The FCC has eliminated the Zapple Doctrine, bringing to a close the last vestige of the Fairness Doctrine.  The Zapple Doctrine required that when a broadcaster provided time to a spokesperson or supporter of one candidate to discuss the candidates or campaigns in a particular race, that the station provide comparable time to a spokesperson or supporter of the candidate’s opponent.

The Fairness Doctrine was established in 1949 as part of the FCC’s efforts to require broadcasters to adequately cover, and to air conflicting viewpoints on, issues of public importance.  The Fairness Doctrine expanded over time to include ballot propositions, personal attack and political editorial rules and the Zapple Doctrine.

The Fairness Doctrine survived a constitutional challenge in 1969 in Red Lion Broadcasting v. FCC but could not survive the rigors of time.  In 1987, the FCC decided to stop enforcing the Fairness Doctrine, concluding that the doctrine did not serve the public interest.  In 1992, the U.S. Court of Appeals for the D.C. Circuit held that the personal attack and political editorial rules and ballot propositions were unenforceable and repealed these rules. This left the Zapple Doctrine as the only surviving remnant of the Fairness Doctrine.

Until now. In two recent decisions the Media Bureau granted the license renewal applications of two AM radio stations in Milwaukee, Wisconsin over the objection of a public interest group.  The group claimed the licensees refused to provide air time to supporters of one candidate to respond to statements aired on the stations by supporters of the opposing candidate.  The public interest group claimed the refusal violated the Zapple Doctrine.  The Media Bureau rejected these arguments, noting that the opposition to the license renewal was based on the programming choices by the stations.  The Media Bureau reaffirmed the well-established legal principle that the Commission cannot exercise the power of censorship over stations with regard to content-based programming decisions.  The licensee has broad discretion to choose the programming it believes serves the needs and interests of the members of its audience.  The Commission will intervene only if the licensee abuses that discretion or directed by federal statute.

The Media Bureau held that it had no basis to enforce the Zapple Doctrine, because this doctrine was based on an interpretation of the Fairness Doctrine that was no longer in effect.  The Media Bureau pointed out that the FCC abrogated the Fairness Doctrine in 1987 and in 2011 deleted rules enforcing the doctrine as defunct, obsolete and without current effect.  The Media Bureau concluded that the Zapple Doctrine similarly has no legal effect.

This does not mean that broadcasters have carte blanche to broadcast whatever content they desire.  The Commission’s political advertising rules regarding equal opportunities and lowest unit charge and the Commission’s policy regarding indecency, including fleeting expletives, remain in effect.  Federal statute makes the broadcasting of indecent, obscene and profane material a crime.

When it comes to editorial content, however, broadcasters now can breathe easier.