Would Re-Implementation of the Fairness Doctrine Be Pragmatic? - Fordham Intellectual Property, Media & Entertainment Law Journal
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Would Re-Implementation of the Fairness Doctrine Be Pragmatic?

Would Re-Implementation of the Fairness Doctrine Be Pragmatic?

The Fairness Doctrine was originally implemented by the Federal Communications Commission in 1949 in order to ensure a balanced presentation of issues of public importance on broadcast news programs. According to author Kay Mills:

The FCC had laid out the doctrine in 1949 in its “Report on Editorializing by Broadcasting Licensees” to clarify confusion that existed in the broadcasting world about how far stations could go in expressing their own views. Broadcasters had an affirmative duty to air controversial issues so long as they made available opportunities to express opposing views, the FCC said, adding that no one had the right to distort the news.1

Speaking for the court, Justice White stated in Red Lion, 395 U.S. 367, 369 (1969) that:

The Federal Communications Commission has for many years imposed on radio and television broadcasters the requirement that discussion of public issues be presented on broadcast stations, and that each side of those issues must be given fair coverage. This is known as the fairness doctrine, which originated very early in the history of broadcasting and has maintained its present outlines for some time.

Since its repeal, there have been rumblings as to whether or not the doctrine should be formally re-implemented. However, some believe the current media coverage is overblown. “The conservative buzz on this issue derives from no more than a few isolated quotes over the past several months by 5 of the 284 Democrats in Congress.”2 This is grounded in the belief that the current broadcast news landscape is partisan and stratified. Advocates on both sides of the debate believe that either the Doctrine should be reinstated in order to ensure broadcasting fairness, or that by reinstating it the government would be curtailing the First Amendment rights of broadcasters.

Proponents of bringing back the Fairness Doctrine suggest a number of reasons as to why it was effective, or how it could be effective if re-implemented. First, defenders of the doctrine suggest it is necessary to maintain an open deregulated media accessible to the public.3 By eliminating the requirement for opposing viewpoints, as well as the necessity to allow individual citizens the opportunity to voice their opinions, the F.C.C. ensured that the marketplace of ideas could not come to fruition. Since the media is owned by the wealthy, some suggest they will not air fringe views and stifle expression.

However, this is a misguided proposition. First, statistics show that when it was enforced, the Fairness Doctrine barely granted access to citizens who made complaints. The Supreme Court has cited statistics that show it may have not been nearly as effective as proponents of it believe. “Of every 1,000 complaints received between FY 1973 and FY 1976, approximately 4 resulted in station inquiries, 1 in an adverse ruling, and “1/3 of 1” in a general fairness adverse ruling. The average complainant truly had only about a one in a thousand chance.”4

Second, the Fairness Doctrine, when enforced, was not successful in granting media access to the individual anyways. The above statistics show that “…because there is little practical difference between a seldom-enforced regulation and no regulation at all, the practical effect of deregulation is not great.”5

Today’s highly polarized cable news landscape is extremely polarized. On one end of the spectrum one finds highly conservative news outlets such as FOX News, and on the other end, liberal channels such as MSNBC. A paramount reason as to why the Fairness Doctrine should not, and realistically could not, be re-implemented is a matter of plausibility. Individuals who tune into a conservative, more right-wing news channel such as FOX News are doing so because they enjoy the biased views of the station. The same applies for MSNBC. Forcing a channel such as FOX News to discuss the merits of the pro-choice ideology completely undermines what such a station is attempting to do in the first place, spread its own ideology, without apologies. The problem does not lie with the individual television stations, but rather, with the viewers themselves.

1 Kay Mills, Changing Channels: The Civil Rights Case That Transformed Television 27 (University Press of Mississippi, 2004) (2004).
2 Administrative Law Review 2008, The Fairness Doctrine: A FLAWED MEANS TO ATTAIN A NOBLE GOAL.
3 The Impact of Deregulation of the Fairness Doctrine on the Broadcast Industry and on the Public. 47 Admin. L. Rev. 625 (citing The Demise of the Fairness Doctrine, 31 Fed. Comm. L.J. 161, 163 (1989)).
4 47 Admin. L. Rev. 625 citing STEVEN J. SIMMONS, THE FAIRNESS DOCTRINE AND THE MEDIA 31, 210-211 (1978).
5 Id. at 633.

Daniel Rogove