[BC] Fairness doctrine by another name? aka censorship?

[Harold Hallikainen]

After all the recent discussion on the Fairness Doctrine, I dug up my
research notes from years ago. Here they are, with various typos. These
were prepared in the Cal Poly San Luis Obispo library where the FCC
Record, Federal Register, etc. was available.

Harold

                     Fairness Doctrine Notes

                        28 November 1993

99 FCC2d 1389 (adopted 10/26/84, released 12/20/84)

     The Syracuse Peace Council complained to the FCC that WTVH-TV
(Syracuse, NY) violated the Fairness Doctrine by broadcasting ads
promoting the Nine Mile II nuclear power plant, then under
construction.  The plant was experiencing cost overruns, and the ad
ended with the tag line "Nine Mile Point... a sound investment for
New York's Future."  SPC argued that these ads presented one side of
a controversial issue of public importance, thus requiring a
presentation of opposing views under the Fairness Doctrine.

     The station responded that the ads did not "take an obvious or
meaningful position on any controversial issue of public importance
that is subject to vigourous debate among substantial elemements of
the Syracuse community."  They further argue that the tag line was
taken out ofcontext to "draw an unnecessary inference that the
sponsor is somehow advocating a point of view on present costs of
construction."  They point out that there was no rate increases
pending.  Thus, they argue that the issue was not a controversial
issue of public importance.

     Even if the issue were found to fall under the Fairness Doctrine, the
station argues that it presented more time presenting the
"anti-nuclear" side of the argument, so, even with the ads, the
pro-nuclear and anti-nuclear coverage was balanced.  The anti-nuclear
programming appears to be short stories in the daily news coverage
presenting various problems with various nuclear power plants.

     SPC argued back that the issue is not pro vs anti nuclear, but
whether this specific plant was a good investment for New York.  Some
of the news stories cited by the station appear to describe problems
(including costs) with this specific plant, but the majority of the
stories the station cited appeared to be about nuclear issues in
general (problems at other plants, nuclear freeze, etc.).

     "10.  The Fairness Doctrine providesthat whena broadcaster presents
discussion on one side of a controversial issue of public importance,
it must afford a reasonable opportunity for the presentation of
contrasting viewpoints.  This policy does not require that 'equal
time' be afforded for each side, as would be the case if a political
candidate appeared on the air during his campaign.  Rather, the
broadcaster has an affirmative duty to encourage and implement the
presentation of contrasting views in its overall programming which
includes statements or actions reported on news programs."

     "11.  Both sides of an issue need not be given in a single broadcast
or series of broadcasts, and no particular person or group is
entitled to appear on the station, since it is the right of the
public to be informed which the Fairness Doctrine is designed to
assure rather than the right of any individual to broadcast his or
her views. It is the rsponsibility of the broadcaster to determine
whether a controversial issue of public importance has been presented
and, if so, how best to present contrasting views on the issue. 
[...] The Commission will review complaints, based on a broadcaster's
failure to present programming on controversial issues of public
importance or its failure to provide opportunities for the
presentation of contrasting views, to determine whether the
broadcaster can be said to have acted reasonbably and in good faith."

     25.  The FCC was "unable to conclude that WTVH acted reasonably in
fulfilling its obligations under the Fairness Doctrine". The station
was orderedto inform the FCC how it intended to comply with the
Fairness Doctrine.

     A dissenting statement was issued by Commissioner Mimi Dawson.  She
disagreed with several of the decisions that brought the Fairness
Doctrine into play on this case, but did not appear to question the
validity of the doctrine itself.

FCC Record, Volume 2, page 706.

     In a staff ruling, the FCC decided that no action need be taken on
the complaint of Illinois Safe Energy Alliance against TV stations
WGN, WLS and QMAQ ofChicago.  They decided the Fairness Doctrine did
not apply because ISEA did not precisely identify the pertinent
issues.  Second, ISEA did not show the issue (whatever it was) to be
controversial by demonstrating substantial elements of the community
were involved in vigorous debate on the issue.  Third, ISEA did not
reveal how it knew the station had not presented a balanced view of
the issues.  ISEAmentiones a "monitoring project" but did not provide
detail on the extent of monitoring.  ISEA further indicates a review
of station program logs, but the FCC points out that its logging
requirements do not require such detail as would be required to check
program balance. Finally, since ISEA had not provided the above
information in sufficient detail to the station, the station was
unable to take any necessary corrective action prior to the complaint
being filed with the FCC.  The FCC requires any possible resolution
of a fully-defined complaint be explored with the broadcaster prior
to FCC intervention being sought.

FCC Record, volume 2, page 794, adopted January 22, 1987.

