The Queen of Strawman is back

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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]


MAC Get’s Spanked

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MAC (Media Action Center) is crying the blues.  Broadcast Blues that is.  Sue Wilson (the founder) has been trying for years to silence Conservative Talk Radio. She even had an exchange with Top conservative Talker Rush Limbaugh who gave it to her in spades in SacBee Laments Right-Wing Talk Radio as a “Threat to Democracy”

So at least one conservative was willing to give her a voice.  This Libertarian and life long broadcaster has had several exchanges with her including exchanges on my blog and her own.  The thrust of her argument was that the airwaves were owned by the people aka the government, which I thoroughly trashed here.  She also tried to backdoor the unconstitutional “Fairness Doctrine” through the “Zapple Doctrine” claiming that the editorializing done by the pundits in talk radio constituted free time for a conservative candidate.  Of course she ignores the part of the first amendment guaranteeing freedom of the press and their right to editorialize and the fact that Zapple applies to the purchase of advertising not the content of a talk show host.  In the latest post by MAC they all but said the above.

For the Zapple Doctrine to be invoked, the supporters of the opposing candidate would have to specifically ask the station for air time.  If the station refused, the supporters could then appeal to the FCC, but no such Zapple complaint has been made in at least eight years.  Therefore, there was no violation of the Zapple Doctrine by the stations here, and even if there were, that would not be a basis for the denial of a license renewal, since programming has nothing to do with licensing in the first place.(Emphasis mine)

Zapple was and is intended to allow supporters of a candidate to purchase equal time as an opposing candidate, not to be used as a tool do dictate content of a show!

She then goes on to whine.

Perhaps, sir, you have forgotten our telephone conversation last May about this matter.  Perhaps you have forgotten that, on May 24th of this year, I emailed you documents entitled “Formal Complaint to FCC re WISN and WTMJ,” and “addendum:  Formal Complaint to FCC re WISN and WTMJ” citing specific Zapple violations by the stations.  Perhaps you have forgotten that you emailed me back, acknowledging receipt of said complaint.

Perhaps Sue you should again read the emphasised portion of their response.  Shall I repeat it reeeeaaaal Slooow.  “and even if there were, that would not be a basis for the denial of a license renewal, since programming has nothing to do with licensing in the first place.”

For them to dictate programming would be a violation of the first amendment and freedom of the press. Or do you need a primer on the first amendment too.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

As far a the stations serving the public, I would say the arbitron about sums it up.  I do not have access to the Milwaukee arbitrons but if they are anything like Madison more people listen to conservative then liberal and that is not the fault of programming.  I have said this repeatedly, this is sour grapes because no one wants to listen to progressive radio and because of that no stations want to carry it.

New Arbitron ratings paint bleak picture for progressive talk in Madison

Cowards at Voices! (MAC)


The leftist rag out of Madison called Voices deleted the majority of my posts yesterday. I of course don’t try to hide my bias as I clearly state in my about page “MY BIAS”

Marshall Keith a Libertarian who is fighting the abuse of power by modern day progressives of both parties. Marshall is a lifelong Broadcast Engineer.

Of course the Conservative talk show hosts attacked by MAC are open about their bias.  The stations bill them as that and that is what they are selling.  Here is just one of the Talk show hosts attacked.

Vicki calls herself a “converted conservative”, which she credits to her upbringing and a conversation with former Congressman Mark Neumann in her early days of reporting.  Her conservative ideology has been honed and refined over the years; now, Vicki passionately advocates a conservative point-of-view on social and political issues, as well as matters dealing with pop culture and everyday life.
Read more:

As opposed to Voices page.

Madison Voices was launched in 2005 as the Allied-Dunns Marsh Community newsletter. We have since expanded our scope, reach, and coverage. We now publish a 16 page paper each month that is posted on our website ( and we will use this blog to share content and resources between the print editions. “We are each others most valuable resource”. Please join us and let your voice be heard. (Emphasis mine)

It is their paper and they are free to do as they choose, but the hypocrisy is glaring when it comes to the topic we were discussing. They posted three times in one week a leftist activist group (Media Action Center) attempt to shut down right wing talk radio. They did this on November 20, November 25 and November 26.  The actions of MAC are fighting against exactly the rights that this leftist rag are exercising and a right guaranteed by the “First Amendment” right to freedom of speech and the freedom of the press.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The thrust of Sue Wilson’s argument is the People aka the government owns the airwaves.  This argument is patently false.  The FCC is a regulatory body and even they don’t claim ownership.  Yes like almost all businesses in America broadcast radio is regulated.  The fact that it is a regulatory body is clearly stated on the FCC’s website.

