Professor Semitsu Contributes Expertise to Law360 Article on Fate of FCC’s Ban of Political Ads on Public Broadcasting

Professor Junichi Semitsu

San Diego (December 1, 2012) – University of San Diego (USD) School of Law Professor-in-Residence Junichi Semitsu was interviewed by Law360 Reporter Erin Coe to discuss the Ninth Circuit’s review of the Federal Communications Commission’s ban on political and public issue ads on public broadcast stations.

In April 2012, a Ninth Circuit Court of Appeals panel ruled in Minority Television Project Inc. v. Federal Communications Commission that the long-standing FCC ban violated the Free Speech Clause of the First Amendment. The case stems from the Minority Television Project and San Francisco’s KMTP television station decision to broadcast approximately two thousand paid promotional messages on KMTP-TV.

In a 2-1 decision, the majority upheld the FCC rule banning ads for goods and services on behalf of for-profit entities, but struck down the ban on political and public issue ads as a content-based ban on speech that did not survive intermediate scrutiny. Judge Bea’s majority opinion emphasized that "[a] ban on [public issue and political] advertising therefore cannot be narrowly tailored to serve the interest of preventing the 'commercialization' of broadcasting."

In November 2012, the Ninth Circuit granted the Justice Department’s request for an en banc rehearing to review the panel decision.

Semitsu explained to Law360 the immediate consequences of the decision, if allowed to go into effect: "Instead of Sesame Street being brought to you by the letter 'K' and the number '9,' it might be brought to you by Herman Cain and his 9-9-9 plan."

Semitsu was not suprrised by the Ninth Circuit's decision to grant en banc review since the panel's decision would not only force the FCC to adopt different rules for the Ninth Circuit, but also because "this case squarely addresses a limitation on core political speech, which makes the case of paramount importance."

Semitsu also emphasized that the case could be of even greater significance if reviewed by the United States Supreme Court. He told Law360 that the case would provide the court with an opportunity to review the spectrum scarcity doctrine, which he considers antiquated, but which nonetheless underlies all of the FCC’s regulations of speech on broadcast television and radio. Given that some justices have questioned the spectrum scarcity doctrine’s validity in light of modern technology, he noted that the Court could conceivably use this case to "forever change the rules on what kind of content the FCC can regulate."

Professor Semitsu teaches and writes in the areas of mass media law, constitutional law, privacy, and criminal procedure at the University of San Diego School of Law.

Read the full article below.

9th Circ. Case Could Throw Spotlight On Spectrum Scarcity

By Erin Coe

Law360, San Diego (November 29, 2012, 9:59 PM ET) — The Ninth Circuit plans to take another look at a case challenging the Federal Communications Commission’s prohibition on political ads on public broadcast stations, and a decision striking down the government’s ban could present an opportunity for the U.S. Supreme Court to weigh in on what some say is an outdated doctrine over spectrum scarcity, experts said.

The federal appeals court on Nov. 21 granted an en banc rehearing of a 2-1 April decision siding with a California nonprofit public broadcaster that claimed the FCC’s ban shouldn't stand because political ads would have no effect on educational children's programming on public stations. The FCC lodged the petition for review, arguing the ruling would undercut the long-established goals of public broadcasting by opening up stations to the same market forces and influences that commercial broadcasters face.

While public broadcasters already are allowed to recognize corporate underwriters of their programming, if the full Ninth Circuit sticks with the original panel’s April ruling, it would clear the way for public broadcasters to run ads for political candidates and issues.

“Instead of Sesame Street being brought to you by the letter ‘K’ and the number ‘9,’ it might be brought to you by Herman Cain and his 9-9-9 plan,” said Junichi Semitsu, a media professor at the University of San Diego School of Law. Cain last year ended his campaign for the Republican presidential nomination, during which he touted his 9-9-9 plan to replace the existing tax system.

A decision striking down the ban would shift some political advertising dollars away from commercial broadcasters toward noncommercial educational broadcasters and would force the FCC to play by a different set of rules in California and other Ninth Circuit states compared to the rest of the country — an outcome that could draw the attention of the Supreme Court, experts said.

