Fox Says Mandated PSAs Would Be Illegal


While broadcasters have argued generally against FCC mandates for DTV education public service announcements, Fox has weighed in strongly against them, calling them unnecessary, beyond the FCC's authority and an infringement on free speech.

Since broadcasters have already launched a PSA campaign as part of a multi-pronged education effort, the push back on FCC Chairman Kevin Martin's proposal for some mandatory schedule of the spots and general reporting requirements has received fairly gentle opposition.

But in a comments to the FCC last week as part of its inquiry into the mandates, Fox ramped up the opposition.

First, said Fox counsel Clark Wadlow, the mandates are unnecessary in light of voluntary efforts. For example, he said, between Oct. 22 and Oct. 31, the network had aired five PSA's in prime time, and that its owned and operated stations had aired hundreds more.

Second, said Fox, the FCC can't use its general regulatory authority to justify dictating broadcast program content. And third, compelled speech would be unconstitutional. Quoting the case of Hurley Vs Irish-America Gay, Lesbian & Bisexual Group of Boston, Fox said said "[T]he fundamental rule of protection under the First Amendment is that a speaker has the autonomy to choose the content of his own message."

If the government wants to spur the educational effort beyond broadcasters' voluntary campaign, said Fox, "it is of course free to adopt its own public education campaign, or to purchase spots on local broadcast and cable channels."

Echoing arguments cable has made against multicast must-carry, Fox also said that compelled PSA's would implicate the takings clause since the government would be compelling broadcasters to deliver a government message that it would otherwise have to pay millions for.