	Introduction

For over 30 years, the Federal Communications Commission (FCC or Commission) required broadcast licensees to present controversial issues of public importance and to do so in a manner that was fair and balanced. Discussion continues among scholars and lawmakers regarding the Fairness Doctrine's effectiveness, constitutionality, and reinstatement. The political editorial rule required that when a broadcaster endorsed a particular political candidate, the broadcaster was required to provide the other qualified candidates for the same office (or their representatives) the opportunity to respond over the broadcaster's facilities. Second, the Court examined whether requiring broadcasters to cover issues of public importance and to present opposing views on those issues fairly violated the broadcasters' First Amendment rights to free speech. However, the history of the doctrine would not end there. The repeal of the doctrine occurred later in 1987. The court upheld the order of the FCC, but did not reach the constitutional issue. Constitutional Issues

		Application of the Fairness Doctrine to Broadcast Licensees

Because of the FCC ruling determining that the Fairness Doctrine violated the First Amendment, it is likely that any reinstatement of the doctrine, either by Congress or by the FCC, would be met by a court challenge on First Amendment grounds. In reviewing the constitutionality of the Fairness Doctrine as applied to broadcast licensees, the Court would likely be faced with two questions: (1) what standard of constitutional scrutiny to apply, and (2) whether the Fairness Doctrine withstands the chosen level of scrutiny. The FCC argued in its 1987 decision that the scarcity rationale was no longer applicable. The agency also noted the increase in information sources and viewpoints available to the public via cable and satellite channels. Because the Supreme Court has struck down regulations similar to the Fairness Doctrine when applied to other types of media, it seems unlikely that the Fairness Doctrine would survive review under strict scrutiny. It is also possible that the Supreme Court will maintain the scarcity rationale for applying a lower standard of scrutiny to restrictions on broadcasters' speech and will continue to apply intermediate scrutiny to the Fairness Doctrine. Therefore, broadcasters could avoid enforcement actions for violations of the Fairness Doctrine by simply not covering the issue of public importance at all. Continuing Congressional Debate

Since the repeal of the Fairness Doctrine, debate among legislators regarding whether to reinstate the doctrine has continued. Commission Letter Regarding Repeal of Regulations

On May 31, 2011, Chairman Upton of the House Subcommittee on Communications and Technology, along with other members of the Energy and Commerce Committee, sent a letter to the chairman of the FCC urging the Commission to remove the rules in the Code of Federal Regulations that reference the Fairness Doctrine, as well as the political-editorial and personal attack rules (47 C.F.R.
The Fairness Doctrine was a policy of the Federal Communications Commission (FCC or Commission) that required broadcast licensees to cover issues of public importance and to do so in a fair manner. Issues of public importance were not limited to political campaigns. Nuclear plant construction, workers' rights, and other issues of focus for a particular community could gain the status of an issue that broadcasters were required to cover. Therefore, the Fairness Doctrine was distinct from the so-called "equal time" rule, which requires broadcasters to grant equal time to qualified candidates for public office, because the Fairness Doctrine applied to a much broader range of topics.
In 1987, after a period of study, the FCC repealed the Fairness Doctrine. The FCC found that the doctrine likely violated the free speech rights of broadcasters, led to less speech about issues of public importance over broadcast airwaves, and was no longer required because of the increase in competition among mass media. The repeal of the doctrine did not end the debate among lawmakers, scholars, and others about its constitutionality and impact on the availability of diverse information to the public.
The debate in Congress regarding whether to reinstate the doctrine continues today. Recently, Chairman Upton of the House Subcommittee on Communications and Technology sent a letter to FCC Chairman Genachowski urging the Commission to remove the regulations relating to the Fairness Doctrine from the Code of Federal Regulations. Chairman Genachowski responded by reasserting his lack of support for the Fairness Doctrine and agreeing to begin the process of repealing the regulations.
Any attempt to reinstate the Fairness Doctrine likely would be met with a constitutional challenge. Those opposing the doctrine would argue that it violates their First Amendment rights. In 1969, the Supreme Court upheld the constitutionality of the Fairness Doctrine, but applied a lower standard of scrutiny to the First Amendment rights of broadcasters than it applies to other media. Since that decision, the Supreme Court's reasoning for applying a lower constitutional standard to broadcasters' speech has been questioned. Furthermore, when repealing the doctrine, the FCC found that, as the law stood in 1987, the Fairness Doctrine violated the First Amendment even when applying the lower standard of scrutiny to the doctrine. No reviewing court has examined the validity of the agency's findings on the constitutional issue. Therefore, whether a newly instituted Fairness Doctrine would survive constitutional scrutiny remains an open question.