Court orders FCC to rule on ‘personal attack’ petition

Tuesday, May 12, 1998

A three-judge appeals court panel Monday ordered the Federal Communications Commission to take formal action on a long-standing request to abolish rules requiring broadcasters to provide ample time for opposing viewpoints.

The ruling by the U.S. Court of Appeals for the Washington, D.C., circuit gives the FCC 30 days to make a decision on the rules, an issue that has been pending before the agency for more than 15 years.

Broadcast industry officials cheered the court's decision saying it finally forces the FCC to consider the constitutionality of so-called personal attack and political editorial rules.

They said the rules constrict broadcasters' First Amendment rights.

“It kind of makes it difficult for stations to really be free to speak their political minds much like a newspaper doing editorials or endorsing candidates,” said John Earnhardt, spokesman for the National Association of Broadcasters, which petitioned the court last year along with the Radio-Television News Directors Association.

“It basically ties their hands,” Earnhardt said. “That's why you don't see stations do editorials.”

Earnhardt described the rules as “from another time,” noting 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 Red Lion Broadcasting v. FCC case in 1967 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 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. The FCC started action to consider repealing the rules in 1983 but the proceedings remain pending. Last year, the Radio-Television News Directors Association and the National Association of Broadcasters filed their petition in the U.S. Court of Appeals.

In the petition, the groups said: “Rather than working to accomplish the long-delayed task before the agency in the ample time afforded by this Court, certain FCC Commissioners have chose once again to exhibit the 'ostrich-like' behavior which has characterized the Commission's consistent failure to address these remnants of the long-abolished fairness doctrine.”

In August, the FCC issued a statement saying its commissioners remained deadlocked on the issue and couldn't work on changing the rules. On Friday, it issued a public notice stating that the commissioners still couldn't reach a decision.

Commissioners Susan Ness and Gloria Tristani, both Democrats, support the regulations, while Harold Furtchgott-Roth and Michael Powell, both Republicans, say they are against them.

FCC Chairman William Kennard said he couldn't cast the deciding vote on the issue because he served on the National Association of Broadcasters legal staff during the 1980s when the original petitions were filed.

If the FCC decides to keep the personal attack and political editorial rules, the broadcast industry officials said they could then appeal the decision to the courts to see if those rules can withstand constitutional scrutiny.

Barbara Cochran, president of Radio-Television News Directors Association, said she was pleased that the court will force an end to the “logjam.”

“I believe we can at last look forward to getting judicial relief from government interference in the editorial judgments of broadcasters,” Cochran said.