FCC's rules on free time to reply are nullified

Impatient court sides with stations

October 12, 2000|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON - After a 20-year challenge by broadcasters, a federal appeals court freed radio and television stations yesterday from the duty to allow on-air replies to personal attacks or political endorsements.

The ruling nullified a Federal Communications Commission policy, in place since 1967, that forced broadcasters to provide free air time to the targets of attacks and to opponents of candidates the stations have endorsed, so that those people could respond or defend themselves.

The two right-to-reply rules have been under challenge by broadcasters since 1980. They contend that such rules transfer to outsiders control over what they put on the air, in violation of their constitutional right of free speech.

Yesterday, a three-judge panel of the U.S. Circuit Court of Appeals in Washington, in a display of impatience with the FCC, ordered a halt to the rules. For years, the agency has been deadlocked over what to do about its "personal attack" and "political editorial" rules.

"Extraordinary action by the court is warranted in this case," the appeals court said. The commission, it added, "has delayed final action for two decades, to the detriment" of broadcasters' free-speech rights.

Barbara Cochran, president of the Radio-Television News Directors Association, a longtime challenger of the rules, said: "This is a tremendous and historic victory for the First Amendment rights of broadcast journalists. This fight has not been easy or inexpensive, but it was the right thing to do."

The appeals court left the FCC with the option of reinstating the rules if it can justify them as necessary for the broadcasting public's protection - something the court said the agency has not yet done.

FCC Chairman William E. Kennard said the agency would soon decide whether to reinstate the obligations and to answer "the much more important question: How are broadcasters ... enhancing the democratic process?" Kennard did not say whether the agency would appeal the decision to the Supreme Court or to the full appeals court.

Andrew Jay Schwartzman, head of the Media Access Project and a supporter of the rules, said "the public is going to suffer as a result of this unfortunate turn of events because they will lose their access to opposing points of view."

The appeals court appeared to be particularly upset that the FCC failed once again this week to decide on the continued need for the rules and instead ordered a new round of study, along with suspending the rules for 60 days. That order again divided the commission, 3-2.

"It is folly," the appeals court said yesterday, "to suppose that the 60-day suspension and [a further review] cures anything. ... The commission, once again, has done nothing to cure the deficiencies of which it has been long aware" - that is, the repeated failure to act on the plea to end the two rules.

Without the rules in effect, radio, TV and cable station operators will regain full control of their broadcast content, with one exception: A federal law still requires a station that gives one political candidate free air time to provide "equal time" to opponents.

The rules that were nullified yesterday grow out of the FCC's "fairness doctrine." That rule required broadcast stations to cover "controversial issues" and to allow "contrasting viewpoints" to be voiced.

Under that doctrine, the FCC imposed its rules regarding personal attacks and political editorials. The FCC stopped enforcing the fairness doctrine itself in 1987. But it never abandoned the two right-to-reply rules, even though several members of the commission over the years have supported broadcasters' attempts to scuttle them.

The News Directors Association, joined by the National Association of Broadcasters, first asked the FCC in 1980 to wipe out the two rules. Frustrated by inaction at the FCC, the broadcast groups persuaded the appeals court last year to order the agency to move ahead on their request.

Still stymied by its internal deadlock on the issue, the FCC took no action - until this week - when it suspended the two rules after the broadcasters asked the appeals court for an emergency order to force their repeal.

In ordering a 60-day suspension and a new study of the rules, the FCC's majority also signaled the possibility that it might revive the discarded "fairness doctrine."

Yesterday's court order does not bar the FCC from reopening that issue or reconsidering the two right-to-reply rules. The court warned the commission, however, that any new study of the rules must consider the "constraints" that the Constitution's First Amendment imposes on the agency's power over broadcasters.

Two of the five commissioners have argued - and did so again this week - that the right-to-reply rules, as well as the "fairness doctrine," cannot survive a First Amendment challenge.

Baltimore Sun Articles
Please note the green-lined linked article text has been applied commercially without any involvement from our newsroom editors, reporters or any other editorial staff.