May 23, 2012
Mark Berlin, Policy Division (Political Office)
Federal Communications Commission
445 12th Street SW, Washington, DC 20554
sent via email to firstname.lastname@example.org
Dear Mr. Berlin,
June 5th, the election commonly known as the Scott Walker Recall will be held in Wisconsin. (The official campaign began May 9th.) This is an urgent complaint for the failure of Milwaukee radio stations WISN and WTMJ to comply with the Zapple Doctrine. As we are more than halfway through this campaign period, time is of the essence in your reply.
I represent a group of citizens of the greater Milwaukee, Wisconsin, area, and am writing this complaint on their behalf. I am a former Radio and TV journalist, media reform filmmaker, and founder of the Media Action Center. I am not an attorney, and while I am including all documentation I believe relevant, I ask that, should there be technical issues with this complaint, like you requiring legal affidavits or other precise legal issues or terminology, you please contact me and I will provide such information in a timely manner, rather than dismissing this complaint for technical reasons.
Starting May 9th, the first day of what has become known as the Scott Walker recall campaign, members of the Media Action Center Wisconsin monitored the five local Talk Radio programs aired in prime day parts in the Milwaukee radio market.
The shows include those hosted by Mark Belling, Vicki McKenna, and Jay Weber on WISN, the 50,000 watt radio station licensed to Clear Channel, and Charlie Sykes and Jeff Wagner on WTMJ, the 50,000 watt radio station licensed to Journal Communications. Both stations are called "News Talk" by their corporate owners. Both reach far beyond the city of their license, into most of the state of Wisconsin and beyond.
Five separate monitors recorded and timed statements made on each of the five programs. They counted how many minutes per show have been either clearly pro-Scott Walker and Anti-Tom Barrett, how many minutes have been anti-Scott Walker and pro-Barrett, and how many minutes have been pro-GOP and anti Democrat in general, and how many were pro-Democrat and anti-GOP. They also monitored statements made about the candidates for Lieutenant Governor and the State Senate. These will be tabulated in the final tally, but are statistically small; statements about the Governors race and parties in general, however, are frequent, so this report will focus on those.
The monitors were instructed to count only those statements which could be clearly identified as pro- or anti- one candidate or party.
“Governor Walker is going to be on the show. Yay! My governor is a Jedi.”
Tom Barrett is an idiot. Tom Barrett is a racist.
“when good people come forward to run for office the Democrats put a hit squad out on them.” “Literally.”
(The following statistics are compiled from shows that aired between May 9th through May 17th. We are still compiling more recent data, but find it to be following the same trend as this data suggests.)
1) Time each licensee is devoting to specifically promoting each major political party and its candidates prior to the June 5th election.
Findings: (5-9 through 5-17 only)
Pro Walker/ anti Barrett
daily average 60 mins
Pro GOP/ Anti Dem
daily average 20 mins
daily average: 55 seconds
daily average: 55 seconds
ProWalker/Anti Barrett total:
daily average 49 minutes
Pro GOP/ Anti Dem total
Daily average 39 minutes
Pro Barrett Anti/Walker total
Pro Dem / Anti GOP total
Daily average 2 minutes
Based on the first seven days of the recall campaign, we are finding that WISN is airing an average of about 80 minutes, and WTMJ about 88 minutes, per day of Pro-Walker/ anti-Barrett and pro-GOP anti-Democrat messages. On the pro- Barrett side, we have identified a total of just six and one-half minutes of pro-Barrett messaging over the seven days on WISN, and 13 and a half minutes of pro-Democratic messaging on WTMJ.
Considering that the programs monitored air for more than 15 hours daily, this represents a small percentage of total airtime.
However, should one wish to purchase that much time during a campaign, the cost would be quite high. It is difficult to precisely say how many dollars such airtime would cost, as stations charge lower rates to candidates than they do to supporters of candidates, and they charge different rates to various supporters. Stations also are reluctant to release what they consider proprietary information. Based on inspections of the political files our team conducted of public files at WISN and WTMJ, we can say that one radio advertising spot costs roughly $100 to $200, depending on the length and the time of airing, which means that WISN is giving Walker and his GOP supporters between $16,000 - $32,000 in free airtime every day, and WTMJ is giving Walker and his GOP supporters between $18,000 to $36,000 in free time daily.
