The FCC could opt for a rehearing after the 9th U.S....
The FCC could opt for a rehearing after the 9th U.S. Court of Appeals struck down its ban on noncommercial stations running political ads, some broadcast attorneys said. The court’s 2-1 decision called into question the implications for the mission…
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of noncommercial broadcasting (CD April 13 p2). The point on which all the judges agreed was that intermediate scrutiny, not strict scrutiny, “should be applied, even though the law imposed a content-based restriction on political speech,” said David Oxenford, a Davis Wright attorney. Judge Carlos Bea applied what he described as a robust form of intermediate scrutiny calling for judicial wariness within the standard described “because the restrictions prohibited core political speech,” Oxenford said in a blog post. Because he found no evidence to support the restrictions on issue and political advertising, Bea concluded that the government cannot simply assert its way out of the “substantial evidence” requirement of the First Amendment. The FCC may seek rehearing by the panel or en banc, “which is likely given the significance of the decision and the divided panel opinion,” Oxenford said (http://xrl.us/bm3our). If the 9th Circuit denies rehearing, the commission would be expected to seek a review by the Supreme Court “since the panel decision invalidated sections of a federal statute,” Oxenford wrote. Clifford Harrington, a Pillsbury lawyer, said the decision leaves open many important questions on how to implement it. It doesn’t consider whether federal candidates “will be entitled to ‘reasonable access’ rights on noncommercial stations,” permitting them to buy advertising on noncommercial stations that don’t want to accept political advertising, he said on the law firm’s blog (http://xrl.us/bm3ouv). Many commercial stations won’t be happy if they find that their political ad revenue is being diverted to noncommercial stations, he said: If upheld, “the implications of this decision for both noncommercial and commercial stations will be far reaching.” Free Press criticized the ruling as going against the character of noncommercial broadcasting. Polluting public broadcasting “with misleading and negative political ads is not in keeping with the original vision of noncommercial broadcasting,” CEO Craig Aaron said. It’s “certainly not the solution to funding public media.” Viewers don’t want to see Sesame Street “being brought to them by shadowy Super PACs (political actions committee),” he said. The Department of Justice is reviewing the court’s decision, a DOJ spokesman said.