The U.S. Court of Appeals in Washington last week threw out the FCC's right-of-reply rules, which required TV and radio stations to provide airtime for respondents to political editorials or personal attacks. But like a horror-movie killer, they still could rise again.
The court chastised the FCC for its endless delays and inability or unwillingness to justify the rules, which were the remaining vestiges of the long-gone Fairness Doctrine (see sidebar, opposite page): "The Commission still has not provided adequate justification for the rules," Judge Judith Rogers and Chief Judge Harry Edwards found last week.
But the panel did not nail the coffin shut.
Because the court did not rule on their legal merits, the rules may still be revived by the FCC if it chooses to justify them. By the same logic, the FCC also could reinstate the Fairness Doctrine (as the Democratic party has pledged to do), which required TV and radio stations that air controversial issues to provide airtime for opposing viewpoints. The FCC scrapped the doctrine in 1987, but left the personal-attack and political-editorial rules on the books.
"The court's decision doesn't close the door, and it doesn't decide the ultimate constitutional issues," said Robert Corn-Revere, a Washington First Amendment attorney opposed to rules governing broadcast content.
Frank Lloyd, a Washington communications attorney, was disappointed to see the right-of-reply rules fall. "But the door is definitely open for the FCC to adopt something similar."
FCC Chairman William Kennard made that clear last week. "We intend to move forward promptly to study the public-interest obligations of broadcasters in the digital age, including whether these rules should be reinstated."
Kennard had recused himself from this issue because he had argued for scrapping the rules and the Fairness Doctrine when he worked for the National Association of Broadcasters. But last month, after the court set a deadline for justifying the rules, he unrecused himself to break a 2-2 tie along party lines.
But rather than justifying the rules, the FCC's answer to the court was to suspend the rules for 60 days to gather information on how broadcasters would handle their newfound freedom. The Commission still plans to collect that information.
Some saw the suspension and fact-finding as a way to further delay the court and engineer a win-win scenario: If broadcasters didn't air political editorials, the FCC would be able to say that the rules didn't stifle free speech. If they did, the FCC could say that broadcasters didn't provide equal time. "Whatever happened, it would have been taken as a reason to revive the rules," Corn-Revere says.
But the FCC's decision only angered the court.
"It is folly to suppose that the 60-day suspension and call to update the record cures anything. As petitioners point out.the Commission updated the record four years ago and still did not provide an adequate justification for the rules."
Still, even with the possibility that the rules could be revived, the National Association of Broadcasters and the Radio-Television News Directors Association, who had petitioned the court to throw out the rules, were overjoyed.
"This decision represents an historic victory..It is clear from this decision that future FCC attempts to regulate free speech will be viewed with a high degree of skepticism," says NAB President Eddie Fritts.
"They are dead. They are dead," said RTNDA Executive Director Barbara Cochran. "But we can't ease our vigilance."
Some say Kennard is eager to fight for the rules because some Democrats want to revive the Fairness Doctrine. Democrats called for "reinstatement of the Fairness Doctrine" in their party platform.
"Given that it was in the.platform, it is to Kennard's advantage to show that he and they are implementing it," says Dan Troy, a partner at the Washington law firm of Wiley, Rein & Fielding who represented both NAB and RTNDA in fighting the rules.
Even some who wanted the rules to stay in place sympathized with the court.
"The court was expressing its not surprising frustration and anger at the commission for not ruling on underlyng merits," said Andrew Schwartzman, president of non-profit law firm Media Access Project. "The American people are the ones victimized by the FCC's inability to get its act together."