Most of the time has been given to supporters of Candidate Walker, although the candidate himself has appeared as a guest on six programs since the race began May 9th.
2) Imbalance in coverage offered to each political party and their candidates.
Based on the data noted above, WISN and WTMJ are clearly both giving GOP candidates and supporters more than an hour of daily free time on their licensed stations, while giving Democratic candidates and their supporters almost none.
In addition, the cadre of guests booked on the five programs shows a clear imbalance.
The three programs aired on WISN, Belling, McKenna and Weber, booked fourteen guests over first eight days of monitoring. Of the fourteen, only one, J.R. Ross, can be considered independent analysts. The rest are either Republican candidates, GOP political appointees, or Republican party appointees, campaign heads, or current officeholders.
On WTMJ, seven guests appeared on the two shows over the eight days. Of the seven, only one, Christian Schneider, may be considered an independent analyst. The rest are either Republican candidates, GOP political appointees, or Republican party appointees, campaign heads, or current officeholders.
Current candidates as guests within the first eight days of the campaign:
GOP Governor and candidate Scott Walker appeared on all three of WISN's programs: once on Belling, twice on McKenna, and once on Jay Weber. GOP Lt Gov. and candidate Rebecca Kleefish appeared once on Belling and once on McKenna. GOP Candidate Sen. Van Wangaard appeared once on McKenna.
In addition, GOP Senatorial candidate Eric Hovde appeared as a supporter of Scott Walker twice on WISN, once on the Belling program, once on the McKenna show.
GOP Governor Scott Walker appeared three times on the Sykes show. Eric Hovde also appeared once on WTMJ's Sykes show. As Hovde's election will be held in November, his appearance as a candidate is outside the sixty day prior to elections rule. His appearance as a supporter of Walker, however, is significant and should apply to Zapple.
Section 315 (a) of the Communications Act provides for equal opportunities for major party candidates should their opponent be given or sold time. The opposing candidates have seven days from the date of a broadcast to make such a request.
This author is unaware whether Democratic candidate for Governor Tom Barrett or candidate for Lt. Governor Mahlon Mitchell made such requests or whether the stations made opportunities available to Democratic candidates. This author does not represent any candidates.
Supporters of Candidates guesting on programs:
GOP Rep Robin Voss appeared once on the Belling program, and once on the Weber program. Brian Schimming , Vice Chair WI GOP is a regular guest on the McKenna show, appearing four times over eight days. GOP Rep. Bill Kramer and GOP State Senator Glenn Grothman each appeared once on McKenna. GOP Milwaukee City Alderman Bob Donavan appeared once on the Weber program. GOP State Senator Ron Johnson appeared once on the Weber program, and GOP State Senator Alberta Darling appeared once on the Weber programs. Walker political appointee Stephanie Klett appeared once on the McKenna show.
On WTMJ, GOP Rep. Robin Vos appeared once on Sykes, as did Walker political appointee Cathy Stepp, and GOP Milwaukee City Alderman Bob Donavan. GOP State Senator Alberta Darling appeared once on Wagner's show.
All these guests were clearly supporters of Scott Wallker and/or the other GOP candidates.
Under the quasi-equal opportunities doctrine, in the 60 days prior to an election, stations must provide comparable time for supporters of the opposing party if they so request it within seven days of a given broadcast.
Supporters of Tom Barrett did make such requests; WTMJ denied them comparable time; WISN has not responded to any requests.
3) What is the quasi-equal opportunities rule?
Section 315 (a) of the Communications Act imposes Equal Opportunities for candidates on broadcast stations.
Section 315 [47 U.S.C. §315] Facilities for candidates for public office.
