**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**

**(Proceeding Terminated)**

**Adopted:** October 26, 2000 **Released:** October 26, 2000

By the Commission: Chairman Kennard issuing a statement; Commissioner
Powell concurring and issuing a statement.

1.  Pursuant to the D.C. Circuit Court of Appeals' order in
    *Radio-Television News Directors Association v. FCC*, No. 98-1305,
    slip op. (D.C. Cir. Oct. 11, 2000) (*RTNDA*), we hereby repeal
    Sections 73.1920 and 73.1930 of our rules, 47 C.F.R. §§ 73.1920,
    73.1930, the broadcast personal attack and political editorial
    rules. Further, in light of these actions, we vacate our *Order and
    Request to Update Record* released October 4, 2000 (FCC 00-360) and
    terminate this proceeding.

2.  We also repeal the personal attack and political editorial rules
    that apply to cable television operators. 47 C.F.R. §§ 76.209(b),
    (c), and (d). Although these rules were not specifically cited in
    the proceeding before the Court of Appeals in *RTNDA*, they are
    identical to those rules in all material respects. The potential
    elimination of these rules was raised in a Notice of Proposed Rule
    Making in MM Docket No. 83-331, 48 Fed. Reg. 26471 (June 8, 1983),
    and was specifically addressed in a 1996 request for further
    information in the instant docket, MM Docket No. 83-484, 48 Fed.
    Reg. 28295 (June 21, 1983). Given the delay in concluding these
    proceedings and the Court of Appeals' decision, we also vacate these
    identical cable television rules placed at issue in MM Docket No.
    83-331. We do so on the procedural grounds set forth in the Court of
    Appeals' decision in *RTNDA*, without expressing any conclusion as
    to the substantive issues underlying these rules. As the Court of
    Appeals noted, "\[o\]f course, the Commission may institute a new
    rule-making proceeding to determine whether, consistent with
    constitutional constraints, the public interest requires the
    personal attack and political editorial rules." *RTNDA*, slip op.
    at 4. With respect to the personal attack and political editorial
    rules, "these are issues that the court has yet to decide." *Id*.

3.  Accordingly, IT IS ORDERED that Sections 73.1920, 73.1930 and
    76.209(b), (c), and (d) of the Commission's rules, 47 C.F.R. §§
    73.1920, 73.1930, 76.209(b), (c), (d) ARE REPEALED upon the adoption
    of this *Order*.

4.  IT IS FURTHER ORDERED that the Commission's rules ARE AMENDED as set
    forth in Appendix A.

5.  IT IS FURTHER ORDERED that the *Order and Request to Update Record*,
    FCC 00-360 (rel. Oct. 4, 2000) IS VACATED.

6.  IT IS FURTHER ORDERED that this proceeding IS TERMINATED.

7.  This action is taken pursuant to Sections 4(i), 4(j) and 303 of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 154(j),
    and 303.

    FEDERAL COMMUNICATIONS COMMISSION

    Magalie Roman Salas

    Secretary

    **APPENDIX A**

    **Rule Changes**

    Parts 73 and 76 of Chapter 1 of Title 47 of the Code of Federal
    Regulations are amended to read as follows:

    **Part 73-RADIO BROADCAST SERVICES**

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1.  The authority citation for Part 73 continues to read as follows:

    AUTHORITY: 47 U.S.C. 154, 303, 334 and 336.

2.  Section 73.1920 is removed and reserved.

3.  Section 73.1930 is removed and reserved.

    **Part 76-MULTICHANNEL VIDEO AND CABLE TELEVISION SERVICE**

4.  The authority citation for Part 76 continues to read as follows:

> AUTHORITY: 47 U.S.C. 151, 152, 153, 154, 301, 302, 303, 303a, 307,
> 308, 309, 312, 317, 325, 503, 521, 522, 531, 532, 534, 535, 536, 537,
> 543, 544, 544a, 545, 548, 549, 552, 554, 556, 558, 560, 561, 571, 572,
> 573.

5.  Sections 76.209(b), (c), and (d) are removed and reserved.

**STATEMENT OF CHAIRMAN WILLIAM E. KENNARD**

*In the Matter of Repeal or Modification of the Personal Attack and
Political*

## *Editorial Rules, MM Docket No. 83-484*

Today, we repeal the personal attack and political editorial rules as
ordered by the D.C. Circuit Court of Appeals. *Radio-Television News
Directors Association v. FCC,* No. 98-1305, slip op. (D.C. Cir. October
11, 2000).

