Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | MM Docket No. 83-484         |
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| Repeal or Modification of the    | ) |                              |
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| Personal Attack and Political    | * |                              |
| Editorial Rules                  |   |                              |
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**ORDER**

**AND REQUEST TO UPDATE RECORD**

**Adopted:** October 3, 2000 **Released:** October 4, 2000

By the Commission: Commissioners Furchtgott-Roth and Powell dissenting
and issuing separate statements

# introduction and background

1.  In this *Order and* *Request to Update Record*, issued in response
    to the D.C. Circuit Court of Appeals' (D.C. Circuit) decision in
    *Radio-Television News Directors Ass'n v. FCC* (*RTNDA*),[^1] we
    suspend the political editorial and personal attack rules[^2] for 60
    days to enable us to obtain a better record on which to review the
    rules. The court recognized that we considered the record previously
    before us to be "old and possibly flawed" and encouraged us to
    "consider modern factual and legal developments."[^3] This brief
    suspension, which we hope will provide useful data on the effect of
    the rules, will allow us "to work from a relatively clean procedural
    slate," as the court suggested.[^4] In addition, we take this
    opportunity to make clear that much of the discussion in *Syracuse
    Peace Council*[^5] accompanying the Commission's repeal of the
    fairness doctrine has been repudiated. We also ask those parties to
    this proceeding who believe that it is not possible to
    "distinguish\[\] political editorials and personal attacks ... from
    subjects formerly covered by the fairness doctrine"[^6] to consider
    whether the rules at issue should be extended to cover matters that
    previously were subject to the fairness doctrine.

2.  The lengthy history of this proceeding was summarized by the D.C.
    Circuit last year in its opinion in *RTNDA*. In 1983, after the
    National Association of Broadcasters (NAB) filed a petition asking
    the Commission to repeal the political editorial and personal attack
    rules, the Commission issued a Notice of Proposed Rulemaking
    proposing to repeal or modify the rules.[^7] The Commission
    subsequently stopped enforcing the related fairness doctrine in 1987
    in *Syracuse Peace Council.* For nearly a decade after the repeal of
    the fairness doctrine, the Radio-Television News Directors
    Association (RTNDA) and the NAB ("the Broadcasters") did not
    vigorously press their attack on the political editorial and
    personal attack rules, but they renewed their challenge in 1996.
    Since then, the Commission has spent a considerable amount of time
    on this proceeding, but has twice deadlocked, despite significant
    changes in membership.[^8]

3.  After the second deadlock, the D.C. Circuit considered the
    Broadcasters' arguments concerning the validity of the rules. As a
    threshold matter, the court rejected the Broadcasters' contention
    that the Joint Statement of the two commissioners favoring retention
    of the rules should not be accorded deference as the decision of the
    Commission.[^9] To the contrary, the court held that "a deadlocked
    vote on a proposal to repeal a rule constitutes reviewable, final
    agency action in support of the status quo," and that it was
    appropriate to "accord the Joint Statement the same respect normally
    accorded agency decisions in rulemaking proceedings."[^10] The D.C.
    Circuit also rejected the Broadcasters' principal argument on the
    merits, which was that "the *Syracuse* order of its own force drags
    the political editorial and personal attack rules down with the
    fairness doctrine to which they were moored."[^11] Rather, the court
    explained, in agreement with the Joint Statement, "there is nothing
    inherently inconsistent about preserving the two challenged rules
    despite abrogation of the fairness doctrine."[^12] The court also
    declined to review the Broadcasters' contention that the rules
    unlawfully "chill protected expression, impose undue administrative
    burdens on broadcasters, and have been rendered obsolete by the
    proliferation of new media technologies and outlets."[^13] At the
    same time, the court assumed that the rules "interfere with
    editorial judgment" to some extent, even though the record was not
    entirely clear on the extent of that interference.[^14]

4.  After rejecting the Broadcasters' principal argument, the court
    remanded the matter to the Commission, explaining that the Joint
    Statement had failed to square the rationale underlying the
    Commission's decision to repeal the fairness doctrine with the
    retention of the rules at issue. Generally, the court said that,
    "\[a\]fter 1987, the instant rulemaking should have involved
    distinguishing political editorials and personal attacks, which are
    regulated, from subjects formerly covered by the fairness doctrine
    but that have been deregulated, such as non-editorial political
    commentary, editorials on political issues aside from candidate
    endorsements, and non-personal attacks." The court found, however,
    that the Joint Statement was "mostly silent on this salient
    question, choosing instead to rebut specific attacks against the
    rules."[^15] More specifically, the court noted that "the Joint
    Statement recognizes that the current rules are broader than their
    rationales suggest," explaining, for example, that "the fact that a
    national news network rarely covers local state assembly races may
    explain why a right of reply is necessary on a local network
    affiliate for a state assembly candidate maligned by that affiliate,
    but it does not follow that the local affiliate must also be the
    venue for a right of reply involving a presidential candidate."[^16]

5.  In addition, the court noted that, although the Joint Statement
    criticized the Broadcasters for relying on "old and possibly flawed
    data to show a chilling effect on editorializing, the FCC offered no
    updated or more credible information to the contrary."[^17]
    Recognizing the staleness of the record, the court encouraged the
    Commission "to work from a relatively clean procedural slate,
    consider modern factual and legal developments, and obtain comments
    on specific proposals to modify the rules."[^18] The court thus
    urged the Commission "to supplement its analysis" with evidence
    superior to that which had previously been supplied.[^19] The court
    closed its opinion by directing the Commission to "act
    expeditiously."[^20]

# discussion

6.  We have been struggling to implement the court's decision. This has
    been difficult because, as the court recognized, the Chairman had
    recused himself from this proceeding, two commissioners would repeal
    the rules, and the two remaining commissioners have authority to
    defend "the status quo" but questionable authority to take
    affirmative steps such as initiating a new rulemaking proceeding or
    proposing modifications of the rules.[^21] In response to a petition
    filed by the Broadcasters seeking recall of the mandate or the
    issuance of a writ of mandamus, the D.C. Circuit on July 24, 2000,
    ordered that the petition be held in abeyance until September 29,
    2000, while inviting the Broadcasters to "supplement their requests
    and seek whatever action they deem appropriate from the court" if
    the Commission has not acted by that date.[^22] We understand, and
    share, the court's apparent frustration with the Commission's
    inability to resolve this matter.

7.  On account of the continuing deadlock, the Chairman decided, after
    the court's order of July 24, to participate in this matter for the
    purpose of initiating a proceeding to update the record. The
    existing record is stale and devoid of empirical evidence, except
    for the 1982 survey criticized in the Joint Statement. In fairness
    to the Broadcasters, it is difficult to see how they could present
    evidence that is not susceptible to criticism that it is biased and
    self-serving, while the rules are in effect, concerning what they
    would do if the rules were not in effect. To develop a better
    record, therefore, we have decided to suspend the rules for 60 days
    following the adoption of this *Order* to create a better record
    upon which to review the rules at issue. Of course, elections will
    be held during the 60-day period, making it an ideal time to
    determine how broadcasters are affected by the political editorial
    rule. While less obvious, it is also an ideal time to obtain
    evidence regarding the effect of the personal attack rule, which was
    established in a series of cases in the early 1960s involving
    personal attacks on candidates and elected officials.[^23]

8.  If the Broadcasters intend to continue to challenge the rules, we
    request they present evidence 60 days after the suspension ends
    reporting on their actions while the rules were suspended,
    addressing how that evidence supports their contention.[^24] For
    example, the Broadcasters have contended that elimination of the
    political editorial rule would lead to a dramatic increase in the
    number of editorials broadcasters present, on account of the alleged
    chilling effect of the rules. Suspension of the rule will permit us
    to test that prediction, and we request the Broadcasters to supply
    us with the information necessary to do so. More specifically, we
    will want information on the number of political editorials run
    during the suspension of the rules and comparative information
    concerning the number of editorials run during prior election
    cycles. To respond to the court's concerns, we also will need
    information concerning the nature of the elections on which
    licensees editorialize: are they, for example, state assembly races
    or the presidential election?[^25] Whether other media outlets
    editorialized on these races would also be useful in determining
    whether the rules should be modified rather than eliminated or
    retained in full. For example, using the D.C. Circuit's example, it
    is possible that a right of reply may be warranted in state assembly
    races but not in presidential elections because the relative merits
    of the presidential candidates will be thoroughly aired by the media
    in any event but the relative merits of state assembly candidates
    will not be discussed by the media in any detail.

9.  We ask the Broadcasters to present evidence relevant to the court's
    other concerns as well. For example, with respect to the political
    editorial rule, the court stated that "\[i\]f broadcasters want to
    use public resources overtly to push a private agenda by advocating
    a result in an election, a right of reply might be a minimally
    intrusive means of countering a licensee's government-granted
    monopoly on access to the resource," but questioned whether the same
    could not be said concerning "editorial\[s\] about tax policy," and
    directed us "to explain why editorials about candidates are
    particularly appropriate subjects for regulation."[^26] To respond
    to the court's concerns, we need information concerning
    broadcasters' editorial practices more generally. Among other
    things, we are interested in whether and the extent to which
    broadcasters editorialize on topics unrelated to political campaigns
    and whether the rate of such editorials is increasing or decreasing.
    We also seek information regarding the factors relevant to a
    broadcaster's decision to editorialize. The Broadcasters are in the
    best position to provide such information and we expect them to do
    so.

