There is much talk amongst radio talk show hosts about their rights of Free Speech. I do not condone any kind of censorship (outside incitement to violence,) and agree radio talkers have their rights. But so do We the People, and it is time we stand up for them. Right now. Starting in Wisconsin.
As evidenced in recent broadcasts from Wisconsin in midst of the Scott Walker recall election, to the doubling of Right Wing programming from the station in Sacramento that launched Rush Limbaugh, to the fact that 90 percent of the nation can hear only one political diatribe, "private censorship" has crept into our public airwaves. This corporate creation is damaging our democracy. The courts have actually ruled on behalf of We the People, but thanks to private censorship, We the People don't even know it.
Despite what big corporate media tells us again and again, especially on the radio, broadcasting operates under unique rules designed to protect the public interest. Let me explain why broadcasting enjoys special treatment in the name of the public.
Newspapers are private enterprise: anyone with enough capital can start a newspaper and write what they will. Cable TV is also private enterprise: when people write a check to Comcast or Direct TV, they pay private contractors, via cable or satellite, to bring programs from Playboy to Disney into their homes.
But broadcasting, local radio and TV, is a public/private partnership: the public owns the airwaves needed for transmission; private business own the buildings, equipment, etc. needed to broadcast programming. When private business goes into broadcasting, it makes a deal with the public: a free license from the Federal Communication Commission -- if it agrees to "serve the public interest, convenience, and necessity."
Broadcasting also differs from newspapers and cable in that the number of frequencies available in one community are few, so only a limited number of local stations are possible. Physical scarcity is the foundation of all broadcast law.
There are two radio markets in the U.S. which I've been closely watching which highlight these concepts of physical scarcity and private censorship. One is Milwaukee, Wisconsin, where five local Conservative Talk Radio hosts dominate 100,000 watts of radio power. The other is my adopted hometown, Sacramento, where Clear Channel Communications broadcasts about 190 hours per week of one-sided political talk over three giant stations, KFBK-AM, KGBY-FM and AMFM Holding's KSTE-AM Clear Channel management disputed that number at a recent meeting with Media Action Center, Sacramento Media Group, and Occupy Sacramento. But (now former) Clear Channel GM Jeff Holden told us he is very comfortable airing only one-sided political talk on three giant stations -- during an election year.
But what Holden may or may not have known is that, in the 60 days prior to an election, if broadcasters sell or give time to one major political party candidate or its supporters, they must, by law, offer comparable time to the opposing major political party candidate or its supporters. (See Section 315a of the Communications Act and the Zapple Doctrine.)
The Media Action Center has been monitoring talk radio stations owned by Clear Channel and Journal Communications in Milwaukee since May 9th, the first day of the Walker/Barrett campaign in Wisconsin. We will release detailed results of that monitoring May 22nd, but suffice it to say that supporters of one major political party are getting short shrift, and they will be complaining -- loudly -- to the FCC to immediately enforce comparable time laws.
But these Talk Radio giants are also violating the First Amendment rights of all who equally own the public airwaves, disagree with Right Wing politics, but are not allowed to be heard at all. Private censorship comes down to a matter of access, says the Supreme Court of the United States.
In Red Lion Broadcasting v. FCC, 1969, the Supreme Court made two key rulings: "the First Amendment is relevant to broadcasting, but it is the right of the viewer and listener, not the broadcaster, which is paramount." And, "the First Amendment does not protect private censorship by broadcasters who are licensed by the Government to use a scarce resource which is denied to others."
Whether motivated by ideology or profit, Clear Channel, Journal Communications, and all the other corporate radio giants are denying alternative voices access to the scarce resource of local radio airwaves in Milwaukee, in Sacramento, and in communities throughout the entire country. That is not just morally wrong, it is private censorship, and it is illegal.
The giants have argued against this in court, but to no avail. In 2011, Clear Channel lawyers argued that given the internet, the concept of physical scarcity was unneeded. The U.S.Third Circuit Court of Appeals shot them down: "The abundance of non-broadcast media does not render the broadcast spectrum any less scarce. The Supreme Court's justification for the scarcity doctrine remains as true today as it was in 2004 -- indeed, in 1975 -- many more people would like to access the [broadcast spectrum] than can be accommodated."
The imbalance we are seeing on the publicly owned airwaves in Milwaukee and Sacramento and elsewhere proves the First Amendment is alive and well in broadcasting, only it's broadcasters stamping out the rights of liberals and the rest of us, not the other way around, as right wing talkers in every corner of the country would have us believe. Yes, it is censorship for the government to tell hosts what they may or may not say. But when Clear Channel and other radio license holders put one political point of view on our public airwaves to the exclusion of all others, that is private censorship, especially during an election.
The FCC's job is to enforce the law to protect the public's interest in broadcasting. Will it choose to defend We the People, or will it champion giant broadcasters?
Next week, in Wisconsin, we will find out.
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