"(a) If any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station: Provided, That such licensee shall have no power of censorship over the material broadcast under the provision of this section. No obligation is hereby imposed under this subsection upon any licensee to allow the use of its station by any such candidate. Appearance by a legally qualified candidate on any –
(1) bona fide newscast,
(2) bona fide news interview,
(3) bona fide news documentary (if the appearance of the candidate is incidental to the presentation of the subject or subjects covered by the news documentary), or
(4) on-the-spot coverage of bona fide news events (including but not limited to political conventions and activities incidental thereto),
shall not be deemed to be use of a broadcasting station within the meaning of this subsection. Nothing in the foregoing sentence shall be construed as relieving broadcasters, in connection with the presentation of newscasts, news interviews, news documentaries, and on-the-spot coverage of news events, from the obligation imposed upon them under this Act to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views of issues of public importance."
The Zapple Doctrine, from 1970, ruled on Nicholas Zapple's questions about requiring comparable time not just for candidates themselves, but to supporters of candidates. Commonly known as the quasi-equal opportunities rule, this applies only to supporters of major party candidates. Attorneys for broadcasters have interpreted Zapple to mean that if supporters of one political party receives free time, supporters of the other political party must also receive free time.
It is relevant to note that the Wisconsin Broadcasters' Association Political Manual, 2008, (http://www.gklaw.com/resources/documents/2008%20Political%20Broadcasting%20Manual.pdf ) pages five and six, specifically tells its Wisconsin radio and TV stations to comply with the quasi-equal opportunities rule:
"In addition to the equal opportunities rule, there is also a concept known as the 'Quasi-equal opportunities' doctrine. When a station sells time to supporters of one candidate to support that candidate or to criticize an opponent, the broadcaster must afford comparable time to supporters of the candidate's opponent. Nicholas Zapple, 23 FCC 2d 707 (1970) Commonly known as the 'Zapple Doctrine,' this requirement does not apply outside campaign periods or to appearances by a candidate's supporters that are exempt from the equal opportunity rule, such as those in news programming.
The Zapple doctrine applies only to broadcasts concerning major party candidates 1st Fairness Report, 36 FCC 2d 40 (1972). It does not require that free time be given to the opposing side when the first side paid for its broadcast time, nor is time sold to supporters under the Zapple doctrine subject to lowest unit charge requirements. If the first side received free time, the Zapple doctrine requires that the other side also receive free time."
The Zapple Doctrine decision refers to both the Fairness Doctrine and to section 315 of the Communications Act. Since the Fairness Doctrine was abolished in 1987, and formally buried in 2011, there is a question as to whether the Zapple Doctrine is still intact. A full discussion of why Zapple is relevant absent the Fairness Doctrine will follow.
4) "Bonafide news"exemptions
The intent of Section 315 is clear: unless a radio or TV show is a "bonafide news" program, in the narrow period just preceding an election, equal opportunities for candidates must be afforded to candidates of both political parties.
According to the FCC, programs must meet three tests to be considered "bonafide news." The program must be regularly scheduled, producers must be in control of guests and content, and the program must be non-partisan, not supporting any candidates.
All five programs meet the requirements of being regularly scheduled and having producers in control of guests and content. The question remains whether the programs are non-partisan and not supporting candidates. The monitoring showed that on this test, all five programs failed, some more spectacularly than others.
As shown previously, the number and character or guests invited on the five programs were heavily tilted toward the GOP side.
As to whether the shows were non-partisan and not being used in support of any candidates, we have identified many examples of partisanship on all five programs.
Hosts and guests routinely identify themselves as supporters of Scott Walker and the GOP, they urge listeners to vote for Walker, and we have documented that three of the shows, those on Clear Channel's WISN, are actively using the publicly owned radio airwaves to recruit volunteers for Walker and the other GOP candidates.
McKenna tells listeners to volunteer for Sen. Wangaard
McKenna routinely refers to the Republican Party as “we,” not “they”
McKenna openly advertises tickets for the state Republican convention
Guest Schimming recruits volunteers for Walker
McKenna recruits volunteers for Walker, Sen. Wangaard, and Lt. Gov. Kleefisch.
