Federal Appeals Court Upholds Ban On Commercial Spots For Public TV/Radio Stations But Knocks Out Bans on Political/Public Issue Ads

Federal Appeals Court Upholds Ban On Commercial Spots For Public TV/Radio Stations But Knocks Out Bans on Political/Public Issue Ads

by Jerry Glover
April 13, 2012

Federal law prohibits public television and radio stations from running spots for commercial entities touting their products/services (the exception being underwriting announcements which have to meet FCC regulations on the type of public station announcements are allowed). That same law also prohibits noncommercial stations from running ads supporting or opposing federal political candidates and ads touting one side of an issue of public importance.

This law was recently challenged by a public television station in before the U.S. Court of Appeals for the Ninth Circuit (which governs the “western” states including California, Oregon, Washington, Idaho, Alaska and Hawaii). Minority Television Project, Inc. v. FCC, No. 09-17311 (9th Cir. 2012).

The court noted that the federal Communications Act, specifically 47 U.S.C. Sec. 399b, prohibits three types of advertising on non-commercial stations: ads to promote any service, facility or product offered by any person engaged in that offering for profit; an ad that expresses the views of any person with respect to any matter of public importance or interest; and ads that support or oppose any candidate for political office.

The plaintiff in this case is public television station KMPT (owned by The Minority Television Project). It had been fined for running ads for for-profit companies. It challenged that ruling in court and also requested a declaration from the court that the ban on political and public issue ads was unconstitutional.

The government defended the statute stating that it preserved the educational nature of public stations. The government also argued that allowing public stations to run commercial ads would require them to start running programs that had mass-market appeal to achieve higher rating and, consequently, higher ad rates. Educational program, the government contended, would be replaced.

Content-Based Restriction

Citing Supreme Court precedent for the path courts must take to determine whether a federal statute violates the First Amendment guarantee of free speech, the appeals court first determined that the statutory prohibitions were content based. The court argued that the public station in this case could broadcast many different types of programming content except for the type of content prohibited by the federal law. That made the ban a content-based restriction. The court also noted that the station, per a recent FCC letter, could air a non-profit message about the mission of that non-profit but it could not air a spot from that same non-profit if the message in the spot was about the non-profit’s stand on a public issue or its stand on a federal political candidate. Again, the federal statute banned that type of content and was, therefore, a content-based restriction that made it suspect under the First Amendment.

Intermediate Level of Scrutiny 

Once the court determined the statutory ban was a content-based restriction, it then had to determine what level of scrutiny to use to determine whether the statute did, in fact, violate the First Amendment. The court determined that a so-called “strict” level of scrutiny was not appropriate. With that level of scrutiny, the government must prove that the statutory restriction furthers a compelling interest and is narrowly tailored to achieve that interest. Using this level of scrutiny, few content restrictive statutes survive a First Amendment challenge.

But the court noted that the U.S. Supreme Court had used an “intermediate level of scrutiny” when broadcast regulation was at issue. Why? Congress has more leeway in regulating broadcasting because its power to do so stems from the Constitution’s Commerce Clause and because the broadcast spectrum is a scarce commodity (the Ninth Circuit acknowledged that it is legitimate to question whether broadcast spectrum is even important from a constitutional perspective considering the changes in media availability in different forms over the last 30 years. But the court noted that the Supreme Court has not had a chance to determine whether the intermediate level of scrutiny still applies in the digital age so it determined that it was still required to use that level of scrutiny for broadcast regulation).

When an intermediate level of scrutiny is used to determine whether a statute is unconstitutional, the government must prove the statute is narrowly tailored to further a substantial government interest. The court added that the government must demonstrate that the harms that the statutory is designed to prevent are real, not merely conjectural and that in fact the statute will alleviate those harms in a direct and material way. The government must additionally show, using substantial evidence, that the statute does not burden substantially more speech than is necessary to further the government’s interests. “Substantial evidence” means “evidence in the record before Congress at the time the statute was enacted.

Ads for For-Profit Companies

The court noted that when the ban on commercial spots was enacted Congress has received testimony from various individuals that commercial spots on public television would lead to programming directed at the lowest common denominator of the audience and that public television would become indistinguishable from commercial television and cable services. Thus the court noted there was a strong connection between the harm recited and the prevalence of commercial ads. Thus, the intermediate level of scrutiny allowed this ban to continue.

Political Ad Bans

But the ban on political ads/public issue ads was treated differently.   The court noted the government presented no substantial evidence that had been presented to Congress at the time of the statute’s enactment that showed this ban allowed public stations to maintain certain types of “high level” programming.   Nor was there any substantial evidence that allowing political ads/political issue ads would impact public affairs programming (i.e., stations courting favor through public affairs programs with candidates organizations to get their ads). The court concluded that Congress could try again to ban this type of advertising if it could find substantial evidence that political/public issue ads directly affect the type of programming offered on public stations.

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