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While this action has been greeted by some as confirmation that we will not see the Fairness Doctrine revived by the Commission, that jubilation seems a little unwarranted.  If there was a future FCC that decided that they wanted to impose some degree of Fairness obligations on broadcasters, they still would have ways of doing so.  After all, broadcasters are subject to an overall obligation to operate in the public interest, a standard that has, over the years, changed as Commissions change their interpretation of what it means.  As we've written before, some would like to put more teeth into the standard, which could include some Fairness-like requirements.  Section 315 of the Communications Act, dealing with equal opportunities for political candidates, itself has language that implies that there is some sort of Fairness obligation of broadcasters, at least in connection with their news coverage:

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 chapter to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public importance.

Thus, just because the Fairness Doctrine has been repealed, one cannot conclude that the FCC will never meddle in the speech of broadcasters.  These debates over what is permiited and what should be restricted on the air have gone on as long as there have been broadcasters, and they will not end with yesterday's announcement.

What will be most interesting about the text of this action will be seeing what the other 82 rules are that are being repealed.  The Obama administration has recently announced a push to decrease Federal regulation as a way to stimulate economic growth.  There are plenty of broadcast rules that impose monetary obligations on broadcasters for little public interest benefit (e.g.the public file rule), that have been the subject of FCC consideration as to whether they are still justified.  Action on changing some of these rules would bring real relief to broadcasters - far more than the symbolic repeal of a Doctrine not enforced in 25 years. 

Ads by political candidates, as covered in our Political Broadcasting Guide, are the one exception to this general rule that stations have discretion about what ads they run.  Stations must give Federal candidates "reasonable access" to their airwaves to buy advertising time in all classes and dayparts offered by the station, and candidates must also be given "equal opportunities" to buy time to respond to uses of the airwaves by competing candidates.  Third party groups - those not officially connected with a political candidate - are not subject to the mandatory carriage rules (except to the limited extent that the Zapple doctrine, if it still exists, might apply to require the running of ads by supporters of a candidate to respond to ads by supporters of other candidates).  In fact, third party ads put more responsibility on stations to review the content of these ads as they are theoretically liable for the content of third party ads (see our articles here and here).  So WOI was perfectly within its rights to reject an ad by the Colbert Super PAC - no doubt a disappointment to the Colbert fans in Iowa who wanted a first look at the commercial, but legally an appropriate action nevertheless. 

A second observation is that all of the conclusions reached in this study are not necessarily objective proposals, made in a vacuum.  Instead, they reflect the perceptions and possible prejudices and political objectives of its authors and editors.  There have been trade press reports that the report was subject to a lengthy editing process in the Chairman's office.  Thus, there are conclusions that one might expect given positions that have been taken publicly by the various players at the FCC.  For instance, there is a ringing endorsement of the importance of broadband. With the emphasis that the report puts on disclosure of community service programming and other matters by broadcasters needing to be done online, one can almost sense that the FCC feels that for something to be "real" or "meaningful", it must be done online.

The conclusions about LPFM seem similarly to be drawn from inherent perceptions, not from statistical analysis.  The study, in its initial analysis of the state of LPFM, states that any detailed information on the performance of LPFM stations generally is difficult to come by.  At best, they cite a few anecdotal reports of how such stations are serving their communities.  Yet, the report reaches the conclusion that the Commission, in implementing the Local Community Radio Act, should interpret that act to ensure that LPFM stations have access to urban audiences, without any assessment of conflicting positions that others may have on that issue.

But, if perceptions color the results, broadcasters can actually feel somewhat comforted in that some of their message is being heard at the FCC.  The report does find that the public trustee model of regulating broadcasters is "broken."  That model of course mandates that the broadcaster, in exchange for its use of the public spectrum, must broadcast programming that serves the public interest.  The report looks at the last 30 years of broadcast regulation, and finds that no broadcast station has lost its license for not serving the public interest.  It also questions the use of quarterly program issues lists as providing the basis of reviewing the service provided by broadcasters, as these lists are not filed with the FCC, are not uniformly kept, and are not regularly reviewed by anyone but the broadcaster.  

However, even though the report finds the public trustee model to be broken, it does not suggest a raft of new detailed regulations for broadcasters to follow (although Commissioner Copps, in his statement on the report, seems to suggest that the study should have suggested that kind of regulatory scheme).  Instead, the report seems to suggest that, if the public has more information about the performance of broadcasters, it should be able to better judge the performance of those broadcasters.  Thus, the report suggests the on-line public file.  It acknowledges that the Enhanced Disclosure forms that were adopted three years ago for TV stations, but never implemented, were excessive in their requests for information.  The report suggests that, instead, broadcasters provide a simpler, more streamlined on-line report as to their public interest programming (of course, no form is supplied, so how simple such a form would be is impossible to ascertain).  Moreover, the report suggests that the Localism proceeding, which many broadcasters had feared because of its very specific prescriptions as to how every station should operate, be terminated by the FCC - stating that many of the proposals in that proceeding were unduly burdensome. 

