Q. The major broadcast networks were criticized for their very limited coverage of the Democratic National Convention. Could they respond by giving much more airtime to the Republican National Convention? Wouldn’t this violate the government’s “equal time” requirements?

Answer:

You’re revealing your age by asking this question. Although there was never, contrary to the conventional wisdom, a legal requirement for equal time per se, there was, for the first 60 years of radio and TV an obligation on broadcasters to offer a balance in their public affairs coverage. That obligation ended in 1987.

The rise and fall of what came to be known as the “fairness doctrine” makes for instructive and sometimes dramatic telling. Here’s the story in brief (OK, OK, in extended brief).

Radio, an early 20^th century technology, was first used largely by the military. The 1912 Radio Act was government’s first foray into managing the airwaves. The law was largely a laissez faire, hands-off affair. It authorized the Secretary of Commerce and Labor to issue radio station licenses to U.S. citizens upon request, but not to reject applications! Why? In those early days of radio, “congress had not anticipated the rejection of applications because it presumed that there was sufficient spectrum for all who needed to operate a radio station.”[1] The operative word here is “needed”. Few envisioned radio becoming a desirable mass-broadcasting medium.

The vast majority of experts and policymakers were quickly proven wrong. By 1922, 564 broadcasting stations were operating. The government’s hands-off policy now resulted in airwave mayhem.

“The chaos that developed as more and more enthusiastic pioneers entered the field of radio was indescribable”, writes communications attorney Adrian Cronauer. “Amateurs crossed signals with professional broadcasters. Many of the professionals broadcast on the same wavelength and either came to a gentleman’s agreement to divide the hours of broadcasting or blithely set about cutting one another’s throats by broadcasting simultaneously. Listeners thus experienced the annoyance of trying to hear one program against the raucous background of another. Ship-to-shore communication in Morse code added its pulsing dots and dashes to the silly symphony of sound….”[2]

Everyone agreed. More government involvement was needed. The question was what form it would take. As former Federal Communications Commissioner Nicholas Johnson notes, several options were on the table. The U.S. Navy could have controlled all broadcasting, as it wanted to do. The airwaves could have become a common carrier, like roads, available to all comers who wanted to put on a show. Frequencies could have been auctioned off to the highest bidders. Or we could have created the American equivalent of the British Broadcasting Company.[3]

Instead we chose still another route: licensing the use of frequencies to private parties. In this system broadcasters paid no money for frequencies. Conversely, they received no property right to the frequency. They held only a short-term license. License renewal depended on whether the station served the public interest.[4]

The Radio Act of 1927 announced that the airwaves belonged to the public. Broadcasters were deemed “public trustees” who were “privileged” to use a scarce public resource. As the Federal Radio Commission (FRC), forerunner of the Federal Communications Commission (FCC) explained, “the station must be operated as if owned by the public…It is as if people of a community should own a station and turn it over to the best man in sight with this injunction: ‘Manage this station in our interest…’”

Broad regulatory powers were delegated to the FRC. First Amendment free speech rights of broadcast editors were to be respected and they were to be given great leeway in exercising programming and content authority. But the FRC had the duty to protect the public interest. “Though we may not censor”, the FRC explained, “it is our duty to see that broadcast licenses do not afford mere personal organs, and also to see that a standard of refinement fitting our day and generation is maintained.”

In 1927 the FRC declared its intention to choose among applications for scarce radio licenses by “determin[ing] from among the applicants before it which of them will, if licensed, best serve the public.” The Commission made clear there was no room for “propaganda stations” as opposed to “general public-service stations”.

For the next 60 years the relationship between the broadcasters’ First Amendment rights and the rights of the community as a whole to require content balance was the inspiration for many FCC reports and rulings and several court decisions.

In 1930 the FRC made concrete its intention to intervene on behalf of the public interest by denying a license renewal to a Milford, Kansas station on the ground that it was used simply to sell the owner’s medical products. It also denied a license renewal to a Los Angeles station used primarily to broadcast sermons that attacked Jews, Roman Catholic church officials and law enforcement agencies, among many others.[5]

In 1937 Congress inserted into The Communications Act a provision (Chapter 315(a)) that explicitly declared a legal requirement that stations offer “equal opportunity” to all legally qualified political candidates for any office if they had allowed any other person running for that office to use the station.[6]

In 1940, the Federal Communication Commission banned editorializing by station owners. Later it softened its opposition but in return for allowing broadcasters to editorialize it insisted that any editorializing be balanced by other perspectives. In l946 the Commission’s staff report, Public Service Responsibility of Licenses, declared that when licenses were up for renewal the FCC would take into account several factors, including the amount of advertising, live programming, and time devoted to discussion of local public issues.[7]

