After 18 years, the Federal Communications Commission rejected a petition by the Radio-Television News Directors Association (RTNDA) and National Association of Broadcasters (NAB) to repeal the FCC's personal attack and political editorializing rules. The FCC's decision is currently being reviewed by the U.S. Court of Appeals for the District of Columbia Circuit.

   NAB began its challenge in 1980 when it argued that both rules should be overturned for a number of reasons, including their chilling effect and infringement on broadcasters' First Amendment freedoms. RTNDA joined NAB in its challenge in 1983. The personal attack rule requires 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. §73.1920 (1997). The political editorial rule mandates that "[w]here a licensee, in an editorial, endorses or opposes 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. 47 C.F.R. §73.1930 (1997).

   While the NAB's petition was pending, the Commission rejected the Fairness Doctrine upon which the personal attack and political editorializing rules are based. In essence, the Fairness Doctrine held that broadcasters had an affirmative duty generally to encourage and implement the broadcast of all sides of controversial public issues. The Commission rejected the doctrine in 1987 for numerous reasons, including the fact that spectrum scarcity (a factual predicate of the doctrine) no longer existed and that the doctrine had produced a "chilling effect" on broadcasters' coverage of issues of public importance.

   In 1998, an equally divided Commission (one of the five commissioners did not participate) refused to repeal the personal attack and political editorializing rules. Notwithstanding that 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 721-22 (1967), Commissioners Susan Ness and Gloria 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, FCC 83-484, ¶54 (June 22, 1998).

   On the First Amendment issue, Commissioners Ness and Tristani disagreed with the full Commission's rejection of the scarcity rationale in the FCC's decision repudiating the Fairness Doctrine. Id. at 65. Commissioners Ness and Tristani did not rebut evidence that questioned the Fairness Doctrine, nor did they question the full Commission's analysis of that evidence in its decision overturning the doctrine. Instead, they characterized the FCC's rejection of the scarcity rationale as "eleven-year old dicta." Id. at ¶¶65-66. Commissioners Ness and Tristani found that the personal attack and political editorializing rules satisfy the relaxed standard of review that they would apply under the First Amendment.

   Commissioners Michael Powell and Harold Furchtgott-Roth disagreed. They emphasized that "the regulations at issue ... were expressly and solely designed to implement the fairness doctrine." Joint Separate Statement of Commissioners Powell and Furchtgott-Roth Concerning the Political Editorial and Personal Attack Rules, FCC 83-484 at 5 (June 22, 1998). "It remains the official position of this agency, [however], that the fairness doctrine affirmatively disserves the public interest and that the factual assumptions underlying the adjudication of its constitutionality ... are no longer valid." Id.

   Indeed, Commissioners Powell and Furchtgott-Roth concluded that, of the five reasons provided in 1987 to show how the Fairness Doctrine no longer served the public interest, "two ... clearly mitigate more strongly in favor of regulatory repeal here, and the rest are at least equally applicable." Id. at 7. Commissioners Powell and Furchtgott-Roth therefore reasoned that both the "general deductive implications of [the FCC's decision to overturn the fairness doctrine]" and the "specific application of that case to th[is] petition" make it "irrational to conclude ... that the personal attack and political editorial rules affirmatively serve the public interest." Id. at 7-9.

   Because of their conviction that preserving the personal attack and political editorial rules was irrational, Commissioners Powell and Furchtgott-Roth found it unnecessary to definitively address the First Amendment question. Nonetheless, they observed that "the Commission, in its capacity as the relevant expert agency, has rejected spectrum scarcity as a matter of technological fact," and "the constitutionality of these rules is [therefore] not free from doubt." Id. at 15.

   NAB and RTNDA have appealed the FCC's decision to the U.S. Court of Appeals for the District of Columbia Circuit. They argue that the FCC's failure to repeal the rules violates the Administrative Procedure Act as well as the First Amendment. On the First Amendment argument, NAB and RTNDA assert that the rules do not further any substantial governmental purpose for two reasons. First, in light of the demise of the Fairness Doctrine, any purported governmental interest in balance or diversity would not be substantial because the extraordinary variety of the media marketplace more than adequately serves such interests without intrusive government regulation. Second, the practical effect of the challenged rules is to impede balance and diversity in the presentation of issues of public importance. NAB and RTNDA also maintain that the challenged rules should be subject to strict scrutiny, because the FCC has sent the signal that the scarcity rationale no longer justifies relaxed scrutiny for content-based regulation of broadcaster speech. The court of appeals will hear arguments in April 1999.