Rosel H. Hyde Article on the FCC Fairness Doctrine

38 Syracuse L. Rev. 1175

Syracuse Law Review



Rosel H. Hyde

In a Memorandum Opinion and Order adopted August 4, 1987,[1] the Federal Communications Commission (FCC) repealed, on constitutional grounds, certain regulations known as the fairness doctrine, notwithstanding the fact that the regulations had been held constitutional by the Supreme Court of the United States.[2] The opinion concluded that on the basis of a recent ‘fairness inquiry,’ ‘the fairness doctrine contravenes the First Amendment and thereby disserves the public interest.’[3]

The fairness doctrine is, in essence, a codification of Commission decisions made during the administration of the statutory public interest licensing standard and confirmed on judicial review. The attack on the doctrine constitutes an attack on the constitutionality of the licensing standard.

The principal grounds assigned for the Commission action, which undertook, in effect, to overrule the opinion of the Supreme Court in Red Lion Broadcasting Co. v. FCC, center, first, around arguments that technological developments since 1969 (the date of the Red Lion decision) have alleviated the shortage of outlets rationale on which Red Lion was said to be based.[4] Second, the fairness doctrine is on its face unconstitutional.[5] Third, the fairness *1176 doctrine in its operation chills speech,[6] and finally, broadcasting, as an electronic press, must be accorded the same rights as the printed press.[7] These arguments are addressed in this Article.


A careful review of the history of the licensing standard and the development of the fairness doctrine is given in the opinion of the Supreme Court of the United States in Red Lion. The Court reaffirmed previous opinions that held the licensing standard to be constitutional, and the fairness doctrine, as applied in that case, to be valid and constitutional. The Court’s own language succinctly states the basis from which the fairness doctrine evolved.

The history of the emergence of the fairness doctrine and of the related legislation shows that the Commission’s action in the Red Lion case did not exceed its authority, and that in adopting the new regulations the Commission was implementing congressional policy rather than embarking on a frolic of its own.

Before 1927, the allocation of requencies was left entirely to the private sector, and the result was chaos. It quickly became apparent that broadcast frequencies constituted a scarce resource whose use could be regulated and rationalized only by the government. Without government control, the medium would be of little use because of the cacophony of competing voices, none of which could be clearly and predictably heard. Consequently, the Federal Radio Commission was established to allocate frequencies among competing applicants in a manner responsive to the public ‘convenience, interest, or necessity.’

Very shortly thereafter, the Commission expressed its view that the ‘public interest requires ample play for the free and fair competition of opposing views and the Commission believes that the principle applies . . . to all discussions of issues of importance to the public.’ This doctrine was applied through denial of license renewals or construction permits, both by the FRC and its successor FCC. After an extended period during which the licensee was obliged not only to cover and to cover fairly the views of others, but also to refrain from expressing his own personal views, the latter limitation on the licensee was abandoned and the doctrine developed into its present form.

There is a twofold duty laid down by the FCC’s decisions and *1177 described by the 1949 Report on Editorializing by Broadcast Licensees. The broadcaster must give adequate coverage to public issues, and coverage must be fair in that it accurately reflects the opposing views. This must be done at the broadcaster’s own expense if sponsorship is unavailable. Moreover, the duty must be met by programming obtained at the licensee’s own initiative if available from no other source. The Federal Radio Commission had imposed these two basic duties on broadcasters since the outset.[8]

As shown in the Court’s history of the statutory licensing standard and the development of the fairness doctrine, the roots and rationale of the fairness doctrine and the Red Lion decision are to be found in the licensing standard and other related provisions of the Communications Act of 1934.[9] Particularly, they are found in the following provisions: section 309, establishing a licensing standard; section 315, requiring equal opportunities for candidates for the same office; licensing decisions applying the licensing standard; and judicial decisions reviewing agency licensing decisions.[10]

Because government regulation had been shown to be necessary for the effective use of radio channels, Congress, by the Radio Act of 1927, established a licensing scheme to provide for the use of such channels for non-government purposes under periodic licenses. Such licenses were to be issued only upon showings by applicants and findings therefor by the licensing authority, that the proposed operation would serve the public interest, convenience, and necessity.[11] Pursuant to provisions of the Radio Act, licensees were specifically exempted from the obligations of common carriers.[12] They were left, as stated in FCC v. Sanders Bros. Radio Station,[13] in the field of free competition.[14] They were, however, required *1178 by specific provisions of law to provide equal opportunities for use of broadcast facilities to other qualified candidates for the same office if the licensees provided use of such facilities to any candidate.[15]

