Saturday, May 19, 2012

WTMJ, WISN In Violation Of Federal Law

Last year, I introduced you to Sue Wilson, a one-woman dynamo leading the charge for us to reclaim our airwaves. She came to Wisconsin and showed us how it was done with the airing of her documentary Broadcast Blues. The show was a real eye opener and very informative, especially when it came to the Zapple Doctrine:
What remains unknown about yesterday's announcement from the Chairman is just how far this repeal goes. While certain corollaries of the Doctrine - including the political editorializing and personal attack rules - have been specifically mentioned in press reports as being repealed, the one vestige of the doctrine that potentially has some vitality - the Zapple Doctrine compelling a station to provide time to the supporters of one candidate if the station provides time to the supporters of another candidate in a political race, has never specifically been abolished, and is not mentioned in the Chairman's statement. Zapple, also known as "quasi-equal opportunities", has been argued in in various recent controversies, including in connection with the Swift Boat attacks on John Kerry, when Kerry supporters claimed that they should get equal time to respond should certain television stations air the anti-Kerry Swift Boat "documentary." We have written about Zapple many times (see, for instance, here, in connection with the Citizens United decision). What would be beneficial to broadcasters would be a determination as to whether Zapple has any remaining vitality, as some have felt that this doctrine is justified independent of the Fairness Doctrine. Perhaps that clarification will come when the full text of the FCC action is released.
Well, let me tell you, that was no the end of Sue Wilson's involvement with Wisconsin or her fight to reclaim the airwaves for the people.

Sue has been helping a group of us monitor the airwaves here in Milwaukee. On Tuesday, she will be holding a press conference regarding our findings. Sue writes about it here, and here is most of it:
Any time progressives try to get their views out over the radio, Conservative Talkers squawk that they are jeopardizing their rights of Free Speech. I agree radio talkers have their rights. But so do We the People, and it is time we stand up for them. Right now. Especially in the middle of an election like the Walker recall, where the law says BOTH major politcal party supporters are entitled to comparable airtime.

Most people don't know that we have special rights when it comes to local radio and TV, but we do. Despite what Big corporate media tells us again and again, Broadcasting operates under unique rules designed to protect the public interest. Let me explain why Broadcasting enjoys special treatment in the name of the public.

Newspapers are private enterprise: anyone with enough capital can start a newspaper and write what they will. Cable TV is also private enterprise: when people write a check to Comcast or Direct TV, they pay private contractors, via cable or satellite, to bring programs from Playboy to Disney into their homes.

But broadcasting, local radio and TV, is a public/private partnership: the public owns the airwaves needed for transmission; private business own the buildings, equipment, etc. needed to broadcast programming. When private business goes into broadcasting, it makes a deal with the public: a free license from the Federal Communication Commission - if it agrees to "serve the public interest, convenience, and necessity."

Broadcasting also differs from newspapers and cable in that the number of frequencies available in one community are few, so only a limited number of local stations are possible. Physical scarcity is the foundation of all broadcast law.

Then there's the concept of "private censorship." Because of the physical scarcity of frequencies, the Courts say big corporations who are licensed to broadcast over our airwaves have no right to prevent people of the community access to being heard on the radio.

There are two radio markets in the U.S. I've been closely watching which highlight these concepts of physical scarcity and private censorship. One is Milwaukee, Wisconsin, where five local Conservative Talk Radio hosts dominate 100,000 watts of radio power, (and to whom Republicans like Alberta Darling credit their political victories.)

The other is my adopted hometown, Sacramento, where Clear Channel Communications broadcasts about 190 hours per week of national one-sided political talk over three giant stations, KFBK-AM, KGBY-FM and AMFM Holding's KSTE-AM Clear Channel management disputed that number at a recent meeting with Media Action Center, Sacramento Media Group, and Occupy Sacramento. But (now former) Clear Channel GM Jeff Holden told us he is very comfortable airing only one-sided political talk on three giant stations - during an election year.

But what Holden may or may not have known is that, in the 60 days prior to an election, if broadcasters sell or give time to one major political party candidate or its supporters, they must, by law, offer comparable time to the opposing major political party candidate or its supporters. (See Section 315a of the Communications Act and the Zapple Doctrine.)

The Media Action Center has been monitoring talk radio stations owned by Clear Channel and Journal Communications in Milwaukee since May 9th, the first day of the Walker/Barrett campaign in Wisconsin. We will release detailed results of that monitoring May 22nd, but suffice it to say that supporters of one major political party are getting short shrift, and they have been complaining to the Talk stations demanding equal time, and they will soon be complaining – loudly – to the Federal Communications Commission to immediately enforce comparable time laws under Zapple. (The FCC is the law enforcement agency on broadcasting issues.)

