Background: The Fairness Doctrine Policy and Its Enforcement

The policy of the Fairness Doctrine was laid out by the FCC in 1949 in its report, In the Matter of Editorializing by Broadcast Licensees, ^{Footnote 9} which charged licensees with the duty to present controversial issues of public importance in a fair and balanced matter.^{Footnote 10} In 1959, Congress passed Section 315A, an amendment to the Communications Act of 1934, reaffirming standards for “public interest” and “equal time.”^{Footnote 11} It would later be argued that this elevated the Doctrine beyond a mere policy of the FCC and effectively codified it as a statute subject to Congressional action.^{Footnote 12} Federal courts ruled on the Doctrine several times. In 1969, the Supreme Court upheld its constitutionality in the landmark ruling, Red Lion Broadcasting Co. Inc. vs. FCC.^{Footnote 13} In Red Lion, the FCC fined a Pennsylvania radio station that had refused to allow response time to the author Fred Cook, who had been attacked on the air by a syndicated talk-show host, Reverend Billy James Hargis, for his anti–Barry Goldwater book and for alleged communist affiliations. In Red Lion, the Supreme Court ruled that the Fairness Doctrine required broadcasters to provide adequate and fair coverage of public issues and to ensure the inclusion of opposing views. But in the same ruling, it raised questions about the limitations of FCC jurisdiction, writing that the FCC should be “implementing the policy of Congress rather than embarking on a frolic of its own.”^{Footnote 14}

For much of the time when the Fairness Doctrine was policy, the FCC enforced it with a “raised eyebrow.”^{Footnote 15} There is a strong historical lineage of talk radio starting in the early twentieth century and much of it was partisan and Christian.^{Footnote 16} Radio personalities with strong points of view such as Aimee McPherson, Huey Long, and Father Coughlin reigned on the airwaves. According to a New York Times article from 1968, there were then “thousands of programs” that were of “extremely conservative outlook” on the radio.^{Footnote 17} During the 1970s and 1980s, Joe Pyne and Bob Grant were popular conservative radio broadcasters. With the exception of conservative broadcaster Carl McIntire, the radio station owner who broadcast the Twentieth Century Reformation Hour and had his licensed revoked in 1973, the FCC did not sanction any broadcasters for violating the doctrine.

Issues and Interests in the Repeal Debate

The debate over repeal heated up in the 1970s and 1980s. During this time, multiple congressional hearings were held and the FCC initiated the review process that led to the repeal of the Fairness Doctrine. The Doctrine was contested on two main fronts: first, it was no longer needed since new stations could now easily enter the market, rendering previous arguments of “scarcity” obsolete; and second, it violated First Amendment rights to free speech. Opponents argued that the “scarcity” premise upon which the Fairness Doctrine was predicated was outdated. The government no longer needed to intervene in the broadcast marketplace to ensure balance among the few “scarce” voices on the limited broadcast spectrum: from 1949 to the 1980s, radio stations increased fourfold and television stations increased twentyfold.^{Footnote 18} Underlying these arguments was a thrust toward smaller government and deregulation, which was the core of the Reagan presidency. Opponents also argued that compliance with the doctrine imposed a high cost on broadcasters, particularly small ones.

On the second front, many opponents emphasized the Doctrine’s unconstitutionality under the First Amendment, saying it unfairly resulted in two free-speech standards for media—one for print and the other for broadcast. The Supreme Court case Miami Herald Publishing Co. vs. Pat L. Tornillo, Jr. of 1974 held that newspapers were not required to provide equal space for a right of reply because this violated their First Amendment rights. Media broadcast outlets, including smaller radio television stations, larger media groups, and conservative outlets, said the doctrine choked their ability to present points of view. The National Association of Broadcasters (NAB) was against the doctrine on the grounds of a “myth of scarcity in the information age,” “the reality of the chilling effects,” and the “case for Unconstitutionality.”^{Footnote 19} Within the discussion of effects on the media industry, there was no strongly articulated notion, however, that “talk radio” or “conservative talk radio” would be a segment particularly affected by the doctrine or its repeal.