In administering the provisions of the Radio Act of 1927, the Federal Radio Commission (FRC) held that the public interest required ample play for the free and fair competition of opposing views.[16] Congress was, of course, aware of the decisions that had been made by the FRC and judicial reviews of the same, when the provisions of the Radio Act of 1927 were incorporated into the Communications Act of 1934.[17]

These provisions of the Radio Act of 1927, in substance now found in the Communications Act of 1934,[18] serve certain critical purposes. They provide guidelines necessary for congressional delegation of licensing authority to an independent agency. They provide for the use of broadcast frequencies by private entities under the condition that such uses serve the public interest. Very importantly, they provide a rational basis for granting of licenses in a situation where, because of physical limitations, only a tiny fraction of the population can be granted license privileges. And concurrently, they provide a rational basis for the resolution of competing claims for the same privileges.

For purposes of congressional delegations of authority, licensing, and administrative interpretation, as a requirement that an opportunity be provided for the free play of conflicting views, the public interest standard has been upheld on judicial review. Moreover, the constitutionality of the equal opportunity provision of section 315 has been upheld on judicial review.[19]

The fairness doctrine, as shown, is in essence a codification of principles enunciated in the application of the public interest standard, *1179 which had been upheld separately in opinions of reviewing courts before the doctrine was promulgated.[20] Contrary to representations of the FCC opinion undertaking to repeal the fairness doctrine,[21] it is not based on the rationale that restrictions on first amendment rights of broadcasters are justified as necessary to allay some absolute shortage in broadcast outlets. Neither the fairness doctrine nor the Red Lion decision made any claim that the doctrine was necessary, or that it was justified by reason of a shortage in broadcast frequencies or broadcast outlets.[22] The Red Lion opinion does not include a reference as to the number of broadcast stations, or even a suggestion that the fairness doctrine was necessary to provide an assurance that sufficient diversity of opinion on controversial issues of public importance would be provided. Hence, the Commission’s observations that there has been a 54 percent increase in the number of radio stations and a 57 percent increase since the Red Lion decision, ‘and that the growth in both radio and television broadcasting alone provides a reasonable assurance that a sufficient diversity of opinion on controversial issues of public importance would be provided in each broadcast market,’[23] are not responsive or relevant to any argument set forth in the fairness doctrine or the Red Lion decision. Moreover, the concept that there could possibly be a finding by a responsible government agency that something less than unlimited access to views and ideas would suffice, certainly is in conflict with the first amendment and other long-established principles of social progress. The argument that the increase in broadcast outlets since Red Lion represents such a change in conditions, relied upon in the decision as to warrant repeal, has no merit because the rationale of Red Lion did not rely on a shortage in frequencies or media outlets.

The ‘scarce resource’ (or shortage of frequencies) referred to by the Court in Red Lion was cited as the reason why the ‘use [thereof] could be regulated and rationalized only by the Government.’[24] *1180 The increase in the number of stations of all classes and the introduction of many new types of communication services since the date of Red Lion have not ‘eroded’ the ‘factual predicates underlying that decision’ as stated by the Commission.[25] Rather, the increase in the number of stations and the technological advances have created an even greater need for government regulation. There is, in fact, a greater backlog of pending applications before the Commission than at any previous time. The explosive increase in interest and demand for use of channels is reflected in astronomical prices paid in exchange for stations and for applications for approval of transfers.[26]


The Commission asserted that the fairness doctrine is unconstitutional on its face, but cited no language or text placing restrictions on a broadcaster’s right to address any subject, in any way that suits his pleasure, because no such restrictions exist. In fact, the fairness doctrine encourages editorializing by broadcasters by indicating an approach through which the broadcaster can have an opportunity to speak his own views, and still satisfy the public interest licensing and operating standard. Broadcasters can satisfy the standard by providing reasonable opportunity for the public to hear contrasting views on issues of public importance.

