Broadcasters to ask court to force FCC action on ‘personal attack’ rules

Wednesday, June 24, 1998

Officials with two broadcasting organizations say they plan to ask an appeals court to force the Federal Communications Commission to abolish rules requiring broadcasters to provide ample time for opposing viewpoints.

Last month, a U.S. Court of Appeals panel in Washington D.C. ordered the FCC to take formal action on a long-standing request to abolish so-called personal attack and political editorial rules. The issue has been pending before the agency for more than 15 years.

But last week, the commission deadlocked 2-2 in a vote to consider repealing the rules. Commissioners Susan Ness and Gloria Tristani voted against the change, while Commissioners Michael Powell and Harold Furchgott-Roth voted for it.

Chairman William Kennard said he couldn’t cast a deciding vote because he served on the National Association of Broadcasters’ legal staff when the original petitions were filed in 1980.

Under the FCC’s personal attack and political editorial rules, television and radio stations are required to provide sufficient air time for viewpoints opposing theirs. Broadcasters say the rules violate their First Amendment rights because they essentially prohibit stations from offering editorials.

“After more than a decade of procedural limbo, [the Radio-Television News Directors Association] obviously is anxious to have the court consider the important First Amendment implications of these rules,” said Barbara Cochran, the group’s president.

Officials from the news directors group and the National Association of Broadcasters say they plan to file new claims against the FCC within the next few days, emphasizing the fact that the FCC and the courts dismantled the Fairness Doctrine more than a decade ago.

The FCC unveiled the Fairness Doctrine in 1949 stating 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 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 air waves were a scare resource. But in 1987, the FCC ruled that the scarcity theory no longer applied and that it now considers the Fairness Doctrine to be “unconstitutional on its face.”

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

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. The FCC started action to consider repealing the rules in 1983. The proceedings remained pending until they stalled last week.

Last year, the Radio-Television News Directors Association and the National Association of Broadcasters filed their petition in the U.S. Court of Appeals.

“Since the repeal of the Fairness Doctrine in 1987, there has been no sound basis for retention of these derivative rules,” Cochran said. “Yet, the personal attack and political editorializing rules have continued to restrain broadcasters’ freedom to choose what to broadcast, removing editorial discretion from licensees.”

The two groups will now petition the court again to force the FCC to act.