. As such, in return for the privilege of holding a monopoly to operate exclusively on their frequency, they had a duty to serve their communities by offering contrasting views on controversial issues of public importance, which broadcasters determined through an “ascertainment” process of surveying members of their communities. Fair and balanced, in other words—but for real, not just a cheap marketing slogan.
This is not “equal time;” that’s a separate statutory requirement that applies only to on-air appearances by candidates outside of bona fide newscasts, news interviews, news documentaries, and spot news coverage. The Fairness Doctrine only applied very broadly to coverage of relevant community issues, and could include news, public affairs and entertainment programming. So, there were two key obligations on broadcasters: ascertaining and addressing their communities’ concerns; and doing so in an open-minded way that offered a platform for diverse views.
It was light-handed to be sure, but it was undeniably content regulation, and broadcasters had long chafed under it, invariably invoking the First Amendment and complaining bitterly that they were second class citizens compared to their print counterparts.
But the National Association of Broadcasters, like all industry trade groups and lobbying organizations, was never particularly a bastion of truth or candor on this issue. That the Fairness Doctrine had been explicitly upheld as constitutional for broadcasters by the Supreme Court in Red Lion Broadcasting v. FCC (1969), was irrelevant to them. That print publications were expressly protected by the First Amendment against fairness mandates like a Florida right-of-reply law, which the Supreme Court unanimously struck down as unconstitutional in Miami Herald v. Tornillo (1974), was also irrelevant to them.
Broadcasters wanted the privilege of operating with all the advantages of a licensed monopoly, but with none of the concomitant civic responsibilities. In 1987, under Ronald Reagan’s FCC, they got it. Between the deregulation of chain ownership, the advent of right-wing talk radio, and TV broadcasters like Fox and Sinclair that are hell-bent on an aggressively one-sided ideological agenda, the notion of broadcasting as a public service, and broadcasters as trustees of the public airwaves, operating for the common good, is as obsolete as your great-grandmother’s vacuum-tube radio set.
The case for retaining—or restoring—the Fairness Doctrine rests on the scarcity argument, i.e., there are only a finite number of broadcasting slots available in a given area. In metropolitan Los Angeles, with a population of 13 million, we can only receive about 120 AM/FM stations (nine of them licensed in Mexico), and 38 television outlets (only seven of them conventional commercial VHF stations). The vast majority carry little or no news at all.
I used to believe that the Internet, with its infinite number of websites, had functionally eliminated scarcity, but came to realize that we’re talking not about apples and oranges, but more like blueberries and watermelons.
Few websites or satellite channels command even a fraction of the prominence and audience that a major radio outlet does. Sirius satellite radio draws some 35 million listeners weekly to all its channels combined; terrestrial AM/FM radio has held steady for over a decade at more than 90% of Americans aged 12 and older. More importantly, only radio and TV stations still require, and benefit, from the exclusivity of an FCC broadcast license, which more than justifies imposing some modest degree of civic responsibility in their news and public affairs programming. There is just no comparison.
I’m under no illusion that this or any other Congress will move to re-regulate commercial broadcasting any time soon. After more than 30 years, the regulatory framework has rusted and the antique notion of broadcasting as a public trust has atrophied into irrelevance.
Today, it is what we might call the Unfairness Doctrine of Ronald Reagan that, to borrow a line from Poe, still holds “illimitable dominion over all.”
