The Fight for Fairness

0n August 4, 1987, after a six-year battle, the Federal Communications Commission repealed the Fairness Doctrine, eliminating the public's primary right of access to the airwaves.

"The hasty action by the Federal Communications Commission," said Rep. John Dingell, D-Mich., Chairman of the House Committee on Energy and Commerce, "is an offensive and thinly-veiled attempt to end run Congress."

In June, Congress had overwhelmingly passed the "Fairness in Broadcasting Act of 1987," which placed the gist of the Fairness Doctrine regulation - which requires television and radio stations that receive exclusive and free use of the airwaves to cover controversial issues of public importance and do so fairly by airing conflicting views - into statute.

But Reagan, calling the Fairness Doctrine "antagonistic to the freedom of expression," vetoed it. Supporters of the Fair ness Doctrine vowed to attach the legislation to a veto-proof bill when Congress returned in September. But before Congress had reconvened, the FCC threw out the Fairness Doctrine.

"I knew those lickspittles down there would do something like this," said Dingell in an interview after the vote.

"The Commission attempted to flout the will of Congress," said Rep. Edward Markey, D-Mass., Chairman of the House Subcommittee on Telecommunications and Finance. "The Commission's action was unconscionable, but it will be shortlived."

Behind the political bravado between Congress and the decidedly pro-administration FCC, is an issue which strikes atthe heart of the public's right to access its airwaves-the Fairness Doctrine.

The Fairness Doctrine was adopted in 1949 to ensure that broadcasters that were given a scarce and valuable public resource, the airwaves, meet special obligations and operate as public trustees. The Fairness Doctrine, according to its proponents, ensures that important public issues are aired and that the public is exposed to a wide variety of views on these matters. This, they say, enhances speech and furthers First Amendment principles. To proponents, some of whom are broadcasters, the Doctrine simply mandates good journalism: getting both sides of the story.

In practice, although the Doctrine has not produced a multitude of programs on hotly contested issues, it was an indispensable tool for those interested in getting otherwise ignored issues on the air or correcting a station's biased programming.

In a well known case in 1976, Patsy Mink, then a member of Congress from Hawaii, filed a complaint against a Clarksburg, West Virginia radio station alleging it had violated the Fairness Doctrine when it refused to discuss proposed federal strip mining legislation on the air. The radio station, located in an area dependent on coal mining, lost the challenge and was forced to air programming on strip mining. In another Fairness Doctrine challenge, attorney John Banzhaf in 1969 asked the FCC to require broadcasters to inform their audiences about the harmful effects of cigarette smoking if they aired advertise ments from cigarette manufacturers. As a result, the tobacco industry voluntarily withdrew all radio and television cigarette advertisements.

Today, the Fairness Doctrine is most often used to counter paid-for editorials or advertisements. When electric power companies or beverage manufacturers have used the airwaves to praise nuclear energy or no-deposit no-return bottles and cans, interest groups with opposing views have successfully invoked the Fairness Doctrine and received time on the air to add their information and views to the previously one-sided debate.

Without the Fairness Doctrine, public interest groups fear that well-financed lobbies will be able to dominate the debate on important public issues.

The FCC and a vocal broadcaster lobby, however, say the Fairness Doctrine in operation did exactly the opposite of what it was intended to do. Instead of promoting open and comprehensive debate on the issues of the day, it made broadcasters reluctant to tackle controversial issues for fear of costly Fairness Doctrine challenges.

"The problem [with the Fairness Doctrine] comes when the Federal government decides that it will hire a staff in Washington to make sure that I'm exercising my journalistic judgment the way it wants me to out in Hawaii," said Tom Elkins, president and general manager of KNUI-AM and KHUI-FM in Kahului, Hawaii in testimony before Congress. "That kind of intrusion into editorial judgment has never been tolerated in the print media."

Broadcasters say the Fairness Doctrine is an excessive and unnecessary governmental intervention that unconstitutionally interferes with their editorial discretion.

But, says Andy Schwartzman, director of the Media Access Project, a Washington, D.C.-based public interest communications group, the reason regulation of broadcasters is permitted where the regulation of their colleagues in the print media is not, is that broadcasters have a monopoly over a public resource. If there is dissatisfaction with a newspaper, says Schwartzman, you can start a new one, but you can't go out and set up a broadcast station without permission from the government.

Besides, says Schwartzman, the Fairness Doctrine did "not interfere with the day to day operations of stations." Instead, he says, it acted as a "safety net," used only in the relatively rare situations when broadcasters abused their power.

The greatest potential for serious abuse now that the Fairness Doctrine has been repealed is, according to Schwartzman, "in rural communities and places where people are dependent on their local broadcasters as a source of daily news and may not have a daily newspaper."

The repeal, however, threatens more than the smaller media markets. The FCC's attack on the Fairness Doctrine foreshadows an attack on other rights of public access. This includes federal candidate access rules, equal time requirements for candidates appearing on radio and television and special considerations for children's programming. 'Me official elimination of two additional FCC rules is imminent. The "personal attack rule," which requires that notice and time to respond be given to any individual whose character is attacked over the air, and the "political editorializing rule," which requires broadcasters to give response time to opponents of candidates who are endorsed by station editorials, are effectively dead, say onlookers.

But support for the Fairness Doctrine is broad and diverse, including the National Rifle Association, the Eagle Forum, the AFL-CIO, the ACLU, the Conservative Caucus and People for the American Way. These groups, together with a supportive Congress, will be squaring off against the Reagan administration this fall to put the Fairness Doctrine back on the books.

Claire Riley is an attorney with the Audience Network Project, a group that works towards allowing greater citizen access to the airwaves.