Several months ago, a panel of the Ninth Circuit Court of Appeals created shockwaves throughout the noncommercial broadcasting community by holding that the Communications Act's prohibitions against the sale of advertising time by noncommercial stations was unconstitutional when applied to political advertising. That decision may be short-lived, as the full Court of Appeals, in reviewing the decision of the initial three judge panel, has indicated that the case should not be relied on as precedent in any other court decision until the full Court can complete its review. While one must be careful in pre-judging any court decision, especially when all we have to divine the intent of the Court is a two sentence order, this at least hints that the full Court may have misgivings about the initial decision in this case.
The initial decision by the three judge panel suggested that the limits on political speech placed unjustified burdens on the First Amendment, and that there was no overriding non-speech related objectives served by these restrictions. The panel suggested that political ads were different than other commercials trying to sell a service or product, as political speech did not sell a commercial product, but instead encouraged civic discourse not unrelated to the educational mission of noncommercial stations. Many noncommercial stations saw the potential that this decision could lead to a new source for revenue to support their operations, while others expressed fears that it could erode the noncommercial nature of educational stations. The FCC, while questioning the decision, had initially stated that it would allow stations in the Ninth Circuit to accept political ads as soon as the panel's decision became effective (in the FCC's notice of proposed rulemaking asking for comments on other noncommercial fundraising issues). Given the Court's order in this case, we will wait to see if the FCC revisits this finding as to stations in the Ninth Circuit. Look for a final decision in this case in the coming year. In the meantime, stations outside the Ninth Circuit should not look for any immediate relief, and stations in the states in the circuit should proceed cautiously in considering any political advertising on their stations.