Michael K. Powell
Federal Communications Commission
The Freedom Forum
As Prepared For Delivery
April 27, 1998
Over the last several weeks, I have had an opportunity to discuss one of the most enduring concepts in radio and television broadcast regulation - the public interest standard. I have noted that it is hardly a standard at all, really, for the Communications Act of 1934 offers the would-be regulator little guidance for its application, stating merely that he should regulate consistent with the "public interest, convenience, and necessity." Indeed one of the original sponsors of this standard, Senator Clarence Dill, described the breadth of the standard when he said, and I quote, "it covers just about everything." The standard would gain meaning, he went on, by the staffing of the Commission with "men of big abilities and big vision."
This wide-open discretionary standard indeed has been a grand invitation to those with "big visions" to pursue a number of government-mandated content regulations, designed to promote some degree of social welfare through the broadcast medium. These have included at various times: mandatory children's educational programs, restrictions on violent and indecent programming, restrictions on smoking and liquor advertising, and mandatory news programming.
Recently, we have heard cries for television and radio to come to the rescue and save the electoral process from the corrupting influence of money, by offering candidates free air time. The impropriety of the FCC pursuing this matter is a theme of my remarks today, but let me first set the stage.
I have argued that now is an appropriate time to consider a more structured and principled approach to public interest regulation, and to fundamentally review the underlying concepts that lead the courts to permit the government greater latitude under the First Amendment when the government regulates broadcasting as opposed to say print. The convergence of communications medium afforded by digital technology, the transformation from regulation to market competition for governing the telecommunications industry, and the advent of entirely new communications outlets -- as well as the growth of existing ones -- all suggest that it is time to re-examine the proper role of government in shaping the content of the messages our citizens see and hear.
We also should review our role for another reason: because of the tremendous popularity of the movie and play Titanic. I can tell by the puzzled looks that I have lost many of you.
A little known historical fact, certainly never mentioned in the current hit movie, is that the Titanic disaster prompted the United States government to seize control of the airwaves. Which, in turn, set us out on a regulatory journey that led to the concept that the airwaves are public property and, as such, what one does with them and what one says over them can be determined, in part, by the government.
It seems that amateur radio operators up and down the East coast heard the sinking vessel's call for help and filled the airwaves with questions and rumors that interfered with the rescue efforts. As a consequence, the government decided to step in and began regulating the airwaves. The result was that the government (i.e., the military) got the best spectrum and the highest priority when it came to use. Commercial interests took a clear back seat and amateur operators got the short waves, so to speak. This regulatory model has endured until today.
So, I figure, since we are presently revisiting the lessons surrounding the sinking of the Titanic, it is only appropriate that we revisit all that it wrought in its wake.
While some who have sat in my seat at the Commission have welcomed the wide discretion afforded by what Felix Frankfurter once called the "penumbral bounds" of the public interest standard, I am much less comfortable with its vagueness. The lack of guidance leaves those governed by the standard at a loss as to how to structure their conduct to be compliant. And, I dare say, it invites mischief by regulators and special interests to advance parochial interests under the guise of public interest.
Consequently, I have established my own guiding principles for applying the expansive authority invested in the Commission and me. I thought it would be useful to set them out again today and apply them to the content issue of the day, free broadcast time for candidates.
When I am presented a proposed public interest obligation, such as free time, I ask myself five simple questions: (1) Does the Commission have the authority to do what is asked? (2) Even if we do have authority, is it nonetheless better to leave the matter to Congress or await more specific instruction? (3) Is the issue best addressed by a another Federal Agency? (4) Should we address the matter at all? And, (5) Is it Constitutional?
1. Do we have the authority
The first question that any administrative agency must ask itself before proceeding is whether or not it has authority to act. The FCC's authority is strictly limited to that which Congress has delegated to it. I do not dispute that the public interest standard confers extraordinarily broad power on the Agency, but it is not a blank check.