The Federal Communications Commission regulates interstate and international communications by radio, television, wire, satellite and cable in all 50 states, the District of Columbia and U.S. territories. It was established by the Communications Act of 1934 and operates as an independent U.S. government agency overseen by Congress.

It is common knowledge that the majority of the media has a left wing bias, the only place that the right wing dominates is AM talk radio and of course she excludes them from the fight.

Dave F. said

NOV 20, 2012 AT 4:31 PM

Sue. Go get a life. This country is based on free speech. Except obviously when a slimy liberal doesn’t like it. I don’t see you trying to silence MSNBC, ABC, CBS, and every other obvious liberal pandering news outlet.

Sue Wilson said

NOV 20, 2012 AT 4:55 PM

Dave, why are you so intent on silencing anything but right-wing views from the airwaves we ALL own? We all don’t own Msnbc or FOX, that’s private enterprise. We DO own CBS and ABC local stations, and if you don’t like what they are doing, prove it and complain to them and the FCC. It’s your right!

Come on Sue can you show ownership of either WTMJ  or WISN?  Yes they are regulated by the FCC as are both satellite and cable.  Even the newswires used by newsprint are regulated by them.  All of the Cable stations get their programming via satellite who’s frequencies are far less then terrestrial.  How may terrestrial licences are there vs satellite.  Can you show ownership of either of the above stations?

All of Fairness Doctrine was found unconstitutional by either the courts or the FCC and was abolished, an offshoot (the Zapple Doctrine) remains.  But as I pointed out to Sue,  Zapple only applies to time bought on the station and not to the time that the pundits spend editorializing (which is covered by freedom of the press.  I posted the following from the renowned FCC attorney.

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.(Emphasis mine) 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. . . . 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.” (again emphasis mine)

This is not the first time the left has attacked talk radio Mark Lloyd Associate General Counsel and Chief Diversity Officer concocted a plain to force talk radio to subsidize public radio.

The above arguments were deleted but the one that remained brought ad hominem attacks from both Sue and another poster.

Sue Wilson Reports said…

Dear Marshall of Media Trackers,

Let me share some of what’s been said on my blog about this (readers may find the exchange here: ) . . .

In fairness to Sue, she has not censored my comments on her blog, Voices did on theirs. Of course this is still ad-homenem. She can’t show that I am in any way affiliated with Media Trackers and has no bearing on the issues at hand.  But hey I am a Libertarian and by extension one of those “evil capitalist” so hey Media Trackers, if you want to send some money my way, well I won’t turn it down.

The funniest ad-hominem attack came from Proud Badger.

Proud Badger said…

WOW, marshall, you are one scary irrational dude — clicked through to your blog.

Now I know why you post rambling nonsense here about MAC and Ms. Wilson — evidently, you haven’t learned how to organize a train of thought which is why your blog is one massive scroll of rambling.

So how’d that smokin’ ban thing work out fer?

And why do you hate America and the freedoms men and women died for? Freedoms like the right to vote and be represented in a democracy instead of corporate rule?

Don’t you know U.S. history? The American Revolution was to throw the Wal-Mart of its day, East India Tea Company off the back of the colonies because excessive tax breaks and monopoly powers undermined the freedoms of the those living under multinational corporate rule.

Why do you hate Madison, Wisconsin, and the United States of America?

Of course this person shows a leftist revisionist view of history but ignores the fact that we are in fact a “Constitutional Republic” not a “Democracy” and I suggested he/she look at another of my blogposts.  I also asked the question does badger hate all corporations or only those he disagreed with and pointed out the fact that MAC was probably a 501c corporation and that Voices was probably a corporation.  But then the state of Wisconsin is in fact a corporation.

Unless you get vulger or attack another poster (other then me) I do not censor my blog.  But then I don’t pretend to be unbiased and don’t put ” Please join us and let your voice be heard.” on my page.



Being active in the fight against smoking bans, I am use to the ad hominem attacks to divert attention from the topic at hand.  And of course it didn’t take long for it to raise it’s ugly head.

Anonymous said…

Isn’t media trackers a couple of guys not-so secretly paid to write stuff by rich benefactors? Franklin, McIver, American Majority are some of the sugar daddies of these pay-for-propaganda writers.

If you read about them by Daniel Bice of JSOnline, you can judge their cred yourself:

Maybe Marshall and Aue can model what an out-in-the open debate looks like so we can all benefit from both perspectives?

Come on, is that the only tactic the left has when losing an argument?