Deregulation Nation: The Cost of Ignoring the Courts on Regulating Media Broadcasting
Diversity of viewpoint and expression in the news has long been one of the professed guiding principles of the Federal Communications Commission (FCC)--and for good reason. News media helps to ensure the functioning of our democracy and plays a major role in the engagement of American citizens in our society. Not only does our media serve to identify salient public agenda items such as rising homelessness rates, immigration, and prescription drug abuse, it also plays an important part in providing valuable and transparent information to citizens about the actions of government officials.
Logically, then, ideologically diverse content in media is preferable to unidimensional broadcasting. A wide array of perspectives and commentators in news ensures a higher chance of a well-informed, politically balanced population. Moreover, balanced criticism and praise of politicians and legal actions allows our citizenship to independently evaluate our elected representatives [1]. Though the U.S. Supreme Court has historically supported this sentiment by backing the FCC and its regulations, the FCC’s recent shift towards deregulation, its increasing alliance with large media conglomerates, and its continuing disregard for judicial instruction bode ill for consumers of American news media today.
Through its regulatory practices, the FCC has historically agreed with the necessity of a diversity of viewpoints in American news media. Since its establishment in 1934, the agency has regulated the United States’ media and communications sector in an effort to “serve the public interest.” [2] Such regulation has, indeed, tended to protect consumers rather than broadcasters, beginning with limitations instituted in the mid-1900s restricting the number of television stations a single broadcaster can own and the percentage of homes a broadcaster can beam into, as well as with cross-ownership restrictions [3].
Predictably, in attempting to protect the democratic process, FCC regulations have run into issues of constitutionality throughout the past several decades, especially regarding the free speech provision of the U.S. Constitution’s First Amendment. Media broadcasters, after all, are nothing if not distributors of speech at the most expansive level. One of the first major confrontations to the FCC’s regulatory power surfaced in 1969, with the Supreme Court case Red Lion Broadcasting v. FCC challenging the agency’s right to exercise the Fairness Doctrine.
The Fairness Doctrine, established in 1949, was an FCC policy requiring television and radio stations to “devote some of their programming to controversial issues of public importance” as well as to “allow the airing of opposing views” on those same issues--essentially, to provide a semblance of balanced reporting on hot-button issues. [4] Interestingly, the doctrine also mandated that broadcasters allot anybody who was attacked personally in their programming some air time to respond.
It was this particular provision in the Fairness Doctrine that Red Lion Broadcasting Co. took issue with. The broadcasting company, challenging an FCC-issued sanction, pushed against the FCC’s ability to regulate who and what media corporations were required to broadcast [5]. The central question the Supreme Court ultimately addressed: does the Fairness Doctrine violate the First Amendment’s freedom of speech provision?
Ultimately, the Court ruled in a unanimous decision that, far from violating the First Amendment’s freedom of speech guarantees, the Fairness Doctrine actually upheld and enhanced the values ensconced by the amendment. In his opinion for the Court, Justice Byron White declared that spectrum scarcity (the idea that radio frequencies are a limited, finite source) makes it “idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish.” [6] The statement secured the Fairness Doctrine in its constitutionality and simultaneously suggested that, due to the limited availability of airspace and the pervasive nature of broadcasting, protecting the First Amendment rights of consumers was more important to our democracy than protecting the same rights of broadcast corporations. This victory became central for the FCC not simply because the Court upheld the Fairness Doctrine, but because of what the Court decision implied: broadcasters, fundamentally, do not have the same First Amendment rights as consumers.
The same implication was reiterated a decade later, with the 1978 Supreme Court case FCC v. Pacifica Foundation. Regarding censorship of indecent words over public broadcast, the Court ruled that the First Amendment does not, in fact, prevent the FCC from constitutionally limiting any “patently offensive” words from the airwaves [7]. The ruling suggested that the FCC could legally and constitutionally determine what words to censor from public airwaves and at what time on the grounds that such regulation was in the public interest.
These two legal victories for the FCC are hardly isolated, accompanied instead by several similar Court decisions affirming and upholding the agency’s constitutional right to regulate and censor broadcasters. The Court’s message is unequivocally clear: the rights of consumers require far greater protection in the world of media broadcasting than the rights of broadcasters. In a society where the speech of broadcasting corporations filters into virtually every American household and can affect the political and social mindset of millions, the Court found it more dangerous to our democracy for media to be distributed unregulated.
As a governmental agency whose sole purpose is to regulate and moderate, having the backing of the Supreme Court can only be a positive. And, until the late 20th century, the FCC seemed to regard it as so. Beginning in the 1980s, however, the FCC’s attitude towards regulating broadcasters began to change. Under the Reagan administration, the first in a long line of FCC deregulatory actions began to unfold, and for the next decade, everything from the number of television stations a single entity could own to advertising guidelines was loosened or eliminated [8].
