- The Washington Times - Friday, July 21, 2000

Broadcasters are in court for a fifth time urging the Federal Communications Commission (FCC) to lift rules restricting their political speech.
What is remarkable about this return trip is that the FCC itself proposed repealing these rules as unnecessary and unjustified 17 years ago, in 1983. To put this in perspective, the FCC has taken longer to consider this matter than the time it took to fight and win the American Revolution, adopt and reject the Articles of Confederation, and draft, ratify, and amend the Constitution (including the First Amendment, which these rules violate).
What is more, last year a liberal panel of the U.S. Circuit Court of Appeals for the District of Columbia forcefully rejected each of six rationales advanced by two commissioners for keeping these speech-restrictive rules in place. Still, the agency has done nothing. Thus, for yet another election season, broadcasters will be the only speakers precluded from expressing their views about which candidates they endorse.
From the 1940s until the mid-1980s, the FCC's fairness doctrine required broadcasters to address controversial issues of public importance. Two corollaries of this rule were formally adopted in 1967. The "personal attack rule" requires broadcasters to give anyone attacked on the air a right of reply. The "political editorializing rule" forces a broadcaster who endorses or opposes a political candidate to give the endorsed candidate's opponents a right to respond. As a result and quite naturally few broadcasters explicitly endorse candidates.
Broadcasters first asked the FCC to lift these two rules in 1980. They showed that repealing the political editorializing rule would cause many more broadcasters to endorse candidates. Such endorsements would allow broadcasters to do what every American newspaper does, and highlight a particular station's political perspective, if any.
In June of 1983, the FCC agreed that broadcasters had presented a compelling case that the rules do not serve the public interest. In 1985, the FCC proposed getting rid of the entire fairness doctrine, and in 1987 stopped enforcing that doctrine. In doing so, the agency also rejected the fundamental basis for the political editorializing and personal attack rules namely, the rationale that the broadcast spectrum was so scarce as to require government interference with speech.
Nonetheless, under intense political pressure from Congress, the FCC stopped short of repealing the personal attack and political editorializing rules. Instead, the agency said it would consider them in the separate, earlier-established proceeding.
In 1987, the broadcasters renewed their request to lift these rules. Then, nothing happened for a very long time. Broadcasters petitioned the agency again in 1990, but still nothing happened.
Finally, in 1995, the Radio Television News Directors Association asked the D.C. Circuit Court to force the agency to act. The FCC reopened the record, and the court gave the agency six months to decide whether to retain the rules.
In August of 1997, the FCC announced that it was tied, and could not resolve the matter. Broadcasters went back to court again. The next year, despite a change in commissioners, the FCC again announced that it was deadlocked 2-2. (Chairman William Kennard couldn't vote because he had worked on this matter as First Amendment counsel for the National Association of Broadcasters.)
This time, the court announced that it would review the opinion of the two commissioners who wanted to retain the rules as the agency's decision, because they were voting to preserve the status quo and effectively denying the broadcasters' request that the rules be changed. The two Democratic commissioners then wrote an opinion suggesting various theories for retaining the rules.
Last August, the D.C. Circuit rejected both. It called the commissioners attempt to justify the rules opaque, capable of justifying far broader rules and inconsistent with the FCC's decision to repeal the fairness doctrine. The court acknowledged that the challenged rules interfere with the editorial judgment of professional journalists and entangle the government in day-to-day operations of the media. The court also emphasized that the challenged rules "by their nature … chill at least some speech, and impose at least some burdens on activities at the heart of the First Amendment."
But even though the D.C. Circuit found that the FCC had failed to provide any rational explanation for keeping the rules in place, it did not force the agency to lift them. The court said that it was not inconceivable that the FCC could find some way to justify the restrictions, and sent the matter back to the agency.
The broadcasters then asked the full court to hear the case. They complained that giving the agency another chance was tantamount to establishing that a court can never require an agency to lift rules, however unjustified, until the agency has been given a second chance to explain itself. Broadcasters showed that allowing the FCC to keep in place rules which it found unjustified 17 years ago and which implicate First Amendment freedoms would send a dangerous signal to agencies that they can try anything at least once.
In opposing this petition, the FCC suggested that it would be appropriate to require it to act within six months, especially given impending national elections. Two judges agreed that the full court should hear the case, but the broadcasters' request was denied last December.
More than six months have now passed. National elections are around the corner, and the FCC has yet to begin the process of reconsidering the rules. And still the broadcasters wait.
This horrifying tale illustrates how hard it can be to get agencies to lift rules once they have been imposed. It highlights the value of automatic sunset provisions. Otherwise, mere inertia keeps often outdated rules in place. Congress should also impose limits on the time agencies can take to consider petitions to get rid of certain regulations.
Courts also need the authority, if they do not have it already, to invalidate agency actions the first time an agency is beaten in court. Most of all, agencies such as the FCC need to learn the lessons of basic fairness and respect for the rule of law. If courts won't or can't teach that lesson, then Congress and the people should.

Daniel E. Troy is a Washington lawyer and represents the National Association of Broadcasters and the Radio-Television News Directors Association.

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