In October 2000, the U.S. Court of Appeals for the District of Columbia Circuit handed free speech advocates a major victory against the Federal Communications Commission. Radio-Television News Directors Ass’n v. FCC, 229 F.3d 269 (D.C. Cir. 2000). The court of appeals ended the FCC’s 20-year-long failure to rule on the validity of its personal attack and political editorializing rules by directing the Commission to repeal these rules immediately.

    On Oct. 26, 2000, the FCC repealed the rules under attack, as well as the parallel rules applicable to cable television operators. Repeal of Modification of the Personal Attack and Political Editorial Rules, Order, MM Docket No. 83-484, FCC 00-386 (rel. Oct. 26, 2000) ("FCC Order"); see also 65 Fed. Reg. 66643 (2000) (publishing summary of Order repealing rules).

    Although the legal challenge to the personal attack and political editorializing rules has been dragging on for the past two decades, the appellate court’s ruling responded most immediately to an emergency motion that challengers of the rules had filed in July 2000. The emergency motion asked the court to do exactly what it did -- direct the Commission to repeal the rules at once. When the Commission failed to take adequate action in response to the motion, the court -- citing the Commission’s previous 20 years of inaction -- directed that the rules be repealed.

    The FCC issued the personal attack and political editorializing rules in 1967. The rules were promulgated to effectuate the FCC’s long-standing "fairness doctrine," which required broadcasters to present both sides of controversial issues of public importance. The personal attack rule required that "[w]hen, during the presentation of views on a controversial issue of public importance, an attack is made upon the honesty, character, integrity or like personal qualities of an identified person or group, the licensee shall" provide the person or group attacked with a tape or transcript, and a reasonable opportunity to respond. 47 C.F.R. Sec. 73.1920. The political editorial rule mandated that "[w]here a licensee, in an editorial, [e]ndorses or, [o]pposes a legally qualified candidate or candidates, the licensee shall" provide the other qualified candidates for the same office with notice and an opportunity to respond. Id. at Sec. 73.1930.

    The National Association of Broadcasters (NAB) first challenged these rules in 1980 on the grounds that, among other things, they chilled speech and infringed on broadcasters’ First Amendment freedoms. The Radio-Television News Directors Association (RTNDA) joined NAB in its challenge in 1983. In June 1983, the FCC agreed that the broadcasters had presented a compelling case that the rules did not serve the public interest. In 1985, the FCC proposed getting rid of the entire fairness doctrine.

    In 1987, the Commission stopped enforcing that doctrine. Among the many reasons stated for the FCC’s repeal was that the factual predicate for the doctrine -- the scarcity of broadcasters -- no longer existed. The FCC also found that the doctrine had produced a "chilling effect" on broadcasters’ coverage of issues of public importance. The FCC’s repeal of the fairness doctrine signaled its rejection of a fundamental basis for the political editorializing and personal attack rules -- namely, the rationale that the broadcast spectrum was so scarce as to require government interference with speech.

    Nonetheless, under intense political pressure from Congress, the FCC stopped short of repealing the personal attack and political editorializing rules. Instead, the Commission said it would consider them in the separate, earlier-established proceeding.

    In 1987, the broadcasters renewed their request to lift these rules. Then, nothing happened for a very long time. The broadcasters petitioned the Commission again in 1990, but still nothing happened. Finally, in 1995, RTNDA asked the U.S. Court of Appeals for the District of Columbia Circuit to force the Commission to act. The court gave the FCC six months to decide whether to retain the rules.

    In August 1997, the FCC announced that it was tied and could not resolve the matter. The broadcasters went back to court again. The next year, despite a change in commissioners, the FCC again announced that it was deadlocked. (Chairman Kennard recused himself because he had worked on this matter as First Amendment counsel for the National Association of Broadcasters.)

    On appeal, the D.C. Circuit announced that it would regard the opinion of the two commissioners who wanted to retain the rules as the FCC’s decision. The court reasoned that these commissioners were voting to preserve the status quo and thus were effectively denying the broadcasters’ request that the rules be changed.

    The two Democratic commissioners then wrote an opinion suggesting various theories for retaining the rules. Even though the Commission had adopted the rules as a means "to effectuate important aspects of the ... Fairness Doctrine," Amendment of Part 73 of the Rules, 8 F.C.C.2d 721, 722 (1967), Commissioners Ness and Tristani opined that "these rules are based on the public interest standard, and are not dependent on the continued existence of the fairness doctrine." Joint Statement of Commissioners Ness and Tristani Concerning the Political Editorial and Personal Attack Rules, 13 FCC Rcd. 21901 (1998), at para. 54. The broadcasters went back to court again.

    In August 1999, the D.C. Circuit forcefully rejected each of the six rationales advanced by the two commissioners for keeping these speech-restrictive rules in place. The court determined that the FCC’s explanation was insufficient to permit judicial review. The court explained that "[w]ooden application of principles underlying rhetoric ... would disserve the parties and muddle the First Amendment analysis." Radio-Television News Directors Ass’n v. FCC, 184 F.3d 872, 887 (D.C. Cir. 1999). Thus, the court remanded the case to the FCC for it to expeditiously explain its rationale in more detail.

    As of July 2000, the FCC had not taken any public action in response to the D.C. Circuit’s directive. After challengers of the rules filed an emergency motion, the FCC issued an order announcing that it would temporarily suspend the rules for 60 days. Repeal or Modification of the Personal Attack and Political Editorial Rules, FCC 00-360, 2000 FCC LEXIS 5190 (rel. Oct. 4, 2000). The FCC’s decision was ostensibly made because the existing record was "stale and devoid of empirical evidence," and suspension would allow the broadcasters to present evidence as to their actions while the rules were suspended. Id. at paras. 7, 8. Specifically, the Commission requested information on the number of political editorials run during the suspension and comparative information regarding the number of editorials run during prior election cycles. The FCC would likely not have taken even this action but for the fact that Chairman Kennard decided, because of the continuing deadlock, to participate for the purpose of initiating a proceeding to update the record.

    In its opinion directing the Commission to repeal the rules, the D.C. Circuit roundly criticized the FCC. The court stated that "[n]either the timing nor the substance of the [FCC’s July 2000] Order responds to the court’s remand order" from 1999. Radio-Television News Directors Ass’n, 229 F.3d at 270. Because the FCC did not issue the suspension order until well after the emergency motion had been filed, the court could "only conclude that its remand order for expeditious action was ignored." Id. at 271. But, putting aside the FCC’s dilatory action, the suspension order failed to provide an adequate justification for the rules as the D.C. Circuit had requested.

    Additionally, the D.C. Circuit found fault with the Commission’s decision to reinstate the rules before the Commission would have received any of the updated information requested of the broadcasters. Furthermore, the Commission’s order did not provide any assurance that the Commission would "proceed expeditiously" once it received the requested information from the broadcasters. As the court aptly explained, "it is folly to suppose that the 60-day suspension and call to update the record cures anything." Id. Based upon the Commission’s 20-year-long failure to act, and -- most immediately -- its failure to respond to the D.C. Circuit’s remand instructions, the court directed the Commission to repeal the personal attack and political editorializing rules.

    Although the FCC has accepted the D.C. Circuit’s discipline and has repealed the rules, there is a danger that the Commission may institute a new rulemaking proceeding "to determine whether, consistent with constitutional constraints, the public interest requires the personal attack and political editorial rules." FCC Order, at para. 2. Given a Bush presidency, the prospect that the FCC will resurrect these rules is considerably less likely than it would have been otherwise.