The 2014 FCC has now spoken [PDF] in response to a complaint filed by my not-for-profit, the Media Action Center (MAC). Unfortunately, their response comes as little surprise.
It might, however, come as a surprise to the 1972 FCC. That year, the Federal Communications Commission discussed a ruling that became known as the “Zapple Doctrine”. The rule extended the federal agency’s interpretation of the equal time provisions, Section 315 of the Communications Act, to apply to supporters of candidates, as well as candidates themselves. If airtime was granted to a candidate over the public airwaves, equal time had to be made available to his or her opponent, if it was requested.
Zapple expanded the equal time provision to apply to supporters of candidates as well. It only made common sense, as the FCC explained in 1972…
“Exaggerated, hypothetical situations that would never arise?” Really? “No licensee would try to act in such an arbitrary fashion”?
Hey, 1972 FCC, please meet the 2014 FCC.
On May 8, 2014, the FCC, issued their response to MAC’s complaint, filed after we discovered that two Milwaukee, Wisconsin powerhouse radio stations were giving millions of dollars in free airtime to supporters of GOP gubernatorial candidate Scott Walker, and not allowing supporters of his Democratic opponent any free airtime at all — all in rather clear violation of the FCC’s Zapple Doctrine…
The FCC’s decision included the following…
What it means is the agency tasked with protecting the public interest in broadcasting has decided that what WISN and WTMJ, two powerhouse, publicly-licensed radio stations in Milwaukee, were allowed to give away all the free time they wanted to the supporters of one candidate (in this case, Gov. Walker), without allowing supporters of his Democratic recall opponent (Tom Barrett) any free airtime at all. Not just free airtime to discuss various issues surrounding the election, but free airtime time specifically used to tell people to vote for Walker and to recruit volunteers for the Walker campaign just weeks prior to the election.
The legal underpinnings for their decision, according to the FCC, is that there is no longer a Fairness Doctrine, and therefore, there is no Zapple Doctrine:
To understand this, one must understand the difference between “law” and “rules,” and “rulings.” The FCC passes many rules to make the laws in the Communications Act fully functional. In its ruling, the FCC is saying there is no law against a radio station giving millions of dollars of free airtime to get their favored political candidate elected, and there is no codified FCC rule against it, either.
In 1970, when establishing the Zapple Doctrine to expand the equal time provisions of Section 315 of the Communications Act, the FCC hooked the Zapple Doctrine cart to the now-defunct Fairness Doctrine rule, rather than to Section 315 of the Communication Act, where it really belonged. As noted at the top of this piece, this problem came to light at the FCC way back in 1972, where the concept of equal opportunities on our publicly-owned airwaves were widely supported by groups like the National Association of Broadcasters, ABC, and NBC:
But, as the document shows, the FCC chose at the time not to codify the ruling formally:
“Reasonable discretion.” This is one of the phrases used in the 2014 ruling that makes me hopping mad. But more on that soon.
In the meantime, in a followup to our original complaint, we told the FCC that if it decided Zapple was unenforceable due to the absence of the Fairness Doctrine, we request a new rule. But what we really need is a new law.
As the U.S. House has said they intend to update the Communications Act anyway, now is the time. But will fair-minded Republicans support such a law, when the Wisconsin case proves that, through their use (or mis-use) of our public radio airwaves, they are able to win elections for the GOP?
They say it isn’t over until the fat lady sings. She’s not singing yet…
Sue Wilson is a media activist, director of Public Interest Pictures’ Broadcast Blues, and a 22 year veteran of broadcast journalism. Her numerous awards include Emmy, AP, RTNDA, and PRNDI for work at CBS, PBS, FOX, and NPR. She is the editor of the media criticism blog, Sue Wilson Reports and founder of the Media Action Center.
I’m appalled at the FCC, though unfortunately I can’t exactly say I’m surprised.
Very glad to know about the MAC’s work.
Thanks, Lora,
I anticipated this would happen, as I wrote earlier in the BradBlog:
But at least we have an answer so we can now begin asking the next question: where’s the rule (and/or law) prohibiting this?
