After the January 6, 2021 siege on Capitol Hill, I began hearing people saying we need to bring back “The Fairness Doctrine,” as if that genie could be put back into the bottle.
But what exactly was “The Fairness Doctrine?”
It was a policy enacted by the Federal Communications Commission (FCC) in 1949 requiring the holder of a broadcast license to both present controversial issues of public importance, and to present these issues in a manner that was honest, equitable, fair and balanced.
In other words, broadcasters were supposed to not only uncover what the people in their broadcast service area should be aware of, but also to present both sides of the issue.
Operate in the Public Interest, Convenience and Necessity
From the beginning of my broadcast management career, I knew that my number one job was to protect the radio station’s FCC broadcast license to operate. Without a broadcast license, you were out of business. Second, my radio station(s) must operate in the public interest, convenience and necessity of the people in the area we were licensed to serve with our broadcasts.
The FCC created The Fairness Doctrine to ensure that “all sides of important public questions were presented fairly.”
For decades, this doctrine was seen as the keystone of broadcasters fulfilling their commitment to operating in the public interest. Compliance with The Fairness Doctrine was a primary litmus test during the license renewal process.
It was during the 1960s, when I started my radio career, that the FCC increased their enforcement of broadcaster compliance to The Fairness Doctrine. In 1963, the FCC formally stated that the presentation of only one side of an issue during a sponsored program would require that opposing views be given free air time to present their side. That rule became known as the Cullman Doctrine.
Broadcaster’s Free Speech
It probably won’t surprise you to learn that all of this increased oversight by the FCC on a broadcast station’s program content was seen as interference with a broadcaster’s “free speech.”
This would eventually be challenged at the Supreme Court in the Red Lion Broadcasting v. FCC decision of 1969, with the high court upholding the constitutionality of the public interest standard in general and The Fairness Doctrine in particular. In their decision, the court stated, “It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.”
The End of The Fairness Doctrine
In 1985, the FCC finally decided that The Fairness Doctrine was incompatible with the public interest. It would eliminate this rule in 1987, and in 2011, the FCC removed the rule that implemented the policy from the Federal Register.
“[T]he Federal Communications Commission should reestablish two principles that formerly served this country well: the public service requirement and the fairness doctrine. Every television and radio station should once again be required to devote a meaningful percentage of its programming to public service broadcasting. The public, after all, owns the airwaves through which signals are broadcast, and the rights-of-way in which cables are strung. And every television and radio station should once again have to follow the fairness doctrine: those with opposing views should have the right to respond to viewpoints expressed on the station.”
― Bernie Sanders, United States Senator
Trump Tweets NBC Broadcasts “Fake News”
In October of 2017, President Donald J. Trump tweeted “With all the Fake News coming out of NBC and the Networks, at what point is it appropriate to challenge their License? Bad for country!”
Broadcast legal experts immediately criticized and dismissed Trump’s tweet as both implausible and having no legal basis.
The American Bar Association’s Legal Fact Check wrote:
“The FCC publishes specific rules and guidelines related to news hoaxes and distortions and bars a licensee from knowingly broadcasting false information concerning a crime or a catastrophe. But the bar or threshold is high. Six days after Trump’s tweet, FCC Chairman Ajit Pai said his agency cannot revoke the license of a broadcaster ‘based on content of a particular newscast,’ and cited First Amendment protections of the press. FCC statements previously noted that the commission ‘often receives complaints … that stations have aired inaccurate or one-sided news reports or comments, covered stories inadequately or overly dramatized the events that they cover… (but) the commission generally will not intervene in such cases because it would be inconsistent with the First Amendment to replace the journalistic judgment of licensees with our own.’”
FOX NEWS CHANNEL
The Fairness Doctrine ended during the Presidency of Ronald Reagan, however, it’s often wrongly stated that this gave birth to cable’s FOX NEWS CHANNEL. It did not. Cable channels are not, nor have they ever been, regulated by the Federal Communications Commission (FCC).
Similarly, the internet is also not regulated by the FCC.
The Fairness Doctrine only applied to the licenses of broadcast radio and television stations.
A case could be made that the end of The Fairness Doctrine did open the door to the Rush Limbaugh Show, which made its nationally syndicated premiere in 1988. Rush Limbaugh was a savior for AM radio stations, who saw most of their music audiences moving over to FM radio stations, and those advertising dollars moving right along with them.
Limbaugh proved so popular with AM talk radio audiences, that AM radio station owners added more talk shows like Sean Hannity, Michael Savage, Glenn Beck, Mark Levin and others.
Cumulus Media
Following the siege on our nation’s Capitol in Washington, DC on Wednesday, January 6, 2021, Cumulus Media, the radio syndicator for the Mark Levin Show sent a memo to its talk show hosts to stop spreading rhetoric about a stolen election or face termination.
Brian Philips, executive vice president of content for Cumulus Media wrote in his memo:
“We need to help induce calm NOW (and) will not tolerate any suggestion that the election has not ended. The election has been resolved, there are no alternative acceptable ‘paths.’ If you transgress this policy, you can expect to separate from the company immediately.”
Cumulus Media operates Westwood One, which syndicates Trump-supporting radio talk personalities like Mark Levin, Ben Shapiro and Dan Bongino.
Free Speech
I find it ironic that the people screaming the loudest about what Cumulus Media has done is to thwart free speech. It’s not “free speech” to tell lies. United States constitutional law does not always protect false statements under the First Amendment.
Moreover, these same people are usually the ones who say, “Let the market decide.” In other words, let the corporations and companies make those hard decisions.
In this case, Cumulus Media did just that.
iHeartMedia which syndicates Trump-supporter hosts Rush Limbaugh and Sean Hannity has not publicly announced any similar action for these talk hosts as of the writing of this blog article.
In 2016, SiriusXM suspended conservative talk host Glenn Beck for agreeing with one of his show’s guests who asked, “what patriot will step up to remove Donald Trump from office if he’s elected president and oversteps his authority?” SiriusXM, operator of America’s two satellite radio services, suspended Beck because they worried the conversation might “be reasonably construed by some to have been advocating harm against an individual currently running for office.”
Michael Harrison, who publishes Talkers magazine was sympathetic to the Cumulus memo saying:
“Corporations are responsible for what’s on their air. They have to deal with client feedback. They have to deal with public image and protection of their license. Private corporations can control their platforms, and I believe that in and of itself is an expression of free speech in action.”
I’m all for the Fairness Doctrine, whatever that is.
-George Voinovich*
*George Victor Voinovich (July 15, 1936 – June 12, 2016) was an American politician who served as a United States senator from Ohio from 1999 to 2011, the 65th governor of Ohio from 1991 to 1998 and the 54th mayor of Cleveland from 1980 to 1989, the last Republican to serve in that office.
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