The Commission must always look further than its broad authority to see if Congress has spoken more specifically -- in the Communications Act itself or in other statutes, perhaps involving other agencies. These more specific directions may trump the public interest standard or curtail it significantly. For example, Congress has rightfully asked in the context of free air time for candidates whether the specific provisions dealing with equal time for candidates (315) and lowest unit cost (312), bar free time under the broader general grant of jurisdiction. The fact that Congress has spoken specifically both to access to the airwaves by candidates and the price of such access casts serious question on the propriety of FCC-initiated free time rules.
2. Should Congress Do It?
The second question I ask is regardless of whether we have the authority to act in a given area, is it nonetheless better to leave the matter to Congress or await more specific direction from them.
Congress has a distinctly different dynamic than a regulatory agency. Its membership represents every state in the union and thus is capable of achieving broad national consensus. The Commission is much more limited. While expert in its own right, the five members of this body do not represent anyone, or any state and are unable to truly gauge and reflect the national will, except as it is derived from Congressional actions. Moreover, members of Congress are elected directly by the people, they stand before American citizens to have their actions judged. Who knows how FCC Commissioners get their jobs! However we do, our actions are not subject to electoral validation, as are those of Congress.
Given these differences, there are issues that are more suited for resolution by the Congress. Issues of great social, economic or political importance that require broad national consensus of both industry and the public should be left to Congress. Members of Congress are the ones that have direct access to the public through their respective constituencies.
Occasionally, as with free air time for political candidates, the FCC is confronted with a matter that profoundly impacts the foundations and mechanisms of the republic, because of its authority over the means of communication. I can think of no area more clearly the province of Congress. There are only three branches of government set out in the Constitution and we are not one of them. In battles of power between those branches, an administrative agency is well-advised to stay on the sidelines.
Similarly, the Commission should not intrude on the unique relationship between the legislator and his or her constituent. That is, the legislative and electoral process, and policies affecting them, must always remain the domain of elected officials. An agency should not tread here without very specific direction from those who depend on the process for their survival. Matters that are integral to how Americans choose their representatives are the business of those who must stand before the voters and answer for their actions not an unelected counsel of men and women with "big vision." Free time, then, clearly is a matter for Congress.
I believe, also, that we must take care that our actions not betray actions of Congress. If Congress has expressly declined to act or has demonstrated an unwillingness to do so, we should be restrained in our zeal to pursue such a policy. In this vein, I note that the sponsors of the McCain-Feingold bill stripped from campaign reform legislation provisions for free air time. It is not for the Commission to second-guess that judgement and reinstate a legislative provision by way of a regulatory act. I vehemently reject the contention that the FCC is in place to do things for Congress that they can't or won't do for themselves.
3. Is this an issue more suited for another agency?
This leads me to the third broad question in my public interest decisional schematic: Should another institution take the action?
It is well-advised for us to yield when another agency has the most appropriate expertise. Regulatory agencies have been long justified as bodies containing expertise particular to their field of responsibilities. An employee of the Federal Energy Regulatory Commission is no more uniquely qualified to pass on questions about labor relations than members of the National Labor Relations Board are to pass on energy issues.
The danger in a media culture with a commitment to free expression and ideas is that virtually any subject that is noteworthy is likely to be discussed, advertised and chastised through the electronic medium that the FCC regulates. However, simply because we regulate the means of output does not mean we are experts in the content of all messages that avail themselves of that output. We should be hesitant to jump into issues with which we have no particular talent simply because it is broadcast or transmitted electronically in some other form. If Congress makes a judgment that the FCC should regulate in certain areas it can specifically invest us with that mission (which it has done time and again) and is in a position to authorize and appropriate the funds necessary for us to hire the personnel and regulate the field responsibly.
