## October 4, 2000

### Separate Statement of Commissioner Michael K. Powell, Dissenting

> **In the Matter of Repeal or Modification of the Personal Attack and
> Political Editorial Rules, MM Docket No. 83-484, *Order and Request to
> Update Record***

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*.[^1] 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**

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.[^2] 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.[^3] 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.[^4]

In 1998, a second *mandamus* petition was filed, and the present
Commission deadlocked as well.[^5] 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.[^6] 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.[^7] 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.[^8] 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.[^9]
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*[^10] 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)).[^11]

**[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.[^12] 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**

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.[^13]

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.[^14] 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?[^15] How can we ignore DBS with
12.5 percent of the viewing public?[^16] 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[^17] and, on average, more than 18
minutes per day are spent accessing news, information and
entertainment.[^18] 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.[^19] 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.[^20] 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,*[^21] 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]: 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).

[^2]: 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.

[^3]: *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).

[^4]: *Public Notice*, 12 FCC Rcd 11956 (Aug. 8, 1997).

[^5]: *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.

[^6]: *Radio-Television News Directors Ass'n*, No. 97‑1528, 1998 WL
    388796 (D.C. Cir. May 22, 1998) (unpublished opinion).

[^7]: *Radio-Television News Directors Ass'n & Nat'l Ass'n of
    Broadcasters v. FCC*, No. 98-1305 (D.C. Cir. July 24, 2000).

[^8]: 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).

[^9]: 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) \[available at
    <http://www.fcc.gov/speeches/kennard/statements/2000/stwek075.html>\].

[^10]: 395 U.S. 367 (1969).

[^11]: ^?^ 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)).

[^12]: 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.

[^13]: 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.

[^14]: *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).

[^15]: 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).

[^16]: *Id.* at 984, ¶ 15.

[^17]: *See* *The Role of the PC, Communications and Leisure*,
    CyberAtlas (citing report from PC Data) \[available at
    <http://cyberatlas.internet.com/big_picture/hardware/article/0,1323,5921_447001,00.html>
    (last visited Sept. 29, 2000)\].

[^18]: *See* *Metrix Central*, Media Metrix \[available at
    <http://www.mediametrix.com/usa/data/metrixcentral.jsp> (last
    visited Sept. 29, 2000)\].

[^19]: *See* 47 C.F.R. §§ 73.3555, 76.501(a).

[^20]: *See* Thomas E. Weber, *Online: Web Radio: No Antenna Required*,
    Wall St.J., July 28, 1999, at B1.

[^21]: 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.")