In 1949, the FCC unveiled what later became known as the Fairness Doctrine. It had two broad provisions. Broadcasters had to devote “a reasonable percentage of time to coverage of public issues; and [the] coverage of these issues must be fair in the sense that it provides an opportunity for the presentation of contrasting points of view”.[8]

In 1959, Congress reaffirmed that the Fairness Doctrine had statutory authority by amending Chapter 315(a) of the Communications Act of 1934. Part of the new amendment read, “Nothing in the foregoing sentence shall be construed as relieving broadcasters, in connection with the presentation of newscasts, news interviews, news documentaries and on-the-spot coverage of news events, from the obligations imposed upon them under this Act to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public importance.”

The Courts consistently upheld the use of the fairness doctrine to limit free speech. In one case, a television station in Jackson, Mississippi vigorously espoused the segregationist view and allowed airtime only for the white citizens council, never the NAACP. The United Church of Christ and others in 1964 petitioned for legal standing to challenge the renewal of WLBT’s license. The circuit court, in 1966, held that citizens have the right to participate in the FCC license renewal process.[9] The Court of Appeals held that balance was required. Without the Fairness Doctrine, the Court declared, a broadcaster could assert to the FCC at renewal, “I am a racist and agree only with that viewpoint, so that is all that I will present” and the agency would have to renew license, the antithesis of serving the public interest.[10]

In 1969 the U.S. Supreme Court upheld the application of the Fairness Doctrine.[11]

The case involved a liberal writer, Fred J. Cook whose book, Goldwater–Extremist on the Right, was critical of the Republican Party’s far right wing. As part of a series of religious broadcasts called the “Christian Crusade,” Reverend Billy James Hargis broadcast a 15-minute sermon in November 1964 that was carried on Pennsylvania’s WGCB, a station owned by Red Lion. The sermon made personal and false attacks on Cook, including accusing Cook’s publisher of having “Communist” affiliations. Cook went to the FCC, which ordered Red Lion to allow him the opportunity to reply. Red Lion refused.

The Supreme Court supported the FCC. In doing so it noted that the broadcast media is different from the print media. Printing presses are available to everyone and no license is needed to publish. But broadcast frequencies are limited and require a license allocated by the government. Therefore while the newspaper editor’s First Amendment rights could be paramount, Congress and the FCC had the right to make the community and the public interest paramount over the broadcaster’s free speech rights.

If we were to apply the Supreme Court’s ruling in a 2004 context, it might mean that Rupert Murdoch could be as one-sided as he wants with his New York Post, but his Fox News must have balance.

As Supreme Court Justice White wrote, “Where there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish… A license permits broadcasting, but the licensee has no constitutional right to be the one who holds the license or to monopolize a radio frequency to the exclusion of his fellow citizens. It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.”

Without a Fairness Doctrine, the Court argued, “station owners and a few networks would have unfettered power to make time available only to the highest bidders, to communicate only their own views on public issues, people and candidates, and to permit on the air only those with whom they agreed…Congress need not stand idly by and permit those with licenses to ignore the problems which beset the people or to exclude from the airwaves anything but their own views of fundamental questions.”

The Court declared that the Fairness Doctrine “finds specific recognition in statutory form, is in part modeled on explicit statutory provisions relating to political candidates, and is approvingly reflected in legislative history…(in) adopting the new regulations the Commission was implementing congressional policy rather than embarking on a frolic of its own.”[12]

The Supreme Court did take into account the argument proposed by Red Lion and others that rather than expanding coverage of controversial issues the Fairness Doctrine actually diminished it. They argued that the complexities and resources involving in offering time to all opposing perspectives discouraged broadcasters from covering controversial issues. In an aside to its 8-0 decision, the Court noted, “if experience” found “the net effect is reducing rather than enhancing coverage there will be time enough to reconsider the constitutional implications.”

In 1974, in response, the FCC issued a report on the Fairness Doctrine that provided evidence that it had not reduced coverage of important public issues. Moreover, the FCC called the Doctrine “the single most important requirement of operation in the public interest – the sine qua non for grant of a renewal of license”.[13]

The Supreme Court did not, however, require broadcasters to give anyone access to the airwaves, even if they were willing to pay for airtime. In 1973 the Court ruled that a broadcaster had the right to have a general policy of not selling advertising time to individuals or groups wishing to speak on issues important to them. The Court held that the Democratic National Committee did not have the right to buy advertising time if the broadcaster was not selling time to other parties or candidates.[14]

In l971, the FCC required stations to provide detailed information, along with their application for license renewal, on their efforts to seek out and address issues of concern to the community. The process became known as “Ascertainment of Community Needs” and the voluminous material became the basis for determining whether licenses should be renewed. In retrospect, the early 1970s might have been the high water mark for aggressive enforcement of the Fairness Doctrine.