Rather than attempting to show restrictions as such, the FCC cited its own decision in Cullman[27] as an illustration of impermissible government agency oversight of broadcast editorial decisions concerning controversial issues of public importance.[28] According to this line of argument, whether a broadcaster sees fit to act in his private interest, rather than the public interest, by presenting only those views with which he agrees, is a matter of editorial discretion protected by the first amendment. In other words, the public interest *1181 in hearing views other than those of the licensee must yield to the broadcaster’s private interest. Such reasoning, if it prevailed, would make section 309, establishing a licensing standard, and section 315, requiring that licensees afford candidates for the same office equal opportunities, unconstitutional. However, both the public interest standard[29] and section 315[30] were held to be constitutional. In light of these holdings, the FCC argument that the fairness doctrine is on its face unconstitutional is simply untenable.


Upon careful examination of the aforementioned matter, the ‘chill argument’ does not apply within the context of its present usage in the FCC opinion.[31] The public interest finding required by the Commission in its licensing capacity, and the obligation of licensees to serve the public interest, serve to insulate both the licensee and the Commission against a ‘chill factor.’ Neither can logically invoke ‘chill’ as a valid reason for not performing their respective duties. The following hypothetical example will serve to illustrate this proposition.

A broadcaster, duly licensed to serve the public interest, avoids programs that include controversial issues of general public importance. A set of written instructions is given to the station’s staff outlining station policy. Subsequent requests for the purchase of time to present editorial views are rejected out-of-hand as being controversial. At renewal time, a petition to deny is filed, alleging that the station failed to serve the public interest because it did not provide the public with information concerning controversial issues of general public importance. The broadcaster has willfully failed to comply with the first requirement of the fairness doctrine. May he defend his policy to exclude controversial matter, justify a request to dismiss the petition, or justify the grant of a renewed license, by simply asserting that his exclusionary policy rested on a ‘chill factor’ in Commission regulation? Can there be any doubt as to the ruling the Commission would be obliged to make, or any doubt as to the ruling that would be made on appeal if the Commission, *1182 by any chance, refused to apply the public interest licensing standard?

The Supreme Court addressed the ‘chill argument’ in the Red Lion decision, particularly in the following quotation from that opinion:

It would be better if the FCC’s encouragement were never necessary to induce the broadcasters to meet their responsibility. And if experience with the administration of those doctrines indicates that they have the net effect of reducing rather than enhancing the volume and quality of coverage, there will be time enough to reconsider the constitutional implications. The fairness doctrine in the past has had no such overall effect.

That this will occur now seems unlikely, however, since if present licensees should suddenly prove timorous, the Commission is not powerless to insist that they give adequate and fair attention to public issues. It does not violate the First Amendment to treat licensees given the privilege of using scarce radio frequencies as proxies for the entire community, obligated to give suitable time and attention to matters of great public concern. To condition the granting or renewal of licensees on a willingness to present representative community views on controversial issues is consistent with the ends and purposes of those constitutional provisions forbidding the abridgment of freedom of speech and freedom of the press. Congress need not stand idly by and permit those with licenses to ignore the problems which beset the people or to exclude from the airways anything but their own views of fundamental questions. The statute, long administrative practice, and cases are to this effect.[32]

Prior to the enactment of section 312, the Communications Act of 1934 provided that if a station permitted use by one candidate, it must also provide equal opportunities to other qualified candidates for the same office.[33] However, it imposed no duty to provide opportunity to the first candidate. When Congress amended section 312 to require that broadcasters make a reasonable amount of time available for use by candidates for federal office,[34] it set a precedent regarding the manner in which to remove the reluctance of the ‘chill factor.’

*1183 The FCC 1985 Fairness Report concluded that the fairness doctrine causes broadcasters to restrict their coverage of controversial issues.[35] This would mean that broadcasters have become timorous. However, instead of moving to cure what it perceived to be a problem, through the exercise of its licensing power, the Commission used its finding of ‘chill’ as its main justification for repealing the fairness doctrine as unconstitutional. If, in fact, it did appear that broadcasters were not predisposed to serve the public interest in terms of providing information on controversial public issues, it would not necessarily follow that the public interest licensing system is unworkable or inconsistent with the first amendment rights of broadcasters. As the Supreme Court noted, ‘ i t would be better if the FCC’s encouragement were never necessary to induce the broadcasters to meet their responsibility.’[36]

This responsibility arises from the conditions under which license privileges may be granted. The applicant represents to the FCC that the proposed new operation or renewed operation will serve the public interest, offering supporting specifics as the Commission may require. The FCC may grant the application only upon a finding that a the applicant will serve the public interest.[37] Assuming that broadcasters are not disposed to meet their responsibilities voluntarily, there is a viable remedy readily available. The Court clearly states in Red Lion that the Commission’s power ‘to condition the granting or renewal of licenses on a willingness to present representative community views on controversial issues is consistent with the ends and purposes of those constitutional provisions forbidding the abridgment of freedom of speech and freedom of the press.’[38]

