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While the idea behind the equal-time rule is fairness, it may not apply beyond candidates to supporters of that candidate or of a cause. Hence, there potentially may be a loophole in which broadcasters can give free time to just one candidate’s supporters. In the 2012 Wisconsin gubernatorial recall election, Scott Walker’s supporters were allegedly given free air time to raise funds and ask for volunteers while opponent Tom Barrett’s supporters were not.
Sue Wilson, “FCC: No More Equal Time Requirements for Political Campaign Supporters over Our Public Airwaves,”
Huffington Post , 15 May 2014. According to someone involved in the case, the FCC declined to intervene after a complaint was filed on the matter, saying the equal-time rule applied only to the actual candidates, and that the case was an instance of the now-dead
fairness doctrine .
William Lake, Letter from the FCC Regarding Capstar Texas LLX, 8 May 2014, http://bradblog.com/Docs/FCC_ZappleDoctrineRuling_050814.pdf. The fairness doctrine was instituted in 1949 and required licensed stations to cover controversial issues in a balanced manner by providing listeners with information about all perspectives on any controversial issue. If one candidate, cause, or supporter was given an opportunity to reach the viewers or listeners, the other side was to be given a chance to present its side as well. The fairness doctrine ended in the 1980s, after a succession of court cases led to its repeal by the FCC in 1987, with stations and critics arguing the doctrine limited debate of controversial topics and placed the government in the role of editor.
Syracuse Peace Council vs. FCC , 867 F.2d 654 (1989); Katy Steinmetz, “The Death of the Fairness Doctrine,”
Time , 23 August 2011.
The FCC also maintains
indecency regulations over television, radio, and other broadcasters, which limit indecent material and keep the public airwaves free of obscene material.
“Obscenity, Indecency, and Profanity,”
FCC , https://www.fcc.gov/encyclopedia/obscenity-indecency-and-profanity (September 10, 2015). While the Supreme Court has declined to define obscenity, it is identified using a test outlined in
Miller v. California (1973).
Miller v. California , 413 U.S. 15 (1973). Under the Miller test, obscenity is something that appeals to deviants, breaks local or state laws, and lacks value.
“Obscenity,”
Legal Information Institute at Cornell University , https://www.law.cornell.edu/wex/obscenity (November 29, 2015). The Supreme Court determined that the presence of children in the audience trumped the right of broadcasters to air obscene and profane programming. However, broadcasters can show indecent programming or air profane language between the hours of 10 p.m. and 6 a.m.
“Consumer Help Center: Obscene, Indecent, and Profane Broadcasts,”
FCC , https://consumercomplaints.fcc.gov/hc/en-us/articles/202731600-Obscene-Indecent-and-Profane-Broadcasts (September 10, 2015).
The Supreme Court has also affirmed that the FCC has the authority to regulate content. When a George Carlin skit was aired on the radio with a warning that material might be offensive, the FCC still censored it. The station appealed the decision and lost.
FCC vs. Pacifica Foundation , 438 U.S. 726 (1978). Fines can range from tens of thousands to millions of dollars, and many are levied for sexual jokes on radio talk shows and nudity on television. In 2004, Janet Jackson’s wardrobe malfunction during the Super Bowl’s half-time show cost the CBS network $550,000.
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