“I know I’m partisan”
Praised all four republican senate candidates – “they would all be good”
“Scott Walker and we supporters of his”
Weber asks listeners to volunteer for Walker campaign, gives website to go to
“we need more volunteers to make those contact calls”
Said that he was going use his program for Conservatives to give their side of the story.
"If Bob Bowman is going to call up an talk while we are talking with Bob Donavan, we are not going to let him on. He had his shot. Bob Donavan will be able to make his point uninterrupted by Major Tom Barrett's lacky Aldermen Bob Bowman."
I have “genuine passion and support for the governor”
Because all five of the local Talk Radio programs on WISN and WTMJ in Milwaukee are showing political intent in their programming, they do not qualify as "bonafide news" programs.
5) News Distortion
The FCC also has clear rules against news distortion, so any program which is distorting facts in any way cannot be considered "bonafide news." Our monitoring team has found dozens of examples of factual inaccuracies in all five programs. Some examples:
Belling: Obama's stimulus "hasn't produced any gain in employment at all"
McKenna No Planned Parenthood in Wisconsin does cancer screenings.
Sykes: Walker got more votes than Democrats combined
Legally proving news distortion to the FCC involves proving station management knows that such misinformation is going out over the air. While we cannot prove that station management knew of every instance of factual distortion, given the large amount of such distortion, it is reasonable to assume the station management is willingly looking the other way. While radio program hosts have the first amendment right to lie to the public, if they willingly distorts facts, their shows must not be considered "bonafide news" programs.
6) Relevancy of the Zapple Doctrine in absence of the Fairness Doctrine
The Zapple Doctrine refers many times both to Section 315 (a) of the Communications Act, and to the application of the Fairness Doctrine.
The Fairness Doctrine, which required broadcasters to provide a reasonable opportunity for contrasting views, was abolished in 1987. It was unwieldy, difficult to enforce, and applied to all broadcast programs. (Norman Lear, for example, was sued under the Fairness Doctrine because his fictional character "Maude" had an abortion on a TV program. Opponents sued, saying the broadcaster must air a program where a character did not have an abortion.) Broadcasters complained that the Fairness Doctrine chilled free speech. The Commission ultimately decided that the Fairness Doctrine had the effect of reducing rather than enhancing speech, which they said did not serve the public interest as required by law, and abolished it.
Unlike the Fairness Doctrine, Zapple does not impose blanket rules on stations 365 days a year concerning issues or topics. It merely, in the critical 60 days prior to an election, provides that both major political parties have a comparable opportunity to express their own freedom of speech on our public airwaves, therefore keeping with the intent of the Communications Act to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views of issues of public importance, elements that remain the law today.The Personal Attack and Political Editorial rules were also related to the Fairness Doctrine. These rules are not now considered to not be in effect, although they were never formally repealed. The NAB and RTNDA sued to relinquish these rules, and asked the United States Court of Appeals for the D.C. Circuit to throw them out. The court sent the rules back to the FCC, giving the agency a chance to justify their existence. The FCC responded by suspending the rules for 60 days to gather new information. The court said the FCC had many opportunities over years to gather more facts and develop a legal justification for the rules. So the court threw the rules but because the FCC took too long to act to justify them - but not because they were found to be unconstitutional. Therefore, the FCC has the power to revive the rules in a new rulemaking proceeding.
The Personal Attack rule dealt specifically with broadcasters to give notice and free response time to individuals or groups whose "honesty, character or integrity" was attacked in a broadcast. Statements made by legally qualified candidates or their spokespersons during the course of a political campaign were exempted, as were bona fide news programs, which is precisely the intent of Section 315. The Personal Attack rule, like the Fairness Doctrine, was applicable year round, and dealt with narrow statements which could be challenged, thereby chilling free speech.
The narrow interpretation of Zapple is not to identify brief statements for challenge, but to give both major political parties access to the airwaves to make any attacks they wish during the course of an election, thereby enhancing speech.