With regard to licensing conditions, the Commission makes the observation that ‘it is well established that government may not condition the receipt of a public benefit on the relinquishment of a constitutional right.’[39] There can be no doubt about the application of that principle in appropriate situations. However, there is *1184 no constitutional right to broadcast. ‘Without government control the medium would be of little use because of the cacophony of competing voices, none of which could be clearly and predictably heard.’[40]

Recognizing the very substantial market value broadcast properties have attained, it appears most unlikely that any applicant would reject a license with restrictions such as those suggested by the Court, for there would be no dearth of eager and willing applicants prepared to replace any licensee not willing to accept the proposed conditions. For those licensees willing to recognize and meet responsibilities, there appears to be no better way to justify the issuance of renewed licenses than a good record in dealing with public affairs. Indeed, the main focus of the Commission’s renewal process is an applicant’s prior performance regarding public issue programming. Upon further examination, the chill argument is not applicable in the context of the Commission’s current usage, and the record upon which the Commission bases its finding of a chilling effect does not support such a finding.

Listening to a radio broadcast and watching television does not give the impression that broadcasters are a repressed and timid lot. If a typical representative were to be asked a direct question as to whether he permitted advertisers, the government, or any other entity to influence his editorial judgment, he could be expected to respond vigorously in the tradition of Peter Zenger and in the spirit of a free press. No one can tell him what to say, or deter him from saying what he wished to say. It would be disappointing if he answered otherwise. An article in the Washington Post, appearing after the Commission’s decision to repeal the fairness doctrine, contains the following question and answer sequence:

Joseph Saitta, who has been in broadcast journalism for 21 years—the last six months as news director of WTTG-TV here—was asked yesterday if he has ever in his career felt any constraint from the Fairness Doctrine. ‘No, not that I can recall,’ he said. ‘I can’t think of an instance where it’s impacted negatively.’

Lawrence K. Grossman, president of NBC News, was asked the same question. While Grossman feels the Fairness Doctrine to *1185 be ‘a bad doctrine in theory,’ he had to concede, ‘The answer, as far as I am concerned, is no, not really. The direct and honest answer to the questions is no.’[41]

On the other hand, broadcasters and representatives of broadcasters, having an institutional position that the doctrine is detrimental, will opine that it chills speech.

The Commission’s choice of proceeding, which resulted in its 1985 Fairness Report, and the methodology it used should be considered in judging the Commission’s credibility. FCC interest in scrutinizing the fairness doctrine, which was initiated on its own motion, developed in the environment of deregulation. From the beginning of his tenure, the FCC Chairman has crusaded against the doctrine, with other commissioners joining in the criticism of the doctrine.[42] Although the Commission stated that its purpose was ‘to undertake the most searching and comprehensive reexamination of the fairness doctrine that this agency has ever had,’[43] the methods used do not even purport to suggest that an investigation was undertaken. There was no research employing scientific methods of study and analysis; the procedure employed was a notice inviting comment and counter-comment, followed by oral argument.[44] The response received would have to be termed meager in the light of the size of the broadcast industry and the buildup for the undertaking.[45] The Commission referred to two broadcasters, Fisher and Westinghouse, who believed that the fairness doctrine had not inhibited their broadcasts; the ABC Network suggested changes in the fairness doctrine, but did not say that it was inhibited.[46]

The Commission record, while replete with opinions, offers no *1186 basis upon which a sound judgment could be made as to the effect of the fairness doctrine. Specifically, whether the doctrine increased or decreased the coverage of controversial issues of public importance remains unknown.[47] However, the Commission found that the comments received were sufficient to make a generalized finding that the fairness doctrine inhibits broadcasters, with no basis on which to hold that the views submitted were representative of the industry, and with no consideration given to the fact that the finding made was inconsistent with findings made previously by the FCC and by Congressional committees that were based on much broader investigations.

