Did the 1989 abolishment of the Fairness Doctrine achieve the goals of the D.C. Court of Appeals in Syracuse Peace Council v. FCC?

by The_Alaskan

This question was originally proposed by /u/jellyberg in a previous thread in response to a comment by /u/gnothi_seauton and has been split off to allow more detailed discussion.

The_Alaskan

It depends who you ask. The Fairness Doctrine is so tied into modern political discussion that it's extraordinarily difficult to gain an outside perspective. We're looking at the box from inside the box, so to speak.

The 1987 FCC vote and subsequent legal arguments might be 30 years distant now, but the effects certainly are not, which makes getting an objective analysis hard. That said, let's give it a go.

The Fairness Doctrine comes from a 1949 FCC decision that required broadcasters to "devote a reasonable amount" of time to "controversial issues of public importance," and when devoting that time, they had to provide "contrasting points of view".

That idea didn't come out of the blue. It was the result of the FCC's attempts to clarify its paramount duty to regulate the public airwaves for "public convenience, interest, or necessity." The Fairness Doctrine helped the FCC determine (in edge cases) what qualified as public interest. Furthermore, the FCC believed that because there was a limited amount of radio (and television) spectrum, the issue of access was important. People who couldn't own/operate a radio station (or TV station, later) would be locked out of a public space. It'd be akin to charging $50,000 admission to a national park.

Aniko Bodroghkozy's Equal Time: Television and the Civil Rights Movement and Allison Perlman's Public Interests: Media Advocacy and Struggles over U.S. Television go into some aspects of this. For a pre-WWII look at how the regulatory system developed, try Robert McChesney's Telecommunications, Mass Media, and Democracy: The Battle for Control of U.S. Broadcasting, 1928–1935. Victor Pickard's America's Battle for Media Democracy: The Triumph of Corporate Libertarianism and the Future of Media Reform has some interesting comments as well, but I wouldn't recommend it.

In 1969, the constitutionality of the Fairness Doctrine was challenged in the U.S. Supreme Court in Red Lion Broadcasting v. FCC. That court ruled the doctrine didn't violate a broadcaster's First Amendment rights, but it did warn that the Fairness Doctrine could pose free-speech implications later. In 1974, Sen. William Proxmire, D-Wisconsin, began attempting to roll back the Fairness Doctrine with his "First Amendment Clarification Act" (Red Lion Broadcasting had been from Wisconsin), and in that same year, (in Miami Herald Publishing Co. v. Tornillo) U.S. Supreme Court Justice Warren Burger wrote that "government-enforced right of access inescapably dampens the vigor and limits the variety of public debate."

Burger wrote that comment while declaring that newspapers didn't have to provide "right of reply" space to editorial comments, but his remarks would soon be applied to radio and television as well.

The latter 1970s and 1980s were a time of significant deregulation in the United States: airlines, utilities and other federally regulated industries were freed to conduct business as they saw fit. Radio and television weren't immune to this trend in American policy.

In 1981, Sen. Robert Packwood (R-Oregon) became chairman of the U.S. Senate Commerce Committee and began holding hearings that concluded the Red Lion Broadcasting decision no longer had merit. That decision more than a decade before had held that because America's broadcast airwaves were a limited public commodity, they had to be regulated. With the development of satellite and cable television services, plus innovations in radio, that argument no longer held as much weight.

Furthermore, people testifying in Packwood's hearings ─ including Dan Rather ─ said the Fairness Doctrine hampered their ability to present the news.

Packwood was supported by others in Congress, and he also had a boost from private industry. Craig Smith worked with Packwood to establish the Freedom of Expression Foundation, which was funded by the major TV networks, AT&T, the Washington Post Company, and the Times-Mirror Company. That foundation's goal was to repeal the Fairness Doctrine, and Smith (who subsequently became a professor) wrote about his experience in a 1999 paper.

In 1984, Packwood held a second round of hearings, and by this point the FCC was also in favor of repeal. The problem for backers of repeal was that there were many in Congress who were skeptical of the idea of repeal. This meant a statutory approach was unlikely to succeed. In 1985, however, the FCC gave repeal proponents an avenue when it cited a Syracuse TV station for airing ads that promoted nuclear power, then failed to balance those ads with opposing views.

The FCC was then in a bizarre situation. Its commissioners opposed the doctrine but found themselves obliged to follow it. Even as the TV station's citation was appealed to the D.C. Circuit Court of Appeals, the FCC issued a report concluding:

"In sum, we find that the evidence, derived from the record as a whole, leads us to conclude that the fairness doctrine chills speech. As a result of this finding alone we no longer believe that the fairness doctrine, as a matter of policy, furthers the public interest and we have substantial doubts that the fairness doctrine comports with the strictures of the First Amendment."

FCC commissioners told the D.C. Court of Appeals that they would like to repeal the Fairness Doctrine, but they didn't believe they had the power to do so. The appeals court ruled that in fact the Fairness Doctrine had not been codified into law, and so it sent the case back to the FCC.

The FCC subsequently voted to eliminate the Fairness Doctrine in late summer 1987. An attempt by Congress to codify the doctrine passed both the House and the Senate, but President Ronald Reagan vetoed it. While there have been occasional efforts to reinstate the doctrine in law, those have never gained a significant amount of traction.


Now that we've covered the background, let's address your question directly: Has the abolishment of the Fairness Doctrine reduced the "chilling effect" identified by the FCC?

Let's look at the numbers. According to the FCC, there were 32,867 broadcast radio and TV stations in the United States as of June 30, 2017. On Dec. 31, 1990 (the latest date for which I could find post-Fairness statistics), there were 19,939 broadcast radio and TV stations in the country. At the same time, there has been an explosion in the number of cable and satellite TV and radio stations, and an almost infinite increase in Internet communications. Those (cable/Internet) are regulated differently by the FCC, so they wouldn't be covered by the Fairness Doctrine, but they are relevant because they offer avenues for the kind of alternative viewpoints that the Fairness Doctrine was intended to protect.

Looking purely at the numbers doesn't examine the content of those stations, just the number of them.

In 1997, Thomas Hazlett and David Sosa attempted to quantify the effect of the repeal of the Fairness Doctrine in a paper published by The Journal of Legal Studies. They focused their look on radio stations and performed both statistical and social analyses of the national radio market. Their conclusion:

"The evidence suggests that the 1987 elimination of the FD had a pronounced effect on radio station formats—in favor of informational programming. Correlation is not causality, but the correlation is very strong."

In 1993, New York Gov. Andrew Mario Cuomo (Democrat) argued in a New York Times column that the Fairness Doctrine was rightfully dead. "Scarcity has been replaced with 10,000 radio stations and more cable channels than there is programming to fill them. All-news and talk show formats have proliferated. Diversity of viewpoints is virtually assured by the explosion in outlets for informational programming," he wrote.

He went on to say: "The fairness doctrine chilled as much dialogue and debate as it encouraged. If I ran a radio or TV station, I might avoid a controversial point in order to avoid entanglement with government. The F.C.C. has compiled more than 60 reported instances of broadcasters' quashing programming on such topics as the nuclear arms race, religious cults and municipal salaries for fear of triggering fairness doctrine obligations.

The constitutionality question ought to be left to the courts. But as policy, the doctrine is unwise."

CJGibson

Would it be more accurate to say that this question is asking whether it had achieved those goals by 1997? I'm not entirely sure how the 20-year rule applies in a case like this.