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Did Our Public Airwaves Win It for Walker?

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Whatever questions remain about Wisconsin Governor Scott Walker's recall election, there is no question that his campaign was built on big money, the likes of which we've never seen in a gubernatorial campaign before. And where did all that money go? Right into thin air -- our air.

And as owners of the air -- our public airwaves, to be precise -- there is plenty we can do to combat the corrosive effect of big money on our elections, by holding our partners in broadcasting, local TV and radio stations, accountable to the communities they serve.

Citizens United, the Supreme Court ruling that the First Amendment prohibits government from restricting independent political expenditures by corporations and unions, is the reason huge amounts of money poured into the Walker camp from third parties like the billionaire Koch Brothers and others, (compared to the relatively paltry sum given to his opponent Mayor Tom Barrett by unions and others.)

As previously noted by The Brad Blog:

Focus will turn to the unprecedented amount of dark money raised and spent in the election, with Walker's campaign raising at least $30.5 million (a majority of it coming from out of state) to Barrett's $3.9 million. That, of course, is just the money raised by the two campaigns themselves. It doesn't take into affect the extraordinary amount of money spent by outside groups on behalf of the candidates, largely in support of Walker by a reportedly outsized ratio of 25 to 1.

So the Walker recall gave us the first glimpse at how the infamous Supreme Court ruling will affect campaigns for years to come unless something changes. There is a large and growing movement now from groups like Move to Amend, to amend the Constitution to alter the unlimited spending allowed by Citizens United. Such an effort, however, will take years to accomplish, if it ever happens at all.

But what's not being talked about is where most of this money goes: about half of all campaign dollars go directly into into our local radio and TV stations' wallets -- local broadcast stations which get licensed in the public/private partnership of broadcasting only if they "serve the public convenience, interest, and necessity."

As to the First Amendment, the Supreme Court has also ruled in Red Lion v. FCC that "it is the right of the viewing and listening public, and not the right of the broadcasters, which is paramount."

Nonetheless, until Citizens United is changed or overridden in some fashion, things are only going to get worse -- unless we the people do something about it now with a few, still-unused tools that remain at our disposal...

The Public Files

In the fall general election, we will see an unprecedented amount of money going into local TV stations and their giant corporate owners. Ken Goldstein, president of Kantar Media's Campaign Media Analysis Group, estimates as much as $3.3 billion will be directed to local TV advertising this fall.

Exactly how much money went into local TV spots during the Walker recall? Well, we own the public airwaves, so all we have to do to find out is to walk into our local TV stations in Wisconsin and demand to see their political files. (This autumn, under a new rule enacted by the FCC, the top 50 TV markets will be required to post that information online for easier public access. Stations really do not wish to comply, so the National Association of Broadcasters has filed a lawsuit to prevent it from happening, and Republicans in Congress have inserted language into an appropriations bill hoping to bar the FCC from implementing it.

But then, as now, we still will have the right to physically inspect those public files, kind of like a landlord has the right to inspect his property. (People may need to stand up to management to demand their rights, as a Media Action Center Wisconsin group did recently, as seen in this video. WTMJ TV and Radio in Milwaukee initially denied the group entrance into their building, but the station manager eventually came to his senses and allowed them access. The FCC levies heavy fines for denying the public access to TV and radio files.)

Political files must include:

1) The name of the group sponsoring the ad
2) Its principal officers or its directors
3) Whether the request to buy time was accepted or rejected
4) If the schedule was accepted, the date and approximate time the spots will run
5) The class of time purchased
6) The rate charged
7) The name of the candidate to which the ad refers
8) After the spots have run, the exact time the spots ran

The point is, it is entirely possible that we'll discover as many as $45 million dollars flowed into Wisconsin TV stations, during just the official 28 day Walker recall campaign period. It is clear that shareholders are making out like bandits.

But what are we the people -- who own the airwaves -- getting in return? And what can we the people to do reclaim our rights as the real owners of our public airwaves?

As to what people are getting in return, not enough. TV stations could provide robust political reporting, debates, and free airtime to candidates, but are not wont to do so.

Given the billions pouring into their coffers to enrich shareholders by selling time that influences elections over our public airwaves, broadcasters could certainly do more to serve the public interest in return. Much more. But they will not -- until we truly understand our rights as the owners of the radio and TV airwaves, and begin to stand up for them, one community at a time.

The Zapple Doctrine

Here's an example of real action -- with real teeth -- that we the local people can take against Big Corporate Media.

On May 24, I filed a formal complaint to the FCC through the Media Action Center against WISN and WTMJ radio, the two giant 50,000-watt Milwaukee outlets who gave Walker and the GOP roughly 160 minutes of free daily airtime (worth as much as $68,000 every day) while giving virtually none to his opponent.

That, as I reported previously, violates an obscure FCC rule called the Zapple Doctrine, which says if a station gives supporters of one candidate time, they must provide supporters of the other major party candidate comparable time in the 60 days prior to an election.

The FCC is reviewing the case; the talk radio industry's Talker's Magazine responded to my complaint by noting, "the FCC rules on this matter may have a significant effect on the upcoming fall national and state elections." I see it as pitting the First Amendment Rights of We the People v. Big Corporate Media.

Now, there are unconfirmed reports in Wisconsin that TV stations there sold so many local advertising spots to the Scott Walker side, they had few left to sell to Tom Barrett and the Democrats. Again, we, the owners of the local TV airwaves, can confirm those reports by inspecting the public files of the stations. (No wonder the stations are trying to keep these files under wraps.) If true, we will be filing another complaint to the FCC for the TV stations violating Zapple.

Truth in Advertising

Back to Citizens United: there is another obscure legal concept which could provide the citizenry with a tool for change -- without a constitutional amendment -- before the 2012 general election.

It turns out that if a candidate wants to buy airtime from a TV or radio station, the station must sell the time, and it may not vet or censor the ad in any way. (So, legally, candidates may lie to public as much as they want.)

But third party ads, the ones which have been loosed by the Citizens United decision, are treated differently. Stations do not have to take those ads. If they do, and if those ads lie to the public, the stations may be held liable.

Pause and think about holding your local TV station liable for lying third party ads. I can feel the shudder running through the halls of broadcast management right about now.

Typically, it is a candidate who is being defamed in an ad that would file such a suit. That person, attorneys tell me, has the standing to file, as they are the ones being harmed by the ad.

But when ads lie to the public, over our publicly owned airwaves, aren't we the people also being damaged? Isn't our very democracy being damaged when local broadcasters, who are licensed to broadcast only if they serve the public interest, putting giant profits ahead of making certain that the ads are factual? We should have the standing to develop a class action suit asserting our right to factual campaign information over our public airwaves. Our First Amendment rights are paramount in broadcasting, after all, at least according to the United States Supreme Court.

So stand up and exercise your rights! Set up meetings with your local radio and TV stations and demand fact checking of ads by local management. Sometimes they will respond positively. But realize that local licensees are owned by giant corporations, which often care little about service to the local community. So if they will not serve your needs, exercise your rights in any way you legally can. Send people in to do daily file inspections (which causes stations to hire extra staff), boycott their advertisers (which sends a financial chill through any station), challenge their licenses.

Bringing about parity over our public airwaves is about finding narrow targets, aiming high and true, and educating the public for their support. Our motto at Media Action Center: "Know your rights. Be empowered. Put boots on the ground. And publicize."

What the Scott Walker recall in Wisconsin teaches us is that broadcasting is the number one beneficiary of the money in politics. But broadcasters are legally supposed to be benefitting their owners, We the People. It's time to stand up for the rights of the real owners of broadcasting -- us.

Originally published at The Brad Blog.