In 1968, the Senate Subcommittee on Communications conducted a survey of broadcasters, inquiring into their viewpoints on the fairness doctrine; 5,643 stations responded: 2,767 felt the doctrine was fine as is, 1183 thought it needed modification or clarification, and 1160 thought it should be discarded. Only 488, less than 9 percent, stated that the doctrine discouraged controversial broadcasting.[48]

There are a number of other studies that ought to be examined in connection with the FCC 1985 Fairness Report, particularly a recent House Committee study,[49] which found, after hearings, no chilling effects.[50] The Commission’s argument that the fairness doctrine chills speech is inconsistent with the duty a broadcaster accepts upon the granting of his license. Moreover, the finding of ‘chill’ is not justified by the record on which it is based.


The Commission in its opinion states that ‘[d]espite the physical differences between the electronic and print media, their roles *1187 in our society are identical, and we believe that the same First Amendment principles should be equally applicable to both.’[51] This statement and other similar assertions in the opinion disregard, or conveniently overlook, basic facts. It is unfortunate that with oversimplification and omissions, government intervention, necessary to the very existence of broadcasting and to a rational allocation of limited opportunities to a few, and consequent denial of such opportunities to all others, appears as discriminatory action against the electronic press. The use of an appropriate channel from the public domain is basic to the operation of a broadcast station. There is no such need in the case of a newspaper. Moreover, it is not necessary to bar others from the printing business in order to give such privileges to a few. Identical treatment would require the opportunity for unrestricted entry into the broadcast business as is the case with newspapers and other printed media. However, unrestricted access to channels would create chaos, and for that reason, no first amendment right to broadcast can be recognized.

A comparison of the characteristics of broadcast and print media that is more helpful than that of the Commission’s opinion is to be found in the opinion of the court in United Church of Christ v. FCC:[52]

A broadcaster has much in common with a newspaper publisher, but he is not in the same category in terms of public obligations imposed by law. A broadcaster seeks and is granted the free and exclusive use of a limited and valuable part of the public domain; when he accepts that franchise it is burdened by enforceable public obligations. A newspaper can be operated at the whim or caprice of its owners; a broadcasting station cannot . . .. [A] broadcast license is a public trust subject to termination for breach of duty.[53]


What is needed in order to maintain the existing system of broadcasting is recognition that the first amendment rights of the public and of broadcasters must be accommodated. The licensing *1188 standard, as implemented in the fairness doctrine, provides for a reasonable accommodation. In reality, the rights of the public and broadcasters are inextricably intertwined. This was recognized in 1975 by the FCC General Counsel in a letter to United States Senator Pastore.

The Court’s opinion in Red Lion was not a radical departure from existing law. Rather, it was merely a specific application to radio broadcasting of a long held First Amendment principle. That principle—that the listener’s rights are the basis of the First Amendment guarantees—was explicitly recognized for the first time in 1942 when Judge Learned Hand, writing for the court in National Broadcasting Co. v. United States stated:

The interests which the regulations seek to protect are the very interests which the First Amendment itself protects, i.e. the interests, first, of the ‘listeners’. . . .

It is this right, the right of the listeners ‘to receive suitable access to social, political, esthetic, moral and other ideas and experiences’ that the Court found crucial and unabridgeable in Red Lion. The fairness doctrine is merely a device to preserve this constitutional right of the people. Rather than being a constitutional imperative, the fairness doctrine is an outgrowth of the statutory ‘public interest’ standard and is, in Justice White’s words, ‘a legitimate exercise of congressionally delegated authority.’ It is apparent from the decision that other devices could be used to serve this purpose. As the Court stated:

Rather than confer frequency monopolies on a relatively small number of licensees, in a Nation of 200,000,000, the Government could surely have decreed that each frequency be shared among all or some of those who wish to use it, each being assigned a portion of the broadcast day or the broadcast week. The ruling and regulation at issue here do not go quite so far.[54]

In the interest of providing some perspective, an outline of the general terms of the accommodation is presented as follows:

1. The broadcaster, at no cost (other than an application processing fee), receives exclusive use of a communication channel from the public domain having substantial commercial potential. His exclusive use requires a commitment to serve the public interest, *1189 but he has an unabridged opportunity to voice any opinion or view that suits his pleasure. In this connection, his obligation under the licensing standard and commitment to serve the public interest requires that some reasonable time be given to public issues. When he expresses his own views on controversial issues of public importance, the public must be given reasonable opportunity to hear opposing views, this being deemed necessary lest the broadcaster’s use become a private use, as distinguished from a public interest use.