In the 1970s and 1980s, the issue was debated in congressional committees. Senator Robert Packwood (R-Ore.) emerged in the 1980s as one of the strongest opponents of what he branded the “fearness doctrine.” As chairman of the Commerce Committee from 1981 to 1985, he presided over more than half a dozen hearings on the doctrine, often teaming with a senator from across the aisle, William Proxmire (D-Wis.). Packwood also established the Freedom of Expression Foundation to raise private money to lobby for repeal.

In 1981, with a Republican president against the doctrine—and a Republican majority in the Senate that was at least partially against it—the stage was set for the doctrine to be reconsidered. President Ronald Reagan appointed Mark Fowler FCC chairman in 1981. Fowler had worked on Reagan’s election campaigns in 1976 and 1980. As a lawyer in private practice, Fowler had represented many clients who had been subject to FCC regulations that Fowler viewed as onerous. This fueled his strong opposition to the Fairness Doctrine.

In 1984, Fowler initiated a review of the doctrine by issuing a Notice of Inquiry.^{Footnote 20} A review of the Comments related to the Notice of Inquiry filed in response found that more than one hundred parties supported continuation of the doctrine and around thirty were for its repeal. This review was conducted at the FCC offices in 2009.^{Footnote 21} The letters and testimony from 1984 and 1985 provide a revealing look at the groups for and against the repeal of the Fairness Doctrine. As earlier outlined, there was an alliance of Republicans and some Democrats in favor of the repeal of the doctrine on the two main grounds of deregulation of the market and free speech.

In support of the Fairness Doctrine, there was a cornucopia of corporations, liberal consumer watchdog groups, major journalism outlets, and some conservative broadcasters. There were two main fronts of opposition to repeal of the doctrine. In contrast, many believed the marketplace inadequately protected subjects of media reports and that government regulation was needed to protect them and allow them opportunity to present their views. The second front consisted of parties who did not believe the FCC had sufficient authority to change the Fairness Doctrine.

What united many conservative and liberal opponents was a belief that they could at any time be the minority that sought time to air—and that the Fairness Doctrine could best protect their opportunity to do so. Thus, strange bedfellows would result with Phyllis Schafley and Ralph Nader both testifying in April 1987 in support of the doctrine in a House Telecommunications Subcommittee.^{Footnote 22} On an earlier occasion Schafley testified before the FCC: “The Doctrine is needed today more than ever before in history to serve as a small restraint on the monopoly power wielded by Big TV Media. . . . To repeal the Fairness Doctrine would be to tell Dan Rather, et al, “go ahead and be just as anti-Reagan and leftwing as you want; you have no legal or moral obligation to be fair.”^{Footnote 23} Indeed, groups such as the National Association for the Advancement of Colored People (NAACP), the American Civil Liberties Union (ACLU), the Public Interest Research Group (PIRG), and Common Cause supported the doctrine—but so too did corporations like Mobil and General Motors. Mobil wrote that the Fairness Doctrine helped the company “exert limited pressure on broadcasters” after being “embroiled in several controversies with broadcasters.”^{Footnote 24} In a similar vein, General Motors supported the doctrine on the grounds that the FCC has the “statutory obligation to serve the public interest by presenting a fair cross section of opinion in its coverage of controversial public matters” and that it did not possess the authority to change the doctrine.^{Footnote 25} Reed Irvine, a supporter of the doctrine from the conservative media group Accuracy in Media, said, “Businesses felt they needed the Doctrine to protect their ability to respond against potentially negative broadcasts.”^{Footnote 26}

An additional contingent argued that the FCC did not have authority to revoke the policy. The television network ABC thought “total repeal” required action by Congress.^{Footnote 27} The National Telecommunications and Information Administration (NTIA), an executive branch agency, said that whether Congress had codified the doctrine was a “threshold issue” before its dissolution.^{Footnote 28} Interestingly, NTIA’s opinion comes from another agency within the Reagan administration—contradicting the position of the president and the FCC and revealing division within the bureaucracy. The matter of legal ambiguity would prove a sticking point to repeal down the road.

