FCC May Scrutinize Milwaukee's Rabidly Right-Wing Radio

A significant broadcast complaint has been filed with the FCC by the Media Action Center. MAC is a broadcaster watchdog with a particular focus on assessing how radio and TV stations operate in the public interest. Of special concern are the hyper-partisan leanings of talk radio – which makes the basis for MAC’s most recent activity here in Wisconsin.
As you may have heard, Wisconsin is in the throes of an historic recall election which seeks to oust Governor Scott Walker and Lieutenant Governor Rebecca Kleefisch for promulgating policies that have decimated Wisconsin’s economy as well as its systems of education and health care (these are just a few of the many beefs the electorate has with the current administration).
Governor Walker has raised more than $30 million in campaign funds, much of which has been used to inundate the state’s airwaves with downright obfuscatory (if not misleading) advertisements. He’s also had the lockstep support of the state’s largest conservative talk show hosts.
MAC, in conjunction with allies in southeast Wisconsin, have been monitoring the programs of five particularly odious personalities in Milwaukee: Charlie Sykes, Jeff Wagner, Mark Belling, Jay Weber, and Vicki McKenna. Sykes and Wagner do morning and midday shifts on WTMJ-AM, the largest AM station in Wisconsin, while Weber and McKenna have morning shows and Belling does afternoons on the Clear Channel-owned WISN-AM. (McKenna is already under investigation by the FCC for her hackery.)
Last week, MAC contacted the Policy Division of the FCC’s Media Bureau alleging that all five have been engaged in illegal campaigning on behalf of Walker through the use of their programs.
MAC’s content analysis shows that, on average, Walker and the Republican Party get nearly an hour and a half of cheerleading per day on WISN, while Walker’s Democratic challenger, Milwaukee Mayor Tom Barrett, receives just 55 seconds of positive coverage. On WTMJ, Walker and the GOP rack up a similar amount of positive coverage per day, while Barrett and the Democrats get two whole minutes.
This analysis includes not just opportunities for the candidates to appear on these programs, but also the appearances of surrogate politicians and party representatives who carry their water and the call-to-action commentary offered by the show hosts themselves.
Alas, the Fairness Doctrine – which mandated that stations give equal time to all sides on political issues – was repealed by the FCC last year. However, a “quasi-equal opportunities doctrine” remains on the books, and it mandates that in the 60 days leading up to an election, if a broadcaster offers a political candidate or their representatives time on the air (outside of a bona-fide news situation), they must also extend the same courtesy to the candidate’s opponent(s).
Informally called the “Zapple Doctrine,” this rule was first promulgated in 1970 in response to an FCC challenge filed by Nicholas Zapple, a lawyer for the Commerce Committee of the U.S. Senate. He requested the agency extend its equal-time rules regarding political campaigning to include not just appearances by candidates, but also those who speak on their behalf. When the FCC abolished the Fairness Doctrine, it did not take down the Zapple Doctrine with it, which many consider to be independently justified.
If so, the behavior of WTMJ and WISN’s conservative talkers blatantly fouls the Zapple Doctrine, considering the sheer number of pro-GOP guests they’ve booked and the amount of time the hosts themselves spend advocating for the party during their programs.
In recent years, the FCC has deprioritized broadcast regulation more generally, and has historically been loathe to delve into content-based controversies (unless they include a component of indecency). However, primary indications are that the Policy Division of the Media Bureau is taking a close look at the MAC complaint, in part because the alleged violations have been so egregious and the power of WTMJ and WISN on the state’s media landscape is so pervasive.
The agency won’t make a determination on the complaint until well after Wisconsin’s recall election has run its course, but there is a chance that it could take some action before the presidential election in November. That is, of course, assuming that the FCC has the political will to honestly plumb this can of worms. If so, the penalties to WTMJ and WISN could be steep, and the implications of any ruling could have nationwide repercussions regarding the boundaries of political advocacy afforded partisan talk shows.
Broadcasters may try to parry this criticism by attempting to classify their talk programs as news (and thus exempt from the Zapple Doctrine), or by invoking the First Amendment directly. Fortunately, the public interest obligations of broadcasters, who rely on a public resource – the airwaves – to speak still (ostensibly) supersede a knee-jerk reading of the Constitution, and there’s nothing remotely newsworthy about the shtick of Sykes and McKenna et al. Here’s hoping the FCC has the stones to give this issue the exploration it deserves.