2. Members of the public are expressly denied any right of access to use the channel licensed to the broadcaster, except as to the very limited access provided under sections 312 and 315, having to do with candidates for public office, and under the fairness doctrine personal-attack situations.

3. The public obtains, without direct charge, the benefits of a wide variety of programs, such as entertainment, news, sports events, and political events, provided by broadcasters in connection with service to advertisers, advertisers being the paying market.

Obviously, there is no way open access to a broadcast channel can be reconciled with the continuity of use necessary to organized and planned programming. On the other hand, there are what appear to be obvious constitutional reasons why the broadcaster should not be accorded a right to deny the public an opportunity to hear opposing views when the broadcaster chooses to use his exclusive access to present his own views on controversial issues of public importance. Denial of open access may be supported as necessary, but not denial of an opportunity to hear contrasting views. In other words, there is no operational necessity for the broadcaster to make his station a personal platform.

The above outline sets forth the approach that has been employed for many years to balance or accommodate the first amendment interests of the public and of broadcasters in such a way as to be mutually beneficial. The overwhelming acceptance of broadcast service by the public, and the growth and prosperity of the broadcast industry would seem to indicate that the approach has worked very well, although there is always need for improvement.

The thrust of the Commission’s recent action is to relieve the broadcasters of their obligation under the public interest licensing standard on the grounds that application of the standard involves the government in program content and violates the first amendment *1190 rights of broadcasters. This constitutes a basic change in the accommodation or balance of first amendment interests between the public and broadcasters. What benefit or compensation does the public get for the concession to broadcasters that they may use license privileges to advocate their own views without obligation to air contrary views on matters of public importance? The Commission explains that ‘the growth in both radio and television broadcasting alone provide[s] ‘a reasonable assurance that a sufficient diversity of opinion on controversial issues of public importance [would] be provided in each broadcast market.’’[55] This statement demonstrates the Commission’s misunderstanding of the ‘marketplace of ideas.’ While emphasizing the expansion in the broadcast marketplace, the Commission fails to recognize that there is not necessarily a concomitant growth in ideas—the true core of the first amendment. This imbalance in no way favors the listener, whose rights are the basis of the first amendment.[56]

What could happen in the area of political debate, absent a licensee’s obligation to serve the public interest as particularized in the fairness doctrine, is detailed in the following quotation from Red Lion:

The objectives of § 315 themselves could readily be circumvented but for the complementary fairness doctrine ratified by § 315. The section applies only to campaign appearances by candidates, and not by family, friends, campaign managers, or other supporters. Without the fairness doctrine, then, a licensee could ban all campaign appearances by candidates themselves from the air and proceed to deliver over his station entirely to the supporters of one slate of candidates, to the exclusion of all others. In this way the broadcaster could have a far greater impact on the favored candidacy than he could by simply allowing a spot appearance by the candidate himself. It is the fairness doctrine as an aspect of the obligation to operate in the public interest, rather than § 315, which prohibits the broadcaster from taking such a step.[57]

The above discussion is indicative of what could happen in other areas of interest, such as religion, where broadcast facilities could be used as an adjunct to other business interests. The problems *1191 that could result in the area of separation of state and religion make the fairness obligation very modest by comparison.

In holding that the fairness doctrine is unconstitutional, the Commission, in effect, has repudiated the basis of its past decisions. Its holding that the appropriation of license privileges for the purpose of promoting private views on an exclusive basis, or promoting private interests, is not consistent with the public interest licensing standard.[58]

In the difficult area of making judgments as to the merit or public interest value of program service, a judgment as to whether a licensee has arrogated license privileges to his private use is probably as fundamental as any decision to be made, and at the same time probably the least subjective.

The Commission says:

On the other hand, the fact that government may not impose unconstitutional conditions on the receipt of a public benefit does not preclude the Commission’s ability, and obligation, to license broadcasters in the public interest, convenience and necessity. The Commission may still impose certain conditions on licensees in furtherance of this public interest obligation. Nothing in this decision, therefore, is intended to call into question the validity of the public interest standard under the Communications Act.[59]

If, as the Commission asserted, it is unconstitutional to require a licensee to provide access to views on public issues other than his own, or in other words, to honor the public right to choose from an uninhibited market of ideas and views, what are the ‘certain conditions’ the Commission may still impose? What remains of the public interest licensing standard? Failure to specify leaves the uneasy feeling that either the Commission has in mind conditions unknown to interested parties, or that some new type of conditions must be developed. The public interest standard, which was implemented in the fairness doctrine by agency action, was mandated by Congress for the guidance of the Commission in issuing licenses. Congress, as could be expected, is very much concerned by Commission action in undertaking to severely limit, if not nullify, the standard by its findings in repealing the fairness *1192 doctrine.[60] Legislation to incorporate the fairness doctrine into law was blocked by a presidential veto, but is still under active consideration. The repeal decision is also subject to judicial review. In the meantime, it may be prudent for broadcasters to keep in mind the requirements of the public interest standard as developed in more than thirty years of experience.