“This case squarely addresses a limitation on core political speech, which makes the case of paramount importance,” Semitsu said.

But more broadly, the case could serve as a good vehicle for the high court to take a fresh look at the spectrum scarcity doctrine that underlies broadcast regulations, and potentially "forever change the rules on what kind of content the FCC can regulate,” Semitsu said.

The FCC has been able to regulate content on broadcast TV and radio stations based on the long-standing rationale that the spectrum allotted to the broadcasters is public property and a limited resource, but with the advent of the Internet and cable channels, the spectrum scarcity doctrine is in need of review, experts say.

“When the argument over spectrum scarcity was made in the 1930s, the technology wasn’t good enough to use more of the spectrum and there were limited channels available, but that is no longer true,” said Karl Manheim, a professor at Loyola Law School in Los Angeles. “There still is scarcity, but it’s manufactured by government regulation, rather than a natural limitation of the spectrum.”

While the Ninth Circuit en banc panel is not going to be able to overturn Supreme Court precedent related to the spectrum scarcity doctrine, it could signal its discomfort with being forced to continue to apply a lower form of scrutiny to broadcast regulations based on the doctrine, according to Semitsu.

Minority Television Inc., the plaintiff in the dispute, argued for the appeals court to review the FCC’s political ad ban by applying a standard of strict scrutiny, which would shift the burden on the government to show why the law is necessary to promote a compelling interest, but the April panel held that the law should be reviewed under intermediate scrutiny, an easier standard that requires the government to show a strong interest in keeping the law intact, such as promoting the public interest or protecting children.

Manheim said there was a decent chance that the en banc panel would reaffirm the original panel’s decision holding that restrictions on political ads by noncommercial educational broadcasters were unconstitutional because they did not survive intermediate scrutiny, and that a writ of certiorari might be granted by the Supreme Court in order to uphold the ruling and squarely address the problem with the spectrum scarcity rationale. However, he did not expect the Supreme Court to take such a drastic step as doing away with the doctrine.

“If the Supreme Court were to take the case, it would be to provide clarity to the applicable rules [for the spectrum scarcity doctrine], not necessarily to change them or set new precedent,” he said.

The underlying suit stems from a 2002 finding by the FCC that Minority Television, which operates KMTP-TV in San Francisco, had violated rules that prohibit public broadcasters from airing both political ads and ads from for-profit entities. The FCC found Minority Television had broken the rules about 1,900 times between 1999 and 2002, and fined the station $10,000.

The broadcaster then sued, arguing that the bans were unconstitutional because they effectively constricted speech by allowing public stations to run paid ads from nonprofit organizations, but not paid ads from for-profit and political groups, including those promoting candidates or particular issues.

A district court found in favor of the FCC, but when the appeals panel ruled in April, it upheld only the ban on paid ads from for-profit entities, striking down the political ads ban.

“There is virtually no way that these advertisements, if allowed, would negatively affect the nature of children's programming on public television stations,” the opinion said. “After all, the large majority of viewers of these programs are legally prohibited from voting, so there is virtually no incentive for a station to alter its children's programming to suit the preferences of a political candidate or issue group.”

But the appeals court agreed to reconsider the case after the FCC argued that the ruling could make public broadcasters more preoccupied with boosting advertising revenue and drive them to alter their programming, such as by reducing the quantity of unprofitable children’s programming and other educational content, to attract a larger audience that is the target of political advertisers.

Minority Television is represented by Walter E. Diercks of Rubin Winston Diercks Harris & Cooke LLP.

The case is Minority Television Project Inc. v. Federal Communications Commission, case number 09-17311, in the U.S. Court of Appeals for the Ninth Circuit.

--Additional reporting by Carolina Bolado and Scott Flaherty. Editing by Elizabeth Bowen and Richard McVay.
All Content © 2003-2012, Portfolio Media, Inc.

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