Originally posted on the Broadcast Law Blog.
In May, we advised you that House Committee and Energy Chairman John Dingell was considering a return of the Fairness Doctrine that the FCC had eliminated nearly 20 years ago. This was the FCC policy that both required broadcasters to cover "controversial issues of public importance" and to present contrasting views on those issues. When the FCC eliminated this policy, it did so on the basis that it believed the Fairness Doctrine to be an unconstitutional restraint on free speech under the First Amendment. Although the FCC's action was upheld by the U.S. Court of Appeals here in DC, the court found only that the FCC was within its discretion to abolish the doctrine and did not address the ultimate issue of whether the doctrine was constitutional. In view of recent discussions about the potential reinstatement of the Fairness Doctrine, Indiana Representative and former talk show host Mike Spence sponsored an amendment to the 2008 fiscal year appropriations legislation(which in part provides for the FCC budget) that would prohibit the FCC from reinstating it. That amendment was approved by a wide (310-115) margin by the House of Representatives this week. While this was trumpeted as ensuring that the Fairness Doctrine was dead - at least for this year - those discussions may have been a bit overstated.
First, this bill was passed only in the House of Representatives. While there has been a companion piece introduced in the Senate in the last few days, there also has been much talk there of bringing back the Doctrine - both by Democrats and even some Republicans. So the fight there may not be so easy.
Moreover, this legislation, even if approved, only prohibits the FCC from spending any money to adopt a new Fairness Doctrine. In fact, the FCC has really made no moves to do so. The moves have all been legislative, and the bill does not stop such moves (though the size of the vote may demonstrate that it will be difficult to get such a bill passed in Congress - and virtually impossible to get a bill approved with a sufficient majority to override a possible Presidential veto).
So, while the Fairness Doctrine may effectively be off the table for the next 12-15 months until after the next Presidential election, those elections may have a significant bearing on the outcome of this issue. Even if Congress does reinstate the doctrine, however, the courts may have the last word in ultimately determining its Constitutionality. So the story is far from over.