LEGALIZED SHILLING: The timing of this long-delayed ruling seems suspiciously close on the heels of McCutcheon. The fact that every radio station can now legally shill:
This is saying there’s no longer a link between the “public interest” and the idea that both sides should be heard in a given election.
As a school teacher, I can attest to the fact that we still teach children that arguments should be made honestly, with critical consideration given to counter-arguments. Intentionally suppression of relevant facts and perspectives is deceit, historically known as propaganda.
The question for the public now is whether the FCC is serving the public interest or private interests with the new edict that hearing just one side in a close campaign is sufficient to inform the electorate.
Here is another crucial point:
The FCC is now saying it’s in acceptable to exercise bias in a listening area because the station owners believe that bias is in the public interest. Is not the whole idea of having a public Petition To Deny process a mechanism for redress?
I think the tricky language of “public interest” is key. It doesn’t say the public’s best interests, so there is no duty to be balanced to keep people well-informed. The FCC just gave permission to private companies to exploit and deceive the public right over it’s own airwaves.
Given the fact that it was a democrat and a leftist group that sued the FCC to put biased programming on “Public Radio” are you surprised? Of course it’s funny the modern leftist want rules to silence others but don’t want those rules to apply to them. Can I say it now? Yes I do know the rules, Do you?
http://veritasvincitprolibertate.wordpress.com/2014/05/14/first-amendment-victory-and-freedom-of-the-press/
Marshall,
As I have stated for years, it was entirely likely that the FCC would rule in exactly the way it has. This is no surprise, just the first step of many to correct this obvious wrong.
However, your link incorrectly cites the Syracuse Peace Council case as deciding the Fairness Doctrine is unconstitutional. No such finding has ever been made, in fact quite the contrary. The Supreme Court in Red Lion makes it clear that
Please see http://scholarship.law.stjohns.edu/cgi/viewcontent.cgi?article=1939&context=lawreview for a thorough explanation.
Sue Red Lion was a narrow case and as I pointed to in my blog it came with a warning that they were dancing close to violating the First amendment and if they did the case and ruling would have to be revisited. That’s exactly what happened in the California League of Women Voters vs the FCC where the FCC lost. The court ruled that as the FCC stated had wide rights when it came to editorial content and they suggested one remedy would be a disclaimer which all talk shows do.
I meant to say the stations have wide editorial discretion. And it was that ruling that narrowed the equal time rule to candidates only.
Marshall Keith lied again @ 4:
Not sure what “leftist group” you’re talking about. But, that said, you once again have inaccurately stated that someone (“leftists”, as you like to pretend) “want to silence others”.
Can you offer any evidence that anyone, “leftist” or otherwise, sought to “silence” anyone by asking the FCC to follow the law and allow supporters of the opposing candidate to have similar time that the radio station corporations’ favored candidate enjoyed over our public airwaves?
I appreciate you like to play the victim, and wish to keep enjoying government welfare largess for Rightwingers and Rightwingers only, but it’s somewhat pathetic that you feel the need to make up issues that aren’t in question.
As to your second response to Sue above @ 6, it’s yet another red herring. Nobody in the MAC complaint ever implied that the views of the corporations expressed over our public airwaves were those of the government, to my knowledge.
You are very good at creating strawmen and then destroying them. Not nearly as good as actually responding to the matter at hand.
Given your apparent position however, that corporations should control our public airwaves and the public should, apparently, just fuck off, I guess I shouldn’t be surprised that you continue to argue everything but the facts at hand.
Brad Friedman The leftist group I am speaking of is the California League of Women Voters. One look at their platform and the causes they support will bare out the support progressive causes. The democrat involved was Democratic Congressman Henry Waxman. The fact that they sued the FCC to put biased programming on Public radio was celebrated by the leftist group “Democracy Now” during the Sam Alito confirmation hearings.
Marshall Keith said @ 9:
Ah. I see. Those “leftists”.
Well, if your completely unrelated legal cites — and laughable characterizations of them — were not enough to help everyone here understand that you should not be regarded as anything even close to a serious person, I guess that remark just did.
