Broadcasters still fight federal regulation.

The national broadcast editorial association lives again. Sort of.

NBEA and its dwindling band of television and radio editorial writers merged with NCEW some years ago, but the old association lives on in a footnote to a U.S. Justice Department brief. The brief argues in support of keeping Federal Communication Commission rules that regulate editorials in broadcasting and cable.

As one of the members of the old NBEA who recently returned to the craft of writing television editorials, I found this obscure case disturbing, because although the First Amendment implications are enormous, the stakes seem so small.

The case, which was argued in April before the U.S. Court of Appeals for the D.C. Circuit, pits a divided FCC against the Radio Television News Directors Association and the National Association of Broadcasters. At stake is the continuation of two FCC rules that regulate editorials presented by broadcasters or cable operators.

The rules date back to the 1970s. The political editorial rule requires that if candidates are endorsed, stations must offer time to reply to all legally qualified candidates. The personal attack rule requires stations or cable systems to offer reply time to any individual or group when an attack is made upon their honesty, character, integrity, or personal qualities.

You might wonder why, with these sweeping rules, you rarely if ever hear or see people replying to editorial attacks or endorsements. One obvious reason is that so few stations broadcast editorials these days, and the few that do rarely endorse candidates. Another is that the personal attack rules apply mostly to editorials but not to attacks made in newscasts, news interviews, or even in commentaries, all of which are exempt.

Who is left to be regulated? Broadcast and cable editorial writers and radio talk shows.

So why do RTNDA and NAB persist in carrying on this crusade against the rules? Credit institutional persistence and inertia for their stance.

This campaign against the government rules over broadcast content dates back to the 1980s, when the FCC decided to abandon the infamous Fairness Doctrine, in which the commission designated itself to act as referee in determining whether broadcasters were being fair in presenting all sides of controversial issues. When the commission abandoned the Fairness Doctrine, it also proposed to eliminate the political endorsement and personal attack rules, but 15 years later the rules are still in effect, despite unrelenting efforts to abolish them.

Last year, FCC commissioners deadlocked on the issue of abolishing the rules, with commissioners Susan Ness and Gloria Tristani voting to continue then, and commissioners Michael Powell and Harold Furchtgott-Roth voting to abolish them. This deadlock led to a renewed appeal to the courts by RTNDA and the NAB, which continue to argue that these government rules tend to chill speech and diminish discourse, and fail to serve the public interest. To buttress their argument, the two associations and the old NBEA conducted a survey in which television stations largely agreed that these rules discouraged editorial endorsements and vigorous editorializing.

In their brief, government lawyers contend that the rules did not chill debate and say the 1982 survey that suggests such a chilling effect is out of date, noting that the continuing decline of editorializing in broadcast media and the demise of NBEA.

I suppose the few of us still writing editorials for television should be flattered with so much attention from NAB, RTNDA, the FCC, the Justice Department, and numerous intervenors and litigators, and all the money and energy that has been expended over 15 years in this regulatory and legal quagmire. True, we few broadcast and cable editorial writers can continue to live with these rules. Most of us routinely invite people who oppose our editorial views to come on the air and state them. And broadcasters rarely endorse candidates these days.

But newspaper editorial writers do have something at stake in this fight. How would they like it if a government agency could issue a complaint against their decisions, fine them, maybe take away their printing presses because they failed to obey the rules requiring free space to anyone who said they had been personally attacked, or any group claiming their integrity has been questioned? How would these editors react if they could be fined for failing to offer space to reply or even for not doing so within the time required by the rules - one week from the time of the supposed attack? Or consider the logistical nightmare that editors would face if, when endorsing a political candidate, they had to offer the same space to each of five or six opponents from minor parties. How about complying with government rules that effectively ban political endorsements three days before an election because opponents don't have time to reply? And how would editors like it if those who enforced such rules were part of a government agency dominated by two - and only two - political parties?

Of course, that could never happen. Newspapers have the First Amendment. But this case should remind you that government officials at all levels continue to believe that the First Amendment is not for editors to exercise, but for bureaucrats to referee. Given the chance, this sad history reveals, they will.

NCEW member Peter Kohler is director of editorial services for Cablevision Systems Corp. of Woodbury, New York. His e-mail address is [e-mail]