While the court expressed frustration with the procedural history of
this case, it did not rule on the merits. Indeed, the Court acknowledged
that the Commission "may institute a new rulemaking proceeding to
determine whether, consistent with the constitutional constraints, the
public interest requires the personal attack and political editorial
rules."

I continue to believe that these rules deserve careful reexamination.
With the clean slate that today's action provides, I will direct the
Mass Media Bureau to prepare a Notice of Proposed Rulemaking to explore
these issues in the larger context of broadcasters' obligation to serve
the public interest.

## 

## CONCURRING STATEMENT OF COMMISSIONER MICHAEL K. POWELL 

*Re: In the Matter of Repeal or Modification of the Personal Attack and
Political Editorial Rules, MM Docket No. 83-484*

On October 11, 2000, the U.S. Court of Appeals for the District of
Columbia Circuit issued a *writ of mandamus* ordering the \"Commission
immediately to repeal the personal attack and political editorial
rules.\"[^1] As a result of this extraordinary measure by the court, the
Commission has finally accomplished what it should have done twenty
years ago when this proceeding was commenced in 1983[^2]---that is, the
repeal of these rules. Now, finally, the proceeding is over and the
rules are gone.

I write separately to briefly address two points. [First]{.underline}, I
previously voted to repeal the personal attack and political editorial
rules on substantive and not procedural grounds, thus my vote today is
based on the same substantive objections.[^3] Today\'s *Order* attempts
to paint the court\'s issuance of the *writ* as simply a procedural slap
at the Commission. However, taken together, the D.C. Circuit Court
opinions, at a minimum, raise substantive first amendment concerns about
the rules.[^4] The court stated that the rules \"interfere with
editorial judgment of professional journalists and entangle the
government in day-to-day operations of the media,\" and \"chill at least
some speech, impose at least some burdens on activities at the heart of
the First Amendment.\" *RTNDA*, 2000 WL 1505525, at \*1 (citations
omitted). The court never reached the merits of the underlying claim
because the Commission\'s inaction over the past seventeen years never
gave it a basis to do so, although it has clearly signaled its doubts as
to the constitutionality of the rules.[^5] Any further proceeding the
Commission may commence should be guided by the careful constraints
expressed by the court.

[Second]{.underline}, even though the *RTNDA* litigation sought repeal
of the rules as applied to broadcasters, the Commission properly removed
the cable rules as well. The cable rules are identical to the broadcast
rules: they were properly noticed in two proceedings dating back to
1983.[^6] In fact, the First Amendment concerns are more applicable to
cable television providers that enjoy greater protection than
broadcasters.

In closing, although the *Order* is quick to note the Court\'s
suggestions that the Commission \"may institute a new rule-making
proceeding,\"[^7] I hope this *Order* lays the rules to rest
permanently.

[^1]: *Radio-Television News Directors Ass\'n v. FCC*, No. 98-1305, 2000
    WL 1505525, at \*2 (D.C. Cir. Oct. 11, 2000) (hereinafter
    \"*RTNDA*\").

[^2]: *Repeal or Modification of the Personal Attack and Political
    Editorial Rules, Notice of Proposed Rulemaking,* 48 Fed. Reg. 28295
    (June 21, 1983) (\"1983 Notice\").

[^3]: *See* In the Matter of Repeal or Modification of the Personal
    Attack and Political Editorial Rules, MM Docket No. 83-484, *Order &
    Request to Update Record*, Separate Statement of Commissioner
    Michael K. Powell (Oct. 4, 2000) \[available on the World Wide Web
    at \<http://www.fcc.gov/commissioners/powell\>\]; *see also Public
    Notice*, Commission Proceeding Regarding the Personal Attack and
    Political Editorial Rules, FCC 98-126, 13 FCC Rcd 21901, 21929 (June
    22, 1998) \[available on the World Wide Web at
    \<http://www.fcc.gov/commissioners/powell\>\].

[^4]: *See, e.g., Radio-Television News Directors Ass\'n v. FCC*, 184
    F.3d 872 (D.C. Cir. 1999); *Radio-Television News Directors Ass\'n
    v. FCC*, No. 98-1305, 2000 WL 1505525 (D.C. Cir. Oct. 11, 2000).

[^5]: *See* *RTNDA*, 2000 WL 1505525, at \*3 (calling into question the
    sufficiency of the six separate justifications given by the
    Commission in promulgating its rules).

[^6]: *See* 48 Fed. Reg. 26471 (June 8, 1983); *see* *also* 48 Fed. Reg.
    28295 (June 21, 1983).

[^7]: *Order*, ¶ 2.