This concern harkens back to the days of the Iraqi terrorist campaign conducted by and for the Republican Right with ample assistance from the Democratic Right, Center and Left. In those good old bad old days, one slighty left leaning candidate on Phil Donohue’s talk show was cause to insist, demand and insure that multiple righties would be present to, ahem, balance the show. Well, now things have come around again only this time zero lefties is enough to insist, demand and insure that multiple Righties get to speak their piece uninhibited by any conflicting viewpoint at all. Good government at its best, the satirist might say.
To the fellow who says the some negatory or unreasonable action (which may never have occurred, BTW) by the CA League of Women Voters is reason enough to allow Scott Walker et al air time without allowing compensatory Democratic Party air time, I say: nah nah na nah nah – two wrongs don’t make a Right!
We are at a crossroads where billionaires have somehow got the little people to defend their nefarious activities to the detriment of little people everywhere. It is the Robber Baron age all over again but worse worse worse. Is it not enough that the last Republican presidential candidate came right out and made his views of the 1% vs. 99% clearly known? Yet at least a goodly portion of the 99% support the Republican nonsense, support gutting their own Social Security, support letting bankster criminals in civil and government jobs walk despite clear violations of law and fair play, support misogynistic talk show entertainers, support removing the seperation of religion and state, and on and on. How did we get here?
Lotteries! Yes, people, what used to be illegal, run by the Mafia in big cities and known simply as the “Numbers Game”, what once was the bane of Vice Squad officers in every big city, is now the law of the land. Common folks think their three-dollar lottery ticket gives them a real chance at being the next muti-millionairs member of the 1%. So, they don’t reallly want to make the 1% pay for their sins, it would be like cutting off their nose to spite their face, them being up and coming billionaires themselves.
Years ago it was Unions who caused the shift from Dem to Republican – auto workers making fifty grand thought they were the new upper class because they had two new cars and health insurance (both subsidized by their employer)and a boat and a nice fat mortgage. So they voted Republican, to their own eventual detriment, and see where that got them, his name is Scott Walker and his clones; even Obama is not far left of the most-est right-ist Repub. Our two-term president serves (and has been serving) Wall Street as well as Ronnie Reagan ever thought to.
Face it Americans, when people, with loud and angry rhetoric, work and vote against their own interest, and the incredibly rich 1% owns and writes the rules and laws, and owns the lower mid and upper courts, both houses of congress, and the President, we have nothing left of our country’s once-bright future except, ahem, toil sweat and tears. But our toil serves the 1%, our sweat is something the 1% does not understand, and our tears are wasted on the wrong people, shed for the wrong reasons.
It’s about time we had another good war, dontcha think? Iraq is over, Afganistan is going away. After the longest ‘war’ in our nation’s history, our soldiers leave the field as we found it, a backward stone age culture full of feuds and fighting and a culture inimical to women and children, and dangerous or deadly for anyone who does not channel whatever mullah has the most lethal supporters at any particular time and place.
I am embarrassed to hand this country over to my grandchildren. It is, I think, beyond saving, without a revolutionary new something or other to even the playing field for the 99%, and to put some of the 1% in the jails they so reichly (sic) deserve.
@Brad Friedman. You can spin all you want. Red Lion was about a journalist (Fred J. Cook) doing a hit piece on Presidential candidate Barry Goldwater in print. Then a radio station did an “editorial” to counter his hit piece and he sued to get time on their station. Then in the “California League of Women Voters” along with Democratic Congressman Henry Waxman sued the FCC to put biased programming on “Public Radio”. Not commercial radio but “Public Radio”. They won which made the FCC reconsider its stance on the “Fairness Doctrine” Then when a radio station exercised its right to editorialize it’s right to “editorialize” a constitutional right guaranteed by the constitution an upheld by the California League of Women Voters the left then wanted censorship again in Meredith Corp. v. FCC. I guess the real question is why does the left only believe in freedom of the press when it suits their agenda>
Marshall Keith @ 12:
You are hilarious, dude! I “can spin all” I “want”?!
