The FCC said Monday it has officially removed the
Fairness Doctrine from its rulebook, along with the doctrine's personal attack
and free response corollaries, plus 83 other media-related rules the FCC says
are no longer needed. It will release the item on Wednesday after a 48-hour notice period, according to a spokesman, but announced the move Monday, which does not require a vote by the commissioners.
The FCC has not enforced the doctrine, which required
broadcasters to affirmatively seek out opposing viewpoints on controversial
issues, in almost a quarter century, but it continued to cast a shadow over the
agency from the viewpoint of many Republicans, broadcasters (particularly
religious broadcasters) and others concerned about the speech regulation
implications of its return.
The Fairness Doctrine's departure back in 1987 helped
usher in conservative talk radio, and some Democrats in the past have arguedfor its return as a governor on that speech.
But FCC Chairman Julius Genachowski and President Obama
had said they did not support the doctrine and that it was not coming back. But
some Republicans saw its shadow in issues like proposals of community advisory
boards for TV station public interest programming.
Genachowski reiterated his opposition to the doctrine
again Monday in a statement on the stricken rules. "The elimination of the
obsolete Fairness Doctrine regulations will remove an unnecessary
distraction," he said. "As I have said, striking this from our books
ensures there can be no mistake that what has long been a dead letter remains
dead. The Fairness Doctrine holds the potential to chill free speech and the
free flow of ideas and was properly abandoned over two decades ago. I am
pleased we are removing these and other obsolete rules from our books."
Republican FCC Commissioner Robert McDowell, one of the
doctrine's strongest critics, pointed out in a speech to the TelecommunicationsIndustry Association in May
that the doctrine, which the FCC concluded was unconstitutional and
unenforceable back in 1987, was still in the Code of Federal Regulations (CFR).
That meant that to start enforcing it again, a new Commission would simply need
to come to a different conclusion than the Republican-led Commission that
In the wake of that revelation, House Republicans called
on the Democratic FCC chairman to deep-six the doctrine once and for all, whichhe pledged to do by the end of this month.
The Fairness Doctrine required broadcasters to afford
reasonable opportunity for the airing of both sides of "issues of public
importance." The doctrine was scrapped in 1987 when the Republican-led FCC
concluded the Commission had originated the rule rather than it being embedded
in statute, and thus could stop enforcing it, which it did, holding that it was
an unconstitutional infringement on speech.
Congress then tried to embed it in statute, but President
Ronald Reagan vetoed the bill.
Also still on the books were corollaries to the doctrine
providing for free response time for personal attacks and providing equal time
for other candidates if a station endorsed a candidate in an editorial. The
corollaries were repealed by the FCC in 2000 but were also still on the books.
In 2000, a court also threw out corollaries to the
doctrine that required broadcasters to provide response time to personal
attacks and political editorials. Those, too, have now been stricken from the
Among the other rules biting the dust Monday were ones
related to the "broadcast flag, cable programming service tier rates, and
broadcast applications and proceedings rules," essentially housekeeping
moves according to FCC officials familiar with the changes. The flag, which had
to do with copy protection of content, was struck down by the courts in 2005,
while regulation of cable basic rates sunset in 1999 but was still on the
books. The broadcast application and proceedings rules are duplicates of others
elsewhere in the codebook.
In a statement, the Commission said the removal of the
rules was part of FCC Chairman Julius Genachowski's longstanding commitment to
regulatory review, as well as in response to the president's executive order on
reviewing regs for their impact on the economy and jobs. In fact, the FCC billed
the elimination of the 83 regs the Code of Federal Regulations as enhancing
"competition, investment and job creation," which has been the
chairman's regulatory mantra.
With the latest rule excisions, the FCC under Chairman
Genachowski has gotten rid of over 130 rules and is in the process of phasing
out 25 data collections requirements.
Moday's reg revisions all came out of the Media Bureau,
but look for other bureaus to weigh in with their own cuts in the coming
months, as well as an overall FCC reg review outline in response to the president's recent request for ones from independent agencies, which were not
bound by his initial executive order to submit a formal reg review plan to the
"I'm not sure we had to kill the Fairness Doctrine twice; it was already a dead letter," said FCC Commissioner Michael Copps of the excision. "Frankly, I think we should focus on tackling the very live challenges that face broadcast news in the 21st century: where have all the journalists gone and why? Whatever happened to the kind of fact-filled investigative journalism that held the powerful accountable? Why do so many important stories go untold? Part of the shortfall has been an FCC that has been asleep at the switch for the better part of 30 years in meeting its statutory public interest oversight responsibilities. Instead of burying the dead, we should be breathing new life into the Commission's real duty to promote localism, diversity and competition in our media."
Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.
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