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.

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 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 authority³) 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 argument⁵ 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.

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.

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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.