In letters responding to the Notice of Inquiry, various parties also identified another issue related to the Fairness Doctrine: the possibility of partisan radio as a force that could be unleashed with FCC repeal. Carl McIntire cited a loss of 610 stations after the FCC revoked his license, writing that he was a “number One witness on the awful consequences of this Doctrine and how it was used by the liberal religious forces . . . to cause me to lose several hundred stations and silence my voice.”^{Footnote 29} Other media interests and radio stations advocated repeal in letters, saying the doctrine stifled their free expression. According to one letter, “Houston radio carried no political commentary due to concerns about the doctrine,” and “if the Fairness Doctrine did not exist, there can be little doubt that types of programming as yet unimagined would result.”^{Footnote 30} KGRL 940 AM radio wanted to air more editorials and advocated repeal on the grounds that the FCC’s regulations hindered its ability to broadcast different sides of political debate and unfairly punished broadcast over print. Gary Capps, KGRL 940 AM radio, wrote: “I have felt we could add in a positive way to the elective process by editorializing on candidates. However, the FCC rules are so onerous, that in each case we have declined to air such editorials. . . . The result of all this is that in a market area with eight radio stations, one television station and one daily newspaper, only the newspaper prints political editorials and endorsements. Does this add to diversity? Of course not.”^{Footnote 31} On the opposite side, Everett Parker and Al Swift, writing for the United Church of Christ, cited media reports about the high volume of “Hate Clubs” on the radio airwaves. They associated McIntire’s Twentieth Century program with “Hate Club programs” that have as their common characteristic “bigotry and vilification of Blacks, Jews, Catholics, indigents and foreigners” and concluded that the “Doctrine should be preserved to guard against a recurrence of these evils.”^{Footnote 32}

But despite such letters, FCC commissioners and key players in the debate did not foresee that repeal of the Fairness Doctrine could play an important role in fostering development of conservative talk radio, as is apparent from its lack of mention in public records and as portrayed by parties recollecting the debate.^{Footnote 33} Senator Bob Packwood said talk radio was “not on anyone’s bandwidth,” and that “it was not something we thought about, we didn’t even know it was going to exist.”^{Footnote 34} According to FCC Commissioner Mimi Dawson, there was awareness that the media market might change with repeal. But while “some in that crowd (for repeal) espoused there would be a boon to conservatives,” she adds, this was not a prevalent viewpoint.^{Footnote 35}

The Path to Repeal: Political Entrepreneurs, Courts, and Party

Those at the helm trying to steer policy change are often called “political entrepreneurs.”^{Footnote 36} Political entrepreneurs operate in an environment of institutional complexity with multiple actors and/or points of entry. Within this setting, they strive to apply skills that enable them to exploit openings and engineer political breakthroughs. King and Lieberman note that the multiple points of entry in the American state, due to its system of separation of powers and federalism, provide space for actors to enact change and exercise autonomy.^{Footnote 37} In order to be entrepreneurial in an environment of complexity and uncertainty, the bureaucratic agent needs to be able to have “bureaucratic autonomy,” which exists, according to Daniel Carpenter, when agencies can “change the agendas and preferences of politicians and the organized public.”^{Footnote 38} Similarly, Orren and Skowrenek say a leader needs to know and claim his “site,”^{Footnote 39} and elsewhere James Q. Wilson says he needs to exercise “control over (his) turf.”^{Footnote 40} Bureaucratic autonomy has been associated with the measure of a modern state in which bureaucratic actors can achieve outcomes despite institutional constraints, including those of courts and parties.^{Footnote 41}

In the process of repealing the doctrine, FCC Chairman Mark Fowler and Dennis Patrick were “political entrepreneurs,” seeking to navigate a complex environment and engineer a breakthrough policy change: the repeal of the Fairness Doctrine. They operated in an environment with ambiguous legal authority that was subject to the influence of various actors. The policy of the doctrine evolved through congressional acts and amendments, FCC regulations, and court interpretations. The FCC was the administrative and regulatory body for the doctrine, yet it was unclear to what extent the FCC held authority to change the law. At the federal level, any given agency, just as the FCC, is subject to direct oversight by congressional committees and the executive branch—the president, Office of Management and Budget (OMB) and other departments. There are multiple principals involved. Further, these bodies are comprised of politicians, and the environment among them is “competitive rather than cooperative.”^{Footnote 42} Add to the equation additional competition within the party, so the situation that Moe describes, in which the administrative agency “finds it must contend with uncoordinated and often conflicting demands, requirements, and incentives,” is compounded.^{Footnote 43}

