Text Version

Remarks of Commissioner Rachelle B. Chong

to American Advertising Federation

National Governmental Affairs Conference

Washington, D.C.

March 13, 1997

"Asteroids, Responsibility and Televisions"

Thank you very much for inviting me to speak to you this afternoon. It's a great pleasure to be with the advertising industry, the powerful "movers and shapers" of American public opinion. I salute your industry and your clients -- because for years, you have made me want things I simply didn't need!

Like many of your clever ads that lure your audience in one direction then suddenly close in for the sales pitch, I am going to start my speech on a bit of a tangent before I make my points. So bear with me.

Asteroids have grabbed the public's imagination lately. Apparently, life as we know it could be destroyed and the earth plunged into another Ice Age by a large asteroid crashing into the earth. I'm talking about the recent miniseries, "Asteroid" -- dubbed by one reviewer "must flee TV" -- nice special effects but where-oh-where was the dialogue?! Anyway, this asteroid show piqued my interest in what we would do if an asteroid was headed right for us.

According to the articles I've read, in legitimate magazines like Popular Mechanics, the good news is that scientists are busy devising ways to protect the planet. Now, whether this society is worth saving is a discussion for another day . . .

Among these scientists, one school of thought is that we could fire off a nuclear warhead, and vaporize the asteroid before it hits the earth. Hmm, nice Atomic Age concept, but what a rotten idea in execution! Surely, detonating a nuclear warhead right next to Earth will either blow us to bits or cause massive radiation poisoning! This approach simply goes beyond what's reasonable and necessary.

Another school of thought is to launch a giant concave aluminum mirror into space that would use solar power to redirect the asteroid. Solar power, hmm, this is a more Sixties approach . . .

However, this giant concave mirror would require world-wide cooperation and a huge commitment of resources to get the job done. Now, I'm no expert, but common sense tells me that the nuclear warhead idea stinks, and world-wide cooperation on the giant concave mirror is the way to go!

I am sure you are asking yourselves -- where is she going with this? Well, believe it or not, I see some analogies between the asteroid debate and a topic I know to be of interest to you -- government regulation of media content.

Just as there are scientists in the asteroid debate whose approach strikes me as beyond what is reasonable and necessary, there are those who advocate government regulation of media content beyond what I find reasonable and necessary -- not to mention inconsistent with the First Amendment.

I think the law is clear that government must tread carefully where media content is concerned, and only intrude where there's a compelling interest. Even then, government must choose the least intrusive and narrowly tailored means to achieve its goal.

Back to the asteroid scenario for a moment: Some see a silver lining in a threat to Earth from outer space -- whether by an asteroid or anti-social aliens. They think it would have the positive effect of uniting the entire planet into a Federation of Humanity to fight a common enemy. Similarly, I hope the current threats of increasing government intrusion on media content will cause everyone with a dog in this fight to unite.

With this in mind, my two themes for today as to content regulation are the following: First, let's remember why our forefathers put the First Amendment first. Let's not go beyond what is reasonable and necessary -- otherwise the "cure" could be worse than the sickness.

Second, we need to unite to find sensible solutions to the problems that underlie the calls for more government intervention in media content. Industry needs to be responsible and responsive to concerns, while government should put priorities on getting more program information to consumers and restraining from overintrusive regulation.

I intend to develop these themes today with regard to three timely topics: violence on television, alcohol advertising, and moves to order prosocial public interest programming. I will then switch gears to a completely different subject, no, not comets, but toll free numbers, which I understand you have an interest in.

TV Violence/Ratings

Let's start with violence on television and the related topic of TV ratings. My remarks will be rather general because the TV rating issue is one that will come before me as an FCC Commissioner, and I do not want to prejudge any decisions prior to seeing the record.

Certainly, concern about violence on television is not new. There have been various Congressional investigations of TV violence and FCC reports dating as far back a 1954. There was never any specific government action, however, until last year, when Congress included the V-chip provisions in the 1996 Telecommunications Act.

In a nutshell, the 1996 Act directs the FCC to require television manufacturers to put V-chips in most new TV sets sometime after February 8, 1998. The V-chip will enable viewers to block specific time slots and channels and, with an electronic signal supplied by the broadcaster, to block shows carrying a specified TV rating.

In my view, the V-chip is an empowerment tool for viewers. It's a way for them to get more information about shows, so that they can make their own decisions about whether they or their family should watch it. As such, I think this is a sensible and reasonable method of dealing with the problem of TV violence. Those parents that have concerns about what's on TV can easily do something about it using the V-chip.

Of course, the V-chip doesn't work unless there is a rating system of video programming. The Telecom Act asked the industry to devise a voluntary rating system that would be "acceptable" to the FCC. If not, the law requires the FCC to develop a rating system using an advisory committee to help with this process.

As you know, the TV and cable industry immediately responded to the Telecom Act. A coalition of industry representatives, led by Jack Valenti, has developed an age-based system much like movie ratings. My hat is off to the industries for voluntarily undertaking this difficult project.

The FCC has put the rating plan out for written comment. If you're interested, the comments are due April 8 and replies are due May 8.

