Public TV, Radio’s Paid Ad Ban Upheld

A federal appeals court upheld the federal ban on paid advertising on public radio and televisions stations Monday in a 9-2 vote.

The 9th U.S. Circuit Court of Appeals rejected the challenge by Minority Television Project, which called it a First Amendment violation to ban transmission of paid ads by  businesses, public interest groups or politicians.

The court agreed Congress had the authority to impose advertising restrictions in order to “preserve the essence of public broadcast programming.”

In dissent, Chief Judge Alex Kozinski and John Noonan said the statute should be struck down as unconstitutional.  Judge Connie Callahan would allow the ban on ads from for-profit businesses, but said paid issue ads and political ads should be allowed.

Public television has long been known as the home of public affairs programs such as PBS NewsHour, children’s programs such as Sesame Street and dramatic entertainment such as Masterpiece Theater.

A hallmark of public broadcasting has been a long-standing restriction on paid advertising to minimize commercialization.  Congress imposed the restriction to prevent a change in the character of public broadcasting, which gets its support from the government and private donations.

Minority Television Project , a San Francisco public TV broadcaster, challenged the restrictions as a First Amendment violation.  Another broadcaster complained to the Federal Communications Commission that Minority TV’s underwriting announcements violated the advertising ban

The FCC found the announcements violated the ban and issued a $10,000 fine.  Minority TV challenged the orders and the ad ban.

A divided three-judge panel struck down the law’s ban in 2012, writing two separate opinions.  The full court voted to reconsider the decision by an 11-judge en banc panel.

“We conclude that substantial evidence before Congress supported the conclusion that the advertising prohibited [by the law] posed a threat to the noncommercial, educational nature of NCE [non-commercial educational] programming and that the additional evidence bears out Congress’s predictive judgment in enacting [the law,]” wrote Judge Margaret McKeown.

In dissent, Kozinski said Congressional evidence doesn’t pass muster.

Citing the technology changes in mass communication that have made broadcasting less signification, he said, “We not only have the right, but also the constitutional duty, to brush aside a precedent – venerable though it may be – when its rationale has been hollowed out as if by termites. I would set public television and radio free to pursue its public mission to its full potential.  We’d all be better off for it.”

Case: Minority Television Project v. FCC, No. 09-17311


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