In an October 13 editorial titled “Sinclair and Double Standards,” The Wall Street Journal confused an existing law governing broadcasters with a Federal Communications Commission (FCC) regulation that is no longer in operation, falsely claiming that an “equal time” provision governing candidate access to the broadcasting system no longer exists. This misunderstanding forms part of their defense of Sinclair Broadcast Group's decision to order its 62 affiliate stations to run an anti-Kerry documentary (Stolen Honor: Wounds That Never Heal) in primetime one week before the presidential election.

From the editorial (WSJ.com subscription required):

Allow us to interrupt this programming with a commercial on the First Amendment. It wasn't the intention of the Founders to give elected officials veto power over press reports. That goes for Republicans too. We didn't like it any better when GOP Representative Joe Barton [R-TX], outraged at Rathergate, last month considered convening a hearing on TV news operations.

The excuse for such broadcast regulation used to be that the public airwaves required “equal time.” But this anti-democratic notion went away when the so-called Fairness Doctrine finally did in the 1980s.

The Wall Street Journal is simply wrong. The “equal time” doctrine is alive and well in current federal law. Here's what the law says:

If any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station: Provided, [sic] That such licensee shall have no power of censorship over the material broadcast under the provisions of this section. No obligation is imposed under this subsection upon any licensee to allow the use of its station by any such candidate.

In 2003, the National Association of Broadcasters informed broadcast stations reaching California residents that in order to comply with the equal time provision, they were to refrain from showing movies starring then-gubernatorial candidate Arnold Schwarzenegger.

The law contains exceptions for broadcasts that qualify as “bona fide” newscasts, news interviews, news documentaries, and live news events.

The Journal's editorial board is confusing this principle in current law with the “fairness doctrine,” a policy the FCC abandoned in August 1987. The fairness doctrine required licensees to “cover vitally important controversial issues of interest in their communities” and “provide a reasonable opportunity for the presentation of contrasting viewpoints.” The doctrine also codified what became known as the “personal attack rule” and the “editorial rule.” The personal attack rule required broadcasters to notify the subjects of on-air personal attacks that an attack had occurred and to then provide them with an opportunity to respond. Similarly, the editorial rule allowed political candidates to respond either to criticisms or station endorsements of another candidate. None of these provisions required “equal time” for candidates or issues.