First Amendment issues have been the most active areas of public controversy among broadcasters since the Communications Act of 1934. The FRC and then the FCC have maintained that “scarcity” requires a licensee to operate a broadcast station in the public trust; a station is not meant to be an exclusive means to promote its owners’ views. This controversial doctrine formed the basis of many FCC rules up through the mid-1980s.

The Fairness Doctrine withstood constitutional challenges. For example, in 1969 the Doctrine was held to be constitutional by the Supreme Court in Red Lion Broadcasting v. FCC (395 U.S. 367). Broadcasters had complained vociferously about the doctrine, complaining that it produces a chilling effect on free speech. Despite the potential for conflict, though, the FCC determined a station’s fairness record on the overall programming record of the licensee. The U.S. Supreme Court also reaffirmed that as long as a licensee met its public trustee obligations, the licensee was not obligated to sell or give time to specific opposing groups to meet Fairness Doctrine requirements. Eventually, the FCC commissioners pursued policies of deregulation and began looking for ways to eliminate the Fairness Doctrine.

In 1985, an FCC report concluded that scarcity was no longer a valid argument and the Fairness Doctrine unduly prevented broadcasters from airing more controversial material. Two subsequent federal court cases finally allowed the FCC to eliminate the Fairness Doctrine in 1987. The FCC revoked the Fairness Doctrine, with the exception of the personal attack and political editorializing rules that remain in effect.