Reinstitute Fairness Doctrine
to Improve Public Debate

Guest Column
by Robert Nelson

April 16, 2010

Earlier this year, U.S. Senator Debbie Stabenow called for hearings on whether or not to reinstitute broadcasting’s Fairness Doctrine, or something similar to it, as a way to bring “accountability to the airwaves.”

The doctrine, first adopted by the Federal Communications Commission in 1949, required broadcasters to devote some of their programming to a discussion of issues of public importance and, in doing so, to ensure that contrasting views on those issues were heard. The FCC repealed the doctrine during the Reagan Administration, and various subsequent attempts by Congress to reinstate it have been defeated.

As a young attorney at the FCC in the 1970s, I was one of a handful of bureaucrats entrusted with ensuring that broadcasters complied with the Fairness Doctrine. From this perspective, I will address the merits and demerits of the doctrine and attempt to explode some of the myths surrounding it. I will also attempt to suggest certain improvements that might be accomplished if the doctrine is reinstated and explore how the doctrine might operate differently today.

It took less than 30 minutes following Sen. Stabenow’s comments about the Fairness Doctrine in February to generate a heated discussion on the blogosphere. Journalists from Ed Brayton of The Michigan Messenger to Michelle Malkin challenged Stabenow, arguing that the diversity of news and information sources available to the public, including access to the Internet, has made the Fairness Doctrine irrelevant.

They also argued that we couldn’t trust the government to make decisions regarding what is or is not balanced programming. Finally, they asserted that a return to the Fairness Doctrine would violate the First Amendment, because it would threaten the existence of certain talk shows with a decidedly conservative slant.

To begin with, the Fairness Doctrine, when it was in operation, applied only to broadcast licensees who, as trustees of a scarce public resource, were required to accept certain public interest obligations in exchange for the exclusive use of limited public airwaves. Although more and more people have the ability today to be informed about public issues on the Internet, there are more than 200 million websites that can be accessed, compared to the thousands of broadcast stations in this country.

There is no question that radio and television broadcasting remains the most powerful force affecting public opinion, on both national and local issues. The decision of the U.S. Supreme Court in Citizens United v. Federal Election Commission, issued shortly before Stabenow’s remarks, can only mean that this influence will intensify. If corporations and labor unions can spend unlimited amounts of money by purchasing airtime to advocate their positions, the need for broadcast stations to provide some balance to those positions is more compelling.

The affirmative obligation of the Fairness Doctrine to provide information on public issues would, in my view, allow the public to become better informed on a range of important topics and bring the accountability to the airwaves that Sen. Stabenow seeks. I sincerely believe that had the Fairness Doctrine been in operation in the lead-up to the Iraq war, the country would have heard a more robust debate about the need for the war and, perhaps, the war could have been avoided.

Moreover, the requirement to provide contrasting views would, in my view, enhance the civility of the public debate. Had the doctrine been in effect during the recent debate on health care reform, more Americans could have heard both sides of the issue, as opposed to the side they chose to listen to from stations with talk shows dominated by either right wing or left wing viewpoints.

Secondly, regarding whether we can trust the government, I would agree that the fact that administrations change might result in the possibility that political considerations could affect the FCC’s resolution of a Fairness Doctrine complaint. The FCC’s recent pursuit of “net neutrality” principles is evidence of the fact that major policy decisions are affected at the FCC by the party in power.

Although I did not experience political bias during my tenure at the FCC, I would propose that disputes involving the “new” Fairness Doctrine be delegated to an independent, non-political body, such as the American Arbitration Association. This would ensure that politics do not influence either the determination as to whether the licensee had failed to comply with the doctrine or the appropriate penalty for such a violation.

As for the First Amendment argument, the U.S. Supreme Court has in fact ruled, in Red Lion Broadcasting v. FCC, that the Fairness Doctrine is entirely consistent with the First Amendment. Justice Byron White, writing for the majority of the court, stated: “There is no sanctuary in the First Amendment for unlimited private censorship operating in a medium not open to all.”

What Justice White was referring to was the ability of radio or television station owners to dictate their entire programming schedule and to fill it with entirely conservative or liberal political commentators, as is the case with many broadcast stations today. Contrary to the views of certain critics, the Fairness Doctrine never required that broadcast stations balance their programming in the context of a given program. In other words, no program currently being broadcast would have to change its format or content, nor would its existence be threatened. Broadcast stations would merely have to provide some opportunity for contrasting views during the course of their programming schedule.

Sen. Stabenow has quite appropriately called for more accountability for over-the-air broadcasters as it relates to the discussion of controversial issues in a climate of increased hostility in public discourse throughout the country. The Fairness Doctrine proved that it could establish that accountability before it was repealed. It is time to restore that accountability.

Not only is the doctrine consistent with the First Amendment, it promotes the free and open debate on public issues that the Founders deemed to be a prerequisite to the success of our democracy. I hope to publish a novel by the end of the year, which further explores this topic.

Robert Nelson is Of Counsel with the Fraser Trebilcock law firm, a former Michigan Public Service Commission member and finished second in last year’s short story contest sponsored by the State Bar of Michigan.