While Fowler and Patrick faced many challenges in this environment, they also had advantages over agency heads in some other administrations as a result of serving in what some have called President Ronald Reagan’s “administrative presidency.”^{Footnote 44} It was Reagan’s aim to use the bureaucracy rather than Congress as the prime vehicle for achieving his policy goals. As Terry Moe notes, more than any other modern president, Reagan “moved with dedication and comprehensiveness to take hold of the administrative machinery of government.”^{Footnote 45} Reagan appointed agency chairmen who shared his belief in small government and deregulation of industry—including commercial radio. The selection of political appointees has been identified as a prime way that an administration is able to exert control over the bureaucracy.^{Footnote 46}

Into this complex and competitive institutional environment stepped Mark Fowler, who David Brock called “the mad monk of deregulation.”^{Footnote 47} Fowler came to the FCC ready to reverse course with an aggressive agenda-setting campaign. He aimed to change policies “that might impinge on the First Amendment.”^{Footnote 48} A list of his first five objectives, including repeal of the Fairness Doctrine, was posted all over the building.^{Footnote 49} Fowler had a way of branding the debate with memorable characterizations. He called FCC regulations “deadly do-right rules” imposed by Washington and characterized the FCC as such: “I once in a speech at the very beginning said that in many ways we have been the FCC, the Federal Cannot Commission. You cannot do this, you cannot do that, you must do this. And I was determined based upon President Reagan’s philosophy to try to deregulate the industry and let marketplace forces work so that the people would truly make their choices and not the government” (emphasis added).^{Footnote 50} Fowler achieved a personal reputation as an advocate for reform and built the FCC’s reputation as an agency of aggressive deregulation in the 1980s. For Carpenter, for a bureaucratic entrepreneur to achieve autonomy, it is essential that he have a strong personal reputation and that he establishes a strong organizational reputation for his work domain.^{Footnote 51}

But even with the White House behind him, Fowler faced major obstacles. There was division in the White House on the Fairness Doctrine. FCC Commissioner Mimi Dawson describes the Republican split as being between “economic conservatives,” who supported deregulation and cited First Amendment and scarcity arguments, and “standard doctrine conservatives,” who believed the doctrine was a necessary intervention to protect minorities against the media. Dawson placed Patrick (Pat) Buchanan, White House Communications director from 1985 to 1987, in the camp of the more protectionist “standard doctrine conservatives.” (Based on Dawson’s classifications, Republican Senator Bob Packwood would exemplify an “economic conservative.”) Among those serving in the White House in the 1980s, Pat Buchanan, James Baker, Kenneth Cribb, and Richard Darman were all against the repeal at some point, according to Fowler.^{Footnote 52} Other “standard doctrine conservatives” against repeal were Senator Trent Lott (R-Miss.) and Representative Newt Gingrich (R-Ga.).

Pat Buchanan is the most-often-mentioned, high-profile opponent of repeal of the doctrine by FCC commissioners Dawson, Fowler, and Patrick. For his part, Buchanan says he didn’t recall “playing a pivotal role” in the debate over the doctrine, or it being a “major battle” in the White House. He said his support for the doctrine was strongest in the early 1980s, before it became evident that liberals were against it because it stifled conservative talk radio.^{Footnote 53} “On the Fairness Doctrine, in the late 1970s and early 1980s, when I was with WRC (NBC), radio, I was insistent that it be enforced on the big three networks. However, nothing was ever done to our satisfaction. By the late 1980s, friends on the Left called me to stand with them to defend the Doctrine. But by then it was the Right that saw the liberal revival of enthusiasm for the Fairness Doctrine as a weapon against conservative talk radio, which was evolving.”^{Footnote 54} Further examination of the role of Buchanan and other staff within the White House would be a worthy topic for future research. Suffice it to say, Fowler recalls the heat of the opposition as being very strong and coming from some within the White House and from members of Congress from both parties.

