The National Law Journal
Monday, November 10, 1997
FCC Should Ditch Personal Attack Rules
By Stuart N. Brotman

Communications Law history was made last week when the U.S. Senate confirmation process filled four out of five vacancies on the Federal Communications Commission. This is akin to virtually all of the U.S. Supreme Court justices being replaced at the same time.
When the new FCC convenes, it will find itself continuing to sort out complex policy issues that are the legacy of the Telecommunications Act of 1996. But the commissioners will also have on their plate a previously unresolved regulatory matter that must be addressed because of a recent federal appellate court remand. Exhibit A: the FCC's personal attack rules, which have been challenged by the broadcast community for inhibiting the discussion of public issues on radio and television.
Last year, when the U.S. Circuit Court of Appeals for the District of Columbia ordered the FCC to review these rules, the agency deadlocked, lacking a full complement of commissioners, which means that the new FCC will need to review this matter in short order or, under the court's mandate, send it back to the judges for resolution.
Thirty-five years ago, the FCC developed a personal attack policy to deal with situations in which radio or television facilities are used to attack a person or group. According to the FCC, if "the attacks are of a highly personal nature which impugn the character and honesty of named individuals," broadcasters have "an affirmative obligation to see to it that the persons attacked are afforded the fullest opportunity to respond."
The personal attack policy, which the FCC codified into its rules in 1967, comes into play when the attack occurs "within the context of a discussion of a controversial issue of public importance," specifically exempting bona fide newscasts, news interviews and news commentaries. The FCC was not interested in determining truth or falsehood, a central factor that courts use to establish libel. Rather, the personal attack rules are an independent remedy that, if eliminated, would leave other methods of recourse in place. While the U.S. Supreme Court upheld the constitutionality of the personal attack rules in its famous Red Lion decision [Red Lion Broadcasting Co. v. Federal Communications Commission, 395 U.S. 367 (1969)], the FCC has the legal authority to eliminate them through its own initiative, as it did with the more generalized Fairness Doctrine in 1987.

Measuring Stick is Arbitrary
Under the personal attack rules, the FCC has adjudicated more than 100 cases that collectively demonstrate the impossibility of rational administration. In handling these complaints, the FCC has become involved in daily review of sensitive licensee judgments as to whether a personal attack was made and the attack was aired during the discussion of a controversial issue of public importance. When personal attacks have been found, the FCC has become involved in further determinations, such as whether the response to the attack was unreasonably restricted by the licensee, or whether the response had gone too far afield.
Former FCC Commissioner Glen O. Robinson accurately summarized the problem that develops when the agency reviews personal attack complaints when he said, "It may be, of course, that these are among the species of cases for which principles do not really suffice, and they must consequently be decided according to the length of the chancellor's foot. But in such cases, it is the chancellor's duty at least to try to keep his foot from changing size like Alice in Wonderland." In short, the codified rules have created effects that are arbitrary and counterproductive to achieving the goal of robust public debate.
After years of FCC and court decisions that favor giving more discretion to broadcast licensees, the personal attack rules have become anachronistic, with a First-Amendment-chilling effect on radio and television stations. The new FCC should begin its work by abolishing them at last.