OCTOBER 27, 2000
SEPARATE STATEMENT OF COMMISSIONER MICHAEL K. POWELL, CONCURRING
Re: In the Matter of Repeal or Modification of the Personal Attack and Political Editorial Rules, MM Docket No. 83-484
On October 11, 2000, the U.S. Court of Appeals for the District of Columbia Circuit issued a writ of mandamus ordering the "Commission immediately to repeal the personal attack and political editorial rules." (1) As a result of this extraordinary measure by the court, the Commission has finally accomplished what it should have done twenty years ago when this proceeding was commenced in 1983 (2)--that is, the repeal of these rules. Now, finally, the proceeding is over and the rules are gone.
I write separately to briefly address two points. First, I previously voted to repeal the personal attack and political editorial rules on substantive and not procedural grounds, thus my vote today is based on the same substantive objections. (3) Today's Order attempts to paint the court's issuance of the writ as simply a procedural slap at the Commission. However, taken together, the D.C. Circuit Court opinions, at a minimum, raise substantive first amendment concerns about the rules. (4) The court stated that the rules "interfere with editorial judgment of professional journalists and entangle the government in day-to-day operations of the media," and "chill at least some speech, impose at least some burdens on activities at the heart of the First Amendment." RTNDA, 2000 WL 1505525, at *1 (citations omitted). The court never reached the merits of the underlying claim because the Commission's inaction over the past seventeen years never gave it a basis to do so, although it has clearly signaled its doubts as to the constitutionality of the rules. (5) Any further proceeding the Commission may commence should be guided by the careful constraints expressed by the court.
Second, even though the RTNDA litigation sought repeal of the rules as applied to broadcasters, the Commission properly removed the cable rules as well. The cable rules are identical to the broadcast rules: they were properly noticed in two proceedings dating back to 1983. (6) In fact, the First Amendment concerns are more applicable to cable television providers that enjoy greater protection than broadcasters.
In closing, although the Order is quick to note the Court's suggestions that the Commission "may institute a new rule-making proceeding," (7) I hope this Order lays the rules to rest permanently.
1. Radio-Television News Directors Ass'n v. FCC, No. 98-1305, 2000 WL 1505525, at *2 (D.C. Cir. Oct. 11, 2000) (hereinafter "RTNDA").
2. Repeal or Modification of the Personal Attack and Political Editorial Rules, Notice of Proposed Rulemaking, 48 Fed. Reg. 28295 (June 21, 1983) ("1983 Notice").
3. See In the Matter of Repeal or Modification of the Personal Attack and Political Editorial Rules, MM Docket No. 83-484, Order & Request to Update Record, Separate Statement of Commissioner Michael K. Powell (Oct. 4, 2000) [available on the World Wide Web at <http://www.fcc.gov/commissioners/powell>]; see also Public Notice, Commission Proceeding Regarding the Personal Attack and Political Editorial Rules, FCC 98-126, 13 FCC Rcd 21901, 21929 (June 22, 1998) [available on the World Wide Web at <http://www.fcc.gov/commissioners/powell>].
4. See, e.g., Radio-Television News Directors Ass'n v. FCC, 184 F.3d 872 (D.C. Cir. 1999); Radio-Television News Directors Ass'n v. FCC, No. 98-1305, 2000 WL 1505525 (D.C. Cir. Oct. 11, 2000).
5. See RTNDA, 2000 WL 1505525, at *3 (calling into question the sufficiency of the six separate justifications given by the Commission in promulgating its rules).
6. See 48 Fed. Reg. 26471 (June 8, 1983); see also 48 Fed. Reg. 28295 (June 21, 1983).
7. Order, ¶ 2.