Court of Appeals Strikes Down Non-Com Regs

GavelThe 9th Circuit Court of Appeals handed down a stunning decision last week, one that could impact every non-commercial broadcaster in America, including a large number of NRB member radio and television stations. The Federal Court of Appeals ruled that government rules prohibiting non-coms from being paid to run ads that address issues “of public importance or interest” or that support or oppose political candidates are unconstitutional. At the same time, the court upheld the federal ban on non-commercial stations “promoting” the services or products of commercial businesses for a fee. The FCC is tentatively poised to address another non-commercial revenue issue on Friday, April 27 - expanding the ability of non-coms to interrupt air time to raise money for other third-party non-profits - something that NRB has long advocated. However, the 9th Circuit decision does not directly affect that issue. Further, according to NRB member attorney Joe Chautin, an FCC practitioner, “there is a rub” in the court of appeals decision: non-commercial stations would probably still not be permitted to charge market-value rates for “issue” ads or political candidate spots anyway, under other federal rules not addressed in the 9th Circuit decision. They could only charge a pro-rata portion of station costs associated with airing the ads. And there is another twist: the three-judge panel that decided the case couldn’t have been more splintered, yielding not only a majority opinion, but also a concurring opinion, and a dissenting opinion as well in the case. That increases the likelihood that the decision could be appealed to, and reviewed by the entire panel of all appellate judges in the 9th Circuit and possibly reversed.