Broadcasters Weigh Challenges to FCC Political File Rule
Broadcasters are weighing whether to appeal an FCC rule adopted Friday (CD April 30 p2) requiring that TV stations post the contents of their political files online. Industry attorneys said challenges are likely, though as of Monday no decisions had been made, and a nonprofit group that backs the rules said it would consider whether to defend them if an appeal is made. The NAB won’t decide whether to challenge the rule before consulting with its board, a spokesman said. The group had opposed part of the rule that requires online disclosure of the low ad rates -- comparable to that of the station’s best commercial advertiser -- political candidates get in the run-up to elections.
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The rule will probably be challenged on multiple fronts, said David O'Neil, an attorney with Rini Coran who represents broadcasters. He said that would involve filing an appeal at the commission, challenging the rule at the Office of Management and Budget, and at the Court of Appeals for the D.C. Circuit, where the industry could seek a stay of the rules.
A challenge at OMB is the most likely initial approach, said Daniel Kirkpatrick, an attorney with Fletcher Heald who represents TV and radio station owners. OMB must approve the rule under the Paperwork Reduction Act before it becomes effective. “That would allow them to be delayed without anyone taking a formal, official decision on the rules,” Kirkpatrick said. The OMB is likely to soon approve the paperwork requirements of the order, FCC officials including Media Bureau Chief Bill Lake said Friday.
Free Press hasn’t decided whether it would step in to help defend the rules if broadcasters challenge them, said Corie Wight, senior policy counsel. “That’s certainly something we are aware may be a potential danger,” she said. “I think the FCC is extraordinarily well-grounded in both the law and the policy here.” Broadcasters would have to win a stay from an appeals court judge to significantly delay the rules, Wright said. “The mere filing of a lawsuit in and of itself would not be enough to delay this.” In that situation the opponents to the rule would have to prove they had a likelihood of prevailing on the merits for a judge to grant a stay, she said. The deadline for all such challenges would be set by when the rule is published in the Federal Register, she said.
Though the FCC seems poised to receive two new commissioners (CD April 30 p1), it’s doubtful their addition would change the calculus on the eight floor, O'Neil said. “I would expect you would see a similar vote if they were to be included on an appeal,” or petition for reconsideration, he said.
Should broadcasters seek a stay at the D.C. Circuit, it may merit quick action from the court, O'Neil said. With the lowest-unit-cost rules for federal candidates taking effect in early September, and the handful of primaries still set around the county, there’s a real urgency to having the matter settled, he said. “Whether a stay is issued or not, it should be done sooner rather than later.”