A decades old Supreme Court decision that established the federal government’s “Fairness Doctrine” is outdated and should be overturned, a GW Law Professor wrote today.
In a column in “The Regulatory Review,” a publication from the University of Pennsylvania Law School, Lyle Pierce, the Lyle T. Alverson Professor of Law at The George Washington University Law School, said that recent events surrounding the FCC’s approach towards controversial comments made by late night talk show host Jimmy Kimmel illustrate how the doctrine is has the “potential for abuse.”
In the court’s 1969 decision in the "Red Lion vs. The Federal Communications Commission," SCOTUS found that because they were licensed to operate under an FCC license, broadcasters had a unique role and that the doctrine “conferred on the federal government unprecedented power to regulate speech and the press.” The scarcity of spectrum allowed the government to limit the number of licenses granted, which prompted the need for such a doctrine, SCOTUS concluded.
Even though the Fairness Doctrine, which requires broadcasters to provide both sides of political issues, was rescinded by the Reagan administration back in the 1980’s, the doctrine is still on the books.
“The FCC still has the statutory power to grant or deny broadcast licenses and to grant or deny mergers and acquisitions proposed by broadcasters, limited only by the virtually meaningless and completely subjective statutory standards of public interest and public convenience, interest, or necessity,” Pierce wrote.
Pierce added that market conditions have significantly changed since the decades-old ruling and that recent incidents illustrate the need for clarity.
Pierce cited the incentives for media companies that need regulatory approval from the FCC can conflict with the agency’s authority to regulate broadcasters’ requirements to operate “in the public interest.”
“As long as Red Lion remains the law, every President will have near-complete power to regulate the content of all broadcasters,” Pierce wrote. “The Court needs to correct that situation by overruling Red Lion at its earliest opportunity. [FCC Chairman] Carr and President Trump are likely to provide that opportunity in the near future.
