Broadcasters ask court to invalidate ‘personal attack’ rules

Tuesday, September 7, 1999

A broadcast organization has asked a federal appeals court to reconsider its
decision last month to require the Federal Communications Commission to justify
its personal attack and political editorial rules. It asks the court simply to
invalidate them.

Such rules, remnants of the now-defunct Fairness Doctrine, require
broadcasters to provide ample time for opposing viewpoints.

On Aug. 3, a three-judge panel of the U.S. Circuit Court of Appeals for the
District of Columbia said it recognized that the rules “by their nature
interfere with journalistic judgment, chill speech, and impose burdens on
activities at the heart of the First Amendment.”

But the court returned the issue to the FCC, ordering it to explain the
rationale for the rules.

The Radio-Television News Directors Association, in a court brief filed on
Sept. 3, asked the court to reconsider its remand and simply dispose of the
rules itself.

“Placing the matter back in the FCC's hands risks more delay,” said Barbara
Cochran, RTNDA president. The group is “compelled to ask the court to follow
through on the logic of the panel's opinion and to itself do away with these

If the court should decline, Cochran said her group would ask the court, at
the very least, to set a date by which the FCC must respond.

The RTNDA and the National Association of Broadcasters have spent nearly two
decades challenging the constitutionality of the rules, contending that they
interfere with the editorial judgment of journalists. They also say the rules
unfairly burden broadcasters with the responsibility of notifying people whose
character is attacked on-air and providing them an opportunity to respond.

In June 1998, the FCC considered repealing the rules but deadlocked in a 2-2
vote. Chairman William Kennard said he couldn't cast a deciding vote because he
had served on the NAB's legal staff when the RTNDA and NAB petitions were filed
in 1980.

Cochran said that while she was pleased that the court had recognized how the
rules burden free speech, she was disappointed that the judges had declined to
invalidate them.

“We are concerned that the decision to remand the issue to the FCC will serve
no purpose,” Cochran said in a statement sent to the First Amendment Center. “The FCC has repeatedly demonstrated that it is hopelessly deadlocked on
the question of the rules' validity, and there is no indication that this state
of affairs has changed.”

FCC officials did not return calls.