The Zapple Doctrine was an outgrowth of the FCC’s Fairness Doctrine. The Zapple Doctrine required that broadcast stations that give air time to the supporters of one candidate in an election give time to the supporters of competing candidates as well. Even though the Fairness Doctrine has been defunct for years, having had various manifestations of the Doctrine declared unconstitutional either by the Courts or the FCC, Zapple apparently lived on, or at least a death certificate had never been issued (see, for instance, our articles mentioning the continued life support of the Doctrine, here and here). Thus stations had to be concerned about giving air time to supporters of political candidates for fear of having to provide a similar amount of time to those supporting competing candidates. Apparently, that uncertainty has now been resolved, as in two just released cases, the FCC”s Media Bureau has declared that Zapple, like the rest of the Fairness Doctrine, is dead.
The cases just decided (available here and here) both involved the recall election of Wisconsin Governor Scott Walker, where complaints were filed against the renewals of two radio stations, complaining that those stations did not provide equal opportunities to supporters of Walker’s recall opponent even though station hosts provided on-air support for Walker. The FCC rejected those complaints, declaring:
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.
So why didn’t the FCC’s equal opportunities rule, which is still in effect, apply to this situation?
Equal opportunities, which we wrote about here, applies only to candidates, not to their supporters. So the appearance of a candidate on a broadcast station, outside of an exempt news, news interview, or similar program, does give rise to equal time for an opposing candidate. If a candidate appears on an entertainment program, then the opponent is entitled to equal time. The same is true if a station employee actually becomes a candidate (see our article here). But where the candidate’s recognizable voice or image is not featured on the station, equal opportunities does not apply.
Based on this decision, stations don’t have to worry about on-air statements made by an opinionated talk show host giving rise to equal opportunities to those who favor the candidate opposed by the host. As long as the station does not put the candidate on the air, the equal time (or equal opportunities) rule does not apply.
Thus, having opinioned on-air statements by supporters of a candidate become like issue advertising, or advertising for ballot issues, where stations no longer have to worry about equality in their coverage of one side or the other, or about selling time to parties on all sides of an issue. It is only the candidates themselves who are entitled to equal time, and it only their on-air appearance that gives rise to these equal opportunities rights.