Sue Wilson’s attack on talk radio continues over at Brad Blog.

The radio industry magazine Radio Inkcaught wind of my recent article, “Tell the FCC: Talk Radio is NOT ‘Bonafide News'”, as published at The BRAD BLOG, (and subsequently reprinted by the Huffington Post.)

As might be expected by an industry with a long track record of willfully misinforming the public, perhaps it is not surprising that Radio Ink — which bills itself as “Radio’s Premier Management & Marketing Magazine” — would wildly mischaracterize not only the piece I wrote, but the legal underpinnings of the case which is helping to bring the question of what comprises “Bonafide News” to the forefront.

Of course there is no mischaracterization by Media Trackers Radio Ink or me.  The FCC rule that she refers to only applies to qualified candidates and not to the followers of candidates.  Again the FCC rules are narrow and quite specific.

(a) Equal opportunities requirement; censorship prohibition; allowance of station use; news appearances exception; public interest; public issues discussion opportunities

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 provisions of this section. No obligation is 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),
The fact that neither she nor her followers are qualified candidates and by extension the rest of her argument is moot.  From the FCC’s own pages she does not have a standing.

(c) Timing of request. A request for equal opportunities must be submitted to the licensee within 1 week of the day on which the first prior use giving rise to the right of equal opportunities occurred: Provided, however, That where the person was not a candidate at the time of such first prior use, he or she shall submit his or her request within 1 week of the first subsequent use after he or she has become a legally qualified candidate for the office in question.

(d) Burden of proof. A candidate requesting equal opportunities of the licensee or complaining of noncompliance to the Commission shall have the burden of proving that he or she and his or her opponent are legally qualified candidates for the same public office.

Rather then arguments of actual law and the constitution Sue makes emotional arguments of “fairness” which is subjective depending on your point of view.  Nowhere can Sue show that the above rules are extended to anyone other then the candidates or can she show that even the candidates are entitled to equal time to the talk show hosts.  What makes Sue think that she or her followers are entitled to more time then the candidates themselves?

The Zapple Doctrine that she refers to is a leftover from the “fairness doctrine” and pertains to advertising time Which is why Zapple is called quasi-equal opportunities (having some resemblance usually by possession of certain attributes).  DAVID OXENFORD a renowned broadcast attorney goes into detail here.

So no Sue Radio INK’s statement is not incorrect.

Garziglia concludes, “Radio listeners often have the erroneous impression that they, or others who are not the radio station licensee, have some sort of First Amendment right to airtime. That is wholly wrong. With the exception of equal opportunities afforded by law to political candidates themselves, there is no such right to airtime.”

As Sue is aware of  David Oxenford has written extensively on the subject.  Her socialistic claims of ownership of the airwaves is yet another red herring, not even the FCC makes such a claim. Regulation is not ownership otherwise we would all be slaves to the state as we are all regulated and by Sue’s logic by extension owned.

The legal underpinnings of your case are non-existent, what is  bona fide  is moot as only qualified candidates qualify for equal time but even if your arguments were valid the FCC has ruled on what is bona fied on several occasions as David Oxenford discusses here.

So again Sue WTMJ station manager Steve Wexler’s letter is entirely accurate both factually and legally.

Thank you for your email. We frequently receive emails about our programming and the discussion of important political elections in particular. While some of our programming may include commentary and the personal opinions of program hosts, the station works diligently to ensure that a variety of views on important public issues are reflected in the totality of our news and talk programming.

We understand that not all listeners will agree with every opinion or statement made on the station. However, we are neither able, nor is it legally required, to provide each listener who disagrees with a statement made on the station the opportunity to appear on the station and express his or her opinion.

Thank you again for providing us with your thoughts.

Steve Wexler
Executive Vice President
Journal Broadcast Group
720 E. Capitol Dr.
Milwaukee, WI

Direct Line: [redacted]
Direct Fax: redacted

[email redacted]

The Red Lion case she refer’s to was struck down in it’s entirety by FCC vs League of Woman Voters.

Unidentified Justice: But what if, say, the State of Alabama or the City of Birmingham, whatever the other, say we would like our station to editorialize?

Samuel A Alito Jr: Well, I think the Congress in regulating broadcasting can take into account the kinds of abuses that may develop when a publicly owned station using public funds, even state or local funds, engages in editorializing and supporting or opposing candidates.

I think that creates the possibility of grave abuses that are not present, certainly in the area of commercial broadcasting.

It creates the danger that the station will be used as an outlet for government propagandizing, and I think that one of the things the First Amendment tries to prevent is government at any level drowning out private voices in the media of communication.

The entire oral arguments can be heard here.