10. In addition to providing information responsive to the court's
    concerns, we ask the Broadcasters to provide information relevant to
    issues raised in our prior decisions. For example, in their Joint
    Statement, Commissioners Ness and Tristani indicated their
    willingness to consider modifying the political editorial rule such
    that it might shift the burden to the candidates to request time
    from the station or "would only trigger an obligation to furnish
    time to major candidates or major party supporters."[^27] A
    modification to include only major candidates or major party
    supporters would be consistent with the Supreme Court's recognition
    in *Arkansas Educational Television Ass'n v. Forbes*,[^28] that
    broadcasters may in good faith decide that in some cases the
    inclusion of third-party candidates in debates detracts from their
    usefulness. These modifications also would be responsive to the
    Broadcasters' claims that the rule is burdensome, because it would
    reduce the burden. In any event, we ask the Broadcasters to report
    whether those licensees who editorialize while the rules are
    suspended decide to offer response time to some candidates but not
    others. We hope that parties will provide as objective and useful
    information as possible.

11. With respect to the personal attack rule, the Broadcasters similarly
    should attempt to obtain information that will be useful in
    evaluating the effect of the rule. However, we ask broadcasters to
    collect information regarding complaints concerning personal attacks
    that are received while the rule is suspended, and to compare the
    number and nature of the complaints made during those 60 days to a
    comparable period while the rule was in effect. We seek comment on
    ways that any undue burdens caused by the rule could be reduced. To
    assist us in evaluating whether the personal attack rule is overly
    burdensome, as argued by the Broadcasters, we seek information on
    what steps broadcasters take to comply with the notification
    requirements. For example, in their Joint Statement, Commissioners
    Ness and Tristani indicated their willingness to consider modifying
    the personal attack rule to eliminate the existing notification
    requirements and make the rule request-driven.[^29]

12. We encourage those groups that have advocated retention of the rule
    to do the same -- that is, to collect evidence relating to personal
    attacks that they would have challenged had the rule not been
    suspended. In that connection, we note that some parties have argued
    that the rule should be expanded to cover situations to which it
    does not currently apply, and we would welcome any information
    regarding personal attacks made, for example, during "bona fide news
    interviews," which currently are not subject to the rule.[^30] In
    addition, we would be particularly interested in learning of
    personal attacks made in connection with the upcoming elections.

13. In responding to this *Order*, we encourage the parties to present
    the sort of careful analysis the D.C. Circuit expects. Although we
    cannot rule out the possibility that the rules will be retained
    exactly as written or eliminated entirely, we believe we would
    profit most at this point from hearing arguments directed to how the
    rules should be modified to achieve their fundamental purposes with
    minimal burden, consistent with the D.C. Circuit's opinion in this
    case and our decisions in other cases.

14. Some parties, however, may contend that it is not possible to
    "distinguish\[\] political editorials and personal attacks ... from
    subjects formerly covered by the fairness doctrine."[^31] For that
    reason, we ask the Broadcasters, at the time they file their report
    on their actions while the rules were suspended, to report also on
    the effects of the repeal of the fairness doctrine, and we will
    invite the other parties to respond to that report. In last year's
    opinion, the D.C. Circuit described *Syracuse Peace Council* as
    "agency precedent for declining to use the FCC's power to redress a
    market failure in provision of balanced coverage of important
    issues," and directed us to provide "clear, cogent explanations" for
    requiring a right of reply in some situations but not others.[^32]
    Previously, on account of our deadlock, we have been constrained to
    consider how to reconcile the political editorial and personal
    attack rules with our decision in *Syracuse Peace Council*. In that
    connection, those parties who believe that Section 315 of the
    Communications Act, as amended,[^33] requires the Commission to
    enforce some obligation on broadcasters "to operate in the public
    interest and to afford reasonable opportunity for the discussion of
    conflicting views on issues of public importance" should comment on
    how their reading of the statute bears on the issues before us.

15. We therefore invite the Broadcasters, and the other parties as well,
    to consider the court's various statements to the effect that it is
    difficult to distinguish political editorials and personal attacks
    from "many issues of public concern,"[^34] and to address whether it
    would be appropriate to extend the reach of the rules at issue. For
    example, the court noted that "a network has more freedom to endorse
    a ballot initiative than to endorse a candidate championing such an
    initiative," and concluded that "\[t\]he FCC has not articulated a
    basis for the distinction."[^35] If those issues may not be
    distinguished on a principled basis, it may be that a right of reply
    is warranted in both cases. In addition, we encourage the parties to
    consider whether the D.C. Circuit has identified a distinction
    between local and national issues that we ought to examine in more
    detail.[^36] That is, as explained in the Joint Statement, the
    explosion in media outlets relied upon in *Syracuse Peace Council*,
    and particularly its reliance on cable channels, may be relevant to
    national issues but not to local issues.[^37]

16. We do not intend to prejudge that or any other issue. Rather, while
    suspending the political editorial and personal attack rules, we ask
    the Broadcasters to report to us on the various matters discussed in
    this *Order*. With a fresh record, we will consider how to reconcile
    our decision in *Syracuse Peace Council* with the rules at issue. It
    is possible that we will decide to modify the rules at issue, or to
    modify our decision in *Syracuse Peace Council*, or both.

17. In that regard, it is appropriate to make clear that the dicta in
    *Syracuse Peace Council* regarding the appropriate level of First
    Amendment scrutiny has been rejected by Congress, this Commission,
    and the courts. Although the Commission based its decision in
    *Syracuse Peace Council* largely on its view that the standard of
    *Red Lion Broadcasting Co. v. FCC*[^38] should be abandoned, the
    D.C. Circuit did not affirm on that basis.[^39] Subsequently, in
    enacting the Children's Television Act of 1990 (CTA), Congress made
    clear that broadcasters should be subject to public interest
    obligations reviewed under the *Red Lion* standard,[^40] and
    Congress's views on that matter are entitled to "great weight."[^41]
    The Commission agreed that *Red Lion* sets the appropriate standard
    of review, as it made clear in its Order implementing the CTA, which
    expressly repudiated the dicta from *Syracuse Peace Council*.[^42]
    Moreover, the D.C. Circuit not only applied but extended *Red Lion*
    in 1996 in *Time Warner Entertainment Co. v. FCC*.[^43] In that
    case, the court upheld under the *Red Lion* standard the
    constitutionality of Section 335 of the Communications Act, as
    amended,[^44] which requires operators of direct broadcast satellite
    (DBS) systems to set aside at least four percent of their channels
    for noncommercial educational programming.[^45]

18. The fundamental error of the Commission's decision in the portion of
    *Syracuse Peace Council* that has been repudiated was its confusion
    of the rationale underlying the fairness doctrine with the basis for
    public interest regulation of the broadcast spectrum. The fairness
    doctrine originated at a time when there were only three major
    television networks, and the proliferation of television stations
    and the development of cable television reasonably led the
    Commission to reevaluate the need for the fairness doctrine. The
    standard of *Red Lion*, however, was not based on the absolute
    number of media outlets, but on the fact that the spectrum is a
    public resource and "there are substantially more individuals who
    want to broadcast than there are frequencies to allocate."[^46] As
    both the U.S. Supreme Court and the D.C. Circuit have explained,
    "\[a\] licensed broadcaster is 'granted the free and exclusive use
    of a valuable part of the public domain; when he accepts that
    franchise it is burdened by enforceable public obligations.'"[^47]
    The D.C. Circuit explained in remanding the political editorial and
    personal attack rules that application of the *Red Lion* standard
    does not mean that any particular obligation is therefore warranted.
    Rather, the Commission must provide a reasonable explanation as to
    why it chooses to impose certain public interest obligations and not
    others. But the long-standing basis for the regulation of
    broadcasting is that "the radio spectrum simply is not large enough
    to accommodate everybody."[^48] Under our Nation's system for
    allocating spectrum, some are granted the "exclusive use" of a
    portion of this "public domain," even though others would use it if
    they could.[^49] That is why "it is idle to posit an unabridgeable
    First Amendment right to broadcast comparable to the right of every
    individual to speak, write or publish."[^50]

19. Congress has directed us to ensure that broadcasters granted the
    exclusive use of a particular frequency serve the public
    interest.[^51] Or, as the D.C. Circuit put it in this case, a
    broadcaster holds a "government-granted monopoly,"[^52] and we are
    required by statute to ensure that the public receives a fair return
    from each broadcaster for its use of that public resource. Unlike
    the DBS operator in *Time Warner*, who was required both to pay
    millions of dollars for the spectrum it won at auction and to set
    aside at least four percent of its capacity for noncommercial
    educational programming, broadcasters have obtained their spectrum
    for free and are not subject to such a set-aside requirement. We
    therefore request the parties to address this difference in
    treatment.

20. Under the relevant constitutional standard, a key factor in deciding
    whether to retain the rules at issue here or impose any other
    requirement is the extent to which the requirement interferes with
    the editorial judgment of broadcasters. As the U.S. Supreme Court
    has repeatedly recognized, the Commission has long "'walk\[ed\] a
    tightrope'" designed to permit broadcasters "to exercise 'the widest
    journalistic freedom consistent with'" the principle that it is
    "'the right of the viewers and listeners, not the right of the
    broadcasters which is paramount.'"[^53] In this case, as explained
    above, the D.C. Circuit assumed that the rules at issue burden
    broadcasters to some extent, recognized that the Joint Statement had
    criticized the evidence previously presented on that point by the
    Broadcasters, but noted that the Commission had "offered no updated
    or more credible information."[^54] A temporary suspension of the
    rules at issue, coupled with a proceeding that considers the other
    issues raised in this *Order*, should help us to respond to the
    court's concerns.