The red alarm in this already disturbing deregulatory trend arrived in 1987. On August 5, the FCC voted unanimously to abolish the Fairness Doctrine [9]. The elimination of the doctrine on its own--terminating, alongside it, decades worth of effort to keep broadcast news balanced in bias and thought--already boded ill; however, the justification for doing so signaled worse. In voting unanimously to abolish the doctrine “on the ground [sic] that it unconstitutionally restricts the free-speech rights of broadcast journalists,” the FCC overturned decades of Supreme Court decisions outlining and defining the agency’s constitutional bounds [10].
Most students familiar with American history understand the landmark case Marbury v. Madison as a pivotal decision that cemented and defined the powers of the court. The power of judicial review, the ability to determine a law/statute/government action’s constitutionality, is one that has historically belonged solely to the courts. Beyond this power, the courts have limited scope with which to directly impact the process of law-making. Thus, when agencies outside of the judiciary circumvent court opinions, they not only upset the governmental checks and balances inherent to our democracy but also signal their willingness to act against the interests of the American public, who rely on the balanced and democratic functioning of our government to best represent and respond to their needs.
Hence, this single case of the FCC defining its own constitutional boundaries can be seen as one that set a dangerous precedent for the agency. Its decision signaled a growing disregard for the judiciary that allowed, for the next two decades, an avalanche of deregulatory action increasingly designed to protect and defend broadcasters over consumers. From opening media markets up to mass consolidation to allowing unprecedented cross-ownership, the FCC entered a downward spiral that compromised the rights of media consumers across the nation [11]. Instead of having a diverse array of media voices to choose from, multiple localities became dominated by single broadcasters. Instead of hearing a balance of opinions on the news, consumers began to ingest news that was subtly but steadily becoming homogenous in its political and ideological content.
Many supporters of the FCC’s deregulatory actions--and, indeed, Chairman of the FCC Ajit Pai himself--have argued that the regulations the agency (and the Supreme Court) so ardently defended decades ago are now obsolete in the age of social media [12]. Such arguments, however, obscure the original need to regulate broadcasters--as well as why the FCC’s deregulations today only serve to destabilize our democracy. When broadcasters are given full freedom to distribute news unregulated, entire media markets fall victim to news that is both ideologically unbalanced as well as nationally (as opposed to locally) focused. Most importantly, consumers are voiceless in determining the ownership of their local news sources and, worse, are often unaware of who actually owns the outlets they turn to most often for trusted news, making them ill-equipped to prepare for any potential bias.
In 1969, the U.S. Supreme Court clearly outlined what it believed to be the responsibility of the Federal Communications Committee: protecting the rights of consumers and ensuring balanced reporting over media airwaves. When the FCC overturned the Fairness Doctrine, it simultaneously overturned any previous deference to judicial direction as well as decades of Court opinions acknowledging the danger of unregulated media. What is perhaps the most serious threat to the collective health of American political discourse and, ultimately, our democratic processes comes not from outside the United States but from within, with the failure of our government to effectively ensure a balanced, locally-sourced news media. Unless the FCC realigns itself with the responsibilities originally designated to it by the U.S. Supreme Court, the current divisions dominating American politics will only continue to grow deeper.
[1] Gregory J. Martin and Ali Yurukoglu, “Bias in Cable News: Persuasion and Polarization,” 107 American Economic Review 2565, 2566 (2017).
[2] Jon Sallet, FCC Transaction Review: Competition and the Public Interest, Federal Communications Commission (2014), online at https://www.fcc.gov/news-events/blog/2014/08/ 12/fcc-transaction-review-competition-and-public-interest (visited July 30, 2019).
[3] Media Regulation Timeline, Public Broadcasting Service (2004), online at https://www.pbs. org/now/politics/mediatimeline.html (visited July 28, 2019).
[4] Dylan Matthews, “Everything you need to know about the Fairness Doctrine in one post,” The Washington Post, para. 2 (2011).
[5] Red Lion Broadcasting Co., Inc. v. FCC, 395 U.S. 367 (1969).
[6] Terry Eastland, Freedom of Expression in the Supreme Court: The Defining Cases 181 (Rowman and Littlefield Publishers 2000).
[7] FCC v. Pacifica Foundation, 438 U.S. 726 (1978).
[8] Media Regulation Timeline, Public Broadcasting Service (2004), online at https://www.pbs. org/now/politics/mediatimeline.html (visited July 28, 2019).
[9] Robert D. Hershey Jr., “F.C.C. Votes Down Fairness Doctrine in a 4-0 Decision,” The New York Times, para. 1 (1987).
[10] id at para. 1-2
[11] Media Regulation Timeline, Public Broadcasting Service (2004), online at https://www.pbs. org/now/politics/mediatimeline.html (visited July 31, 2019).
[12] Randy J. Stine, FCC Eliminates Main Studio Rule, Radio World (2017), online at https:// www.radioworld.com/news-and-business/fcc-eliminates-main-studio-rule (visited July 18).