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

# 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.[^1] I write
separately to add just a few points for the record.

## I. The Timing of this Order

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.[^2]

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 [^3])
has existed ever since the current Commission was convened. How this
factor could "now \[be of\] controlling importance,"[^4] 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[^5] 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

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.

[^1]: 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.

[^2]: 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.

[^3]: 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\>.

[^4]: *Id.*

[^5]: ^?^ *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).