9th Circuit Upholds FCC Ad Ban for Noncommercial Stations
A panel of judges upheld the FCC ban on political ads on public radio and TV stations. The opinion, issued Monday following a rehearing, came from a panel of 11 judges in the 9th U.S. Circuit Court of Appeals. One judge presented a partial dissent and partial concurrence, and two judges dissented completely. The en banc court overturned a previous 9th Circuit decision that struck down the ban (CD April 13/12 p2). The decision stemmed from a case brought by the Minority Television Project, owner of KMTP-TV San Francisco, against an FCC order that found the station liable for a $10,000 fine when it ran ads for for-profit companies (CD April 13/12 p2). The Justice Department requested the rehearing (CD Nov 29/12 p17).
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The court said the government has a substantial interest in imposing advertising restrictions to preserve the essence of public broadcast programming, wrote Judge Margaret McKeown in the majority opinion. The diversity and quality of public broadcasting programming “stems both from the restrictions on advertising and from the incentives created by the existing funding structure,” she said.
Judge Consuelo Callahan concurred with the majority opinion “only insofar as it upholds the prohibition against paid advertisements by for-profit entities,” McKeown wrote. Callahan dissented from the majority’s acceptance of the prohibition of ads on issues of public importance or interest and for political candidates.
Judge Alex Kozinski maintained his dissent from the first decision on appeal, saying the government’s evidence in support of the restriction “doesn’t pass muster under any kind of serious scrutiny, and that even if intermediate scrutiny applies there is simply not enough there to satisfy a skeptical mind that the reasons advanced are rational, let alone substantial,” he said in a dissent joined by Judge John Noonan. The statute’s ban on issue ads is “particularly troubling, as it deprives public broadcast audiences of precisely the type of information we expect an informed public to have,” he said in the new dissent. “No one suggests that sponsors of issue ads are waiting voraciously in the wings, yearning to pressure public broadcast stations into changing their programming.” Ads are speech, he said. Viewers see commercials “as no more than annoying interruptions, but the Supreme Court recognized that advertisements often carry important, sometimes vital, information,” he said.
The decision to uphold the law isn’t surprising, said Craig Parshall, National Religious Broadcasters general counsel. “I hope it doesn’t encourage both Congress and the commission to overregulate the broadcast airwaves.” Kozinski hit an important point, said Parshall. “The more freedom that we give to both public as well as commercial broadcasters, the better.” In the long run, the media landscape “is going to benefit from less restrictions than more restrictions,” he said. NRB is still pushing for the FCC to make a decision allowing noncommercial stations to use air time to raise funds for nonprofit organizations (CD April 27/12 p8). “All public noncommercial stations should be given as much free rein as possible,” said Parshall.
The decision is frustrating, said Walter Diercks, an attorney for Minority Television Project. “Kozinski got it right but he didn’t carry the day.” The outcome should be worrisome for the entire broadcast industry, Diercks said: “If the government can do it in the area of noncommercial broadcasting, they can do it anywhere."
The en banc decision maintains the status quo, said Andrew Schwartzman, a public interest lawyer who advocates for free speech. “This is likely to be the end of this litigation.” When the station tried arguing that the regime was unconstitutional, it found two conservative judges who bought into that argument, he said. “That was more luck of the draw than anything else.” The decision will likely be applauded by most public broadcasters, he said.