Since the election of President Obama and the Democratic majority in both houses of Congress, the fears of the return of the Fairness Doctrine have been highlighted on talk radio, online, by emails and in conversations throughout the broadcast industry. Even though President Obama had stated that he was not in favor of its return, and even liberal commentators have gone so far as to make fun of conservatives for suggesting that there might be an attempt to bring it back (see our post on Keith Olbermann lambasting George Will for making such a suggestion). Yet this week the doctrine was back into the national discussion, coming up in a press conference with White House Press Secretary Robert Gibbs (who joked it off without dismissing the rumors) and in a speech by FCC Commissioner Robert McDowell. What’s all the fuss about anyway?
To really understand the debate, it’s important to understand what the Fairness Doctrine is and what it is not. We’ve seen many politicians referring to the Fairness Doctrine and the Equal Time Rule in the same sentence, as if they are part and parcel of the same thing. In fact, they are different issues. Essentially, the Fairness Doctrine simply required that stations provide balanced coverage of controversial issues of public importance. The Fairness Doctrine never required "equal time" in the sense of strict equality for each side of an issue on a minute for minute basis. In talk programs and news coverage, a station just had to make sure that both points of view were presented in such a way that the listener would get exposure to them. How that was done was in a station’s discretion, and the FCC intervened in only the most egregious cases.
The application of the Fairness Doctrine was never limited to simply news and talk programming – but it also intruded into the commercial sphere. In the case of advertising about controversial issues, where parties in favor of an issue bought time to push their views, and the opponents could not afford to buy time to respond, the station might actually have to give the opponents time – but it was usually only a third or a quarter as much time as the proponents had bought, not strict equality. And the station could choose which opponents to give the time to – the viewpoint, not the spokesperson was what counted.
The application of the Doctrine in the context of advertising could have profound effects. For instance, the use of the Fairness Doctrine as a weapon against smoking advertising – requiring that stations give anti-smoking advocates time to talk about the ill health affects of smoking in a ratio of 1/3 or 1/4 of the advertisements that ran for cigarettes – was one of the reasons that the constitutionality of the legislative ban on smoking ads enacted in 1970 was never challenged by the tobacco companies.
While enforcement of the Fairness Doctrine was declared unconstitutional by the FCC in the late 1980s, the "equal time" rule is still very much alive – as it stems from a different source in the Communications Act – the Section 315 provisions on the political rules dealing with the treatment by broadcast stations of candidates for public office. Essentially, equal time requires that, if a broadcast station gives one candidate free time, all other candidates can get the same amount of free time. If a candidate buys time on a station, the station must be willing to sell each candidate equal amounts of time. In connection with candidate time, it is strict minute for minute equality – unlike what was once required by the Fairness Doctrine. See our Political Broadcasting Guide for details of the application of the equal time or "equal opportunities" rule.
Watch for Part 2 – discussing the likelihood of the return of the Doctrine.