Copyright c 1988 by Nicholas Johnson
California Lawyer, August 1988, p. 52.

"With Due Regard for the Opinions of Others"
by Nicholas Johnson

House Commerce Committee Chairman John Dingell was livid. "I knew
those lickspittles would do something like this," he said. Senate
Commerce Committee Chairman Ernest Hollings shared the outrage if not
the rhetoric. The action, he said, was "wrongheaded, misguided and
illogical." Their comments were directed at the Federal Communications
Commission, which repealed the Fairness Doctrine in August 1987.

The way for repeal had been paved by a three-judge panel of the U.S.
Court of Appeals for the District of Columbia Circuit, which had ruled a
year earlier that the Fairness Doctrine was an FCC directive, not a law.
Telecommunications Research Action Center v FCC 801 F2d 501. As a
result, the FCC was free to abolish the 60-year-old broadcasting doctrine
by administrative fiat.

In the spring and summer of last year, Hollings led a campaign to codify
the Fairness Doctrine, steering it through Congress only to be frustrated
by a presidential veto. For its part, the FCC asked for comments on
whether continuing to enforce the doctrine would be unconstitutional and
contrary to the public interest. When congressional sponsors of a bill to
save the doctrine fell eight votes short of override, the FCC acted.

Hollings still believes he can resuscitate the doctrine. And in September,
the D.C. Circuit will hear arguments from supporters of the doctrine to
invalidate the commission's repeal. Geller v FCC (Civ No. 87-1544). The
FCC, meanwhile, is considering repeal of the Personal Attack Rule and
the Political Editorial Rule, two corollaries of the fairness requirement.

What is the Fairness Doctrine, and why does anyone care about it? The
doctrine requires FCC-licensed broadcasters to present programming about
controversial issues, and in so doing to offer a range of views. Its
supporters include not only a majority of the

Senate and House, but also many broadcast journalists and media-fearing
public citizens from Ralph Nader to Phyllis Schlafly. Sixteen former FCC
commissioners, who agreed to little on the commission and less since,
have banded together in support of fairness.

"A range of views on controversial issues" sounds reasonable enough. Isn't
that what responsible, ethical journalists do anyway? Ethics aside, isn't
that the way to boost ratings?

The fight over the Fairness Doctrine is about nothing less than possession
of the First Amendment: Who gets to have, and express opinions in
America. As is often the case, to frame the issue is to decide it: Where
you stand is a function of where you sit.

Those who are not FCC licensees, and whose views are seldom aired, see
the Fairness Doctrine as affirmative protection of their freedom, not only
to contribute to the community's marketplace of ideas, but to be exposed
to a wide range of views. As the Supreme Court put the argument:

Because of the scarcity of radio frequencies, the Government is permitted
to put restraints on licensees in favor of others whose views should be
expressed on this unique medium. But the people as a whole retain . . .
their collective right to have the medium function consistently with the . .
. purposes of the First Amendment. It is the right of the viewers and
listeners, not the right of the broadcasters which is paramount . . ..  It is
the right of the public to receive suitable access to social, political,
esthetic, moral, and other ideas and experience which is crucial here. Red
Lion Broadcasting Co. v FCC (1969) 395 US 367.

On the other hand, those who have licenses are quite comfortable with
controlling their stations' programming. They consider the First
Amendment a negative protection from the very kind of government
participation in programming represented by the Fairness Doctrine. Their
views have had an impact on some economically disinterested liberals,
academics and judges of varying degrees of sophistication.

Listening to these arguments, U.S. Court of Appeals Judge Skelly J.
Wright of the D.C. Circuit observed in a speech, "In the current debate
over the broadcast media . . . each debater claims to be the real protector
of the First Amendment, and the analytical problems are much more
difficult than in ordinary constitutional adjudication."

Indeed they are. Occasionally courts must balance an individual's First
Amendment rights against other state interests. But how should they
balance one individual's First Amendment arguments against another
individual's First Amendment arguments? Perhaps we should begin at the
beginning: the early days of radio.

Before the introduction of radio in the 1920s, the government had a
number of communication policy options.  Congress could have agreed
with the Navy and let it control all broadcasting as "wireless telegraphy." 
It could have supported AT&T's proposal that broadcast signals become a
common carrier, an idea some urge for today's cable television. It could
have auctioned off frequencies to the highest bidder, or allocated stations
to institutions such as universities, churches, labor unions and political
parties. It could have created an American BBC or promoted viewer
control.

What Congress chose was a broadcasting system in which private citizens
would be licensed to use public property -- the "airwaves." Broadcasters
could make private profit, but only as public trustees of this valuable and
politically powerful community resource. Section 301 of the
Communications Act of 1934 (47 USC §301) still provides for "the
control of the United States' over all . . . radio transmission" and for "the
use of such channels, but not the ownership thereof . . . under licenses
granted by Federal authority."

The government was expressly prohibited from censoring programs. But
licensees would be expected to serve the public interest in exchange for
their privileges. And regulations could minimize potential abuse.

