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47 Notre Dame Law. 550 (1971-1972)
Fairness Doctrine--An Historical Perspective

handle is hein.journals/tndl47 and id is 550 raw text is: THE FAIRNESS DOCTRINE-AN HISTORICAL PERSPECTIVE Thomas 1. Houser* I. Introduction There is an unmistakable trend in this nation toward greater public aware- ness and participation in the functions of government.' Few areas of the public domain have experienced more significant public input than matters coming be- fore the Federal Communications Commission. An independent agency created by Congress2 to regulate the use and means of electronic communications, the FCC has been given the responsibility of insur- ing that the electromagnetic spectrum space allocated to television and radio broadcasting shall be operated to serve the public interest, convenience, and necessity.3 Given the proposition that all who may wish to be heard over the airwaves may not be afforded the privilege, the Commission has attempted to develop a policy which will allow for the maximum exposure of divergent views. The policy has come to be known as the Fairness Doctrine.4 The Fairness Doc- trine, in essence, requires that all Commission licensees who choose to air material relating to one side of a controversial issue of public importance, must afford a reasonable opportunity for the expression of opposing viewpoints.5 The Fairness Doctrine therefore codifies a right-of-reply to issues originally raised by materials selected for broadcast by the station licensee. However, in recent years more groups in our society are asking whether individuals should have a right-of-access to a broadcast facility in order to initiate discussions of important public issues. Recent court decisions have stated that broadcaster's failure to engage in con- troversy solely to avoid Fairness Doctrine obligations inhibits broadcasting's im- portant purpose of serving as a medium of free speech.' Those courts have indicated that not only may a right-of-access be a valid social proposition, but * Commissioner, Federal Communications Commission. A.B., Hanover College, 1951; J.D., Northwestern University, 1959. The author would like to acknowledge the valuable contributions made by Dennis J. Helfman and Gregory Sorg in the preparation of this article. 1 One manifestation of this tendency of increasing popular participation in the workings of our government has been the recent ratification of the twenty-seventh amendment to the Constitution, by which millions of new voters will be able to vote in future elections. 2 Federal Communications Act § 1, 47 U.S.C.A. § 1 (1934). 3 Federal Communications Act § 303, 47 U.S.C.A. § 303(f) (1934). 4 In the Matter of Editorializing by Broadcast Licensees, 13 F.C.C. 1246 (1949). 5 Only where the licensee's discretion in the choice of the particular programs to be broadcast over his facilities is exercised so as to afford a reasonable opportunity for the presenta- tion of all reasonable positions on matters of sufficient importance to be afforded radio time can radio be maintained as a medium of freedom of speech for the people as a whole. Id. at 1250. 6 A license permits broadcasting, but the licensee has no constitutional right to be the one who holds the license or to monopolize a radio frequency to the exclusion of his fellow citizens .... Nor can we say that it is inconsistent with the First Amendment goal of producing an informed public capable of conducting its own affairs to require a broadcaster to permit answers to personal attacks occurring in the course of discussing controversial issues, or to require that the political opponents of those endorsed by the station be given a chance to com- municate with the public. Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367, 389, 392 (1969).

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