In addition, as bonafide news programs were exempt, and as statements made by candidates and spokespersons during the course of a political campaign were also exempt, as in 315, and as Zapple deals only with the 60 days prior to a political campaign, the abolition of this rule has no bearing on Zapple.
The Political Editorial Rule required broadcasters endorsing or opposing a political candidate in an editorial to notify and give free rebuttal time to that candidate's political rival. Broadcasters said they were discouraged from airing editorials concerning political races, again chilling free speech. Broadcasters argued this rule prevented station ownership from exercising its free speech right to editorialize.
Zapple does not prevent stations from editorializing. If station management goes on the air promoting or opposing a candidate, saying "these are the views of this station," we do not argue that their station is in violation. Stations may argue that anytime one of their hosts go on the air, they are also representing the views of the station. We challenge this assertion. Station management does not typically know what their hosts will say on the air, so how can it sanction every candidate promotion made by a host? In addition, guests and callers clearly cannot represent station viewpoints, as they are not employed by the stations.
In short, the Zapple Doctrine differs from the Fairness Doctrine and the Personal Attack Rule and the Political Editorial rules. Zapple seeks to enhance free speech, and guards against reducing it, in the critical 60 day period before an election.
The Zapple decision says "when supporters of candidate A have purchased time, it is our view that it would be inappropriate to require licensees to in effect subsidize the campaign of an opposing candidate by providing candidate B's supporters with free time." We agree with this logic. However, our data indicates that WISN and WTMJ are each giving one major political party time valued between $16,000 to $36,000 every day, and virtually nothing to the opposing party. These stations are clearly subsidizing one party's candidates over the other, grossly violating the intent of Section 315.
315 also makes clear broadcasters' responsibilities to "operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views of issues of public importance." So although the Fairness Doctrine is gone, broadcasters' responsibility to the public interest is the law of the land. It cannot be argued that such extreme political imbalance in the days just prior to an election is serving the interest of the public in Wisconsin.
7) Effects of Media Consolidation
When the Communications Act was written, when Zapple was adopted, no one could have foreseen the rise of Talk Radio, which was created by unlimited radio ownership limits provided by the 1996 Telecommunications Act.
All the Talk Radio in Milwaukee is "Conservative," following a national trend. According to the 2007 Free Press/ Center for American Progress report, "The Structural Imbalance of Political Talk Radio, (http://www.freepress.net/files/talk_radio.pdf) more than 90% of communities across the country have no access to any commercial radio which is not "Conservative."
WISN and WTMJ are self described "Conservative" Talk radio stations. There are no self-described "Progressive" or "Liberal" Talk radio stations in Milwaukee, despite the communities' continuing requests to Clear Channel (which owns six stations there) to provide one. There is only one self described "progressive" station in the entire state of Wisconsin, in Madison.
While the FCC cannot change ownership rules, it must balance the intent of Section 315 and Zapple with the needs of individual communities like Milwaukee which have no other radio source of daily political information during political campaigns other than the "Conservative" Talk stations to get complete and balanced political coverage. WISN's signal reaches 200 miles from its station, and WTMJ's signal reaches 300 miles from its station, so people in communities all across Wisconsin have no options for "NewsTalk" on their radio dials other than these two stations. Their ability to influence voters reaches far beyond their community of license. In contrast, the lonely progressive station in Madison only reaches 40 miles. Madison also has a 2,000 watt Community radio station which also reaches about 40 miles. (NPR stations are found in Wisconsin, and provide very small amounts of balanced local political information, in between national programs which cover the rise of the ant population in the Sub Sahara and the like.)
This is especially important during a statewide election like the Scott Walker recall. Because there are no viable alternatives for people in Wisconsin to turn to on their radio dials, this makes the intent of 315 and its relationship to Zapple during campaign periods even more relevant.
Therefore, part of what the Commissioners must consider is what is known as "physical scarcity" in broadcasting.
