Court says ruling is sound, the FCC has delayed too long

WASHINGTON — Accusing the FCC of “folly,” a federal appeals court Wednesday took the unusual step of rescinding the commission’s regulations when striking down the longtime political editorial and personal attack rules.

Broadcasters were jubilant over the judicial order, having waged a 20-year battle with the FCC over the rules, which required that candidates be given free airtime to respond to personal attacks, or to the endorsement of opponents. The legal charge was led by the Radio-Television News Directors Assoc. (RTNDA) and the National Assoc. of Broadcasters (NAB).

“This is a tremendous and historic victory for the First Amendment rights for broadcast journalists,” RTNDA prexy Barbara Cochran said. “This fight has not been easy or inexpensive, but it was the right thing to do.”

In its decree, the U.S. Court of Appeals for the District of Columbia took on the leadership of FCC Chairman William Kennard, who had asked the court for yet more time to study the 1967 rules before deciding their fate.

As part of the study, the FCC announced last week it would suspend the rules for 60 days to see how broadcasters used the airwaves to endorse candidates or attack a candidate’s character.

Court says time’s up

The appeals court said the FCC has had plenty of time to act, and that enough is enough. Conceding that the ruling amounted to “extraordinary action,” the appeals panel said the action is justified by the FCC’s unreasonable delay in justifying the two rules.

“In other words, it is folly to suppose that the 60-day suspension and call to update the record cures anything,” the court opinion stated.

Kennard said he was “disappointed” by the court’s decision, which came one day after he gave a speech charging broadcasters with failing in their public duty by giving more attention to profitable programming than to politics.

Don’t look for Kennard to drop the issue, since the FCC is about to launch a sweeping study of the obligations of broadcasters in the digital age, including whether the political editorial and personal attack rules should be reinstated.

A commission divided

The five-member commission itself, however, is bitterly divided over the controversial rules. Indeed, until several weeks ago it was deadlocked, with Kennard staying out of deliberations because of work he’d done years before for the NAB. Last month, he announced the issue was too important to keep passing up.

Kennard, joined by commissioners Susan Ness and Gloria Tristani, last week voted in favor of studying the rules, rather than tossing them out. The plan included suspending the rules for 60 days, after which the burden would be on broadcasters to show what happened in the interim.

Commissioners Harold Furchtgott-Roth and Michael Powell voted to repeal the rules, with Powell saying the FCC was trying to coerce “political speech in the final innings of a major national election.”

The political editorial and personal attack rules were adopted in 1967 to support the Fairness Doctrine, which itself was repealed in 1987.

The two rules left intact required a TV station endorsing candidates to give equal time to opponents. Likewise, free reply time must be given to candidates and others whose honesty, integrity and character are attacked on air.

Free-speech impediment

Cochran said the FCC rules have chilled free speech. A newspaper in any given community can endorse a candidate, but the local TV station can’t.

In her statement Wednesday, Commissioner Tristani said she understood the court’s ruling, even if she was “saddened” by it.

“The rules at issue have been part of the modern broadcast landscape for many years and have been both praised and attacked. The purpose of the rules has always been to ensure the American public is an informed citizenry, a goal fundamental to our democracy,” Tristani said.

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