On August 7, 1985, the FCC published the “Fairness Report,” which said the doctrine was no longer in the public interest, was probably unconstitutional, and that it had a “chilling effect” on broadcasters.^{Footnote 55} The scathing language continued: “The Fairness Doctrine—in stark contravention of its purpose—operates as a pervasive and significant impediment to the broadcasting of controversial issues of public importance.”^{Footnote 56} However, the FCC did not repeal the mandate, citing insufficient authority. The Fairness Report states: “While we are firmly convinced that the Fairness Doctrine, as a matter of policy, disserves the public interest, the issue as to whether or not Congress has empowered us to eliminate the doctrine is not one that is easily resolved.”^{Footnote 57} The FCC concluded that the “Constitutionality of the Fairness Doctrine is suspect,” but it passed the buck to Congress and/or the courts to rule on the constitutionality issue, in the meantime committing to continue enforcing the doctrine it had argued so strenuously against.^{Footnote 58} In a personal statement attached to the end of the report, Chairman Fowler restated his strong opposition to the doctrine, writing that the doctrine was “misguided government policy” from both a “legal and practical” standpoint and violated the First Amendment. He concluded that “today’s order is a statement by this Commission that we should reverse course, and head ballistically toward liberty of the press for radio and television.”^{Footnote 59} Yet his words of sound and fury did not signify the end to the doctrine.

Twenty-five years later, Fowler, for his part, said he personally believed there should have been no debate over the question of authority: the FCC had created the doctrine and it had the right to repeal it.^{Footnote 60} However, he also said it was not clear there was sufficient political support to repeal it at the time, including among the voting members on the FCC Commission. Fowler wanted to build a record that clarified legal questions, saying that while he knew the doctrine violated the First Amendment, “we wanted to have a record that would withstand judicial scrutiny and review.”^{Footnote 61} Robert Petit was the senior legal adviser to Commissioner Mimi Dawson from 1982 to 1986 and General Counsel at the FCC from 1989 to 1992. Asked whether the decision not to repeal was due to a lack of authority or due to political opposition, Pettit’s “working hypothesis is it was a little bit of both,” adding, “Fowler just wanted to get some guidance from Congress. There was a thought I remember at the time that this had been codified by Congress and that the commission just didn’t have authority to go ahead of this.”^{Footnote 62}

Yet it was decidedly odd that the FCC would issue a Fairness Report declaring the doctrine not in the public interest and probably unconstitutional—yet support its continued enforcement. Dennis Patrick, who was one of the four commissioners at the time of the Fairness Report and who would later become FCC chairman, said it was “very unusual” because “when we would issue a report or a set of findings that were that pointed about how we were coming out, the action usually followed.”^{Footnote 63} Patrick said: “Interestingly, despite these finding on the merits, the Commission opined that its authority to eliminate the doctrine was an issue ‘not easily resolved’ and, citing Congress’ intense interest in the subject, concluded: ‘it would be inappropriate at this time for us to either eliminate or significantly restrict the scope of the doctrine.’ In substance, we concluded it was bad policy and probably unconstitutional, but bowed to Congress, and resolved to keep enforcing it.”^{Footnote 64} Patrick’s reference to “bowing” suggests he believes there was an alternative course of action that could have been taken.

Conclusion: The FCC Chairmen, Bureaucratic Reputation, Autonomy, and Risk

Mark Fowler displayed the qualities of a successful political entrepreneur, including achieving a “bureaucratic reputation” for being a reformer, which Carpenter called a “key prerequisite for autonomy.”^{Footnote 65} Applying Carpenter’s criteria for “bureaucratic autonomy,” did Fowler meet other standards of a successful entrepreneur? Did he “change the agendas and preferences of politicians and the organized public?” Certainly partially. He reframed the agenda, and thereafter many advocates of the Fairness Doctrine would have to defend against his claim that the doctrine exerted a “chilling effect” on speech. He had branded the argument and set parameters for debate. But he did not sufficiently change the preferences of those in Congress. Otherwise, the FCC would have been able to repeal the doctrine in 1985 because debate over whether Congress held the authority to reverse the FCC would be moot.