# administrative matters

21. *Request to Update Record.* Parties submitting evidence on the
    effect of the suspension of the rules as discussed above should
    submit such evidence 60 days after the suspension ends, and replies
    should be submitted 75 days after the suspension ends. Information
    may be filed using the Commission's Electronic Comment Filing System
    (ECFS) or by filing paper copies. See Electronic Filing of Documents
    in Rulemaking Proceedings, 63 Fed. Reg. 24,121 (1998).

22. Information filed through the ECFS can be sent as an electronic file
    via the Internet to <http://www.fcc.gov/e-file/ecfs.html>.
    Generally, only one copy of an electronic submission must be filed.
    If multiple docket or rulemaking numbers appear in the caption of
    this proceeding, however, parties must transmit one electronic copy
    of the evidence to each docket or rulemaking number referenced in
    the caption. In completing the transmittal screen, parties should
    include their full name, postal service mailing address, and the
    applicable docket or rulemaking number. Parties may also submit an
    electronic comment by Internet e-mail. To get filing instructions
    for e-mail information, parties should send e-mail to
    <ecfs@fcc.gov>, and should include the following words in the body
    of the message, "get form, \<your e-mail address\>." A sample form
    and directions will be sent in reply.

23. Parties who choose to file by paper should also submit information
    on diskette. These diskettes should be submitted to: Wanda Hardy,
    445 Twelfth Street, S.W., Room 2-C221, Washington D.C. 20554. Such a
    submission should be on a 3.5 inch diskette formatted in an IBM
    compatible format using WORD 97 or compatible software. The diskette
    should be accompanied by a cover letter and should be submitted in
    "read only" mode. The diskette should be clearly labeled with the
    party's name, proceeding (including the docket number (MM Docket No.
    83-484), type of pleading, date of submission, and the name of the
    electronic file on the diskette. The label should also include the
    following phrase: "Disk Copy -- Not an Original." Each diskette
    should contain only one party's pleadings, preferably in a single
    electronic file. In addition, parties must send diskette copies to
    the Commission's copy contractor, International Transcription
    Service, Inc., 445 Twelfth Street, S.W., Room CY-B402, Washington,
    D.C. 20554.

24. *Ex Parte Rules*. This proceeding will be treated as a
    "permit-but-disclose" proceeding, subject to the
    "permit-but-disclose" requirements under Section 1.1206(b) of the
    rules, 47 C.F.R. § 1.1206(b), as revised. *Ex parte* presentations
    are permissible if disclosed in accordance with Commission rules,
    except during the Sunshine Agenda period when presentations, *ex
    parte* or otherwise, are generally prohibited. Persons making oral
    *ex parte* presentations are reminded that a memorandum summarizing
    a presentation must contain a summary of the substance of the
    presentation and not merely a listing of the subjects discussed.
    More than a one or two sentence description or the views and
    arguments presented is generally required. 47 C.F.R. § 1.1206(b)(2),
    as revised. Additional rules pertaining to oral and written
    presentations are set forth in Section 1.1206(b) of the Commission's
    rules.

25. *Initial Paperwork Reduction Act Analysis*. The actions taken in
    this *Order and Request to Update Record* have been analyzed with
    respect to the Paperwork Reduction Act of 1995 (PRA), and found to
    request new or modified reporting or recordkeeping by the public. It
    will be submitted to the Office of Management and Budget for
    emergency review under Section 3507 of the PRA.

26. *Additional Information*. For additional information on this
    proceeding, please contact Cyndi Thomas, Legal Branch, Policy and
    Rules Division, Mass Media Bureau, (202) 418-2130.

# ordering clauses

27. Authority for issuance of this *Order and Request to Update Record*
    is contained in Sections 4(i), 303 and 315 of the Communications Act
    of 1934, as amended, 47 U.S.C. §§ 154(i), 303, 315.

28. Accordingly, IT IS ORDERED that Sections 73.1920 and 73.1930 of the
    Commission's rules, 47 C.F.R. §§ 73.1920, 73.1930 (broadcast
    personal attack and political editorial rules), and Sections
    76.209(b), (c), and (d) of the Commission's rules, 47 C.F.R. §§
    76.209(b), (c), (d), (cable personal attack and political editorial
    rules) ARE SUSPENDED upon the adoption date of this *Order and
    Request to Update Record* through December 2, 2000. This action is
    taken pursuant to Sections 4(i), 303 and 315 of the Communications
    Act of 1934, as amended, 47 U.S.C. §§ 154(i), 303, 315.

    FEDERAL COMMUNICATIONS COMMISSION

    Magalie Roman Salas

    Secretary

**Separate Statement of Commissioner Harold W. Furchtgott-Roth,
Dissenting**

I dissent from this Order and Request to Update Record. I do so for all
of the reasons discussed thoroughly and persuasively by Commissioner
Powell, particularly his analysis of the Commission's attempt to change
the framework of this debate by rejecting portions of the *Syracuse
Peace Council* decision. *See* Separate Statement of Commissioner
Michael K. Powell, Dissenting ("Powell"), at pages 7-11.[^55] I write
separately to add just a few points for the record.

## *I. The Timing of this Order* {#i.-the-timing-of-this-order .unnumbered}

When this Order issues, over thirteen months will have elapsed since the
Court of Appeals's most recent directive to the Commission in RTNDA and
NAB's suit for relief from the personal attack and political editorial
rules. To be sure, the Court was not definitive about what it meant by
"expeditious\[\]" action, *RTNDA v. FCC*, 184 F.3d 872, 888 (D.C. Cir.
1999), but I would venture to say that it certainly intended that we
complete any further rulemaking on remand within the year.[^56]

Today, however, the Commission merely calls for more information,
without closing out the proceeding or even offering any tentative
conclusions about what it might do with the rules in the future. There
is no reason to think that this call to update the record will be any
more effective in remediating agency deadlock and producing resolution
of the proceeding than the last such call. After the 1996 public notice
seeking more information, the Commission deadlocked twice more, and
RTNDA/NAB was forced to file a second petition for a writ of mandamus.
There being also no specified end date in this Order for the termination
of this proceeding, there are no self-evident limits to the length of
time by which the Commission might further delay resolution of this
matter.

It is true, as this item repeatedly notes in an attempt to justify the
continuation of the rulemaking, that the Court of Appeals contemplated
the possibility of further proceedings. The Court also made clear,
however, that further proceedings should be initiated not as ends in
themselves but for the purpose of "implement\[ing\] \[the Court's\]
mandate" that the Commission "provide an adequate justification for
retaining the \[rules\]." *Id.* at 889. That justification, of course,
has yet to be provided \-- much less by September 29, 2000, the date by
which, according to Court's July 2000 Order, the Commission had to act
or petitioners would be entitled to seek immediate judicial relief.

Furthermore, the gridlock that the Commission claims prevented it from
acting before this late hour is entirely fictitious. There was no prior
impossibility of action, as the Order disingenuously suggests. As soon
as the *RTNDA* opinion was handed down, those Commissioners voting for
retention of the rules were on clear notice that they could undoubtedly
satisfy the remand order by providing a better explanation for their
decision not to repeal the rules against the backdrop of the 1983 NPRM,
the Fairness Report, and the *Syracuse Peace Council*. There is no
reason that such a statement could not have been drafted (that is, apart
from the simple legal and logical difficulty of defending that position,
but that is another matter). As far as I know, however, no such draft
was ever attempted. Nor did anybody ever approach me about the
possibility of a Commission Order to update the record or to do anything
else until early September of this year.

In short, based on my personal observations and those of my staff,
absolutely nothing happened at this Commission in connection with the
remand until the Court of Appeals issued its July 2000 Order in response
to petitioners' motion to recall the mandate. It is misleading to give
the impression that the Commission diligently has "been struggling to
implement the court's decision," *supra* at para. 8, since it was
issued.

Commissioner Powell explains why it is not clear that a majority of the
Commission was required to act on this matter. *See* Powell at pages
2-3. Even assuming that was the case, however, I must observe that the
facts pertaining to the Chairman's recusal were exactly the same in
August of 1999 as they are now. Indeed, the primary basis for his
participation (the difficulty of reassigning the project to another
employee, given the impossibility of reassigning voting authority [^57])
has existed ever since the current Commission was convened. How this
factor could "now \[be of\] controlling importance,"[^58] as opposed to
at the outset of our considerations or even when this Commission's
deadlock first became apparent, puzzles me. The Chairman has always been
a voting Commissioner, and the rest of us split 2-2 on the repeal of the
rules over two years ago. He could have reversed his recusal a year ago
on grounds identical to those that he now cites, and the Commission
could easily have filed an Order completing any additional rulemaking
and providing the requisite justification for the ultimate action taken
with the Court well before today. As things now appear to stand, the
Court of Appeals has twice heard argument and written two opinions and
the parties have twice briefed their motions and appeared for
argument[^59] in an attempt to resolve a deadlocked case in which, as it
now turns out, the Chairman could have participated all along.

This is the sort of extended administrative delay that can effectively
deprive a party of its right to judicial review. If administrative
agencies are permitted to respond to judicial orders for agency action
simply by calling for more information, they can effectively postpone
action *ad infinitum*. Whenever a significant period of time elapses
after the issuance of a notice of proposed rulemaking, the agency will
always be able to claim that the record is stale and that new
information must be collected before it can proceed to decide the
matter. Of course, the record will only need updating because the agency
itself failed to take action while the comments submitted in response to
its original notice were still fresh.

