What Fairness Doctrine, again ? lost it.....

No Candidate, No Fairness Doctrine and No Equal Time

Broadcast Law - 27 July, 2008 - 19:38

[reposted here from http://pacificana.org/ ]

The New York Times ran an article about how certain African-American radio hosts were acting as cheerleaders for the Obama campaign, and contrasting that to past elections where talk radio hosts like Rush Limbaugh gave a boost to Republican candidates on their programs. How is it that these programs can take political positions without triggering requirements that opposing candidates get equal time? Under FCC rules, unless a candidate' recognizable voice or image is broadcast by a station, there is no right to equal opportunities. In the past, until the FCC abolished the Fairness Doctrine by declaring it to be unconstitutional, even without a candidate appearance, the station would have had an obligation to give both sides of a controversial issue of public importance, such as an election, free time to respond to on-air statements by an announcer. When the doctrine was abolished, stations were free to air pointed programs taking positions on issues, giving rise initially principally to the conservative commentators, and more recently to their more liberal counterparts such as those heard on Air America radio.

The abolition of the Fairness Doctrine also allowed broadcasters to editorialize, even endorsing candidates for political office without having to give the opponent of their favored candidate equal time, just like print media can do. Similarly, a station can take a position on a ballot issue, or on another controversial issue of public importance in their communities without having to provide time to those with opposing viewpoints - allowing stations to fully participate in their communities political life. Under the Fairness Doctrine, stations even had to give time to those with viewpoints opposed to parties who bought time on a controversial issue if the opponents could not themselves afford to buy time. The occasional discussion of reviving the Fairness Doctrine ignores these issues.

The one aspect of the Fairness Doctrine that has never been officially abolished is the Zapple Doctrine, a rule that required that supporters of a major-party candidate be able to get time to respond to broadcasts by supporters of the opponent, effectively "quasi-equal opportunities." The doctrine was argued by supporters of John Kerry in their request for equal time when Sinclair Broadcasting threatened to run the Swift Boat "documentary" during the 2004 Presidential election. Perhaps fearing that the Zapple Doctrine had continuing validity (or perhaps fearing bad publicity), the film was never run in its entirety, so no decision was released as to whether the Zapple Doctrine had continuing validity after the abolition of the Fairness Doctrine. Presumably, this policy, even if still valid, would not be applied to talk shows, as the statements of talk show hosts, while certainly biased and pointed in one political direction or another, rarely state outright "go vote for candidate X." Of course, any application of the Zapple Doctrine, or any reinstatement of the Fairness Doctrine, would no doubt bring about a constitutional challenge to the regulatory scheme. Given the recent deference of Courts to the First Amendment rights of broadcasters, supporters of the reinstatement of the Fairness Doctrine should get the message.