David Brock notes that Rupert Murdoch called Mark Fowler “one of the great pioneers of the communications revolution” and “perhaps the most successful of any Reagan appointee”— and Brock gives Fowler the credit for the repeal, writing that “Madman Fowler killed the Fairness Doctrine.”^{Footnote 66} Fowler’s name is most synonymous with the repeal, and he did the lion’s share of advocacy for the repeal, although he chose not to repeal the doctrine in 1984. The cumulative acts of deregulation during Fowler’s term endowed him with a strong reputation, consistent with a political entrepreneur. But in this case, perhaps not living up to his aggressive “mad monk” reputation, Fowler’s decision not to repeal the doctrine was risk-averse. I would argue that an evaluation of risk as well as reputation is important in evaluating the achievements of a political entrepreneur. While Fowler was effective at establishing a reputation and agenda, when it comes to an evaluation of “risk,” political opposition led him to be risk-averse, or, at most, risk-neutral. Thus, repeal remained elusive in his term because ideational conflict and the political pressures it created made change sticky.

Two pivotal cases would prove key in emboldening the FCC chairman to overturn the doctrine: the 1986 ruling in Telecommunications Research & Action Ctr. (TRAC) v. FCC (TRAC) and the 1987 ruling in Meredith vs. FCC (Meredith). In these cases, the Court spoke with a ruling directly germane to the FCC authority over the doctrine. In the TRAC, Judge Robert Bork ruled that a 1949 amendment to the Communications Act did not codify the Fairness Doctrine, and that the FCC could therefore modify it (emphases added).^{Footnote 67} In response, Congress directed the FCC to review alternatives to the Fairness Doctrine and report back to Congress.

The Meredith remand order from the Court of Appeals in 1987 clearly stated that the FCC had the authority to rule on the doctrine and indeed should do so on Constitutional grounds.^{Footnote 68} This case began in 1982, when the Meredith Corporation ran editorial advertisements on WTVH in Syracuse, New York, endorsing the Nine Mile II nuclear power plant. Subsequently, the Syracuse Peace Council filed a complaint claiming that the radio station had violated the Fairness Doctrine, citing the FCC’s own Fairness Report. The FCC declined to sanction the station for not airing a report from the opposition side and argued that the grounds for the Fairness Doctrine were no longer valid, but it refused to rule on the constitutionality issue.^{Footnote 69} The case was appealed to the Court of Appeals, which on February 10, 1987, upheld the FCC’s decision but remanded the case back to the commission and castigated it for bending to political pressure in refusing to rule on the doctrine, saying “we are aware of no precedent that permits a federal agency to ignore a constitutional challenge to the application of its own policy merely because the resolution would be politically awkward.”^{Footnote 70}

Fowler’s term at the FCC expired with the fate of the Fairness Doctrine hanging in the balance. Chairman Dennis Patrick came into office in April 1987. Patrick recalled that the Meredith remand was on his desk and had effectively forced the hand of the FCC: “The Meredith remand pointed out that the Fairness Doctrine was not law, was not a Congressionally mandated matter but rather FCC policy. It was probably bad public policy if not unconstitutional but we were still enforcing it. The Court put the issue to us. You ask what my agenda was, my agenda was to respond to the court, we had no choice. That’s when we opened our inquiry into the Constitutionality straight up. And ultimately found it was bad public policy and unconstitutional.”^{Footnote 71} As the FCC was reviewing the doctrine, in June 1987 Congress passed the Fairness in Broadcasting Act, S.742 to formally codify the doctrine.^{Footnote 72} The bill passed the House by a 3 to 1 majority, or 302 to 102, and the Senate by a nearly 2 to 1 majority, or 59 to 31, before President Ronald Reagan vetoed it.