Thus, to allow the agency to collect information, shelve it for years,
and then complain when pressed to resolve the proceeding that the
information has gathered too much dust to be of use, is to allow the
agency to manufacture a perpetual justification for the avoidance of
final action. It is also to drain the "right of review" in the
Administrative Procedure Act*, see* 5 U.S.C. section 702, of much of its
force. Less committed and resourceful parties than RTNDA and NAB would
have dropped this case long ago, given the sheer expense of the
litigation. No party should have to go to the lengths that these
entities have in order to obtain a judicially reviewable, *i.e.,* final,
answer from this agency in response to a petition for rulemaking.

I understand the high standard for the issuance of a writ of mandamus or
an order under section 402(h) of the Communications Act. But if ever
there were a case that presented the requisite extraordinary
circumstances for such action, I should think this was it. It seems to
me that, twenty years since the original petition for rulemaking was
filed and after the passing of numerous court-established deadlines for
agency action of various sorts, petitioners are now entitled to
resolution of their claims.

## *II. The Merits of this Order* {#ii.-the-merits-of-this-order .unnumbered}

As Commissioner Powell demonstrates, the Commission's approach of
requiring broadcasters to document an increase in their political speech
during an election period in order to build a record for regulatory
relief raises troubling questions of "forced speech" under the First
Amendment. *See* Powell at pages 6-7. I write to make a related but
slightly different point \-- namely, that the Order is premised on a
fundamental misunderstanding of "chilling effects" under the First
Amendment.

The Commission assumes that a cognizable chilling effect is demonstrated
only by proof that, in the absence of rules that supposedly deter
protected speech, more such speech would necessarily occur. *See* Order
at para. 8 (seeking to "test" assertion of chilling effect with
"information on the number of political editorials run during the
suspension of the rules and comparative information concerning the
number of editorials run during prior election cycles"). But the First
Amendment goal of eliminating "chilling effects" is not limited to the
affirmative production of more speech in quantifiable terms. Rather, the
goal is to allow potential speakers to make free and unencumbered
choices about speech. Thus, chilling effects do not create First
Amendment harms only when, as the Commission erroneously suggests,
society would inevitably have more speech if the chill were lifted.
Chilling effects create harm simply by skewing individual decisions
about speech, thereby decreasing the likelihood that people will engage
in protected speech.

As the Supreme Court has explained, "the fact that \[a\] statute\'s
practical effect may be to discourage protected speech is sufficient to
characterize \[it\] as an infringement on First Amendment activities."
*FEC v. Massachusetts Citizens for Life, Inc*., 479 U.S. 238, 255
(1986). First Amendment jurisprudence has never required parties seeking
to establish a free speech violation to prove that they will in fact
engage in more speech if the chilling effects of the contested law are
eliminated. It is enough that the law in question warps individual
choices about speech and might deter speech in the aggregate.

This is the case for a simple but important reason: individuals, even
those who challenge burdens on their speech, possess a corollary First
Amendment freedom *not* to speak at all if they so choose. The Supreme
Court has repeatedly established that free speech rights under the First
Amendment include the freedom not to say anything at all. \" \'The
essential thrust of the First Amendment is to prohibit improper
restraints on the voluntary public expression of ideas\.... There is
necessarily \... a concomitant freedom not to speak publicly, one which
serves the same ultimate end as freedom of speech in its affirmative
aspect.\' \" Harper & Row Publishers, Inc. v. Nation Enterprises, 471
U.S. 539, 559 (1985) (quoting Estate of Hemingway v. Random House, 244
N.E.2d 250, 255 (1968)); *see also Wooley v. Maynard*, 430 U.S. 705, 714
(1977) (freedom of expression \"includes both the right to speak freely
and the right to refrain from speaking at all\"). Contrary to the
essential premise of the Commission's "test," an individual need not
waive his right to public silence in order to establish his entitlement
to be liberated from a governmental rule that impinges upon his speech
in other ways.

Apart from the above-described constitutional difficulty, there are also
empirical problems with the information that the Commission seeks. Even
if the comments to update the record ultimately reveal the same or
lesser amount of editorial speech during the suspension period than at
other times, that evidence would not in itself refute the existence of a
chilling effect on broadcasters' editorial speech. There are many
reasons other than the existence of the political editorial rule why
broadcasters might choose not to editorialize about political
candidates. To name but a few obvious examples, the groaning lack of
mass market demand for such content or the concern that a station
seeking to appeal to broad audiences might alienate viewers who hold a
contrary view could mitigate against editorials. The rule, while
unconstitutionally dampening incentives to editorialize, might operate
in conjunction with such other entirely legitimate factors. Given this
fact, any causal link between the suspension of the rules and the amount
of editorial speech that occurs during that time will be virtually
impossible to establish. Accordingly, I do not see that any useful
inferences can be drawn from evidence showing more, less, or the same
amount of political editorials during the 60-day suspension period than
at other times.

Moreover, if one is serious about studying broadcasters' behavior in the
absence of the rule, sixty days from the adoption of this Order is not a
sufficient period of time in which to do so. Broadcasters schedule and
plan their programming well in advance of its airing, and it may be too
late for them to upend those plans now. Significant amounts of coverage
of current campaigns have already occurred, as we are now only one month
away from the elections, but this Order comes too late to cover that
period. The proximity in time between the adoption of this Order and the
election also means that, out of the 60-day period, only the next 30 or
so days are pertinent to the study; the election will be over after
that. In addition, it will take time for the Order to be published and
for its contents to filter down to broadcasters nationwide. Then, after
learning of their new duty to editorialize in order to sustain any hope
of ultimate regulatory relief, broadcasters will have to organize
political editorial responsibilities and assignments within their
stations. Finding out about the new reporting duty and gearing up to
engage in political editorials could take broadcasters longer than the
approximately 30 days that now precede the election. For these reasons,
the period of time in question does not give broadcasters sufficient
notice to meaningfully respond to the Commission's request for proof of
increased political editorializing during an election cycle.

On top of creating the constitutional and empirical problems discussed
above, the Commission has the temerity to shift the burdens of proof and
persuasion in this matter back to the broadcasters. *See, e.g.,* Order
at para. 8 ("If the Broadcasters intend to continue to challenge the
rules, we would request that they present evidence 60 days after the
suspension ends reporting on their actions while the rules were
suspended, addressing how that evidence supports their contention.").
This action flouts the Court of Appeals' express holding that, under the
circumstances of this case, it is the Commission that bears an
affirmative burden of explaining how the rules promote the public
interest. *See* *RTNDA*, 184 F.3d at 875 (defending the rules "by
negative implication, rejecting attacks on the rules while assuming
their underlying validity" might be adequate as a general matter "but
not where the NPRM and subsequent FCC precedent frame the proceeding to
require a persuasive rationale for rules that seem unnecessary"); *id*.
at 881 ("\[W\]e reject the FCC's contention that petitioners bear the
burden of explaining why the rules are not in the public interest. The
FCC's attempt to minimize its burden might be appropriate" in other
circumstances "\[b\]ut having initiated a rulemaking premised on the
conclusion that the rules may not be in the public interest and then
rejected a proposal to abrogate the rules, the FCC bears a burden of
explanation.").

Finally, we likely will soon hear from the Commission in this litigation
that the broadcasters' case is moot or they lack standing to sue because
the rules have been suspended. The suspension of the rules here is only
temporary, however, and the Order makes plain that the rules will spring
back into being at the close of the 60-day period, even before the
further rulemaking is completed. *See supra* at para. 28. The rules thus
will remain firmly in place while this matter is pending before the
Commission; as noted above, given the absence in today's Order of any
termination date for the proceeding, that could be quite a while. Surely
this controversy over the validity of the rules is capable of repetition
and of evading review as well. Indeed, I respectfully submit that
ultimately renewing the rules while avoiding review for the time being
is the very end of this temporary suspension, not the considered study
of broadcasters' behavior during that period. RTNDA and NAB's litigation
papers will only have to be refiled when the rules come back into effect
-- that is, if the Commission has not worn them down in the attrition
mill of its processes by then.

\* \* \*

To my mind, the cat-and-mouse game that this agency has played -- and
continues to play in this Order \-- with these rules, the parties, and
even the Court of Appeals, is unconscionable. By now, the Commission
should and could have explained how it continues to find the rules to
serve the public interest in light of relevant precedent. If that task
has proven too difficult to carry out, then an honest reevaluation of
the merit of the rules ought to have followed. Conversely, if the
Commission truly believes in the merit of the rules, it should have
stepped up and forthrightly made its best effort to demonstrate the
reasons for that belief. But the Commission cannot go on shirking its
duty to justify the rules when called upon to do so by aggrieved parties
and the courts, while at the same time retaining them by persistent
refusal to take final action in this proceeding.

