Fairness 2.0: Media Content Regulation in the 21st Century

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Civil libertarians feared that a change ofadministrations would herald a revived FairnessDoctrine, a policy that previously permitted thegovernment to oversee broadcast news coveragefor "balanced views." A return to the FairnessDoctrine, however, now seems unlikely. It is verylikely, however, that politicians from both the leftand the right will try to extend government controlover the media beyond current policies. Newrules adopted or proposed by the FederalCommunications Commission suggest that theagency may be poised to enforce the most intensivegovernment oversight of broadcast programmingin decades—perhaps even in the history ofthe agency. The FCC voted last year to requireeach broadcast licensee to file quarterly "enhanceddisclosure" reports—highly detailed informationregarding its programming and editorial choices.This information will be used by organizedgroups to file complaints to pressure broadcastersto air programming that the complainants prefer.The FCC is also formulating programming guidelinesbased on the enhanced disclosure reportspurporting to ensure that broadcasters meet localneeds. This "broadcast localism" effort may alsorequire broadcasters to appoint local boards tooversee their performance and their editorial decisions.As the FCC seeks to expand regulation ofbroadcast media, the traditional justification forits authority—spectrum scarcity—has lost credibility,and the agency's new efforts are likely to runafoul of the First Amendment.

Robert Corn‐​Revere

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.