Since 1928, among these regulations has been a cluster of policies known
as the Fairness Doctrine. It is analytically useful to treat the policies
individually. Some apply to candidates for political office, some to
everyone and some to the presentation of issues. Some require station
owners to permit the appearance of specific individuals; others merely
compel the broadcast of additional material.

The equal opportunity doctrine, often misnamed "equal time," does not
require broadcasters to sell time to candidates.47 USC §315. It triggers
such rights once one candidate for a given office has been granted time.
Section 312, by contrast, gives candidates for federal office a legally
enforceable right to buy time regardless of circumstance. Like equal
opportunity, the personal attack doctrine triggers rights in the specific
party attacked. 47 CFR §73.1920. The political editorial doctrine creates
comparable rights in candidates suffering the brunt of broadcasters'
editorials. 47 CFR §73.1930.

The general Fairness Doctrine can be traced to the FCC's 1949 Report on
Editorializing by Broadcast Licensees, 13 FCC 1246, and Congress' 1959
amendment to 47 USC §315(a) requiring broadcasters "to afford
reasonable opportunity for discussion of conflicting views on issues of
public importance." The requirements are not limited to candidates or
editorials, do not involve attacks, and do not trigger individuals' rights.
The Fairness Doctrine only requires that broadcasters: (1) provide
programs about controversial issues of public importance, and (2) in doing
so, ensure that contrasting points of view are presented.

Broadcasters need not be "fair." The FCC does not designate formats,
topics, scheduling or guests. There is no restriction on broadcasters'
freedom to express ideas, but only on their power to censor. Fairness does
not require equal balance. It does not address individual programs, only
overall programming. In sum, the doctrine requires little more than what
any journalist would search for anyway: stories that attract audiences and
spokespersons that reflect and provoke controversy.

Most broadcast stations find it virtually impossible not to comply with the
Fairness Doctrine. Thousands of complaints were received by the FCC
from 1970 to 1978, of which 64 resulted in license revocation. Of those,
only three involved fairness complaints, and each of them was decided on
other grounds. In fact, since 1927 only one station has lost a license in a
fairness controversy and that decision relied more on licensee
misrepresentation and deliberate violations than on an isolated fairness
violation.

The FCC's present attitude toward fairness illustrates the shift from a
trusteeship to a marketplace approach to broadcast regulation that began in
the early 1970s.  Deregulation actually began under FCC chairmen
Richard Wiley and Charles Ferris. Nevertheless, the policy shift is most
closely identified with President Reagan's first FCC chairman, Mark S.
Fowler -- characterized by critics as "the James Watt of the airwaves." In
a separate statement attached to the 1985 Fairness Report, Fowler stated
his intention to "reverse course, and head ballistically toward liberty of the
press for radio and television." 102 FCC2d 251.

In 1970 and at the time of the 1974 Fairness Report, 48 FCC2d 1, the
FCC regarded fairness as "the single most important requirement of
operation in the public interest -- the sine qua non." By 1985, a politically
reconstituted commission saw the doctrine as probably unconstitutional,
clearly not in the public interest, and unnecessary given "the multiplicity
of voices in the marketplace today."

In its 1985 Fairness Doctrine Report, 102 FCC2d 145, the FCC
concluded, "The Fairness Doctrine -- in stark contravention of its purpose
-- operates as a pervasive and significant impediment to the broadcasting
of controversial issues of public importance." But it promised to continue
enforcing the doctrine, citing Congress"'intense interest" as the reason.

Until recently, few doubted the congressional and constitutional authority
for the Fairness Doctrine. That the FCC should concern itself with
programming was settled by Justice Felix Frankfurter's opinion in NBC v
U.S. (1943) 319 US 190: "But the [Communications] Act does not restrict
the Commission merely to supervision of the traffic. It puts upon the
Commission the burden of determining the composition of that traffic."
And however shocked broadcasters may have been, the 8-0 Red Lion
decision seemed to establish the constitutionality of the Fairness Doctrine
as well.

But the doctrine's moorings are coming loose in the gale-force winds from
the FCC, broadcasters and political opponents. Although the Supreme
Court never overruled Red Lion, it has given hints of wanting to distance
itself from the decision. In dicta, even the Red Lion court suggested that
"if experience" found "the net effect is reducing rather than enhancing . . .
coverage, there will be time enough to reconsider the constitutional
implications.''

In CBS v Democratic Nat'l Comm. (1973) 412 US 94, Justice Potter
Stewart said in a concurring opinion that he had joined the Red Lion
majority "with considerable doubt," and Justice William O. Douglas added
that he had not participated in the decision "and, with all respect, would
not support it. The Fairness Doctrine has no place in our First Amendment
regime."

The court's opinion in Miami Herald Publishing Co. v Tornillo (1974) 418
US 241, suggested striking parallels to Red Lion's consideration of the
personal attack doctrine. A Florida statute gave political candidates a
legally enforceable right of reply to newspaper attacks. State legislative
candidate Patrick Tornillo sued the Miami Herald, which challenged the
statute on First Amendment grounds, and won. The core question, said the
court, was "compelling editors or publishers to publish that which 'reason
tells them should not be published."' It concluded, "The choice of material
to go into a newspaper . . . -- whether fair or unfair -- constitutes the
exercise of editorial control and judgment. lt has yet to be demonstrated
how governmental regulation of this crucial process can be exercised
consistent with First Amendment guarantees of a free press."

