Changing Channels: The Fairness Doctrine and the Case That Transformed Television
The case established the precedent that the public could participate in FCC matters.
By Kay Mills
White Mississippians strongly resisted desegregation of their schools after the historic Brown v. Board of Education ruling by the U.S. Supreme Court in 1954 that separate schools for white and black children were “inherently unequal.”
At the same time, the principal local television station in the state’s capital city of Jackson also strongly resisted efforts to win air time for black citizens to respond to programs they felt presented only the white point of view on desegregation. Medgar Evers, executive secretary for the National Association for the Advancement of Colored People in Mississippi, started raising the issue of one-sided programs during the 1957 Little Rock school crisis and was repeatedly turned down by WLBT, an NBC affiliate.
A battle that would end decades later was under way.
WLBT, which had gone on the air in 1953, employed no black people, either on camera or behind the scenes, although its audience was more than 40 percent black. The station also did not cover the black community in the same depth as it covered news about the white community, and it broadcast the Sunday services of only a local white church and none from black churches. Its station manager editorialized on the air against the admission of James Meredith to the University of Mississippi in 1962, arguing that states, not the federal government, should determine who could attend their schools and colleges.
All this changed as the result of the efforts of a small band of black and white citizens who challenged WLBT’s license forty years ago this year in what became a landmark communications law case. That legal battle is described in the author’s book, Changing Channels: The Civil Rights Case That Transformed Television, published this year by the University Press of Mississippi.
The broadcast company that held the license triumphed twice at the Federal Communications Commission in its effort to hold on to its license. However, twice a federal appeals court panel, headed by Warren Burger before he moved on to become chief justice of the United States, overruled the FCC. Not only did the broadcaster lose the license, but ultimately a majority black-owned group took over.
The case established the precedent that the public could participate in FCC matters—a right that, surprisingly, it had not held before the 1966 decision. This precedent led to the formation of public interest communications law firms that represented citizens’ groups around the country in challenging other stations and negotiating non-discriminatory employment practices. The challenge also put broadcasters in the South, and indeed around the nation, on notice that they needed to hire more minorities and provide fairer coverage of the entire community, not just the white community.
Today, deregulation at the FCC has reduced the opportunities for the public to participate. Federal courts have set aside even the commission’s modest equal employment rules. But that does not mean the case should be forgotten—it showed what could happen when people saw something that they thought was wrong, had the conviction to attack that wrong, and found the ability to stay the course, no matter how wearying and expensive it proved to be.
Medgar Evers Tries to Secure Equal Time for Other Views
When Medgar Evers tried to win air time on WLBT in the 1950s and early 1960s, he had on his side the Fairness Doctrine. This FCC policy directed broadcasters to present programs on controversial public issues and enable those who disagreed to present their opinions on the air. Evers sent his complaints to the FCC, which took little action. On May 20, 1963, Evers finally did appear on WLBT and responded eloquently to a broadcast by Jackson’s mayor, Allen Thompson, who had refused to meet leaders of the black community or to respond favorably to their rising demands for fair treatment in employment as well as equal access to restrooms, restaurants, theaters, parks, schools, and libraries for blacks and whites.
A black person in Mississippi “knows about the new free nations in Africa and knows that a Congo native can be a locomotive engineer,” Evers told the TV audience, “but in Jackson he cannot drive a garbage truck.” In Jackson, he added, “there is not a single black police officer, school crossing guard, fireman, clerk, stenographer, or supervisor employed in any city department or in the mayor’s office in other than menial capacities except those who worked at segregated facilities.” Whether Jackson and the state chose to change or not, he said, “the years of change are upon us. In the racial picture things will never be as they once were. History has reached a turning point, here and over the world.”
Only a few weeks later, Evers was shot and killed from ambush.
Even as Evers was trying to win air time on WLBT, the FCC was also receiving complaints about the station’s editorials against the admission of James Meredith to the University of Mississippi as its first black student in 1962. The station’s general manager argued on the air that states had the right to administer their educational systems as they chose without federal interference, meaning that they should remain segregated. Washington seemed “more concerned about placing a student in the University of Mississippi, for political purposes, than they are about removing thousands of Communist troops from Cuba,” station manager Fred Beard told WLBT viewers.
The FCC sent two investigators, William Ray and John O’Malley, to Mississippi. Years later, O’Malley recalled in an interview that Beard was “a sincere believer in segregation. Blacks belonged with themselves and whites belonged with themselves. He was a believer in states’ rights, that this was not a federal matter. And he had been getting away with it for so many years.”