How the issues raised by the FCC action undertaking to abolish the Fairness Doctrine are finally resolved could have profound implications, not only as to the broadcast industry, but more importantly as to basic notions of domocracy and representational government, both in its substance and form. It would seem essential, from the viewpoint of this examination of the matter, that if we do, in fact, wish to maintain our faith in the validity of first amendment principles as a bulwark of our system of government (the right of the public to choose from the marketplace of ideas, including opposing views), some provision must be made for public access to ideas and views other than those a small fraction of the public holding broadcast licenses might wish to present or advocate.

George Washington University Law School, 1925-29; Honorary LL.B. 1967, University of Utah; Honorary Doctorate, Public Service, 1974, Brigham Young University; Federal Communications Commission General Counsel, 1945-46; Commissioner, 1946-49; Chairman, 1953-54, 1966-69. The author was Acting Chairman when the fairness doctrine was promulgated. He is a partner with the law firm of Wilkinson, Barker, Knauer & Quinn, Washington, D.C.

The author would like to thank Patrick M. Ankuda, Eric H. Dorf, and David Worthen for their assistance in the preparation of this article.

[1] See Syracuse Peace Council, 2 F.C.C. Rcd. 5043 (1987).

[2] See Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 389-90 (1969)

[3] See Syracuse Peace Council, 2 F.C.C. Rcd. at 5057.

[4] See id. at 5051.

[5] See id. at 5047.

[6] See id. at 5049.

[7] See id. at 5057.

[8] Red Lion, 395 U.S. at 375-78 (citations omitted).

[9] See 47 U.S.C. §§ 301, 307(a), 309(a), 310(d), 315, 316(a) (1982).

[10] See, e.g., National Broadcasting Co. v. United States, 319 U.S. 190, 214 (1943); Trinity Methodist Church, South v. FRC, 62 F.2d 850 (D.C. Cir. 1932), cert. denied, 288 U.S. 599 (1933); KFKB Broadcasting Ass’n v. FRC, 47 F.2d 670, 672 (D.C. Cir. 1931); see also Red Lion, 395 U.S. at 380.

[11] See 47 U.S.C. § 309(a) (1982). ‘[T]he Commission shall determine . . . whether the public interest, convenience, and necessity will be served by the granting of such application, and, if the Commission . . . shall find that the public interest, convenience, and necessity would be served by the granting thereof, it shall grant such application.’ Id. (emphasis added).

[12] See 47 U.S.C. § 153(h) (1934).

[13] 309 U.S. 470 (1940).

[14] See id. at 474.

[15] See 47 U.S.C. § 315 (1982).

[16] See, e.g., Great Lakes Broadcasting Co., 3 F.R.C. Ann. Rep. 32, 33 (1929), rev’d on other grounds, 37 F.2d 993 (D.C. Cir.), cert. dismissed, 281 U.S. 706 (1930); see also Red Lion, 395 U.S. at 367.


[18] See 47 U.S.C. §§ 307-09 (1982).

[19] See Branch v. FCC, 824 F.2d 37 (D.C. Cir. 1987).

[20] See Red Lion, 395 U.S. at 377-78.

[21] See Syracuse Peace Council, 2 F.C.C. Rcd. at 5048-49. The Commission recognized that the Supreme Court in 1969 had upheld the doctrine in Red Lion, but determined that the factual predicates underlying that decision had been eroded. See id. at 5044.

[22] See Editorializing by Broadcast Licensees, 13 F.C.C. 1246 (1949) (no mention of scarcity as a reason for the doctrine).

[23] See Syracuse Peace Council, 2 F.C.C. Rcd. at 5053.

[24] See id. at 5044.

[25] See id.

[26] Station KTLA (TV) Los Angeles was sold to the Tribune Co. for $510 million cash in May, 1985. The station was purchased for $245 million in late October, 1982. Thus, the stations value increased at a daily rate of $285,000. See BROADCASTING, May 20, 1985, at 39.

