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Federal Communications Commission
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Washington, D.C. 20554
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This is an unofficial announcement of Commission action. Release of the full text of a Commission order constitutes official action. See MCI v. FCC. 515 F 2d 385 (D.C. Circ 1974).

September 18, 2000
David Fiske (202) 418-1513

Statement of FCC Chairman William E. Kennard
Concerning his Participation in the Personal Attack and Political Editorial Rule Proceeding

Some time ago, I asked our Designated Agency Ethics Officer (DAEO) whether I should recuse myself from the FCC proceeding reviewing the FCC Personal Attack and Political Editorial rules because I had participated in it in the early 1980s on behalf of the National Association of Broadcasters (NAB). I was advised that there is no statute or rule prohibiting my participation, but that a regulation issued by the Office of Government Ethics (OGE), applicable to all federal employees, directs an employee to consider whether there are circumstances that "would raise a question regarding his impartiality." 5 C.F.R. 2635.502(a). Various factors are considered in determining whether a reasonable person would question a federal employee's impartiality, and our DAEO concluded, under the facts of this case, that a reasonable person would not seriously question my impartiality, particularly because of the length of time that has passed since I worked for NAB and the fact that I have no personal financial stake in the matter. Nevertheless, out of an abundance of caution, I decided not to participate.

However, I believe that the public interest, and the efficient conduct of FCC business, now outweighs the reasons for my cautionary recusal, and thus, for the reasons stated below, I have now decided that I should participate in the proceeding.

The record demonstrates there has been continued deadlock at the Commission on this issue. In addition, the D.C. Circuit on more than one occasion remanded the matter back to the Commission to provide a definitive determination on the issues, and has shown apparent frustration with the Commission's failure to act. I am very concerned that this situation not continue.

Furthermore, our DAEO has told me that another factor that is considered under the OGE regulation is "the difficulty of reassigning the matter." 5 C.F.R. 2635.502(d)(5). He has recently advised me that this factor is now of controlling importance in his view. While it is usually possible to find another federal employee to perform a task, it is simply not possible to reassign my authority to vote on Commission matters. Moreover, when one commissioner is recused the Commission does not usually deadlock. But it has happened here, compounding a prior deadlock. .

In addition, the parties opposing the broadcasters, who would be the parties most likely to question my impartiality since the issue arises because I previously worked for the NAB, have made clear that they believe that I should participate.

For all of these reasons, I have once again asked the FCC's ethics officials to consider whether I could participate in this proceeding and they have authorized my participation.

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