Wisconsin Recall Spurs Question of “Equal Time” on Milwaukee News/Talk Outlets

| June 4, 2012

By Steven J. J. Weisman
TALKERS MAGAZINE
Legal Editor

BOSTON – With the national political season really heating up now that Mitt Romney has secured sufficient votes to win the Republican nomination for president, a Milwaukee talk radio controversy may have far-reaching implications into the media’s role in the upcoming elections at all levels around the country.

Sue Wilson of the organization Media Action Center has complained to the FCC that five conservative local talk hosts on Milwaukee news/talk stations WISN (Clear Channel) and WTMJ (Journal Broadcasting) have been providing time to and actively promoting Republican candidates, including recruiting volunteers for Republican Governor Scott Walker who faces a recall election tomorrow (6/5).

The crux of the complaint is that Section 315 (a) of the Communications Act of 1934 (47 USC Section 315) sometimes, referred to as the “Zapple Doctrine,” requires that in the 60 days prior to an election if broadcasters provide free airtime to a candidate, it must offer free time to other candidates. This has been interpreted to be expanded to apply to supporters of candidates, as well.

In 1959 Congress amended the Communications Act to provide four exemptions to the equal time rule. These exemptions are:

  1. Regularly scheduled newscasts;
  2. News interview programs;
  3. Documentaries so long as it is not a documentary about a particular candidate;
  4. On-the-spot news events.

These exceptions were created out of a recognition that incumbent candidates, as present office holders, would generally be involved with more news coverage than non-incumbent opposing candidates. Congress also believed that it was in the public interest to provide television and radio stations with some flexibility and freedom in their coverage of candidates and elections without having to be concerned that any air time provided to a story or discussion about a candidate would lead to equal time requirements.

So the question becomes whether or not most talk radio shows come under any of these exceptions. Certainly talk radio shows would not generally qualify as regularly scheduled newscasts, documentaries or on-the-spot news events. So the question becomes, do the shows qualify as news interview programs? The FCC has taken a broad interpretation of the term “news interview program” recognizing that the public gets its “news” from sources that would not previously have been considered to be conventional “news interview programs.” The unwritten standard appears to be that shows where the station and host have the ultimate control over the questions asked during the program can meet the standard of “news interview programs.” Using this standard, the FCC has granted the exception to such diverse shows as “The Phil Donahue Show,” “Good Morning America,” “Politically Incorrect,” “Sally Jessy Raphael,” “Geraldo” and even both “The Howard Stern Show” and “The Jerry Springer Show.”

It would seem then that where the particular show and station used its own discretion to choose the guest on a show and where at least some of the time during its regular programming provided discussions of political matters, the show would come within the “news interview program” exception. However, if it can be proved as alleged by Sue Wilson and the Media Action Center that these Milwaukee radio stations consistently only interviewed or promoted a single candidate without ever providing air time to his opponent, it is not only possible, but likely that the FCC would not apply the exception and would require equal time for the other candidates.

The FCC rules on this matter may have a significant effect on the upcoming Fall national and state elections.

 

Steven J.J. Weisman, a practicing attorney, is a senior partner in the talent management firm Harrison Strategies, LLC. He is also legal editor for TALKERS magazine. He can be e-mailed at: stevenjjweisman@aol.com.

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Category: Legal