     On 1/16/87, the Court of Appeals for DC circuit issued a decision in
the Syracuse Peace Council vs WTVH case.  The court held that the FCC
applied its precedents correctly in deciding the case, but concluded
that the FCC acted "arbitrarily and capriciously" by failing to
explicitly consider WTVH's claim that enforcement of the Fairness
Doctrine deprives it of itsconstitutional rights. This case cites the
FCC's 1985 Fairness Report, which determies that the "fairness
doctrine no longer meets the public interest standard of section 309
of the Communications Act." and that "if it were up to the
Commission, it would hold the doctrine unconstitutional."

FCC 1985 Fairness Report (102 FCC 2d 143, 159-226)

     Not readily available in Poly Library...  Will search some more.

FCC Record, volume 2, page 1532, adopted 2/13/87.

     In response to a statutory directive (public law 99-500,
Conferencereport to accompany HJ Res 738, HR Rep 1005, 99th Cong. 2d
session (1986)), the FCC issued a Notice Of Inquiry seeking
alternative means of administration and enforcement of the Fairness
Doctrine and to report to Congress by 9/30/87.

     Possible considerations include eliminating case-by-case enforcement
of the Fairness Doctrine, instead considering such issues at renewal
time.  This may, however, have an increased "chilling effect" in that
potential loss of a license is more severe than enforced airing of
opposing views.

     Another consideration is elimination of the Cullman Doctrine
corollary to the Fairness Doctrine (40 FCC 576, (1963)).  This
corollary requires that when controversial issues of public
importance are presented in a sponsored program and the broadcaster
is unable to obtain paid sponsorship for the presentation of opposing
viewpoints, the licensee must either provide free time for that
purpose or otherwise ensure that opposing viewpoints are presented in
its own programming.

     Another possibilitywould be an experimental moratorium on enforcement
of the reasonable efforts to balance coverage, a "marketwide"
approach (possibly considering balance of all views presented thru
broadcast in a community, not just on a particular station), and an
"access time" requirement where broadcasters would be required to set
asidea discrete period of time for regualr discussion of
controversial public issues by interested parties.

FCC Record, volume 2, page 2683 (adopted 4/14/87)

     On a motion for extension of comment filing time by the New York Stae
Consumer Protection Board, the FCC extends the comment period on the
Fairness Doctrine NOI (docket 87-26) to 4/30/87.

FCC Record, volume 2, page 3570 (adopted 6/2/87)

     The FCC denies an application to review a decision made by the Mass
Media Bureau on 10/24/86.  That decision found that the PBS series
"The Story of English" did not meet the criteria required for a
Fairness Doctrine consideration. The FCC says "Statements regarding
the dominance and development of English in the world do not
necessarily support one side of the issue: "Should English be made
the official languate of the United States and of various states with
a prohibition against the use of other languages in various public or
semi-public ways?""

FCC Record, volume 2, page 5043 (adopted 8/4/87)

     In this Memorandum Opinion and Order, the FCC finds that the Fairness
Doctrine, on its face, violates the First Amendment and contravenes
the public interest.  The orders against WTVH TV (who was complained
on by the Syracuse Peace Council regarding ads promiting a nuclear
power plant as a "good investment for New York") were vacated.

     4.  In the 1985 Fairness Report, the FCC found that due to the
explosive growth in the number and types of information sources
available in the marketplace, the public has access to a multitude of
viewpoints without the need or danger of regulatory intervention. 
The FCC also determined that the fairness doctrine "chills" sppech,
in stark contravention of itspurpose.  The doctrine operates as
apervasive and significant impediment to thebroadcasting of
controversial issues of public importance.  Enforcement of the
doctrineacts to inhibit the expression of unpopular opinion.  It
places the government in the intrusive role of scrutinizing program
content.  It creates the opportunity for abuse for partisan political
purposes.  It imposes unnecessary costs on the broadcasters and the
Commission.

     5.  The 1985 report questioned whethr the doctrine is consistent with
the guarantees of the First Amendment.  It staed that "were the
balance ours alone to strike, the fairness doctrine would thus fall
short of promoting those interests necessary to uphold its
constitutionality."  The Commission recognized that the Supreme Court
in 1969 had upheld the doctrine in Red Lion Broadcasting Co. v FCC,
but determined that the factual predicates underlying that decision
had been eroded.

     6.  The 1985 report did not reach a difinitve conclusion as to
whether the doctrine was codified. The FCC, therefore, sent a report
to congress on the evidence it had gathered on the doctrine.

     7.  The history of the SPC v WTVH case is outlined.  The FCC found
WTVH had not met its obligations under the Fairness Doctrine.

     9.  WTVH petitioned the FCC to reconsider. As part of that petition,
WTVH questioned the constitutionality of the doctrine.  It argued
that the scarcity assumption under the Red Lion decision no longer
applied, at least in Syracuse New York.

     10.  In a Memorandum Opinion and Order denying the petition for
reconsideration, the FCC found that it had correctly determined that
WTVH had violated the fairness doctrine.  The Order did not address
the constitutional questions, citing its 1985 Fairness Report, which
siad "the question of its repeal or its constitutionality is best
left to Congress and the courts."