### Separate Statement of Commissioner Michael K. Powell, Dissenting {#separate-statement-of-commissioner-michael-k.-powell-dissenting .unnumbered}

I cannot support this *Order and Request to Update Record* ("*Order*")
for it is a day late, and a dollar short. I dissent for four reasons.
[First]{.underline}, the Commission, once again, has kicked the can down
the road rather than substantively addressing the concerns pointedly
raised by the rulemaking proceeding initiated in 1983.
[Second]{.underline}, despite the fact that over a year has passed since
the D.C. Circuit Court of Appeals instructed the Commission to justify
affirmatively and "expeditiously" the public interest benefits of the
political editorial and personal attack rules, the Commission has still
failed to do so. [Third]{.underline}, the *Order* is inappropriately
coercive, and will not significantly aid in addressing the court's
concerns. And, [fourth]{.underline}, I vigorously reject the Majority's
unnecessary "clarification" of the Commission's First Amendment analysis
in *Syracuse Peace Council*.[^60] It is not relevant to the task at hand
and it sweeps much more broadly than brushing aside dicta as it
purports. For these reasons, on which I expand below, I must
respectfully dissent.

**[A Day Late]{.underline}**

As the *RTNDA* court recognized, this case has been marked by the FCC's
"vacillation, delay and deadlock." *Radio-Television News Directors
Ass'n v. FCC*, 184 F.3d 872, 886 (D.C. Cir. 1999) ("*RTNDA*"). I will
not recount in detail the long and painful journey this proceeding has
taken, but offer only this brief outline. The present rulemaking
proceeding (MM Docket No. 83-484) was initiated 17 years ago. There have
been two "petitions for expedited rulemakings" (one in 1987 and another
in 1990), after which no Commission action was taken.[^61] In September
1996, RTNDA was compelled to file an extraordinary petition for a *writ
of mandamus* in the D.C. Circuit to force the Commission's hand. In
response, the Mass Media Bureau (on delegated authority) requested
parties to file "updated comments" in December 1996.[^62] The court
dismissed the *mandamus* petition "without prejudice. . . *should the
\[FCC\] fail to make significant progress, within the next six months.*"
*Radio-Television News Directors Ass'n,* No. 96-1338, 1997 WL 150084
(D.C. Cir. 1997) (emphasis added). That was three years ago. The
four-member Commission deadlocked in 1997.[^63]

In 1998, a second *mandamus* petition was filed, and the present
Commission deadlocked as well.[^64] The court chose to treat the effect
of retaining the rules as final agency action, and directed
Commissioners Ness and Tristani, who would retain the rules, to offer an
explanatory statement upon which review could be had.[^65] The court
found their Joint Statement inadequate for meaningful review and
remanded for more specific and comprehensive justification of the rules.
The court warned "\[g\]iven its prior delay in this proceeding, the FCC
need act expeditiously." *RTNDA,* 184 F.3d at 889 (citation omitted). It
did not. Instead, after a year of non-action, RTNDA and NAB again had to
go to court, this time filing, on July 5, 2000, a Motion to Recall the
Mandate or for an Order or a *Writ of* *Mandamus* to Compel Agency
Action. The court held the motion in abeyance through September 29,
2000, inviting the parties to supplement their requests and seek
whatever action they deem appropriate from the court if the Commission
did not act.[^66] The result is this *Order* temporarily suspending the
rules and seeking to refresh the record, promulgated over a year after
the court's remand.

I am disturbed that given the backdrop of this case, and its public
policy and constitutional import, the Commission has only now elected to
proceed, and then only to refresh the record. The Majority's claim that
it has been "struggling" to implement the court's decision, but believed
it could not proceed because of the deadlock, is mystifying. For one,
the court seemed to expect the Commission to provide a better
explanation for maintaining the rules, irrespective of the split vote.
It chose to treat the Joint Statement of Commissioners Ness and Tristani
as final agency action. *Id.* at 880. It reviewed the decision with the
deference normally afforded agency decisions, despite the petitioner's
argument that the split decision was not entitled to such deference, and
used "FCC" and "Joint Statement" interchangeably throughout its opinion.
*See, e.g., id.* at 881. Furthermore, the court ordered the Commission
to respond to its remand and averred that the Commission might reopen
the record or begin a new proceeding, without any reason to assume the
Commission would not remain divided or that the Chairman would
participate. *Id.* at 888-89.[^67] To suggest now that the Commission
could not procedurally act disregards the court's findings and
expectations.

Additionally, there was no reason to have assumed that the Commission
would deadlock on a decision to refresh the record or initiate a new
proceeding. While the Commission was split on the merits, given the
record three years ago, it was by no means given that it would in fact
have split over additional inquiry. Indeed, in 1996, when the Commission
was also composed of only four members, it was able to refresh the
record (via a Bureau Public Notice), even though it too split over the
merits of the case. In the year since the court's opinion, neither the
Mass Media Bureau nor my colleagues proposed a new proceeding to me. I
might have considered refreshing the record at a point in time and in a
manner that afforded a real opportunity to address expeditiously the
specifics of the court's remand. But, at the twilight of our generous
grace period and based on this incomplete and hurried *Order*, I cannot
now support today's "action."

Last, the Chairman could have rejoined the case a year ago, if his
participation genuinely was necessary to move forward. The Chairman's
stated reason for un-recusing himself, ten days before the court
intended to proceed with RTNDA and NAB's motion, was that his
participation was required to break the deadlock and allow the
Commission to initiate this proceeding to refresh the record.[^68]
Assuming one accepts this premise given the court's treatment of the
split Commission, it is still unfortunate that it took this long for him
to rejoin the matter. In sum, given the importance of this case, the
disturbingly long delay in reaching the merits, and the court's
comprehensive decision a year ago, there is no excuse for not acting on
these disputed rules by now.

**[This *Order* is a Dollar Short]{.underline}**

It is obvious that today's action does not itself respond to the court's
charge to affirmatively show why these rules are in the public interest.
It is useful, however, to review the Commission's charge and take note
of the stark contrast with today's modest step forward. In remanding the
matter back for further explanation, the court made clear that the
Commission bore the heavy burden of explanation, in sustaining these
rules. *See RTNDA,* 184 F.3d at 881 ("having initiated a rulemaking
premised on the conclusion that the rules may not be in the public
interest and then rejected its own proposal to abrogate the rules, the
FCC bears a burden of explanation") (citation omitted); *id.* at 885
("the FCC's explanation for retention of the rules is inconsistent with
prior FCC actions that set a very high standard for the deliberations").

To satisfy its burden, if it wished to retain the rules, the court
insisted that the Commission explain "why the public would benefit from
rules that raise . . . policy and constitutional doubts." *Id.* at 882.
The policy doubts rightly stem from (1) the *Fairness Report*'s
comprehensive evaluation of changes in the market that have produced
substantial growth in the number of media outlets, *i.e.*, the number of
voices in the marketplace of ideas; (2) the counterproductive chilling
effect of the rules that actually quell the coverage of controversial
subjects; and, (3) the degree of interference in the editorial judgments
of broadcasters. *See Fairness Report*, 102 FCC 2d 142, 246 (1985).
Based on its findings in that report, the Commission ultimately found
the fairness doctrine was not in the public interest. *See* *Syracuse
Peace Council,* 2 FCC Rcd 5043 (1987).

While the court held that the elimination of the fairness doctrine did
not automatically invalidate the separately promulgated political
editorial and personal attack rules, *RTNDA,* 184 F.3d at 879, it did
make clear that the Commission is bound by the precedent "for declining
to use the FCC's power to redress a market failure in provision of
balanced coverage of important issues." *Id.* at 886. The court's
opinion continually emphasized that the Commission must square its
decision to retain these rules with the (1) *Fairness Report*, (2) the
decision in *Syracuse Peace Council*, and (3) the concerns raised in the
1983 NPRM that nothing inherent in the nature of an editorial
necessitates countervailing speech to ensure balanced debate, and that
the rules' utility is questionable. S*ee id.* at 884, 886 ("\[T\]he
agency must offer clear, cogent explanations for treating the two cases
differently. It is not enough to note that one case is narrower than the
other; there must be a reason why the more focused nature of the present
rules shields them from the myriad defects that the FCC recognized in
Syracuse.") (citation omitted). The court noted further that "the NPRM
frames the rulemaking proceeding, such that failure to consider the
concerns that animated the rulemaking casts doubt on the reasonableness
of the agency's decisionmaking process." *Id.* at 884 n.16 (citation
omitted). *See also* *id.* at 884 ("Most troubling is the fact that the
Joint Statement ignores the concerns that the FCC raised in the NPRM
about the rule's utility."). Additionally, the defense of the public
interest benefits must be specific and demonstrable and not housed in
the typical hortatory language that accompanies these rules:

Wooden application of principles underlying rhetoric about the FCC's
vast power, its broad discretion, and the importance of vibrant debate
in democracy to a specific set of rules would force the court to adopt
an impressionistic approach that would disserve the parties and muddle
the First Amendment analysis. The FCC must therefore explain its
rationale for these rules in more detail, thereby permitting the court
to test that rationale against petitioners' factual assertions and, if
necessary, the demands of the First Amendment.

*Id.* at 887.

The court also made it abundantly clear that the Commission must be
cognizant of the serious constitutional concerns that are raised by
these rules. It specifically noted that the rules "*by their nature*
interfere with at least some journalistic judgment, chill at least some
speech, and impose at least some burdens on activities at the heart of
the First Amendment," *id.* (emphasis added), and that those effects are
cause for concern. *See id.* at 881 ("the rules to some degree interfere
with the editorial judgment of professional journalists and entangle the
government in day-to-day operations of the media. The Supreme Court and
the FCC have noted that both effects are cause for concern. . .")
(citations omitted).