If it's true for newspapers, broadcasters asked, why not for us?

In FCC v League of Women Voters of Cal. (1984) 468 US 364, the court
sent a double message to the FCC suggesting that it might be open to a
policy shift. While recognizing the scarcity rationale, the court overturned
a statute precluding public broadcasters from editorializing. But then in
two footnotes the justices gratuitously raised questions about that
rationale. "We are not prepared, however, to reconsider our long-standing
approach without some signal from Congress or the FCC that
technological developments have advanced so far that some revision of the
system of broadcasting regulation may be required." The next footnote
further encouraged critics, noting the FCC's suspicions that the doctrine
"impeded, rather than furthered, First Amendment objectives," and adding
that if "the Commission . . . decides[s] to modify or abandon these rules .
. . we express no view on the legality of either course."

Despite the public interest and constitutional challenges, the statutory
foundation of the Fairness Doctrine seemed secure in §315(a). In the CBS
case, the Supreme Court characterized the language added in 1959 as
Congress' effort "to give statutory approval to the Fairness Doctrine." But
U.S. Court of Appeals Judge Robert Bork of the D. C. Circuit was not
persuaded.

Siding with the commission's refusal to apply the Fairness Doctrine to
teletext material in the 1986 TRAC case, Bork wrote "We do not believe
that language adopted in 1959 made the Fairness Doctrine a binding
statutory obligation" because the doctrine was imposed "under" not "by"
the Communications Act of 1934. The amendment merely "ratified the
Commission's longstanding position that the public interest standard
authorizes the Fairness Doctrine" (emphasis added). Bork also explicitly
challenged the scarcity rationale, arguing that it is unclear why scarcity
"justifies content regulation of broadcasting in a way that would be
intolerable if applied to the editorial process of the print media." Five of
the 11 sitting appeals court judges voted for a rehearing en banc, which
was denied, as was a petition for certiorari.

Finally, the case against fairness was put most directly by a court in
Meredith Corp. v FCC (DC Cir 1987) 809 F2d 863. This
was a broadcaster's appeal of a relatively routine adverse FCC Fairness
Doctrine ruling (a 13:1 ratio of programming that a particular nuclear
power plant was "a sound investment for New York"). The court, in
remanding the constitutional question to the FCC, suggested to the
commission that it might find "the doctrine cannot be enforced because it
is contrary to the public interest and thereby avoid the constitutional
issue."

On remand, the commission voted unanimously that the Fairness Doctrine
was not only contrary to the public interest, but also unconstitutional.
Syracuse Peace Council v WTVH (1987) 2 FCC Rcd 5043. What
Commissioner Mark Fowler had promised six year earlier, Commissioner
Dennis R. Patrick delivered. "We had absolutely no excuse, no legal
reason," Patrick told Business Week, not to kill the doctrine.

The argument over the Fairness Doctrine continues, but still without
joining of the issue.

Fairness bashers think the First Amendment protects them from
government involvement of any kind. Fairness supporters say the purposes
of the First Amendment require FCC procedural policies encouraging
robust, wide-open debate -- especially in oligopolistic communication
channels. It is duplicitous, they argue, to equate FCC policies "enhancing"
with those "abridging" free speech.

Although the Supreme Court in FCC v Pacifica Foundation (1978) 438
US 726, relied on broadcasting's pervasiveness and impact on children as
a regulatory rationale, scarcity remains the primary justification for
regulating broadcasters. But in a country with only 1,600 newspapers and
more than 11,000 broadcast stations, Fairness Doctrine opponents say the
scarcity argument is an idea whose time has passed.

In a constitutional sense, however, there is as much scarcity now as ever.
More people would like broadcast stations than there are licenses
available. The licenses are still a creation of the government. The FCC
still decides which bands will be used for radio and television broadcasts,
which cities and licensees get them, the width of the bands, power of the
transmissions and height of the antenna. And the government still sends to
the penitentiary any competitor playing private enterprise on a
monopolist's channel.

It doesn't sound like an open marketplace to the defenders of the Fairness
Doctrine. And until the technology really does provide one, or until
broadcasters share some of their license benefits, a little fairness doesn't
strike advocates as much of a burden to ask in return.

Repeal of the Fairness Doctrine may be a pyrrhic victory for broadcasters.
Its existence gave the audience very little. But its removal leaves a very
empty place in the First Amendment that courts and Congress may now
feel compelled to fill with even more effective public rights.

However it comes out, this fight is over more than what the 1928 Federal
Radio Commission called "due regard for the opinions of others." It's a
struggle for nothing less than possession of the First Amendment.

____________

Nicholas Johnson, a former member of the Federal Communications
Commission, teaches at the University of Iowa College of Law in Iowa
City.

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