     11.  WTVH sought judicial review in the DC Court of Appeals.  That
court decided the FCC had determined properly that WTVH had not met
its requirements under the fairness doctrine, but said the FCC had
acted improperly in not responding to the constitutional arguments. 
The court provided the FCC with several options.  It could addressthe
constitutional issue broadly or narrowly (on the particular
circumstances of this case) or it could "in an adjudicatory context,
determine that the doctrine cannot be enforced because it is contrary
to the public interest and thereby avoid the constitutional issue".

     14.  Those arguing in favor of the doctrine included the New York
State Consumer Protection Board, the Office of the United Church of
Christ, and the Syracuse Peace Council.  It's interesting to note
that SPC, who originally filed the complaint, suggested the FCC
determine that WTVH had not violated the fairness doctrine.  Their
original complaint had put the doctrine in question, so they now
almost withdraw the complaint in an effort to save the doctrine. 
Some argued that the FCC should decide this case narrowly, not
throwing out the doctrine.  Others said any consideration of throwing
out the doctrine should go through a complete rulemaking process. 
Others suggested waithing until the Supreme court had disposed of the
petitions in TRAC v FCC (another Fairness Doctrine case).  Some
suggested that since there are more persons who wish to broadcast
than there are frequencies available, the "scarcity rationale"
underlying the Red Lion decision still exists.

     16.  Those arguing against the doctrine include NBC, NAB, American
Association of   Agencies, Landmark Legal Foundation, and
the Freedom of Expression Foundation.  Arguments included that the
substantial increase in the number and types of information sources
removes the "scarcity arument" of Red Lion.  They question whether
the government should be involved in program content decisions.

     25.  The FCC argues that the doctrine was never a rule, set by a
rulemaking procedure.  It was instead a policy devloped over a period
of time starting with the Federal Radio Commission (prior to 1934). 
The policy was clarified and further developed in reports issued in
1949 and 1974, but, it was never a rule.  As such, no rulemaking
procedure is required to modify or remove it.

     36.  The FCC believes the Supreme Court would decide Red Lion
differently today, based on the significant change in technology
since 1969.  The FCC recognizes that the Supreme Court has decided
that broadcast speech is subject to a standard of review that is more
lenient than that of print.

     37.  In Red Lion, the Supreme Court held that "in view of the
scarcity of broadcast frequencies, the Governement's role in
allocating those frequencies, and the legitimate claims of those
unable without government assistance to gain access to those
frequencies for expression of their views," the government could
require persons who were granted a license to operate "as a proxy or
fiduciary with obligations to present those views and voices which
are representative of his community."  The court thus described what
it subsequently charactereised as "an unusual order of First
Amendment values:"  it determined that government restrictions on the
speech of broadcasters could be justified if they furthered the
interests of listeners and viewers.

     38.  The Court "disclaimed an intention of approving every aspect of
the fairness doctrine.  The decision was based on the scarcity of
broadcast frequencys "in the present stae of commercially available
technology as of 1969."  The decision was also based on the FCC's
position that the doctrine did not "chill" speech.  The FCC believes
it DOES chill speech.

     40.  Cites FCC v League of Women Voters of California (468 US at 378)
quoting CBS, Inc. v FCC (453 US 367, 395 (1981), quoting Columbia
Broadcasting System, Inc. v Democratic National Committee (412 US at
110).  The court has emphasized that broadcasters have a significant
amount of editorial discretion under the First Amendment.  It has
stated, in the context of a broadcast case, that:

     For better or worse, editing is what editors are for; and editing is
selection and choice of material.  That editors -- newspaper and
broadcast -- can and do abuse this power is beyond doubt, but... the
presence of these risks of abouse are taken in order to preserve
higher values.  The presence of these risks is nothing new:  the
authors of the Bill of Rights accepted the reality that these risk
were evils for which there was not acceptable remedy other than a
spirit of moderation and a sense of responsibility -- and civility --
on the part of those who exercise the guaranteed freedoms of
expression.

     In addition, the Court has held that governmental restrictions on
sppech are permissable under the First Amendment only in situations
in which those restrictions are "narrowly tailored to further a
substantial governemental interest, such as ensuring adequate and
balanced coverage of public issues."  It seems that the Fairness
Doctrine may meet this "substantial governmental interest" if it is
indeed such an interest.  However, does that interest require a
balanced presentation on each and every station, or perhaps an
overall balance on all stations in a community, or perhaps an overall
balance on all mass media in the community, or perhaps even an
overall balance in opinions spoken by individuals in a community?

     This Memorandum Opinion and Order extends to paragraph 99, and I ran
out of time to completely review it.  This does, however, provide
some of the FCC's thinking.

Harold Hallikainen

28 November 1993

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