Many of you know that the industry rating system has met some strong resistance. The Senate recently held a hearing and some took the coalition to task because, they said, the age-based categories in the industry system are too broad. There were calls to add more content indicators to the system, indicators as to sex, violence or mature language, for example. Recent press reports suggest that the industry is considering some possible modifications to address these concerns. I am glad that they are open-minded.

Others critics of the system have argued that the FCC ought to develop an alternate rating system. Should the FCC decide to design a different rating system, I personally have some doubts about whether such a system would pass constitutional muster. The courts are likely to frown upon government evaluating programming.

I don't think we have to go that far. Throughout my tenure at the FCC, I've repeatedly asked the television and cable industries to be both "responsible and responsive." Calls for government to step in would be reduced if that happened.

This is where I hope you, the advertisers, come into the picture. As program sponsors, advertisers can encourage video programmers to consider the impact of their programming choices -- and I mean TV programs, advertising, news, and movies -- on all their viewers, including children.

Advertisers can choose to sponsor good quality programming, public service announcements, children's educational programming, documentaries, or public television programming.

Sponsors can also encourage broadcasters to be responsible with their programming by letting them know these issues are important to you. You can urge the broadcasters and cable operators to air shows with mature or violent themes in later evening hours when children are less likely to be watching, and to continue to air voluntary parental advisories before such shows. Broadcasters can also prominently advertise their children's educational and informational programming, so that parents can find it and encourage their children to watch.

Should the industry fulfill their important role, parents will have more tools and options, and thus, will feel more in control of their child's television experience. That will enable parents to do their part to protect children from the potential harm of televised violence.

Harkening back to my asteroid theme, I don't think it is necessary to adopt the nuclear warhead approach to dealing with the problem of television violence. We need not blow up all television sets or impose a government-sponsored rating system. Rather, we should all work together to find solutions that do not require direct government intrusion into media content.

If everyone works together, we can strike an appropriate balance between protecting children and the right to free speech.

Alcohol Advertising

I would apply these same principles to another hot issue that is important to you -- alcohol advertising on television. When the Distilled Spirits Council of the United States (DISCUS) announced that its members were ending their decades-long voluntary policy of avoiding TV and radio advertising, it prompted a firestorm of protest. The protests went beyond the issue of hard liquor advertising, and now include all alcohol advertising on television, including beer and wine ads.

The hard liquor folks see this as an issue of fairness. They argue that since wine and beer companies advertise their products on broadcast stations, liquor advertisers should be able to do so too, in order to compete.

On the other side, groups like Mothers Against Drunk Driving are concerned that alcohol advertising could encourage alcoholism and teenage drunk driving, and have called on the FCC to ban alcohol advertising.

While I am sympathetic to these pleas, I don't think that it is necessary or reasonable for the FCC to take the drastic action of completely banning such advertising. Here's why. To the extent that it may be argued that alcohol advertising is false or misleading, the Federal Trade Commission (FTC), not the FCC, clearly has primary jurisdiction. The FTC has the expertise to evaluate advertising practices and recommend further action, if needed.

In fact, the FTC already has commenced an investigation into liquor ads. Thus, I see no need for the FCC to duplicate this effort.

Similarly, I see no need for the FCC to attempt to make judgments regarding the health risks of alcohol consumption or the potential that specific advertising practices might encourage underage drinking. To be sure, these are serious issues. I believe, however, that they should be addressed by those with the appropriate expertise to draw reasonable conclusions.

I also see constitutional issues here. Just last term, the Supreme Court held that truthful hard liquor advertising falls squarely within the protection of the First Amendment. This means that a government-imposed ban on such advertising is subject to special constitutional scrutiny. Given the strength of the Court's decision, I think it would be difficult to overcome this hurdle.

In addition, any FCC-devised ban would face an even higher hurdle. There is no statute that bans or limits liquor advertising on the broadcast medium. This is important. Caselaw developed when the ban on cigarettes ads was imposed indicates that Congress is the appropriate body to decide that such a ban is needed.

As with the issue of TV violence, I think that the better solution here is responsible action on the part of advertisers and television programmers. I am pleased that we have seen increased responsibility regarding the content of the alcohol ads. In recent years, advertisers of beer and wine have begun to present informational ads that are aimed at adults, not children. In addition, I am told that many have a policy against ads that are targeted to children, or in any way promote alcohol consumption.

Certainly, there is more that can be done. You, the advertisers might do your part by supporting educational campaigns designed to inform the public about the health hazards of drinking.

I also believe that there is promise in Congressman Billy Tauzin's effort to work toward an industry-devised and enforced code to ensure that alcohol advertisements are not aimed at those who are underaged. Like the old National Association of Broadcaster's code, a voluntary code with teeth would likely lessen the calls for government action.

In sum, while I don't think FCC action is called for, I strongly encourage broadcasters and advertisers to be responsible and responsive to the concerns about these alcohol ads. If they are, calls for the FCC to place an outright ban on all alcohol ads will diminish.

Public Interest Programming

Many people don't like the idea of government bans on TV violence and alcohol advertising, because it boils down to government deciding what shouldn't be on television. And that's censorship, short, sweet and simple . . .