The court further clarified that the Supreme Court's conclusion in *Red
Lion Broad. Co. v. FCC*[^69] that the rules were constitutional does not
necessarily insulate them from constitutional infirmity *as applied* in
the contemporary context. *See RTNDA*, 184 F.3d at 887 n.19 (noting that
the Supreme Court, since *Red Lion* has indicated "that while the Red
Lion framework may still be good law, its application to the instant
rules may require updating,") (*citing* *Arkansas Educ. Television
Comm'n*, 118 S. Ct. 1633, 1639)); s*ee also id.* ("Although Red Lion
affirmed the rules challenged here, the Court recognized that changed
circumstances might be salient in future cases.") (c*iting* *Red Lion*,
395 U.S. at 393 and *FCC v. League of Women Voters*, 468 U.S. 364, 381
("The First Amendment requires a critical examination of the interests
of the public and broadcasters in light of the particular circumstances
of each case*.*'"))). For these reasons, the present rules must also be
examined with a concern for their constitutional validity.

The preceding discussion is a review of what this agency was tasked to
do on remand by the *RTNDA* court. It has been over a year since it was
ordered to do so---expeditiously. Yet, the action today by the Majority
does not offer a "well-reasoned, carefully documented order affirming
the challenged rules," *RTNDA*, 184 F.3d at 886. Instead, it refreshes
the record. Again. I recognize that the court suggested the Commission
might do so, or that it might initiate an entirely new proceeding. But,
that was over a year ago in a proceeding that has dragged on for over 17
years.

I am of the view that the Commission has continually evaded justifying
these rules because it knows all too well that it cannot, to the degree
the public interest, the Constitution, and the courts require. We should
not, however, be permitted to preserve them through inaction and delay,
when their benefits are so questionable and their dangers of
constitutional proportions. At some point, as the court noted "delay and
deadlock in this case may militate in favor of final resolution now. .
." *Id.* at 888 (*citing Checkosky v. SEC*, 139 F.3d 221, 226 (D.C. Cir.
1998)).[^70]

**[This *Order* Hangs Over Broadcasters Like the Sword of
Damocles]{.underline}**

Looking at the specifics of the *Order*, I cannot accept that it merely
represents a brief delay period, during which the parties will face no
harm while the rules are stayed. The Majority's scheme of suspending the
rules for sixty days, during a presidential election, is reminiscent of
the proverbial "Sword of Damocles." In sixty short days, the parties
will again be subject to the rules and susceptible to sanctions for
non-compliance. Indeed, the response to the *Order*'s request for
information is not due until early February 2001, sixty days after the
rules come back into effect. Only then, when the record is assembled,
will the Commission proceed to consider the merits of the rules, which
might easily take an additional year under our processes. I also note
that the Commission is likely to change significantly in membership over
the next year, increasing the probability that the Commission will make
little progress on these highly controversial rules.

More troubling, however, is that the Majority's conception will
impermissibly coerce a government-favored form of speech by
broadcasters. The Majority seems to believe that an ideal time to
experiment with broadcast editorial judgment is in midst of a
presidential election. They suggest that if broadcasters are actually
dissuaded from editorializing because of the rules, then one should see
them significantly increase their political editorializing while the
rules are suspended. This theory is flawed in two respects. First,
knowing that the political editorial rules will be restored at the end
of the experimental period, and taking the hint that any hope of the
rules being eliminated rests on demonstrating increased political
speech, a broadcaster likely will feel he has no choice but to broadcast
political editorial content. I believe this clever device presents the
danger of government coercing political speech in the final innings of a
major national election. I also am at a loss to see what value this
period offers for testing the merits of the personal attack rules, which
apply year-round, every year.

Second, the Majority's suggested inference is unsound. The suggestion is
that if broadcasters do not editorialize during the suspension, then
somehow their claims of a chilling effect from the rules has been
undermined. As just described, however, the chilling breath from the
rules (which have been a mainstay of the broadcasters' regulatory regime
for more than three decades) may not be blowing for a mere sixty days,
but rather than feeling the warmth of government non-intervention,
broadcasters may only sense the government inhaling deeply before
exhaling a second cold blast. Worse, rather than feeling chilled, they
may in fact feel prodded by a hot iron to produce government-favored
content. Finally, if the broadcasters do not produce political
programming, then the Commission cannot properly assume that the rules
remain valid because they have no significant chilling effect.
Broadcasters may not want in fact to generally editorialize. If they do
not, it raises serious questions about what the problem is that the
rules promulgated many years ago are targeted to address. If there is no
problem, there need be no rules.[^71] Given the nature of the rules,
moreover, the FCC cannot maintain them on the claim that they do little
harm. As the court noted:

> In theory, balancing could be avoided if the rules so obviously
> entailed no ill effects that they would survive even if only
> marginally useful. That, however, is not the case, as illustrated in
> the NPRM and the Fairness Report. Even were the court to assume that
> some of petitioners' arguments are overstated, the challenged rules by
> their nature interfere with at least some journalistic judgment, chill
> at least some speech, and impose at least some burdens on activities
> at the heart of the First Amendment.

*RTNDA,* 184 F.3d at 887 (footnote omitted). With the dark shadow from
the *Fairness Report*, the NPRM and the First Amendment hanging over
these rules they cannot be sustained on such an airy basis. Moreover, as
I look at the *Order* I doubt seriously it will produce a record that
will enable the Commission to address the specific concerns of the
court. It places nearly complete responsibility on broadcasters to
review and answer the court's concerns, and I doubt seriously that they
will offer anything meaningful, given it is not they who wish to retain
the rules.

**[*Red Lion* is a Red Herring]{.underline}**

Tacked onto this *Order* is the Majority's unnecessary attempt to brush
aside the First Amendment analysis offered by this Commission in
*Syracuse Peace Council*. It does so on the mistaken supposition that
the Commission in *Syracuse Peace Council* based its decision "largely
on the view that the standard of *Red Lion Broadcasting Co. v. FCC,*
should be abandoned." *Order* at ¶ 18. Unquestionably, the *Syracuse
Peace Council* decision is sprinkled with that Commission's view that
the First Amendment standard should be the same as that applied to other
media (a view I share). This surely is dicta, given the obvious fact
that a regulatory agency cannot overturn a Supreme Court case. But the
Majority wrongly attempts to paint much more broadly in its
"clarification" by suggesting that the *Syracuse Peace Council*
Commission erred in considering the number of media outlets in its First
Amendment analysis.[^72]

Before turning to the specifics of the Majority's contentions, I must
first highlight that *Red Lion* is a "red herring" (or maybe a "paper
tiger"). What is too often lost, is that absolutely nothing in that case
absolves the Commission from its responsibility to affirmatively explain
why its rules are in the public interest, even if they are
constitutional. As the *RTNDA* court observed, "\[t\]he mere fact that
the FCC has the power to regulate broadcasters more intensely than other
media does not also mean that it may impose any obligation it sees fit.
Each regulation must be in the 'public interest.'" *RTNDA*, 184 F.3d at
883. More importantly, the *Red Lion* incantation does not open a magic
box of content regulation unimpeded by the First Amendment. The
Commission still must assure itself that under that framework a content
regulation is constitutional. I turn now to that framework and explain
why I feel that it is the Majority that is confused.

While there is dicta in *Syracuse Peace Council* that *Red Lion* should
not be the standard of review, it should be emphasized that the
Commission found the fairness doctrine unconstitutional, *faithfully
applying the standard*, not abandoning it as suggested by the Majority.
*See Syracuse Peace Council*, 867 F.2d at 682 n.10 (Starr, J.,
concurring) ("Although the FCC sets forth the view (in other portions of
the *Order*) that *Red Lion* itself may no longer be viable, the
Commission expressly stated that reconsideration of *Red Lion* lies
solely within the province of the Supreme Court. . .and that the Order
is thus based on a *Red Lion* analysis.").

Additionally, I reject the Majority's assertion that the Commission
fundamentally erred by considering the absolute number of outlets in its
determination. The *Syracuse Peace Council* Commission rightly focused
on numerical scarcity. It recognized that the Court was focused on
ensuring a robust marketplace of ideas in order to ensure "suitable
access to social, political, esthetic, moral, and other ideas and
experiences . . ." *Red Lion*, 395 U.S. at 390. Moreover, the Court
believed that the First Amendment did not sanction monopolizing the
market by a handful of licensees: "It is the purpose of the First
Amendment to preserve an uninhibited marketplace of ideas in which truth
will ultimately prevail, rather than countenance monopolization of that
market." *Id.*

The Commission reasonably saw that access to ideas was not limited to
broadcast and that a wide array of communications services offered
diverse viewpoints to the public. A speaker excluded from a broadcast
license may be able to find a voice on cable television, direct
broadcast satellite ("DBS"), or the Internet. Similarly, an excluded
would-be licensee is not captive to the messages spewed by those
fortunate enough to obtain a broadcast license if he can access other
ideas from other media outlet.

The Majority seems to prefer the view that content regulation is
permissible so long as the demand for broadcast spectrum exceeds supply
(*i.e.,* allocational scarcity). Of course, because all economic
resources are scarce by definition, because demand will always exceed
supply where a resource is offered for free, and because the Commission
controls the supply, this view assures, for time immemorial, that the
government will be able to tread more deeply on broadcast speech.[^73] I
believe this approach is not only intellectually flawed but dangerous,
for having the government empowered forever to direct the content of
broadcast messages, regardless of the plethora of other messages
available to the public, is itself constitutionally disturbing.

