FCC ignores deadline for ‘political attack’ rules

Tuesday, October 3, 2000

Two leading national broadcast organizations filed an emergency motion
yesterday urging a federal appeals court to dismantle the rules that require
them to air opposing viewpoints.

The motion, filed by the National Association of Broadcasters and the
Radio-Television News Directors Association in the U.S. Court of Appeals for
the D.C. Circuit, followed the Federal Communications Commission’s failure to
meet a Sept. 29 deadline for justifying the existence of the rules.

“The time has come for this court to put an end to the FCC’s endless
refusal to repeal these unsustainable limits on political speech,” the
broadcasters’ petition reads. “Each day these challenged rules are in effect
during the heart of the national electoral season — the most important
political months of every four-year electoral cycle — further infringes
on the broadcasters’ and the public’s First Amendment rights.”

RTNDA President Barbara Cochran said the motion urges the court for a
decision by Oct. 9, “so our radio and television stations can take part in the
quadrennial election cycle.”

Broadcasters contend the political-editorializing and personal-attack
rules violate their First Amendment rights because they essentially prohibit
stations from offering editorials. For every broadcast that includes an
endorsement of a candidate or attacks the character of an individual, the rules
require stations to provide free response time to the other candidates or the
offended person.

The rules sprang up as corollaries to the Fairness Doctrine, which was
first unveiled by the FCC in 1949 and 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 1987, the FCC withdrew the Fairness Doctrine, deeming it to be
“unconstitutional on its face.” But it left the personal-attack and
political-editorializing rules intact.

For almost two decades, the RTNDA and the NAB have urged the court and
the FCC to do away with the rules. In 1998, the FCC considered repealing them
but deadlocked in a 2-2 vote. Chairman William Kennard then 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.

Last month, the FCC appeared to be moving on the issue for the first
time in two years when Kennard announced that he might vote on the matter.

“While it is usually possible to find another federal employee to
perform a task, it is simply not possible to reassign my authority to vote on
commission matters,” Kennard said in a Sept. 18 statement. “Moreover, when one
commissioner is recused the commission does not usually deadlock.”

But the commission remained silent as the official deadline passed.
Spokesman David Fiske did not return several telephone calls to his office this

Both RTNDA’s Cochran and NAB spokesman Dennis Wharton, however, said
they had heard that the commissioners might still consider the issue later this
week despite the missed deadline. They also said they had heard that the
commission may be seriously considering the Democratic Party’s demand for the
reinstatement of the Fairness Doctrine.

In their motion, the broadcasters argue that the FCC has had
considerable time to address the rules and has failed to do so even under the
threat of court action.

“Petitioners now entreat this court to compel the FCC — after
its years of inaction, inconsistency and inability to justify its position
— to repeal permanently the personal attack and political editorializing
rules currently interfering with the First Amendment rights of journalists and
the public,” the petition reads.

“The only constancy to the FCC’s stance over these many years has been
its seemingly permanent refusal to respect petitioners’ First Amendment
rights,” it adds.

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