Because there are only a limited number of frequencies available for broadcast in one community, they are considered physically scarce. The question arises in this modern age of cable TV and the internet whether physical scarcity in broadcasting really matters any more. Luckily, in 2011, the Third Circuit Court of Appeals answered that question in Prometheus Radio v FCC. "Deregulatory Petitioners" including Clear Channel (owner of WISN) argued that scarcity is no longer relevant. The court ruled:
"Deregulatory Petitioners ask us to overturn the scarcity doctrine. That doctrine establishes that - In light of [their] physical scarcity, Government allocation and regulation of broadcast frequencies are essential ... We continue to decline [Deregulatory Petitioners'] invitation to disregard precedent ... 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.
We agree with the FCC that the rules do not violate the First Amendment because they are rationally related to substantial government interests in promoting competition and protecting viewpoint diversity."
In addition, contrary to popular opinion, according to Arbitron, “Radio Today: How America Listens to Radio, 2007 edition:
"radio has the greatest penetration of any media (print, broadcast, or digital,) reaching 90 percent of Americans each week."
And in 2011, Katz Media Group (a subsidiary of Clear Channel) President Mark Gray said,
"The weekly reach of radio is higher now than it was three decades ago -- yet the power of radio to reach and influence consumers unfortunately remains a bit of a well-kept secret."
So there is no question that the Commission needs to concern itself with the public interest in radio now and for many years to come.
9) Private Censorship
What we are seeing in today's radio climate, however, is "Private Censorship." We commonly think of censorship as government dictating what a person, or in this case a radio station, may or may not say, and I think we all agree that is not the role of government.
However, the Supreme Court ruled in Red Lion v FCC that
"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."
Private Censorship is exactly the problem in Milwaukee.
Clear Channel, which has licenses for six large stations in Milwaukee, uses its largest 50,000 watt frequency to broadcast "Conservative News Talk" to listeners within hundreds of miles, as does Journal Communications' WTMJ. In the 60 days prior to an election, we have demonstrated that these stations are intentionally promoting one political party, while willfully ignoring requests from supporters of the other political party comparable time. Because of scarcity, these supporters can't just walk across the street and get on a different 50,000 watt station to air their views; they must rely on the "NewsTalk" broadcasters which dominate their market to provide them access, which they have refuse to do.
Zapple narrowly protects supporters of candidates, only during campaign periods, from private censorship by broadcasters who may be serving their own political agendas to the exclusion of any other local political views.
In order for the quasi-equal opportunities Doctrine to be triggered, supporters of candidates must request comparable time from the station within seven days of an imbalanced broadcast.
Several Tom Barrett supporters have complied with this rule. WTMJ has written them back, denying them time; WISN has not responded to the dozens of requests sent to them. I am forwarding copies of some of those emails to you in separate emails, and will provide them all upon request.
11) Plea for intervention
We ask the Commission to look closely at the intent behind both Section 315 and the Zapple Doctrine and to require WISN and WTMJ to immediately require WISN and WTMJ to provide comparable time to both major political parties in this statewide race with national implications. In the letter adopted by the Commission in Zapple, Commissioner Nicholas Johnson wrote, "I see no legal reason why the Commission could not rule that Section 315 (a) encompasses spokespersons for or supporters of political candidates as a logical extension of congressional intent."
We ask the Commission to understand that Zapple is enforceable even absent the Fairness Doctrine, that WISN and WTMJ are violating the intent of Section 315(a), and to find in the 60 days prior to an election, stations may not intentionally censor speech by denying those who need to access the public airwaves during critical campaign periods.
12) Time is of the essence
We are now in day 16 of the 28 day Scott Walker recall campaign. On behalf of the citizens of Milwaukee, I ask the Commission to rule immediately so that supporters of the major political party which have been shut out of the debate on the radio airwaves may have their say now, while the campaign is ongoing.
Founder, Media Action Center
Chairman Julius Genachowski
Commissioner Robert McDowell
Commissioner Mignon Clyburn
Commissioner Jessica Rosenworcel
Commissioner Ajit Pai
Hope Cooper, Media Bureau
Jerry Bott, WISN
Jeff Tyler, WISN
Joe Scialfa, WTMJ
Steve Wexler, WTMJ