In a nutshell, the dispute is over how to define the market for the
marketplace of ideas. The current Majority and others would like to
always define the market as strictly limited to broadcasting.
Apparently, under this view, there are no substitutes for
broadcast-delivered ideas. Similar or even identical ideas viewed over
cable television are inferior, I suppose. The *Syracuse Peace Council*
Commission's view was that the marketplace of ideas is much larger (even
if one excludes print media as qualitatively different). Indeed, the
Court in *Red Lion* punctuated that "it is the right of viewers and
listeners and not that of broadcasters, which is paramount." *Red Lion*,
395 U.S. at 390. That being so, how can we ignore the wide range, and
large number of outlets that viewers and listeners now have available to
them in the communications market? How can we ignore cable television
with 67 percent of the viewing public?[^74] How can we ignore DBS with
12.5 percent of the viewing public?[^75] How can we ignore the Internet:
52 percent of home computers in the U.S. are connected, 28 percent of
home users access it every day[^76] and, on average, more than 18
minutes per day are spent accessing news, information and
entertainment.[^77] Responsibly, we cannot and neither could the
Commission in *Syracuse Peace Council*.

What I find amazing is that this Commission does not ignore these other
outlets in any other context. For example, our broadcast cross-ownership
rules prohibit common ownership of a television station and a newspaper
or a cable system and a broadcast station in the same market, and
restrict the number of radio and television stations one may own in a
market, in order to preserve the diversity of voices.[^78] Why, if they
are not all voices in the marketplace of ideas? It seems we recognize
other media outlets as "voices" when it enhances our regulatory power,
but discount them when it restrains it.

The value of other media for distributing ideas is also revealed by the
fact that broadcasters today use them increasingly to convey their
messages. Disney owns ABC on which it offers Monday Night Football,
while it runs other football games on its ESPN cable channel. It runs
kids programs on the cable Disney Channel, but also communicates at its
websites Disney.com and Go.com. The same can be said of NBC's
properties: NBC (broadcast), MSNBC and CNBC (cable), MSNBC.com and
NBCi.com (Internet). Or, CBS/Viacom which owns a television network,
movie properties, and a substantial number of radio stations. Similarly,
local radio stations now regularly stream audio content over the
internet, as do others that do not even hold a broadcast license. A
license is not required to broadcast over the Internet, which is cheaper
to do than building and operating a radio station.[^79] This is the
reality of the modern communications marketplace of ideas, no matter
what the theoretical problem was in 1969, when *Red Lion* issued and
when broadcasting dominated the electronic media.

There are two critical points that must be recognized. First, the
marketplace of ideas has to be defined in a broad manner that respects
the choices available to viewers and listeners and does not unduly tread
on the First Amendment rights of only one medium that competes in the
market. Scarcity may be a valid concern, but the question is scarcity of
what. I firmly believe that the only meaningful answer under the First
Amendment is a scarcity of viewpoints (not spectrum) and that must be
measured broadly across the plethora of available media outlets.

Second, accepting *Red Lion*'s legal framework and its interpretation of
the Constitution, we must acknowledge that it rests on economic,
technical, and other factual predicates, as well as predictive judgments
about the effects of government intervention that can and have changed
over time. *See* *Syracuse Peace Council,* 867 F.2d at 681 (Starr, J.,
concurring) ("the constitutionality of the fairness doctrine is linked
in part to the technological developments (and behavior) in the
communications marketplace. Those developments obviously continue to
unfold.") (*citing* *Columbia Broad. Sys., Inc. v. DNC*, 412 U.S. at 102
("the broadcast industry is dynamic in terms of technological change;
\[solutions\] acceptable today may well be outmoded 10 years hence."))).

These factual and analytic questions fall squarely within the unique
expertise of the Commission, not the courts, and we have a duty to
evaluate them in light of changing circumstances. These judgments may
effect the underpinnings of *Red Lion,*[^80] but that should not be our
concern. We must make them soundly based on the facts and circumstances
of the time. It is up to the judiciary to decide if our evaluation of
current circumstances dislodges the foundations of the *Red* (perhaps
graying) *Lion*. I cannot accept, however, the Commission's persistent
pattern of evading any judgment---no matter how compelling---because its
actions might undermine the venerable old cat. The Commission's reasons
are transparent---to preserve its authority to regulate broadcast speech
content with less worry about First Amendment constraint. That alone
should disturb anyone that takes comfort in the Constitution's guarantee
that the government "shall make no law . . . abridging the freedom of
speech, or of the press." U.S. Const. amend. I.

It is for these, and all the foregoing reasons, that I respectfully
dissent from the Commission's decision to prolong this proceeding
further rather than squarely justifying, as the court directed us to do,
rules that unquestionably impinge on editorial judgment and chill rather
than promote speech.

[^1]: 184 F.3d 872 (1999).

[^2]: The political editorial rule provides that, if the licensee of a
    broadcast station runs an editorial supporting a legally qualified
    candidate for an elective office, the licensee must inform all other
    qualified candidates of the editorial and provide a reasonable
    opportunity for those candidates to respond. 47 C.F.R. § 73.1930.
    The personal attack rule provides that, if an attack is made on
    someone's integrity during a presentation of views on a
    controversial issue of public importance, the licensee must inform
    that person or group of the attack and provide a reasonable
    opportunity to respond. *Id*. § 73.1920. These rules as they apply
    to cable television system operators are also within the scope of
    this proceeding. The cable rules appear at 47 C.F.R. § 76.209(b),
    (c), and (d).

[^3]: 184 F.3d at 887 n.20 & 888 n.23.

[^4]: *Id*. at 888 n.23.

[^5]: Syracuse Peace Council against Television Station WTVH Syracuse,
    New York, *Memorandum Opinion and* Order, 2 FCC Rcd 5043 (1987)
    (*Syracuse Peace Council*), *recon. denied*, 3 FCC Rcd 2035 (1988),
    *aff'd sub nom. Syracuse Peace Council v. FCC*, 867 F.2d 654 (D.C.
    Cir. 1989), *cert. denied*, 493 U.S. 1019 (1990).

[^6]: 184 F.3d at 885.

[^7]: In the Matter of Repeal or Modification of the Personal Attack and
    Political Editorial Rules, MM Docket No. 83-484, *Notice of Proposed
    Rulemaking*, 48 Fed. Reg. 28295 (1983) (*1983 Notice*). The *1983
    Notice* also sought comment on these rules as they apply to cable
    television system operators. *Id*. at 28301, n.31. The suspension
    adopted herein will apply to the cable as well as the broadcast
    rules and we welcome comments on the rules as they apply to cable
    operators as well as broadcasters.

[^8]: *See* Commission Proceeding Regarding the Personal Attack and
    Political Editorial Rules, *Public Notice*, 13 FCC Rcd 11809 (1998);
    Commission Proceeding Regarding the Personal Attack and Political
    Editorial Rules, *Public Notice*, 12 FCC Rcd 11956 (1997).

[^9]: On June 22, 1998, the Commission issued a Public Notice announcing
    a tie vote, with Chairman Kennard not participating, on whether to
    grant or deny repeal or modification of the rules. The Public Notice
    was accompanied by the Joint Statement of Commissioners Susan Ness
    and Gloria Tristani upholding the rules, and the Joint Statement of
    Commissioners Michael Powell and Harold Furchtgott-Roth repealing
    the rules. Commission Proceeding Regarding the Personal Attack and
    Political Editorial Rules, *Public Notice*, 13 FCC Rcd 21901 (1998).

[^10]: 184 F.3d at 880.

[^11]: *Id*. at 878.

[^12]: *Id*. at 887.

[^13]: *Id*. at 881.

[^14]: *Id*.

[^15]: *Id*. at 885.

[^16]: *Id*. at 886 & n.17.

[^17]: *Id*. at 887 n.20.

[^18]: *Id*. at 888 n.23.

[^19]: *Id*. at 888.

[^20]: *Id*. at 889.

[^21]: *See* i*d*. at 880.

[^22]: *Radio-Television News Directors Association and National
    Association of Broadcasters v. FCC*, No. 98-1305 (D.C. Cir. July 24,
    2000).

[^23]: *See, e.g.*, *Clayton Mapoles*, 23 RR 586 (1962).

[^24]: Parties will also have an opportunity to submit replies 15 days
    later.

[^25]: *See* 184 F.3d at 886 n.17.

[^26]: 184 F.3d at 884 & n.13.

[^27]: Joint Statement of Commissioner Susan Ness and Commissioner
    Gloria Tristani, 13 FCC Rcd at 21917, ¶ 39.

[^28]: 523 U.S. 666 (1998).

[^29]: Joint Statement of Commissioner Susan Ness and Commissioner
    Gloria Tristani, 13 FCC Rcd at 21921, ¶ 50.

[^30]: 47 C.F.R. § 73.1920(b)(4).

[^31]: 184 F.3d at 885.

[^32]: *Id*. at 886.

[^33]: 47 U.S.C. § 315.

[^34]: 184 F.3d at 884.

[^35]: *Id*. at 884 n.13.

[^36]: *See, e.g., id*. at 886 n.17 (distinguishing state assembly races
    from presidential elections).

[^37]: Joint Statement of Commissioner Susan Ness and Commissioner
    Gloria Tristani, 13 FCC Rcd at 21924, ¶ 59.

[^38]: 395 U.S. 367 (1969).

[^39]: *See* *Syracuse Peace Council v. FCC*, 867 F.2d at 682 & n.10
    (Starr, J., concurring).

