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Court: FCC Can’t Ban Political Ads on Public Stations, Local Stations Respond

Updated 4:05pm — SYRACUSE — Next time you tune your radio to NPR’s All Things Considered or turn on your TV for Nova, will your experience start off with some political campaign ads?  That could be happening someday, thanks to federal court ruling issued yesterday.  Here in Central New York, public broadcasters are considering the possible impact of the ruling.

According to Reuters, the 9th U.S. District Court of Appeals in San Francisco ruled that FCC had violated the free speech clause of the First Amendment in forbidding public broadcasters from airing political and public issue advertising.

Judges said the original regulations — which prohibit public broadcasters from airing any paid announcement which includes a “call to action” — was too broad.  While they upheld the ban for “calls to action” on behalf of for-profit businesses, Judge Carlos Bea wrote, “public issue and political speech in particular is at the very core of the First Amendment’s protection.”

One judge out of three dissented with the opinion.  Richard Paez wrote, “For almost 60 years, commercial public broadcasters have been effectively insulated from the lure of paid advertising. The court’s judgment will disrupt this policy and could jeopardize the future of public broadcasting.”

Added 4:05pm – A tip of the hat to a CNYRadio.com reader who pointed out that the ruling described above only has an impact on stations within the 9th U.S. District Court of Appeals’ jurisdiction area, which includes the west coast, a few western inland states, Alaska, Hawaii and the territories of Guam and Northern Mariana Islands.  The ruling only sets a precedent for any similar cases in that district, but current FCC regulations stand firm elsewhere.

Of course, that doesn’t mean the ruling will never spread to the rest of the country.  Similar cases could be tried in other districts and/or the 9th district case could be appealed one more time, to the U.S. Supreme Court.  A ruling there would impact the entire country.

As a result, stations in Central New York won’t have to be concerned with the idea for now, but since we already asked and since this could be an issue that eventually does impact our region, we’ll retain the remainder of our original article, which follows:

Big Decision for Public Broadcasters

The court’s ruling could potentially force public stations nationwide to wrestle with some important decisions.  Some stations may see dollar signs in the ruling — as political ads will almost definitely bring a big budget boost, especially in a presidential election year.  But, will the introduction of political advertising drive away audience members who are accustomed to the more subdued underwriting mentions typical of public broadcasting?

Robert J. Daino, President and CEO of WCNY-TV/FM, says he’s not yet sure how the decision will impact his operations.  In a written statement, he tells CNYRadio.com:

WCNY-TV/FM is in the process of gathering more information about this opinion so we can determine its impact on WCNY and all public broadcasting stations.  As Syracuse’s public broadcaster, we will always stay true to our central mission, which is to educate and inform the 1.8 million Central New Yorkers in our viewing and listening area with programming they can’t find anywhere else.

By contrast, Dr. Michael S. Ameigh, General Manager of The WRVO Stations in Oswego, called the ruling a “bombshell” whose “potential effects are far-reaching and disturbing.”  He points out that commercial stations are required to air all political advertising as submitted by the advertiser, even if the ads include inaccuracies or unfounded claims.  Much like dissenting Judge Paez, Dr. Ameigh is concerned that the integrity of public stations could be threatened if they are held to the same standard as commercial stations.

Here’s the full text of his response to our request for comment regarding yesterday’s ruling:

The decision by the 9th Circuit court is a bombshell that calls into question a number of rules that apply to broadcasting in general, including those related to political advertising on commercial stations.  Commercial broadcasters are required to accept advertising in support of political candidates irrespective of party affiliation, political viewpoint, or whether the content of those advertisements is deemed accurate or defensible.  They are not allowed to change political ads editorially, or to reject them out of hand.  Will the same policy now be applied to public broadcasters?

The Public Broadcasting Act of 1967 is imperiled by this ruling.  That act precludes public radio and television stations from airing calls-to-action, sensationalistic statements or unsubstantiated claims.  Copy aired in underwriting credits must stick to a specific formula limiting it to the name of the underwriter, unembellished descriptions of services and/or products offered, hours of operation, location, and contact information. Even branding slogans must be vetted to avoid stepping over that line.

Political speech, on the other hand, is rhetoric with few moral, ethical or philosophical boundaries. Typical political ads are loaded with calls to action, exaggerations and questionable claims.  This has been the case since the founding of the republic.  It is difficult to envision how public stations, under current rules, can respond without clouding the distinction between public and commercial broadcasting as we know it today.

For decades the FCC required that when a person’s political views were attacked on the public airwaves, that person had the right to equal time to respond under a policy known as the Fairness Doctrine.  When that policy was repealed in 1987, it opened the way to unfettered, polarizing invective in the name of ‘free speech.’  Public broadcasting has provided a safe harbor from such speech for more than 40 years.  This ruling is a challenge to the notion that the federal government has the right through acts of Congress to isolate portions of broadcast spectrum from the excesses of commercial – and political – speech.  Its potential effects are far-reaching and disturbing.

CNYRadio.com also reached out to Joe Lee, General Manager at WAER 88.3 in Syracuse at the same time we contacted Daino and Ameigh on Thursday.  As of Friday afternoon, we have not received a response.  (If we hear from Mr. Lee, we will update our story.)

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