You called the CA League of Women Voters a “leftist” group. You described the attempts by non-Rightwingers to have access to the public airwaves an attempt “to put biased programming on ‘Public Radio'”, an article about Goldwater a “hit piece”, and the League of Women voters attempting “censorship”.
As I said, you are not even close to a serious person. But keep choking that Rightwing chicken, my friend! We’d hate to have access for all over our public airwaves. Especially when you wingnuts need to keep using government largess/welfare to try and help you win elections with an unfair advantage over those public airwaves.
Don’t worry, I’ll keep fighting for for rights and freedom for all, even as you, clearly, don’t give a shit about ’em.
@Brad Friedman. Given your ad hominem, class warfare etc etc etc. I’m surprised that anyone takes your blog serious. A simple look at the California League of Woman Voters issues bares out the fact that they are a leftist organization.
Your comment “But keep choking that Rightwing chicken, my friend!” shows that it is you that shouldn’t be taken serious. I am a Libertarian who actually believe in the “classic liberalism” of the founders and the limited government that they founded. The fact that both your blog and mine exist shows that no ones freedom of speech is being infringed. If you believe in true freedom of speech why would you call on restrictions of on media that is not imposed on all. Here’s a friendly reminder of the first amendment.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
Actually, I think Marshall is right on the left-leaning CA LWV (see his link @ 14), and more power to them!
They support such hugely controversial measures as public education, right to know what toxic chemicals the frackers use, reducing the threat of war, reducing gun violence, a decent existence for all, reproductive choice for women, climate awareness and action, y’know, all that awful Lefty stuff!
Thanks, Marshall, for bringing it to my attention. I’m glad to know the right wingnuts haven’t totally overrun the earth.
Marshall Keith kept choking the chicken @ 14 with:
“Class warfare”? Really? Where did I engage in “class warfare”? (Not that I’m against doing so, just that you appear to have completely pulled that charge, similar to your other arguments, straight out of your ass.)
Are you such a dyed-in-the-wool rightwinger that you can’t possibly debate anything with anybody without making up strawmen? Have you ever had a legitimate discussion with anybody about anything? Given your complete failure to debate the actual merits of this case — repeatedly — I suspect the answer is pretty clear to anybody following along.
Wait. You’re saying you’re not a rightwinger, cause you’re a “Libertarian”? (I suspect one that became so embarrassed by the Bush administration that you decided to call yourself a Libertarian sometime around 2009.) And, btw, since I believe in what the founders founded as well, I guess I’m a Rightwinger too?
That, of course, has absolutely nothing whatsoever to do with the corporate takeover of our public airwaves and the FCC’s woeful failure to do their job. But, you seem to have difficulty offering more than a sentence or two without launching a new strawman, so that’s a nice new one!
Do you really not understand how the very limited public airwaves are supposed to work? Or is your belief that the fictional entity with the most money gets the most “speech”?
I am going to try one more time, to help you understand what I suspect you already know, but are required to pretend to not understand. If the government gave the contract to manage our national parks to a Democratic-leaning company, and that company then allowed only registered Democrats to visit those parks, you’d be cool with that? Why wouldn’t you be? Republicans can sleep anywhere else they want? And, besides, you and I each have blogs! (Or whatever ridiculous argument you’re offering.)
You getting this yet? If you had a problem with the above, and wanted registered Republicans (or Libertarians) to be allowed to visit the national parks as well, wouldn’t think me a complete jackass if I responded to you by saying: “You just want to make sure Democrats never get to visit any national parks! Why are you trying to restrict liberals from visiting Yellowstone?”
Yes, it’s all absurd. But such is your ridiculous case defending the indefensible when it comes to our public airwaves being used to help Republicans get elected without Democrats or the like enjoying similar access to those airwaves…even when they’ve repeatedly, and politely requested it (and when the FCC and the courts have all found long ago that they should have such access)?
Instead, you continue to choke the wingnut chicken that someone — whether Sue or MAC or myself — is hoping to “restrict” or “silence” anybody.