[^40]: S. Rep. No. 227, 101^st^ Cong., 1^st^ Sess. 10-11 (1989).

[^41]: *CBS v. DNC*, 412 U.S. 94, 102 (1973).

[^42]: *See* In the Matter of Policies and Rules Concerning Children's
    Television Programming, MM Docket No. 93-48, *Report and Order*, 11
    FCC Rcd 10660, 10728-32 ¶¶ 146-56 (1996).

[^43]: 93 F.3d 957 (1996).

[^44]: 47 U.S.C. § 335.

[^45]: 93 F.3d at 975.

[^46]: 395 U.S. at 388.

[^47]: *CBS v. FCC*, 453 U.S. 367, 395 (1981) (quoting *Office of
    Communication of the United Church of Christ v. FCC*, 359 F.2d 994,
    1003 (D.C. Cir. 1966)).

[^48]: *NBC v. FCC*, 319 U.S. 190, 213 (1943); *see id*. at 226 ("Unlike
    other modes of expression, radio inherently is not available to
    all").

[^49]: *CBS v. FCC*, 453 U.S. at 395.

[^50]: *Red Lion*, 395 U.S. at 388.

[^51]: *See* 47 U.S.C. § 309(a) (broadcast applications); §309(k)(1)(A)
    (renewals).

[^52]: 184 F.3d at 884.

[^53]: *CBS v. FCC*, 435 U.S. at 394, 395 (quoting *CBS v. DNC*, 412
    U.S. at 117, 110 and *Red Lion*, 395 U.S. at 390).

[^54]: 184 F.3d at 881, 887 n.20.

[^55]: Regardless of whether the Commission has successfully freed
    itself from the supposed "*dicta"* in that adjudicatory decision, it
    fails to deal with the broad precedent that underlies that case, the
    1985 Fairness Report. The exhaustive findings of fact and public
    policy conclusions in that study are still controlling.

[^56]: Under section 404(h), the Commission is obligated "to forthwith
    give effect" to adverse court decisions. Although the Communications
    Act contains no definition of how long that might be, the Supreme
    Court has held, in a case arising under the Suits in Admiralty Act,
    that the statutory term "forthwith" is "indicative of a time far
    shorter than 120 days." *Henderson v. United States*, 517 U.S. 654,
    661 (1996). Clearly, that deadline passed long ago.

[^57]: See Statement of FCC Chairman William E. Kennard Concerning his
    Participation in the Personal Attack and Personal Editorial Rule
    Proceeding (Sep. 18, 2000),
    \<www.fcc.gov/speeches/kennard/statements/2000\>.

[^58]: *Id.*

[^59]: *See In re Radio-Television News Directors Association and
    National Ass'n of Broadcasters*, 1998 WL 388796 (D.C. Cir. May 22,
    1998); *RTNDA v. FCC*, 184 F.3d 872 (D.C. Cir. 1999).

[^60]: In re Complaint of Syracuse Peace Council Against Television
    Station WTVH, Syracuse, New York, FCC 87-266, *Memorandum Opinion &
    Order*, 2 FCC Rcd 5043 (1987), *aff'd*, *Syracuse Peace Council v.
    FCC*, 867 F.2d 654 (D.C. Cir. 1989).

[^61]: The *Order* (¶ 2) incorrectly faults the Radio-Television News
    Directors Association ("RTNDA") and the National Association of
    Broadcasters ("NAB") for "not vigorously press\[ing\] their attack
    on the political editorial and personal attack rules" for "nearly a
    decade after the repeal of the fairness doctrine." While I fail to
    see the point of this statement, it is just plainly untrue, ignoring
    the 1987 and 1990 petitions.

[^62]: *Public Notice*, Updated Comments Invited Regarding the Personal
    Attack and Political Editorial Rules and Related Pleadings, DA
    96‑2159, 12 FCC Rcd 4688 (Dec. 19, 1996).

[^63]: *Public Notice*, 12 FCC Rcd 11956 (Aug. 8, 1997).

[^64]: *Public Notice*, 13 FCC Rcd 11809 (May 8, 1998). Though the
    Commission had five members at this point (four of whom were new),
    the Chairman had voluntarily recused himself, having personally
    worked on the matter as an attorney for the National Association of
    Broadcasters.

[^65]: *Radio-Television News Directors Ass'n*, No. 97‑1528, 1998 WL
    388796 (D.C. Cir. May 22, 1998) (unpublished opinion).

[^66]: *Radio-Television News Directors Ass'n & Nat'l Ass'n of
    Broadcasters v. FCC*, No. 98-1305 (D.C. Cir. July 24, 2000).

[^67]: Specifically, the court stated:

    > The FCC retains discretion to commence a new rulemaking, or to
    > reopen the record, to ensure that it fully accounts for relevant
    > factual and legal developments since 1983, but is not compelled to
    > do so. *In any event*, the FCC on remand *must* address *at least*
    > the concerns it raised in its NPRM, the Fairness Report, and the
    > Syracuse order, and *must* supplement its analysis with record
    > evidence showing a fit between its policy preferences and the
    > actual communications market in which the rules operate.

    *Id.* (emphasis added, citation and footnote omitted).

[^68]: I cast no aspersions on the merits of the Chairman's ethics
    decisions. The recusal decision is his alone to make. *See*
    Statement of William E. Kennard, Chairman, Federal Communications
    Commission, Concerning His Participation in the Personal Attack and
    Political Editorial Rule Proceeding (Sept. 18, 2000) \[available at
    <http://www.fcc.gov/speeches/kennard/statements/2000/stwek075.html>\].

[^69]: 395 U.S. 367 (1969).

[^70]: The Administrative Procedure Act ("APA") "directs agencies to
    conclude matters presented to them 'within a reasonable time' . . .
    and stipulates that the "reviewing court shall \... compel agency
    action unlawfully withheld or unreasonably delayed \...."
    *Telecommunications Research & Action Ctr. v. FCC*, 750 F.2d 70, 76
    (D.C. Cir. 1984) (*quoting* 5 U.S.C. §§ 555(b) & 706(1)).
    "\[S\]ection 706(1) coupled with section 555(b) \[of the APA\] does
    indicate a congressional view that agencies should act within
    reasonable time frames and that courts designated by statute to
    review agency actions may play an important role in compelling
    agency action that has been improperly withheld or unreasonably
    delayed." *Id.* (*citing* *Public Citizen Research Group v.
    Commissioner, Food & Drug Admin.*, 740 F.2d 21, 32 (D.C. Cir.
    1984)).

[^71]: According to the Mass Media Bureau records, over the last decade,
    the Commission has found absolutely no violations of the personal
    attack rule and only three of the political editorial rule.

[^72]: I note that the Commission found the fairness doctrine was not in
    the public interest and unconstitutional under the *Red Lion*
    standard. The reviewing court affirmed only on the public interest
    basis, choosing to follow the time-honored cannon of avoiding a
    constitutional question if possible. Thus, it did not affirm but
    also did not reject the Commission's constitutional analysis.
    Indeed, Judge Starr, concurring, believed the court should have
    examined the constitutional question and approved of the
    Commission's analysis*. See generally Syracuse Peace Council v.
    FCC*, 867 F.2d 654, 682-84 (D.C. Cir. 1989) (Starr, J., concurring).
    I believe the Commission's precedent for how to apply *Red Lion*,
    thus, is binding on this Commission and cannot be swept away as
    dicta in an order to refresh the record.

[^73]: *Cf.* *Telecommunications Research & Action Ctr. v. FCC*, 801
    F.2d 501, 508 (D.C. Cir. 1986), *petition for reh'g en banc denied*,
    806 F.2d 111, *cert. denied*, 482 U.S. 919 (1987); *see also*
    *Action for Children's Television v. FCC*, 58 F.3d 654 (D.C. Cir.
    1995) (*en banc*) (Edwards, C.J., dissenting) (noting "\[i\]t is no
    longer responsible for courts to apply a reduced level of First
    Amendment protection for regulations imposed on broadcast based on
    an indefensible notion of spectrum scarcity.") *See also* Thomas G.
    Krattenmaker & Lucas A. Powe, Jr*., Regulating Broadcast
    Programming* 204-219 (The MIT Press 1994).

[^74]: Data is as of June 1999. *See* Annual Assessment of the Status of
    Competition in Markets for the Delivery of Video Programming, CS
    Docket No. 99-230, Sixth Annual Report, 15 FCC Rcd 978, 989, ¶ 20
    (2000).

[^75]: *Id.* at 984, ¶ 15.

[^76]: *See* *The Role of the PC, Communications and Leisure*,
    CyberAtlas (citing report from PC Data) \[available at
    <http://cyberatlas.internet.com/big_picture/hardware/article/0,1323,5921_447001,00.html>
    (last visited Sept. 29, 2000)\].

[^77]: *See* *Metrix Central*, Media Metrix \[available at
    <http://www.mediametrix.com/usa/data/metrixcentral.jsp> (last
    visited Sept. 29, 2000)\].

[^78]: *See* 47 C.F.R. §§ 73.3555, 76.501(a).

[^79]: *See* Thomas E. Weber, *Online: Web Radio: No Antenna Required*,
    Wall St.J., July 28, 1999, at B1.

[^80]: S*ee League of Women Voters*, 468 U.S. at 377 n.11 ("We are not
    prepared, however, to reconsider our longstanding approach without
    some signal from Congress or the FCC that technological developments
    have advanced so far that some revision of the system of broadcast
    regulation may be required.")