Policy Analysis No. 651

Fairness 2.0: Media Content Regulation in the 21st Century

Civil libertarians feared that a change of administrations would herald a revived Fairness Doctrine, a policy that previously permitted the government to oversee broadcast news coverage for “balanced views.” A return to the Fairness Doctrine, however, now seems unlikely. It is very likely, however, that politicians from both the left and the right will try to extend government control over the media beyond current policies. New rules adopted or proposed by the Federal Communications Commission suggest that the agency may be poised to enforce the most intensive government oversight of broadcast programming in decades—perhaps even in the history of the agency. The FCC voted last year to require each broadcast licensee to file quarterly “enhanced disclosure” reports—highly detailed information regarding its programming and editorial choices. This information will be used by organized groups to file complaints to pressure broadcasters to air programming that the complainants prefer. The FCC is also formulating programming guidelines based on the enhanced disclosure reports purporting to ensure that broadcasters meet local needs. This “broadcast localism” effort may also require broadcasters to appoint local boards to oversee their performance and their editorial decisions. As the FCC seeks to expand regulation of broadcast media, the traditional justification for its authority—spectrum scarcity—has lost credibility, and the agency’s new efforts are likely to run afoul of the First Amendment.

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Robert Corn-Revere practices First Amendment and communications law at Davis Wright Tremaine, LLP, in Washington, DC. He previously served as chief counsel to former FCC chairman James H. Quello.