FCC rules are gone. Now what? (Features).

For more than 20 years, broadcast organizations had fought a First Amendment battle over the freedom to editorialize. That ended on October 11,2000, when the U.S. Court of Appeals, District of Columbia, ordered the Federal Communications Commission to repeal the personal-attack and political-endorsement rules.

That appeals court expressed dismay about the Alice-in-Wonderland quality of earlier proceedings.

In 1980, the Radio and Television News Directors Association and the National Association of Broadcasters began its fight to repeal two FCC rules. In 1996, after FCC inaction, RTNDA and NAB took the matter to the appeals court.

One of the regulations -- the political endorsement rule - was established to enable the FCC to referee questions of fairness, guaranteeing reply time to all political candidates opposing those who were endorsed in station editorials.

The other regulation -- the personal attack rule -- required stations that attacked anyone's character, integrity, or honesty to provide transcripts or recordings of the attack, and to provide time to reply on air within seven days.

The FCC would act as referee, threatening fines and other sanctions for stations it found violating its rules.

Lawyers for RTNDA and NAB argued that broadcasters were reluctant to exercise their First Amendment rights to endorse candidates because of the onerous nature of the rules and the threat of fines.

In its decision favoring the broadcasters, the federal appeals court reiterated an earlier position that the "rules interfere with editorial judgment of professional journalists and entangle the government in day-to-day-operations of news organizations."

The court said that the FCC regulations "chill at least some speech and impose at least some burdens on activities at the heart of the First Amendment."

For four years, the appeals court had repeatedly asked the FCC to justify the rules, given the First Amendment concerns. But the best the commission could do after deadlocking on the worth of the rules was to call for their temporary suspension. The agency proposed to test the value of the rules and whether lifting them would encourage broadcasters to endorse candidates during the 2000 campaign.

The court dismissed the so-called test as just more stalling by the FCC, saying it is "folly to suppose that the 60-day suspension and call to update the record cures anything."

The court then tossed out the rules. "If these circumstances do not constitute agency action unreasonably delayed," it declared, "it is difficult to imagine circumstances that would."

The court also acknowledged the persistence of the NAB and RTNDA, noting "less stalwart petitioners might have abandoned their effort to obtain relief long ago."

Within the broadcast industry, the decision prompted renewed interest in the status of editorializing in radio and television. Articles in two trade magazines, Broadcasting and Cable and Cableworld, noted the dearth of editorial programming on television and expressed pessimism about changes. The articles noted, however, that there were a few oases of broadcast editorials -- Detroit, Madison, Salt Lake City; and New York's suburbs -- where NCEW broadcast and cable members are still vigorously at work.

An article in Electronic Media was more upbeat. The magazine reported that Post Newsweek had mandated regular editorials for all its television stations and that another television group, Hearst Argyle, encourages regular editorials.

So, there have been no victory celebrations over the ruling. And there seems to be little prospect for change.

In fact, a check with NCEW broadcast and cable members reveals that none currently endorses candidates. Only one -- Madison -- may begin endorsing in 2002.

Nevertheless, those who waged the long fight are not discouraged. Barbara Cochran, president of RTNDA, said she received one call after the decision, from a news director whose station editorializes regularly and is considering endorsements. "I heard worries about whether the ruling gives broadcasters too much power," she wrote in the association's magazine. "But in many communities, the only editorial voice belongs to the single newspaper. By allowing broadcasters to endorse candidates, communities will benefit from more editorial voices, not fewer."

Still, the threat of further regulation of broadcast speech is with us. The appeals court has left the door open for the FCC to reinstitute similar rules, including the defunct Fairness Doctrine. That doctrine, which the FCC allowed to lapse in 1987, had been the FCCs rationale for regulating the content of broadcasts. Ominously, the Democratic Party platform in the 2000 election called on Congress to reinstate the Fairness Doctrine.

Let's hope that the last chapter has been written on federal efforts to regulate or prohibit editorializing in the electronic media. But as they say on radio, stay tuned.

Meanwhile it's lamentable that all too few broadcasters are exercising their unencumbered right to broadcast opinion.

NCEW member Peter Kohler is director of editorial services for Cablevision in New York. He chairs the Broadcast Committee. His e-mail address is [e-mail]