Broadcasters hope battle over ‘political attack’ ads nearly complete

Tuesday, August 8, 2000

After almost 20 years of fighting against federal rules that require
broadcasters to air opposing viewpoints, the broadcast industry is hoping the
end of the battle might be in sight.

The U.S. Court of Appeals for the D.C. Circuit recently imposed a
Sept. 29 deadline on the Federal Communications Commission to resolve issues
involving the rules on personal attacks and political editorializing.

The July 24 order came after the National Association of Broadcasters
and the Radio-Television News Directors Association reminded the judges that on
Aug. 3, 1999, the court had given the FCC six months to justify the rebuttal
time requirement.

With its latest ruling, the court said that, if the agency continues
to ignore the court order, the NAB and RTNDA “can seek whatever action
they deem appropriate from the court at that time.”

The court, in the past, has been hesitant to pass judgment directly on
the rules. But with the FCC inaction, it appears willing to consider the
constitutionality of the rules itself, said Barbara Cochran, RTNDA

“It’s very, very unusual for a court of appeals to take action on
a matter that an independent agency hasn’t taken action on,” Cochran said.
“They certainly seem to be holding the FCC’s feet to the fire.”

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

Broadcasters contend that the rules violate their First Amendment
rights because they essentially prohibit stations from offering editorials.

The rules sprung up as corollaries to the Fairness Doctrine, which was
first unveiled by the FCC in 1949. The Fairness Doctrine said, in part, that
broadcasters could editorialize, provided they do so in a “balanced
way” to ensure the public hears a variety of opinions. The FCC then
expanded the doctrine to require that stations provide “equal time”
for qualified political candidates.

In the landmark 1969 Red Lion Broadcasting
v. FCC
case, the U.S. Supreme Court upheld the FCC rules, based
on the theory that the broadcasting spectrum was a limited resource. 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.”

But it left the personal-attack and political-editorializing rules

For almost two decades, the RTNDA and the NAB have urged the court and
the FCC to do away with the rules entirely. In 1998, 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.

Over the last two years, the commissioners have remained silent about
the rules and don’t seem to be talkative about them now. FCC spokesman David
Fiske said the commissioners have not said when or if they would act.

The court, if the FCC doesn’t act, could impose another deadline or
could rule on the matter itself.

“In the meanwhile we have yet another important election coming
up,” Cochran said. “But because of these rules, most radio and
television stations in this county will be silent about very important choices
facing the voters.”

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