In 1964, a few months before hundreds of students from the north went to Mississippi to help register black voters and teach in Freedom Schools, the Rev. Everett Parker, also a northerner, and the Office of Communication of the United Church of Christ (UCC), which he headed, launched what would be a sixteen-year legal battle. Parker trained a group of Jackson whites who were willing to get involved—a decision not lightly made in those years—to monitor the programming on WLBT. Then Parker, joined by two Mississippi black leaders, Aaron Henry and the Rev. R.L.T. Smith, filed a challenge against the WLBT license, then up for renewal. Henry was a longtime NAACP leader and later a member of the state House of Representatives. Smith had run for Congress in 1962 and was unsuccessful in buying air time during his campaign until he enlisted the aid of national leaders, including former First Lady Eleanor Roosevelt.
Their ten-page petition to deny the WLBT license generated twenty-five boxes of FCC files, now in the custody of the National Archives. That may be a small amount compared with the seemingly endless records some researchers encounter, but it was invaluable documentation for every step along the way in the case.
It is hard to believe today, but until the courts decided this case, the only people who could participate in FCC matters were those with an economic stake in the issue or people who could claim electrical interference from broadcasters’ signals. So when the commission heard this challenge, its members said that the UCC Office of Communication and its allies had no standing in the case and voted 4-2 to renew the license. It did acknowledge that the station, owned then by Lamar Life Broadcasting, was less than zealous in its adherence to the Fairness Doctrine.
The FCC’s First Ruling Reversed in U.S. Court
The FCC’s decision read as though the commission was going to support the challenge—until the conclusion, which denied it. It was written so that the majority could not be criticized for overlooking the conditions that the challengers had raised yet still dismiss them. The man who wrote the opinion, Henry Geller, who had been general counsel of the FCC during this case, said later that he had disagreed with the commission. He thought WLBT’s record was bad enough to warrant a closer look.
“We went in there and argued very strongly that you must designate this for a hearing,” Geller said. “The statute says [there should be a hearing if there are] ‘substantial material issues of fact.’ You have very serious issues of fact here. You have issues of fact about the Fairness Doctrine because they put on all these editorials saying, ‘Never, never,’ calling it states’ rights, that they don’t deal with integration. . . . You had issues of misrepresentation. They say they don’t cover the issue because it’s inflammatory and they cover the issue like mad in editorials, calling it states’ rights.”
Having lost his argument before the commission that it should require a hearing, Geller said in an interview that he had written in the opinion that Mississippi needed this broadcaster because “the situation was so dicey with integration being so important, the South being a raging inferno with this chasm, that if we could get immediate compliance, it was worth it in the public interest. It was really totally wrong.” The FCC felt, or so Geller thought, that having an established station reporting the news – if it would do so with more balance – was better than adding to the crises in Mississippi by denying the license renewal.
The UCC’s Office of Communication appealed to the United States Court of Appeals, District of Columbia circuit, saying that its charges merited a public hearing. The appeals court panel that heard the case agreed. Writing for the court, Judge Warren Burger said that there was no reason to believe that Congress had “any thought that electrical interference and economic injury were to be the exclusive grounds for standing or that it intended to limit participation of the listening public to writing letters” to the FCC. Unless broadcast consumers could be heard, the court said, there might be no one to bring a station’s deficiencies to the FCC’s attention. “In order to safeguard the public interest in broadcasting . . . we hold that some ‘audience participation’ must be allowed in license renewal proceedings.” This decision opened the doors to the public interest movement that saw groups challenging licenses, negotiating concessions from broadcasters trying to sell stations, and seeking everything from an end to cigarette advertising to improvements in children’s television programming.
Burger ordered a hearing, which was held in Jackson in May 1967. By this time, WLBT had changed its lawyers, hiring the influential Washington firm of Arnold & Porter (Paul Porter being a former FCC chairman and a longtime friend of President Lyndon Johnson). It had also fired the station manager who seemed to be the lightning rod in the case and started hiring black announcers and broadcasting black church services. But it would eventually prove too little, too late, as the case continued through the FCC and the courts.
The challengers’ testimony at the Jackson hearing depicted a station that rarely covered news about black citizens and often violated the Fairness Doctrine. Several black viewers testified about their complaints to the station but were grilled by the FCC and station attorneys because they could not remember when they had called or to whom they had spoken. Fred Beard, the former station manager, testified at length, acknowledging that he had not aired an interview with civil rights attorney Thurgood Marshall but said he did so because he did not want to have to give response time to the White Citizens Council.
The most dramatic testimony came toward the close of the hearings, when civil rights activist Charles Evers testified about the way WLBT had handled his late brother Medgar’s appearance on the station in May 1963. If a person requests time, the station should not allow its employees to say that there was a black person asking for rebuttal time to “make out our mayor is a liar,” as Charles Evers implied WLBT had done. “These types of things we just cannot have. This is personal but I hope that our stations will never do this anymore because I personally feel this is part of the hate that was built up through this particular station at this time that may possibly have contributed to the death of my brother.”