With the ascension of Ronald Reagan to the Presidency in 1980, the government’s attitude toward the Fairness Doctrine dramatically changed. In 198l Reagan appointed Mark Fowler, a former broadcast lawyer, as Chairman of the FCC. Fowler declared “the perception of broadcasters as community trustees should be replaced by a view of broadcasters as marketplace participants”. He argued, “Scarcity, to my mind, is a condition affecting all industries. Land, capital, labor and oil are all scarce. In our society, we allow the marketplace to allocate such goods. In this process, consumers’ interests and society’s interests are well served.”

To Fowler, “The equal time law is the non-time law”. Rather than allow time for a crowded debate, broadcasters simply avoided controversy. In 1987, just before he retired from the Commission, Fowler said that eliminating the Fairness Doctrine was his most important objective.[15]

In 1981, the FCC began its deregulation of radio by eliminating the requirement that licensees provide detailed program information as the basis for license renewal. Instead it instituted what came to be known as “post card” renewal in which little program information was gathered.

In 1984, the Supreme Court seemed to open the door to a re-examination of the Fairness Doctrine. In that case, Pacifica Radio and the League of Women Voters petitioned the Court to overturn that part of the Public Broadcasting Act that forbade editorializing by any noncommercial station receiving funds from the Corporation for Public Broadcasting. The Court agreed. It reasoned that forbidding anyone to state an opinion, even those who are receiving government funds, amounted to a “prior restraint” of speech.[16]

In several footnotes the Justices also account, as they had in the Red Lion decision, the broader argument that the advent of cable and other communication technologies made so many other communication outlets available that it may have undermined the scarcity rationale for government content-regulation itself. “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.”

In 1985, the FCC responded to this invitation with a new report on the Fairness Doctrine that contradicted its 1974 report. The 1985 Report provided examples of how the Fairness Doctrine had actually chilled coverage of public issues. It 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”.[17]

Nevertheless, the FCC promised to continue enforcing the Doctrine, citing Congress’ “intense interest” as the reason.

Under Ronald Reagan the FCC did not enforce the Fairness Doctrine. In 1984 the Telecommunications Research and Action Center (TRAC) and Media Access Project (MAP) sued to compel enforcement. The case involved whether the FCC should apply the doctrine to the new technology of “teletext”.[18]

The FCC argued that teletext was a new technology that created an increase in a limited resource, and thus could be exempt from the Fairness Doctrine. TRAC and MAP argued that teletext transmissions should be regulated the same as any other use of the airwaves; and therefore the Fairness Doctrine applied and the FCC must enforce it.

In a lengthy decision, Appeals Court Judges Robert Bork and Antonin Scalia, two Reagan appointees, embraced a novel third position that had not been argued by either party. They concluded that the Fairness Doctrine did apply to teletext but that the FCC was not required to apply it. Historically, they argued, the FCC had exercised its discretion to enforce the Doctrine with wide latitude. That meant the Doctrine itself was not a law but a guideline. Judge Bork wrote, “We do not believe that language adopted in 1959 [by Congress] made the Fairness Doctrine a binding statutory obligation” because the doctrine was imposed “under” not “by” the Communications Act of 1934. To Bork and Scalia the amendment merely ratified the FCC’s longstanding position that the public interest standard “authorizes the Fairness doctrine” but did not require it.

Bork strongly questioned the reasoning of the Supreme Court that the broadcast medium was unique because of spectrum scarcity. “It is certainly true that broadcast frequencies are scarce but it is unclear why that fact justifies content regulation of broadcasting in a way that would be intolerable if applied to the editorial process of the print media”, he wrote, echoing the argument of Mark Fowler. “All economic goods are scarce, not the least newsprint, ink, delivery trucks, computers and other resources that go into the production and dissemination of print journalism…Since scarcity is a universal fact, it can hardly explain regulation in one context and not another”.

In 1986, by a 2-1 verdict, the Appeals Court gave the power to enforce, or not to enforce, the Fairness Doctrine to the FCC.[19] A few months later FCC Commission James H, Quello issued a press release that said, in part, “TRAC teletext case stated the Fairness Doctrine is not incorporated in the Communications Act but is only FCC policy which the FCC can eliminate.”

