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For the past four years, Daniel Troy and his team of lawyers at D.C.’s Wiley, Rein & Fielding have been trying to get the Federal Communications Commission to repeal or modify two controversial rules that impose right-to-reply obligations on broadcasters. In a series of filings with the FCC and the U.S. Court of Appeals for the D.C. Circuit, the lawyers repeatedly sounded the notes that the rules are unnecessary, outdated, and unconstitutional. The agency consistently failed to act. Last week, the FCC finally moved, suspending the personal attack and political editorial rules for 60 days after being hit with an emergency motion that Troy filed Oct. 2 with the circuit. The agency thus set the stage for a possible review of the long-dormant fairness doctrine — a contested issue that has been simmering for two decades. The personal attack rule requires broadcasters to give a right of reply to people criticized on the air. The political editorial rule gives a similar right to candidates running against politicians endorsed by a radio or TV station. Both are anathema to the nation’s broadcasters, who see them as interfering with free speech and as a vestige of the FCC’s fairness doctrine, which has been a dead letter since a Republican-dominated FCC decided in 1987 to stop enforcing it. Among other things, the case features a not always amicable dialogue between an agency whose actions have been far from speedy and an appeals court that has come close to running out of patience. In the FCC’s latest foray, it divided sharply along partisan lines in response to Troy’s motion filed on behalf of the National Association of Broadcasters (NAB) and the Radio Television News Directors Association (RTNDA). “After a full twenty years of delay, this Court should not allow its mandate to be interpreted to authorize the FCC to begin a third decade of procrastination,” Troy wrote, noting that in August 1999 a three-judge panel of the circuit had rejected six justifications that the FCC had put forward to support the rules. The circuit ordered the FCC to act “expeditiously.” The Wiley, Rein lawyers argued that as long as the rules remain in effect, broadcasters’ political speech will be stifled in the final weeks of the 2000 election. They pointed out that, in July, the circuit, responding to an earlier petition, had given the FCC a deadline of Sept. 29 and that the agency had done nothing. They asked for an Oct. 9 emergency hearing on a writ of mandamus ordering the FCC to act. The FCC responded within 48 hours. On Oct. 4, it issued its order suspending the rules for 60 days, through Dec. 3, “to enable us to obtain a better record on which to review the rules.” During the 60 days, the broadcasters are supposed to monitor the effect of the suspension on political editorials and personal attacks by stations nationwide. They then have 60 more days, until early February, to compile evidence and present it to the FCC. At the same time, the Democratic-dominated FCC said it would take the opportunity to review the 1987 decision to stop enforcing the fairness doctrine. That doctrine, considerably broader than the personal attack and political editorial rules, required stations to cover controversial issues, to provide balanced coverage, and to give free reply time upon request. The 2000 Democratic platform calls for reviving the doctrine. DEADLOCKED The FCC explained that its long delay was not a result of procrastination. It stemmed from a longstanding 2-2 deadlock between Democratic commissioners Gloria Tristani and Susan Ness, who wanted to keep the rules, and Republican members Harold Furchtgott-Roth and Michael Powell, who wanted to abolish them. Chairman William Kennard, a Democrat, had recused himself because he participated in this proceeding on behalf of the NAB in the early 1980s. But on Sept. 18, Kennard made the surprise announcement that he had consulted agency ethics officials and had decided to participate. He referred to the D.C. Circuit’s “apparent frustration” as one motivation. Kennard joined Tristani and Ness in voting for the 60-day suspension; the two GOP members dissented, saying that the FCC should simply acknowledge that it can’t justify the two rules under the First Amendment. The FCC’s composition may change depending on the presidential election. Ness continues to serve even though her term expired in July 1999. She has been re-nominated but not confirmed. Furchtgott-Roth’s term expired in June 2000. Agency lawyers told the D.C. Circuit on Oct. 4 that the request for mandamus is now moot since the agency has acted. The case is being handled by an unusual two-judge panel, since the 1999 unanimous panel decision was made by Chief Judge Harry Edwards and Judges Patricia Wald and Judith Rogers. Wald has retired from the court, but under court rules a replacement would be named only if the two others disagree with each other. The broadcasters say the suspension doesn’t make the case moot. “There are still important First Amendment harms accruing to us,” says Troy. “The rules should not spring back into place Dec. 3 and remain in place indefinitely.” In an Oct. 5 filing, Troy wrote, “The Court should not be distracted by the FCC’s trivial suspension of the rules.” The broadcasters are also unhappy about the specter of the possible return of the fairness doctrine. In response to the NAB and RTNDA’s argument that the personal attack and political editorial rules are mere vestiges of the abolished fairness doctrine, the agency seems to have become more interested in reviving the doctrine than in dropping the rules. “The FCC is now suggesting some sort of right of reply on all issues of public importance, in which broadcasters would have to give the right to reply to anyone who objects to Dr. Laura or to Peter Jennings or to Rush Limbaugh,” says Troy. Andrew Schwartzman, head of the D.C.-based Media Access Project and a supporter of the fairness doctrine, is unhappy for different reasons. “These rules are statutorily mandated and can’t be suspended,” says Schwartzman. “The commission reached the wrong result for the right reason.” Schwartzman says that the 1987 FCC decision to stop enforcing the fairness doctrine was incorrect and should be overruled. “I agree that it’s incompatible with keeping the [personal attack and political editorializing] rules,” says Schwartzman. “But they say, Lower the river. I say, Raise the bridge.”

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