The FCC Rules Again—and is Reversed Again
In October 1967, the FCC hearing examiner ruled that the challengers had not proved their case and the commission should renew the license, which it did once again in 1968 on a 5-2 vote. In a strong dissent, FCC members Kenneth Cox and Nicholas Johnson said, “it is unlikely that a more flagrant deliberate and serious offender against the fairness doctrine [than WLBT] will ever appear before us.” The fact that the station now showed contrition should not be allowed to counter its prior “open and unmitigated scorn and indifference to the half of its viewers who happen to be black.”
Their summary of the elements of the case in their dissent tells why this license challenge is still worth studying today:
“This case has everything. A racist television station in Mississippi. An offended citizenry that actually takes the expensive and frustrating course of involving itself in the license renewal process. A church as a party. Negroes protesting the programming abuse received by that nearly 50 per cent of the people in the station’s viewing area who are black. A landmark, first-impression decision by the U.S. court of appeals awarding ‘standing’ to such parties. The station’s misrepresentation to the Commission over the years. The Commission’s contortions to keep the public out entirely, then to place upon them an impossible burden of proof, then to reverse long-held precedents and ignore the clear suggestions of the court as to the standards to be applied.”
Once again the case went to the appeals court, and once again the challengers won there. The June 1969 opinion was Burger’s last on the appeals court before he moved up to the Supreme Court. Brimming with indignation, he wrote that the court had not intended that the members of the public be treated as interlopers. He found the record beyond repair and ordered the FCC to open proceedings for a new licensee. Lamar Broadcasting could participate, but it seemed clear to everyone that it would not retain the license.
The two WLBT decisions stunned the industry. In effect, they told stations around the country that if they discriminated against their black audiences and had few black employees, they, too, could be in trouble. At the same time, the UCC Office of Communication asked the FCC to issue rules requiring equal employment opportunity in broadcasting. The tide was turning in that direction anyway in the late 1960s, but the WLBT case made it virtually impossible for the commission to turn its back on this request.
WLBT’s attorneys and staff members believed that the decisions were unfair. These attorneys, such as Harry Huge, then with Arnold & Porter, felt that the station had reformed and its efforts should not go unheeded.
Former station manager Fred Beard described the loss more viscerally in an interview: “I gave birth to a television station,” he reflected years later. “I got the channel assigned to Mississippi. I trained all the people that I was capable of training. I hired engineers that were trained in radio and had background in engineering. We learned how to do it by going to the other stations. There were very few stations on the air anywhere. We were one of the first. And I gave birth to it. And then I had somebody kill it right in front of me—not because I was guilty of anything but being there. I was guilty of political activity that took the station away from us. We were tried, found innocent and lost the station. Just like finding somebody not guilty and executing them.”
An Interim Owner Begins to Change Station Operations
While the FCC was considering who should run the station permanently, it had an interim organization operate the station—and that’s when change really started to occur. Communications Improvement, Inc., had an integrated board and wanted four things from the station’s management: that it hire more blacks, that it create an integrated children’s program, that it provide more balanced news coverage, and that it continue to make a profit.
After a few months, the board fired the holdover station manager from Lamar ownership’s day, Robert McRaney, Jr., and hired the first black station manager in the country, William Dilday. He sent reporters on stories that they had never covered before, and ultimately the station won a prestigious Peabody award for exposing the conflicts of interest of a leading state legislator.
“Our job was to question, question, question, and to push and probe and not accept political answers,” said Walter Saddler, a reporter at WLBT in those days. Saddler, who is African American, added: “If they weren’t going to give us answers, then we’d put that on the air. We got reaction from both the white and black communities. There were a lot of people in town who knew things were wrong and wanted to see them corrected.”
Meantime, five groups vied for the permanent license. Washington Post reporter William Greider described their battle in a 1973 article as “a mudball fight in a small room.” All the groups had some black participants, but in several cases that was only token. Prominent Mississippians figured in all groups, including a former Republican candidate for governor and Aaron Henry, one of the original challengers. Henry belonged to a group called Civic Communications, Inc., that also included state Democratic Party leaders Hodding Carter III, Patricia Derian, and Charles Evers.
During the course of the lengthy hearings in Washington to determine the permanent licensee, Evers published a controversial autobiography. He drew the fire of Civic’s opponents because in that book he acknowledged that he had been involved in gambling and providing prostitutes to soldiers during World War II. Evers’s group was disqualified, and administrative law judge Lenore Ehrig awarded the license to Dixie National, the heavily Republican group.