President Reagan vetoed the congressional bill to codify the doctrine on the grounds of scarcity and First Amendment rights.^{Footnote 73} In his veto statement, Reagan wrote, “S. 742 simply cannot be reconciled with the freedom of speech and the press secured by our Constitution. It is, in my judgment, unconstitutional. Well-intentioned as S. 742 may be, it would be inconsistent with the First Amendment and with the American tradition of independent journalism.”^{Footnote 74} President Reagan would later tell broadcasters, “As you know, I’ve never liked big government. And that was one of the reasons I was opposed to the so-called Fairness Doctrine, as you’ve already been told—that particular legislation which I vetoed. And I think you’ll agree, there’s no reason to substitute the judgment of Washington bureaucrats for that of professional broadcasters.”^{Footnote 75} An override challenge fell short; Senate leaders decided not to bring the vote to the floor after it became clear they did not have sufficient votes to win a two-thirds majority. Fowler recollects that President Reagan’s support for repeal was unwavering even as many conservatives were for keeping it: “He believed that what we were doing was the right thing to do. God bless him. I remember them saying, ‘you can’t do this Mr. President, there’s nothing in it for you’—some of his advisers—and Reagan said, ‘they can hang me for 32 things, this is just number 33. I think this is the right thing to do, period.”^{Footnote 76}

On August 4, 1987, the commission repealed the Fairness Doctrine. It did so by ruling in the Meredith remand that it would not sanction the broadcast station because the doctrine “on its face, violates the First Amendment and contravenes the public interest.”^{Footnote 77} That same day, the FCC issued its Alternatives to the Fairness Doctrine report, concluding that the best alternative to the doctrine was an “unregulated marketplace of ideas.”^{Footnote 78}

Patrick remembers that the Court of Appeals’ ruling on Meredith was the “critical juncture” and “galvanizing mechanism” for the FCC. “It was very clear to us at the Commission—we don’t operate in a vacuum—that the Congress wanted to retain it,” said Patrick, adding that the Court “basically said, ‘hey guys, you can no longer duck this issue’” just because, as Patrick recalled the Court’s language, “it’s politically awkward.”^{Footnote 79} In Patrick’s account, the courts helped clarify the FCC’s future action on the doctrine.

Meredith could be called a “critical juncture,” characterized by James Mahoney as “a particular institutional arrangement” that leads to a pattern of reproduction that makes return to the initial status quo difficult.^{Footnote 80} Was Meredith the only path to repeal? Fowler was asked whether the doctrine could have been repealed without Meredith: “My guess is the issue would probably have been presented by a broadcaster, as indeed Meredith did present it, and I believe that eventually even without the additional inspiration provided by the Court of Appeals, I hope the commission would have said— it’s a fair and legitimate point being raised by a broadcaster. We have found them in violation of the Fairness Doctrine, but in our Commission report we said the Fairness Doctrine was probably bad law and probably unconstitutional—now what is it? I think we would have eventually reached the issue. But I want to label that as speculation.”^{Footnote 81}According to Fowler, then, the Meredith remand was not the only contingency that could have produced the eventual outcome. It was a sufficient critical juncture on the way to repeal but not the only necessary one.

Did Dennis Patrick display the traits of a political entrepreneur through his assumption of risk and exercise of bureaucratic autonomy, “chang(ing) the agenda of politicians and the organized public?” Patrick said he had “no choice” but to act given the Court’s decision so in this sense his act might not have carried with it an assumption of measurable risk. But he did set and carry out an agenda (disregarding, if not changing, the agenda of others) to immediately repeal the doctrine in the face of continued political opposition. (The opposition continued after repeal when the House Communications Subcommittee chaired by John Dingell investigated whether the White House or another party had unduly influenced the FCC; Patrick said this did not occur.)^{Footnote 82} Patrick repealed the doctrine four months after taking office and two months after the congressional attempt to encode the doctrine. He was up against an electoral clock with President Reagan, a supporter of repeal, set to leave office in January 1989. Patrick carried the baton and was able to close the deal, through politics that can be described more as dogged and reactive than as dynamic and proactive—because change had been set in motion with Fowler’s Fairness Report and the TRAC and Meredith rulings.

