[ text version ]

July 9, 1997

Comments of Commissioner Rachelle Chong
at FCC Agenda Meeting

Mr. Chairman: I cannot, in good conscience, vote to open an FCC inquiry into liquor advertising.

I too am very concerned about the serious societal problems of alcoholism, underage drinking and drunk driving. I do not believe, however, that this proposed FCC Inquiry is the best way to address those issues. I think these issues are best handled directly through enforcement of the laws against misuse of alcohol, not indirectly through this proposed inquiry.

I understand the arguments that some alcohol advertising may be misleading and may encourage underage drinking. I agree that these are important issues that should be dealt with by government authorities.

To the extent liquor advertising is misleading or directed to underage audiences, however, the right authority to take action is the Federal Trade Commission. The FTC has expertise on advertising matters. Indeed, the FTC has two ongoing investigations of alcohol advertising. Moreover, we have a longstanding agreement with the FTC that says the FTC "will exercise primary jurisdiction over all matters regulating unfair or deceptive advertising in all media, including the broadcast media." Why can't we let the FTC do its job? After all, this agency already has a huge workload, and we shouldn't duplicate the efforts of other parts of the government.

I am not persuaded by arguments that the FCC should investigate truthful liquor advertising directed at adults because of our mandate to ensure that broadcasters serve the public interest. In my view, the FCC's general public interest mandate is not a plenary authorization to conduct broad-ranging inquiries — ultimately aimed at dictating program content. This characterization of the public interest mandate puts us on a slippery slope — a slope leads away from important First Amendment freedoms.

As the Supreme Court has recognized, truthful advertising — including liquor advertising — is entitled to protection under the First Amendment. We cannot ignore this holding of the highest court in the land.

Moreover, from a practical point of view, if we start this investigation under our broad public interest mandate, would we then have an obligation to also investigate car advertising that features air bags and sugared cereal advertising? I see no logical or constitutional distinction between the arguments about liquor advertising and any other legal product where health and safety concerns have been raised.

Now, there is a way to make reasonable judgments about whether the FCC should investigate truthful advertising of legal products. The courts have told us we should look to the law. You see, in the past, the courts have recognized that a Congressional judgment — as expressed in a statute — that the FCC ought to restrict the advertising of certain products is entitled to judicial deference. So, I believe we must look to whether Congress told us to look at the liquor ad issue or not. Congress has not passed such a law.

I disagree with two of my colleagues that this Notice is "just a simple fact finding." Having read the Notice, it goes well beyond mere fact finding. First, the Notice assumes there is a problem that the FCC should fix, pursuant to our public interest authority over broadcasters. Second, the Notice asks about regulatory means to solve the problem, such as ways to ban, counter and restrict liquor advertising, including such things as requiring a V-chip type approach to allow viewers to block out certain ads. In my view, it is not "neutral" to tell the broadcast industry that it is responsible for a bigger societal problem, and ask whether they or the government should do something about it.

Mr. Chairman, because of the foregoing, I respectfully will not vote to approve this item.