**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  |                              |
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| Personal Attack Complaint Filed  | ** |                              |
| By                               |    |                              |
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| Orrin R. Ford Against AM radio   | *) |                              |
| Station                          | ** |                              |
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| WERC, Birmingham, Alabama        | *  |                              |
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|                                  | ** |                              |
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|                                  | *) |                              |
|                                  | ** |                              |
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|                                  | *) |                              |
|                                  | ** |                              |
+----------------------------------+----+------------------------------+

**Memorandum Opinion and Order**

**Adopted: November 4, 2003 Released: November 12, 2003**

By the Commission:

1.  The Commission has before it an Application for Review filed by
    Orrin R. Ford ("Ford") concerning alleged violations of the personal
    attack rule, former Section 73.1920 of the Commission's Rules, 47
    C.F.R.§ 73.1920, and an opposition thereto filed by the licensee of
    WERC. Ford asks the Commission to vacate the decision of the Chief
    of the former Mass Media Bureau, dismissing all allegations in his
    complaint against AM radio Station WERC, Birmingham, Alabama,
    concerning the personal attack rule and referring his other
    allegations to the Enforcement Bureau for further consideration.[^1]
    In the alternative, Ford asks the Commission to correct the basis
    for dismissal of his complaint.

2.  In *WERC*, the Mass Media Bureau dismissed as moot all aspects of
    Ford's complaint that concerned allegations of violations of the
    personal attack rule. The Mass Media Bureau based its decision on
    the Commission's repeal of the personal attack rule[^2] pursuant to
    a *writ of mandamus* issued by the U.S. Court of Appeals for the
    District of Columbia Circuit.[^3] The court's issuing of the *writ*
    was the final judicial decision in a proceeding that had been
    initiated by a petition for rulemaking filed by the National
    Association of Broadcasters requesting that the Commission repeal
    the personal attack and political editorial rules. In an earlier
    decision, the court had acknowledged that the personal attack and
    political editorial rules "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."[^4] The
    court remanded "the case to afford the FCC an opportunity to provide
    adequate justification for retaining the personal attack and
    political editorial rules."[^5] In issuing the *writ* ordering the
    FCC to repeal the rules, the court indicated that the Commission had
    not provided adequate justification for retaining them.[^6]

3.  Ford argues that his allegations concerning the personal attack rule
    should not have been dismissed as moot because, at the time of the
    alleged violations, the personal attack rule was still in effect. We
    disagree. Although the personal attack rule was in effect at the
    time of Ford's alleged violations, the Mass Media Bureau correctly
    chose not to exercise its discretion to enforce this rule under the
    circumstances in this case. The U.S. Court of Appeals for the
    District of Columbia Circuit indicated that it had concerns about
    the constitutionality of the personal attack rule. The Commission
    was unable to justify retention of the rule to the court's
    satisfaction, resulting in the court's directing the Commission to
    repeal the rule. Any attempt to enforce the personal attack rule
    under these circumstances would most likely result in substantial
    resources being expended litigating the constitutionality of a rule
    that no longer exists.[^7]

4.  Ford also contends that the Commission failed to address his
    allegations that the station violated provisions of the
    Communications Act. In his complaint, Ford argued that WERC's
    "wilful conduct hereinabove described \[alleged violations of the
    personal attack rule\] constitutes a violation of Sec. 312 of the
    Communications Act of 1934, as amended, 47 USC 312, and more
    specifically subsections (a)(2), (a)(3), (a)(4) of said
    section."[^8] In *WERC*, the Mass Media Bureau dismissed "as moot
    all aspects of \[Ford's\] complaint that concern allegations of
    violations of the personal attack rule," which would include the his
    claimed violations of the Communications Act.

5.  Ford presents no new facts or arguments in his Application for
    Review that would persuade us to change the Bureau's decision. We
    have reviewed the Bureau's action and find that its ruling was
    correct. There is no reason to disturb it. *See WAMC, Inc.*, 10 FCC
    Rcd 12219 (1995) (denying application for review raising essentially
    same arguments as in the petition for reconsideration).

6.  Accordingly, IT IS ORDERED that the Application for Review filed by
    Ford IS DENIED.

    FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

[^1]: Letter from Roy J. Stewart, Chief, Mass Media Bureau, to Orrin R.
    Ford, Esquire (June 14, 2001) ("*WERC*"). In his Application for
    Review, Ford also requests that the Commission withdraw the referral
    of his claims of misrepresentation against the station to the
    Enforcement Bureau; that the Commission take jurisdiction of the
    complaint, including his misrepresentation claims; that the
    Commission hold hearings, both evidentiary and legal, on the merits
    of the complaint and subsequent proceedings concerning the complaint
    and supplemental matters; and that the Commission enter an order
    adjudicating all matters contained in the complaint and
    supplementary proceedings regarding the complaint and granting the
    relief prayed for therein.

[^2]: *Repeal or Modification of the Personal Attack and Political
    Editorial Rules*, 15 FCC Rcd 20697 (2000).

[^3]: *Radio-Television News Directors Association v. FCC*, 229 F.3d 269
    (D.C. Cir. 2000) (*RTNDA*).

[^4]: *Radio-Television News Directors Association v. FCC*, 184 F.3d
    872, 887 (D.C. Cir. 1999).

[^5]: *Id.* at 889.

[^6]: *RTNDA, supra* n.3.

[^7]: In documents filed subsequent to his complaint, as well as in his
    Application for Review, Ford argued that a personal attack reply
    obligation is codified in the Communications Act. By ordering the
    Commission to repeal the personal attack rule, the court in *WERC*
    implicitly negated this argument.

[^8]: These provisions concern reasons for the Commission to revoke a
    station license such as willful or repeated violation of any rule of
    the Commission authorized by the Communications Act.