The flip side of the censorship coin, and one that I find equally troubling, is the call for mandates of specific types of prosocial programming that government decides will further the public interest. One lawyer friend of mine calls this "the liberal's form of censorship." Let me tell you why I have trouble with government ordering certain categories of what it decides is "good programming."

In this area, my views contrast sharply with one of my colleagues. Recently, the FCC Chairman wrote in an essay that we should quantify public interest obligations for all FCC licensees. He argues that quantified obligations do not limit free speech because they are content neutral.

I respectfully differ with the Chairman because I do not find it "content neutral" to force broadcasters by government fiat to air X hours of political programming, Y hours of children's educational programming and Z hours of other noncommercial, educational programming. In my view, these government directives are content-based, even if one assumes that they are view-point neutral.

In addition, the numbers-oriented approach ignores the fact that "serving the public interest" is a subjective concept. People can differ on how the public interest ought to be served, depending on the local community's needs.

In one community, the broadcaster might find that serving the public interest means ordering free time for political candidates and airing 3 hours of children's educational programming. Another broadcaster elsewhere might conclude that providing information on AIDs is serving the public interest. Another serving an inner city may decide that getting minority viewpoints on the air is the best.

But if you take a quantified approach to the public interest standard, a Commission of five people who live in Washington D.C., are going to make the decisions about how many hours of what types of programming each broadcaster will show across the nation.

I don't think the concept of "serving the public interest" is a measurable thing, like widgets. Congress put into place many decades ago a flexible public interest concept that allows itself to be adapted as needed to fit the needs of a particular audience. What's needed in a farm community may not be what's needed in a retirement community or an inner city neighborhood. I think Congress realized this and thus, trusted the broadcasters to use their discretion to serve their particular audience well.

I agree with Congress that flexibility is essential. Without it, we may intrude unduly on the free speech rights of our regulatees, whose purpose, after all, is communicating their own words and ideas, not those chosen or endorsed by government, no matter how well meaning the government.

With the best of intentions, quantification of the public interest standard becomes a slippery slope of undue government intrusion into programming discretion.

Have we already taken a step down that slope? Last summer, the FCC put in place a staff processing guideline that requires broadcasters to air three hours of children's educational programming a week to get an automatic pass at license renewal time.

While I thought quantifying the children' TV obligation was not the most First Amendment friendly choice, I was able to support this processing guideline because we had a specific statutory mandate and because we included a measure of flexibility. We specifically recognized that if the broadcaster does less than three hours of programming, the Commission will still look at other efforts by the broadcaster that further the educational and informational needs of kids. Nonetheless, this was a kind of quantification.

Since then, there have been more calls for quantification, and they are not necessarily limited to broadcasting. We have been asked to consider set asides of specific amounts of capacity on DTV and other new services for noncommercial educational and informational programming.

And now, another controversy has arisen over whether the broadcasters have aired "enough" public service announcements. The Chairman has asked broadcasters to tell him in detail just how many public service announcements they are airing. The implication of his request is that if it is not enough, in his judgment, the FCC may order broadcasters to air a specific number. Is this yet another government programming mandate in the making? I hope not.

To conclude, I believe that quantifying all kinds of public interest obligations for all content providers would be government regulation that crosses the line. To me, this is the nuclear warhead approach to the incoming asteroid. It is more than what is necessary and reasonable to advance our goal of requiring broadcasters to serve the public interest.

I hope that you will unite with the media and government to promote sensible, reasonable and First Amendment friendly solutions to the problems that underlie the calls for more government regulation.

Distribution of 888 Numbers

My final topic causes me to veer away from my prior subject. The Commission is in the midst of our rulemaking on toll free numbers, and I am told that you have an interest in this issue.

I know that many of your clients depend on either an "800" or "888" number to conduct their daily business. "800" was the original toll free code, but like a popular sports car that sells out year after year once proven, the explosive growth in toll free services over the last decade caused a shortage in "800" numbers.

Today, toll free numbers as so popular that we are already beginning to run out of the next generation of "888" numbers! A while back, we issued a Notice of Proposed Rulemaking to get public comment on proposals regarding how toll free numbers should be reserved, assigned, and generally used. I am happy to announce that we will soon adopt an Order that will address several issues that were raised in that notice.

These issues include how the FCC plans to promote the efficient use of toll free numbers. Through our rules, we will try to prevent the practice of "hoarding" and "warehousing" of toll free numbers -- which occurs today when either a toll free subscriber gets more numbers than it intends to use, or when a carrier reserves a toll free number without having an actual subscriber for that number.

We will also look at how we should deal with the transition to opening and using a new nationwide toll free code, such as a new 877 or 866 code.

I don't yet know what the FCC will decide on these issues, but if you have any strong feelings, I would like to hear them.


Well, you've put up with me launching asteroids at you on media content issues, and perhaps seeming "spacey" as I tried to explain the esoteric area of toll free numbers. I'm glad to have had a chance to talk with you. I hope we will continue to talk in the coming months. Thank you very much for inviting me to talk to you.