While partisan opposition was an important factor in disabling the repeal process leading to its delay, court decisions helped enable it. One tension in this research was to determine which influence was greatest. The chairmen themselves emphasized more the disabling factor of internal party opposition than the enabling factor of the court decisions that facilitated them to have legal standing, or “cover,” to repeal the Fairness Doctrine.

Based on the accounts of the actors at the time and a review of the relevant primary and secondary materials, while the question of the FCC’s authority had existed for years, it did not singularly act as a veto condition. The FCC’s decision to initiate a formal review meant it was empowered sufficiently to act “on the merits,” as Patrick said. Fowler himself believed the FCC had the authority to repeal. The question of authority was thus more of a boundary condition hovering over the FCC throughout the review process than a veto condition.^{Footnote 83} This leads to the conclusion that political pressures from partisan conflict may have made the difference. Only with the strong words from the Court castigating the FCC in the Meredith decision was the FCC emboldened to repeal the doctrine.

It is important to emphasize that the Court of Appeals’ order should not be viewed as purely exogenous. Entrepreneurial politics began the chain of events leading to the Court of Appeals’ remand in Meredith. Mark Fowler’s aggressive branding of the Fairness Doctrine as “chilling” formed the grounds for appeal by the Meredith plaintiffs of the case that made its way to the Court of Appeals. With the court remand, Dennis Patrick was then able to repeal the doctrine due largely to the reduction of institutional ambiguity and political uncertainty afforded by the court action. Repeal of the Fairness Doctrine required strong agents to initiate the chain of events leading to Meredith and see the repeal through.

Epilogue: Channel 2016 —The Fairness Doctrine and Talk Radio

The repeal of the Fairness Doctrine became an important catalyst for the takeoff of talk radio. It was one of a “constellation of forces” that propelled talk radio into a national phenomenon, as identified by historian Susan Douglas.^{Footnote 84} These additional forces included: satellite technology, deregulation, and a sense among many Americans that the mainstream media was not adequately addressing their interests.^{Footnote 85}

Former FCC Chairman Dennis Patrick believed that once the Fairness Doctrine was lifted, new media voices could be unleashed, but he noted that this theory could only be tested by repeal. In hindsight, one can see with 20–20 vision that repeal allowed for talk radio by liberating speech, but, according to Patrick: “It follows logically from that that if you remove the source of the chill you may in fact create or inspire more speech. The problem was that . . . we couldn’t make . . . the affirmative case—look at all of the news, all of the talk, look at the robust debate that would take place if we didn’t have a Fairness Doctrine. By definition, we had to abolish the doctrine in order to test the proposition. What happened when we abolished the doctrine was there was an explosion in talk radio.”^{Footnote 86} Patrick effectively applies the counterfactual test for a critical juncture to the repeal; in the absence of a repeal, there was no talk radio. As James Mahoney writes, counterfactuals are related to “critical junctures,” which are “characterized by the adoption of a particular institutional arrangement from among two or more alternatives,” and a pattern of reproduction following that adoption that makes return to the initial status quo difficult.^{Footnote 87} The former FCC chairman says the repeal of the doctrine was necessary in order for talk radio to emerge. In this sense, the repeal was not just a sufficient but also a necessary critical juncture for the emergence of talk radio.

Conservatives were the beneficiaries for reasons including a “pent-up demand” and an ability to innovate and respond to this demand, as discussed by FCC Commissioner Mimi Dawson, who compared conservative’s exploitation of talk radio to their effective use of direct mail in the 1970s: “Republicans immediately saw an opening and got into talk radio. The Democratic party is much closer to the media industry and finds its voice in the mainstream media. It didn’t feel the need (to get in)—not until the Rush Limbaugh’s of the world became so prominent and managed to gather the audience they did and generated results at the polls.”^{Footnote 88} In other words, the conservatives innovated because as the then-minority party, they had to find a way to gain ground beyond the main channels controlled by the ruling party. With the repeal of the Fairness Doctrine, radio became new terrain. Talk radio became a space conservatives could creatively define and come to dominate. This is ironic because so many conservatives were themselves against the repeal of the Fairness Doctrine—though not the FCC chairmen whose entrepreneurial politics, with some help from the Court, helped change the course of the media and political landscape.