One more court case was needed for it to do so.

Two months after the 1985 Fairness Report was issued, and while the TRAC case was still wending its way through the courts, the FCC enforced the Fairness Doctrine for the first time in five years. It did so with the express intent of forcing a court decision in favor of allowing it to abandon the doctrine.

The case involved a broadcaster, the Meredith Corporation, which in the summer of 1982 had broadcast three advertisements sponsored by the Energy Association of New York in favor of a proposed nuclear power plant. The Syracuse Peace Council challenged the lack of balance. “[T]he advertisements promoted the Nine Mile II nuclear power plant ‘as a sound investment for New York’s future’ without presenting opposing viewpoints”. In late October 1984, the FCC found Meredith in violation of the Fairness Doctrine.

The case went to court. The Court found that the FCC was “not free to declare an act of Congress unconstitutional”. But it suggested that if the Commission found Congress did not specifically codify the doctrine, it could avoid the constitutional issue by declaring the doctrine contrary to the public interest on an adequate record. It sent the Meredith case back to the FCC to address this issue.[20]

On January 23, 1987 the Commission invited public comment as to whether “enforcement of the fairness doctrine is constitutional and whether enforcement of the doctrine is contrary to the public interest”.[21] In August 1987 the FCC unanimously decided that the Fairness Doctrine was contrary to the public interest.

“We no longer believe that the Fairness Doctrine, as a matter of policy, serves the public interest”, the Commission concluded. “We believe that the interest of the public in viewpoint diversity is fully served by the multiplicity of voices in the marketplace today and that the intrusion by government into the content of programming occasioned by the enforcement of the doctrine unnecessarily restricts the journalistic freedom of broadcasters.” “[W]e find that the Fairness Doctrine, in operation actually inhibits the presentation of controversial issues of public importance to the detriment of the public and in derogation of the editorial prerogative of broadcast journalists.”[22]

The FCC was acting on the federal courts’ advice that there was no statute explicitly requiring fairness in broadcasting. This put the ball in Congress’ court. In June 1987, before the FCC’s new policy went into effect, the House by a 3-1 vote and the Senate by a vote of almost 2-1 passed a bill that made the Fairness Doctrine the law. The vote was bipartisan. Indeed, among those voting in favor the Fairness Doctrine were leading conservatives like Rep. Thomas Bliley (R-VA), Rep. Newt Gingrich, R-GA and Sen. Jesse Helms, R-NC. Phyllis Schlafly and Reed Irvine of Accuracy in Media also supported the effort.

In the summer of 1987 Ronald Reagan vetoed the bill. There were insufficient votes in the Senate to override the veto.

To express its displeasure at the actions of the FCC, the U.S. Senate refused to confirm any nominees to FCC seats for the next three years and severely restricted its budget. One of the significant reasons behind the Senate’s rejection of Ronald Reagan’s nomination of Robert Bork to the Supreme Court was the “judicial activism” involved in the TRAC case.

In 1989 a bill codifying the Fairness Doctrine again easily passed the House. It didn’t proceed further because President George Bush threatened to veto it.

When the Democrats won back the White House in 1992, a strong movement emerged to make the Fairness Doctrine the law. A bill passed the Senate and was expected to pass the House. It never came to a vote.

By then, spurred by the demise of the Fairness Doctrine, the broadcasting landscape had dramatically changed. And that, in turn, changed the political landscape.

Which brings us to talk radio. Talk radio was invented many decades ago. Call-in talk radio emerged as early as the 1940s and 1950s. Talk radio complied with FCC community service requirements by focusing on public interest issues and presenting all viewpoints. In the 1970s and early 1980s national and local talk show hosts such as Larry King, Patrick Buchanan, Joel A. Spivak and Mort Sahl were popular. In 1984, the most popular talk radio host, interestingly, was Denver-based liberal Alan Berg. In June of that year, Berg was machine gunned to death by right-wingers claiming they were from the Aryan nation. In one of history’s many ironies, that same month Rush Limbaugh began his talk show at KFBK in Sacramento.

Rush Limbaugh’s show was unique among talk radio. There were no guests. It was all Rush all the time, mixing humor with an in-your-face attitude and a one-sided perspective. A few months after the FCC dropped the Fairness Doctrine Limbaugh syndicated his show in unprecedented fashion, by offering it free of charge to stations across the nation. Within weeks 56 stations had picked up the show; within four years over 600 stations were carrying it, the fastest spread of any talk show in history.