But Evers’s group could remain involved in the case because everyone knew it could appeal the law judge’s decision and because a politically liberal Texas banker, Walter Hall, was willing to spend the money to stay in the fight. Hall had been a civic leader in his small town between Houston and Galveston and long active in Democratic politics. He had heard from one of Civic Communications’ organizers that WLBT’s black audience had not been fairly treated and felt that something should be done about that.
Hall always made sure he knew whatever he could about his opponents. So he asked a Jackson attorney, Tom Royals, who was working with Civic’s lawyer Martin Firestone on local aspects of the case, to tell him about his adversaries. “‘Oh, Mr. Hall, they’re very rich people,'” Royals said. “He said, ‘Tell me about that. How rich are they?’ And I got to telling him about these people and I said, well, this one’s worth five or six million dollars. This one’s worth fifteen million dollars. This one’s worth twenty million dollars and so forth and I finished and he said, ‘Tom, that ain’t rich.’ I said, ‘Well, Mr. Hall, I thought that was rich.’ And he said, ‘No sir, Tom, that’s not rich. I don’t want you to be intimidated by that.'”
Throughout this part of the case, each group tried to turn up whatever harmful information it could find about the others. Investigations by both the UCC Office of Communication and Civic’s Firestone yielded evidence that one of the Dixie National board members might not have told the truth about his ties to a company involved in providing modular housing. It is all very complex, but the FCC ordered the case reopened because it was at least a stickler for truth in testimony. Months turned to years, and the groups realized that they were all paying lawyers and getting nowhere.
The case had to be settled, Royals said. “There were going to be so many casualties nobody would be left.” But several attempts to negotiate a settlement failed, in part because some of the participants were not willing to commit to majority black ownership. Hall stood firm on that point—he even visited Senator James O. Eastland at one point, presumably letting him know that he had deep pockets and intended to stay the course. Finally, the principal players reached an agreement, and a merged group received the license in 1979 and took over the station in 1980. Aaron Henry, once denied air time himself because of his race, became chairman of the board.
WLBT remained majority black owned until 2000, when it merged with Cosmos Broadcasting, a chain of stations now known as Liberty Corp. The chief executive officer at the time, Frank Melton, an African American, said that consolidation in the industry had led to the deal because he could no longer compete with larger groups in terms of buying programs or selling advertisements.
The Legacy of the Case: Listening to Consumers
The case is history. The FCC has deregulated much of broadcasting and has put the Fairness Doctrine on the shelf. The courts have made it impossible for the commission to have any equal employment rules with teeth. The public interest movement has waned—although there remain dedicated groups seeking to combat consolidation of media ownership and reviving the Fairness Doctrine and affirmative action rules.
So what difference did this case make?
In Jackson itself, a television station with one of the potentially largest black audiences for local news intensified its coverage of that community at a time of immense political and social turmoil in Mississippi. That had, after all, been the original aim of the challenge.
For a time, at least, the case buttressed the Fairness Doctrine. Using that doctrine, John Banzhaf won decisions from the FCC and the U.S. Court of Appeals in 1968 requiring that television stations running cigarette commercials tell their audiences of the public health issues. These decisions and public health findings put the skids under cigarette advertising on television, which Congress banned in 1969.
Although the Supreme Court upheld the Fairness Doctrine in 1969, the climate for curtailing government regulation grew in the 1970s and escalated when Ronald Reagan was elected President. In 1985 the FCC, headed by a Reagan appointee, said it believed the doctrine was unconstitutional and asked Congress to repeal it. Congress was not inclined to do so, not wanting to be seen as attacking fairness. In 1987 the FCC simply voted that the doctrine was no longer needed and therefore no longer in effect. Two years later, the federal appeals court let the FCC decision stand.
The case and the companion move for equal employment rules opened broadcasting’s doors to more minority reporters, camera operators, producers, and other personnel. By the summer of 2004, if you turned on the television in Jackson, you would have seen an integrated anchor team on the morning news and two African Americans delivering the evening news. It’s par for the course today.
Perhaps most important, at a critical time in U.S. history during which great social change was occurring, federal regulators had to listen to citizens, not just to broadcasters. First and foremost, the initial WLBT appeals court decision gave the public a venue for taking action against broadcasters that were ignoring them and their issues.
The spirit of protest was well under way through the civil rights, antiwar, and women’s movements, and the legal precedent this case established allowed activists to train their sights on broadcasters as well as other institutions they considered unresponsive.
People learned how to “talk back to their television sets,” to use former FCC commissioner Nicholas Johnson’s phrase, a result of starting to think in new ways about how television affected their own lives.
Originally published by Prologue 36:3 (Fall 2004), the United States National Archives and Records Administration, to the public domain.