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Content Regulation: Rules Underlying the Fairness Doctrine

Despite the death of the fairness doctrine in 1987, two underlying rules that were developed during its existence remained in effect for another 13 years: the personal attack rule and the political editorial rule. The personal attack rule required broadcast licensees to notify persons who were maligned or criticized during their station’s coverage of a controversial public issue and allow the attacked persons to respond over the licensees’ air waves. If the attack was made upon the honesty, character, or integrity of another person, the licensee was required to provide a script or tape of the attack to the person identified before giving that person a reasonable opportunity to respond. The political editorial rule afforded political candidates notice of and opportunity to respond to editorials opposing them or endorsing another candidate.

The personal attack and political editorial rules fell by the wayside in 2000, when the Court of Appeals for the District of Columbia ordered the FCC to either provide a detailed justification for their continued application or abandon them. Initially, the FCC suspended the rules on a temporary basis, but later formally repealed both rules.

Proponents of both the personal attack and political editorial rules, as well as the fairness doctrine, have sometimes called for reinstatement. For example, during the 2004 presidential campaign, a furor erupted when some stations decided to broadcast “Stolen Honor”, a documentary critical of presidential candidate John Kerry. However, none of the rules have been reinstated.

Although the demise of the Fairness Doctrine and its underlying rules have given broadcasters greater control over the content of their programming, broadcasters still may not discriminate among candidates for public office. Once a broadcaster permits one candidate for public office to use its facilities, it must afford equal opportunities to all other candidates for the same office. Broadcast stations that willfully or repeatedly fail to provide a legally qualified candidate for elective office reasonable access to their airwaves may subject themselves to sanctions, including revocation of their licenses. The FCC “equal time” provisions apply only to the candidates themselves and not to appearances made by campaign managers or other supporters. The determination of what constitutes a legally qualified candidacy is made by reference to state law.

Inside Content Regulation: Rules Underlying the Fairness Doctrine