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October 4, 2000

Separate Statement of Commissioner Michael K. Powell, Dissenting

Re: 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, 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, 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, the Order is inappropriately coercive, and will not significantly aid in addressing the court's concerns. And, fourth, 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

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. See 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)); see also id. ("Although Red Lion affirmed the rules challenged here, the Court recognized that changed circumstances might be salient in future cases.") (citing 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

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.

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]tis no longer responsiblefor 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. See 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.")