Free political time is an issue quite ill suited to the FCC's expertise. Administering and enforcing any free airtime rule would embroil the FCC in a web of electoral oversight for which it has no special talent. Professor Lillian BeVier has described this point succinctly. She writes:
"Consider the range of quid pro quos that the [free time] mandates contemplate, multiply them by the number of candidates for federal office, and you will have a sense of the sheer number of enforcement issues that might arise. Divide the number of hours of free time. . . by the number of federal candidates eligible to receive the benefit, and you will discern a second layer of complexity. Understand that all those enforcement tasks will be assigned to government officials and think carefully about the intensity of monitoring that ensuring compliance will require. You will understand and quite likely share the fear of its freedom-loving opponents that 'free TV' will inevitably entail a very significant expansion of government intrusion into and control of core political activity."
Clearly, such oversight, if desired at all, is more appropriately the business of the Federal Election Commission and not the FCC.
4. Should we address the issue at all?
And so, I come to the fourth question in my decisional schematic:
Should the action be done at all? This question is what we used to call in the Army a "reality check." Is there really a demonstrated problem for which the proposal presented offers a solution? There are many ills in our society and many of them can be overlaid (sometimes fairly and sometimes unfairly) on the media. Yet, no matter how intuitively true a well-articulated fear may seem and no matter how sympathetic the cause, we must scrutinize carefully claims used to justify us taking action.
I would insist upon at least a prima facie case that there is in fact a problem, rather than unsubstantiated rhetorical appeals. And, I would consider at the outset if the proposal really would be an effective solution. In a perfect world, we would aspire to prevent harm to even one individual in our society. But the cold reality is that that is impossible for the government to do, given its time and resources. Furthermore, very often our public interest policies, though noble in design, really fail to make a substantial impact on the problem and thus it is hard to justify their regulatory costs. We must prioritize our actions, especially now as we drink from the firehose of telecommunications change, turned on by the Telecommunications Act of 1996.
On this point of time and priorities, I am critical of those that urge us to simply "open an inquiry." They maintain rhetorically, "what does it hurt." The real answer is that it costs money and other resources that could be used elsewhere. We are not the Federal Research Agency. Our staffs should not be used lightly to go fishing to cull out the possible dangers of this or that. This is a time of tremendous change in our industry. There simply are not enough hours in the day for us to lend our institution to those who wish to build a record in areas where our jurisdiction or expertise is limited. We can barely keep up with the things we have been specifically instructed to do.
Turning to free time, one must question how the FCC on its own could really do anything to substantially address the perceived corrupt influence of money in our political campaigns. Without strict limits on total media spending (which the FCC clearly has no authority to impose), a free time requirement would only establish a floor higher spending floor, not a ceiling. Well-financed candidates would undoubtedly use up the free time given them and then proceed to out-spend opponents in order to gain even more exposure. Indeed, the money saved on TV time can be redirected to other expensive campaign tactics. How, as proponents of such a rule suggest, will this level the playing field between incumbents and challengers? Clearly, free time does not work unless it is a component of a comprehensive campaign finance reform package.
5. Is it Constitutional?
The final question I ask myself is whether the considered action would be Constitutional. I will not attempt to tackle whether or not an FCC mandated free time requirement would be constitutional, though I will say I have very serious doubts that it would be.
However, I do want to say of the First Amendment standard that I personally believe there is only one of them. I do not believe that the growing convergence of technology will allow us to continue to maintain two First Amendment standards, one for broadcasting and one for every other communications medium. Technology has evaporated any meaningful distinctions among distribution media, making it unsustainable for the courts to segregate broadcasting for First Amendment purposes. It is just fantastic to maintain that the First Amendment changes as you click through the channels on your television set.
Moreover, unique scarcity as a justification for lessor constitutional protection for broadcasters is demonstrably unsupportable. Technology makes ever more efficient use of spectrum. Broadcast channels are continually increasing. Cable, internet, and VCRs provide an untold number of outlets for speech. We must admit to these new realities and quit subverting the Constitution in order for the government to be free to impose its speech preferences on the public.