Court Affirms Ad-Free Public TV

SAN FRANCISCO — A federal court has affirmed that public TV and radio stations can’t broadcast paid advertising. The Ninth Circuit Court of Appeals issued the en banc decision in support of the Federal Communications Commission, which was sued by Minority Television Project, owner of KMTP, a public TV station in Palo Alto, Calif. The FCC fined the station $10,000 in 2004 for airing paid spots for the likes of Ford, Chevy and Korean Airlines.

“The court held that the government has a substantial interest in imposing advertising restrictions in order to preserve the essence of public broadcast programming,” the ruling said.

The full court rejected the plaintiff’s assertion that the law is overly broad because it prohibits political and issue advertising, while it allows advertising by non-profits. The status quo of both precepts were held, reversing an earlier ruling by a three-judge panel that struck down the ban on political and issue advertising.

“Each form of prohibited advertising poses a similar threat,” Judge M. Margaret McKeownwrote for the majority. “Whether selling financial services, a state senator, or a voter initiative, advertisers seek the largest possible audience…. Selling programs would essentially convert public broadcasting into commercial broadcasting.”

Judge Consuelo M. Callahan parted with the majority on political and issue advertising.

“These restrictions implicate the First Amendment’s core concerns and are not justified on this record even under the intermediate standard set forth in FCC v. League of Women Voters,” which ruled that federally funded non-profit stations could not run editorials. “I would hold that these restrictions are unconstitutional.”

Judge John T. Noonan, and Chief Judge Alex Kozinski dissented entirely.

“The majority embraces every justification advanced by the government without the least hesitation or skepticism, and without giving proper weight to the true harms caused by the speech restrictions in question,” Kozinski wrote for the both of them. “The opinion is certainly a fine example of rational basis review, but if intermediate scrutiny is to have any bite, we can’t just trot out all of the reasons the government advances in support of the regulation and salute.”

On the KMTP website, the station is described as “the only public broadcasting station in the market that places substantial reliance on corporate sponsors and contributions rather than government funding.” Programming includes German, Russian, Italian, and African news and information shows as well as a show for those living with HIV/AIDS, plus coverage of the local real estate market and more. The station is transmitted at Ch. 32.1.