But those Talk Radio giants are also violating the First Amendment rights of supporters of candidates whom they are not allowed to be heard in the midst of the election. "Private censorship" comes down to a matter of access, says the Supreme Court of the United States.

In Red Lion Broadcasting v. FCC, 1969, the Supreme Court made two key rulings: "the First Amendment is relevant to broadcasting, but it is the right of the viewer and listener, not the broadcaster, which is paramount." And, “the First Amendment does not protect private censorship by broadcasters who are licensed by the Government to use a scarce resource which is denied to others.”

The giants have argued against this in court, but to no avail. In 2011, Clear Channel lawyers argued that given the internet, the concept of physical scarcity was no longer needed. The U.S.Third Circuit Court of Appeals shot them down: "The abundance of non-broadcast media does not render the broadcast spectrum any less scarce. The Supreme Court's justification for the scarcity doctrine remains as true today as it was in 2004 --- indeed, in 1975 --- many more people would like to access the [broadcast spectrum] than can be accommodated."

The imbalance we are seeing on the publicly owned airwaves in Milwaukee and Sacramento and elsewhere proves that broadcasters are stamping out the First Amendment rights of liberals and the rest of us, not the other way around, as right wing talkers in every corner of the country would have us believe. Yes, it is censorship for the government to tell hosts what they may or may not say. But when Clear Channel and other radio license holders put one political point of view on our public airwaves to the exclusion of all others, that is private censorship, and lucky for us and the people of Wisconsin, in the 60 days before an an election, that is illegal.
While we're reclaiming Wisconsin, let's reclaim it all back, including our airwaves!

Cross posted at Whallah!


  1. oh and the crybabies are at it again. If the left had a message people wanted to hear they would have their own shows, but time after time they have tried and failed. Stop whining about being shut out, it is not the radio stations faults it is your fault for not having a message. Go get some Bounty Paper Towels made from the Kock Brothers companies that employee thousand of Wisconsin workers and dry your eyes.

    1. and we're tired of the same wah wah from you. if the tables were turned would you be so condescending? this is about everyone's rights, blowhard. what you can't see thru your GOP tinted glasses is you don't matter unless you have $$$$ and lots of it.

    2. you said the truth but the crybabies don't have a message that isn't lies if the people don't support them you think they would get the message.

    3. Actually, studies have shown that liberal radio outperforms conservative squawk on a watt-to-watt comparison. The only reason they aren't more prevalent is that Corporate America won't allow them on the larger stations.

    4. Really? Please, indulge us with links to these "studies." Having access to "studies" called "Arbitron ratings," I can tell you that the reason Air America failed is because its ratings were horrible. Its best stations were in Portland and Madison - and AA was only able to garner 3.7 and 3.5 shares (respectively) for its best books in those two extremely progressive markets.

    5. If you truly had "access" to this, and were honest, you would know that in many "same markets" thom hartman beats his right wing counterparts and so does Ed Schultz. This despite the fact that the righties get major promotion and bigger airwaves.

      The country is clamoring for good porgressive talk and the owners of the airwaves are resisting....

    6. You'll have to buy your own copy of "Broadcast Blues."

  2. I can't see why anyone would vote for Walker with the huge political favors his will owe the Koch Brothers, Texas millionaire and other out of state fundeds. Welcome to Wisconsin, owned by millionares. Frightening.

    1. Owned by millionares! Owned by millionares from states other than Wisconsin. I really wanted to see Paul Ryan loose his congressional seat too. I will just be back in there fighting again. canvassing, knocking on doors and ringing the my friends and getting out the vote. here on 26th and Wisconsin Ave. My neighbors vote. The Koch's do not vote in the Badger State!

      Mayor Barrett used act 10 against his own union affiliated people and went along with Arne Duncan's screwy education ideas like race to the top. Thats why there were so many critical City of Milwaukee union and teachers that did not vote for him in the recall election.

      David F. from the west side.

  3. The other side was the same one that wasn't going to pull off the recall signatures - remember that? And now we approaching the eve of a recall elections. Fancy that! We all have voices and it certainly isn't our intention to shut Sykes, Wagner and Belling down only to add a balanced view. those who disagree with them are screened out by the producers. Big egos and ratings anyone?