The report also suggests that more sponsorship information be provided by broadcasters as to the source of material contained in their news reports.  The concept of the video news release (which we have written about here) seemed to weigh on the report's writers.  They suggest that disclosure of where content in news programs originated be made not only on the air, but also online.

The Fairness Doctrine also was addressed by the report.  The authors find that the Doctrine inhibited the production of news, and was therefore properly found unconstitutional by the FCC in the late 1980s.  The report suggests that the FCC rule setting out the Doctrine be specifically repealed.  At the public meeting, Mr. Waldman suggested that this would mean that all shards of the Doctrine would be removed - perhaps at long last ending the specter of the Zapple Doctrine that we have written about from time to time during political seasons.

In discussing noncommercial programming, the report suggests, in response to a proposal from the National Religious Broadcasters Association, that the prohibition in FCC policies against noncommercial stations fundraising for other local nonprofit organizations be repealed or modified.  Waldman suggested that it made no sense that a noncommercial religious station could not do a fundraiser for some local soup kitchen, when the FCC has regularly waived that rule for fundraisers for distant disasters (see our posts on Haiti and Japan relief, where we raise that question).

There are many other nuggets buried in this report that we will no doubt discover as we read it in depth. While the report was simply a study, it was a study done with the cooperation of much of the FCC staff.  So ideas and opinions expressed in the study may give broadcasters a good barometer of the attitudes of some at the Commission.  So we will slog through the remainder of the report to see what we can find.  Watch for more articles on the findings and implications of the report in coming days. 

It has been suggested to me that an issue ad needs to be identified so as to decide whether the ad needs to have a "paid for" or "sponsored by" tag at the end to identify its sponsor.  In fact, any ad where the sponsor of the ad is unclear - even a pure commercial ad needs to have a "paid for" or "sponsored  by tag."  For instance, a few years ago, a station was fined when a local chamber of commerce was buying time to promote all the businesses in its town, and the chamber was never identified in the ad - much less as the sponsor of that ad.  When the ad is for a product, and the maker of the product is that sponsor, the Commission considers the identification of the product to be sufficient sponsorship identification.  But where the actual sponsor is someone else, and it is not clear from the ad who the sponsor is, a broadcaster is required to identify that sponsor.

So, in considering whether a spot is an issue ad, why go through the trouble of worrying too much about it.  If it deals with something that looks controversial, err on the side of caution.  Consider it an issue ad, place notice in your public file, and go on with your business!

Stations are not required to accept third party ads and, even where these ads address a candidate, the station has full rights to accept or reject the ads based on the ad's content (perhaps subject to Zapple discussed below).  However, because the station can choose whether or not to run the ad, the station can also be held liable for the content of those ads.  While the standard for liability under the rules of defamation are very high for public figures such as a political candidate, there still can be liability if the station runs an ad with "malice", meaning that they either know that the content of the ad is false, or run it with reckless disregard of the truth of the claims made (where those claims later prove to be false).  That malice standard is what forces stations to become political researchers - tasked with determining if there is a reasonable basis for a claim made in an ad so that the candidate being attacked cannot later come back against the station and accuse the station of recklessly running a false ad.  We've written before (here and here) about the typical scenario that arises - a third party group buys an attack ad against a political candidate, the candidate or his or her lawyer sends the station a letter saying that claims made in the attack ad are false and the station will be liable if the station continues to run the ad.  At that point, the station has an obligation to investigate the truth of the statements made in the ad.  If the station just continues to run the ad with no investigation, and the ad proves to be false and the candidate that is attacked can prove injury, the station can be held liable.  How much investigation is necessary?  That is a question that cannot be answered in a few paragraphs on this blog.  But suffice it to say that stations need to be prepared to call their attorneys and discuss the issue with their owners in making these assessments - as each station may have a different tolerance for risk, and a different willingness to allow questionable third party ads to run.

