The Fairness Doctrine Was Never Quite Fair

DAVIS, CALIF. —  In the wake of the Federal Communications Commission’s unanimous decision to drop enforcement of the so-called Fairness Doctrine, a virtual dormitory of strange bedfellows has formed to flail the decision. Vehement proponents of the doctrine include, from the left, the National Assn. for the Advancement of Colored People, the American Civil Liberties Union, Rep. Edward J. Markey (D-Mass.) and a gaggle of Naderites; from the right, the National Rifle Assn., Accuracy in Media, Mobil Oil Corp. and former Administration spokesman Patrick J. Buchanan.

What these disparate forces share is a conviction that each has the right and fair visionary policy. A federal mandate to compel radio and television broadcasters to present “fairness” makes sense to them, even if the NRA’s idea of balanced reportage has nothing in common with the ACLU’s.

But it is just this--the utter elusiveness of any bona fide fairness test--that makes the pursuit of the doctrine so absurd, and so dangerous. The 1949 FCC policy mandates federal administrators to assess radio and TV license-holders on the basis of their balanced coverage of controversial topics. On a plaque, the Fairness Doctrine looks as eternally true as some Latin credo plastered above a university classroom. But as a policy--in the regulatory reality--the doctrine has created a “chilling effect on the broadcast industry,” in the words of ex-FCC regulator Henry Geller.

“Fairness” requirements create a tax on the coverage of controversy; giving air-time to any heated topic will provoke calls for free time by “excluded” voices--or charges of unfairness.

The doctrine was supposed to encourage controversial reporting, helping stations to gain license renewals as a reward for broadcasting public service commentary. But in 39 years no station ever lost a license for being bland, while those that challenged political orthodoxy have. When WXUR was given an FCC death sentence in the early 1970s, Chief Appeals Court Judge David L. Bazelon dissented:

“The station . . . propagated a viewpoint which was not being heard in the greater Philadelphia area. The record is clear that through its interview and call-in shows it did offer a variety of opinions on a broad range of public issues, and that it never refused to lend its broadcast facilities to spokesmen of conflicting viewpoints.”

No newspaper, magazine or book publisher is under any obligation of fairness, regardless of the print outlet’s power. A newspaper’s editors or owners are legally untouchable should they settle on a relentless news and editorial policy of pushing the global agenda of, say, retired Army Maj. Gen. John Singlaub.

The electronic-print legal difference primarily rests on the “physical scarcity” argument: The broadcast spectrum, limited by nature, induces the licensing authority to use some “public interest” measure in choosing access to the airways. Yet the economics--and the engineering--behind scarcity arguments are bogus. Economically, scarcity does not justify licensing “in the public interest” by bureaucrats; since stations are exchanged on Wall Street every day, current business practice makes a joke of the rationale.

Physically, moreover, radio and television frequencies consume barely a speck of the available communications conduits and even of the electromagnetic dial; abundance, not scarcity, is the better characterization. As the late Massachusetts Institute of Technology political scientist Ithiel de Sola Pool noted in 1983, “Spectrum shortage is . . . no longer a technical problem but only a man-made one.” Indeed, the FCC has persistently restricted broadcasting far below technically available frequency space so as to protect the economic interests of existing license-holders, a curiously perverse response to “physical scarcity.”

The classic abuse of the Fairness Doctrine is perhaps best illustrated by the prevailing legal precedent: the Red Lion case of 1969. The U.S. Supreme Court upheld the FCC’s right to discipline a station for refusing free time for a right to reply to a personal attack (a sister provision to the Fairness Doctrine), using the physical-scarcity rationale.

Red Lion Broadcasting Co. owned WGCB, a tiny radio station in eastern Pennsylvania. It broadcast a predominantly Christian menu of programs on its small daylight-only frequency, competing with more than 30 radio stations, seven off-air TV channels and a 12-channel cable system . One of its programs was the Rev. Billie James Hargis’ “Christian Crusade,” a quarter-hour segment for which the minister paid $7.50.

In late November, 1964, Hargis launched into a two-minute attack on Fred Cook, a contributor to the Nation and author of “Goldwater: Extremist on the Right.” Cook demanded equal--and free--response time. WGCB offered only to sell it. What Cook bought instead was an attorney, who got him his free air time via the U.S. Supreme Court.

What was unknown to the court, however, was the unbroadcast intrigue by the Democratic National Committee, which had finely orchestrated the entire episode. The Cook book itself was commissioned by the committee, having subsidized its publication with an advance purchase of 50,000 copies.

The committee was monitoring WGCB and other stations considered hostile to Fred Cook; the Kennedy-Johnson Administration had been using the balanced programming regulations of the FCC to play a little hardball. According to President John F. Kennedy’s assistant secretary of commerce, Bill Ruder: “Our massive strategy was to use the Fairness Doctrine to challenge and harass right-wing broadcasters and hope that the challenges would be so costly to them that they would be inhibited and decide it was too expensive to continue.”

Such calumnies haunt the Orwellian history of the Fairness Doctrine. The Nixon Administration did not miss the opportunity to create “an official monitoring system through the FCC,” as admitted by Jeb S. Magruder, or to use its licensing leverage over CBS to help kill the highly rated, but politically liberal, “Smothers Brothers’ Comedy Hour.” And Vice President Spiro T. Agnew was delighted to announce, “Perhaps it is time that the networks were made more responsive to the people they serve . . . The people are entitled to a full accounting of their stewardship.”

But the devilish spirit of this “accountability” was laid bare by the late liberal Justice William O. Douglas: “The regime of federal supervision under the Fairness Doctrine is contrary to our constitutional mandate and reduces (the broadcast licensee) to a timid or submissive segment of the press whose measure of the public interest will now be echoes of the dominant political voice that emerges after every election.”

That the commission will have to bowl over great visionaries of left and right in its powerful move toward First Amendment rights for broadcasters will put the essential issue in clearer light: Federal officials would be in good company indeed sharing bedcovers with James Madison and William O. Douglas.