The Political Editorializing Rules, the Courts, and Election Year 2000
Craig, J. Robert, Smith, B. R., Communications and the Law
Providing the country with one of the closest presidential races in U.S. history, the 2000 election campaign also was the arena for the Federal Communications Commission and the District of Columbia Court of Appeals to clash once again on broadcast regulation and policy. In response to the court's mandate to show evidence of movement regarding retention or revocation of the political editorializing and personal attack roles, the FCC chose what many thought was a delaying tactic. Partway through the sixty-day pre-election time period, the Commission suspended the roles to study the effect their lack might have on broadcasters' editorial programming. Barely a week following the Commission's decision, the District of Columbia Court of Appeals handed down a verdict in Radio-Television News Directors Association and National Broadcasters Association v. Federal Communications Commission and United States of America,(1) ruling that the political editorializing and personal attack rules remaining from the days of the fairness doctrine no longer were valid. The court reacted both to the case merits and the FCC's failure to meet the court-set deadline to reply to the question regarding whether the rules still were necessary.
This article examines the history of the fairness doctrine, its ultimate revocation by the Federal Communications Commission, and the case filing resulting in both the Commission's and court's actions during the 2000 election campaign. It also reports findings from a survey designed to elicit the short-term results of the court's decision by polling a sample of commercial radio and television stations in Michigan shortly after completion of the 2000 election.
I. HISTORY OF THE FAIRNESS DOCTRINE
The concept that broadcasters were obligated to serve the public interest by airing diverse views regarding issues of public concern initially was stated by the Federal Radio Commission in 1929.(2) In 1941, however, the Federal Communications Commission's decision in the Mayflower Broadcasting case turned broadcasters away from a serious commitment to editorial content.(3) In its opinion addressing station WAAB's license renewal and the proposed use of the station's frequency by the Mayflower Broadcasting Corporation, the FCC stated that broadcasters should not be advocates for positions held personally by the licensee, and noted that public interest considerations required all sides of issues be allowed time on the air. Initial response by the industry generally was to stop editorializing altogether, and the outbreak of the Second World War rendered the controversy moot. As Frank J. Kahn noted, "The `Mayflower Doctrine' effectively discouraged broadcast editorials until the FCC issued its `Fairness Doctrine' in 1949."(4)
An intervening step toward implementing the fairness doctrine took place with release of the so-called Blue Book by the FCC in 1946. An attempt to confirm in writing broadcasters' public service responsibilities, the Blue Book existed in somewhat of a regulatory gray area, receiving little support from a Commission that likewise refused to repudiate it formally. Kahn claims that the Blue Book's mandates "posed too serious a threat to the profitability of commercial radio for either the industry, Congress, or the FCC to want to match regulatory promise with performance."(5) The Blue Book concept has been attempted several times since, with the most recent suggestions from the "Gore Commission," formed to study broadcasters' public interest obligations in the digital age, being an obvious offspring.
The confusion and dissatisfaction that ensued from the Blue Book and the Mayflower decision led the FCC to release In the Matter of Editorializing by Broadcast Licensees, otherwise known as the fairness doctrine, in 1949.(6) With passage of the doctrine, the FCC attempted to encourage broadcasters to take up the editorial cudgel similarly wielded by their print brethren. …