'Personal attack,' 'political editorial' rules challenge goes back to FCC

From the Fall 1999 issue of The News Media & The Law, page 24.

In early August, the U.S. Court of Appeals in Washington, D.C. (D.C. Cir.) reviewed a challenge to the FCC’s personal attack and political editorial rules, which afford political candidates a limited right to respond to personal character attacks. The court ordered the FCC to provide a more detailed defense of the rules but left the rules in effect.

The FCC has retained the rules over the protest of broadcast groups for nearly 20 years, and in 1998 the agency narrowly decided to leave the rules intact when FCC commissioners were deadlocked 2-2 on the issue.

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The FCC in 1967 officially adopted “personal attack” and “political editorial” rules, both of which guarantee political candidates a right to respond to attacks on their character and integrity. The commission previously had enforced the rules as corollaries to the Fairness Doctrine, which originated in the 1930s and 1940s. When broadcast licenses first became available, the FCC conditioned possession of a license on agreement to follow Fairness Doctrine principles of covering important community issues and offering an opportunity for the “presentation of contrasting viewpoints.”

The U.S. Supreme Court has declared that neither the Fairness Doctrine nor the personal attack and political editorial rules violate First Amendment principles of freedom of speech and of the press. Both rules are premised on the notion that a limited broadcast spectrum constrains candidates’ ability to respond to negative character assaults.

Even though the rules survive First Amendment challenges, the constitutional issue of whether the FCC has exceeded its congressional grant of power remains. When Congress created the FCC, the agency mandate authorized it to regulate broadcasters only so long as such regulation continues to serve the public interest. In 1987, the FCC abandoned the Fairness Doctrine because it determined the doctrine no longer promoted the public interest. At that time, however, the FCC did not decide what impact its abandonment of the Fairness Doctrine would have on the political editorial and personal attack rules.

In 1983, the FCC issued a notice of proposed rulemaking concerning the validity of the political editorial and personal attack rules. The notice resulted from the FCC’s conclusion that the rules might no longer serve the public interest. For years after, however, the FCC delayed taking any action, and in 1987, the National Association of Broadcasters (NAB) requested “expedited rulemaking.”

In 1990, NAB again requested expedited rulemaking, and when the FCC failed to act, NAB asked the U.S. Court of Appeals for the District of Columbia (D.C. Cir.) to compel the FCC to begin seeking comments and update its record. In the winter of 1997, the court denied the request on condition that the FCC make significant progress in the following six months. In August 1997, the FCC published a notice stating that Commission members had deadlocked on whether to retain the political editorial and personal attack rules, and as a result, the rules would remain in effect.

FCC Chairman William Kennard did not vote on the rules because he had, in the past, represented NAB. The remaining commissioners split along party lines. The May 1998 Joint Statement of Democratic commissioners Gloria Tristani and Susan Ness favoring retention of the rules became the FCC’s position before the appellate court.

NAB and the Radio-Television News Directors Association (RTNDA) challenged the logic of the Joint Statement before the federal appellate court, alleging it was arbitrary and capricious, and thus an exercise of power by the FCC beyond its grant of authority by Congress, and that it constituted a violation of the First Amendment.

RTNDA and NAB argued that the FCC’s abandonment of the Fairness Doctrine revoked the political editorial and personal attack rules, which relied on the same rationale of providing response time, given the scarcity of available media outlets. NAB and RTNDA submitted that the rationale underlying these rules was no longer applicable in light of the expansion of available broadcast outlets and the FCC’s call to justify the rules. They also argued that the rules violate broadcasters’ First Amendment right to choose their own programming material.

A unanimous appellate panel sent the case back to the FCC in early August for further action. The court held that it could not determine whether the personal attack rule should be abandoned because the Joint Statement issued by the FCC defending the rule merely addressed personal attacks, and did not meet the FCC administrative procedural standard of positively asserting a case in favor the rule.

In light of the FCC’s rejection of the Fairness Doctrine and its notice of proposed rulemaking regarding the personal attack and political editorial rules, in which it cited a heightened need to defend the rules, the court found the FCC needed to do more than merely rebut arguments against the rules or show a non-arbitrary basis for the rules. Instead, the court ordered the FCC to affirmatively defend the rules within a reasonable period of time so that it could review the legality of the rules.

The Court of Appeals stated that the demise of the Fairness Doctrine should not lead to any assumption that the political editorial and personal attack rules cannot withstand judicial scrutiny. It only held that the Joint Statement failed to adequately defend the rules, and thus the court was unable to review the FCC’s argument in favor of retaining the rules.

RTNDA and NAB subsequently filed a petition with the U.S. Court of Appeals in Washington, D.C. (D.C. Cir.) requesting that the entire court review the panel decision. The organizations contend that the court has effectively granted the FCC yet another opportunity to delay justifying the political editorial and personal attack rules. (Radio-Television News Directors Ass’n v. Federal Communications Commission)