Decision: 5 votes for League of Women Voters of California, 4 vote(s) against
Legal provision: 47 U.S.C. 399

Yes. Even though the Commerce Clause gives Congress the power to regulate the broadcast medium, “since broadcasters are engaged in a vital and independent form of communicative activity,” Congress must use the First Amendment to “inform and give shape” to its regulation. Justice Brennan argued that no legitimate government interest was served by the law which broadly banned all editorializing, a form of speech which “lies at the heart of First Amendment protection.”

As a result the FCC struck down the “fairness doctrine” in it’s entirety.

In 1985, under FCC Chairman Mark S. Fowler, a communications attorney who had served on Ronald Reagan’s presidential campaign staff in 1976 and 1980, the FCC released a report stating that the doctrine hurt the public interest and violated free speech rights guaranteed by the First Amendment.

In August 1987, under FCC Chairman Dennis R. Patrick, the FCC abolished the doctrine by a 4-0 vote, in the Syracuse Peace Council decision, which was upheld by a panel of the Appeals Court for the D.C. Circuit in February 1989.[13] The FCC suggested in Syracuse Peace Council that because of the many media voices in the marketplace, the doctrine be deemed unconstitutional, stating that:

The intrusion by government into the content of programming occasioned by the enforcement of [the Fairness Doctrine] restricts the journalistic freedom of broadcasters … [and] actually inhibits the presentation of controversial issues of public importance to the detriment of the public and the degradation of the editorial prerogative of broadcast journalists.

At the 4-0 vote, Chairman Patrick said,

We seek to extend to the electronic press the same First Amendment guarantees that the print media have enjoyed since our country’s inception.[14]

Update June 11, 2013

Given the left’s proclivity for censorship I’ve added the following which I posted on their site along with a screen shot.

COMMENT #11 [Permalink]
… Marshall Keith said on 6/10/2013 @ 10:12 pm PT… 

Your comment is awaiting moderation.
@ Gus Wynn I also would like to add to your comment “As users of the limited public-owned airwaves” The government does not own the Airwaves as you and Sue claim, Radio stations are privately owned businesses that are regulated as most businesses are. I challenge both you and Sue to show ownership papers or what act of congress committed the socialist act of seizing ownership? In the FCC vs the League of Women voters pertained to Public Radio which at the time were for the most part owned by taxpayers and the FCC ruled that the stations ruled that the stations had the right to editorialize and they had control over the content. The equal time rules only apply to the candidates. From the ruling.”Court upheld the right of access for federal candidates imposed by 312(a)(7) of the Communications Act both because that provision “makes a significant contribution of freedom of expression by enhancing the ability of candidates to present, and the public to receive, information necessary for the effective operation of the democratic process,” id., at 396, and because it defined a sufficiently “limited right of `reasonable’ access” so that “the discretion of broadcasters to present their views on any issue or to carry any particular type of programming” was not impaired. Id., at 396-397 (emphasis in original). Finally, in Columbia Broadcasting System, Inc. v. Democratic National Committee, supra, the Court affirmed the FCC’s refusal to require broadcast licensees to accept all paid political advertisements. Although it was argued that such a requirement would serve the public’s First Amendment interest in receiving additional views on public issues, the Court rejected this approach, finding that such a requirement would tend to transform broadcasters into common carriers and would intrude unnecessarily upon the editorial discretion of broadcasters. Id., at 123-125. The FCC’s ruling, therefore, helped to advance the important purposes of the Communications Act, grounded in the First Amendment, of preserving the right of broadcasters to exercise “the widest journalistic freedom consistent with [their] public obligations,” and of guarding against “the risk of an enlargement [468 U.S. 364, 380] of Government control over the content of broadcast discussion of public issues.” Id., at 110, 126. 13 ”


Update #2 June 19,2013

As I predicted,  owner of the blogs challenges to me.  He argued that the airwaves were socialistic, (owned by the people) and therefore subject to government censorship.

Finally, you claim, without offering a shred of evidence, that “The government does not own the Airwaves”. Really? Who does then? If the government (we, the people) do not own them, why do stations agree to license them from us? Seems kinda stupid of them, no?


I showed him in plain English the supreme courts ruling to the contrary.

Finally, although the Government’s interest in ensuring balanced coverage of public issues is plainly both important and substantial, we have, at the same time, made clear that broadcasters are engaged in a vital and independent form of communicative activity. As a result, the First Amendment must uniform and give shape to the manner in which Congress exercises its regulatory power in this area. Unlike common carriers, broadcasters are “entitled under the First Amendment to exercise `the widest journalistic freedom consistent with their public [duties]