The other potential issue that this decision may bring to the fore is the status of the Zapple Doctrine.  Section 315 of the Communications Act imposes the Equal Opportunities doctrine (otherwise known as "Equal Time") on stations, which the FCC has interpreted to mean that stations need to treat all candidates running for the same office in the same way - allowing them to buy equal amounts of advertising time on a station, and giving them equal amounts of free time on a station if the candidate appears outside of an exempt program (e.g. news or news interview programs, or on-the-spot coverage of a news event, including most debates).  But the Equal Opportunities Doctrine applies only to candidates and their appearances  on stations (or "uses", in the language of the FCC).  What about the purchase of time by third party groups, which are technically not subject to the Equal Time rule?  Well, more than 30 years ago, the FCC adopted the Zapple Doctrine, or "quasi-equal opportunities" as an outgrowth of the Fairness Doctrine.  The Zapple case, as we wrote here and here, held that where supporters of a candidate are allowed to buy time on a station, supporters of the opposing candidate should also be allowed to buy roughly equivalent amounts of time.  While the remainder of the Fairness Doctrine has been declared by the FCC or by the Courts to be unconstitutional over the last 25 years, Zapple has never been officially overturned.  When the Swift Boat documentary was about to be run on some television stations during the Kerry-Bush campaign, the Kerry campaign invoked Zapple in claiming that all stations that ran that documentary would need to air equal amounts of time from pro-Kerry groups.  While that matter was settled before the FCC ruled, some FCC officials have from time to time implied that they would have invoked Zapple had it gone to a decision.  With an influx of corporate money into political campaigns, Zapple issues are more likely to find their way to the FCC in coming elections.

Finally, the Citizens United case did not upset the record-keeping and disclosure requirements of the Bipartisan Campaign Reform Act ("BCRA").  BCRA imposed many such obligations on broadcasters.  Thus, the sale of time to corporate groups, just like the sale of time to any other third-party group, requires a full public file disclose when such purchases are made to address a Federal issue or election.  We wrote about those obligations here and here. Essentially, all the same information about the purchase that would be kept for a candidate buy must be kept for a third-party buy - including the class of spots purchased, the schedule run, the price paid, and the identity of the purchaser.  Even advertising buys dealing with state and local elections require an identification of the buyer and its principal officers or directors.

Thus, while more money may flow into broadcast stations as a result of the Citizens United decision, that money may come with some additional headaches for broadcasters.  All of these issues and more are addressed in the Davis Wright Tremaine Political Broadcasting Guide, available here.

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. 

On Monday night, the Clinton campaign has purchased an hour long block of time on the Hallmark cable channel to cover a town hall meeting.  Cable, unlike over-the-air broadcasting, is not subject to reasonable access requirements , so there was no obligation for the channel to sell time to the campaign.  And for network cable, it is still an open question as to what other FCC political rules apply.  The Commission recently went out of its way to avoid answering whether the equal opportunities rules apply to network cable by deciding that CNN did not violate the equal time rules by denying Dennis Kuchinich an opportunity to participate in a recent debate (see our summary of the case here).  From the lengths that the Commission went to in avoiding providing a direct answer to the question of whether equal opportunities applies to network cable programs, it could almost be inferred that, if push came to shove, the FCC would ultimately apply these rules if it could not otherwise avoid the issue.  But even if the rules applied, the sale of the programming block to the Clinton campaign would just give the Obama campaign the right to buy an hour of time, which it may or may not want.  And what rates would apply?  Applying the rules used for broadcast stations, if hour long blocks of time are not customarily sold by a network, the network could charge a reasonable amount, including a mark-up for lost audience in following time periods, according to recent FCC statements about the sale of block programming.

Around the country, in anticipation of the voting, third party groups including labor unions and other advocacy organizations are running ads supporting or opposing candidates.  These ads are not entitled to lowest unit rates (which are for candidates only), and stations need not sell time to these groups if they do not want to (reasonable access also applies only to candidates).  If a station does sell time to these groups, is there a requirement that a station sell time to supporters of both sides?  That is an open question.  While the FCC did away with most of the "Fairness Doctrine" over a decade ago, there is still a last thread of that doctrine that has never been officially abolished - the "Zapple Doctrine."  That doctrine was essentially equal time for supporters of a candidate - if a station sold time to the supporters of one candidate, it had to sell that time to the supporters of the other.  While the doctrine has not been applied in the last two decades, it has not been explicitly overruled so, if a station refused to sell to supporters of one side, the FCC might be forced to deal with that issue.

In fact, would that doctrine come into play in connection with the radio talk show hosts that are overtly partisan on the air?  According to press reports, many of the conservative radio talk show hosts have been aggressively anti-McCain in their programs.  As there are usually no appearances by the candidates on these programs, there are no equal opportunities issues, as equal opportunities is triggered only by the actual appearance of a candidate.  But could the Zapple Doctrine apply?  Traditionally, that doctrine applied to the purchase of time.  However, four years ago, when certain television stations thought about airing the "documentary" from the Swift Boat veterans attacking John Kerry, the Kerry campaign argued that the supporters of the Kerry campaign were entitled to free time under the Zapple Doctrine.  That case never reached a decision as the stations dropped their plans to air the film, but it remains an open issue (though more than a bit of a long-shot as it would seemingly render the abolition of the Fairness Doctrine meaningless, and raise significant First Amendment issues).

For more discussion of the FCC rules regulating broadcasters and political broadcasting, click on the Political Broadcasting subject heading on the right of this page, and read our Political Broadcasting Guide.  And watch for more discussion of political issues, as they arise, here.