FCC suspends on-air rebuttal rules for 60 days

Thursday, October 5, 2000

WASHINGTON — Federal rules that require broadcasters to give
candidates a chance to respond to personal attacks and political endorsements
were suspended yesterday for the duration of the 2000 campaign.

Over the vehement objection of its Republican members, the Federal
Communications Commission put the rules on hold, saying that the election
season offered “an ideal time to determine how broadcasters are affected by the
political editorial rule.”

The regulation requires TV and radio stations that endorse a political
candidate to notify and give free rebuttal time to the candidate’s opponent.
The other suspended rule requires broadcasters to provide politicians or other
private citizens with airtime to respond when they have been attacked during a
program.

The FCC also said it would seek comments on whether to expand the
scope of the rule in giving parties a right of reply to broadcasts.

The FCC’s 3-2 decision came after the National Association of
Broadcasters and the Radio-Television News Directors Association filed an
emergency motion Oct. 2 asking the U.S. Court of Appeals for the District of
Columbia to dismantle the rules. The two groups filed the motion after the FCC
failed to meet a Sept. 29 deadline for justifying the existence of the
rules.

In an interview with The New York
Times,
FCC Chairman William Kennard said the agency had
suspended the rules out of concern that the appeals court would abolish or
modify them.

“It would be irresponsible to leave this to a court,” Kennard told the
Times. “It seemed clear that the
court was prepared to modify or vacate the rules based on an old, stale record.
The majority of Americans still get most of their news and information from
broadcasting, and broadcasting remains the main way politicians communicate
with the public.

“And that’s why I felt personally before we allowed a court to just
vacate the rules on our books for 30 years, we take another look,” he said.

But broadcasters howled at the possibility that the commission review
could lead to a revival of a now-defunct provision called the Fairness
Doctrine, which required broadcasters to air multiple viewpoints when covering
issues and allowed parties to complain to the FCC.

“We are saddened that politics takes a higher priority than the
Constitution,” said NAB President Edward Fritts. “It is outrageous that the FCC
refuses to discard tired regulations that stifle free speech rather than
enhance it.”

Public interest advocates said they hope the FCC review yields a
framework to ensure broadcasters provide fair coverage. But they did express
some concern about the suspension of the rules during the election season.

“There will be some instances in which the public will be left with a
one-sided view of the elections,” said Andrew Jay Schwartzman president of the
public interest firm, the Media Access Project. “That’s unlawful and
unfortunate.”

NAB and the RTNDA had challenged the decades-old FCC rules, arguing
that they were unconstitutional and no longer needed given the growth of cable,
satellite TV and the Internet as sources of news and information.

Last year, the U.S. Court of Appeals for the District of Columbia
returned the issue to the commission seeking further justification for the
rules.

Yesterday, the commission said it would use the 60 days to test the
validity of the claims made by broadcasters, who argued that the rules have a
“chilling effect” on programming and deter stations from presenting
editorials.

Specifically, the FCC asked broadcasters to provide evidence at the
end of the two months on the number of political editorials run compared with
previous election cycles and the extent to which broadcasters editorialize on
topics unrelated to political campaigns.

FCC Commissioners Susan Ness and Gloria Tristani, who support
retaining the rules, said they would consider modifications to reduce the
burden on broadcasters. For example, a candidate may have to request reply time
from the station, rather than expect to be offered it in advance of an
editorial or endorsement.

The commission also wants broadcasters to provide information on
complaints about personal attacks made during the 2-month period, even during
news interviews or other programming currently not subject to the rule.

FCC Commissioners Harold Furchtgott-Roth and Michael Powell, who
sharply dissented from the decision, chided the majority for trying to
“quantify” the impact of the rules on free speech and said the action could
have been taken months earlier.

“To my mind, the cat-and-mouse game that this agency has played … is
unconscionable,” wrote Furchtgott-Roth. “By now, the commission should and
could have explained how it continues to find the rules to serve the public
interest.”

Powell called the agency’s order “a day late and a dollar short” and
said it was “inappropriately coercive,” attempting to force broadcasters to
prove the rules’ flaws by airing more editorials, the
Times reported.

“Knowing that the political editorial rules will be restored at the
end of the experimental period, and taking the hint that any hope of the rules
being eliminated rests on demonstrating increased political speech, a
broadcaster likely will feel he has no choice but to broadcast political
editorial content,” Powell wrote, as reported by the
Times.

“I believe this clever device presents the danger of government
coercing political speech in the final innings of a major national
election.”

The appeals court has asked the RTNDA and NAB to file a response to
the FCC’s action by tomorrow, the RTNDA said in a news release.

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