Simply because you are incapable of arguing the actual facts of the case — that if one candidate and/or their supporters get to use the public airwaves, so should the opposing candidate(s) and/or supporters — demonstrates that you are, with all due respect, either a clown or a wingnut operative here to keep blowing smoke. Either way, it makes you a non-serious person who has already used far more of my time than you have merited.
You’re welcome.
Lora said @ 15:
But, of course, Marshall didn’t claim they were “left-leaning”. He claimed they were “leftists”, which is dog-whistle in Marshall’s Fox “News” world for “socialist”, which is dog-whistle for “communist”, which is dog-whistle for “Marxist”, which is dog-whistle for “de-humanize them as anti-patriotic, so I can delegitimize them, rather than respond to their actual argument”.
Had he said “left-leaning”, I might not have said a word, even though the vast majority of items on that list of issues from the non-partisan LWV, are right down the center, as well as wildly popular to the majority of Americans.
That is, right down the center to everyone but those who, after years of a failed Republican “Presidency” have decided to call themselves “Libertarian”.
Newsflash @Brad Friedman, I have been a Libertarian since the early 80s. I stood with the left against the patriot act. Which you people opposed until Obama started using it. Again you ignore the supreme court ruling that as brought about by the law suit by the league of women voters. The ruling guarantees the right to editorialize which is exactly what talk radio is. From the ruling.
The bottom line is that leftist like you and Sue are pushing sour grapes because of the popularity of “Right Wing” talk radio as opposed to the unpopularity of “left wing” talk radio and demand that the listeners of the stations be forced to listen to your views. If they wanted to they could simply tune in one of your stations or listen to the podcast or live steaming on the internet. The fact that all of the programming is available on the internet renders the claims of scarcity obsolete.
Newsflash @Marshall Keith:
Proving once again you can’t go more than two sentences into an argument on anything without pulling something completely out of your ass.
So, as the MAC complaint stated, when the two different corporations using public largess to get their message to the people began recruiting volunteers for the Republican campaign (and only the Republican campaign), you consider that simply “editorializing”. Seriously?
And the SCOTUS ruling which guarantees that right, only guarantees it to the corporations who had enough money to take control of a public radio license? Really?
If that was all we were talking about, of course, you wouldn’t have had to go on and on about “leftists” and attempts to “restrict free speech”, and so forther. But that’s never been why you advocate for restricting the free speech of everyone but the corporate interests you believe should have exclusive access to our public airwaves.
And, there we have it again. I guess, by that math, you must be a fascist tyrant to the far, far Right of Attilla the Hun. But intellectual honesty is of little interest to wingnut operatives such as yourself, it seems.
Well done! Yet another point that has absolutely nothing to do with the discussion at hand. You’re quite a piece of work, Marshall.
As mentioned previously, we’ll keep fighting for the rights of the people, even as you apparently couldn’t give a shit about them. And again, you’re welcome. Keep up the pathetic work, amigo! (Though it’s getting really, really boring.)
Brad @ 17,
Thanks for the distinctions. Language matters.
L.
Ah yes more class warfare. Those evil corporations. Of course what is a corporation but a group of people with a common cause. In the case of broadcast radio that cause is to make money. There are both left wing talk stations and right wing stations and each has their own following and target audience. The sour grapes from the left is quit laughable. The fact is “progressive radio” is not popular and what you demand is that an audience that does not want to listen to you, LISTEN TO YOU. This is not about freedom of speech, you have that. It is all about forcing those who choose not to listen to you by virtue of what station they listen to to hear your message. That’s not freedom of speech it is a demand for compelled speech on a station you don’t own. Of course we see the same fascistic tactics in many forms from the left.
Another disturbing event happened recently – Sean Hannity installed as guest host a candidate running for congress, Dan Bongino. He allowed Mr. Bongino to host for the entirety of the program – and it was carried on all the MD affiliates. How does Equal Time apply here? Three hours a day for a candidate somehow doesn’t allow equal response from his opponent?
Chris Stevens if that is true then his opponent can demand equal time. The equal time rule does apply to candidates. That has always been it’s intent.