Broadcasters assail FCC’s ‘personal attack’ rules

Wednesday, December 2, 1998

Two leading broadcast organizations yesterday filed a brief in the U.S. Court of Appeals for the District of Columbia Circuit challenging the Federal Communication Commission's long-standing rules requiring broadcasters to provide ample time for opposing viewpoints.

In their brief, the Radio-Television News Directors Association and the National Association of Broadcasters asked the court to determine the constitutionality of the FCC's personal-attack and political-editorial rules.

The FCC's personal-attack rule requires television and radio stations to offer notice and free response time to individuals whose honesty, character or integrity is attacked in a broadcast. The political-editorial rule requires those stations that endorse candidates for political office to give free rebuttal time to each candidate's opponents.

Broadcasters say the rules violate their First Amendment rights because they essentially prohibit stations from offering editorials. The issue has been pending before the FCC for more than 17 years.

Last June, the commission 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 original petitions were filed in 1980.

Barbara Cochran, president of the RTNDA, called the FCC's decision not to repeal the rules “arbitrary and capricious.” She said the rules should have disappeared when the agency abolished the Fairness Doctrine in 1987.

The Fairness Doctrine was unveiled by the FCC in 1949. It stated in part that broadcasters could editorialize, provided they did so in “a balanced way” to ensure the public would hear a variety of opinions. The FCC later expanded the doctrine to require stations to provide “equal time” for qualified political candidates.

The U.S. Supreme Court upheld the FCC rules in the landmark 1969 Red Lion Broadcasting v. FCC case, based on the theory that the broadcasting spectrum was a limited resource. But in 1987, the FCC ruled that the scarcity theory no longer applied and that it considered the Fairness Doctrine to be “unconstitutional on its face.”

Despite the end of the Fairness Doctrine, the personal attack rules remained.

Broadcasters began asking the FCC to abolish the rules in 1981, following up with at least four more formal requests over the next 16 years. In 1983, the FCC started action to consider repeal; proceedings remained pending until they stalled again last summer.

In an e-mailed statement, Cochran said the rules “infringe on editorial discretion even more than the Fairness Doctrine itself did. If the Fairness Doctrine could not be justified when it was eliminated more than a decade ago, these rules surely cannot be justified today.”

Attempts to reach FCC officials for comment were not successful.

The agency has until the end of the month to file its response. The appeals court scheduled oral arguments to be heard on April 23, 1999.