In a pair of decision letters, the Chief of the FCC's Media Bureau, acting on delegated authority, has declared that the Zapple Doctrine, "...has no current legal effect."
The Zapple Doctrine was an appendage of the Fairness Doctrine.
The Zapple Doctrine required a broadcast station to give airtime to supporters of one political candidate if the station had given airtime to supporters of an opposing candidate. It arose out of an enquiry letter that Nicholas Zapple, an attorney on the staff of the Commerce Committee of the U.S. Senate, had sent to the Commissioners of the FCC in May of 1970. (The Commerce Committee exercises oversight with respect to the FCC.) In his letter, Mr. Zapple raised the issue of what, if any, responsibilities a broadcaster might have in such a situation.
The FCC responded to Mr. Zapple's enquiry by stating that all similarly situated parties should be treated similarly... in other words, they should be accorded quasi-equal opportunities. (Equal Opportunities is a term of art in the context of the FCC's political-broadcasting rule.)
The FCC analogized to the Fairness Doctrine, which required broadcasters to provide reasonable opportunities for responsible spokespersons with contrasting views on issues of controversial public importance to broadcast their opinions. (Note: the Fairness Doctrine never required equal time. Equal Time is a creature of statute with respect to uses (another term of art) of media during defined election seasons by legally qualified candidates for public office.
The FCC abrogated the Fairness Doctrine in 1987, concluding that it: no longer served the public interest; was not statutorily mandated; and was inconsistent with First-Amendment values. The Commission did not explicitly rescind the Zapple Doctrine, however.
That was then. Now, the Bureau Chief has issued a pair of decisions, stating that the Zapple Doctrine is history.
The decision letters arose in the context of Petitions to Deny filed against the applications for renewal of the licenses of radio stations WISN(AM) and WTMJ(AM), Milwaukee, Wisconsin. (A Clear Channel entity is the licensee of WISN. Journal Broadcast Corporation is the licensee of WTMJ.)
The Petitioners asserted that the licensees' applications should be designated for evidentiary hearing because the licensees had refused to provide air time on their Stations to supporters of Tom Barrett, the Democratic candidate for Governor of Wisconsin during the recall election. The Barrett supporters wanted airtime so that they could respond to statements aired on the Stations in support of Scott Walker.
The decision letters state that the Petitioners were taking issue with the programming choices of the licensees, and that the FCC was not in a position to infringe upon their editorial discretion. The FCC also said...
In any event, we note that we have no basis to enforce the Zapple Doctrine. The doctrine was based on an interpretation of the fairness doctrine, which the Commission abrogated in Syracuse Peace Council in 1987 after concluding that it no longer served the public interest, was not statutorily mandated, and was inconsistent with First Amendment values. In 1989, the D.C. Circuit affirmed the Commission’s conclusion that the fairness doctrine no longer served the public interest, without reaching the constitutional question. In August 2011, the Media Bureau and Office of Managing Director characterized the fairness doctrine as “defunct” and deleted rules referencing the fairness doctrine as “obsolete” after finding them to be “without current legal effect.” Given the fact that the Zapple Doctrine was based on an interpretation of the fairness doctrine, which has no current legal effect, we conclude that the Zapple Doctrine similarly has no current legal effect. [Footnotes omitted]
The Petitioners have the right to seek reconsideration by the Bureau, or review by the full Commission, or first the former, and then the latter if the Bureau denies reconsideration (as would be likely). After denial of review by the full Commission, the Petitioners could appeal to federal court. Because these cases involve licensing decisions, any appeal would have to be taken to the United States Court of Appeals for the D.C. Circuit. If the Petitioners took the matter to the D.C. Circuit and lost on appeal, they could seek to bring the matter before the Supreme Court of the United States by filing a petition for a writ of certiorari. The Supreme Court would not be obliged to grant such a petition.
Zapple, we hardly knew ye.