[27] See Cullman Broadcasting Co., 25 Rad. Reg. (P&F) 895 (1963). The decision in the Cullman fairness case held that the broadcaster should give the public the benefit of contrasting viewpoints, even though a commercial sponsor may not be available. See id. at 897.

[28] See Syracuse Peace Council, 2 F.C.C. Rcd. at 5047.

[29] See National Broadcasting Co., 319 U.S. at 226-27.

[30] See Branch, 824 F.2d at 37; see also Red Lion, 395 U.S. at 367.

[31] See, Syracuse Peace Council, 2 F.C.C. Rcd. at 5049-50.

[32] Red Lion, 395 U.S. at 393-94.

[33] See Communications Act of 1934, § 315 (1959).

[34] See 47 U.S.C. § 312 (1972).

[35] See Inqury into Section 73.1910 of the Commission’s Rules and Regulations Concerning the General Fairness Doctrine Obligations of Broadcast Licensees, 102 F.C.C.2d 143, 169 (1985) [hereinafter 1985 Fairness Report].

[36] Red Lion 395 U.S. at 393.

[37] See 47 U.S.C. § 309 (1982).

[38] Red Lion, 395 U.S. at 394.

[39] Syracuse Peace Council, 2 F.C.C. Rcd. at 5055.

[40] Red Lion, 395 U.S. at 376.

[41] Wash. Post, July 5, 1987, § C, at 1.

[42] See Fowler & Brenner, A Marketplace Approach to Broadcast Regulation, 60 TEX. L. REV. 207, 217-18, 236-42 (1982); see also Fowler, Foreword, 32 CATH. U.L. REV. 523 (1983).

[43] Notice of Inquiry into the General Fairness Doctrine Obligations of Broadcast Licensees, 49 Fed. Reg. 20,317, 20,318 (1984).

[44] See id.

[45] See Syracuse Peace Council, 2 F.C.C. Rcd. at 5050 n.129 (citing 1985 Fairness Report, 102 F.C.C.2d at 181). The FCC decision repealing the fairness doctrine speculates that there are many more broadcasters who have been chilled than the number who admitted so in the 1985 Fairness Report because an admission might, to some extent, be an admission against interest. See id. It would be just as reasonable, if not more reasonable, to speculate that there would have been fewer submissions except for the incentive to file what to some extent could be considered self-serving statements to support repeal of the fairness doctrine.

[46] See id. at 5050.

[47] The FCC 1985 Fairness Report presents no information as to broadcast concerns, such as commercial revenue or effect on audience, that might influence a broadcaster’s judgment as to whether or not to present controversial public issue program material. In the absence of such information, there is no reason to conclude that the fairness doctrine is the reason for rejecting controversial issues, if they are, in fact, rejected.

[48] See STAFF FAIRNESS STUDY, supra note 17, at 81-82.

[49] See H.R. REP. NO. 100-08, 100th Cong., 1st Sess. (1987); S. REP. NO. 100-34, 100th Cong., 1st Sess. (1987).

[50] See Ferris & Kirkland, Fairness—The Broadcaster’s Hippocratic Oath, 34 CATH. U.L. REV. 605, 612-13 (1985) (arguing that political action committees would stifle groups with lesser financial resources).

[51] Syracuse Peace Council, 2 F.C.C. Rcd. at 5058.

[52] 359 F.2d 994 (D.C. Cir. 1966).

[53] Id. at 1003.

[54] Memorandum of the Gen’l Counsel, Federal Communications Comm’n, to United States Senator Pastore (April, 1975).

[55] Syracuse Peace Council, 2 F.C.C. Rcd. at 5051 (quoting 1985 Fairness Report, 102 F.C.C.2d at 208).

[56] See Red Lion, 395 U.S. at 390.

[57] Id. at 382-83.

[58] See Lamar Life Broadcasting Co., 38 F.C.C. 1143 (1965).

[59] Syracuse Peace Council, 2 F.C.C. Rcd. at 5055.

[60] The Communications Act of 1934 provides an orderly procedure for Congressional action to modify or amend policy prescribed in the Act. Section 4(k)(5) requires an annual report to Congress ‘with specific recommendations . . . necessary or desirable . . ..’ See 47 U.S.C. § 154(k)(4) (1982).