Be free. Watch out.
In response to court challenge, FCC finally lifts attack rules, but its real motive might be to tighten regulations for broadcasters
By Bill McConnell -- Broadcasting & Cable, 10/8/2000 8:00:00 PM
Broadcasters have argued for decades that their freedom to endorse political candidates has been limited by government rules granting a right-of-reply to campaign opponents. Last week, regulators gave stations free rein to weigh in on this year's elections.
The caveat for broadcasters: tougher obligations could return if regulators don't believe stations made proper use of their temporary freedom.
In a bid to stave off a ruling by federal judges, the FCC last week said it would suspend until Dec. 3 rules requiring stations airing political editorials and personal attacks to yield airtime for rebuttals.
Although broadcasters have pushed to eliminate the rules for more than 30 years in their efforts to gain the same First Amendment freedom accorded print media, industry trade groups derided the FCC's action as a ploy to impose new obligations later-perhaps even reviving the Fairness Doctrine, which once required stations to cover controversial issues and seek out opposing views. The doctrine was eliminated in 1987.
FCC officials said they would evaluate whether the rules should be preserved, expanded or dropped. Although the decision-approved 3-2 along party lines-did not indicate which way the panel was leaning, Republican commissioners and the broadcast industry were alarmed and charged that the Democrats are searching for ways to add new regulations.
"The commission's reasons are transparent: to preserve its authority to regulate broadcast speech content with less worry about First Amendment constraint," wrote Republican Commissioner Michael Powell.
"This is a Trojan horse aimed at reviving the Fairness Doctrine," warned Barbara Cochran, president of the Radio-Television News Directors Association.
RTNDA and the National Association of Broadcasters are challenging the right-of-reply rules in federal court. In response to that challenge, the federal appeals court in Washington ordered the FCC to justify keeping the rules-which are outgrowths of the Fairness Doctrine-given that they could "chill" broadcasters' willingness to take a stand on political and controversial topics. Arguing that the FCC has failed to justify the rules, the industry groups asked the court to vacate them.
Although public advocates want the FCC to demand more coverage of controversial issues and public affairs, they say suspending the right-of-reply requirement is a big mistake.
"The cost of suspension outweighs the possible benefits," said Andrew Schwartzman, president of Media Access Project. "There probably will be isolated instances where a few communities will get one side of important issues."
He also said broadcasters' worries about Fairness Doctrine revival were overblown. Even if the FCC decides broadcasters performed poorly during the suspension, he said, there are alternatives to reviving the Fairness Doctrine. "Broadcasters have an obligation to cover controversial issues and to do so fairly," he said. To make that happen, the FCC could allow stations to satisfy the requirement with "open mikes," with time allotted for community access or other mechanisms.
Perhaps, but reviving the doctrine is a specific plank in the Democratic Party's campaign platform and appears to figure in the campaign-finance-reform package that would be the avowed "job one" of a Gore presidency.
At the end of the 60-day suspension of the rules, the FCC wants broadcasters to report on their editorializing practices. Among the issues being tracked: the number of editorials aired both during the suspension and in prior elections; whether the editorials concern national, state or local elections; and whether other media outlets editorialize on those campaigns. The reports are due Feb. 1; public replies, Feb. 16.
The Fairness Doctrine was repealed by the commission in 1987 after coming under fire from the courts. Broadcasters have argued ever since that the personal-attack and political-editorial rules, as offshoots of the doctrine, should be thrown out, too.
The commission has failed to take action on the industry's repeated requests and, since FCC Chairman William Kennard joined the commission in 1997, has been deadlocked over the issues because he has recused himself from the case. Prompted by court pressure to end the deadlock, Kennard decided to end his recusal.
"It is outrageous that the FCC refuses to discard tired regulations that stifle free speech rather than enhance it," said National Association of Broadcasters President Eddie Fritts. "We are saddened that politics takes a higher priority than the Constitution."
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