Others imitated Limbaugh’s format. The number of radio talk stations soared from 400 to 900 between 1987 and 1993.[23]

In 1993, the nation discovered the political power of this new entity. Rush mobilized his listeners by describing the effort to revive the Fairness Doctrine as nothing more than a Crush Rush initiative. Calls and letters to some congressional offices ran four to one against the Fairness Doctrine. According to National Public Radio, “privately, top aides in both the House and Senate admit that efforts to reimpose the doctrine have been put on hold in large part due to the talk show hosts.”[24]

In 1994, talk radio made itself felt in national elections. Rush and dozens of other talk show hosts raised the issues that Newt Gingrich’s Contract Information Center faxed them each morning about the Contract With America. Many read them verbatim over the air. When the Republicans stunningly captured the House of Representatives that year, for the first time in almost 40 years, Newt Gingrich called it “the first talk radio election”. In early 1995, the Republican Party held a special ceremony in honor of Limbaugh, naming him “an honorary member of Congress”. They dubbed him, “the majority maker”.

Over the next 10 years Congress never again seriously tried to revive the Fairness Doctrine. However it does appear, based on the court rulings that gave the FCC authority to abandon the Doctrine, that a new FCC could, at its discretion, begin to enforce it again.

It should be noted once again that the Fairness Doctrine never required equal time or a balance on any given program or program segment. It did require the airing of different perspectives over time by a broadcaster. In retrospect the Doctrine undoubtedly did discourage some broadcasters from covering controversial issues because of the time-burden related to doing so. On the other hand, it also prevented a station from airing one perspective day in and day out, without allowing any opposing views.

In practice the Fairness Doctrine rarely if ever was used to deny a broadcaster a license. From 1927 to 1980 only one station lost a license because of a fairness controversy, and that decision relied more on licensee misrepresentation and deliberate violations than isolated fairness violations. From 1970 to 1978 the FCC revoked 64 licenses; 3 involved fairness complaints and in each case revocation was decided on other grounds.

Today, the marketplace rules the airwaves. Both Democrats and Republicans have embraced the concept that the airwaves could become private property. Under Bill Clinton the government auctioned off TV frequencies, and in effect gave away others as it opened up digital transmission. The 1996 Telecommunications Act allowed for a significant concentration of ownership of the airwaves and deregulated television in the same way that the FCC had deregulated radio in the early 1980s.

Many observers believe that the proliferation of controversial radio and TV shows is a sign that the Fairness Doctrine stifled debate. Many now agree with Mark Fowler’s comment, “The public interest, then, defines the public interest.” Demand, not government fiat, now decides what is broadcast. “The limiting factor is not availability of frequencies, but rather, the existence of enough listeners to justify a particular programming format”, observes Adrian Cronauer. “Granted, there may not be adequate listeners to justify accommodating every fringe or splinter faction. However, is it really necessary to the proper functioning of a democracy that the federal government assure platforms in every medium, in every community, for” everyone? Another communications expert, Philip B. Kurland adds, “If there is, in fact, an audience for the message, one form of the media or another can be counted on to exploit it. If there is no such audience, there is no need to compel one form of the media to be a voice crying in the wilderness.”[25]

There are others, however, who view such arguments as disingenuous. Would the owners of broadcast networks allow the proliferation of talk shows, no matter how popular, that advocated severely curbing their wealth and power? There is certainly a significant audience for entertaining talk shows that excoriate billionaires, skewer corporations, and lampoon the church. Would the existence of that demand lead a billionaire or a corporation or a for-profit religious network to put such shows on the air?

For those of you who have stuck around so far, you deserve a direct answer to the original question. What is the obligation of TV and radio networks to cover the Republican or Democratic conventions?

We know that in 2004 they have no obligation. But perhaps it would be useful to rephrase the question to ask what their obligation would have been if the Fairness Doctrine were still intact. All broadcasters would not be required to carry equal amounts of coverage and invite commentators who represented all perspectives. It is also likely that if there were at least one TV or radio station available to everyone to hear gavel to gavel coverage the FCC would not have viewed network participation as important. On the other hand, if no stations covered one convention while several covered only the other one, it would certainly violate the spirit of the Fairness Doctrine. The choice not to cover the political convention would have been noted in the voluminous file used to evaluate license renewal. But would the FCC, or the courts, actively intervened to rectify that situation? The history of the enforcement of the Fairness Doctrine would suggest that the answer is no.