The "Frog Speech"
(Excerpted from Commissioner Chong's Keynote Address
to the NAB Radio Show on September 19, 1997)

Last July, in a speech to the California Broadcasters Association, I called for an end to increased government intrusion into program content decisions. This speech got a surprising amount of press coverage, given that I have been singing that song for many years.

Let me cut to the chase. During my term, I have witnessed an insidious trend toward limiting the First Amendment freedom of broadcasters. If you will forgive a rather graphic example, particularly during lunch, what we have here is a "frog boiling" issue. You see, if you try to put a live frog in a pot of boiling water, that poor froggie will jump out. But if you put that live frog in a nice pot of cool water, and gradually turn up the heat, the frog will paddle about in the water until it is, well, frog legs.

So it has gone with the intrusions in the past four years into the programming decisions of the broadcast industry. Time and time again, broadcasters have been asked to acquiesce to the government's wishes on programming issues. It didn't start with too much heat, but over time, the heat has continued to be turned up one notch at a time, as one demand after the next came from the powers that be. "Do it for the children, do it for family values, do it as part of your public interest obligating, do it for public safety, do it in exchange for a digital TV licenses, do it for a waiver of an ownership rule. . . "

From my catbird seat at the FCC, I've watched with increasing alarm as the heat has gradually risen. In retrospect, it didn't happen without warning. In a September 1995 speech, Chairman Reed Hundt said that he wanted to transform our general public interest obligation into "concrete" and "quantifiable" programming commitments enforceable through fines or possibly non-renewal of broadcast licenses. With the clarity of hindsight, one can see that this concept of converting the public interest into specific programming commitments was his springboard into intrusive government content regulation.

For example, quantification of programming commitments was the most hard fought issue in our children's educational television proceeding. Although three commissioners strongly opposed the strict quantitative approach advocated by the Chairman, the FCC and television industry -- after a "turning up of the heat" via a White House summit -- eventually accepted a staff processing guideline of three hours a week. The guideline approach has a quantification aspect, but it also provides a measure of flexibility that to some degree protects a broadcaster's discretion. So, I guess that was just a little heat under the frog pot.

But the heat went up with the TV rating controversy. Again, some Congress members, aided by the White House, helped "convince" the video programming industry that they should "voluntarily" develop a TV rating system with particular content indicators. I think Producer Dick Wolf put it best when he said the rating system was "about as 'voluntary' as somebody handing over their wallet when there's a .45 pointed between their eyes." And it was Ted Turner who said, in a Yogi Berra-esque way, "We are voluntarily doing a rating system because we have been required to."

Recently, there have been more attempts to turn up the heat at the FCC. These included the FCC's very public dispute over the need for a Notice of Inquiry on distilled spirits advertisements. There, Chairman Hundt argued that he only wanted to start a "neutral inquiry," to provide a forum for debate of an important social issue. Well, just like there was nothing truly "voluntary" about the ratings system, there would have been nothing truly "neutral" about this inquiry. This is one reason why Commissioner Quello and I refused to support it.

In sum, we have opposed efforts to launch inquiries that are really thinly-disguised efforts to dictate program content. I believe that Congress, as our elected representatives, should decide by statute what content issues the FCC should address. And the courts agree with me. You see, they recognize that it is just too dangerous to let unelected government officials dictate program content without specific Congressional direction.

It is for this same reason that I vehemently disagree with Chairman Hundt's inflammatory suggestion that there ought to be governmental policies to "assure that news is broadly and in some sense fairly communicated through the electronic media." Hundt's approach is particularly offensive to the First Amendment's guarantee of a free press, because in no way does the First Amendment countenance government deciding whether news is being presented "fairly" or setting government policies to ensure balanced news.

So, broadcasters, let me ask you: Is the water getting uncomfortably warm for you yet? If so, beware because more heat is on the way. . . Look next for more heat in relation to public interest obligations in the digital era. One of the key issues is the call for mandated free air time for political candidates.

The free time debate is being staged in several forums. It is on the agenda of a new presidential commission. There are also a number of bills pending in Congress. Last year, at the Chairman's request, it was a topic at the FCC too. The Chairman asked us to hold an en banc hearing on political broadcasting, where numerous speakers said that broadcasters, as part of their public interest obligation, should give candidates free television time.

The argument goes as follows: "Broadcasters use the public airwaves for free and free air time would defray the costs of campaigning. So why shouldn't the FCC do a 'neutral inquiry' and perhaps order broadcasters to donate air time as part of their public interest obligation?" If you follow this line of reasoning, maybe we should ask airlines to give free airplane seats to political candidates -- airlines also use the public airways, and with the cost of flying, free seats surely would defray campaign costs too!

In the last two weeks, the Chairman argued that free time for political candidates was necessary to "save the democracy." And he asked why we couldn't have a "neutral inquiry" on the topic. Showing the true neutrality of his intentions, however, he went on to say, "I assure you that if I had the votes [the FCC] would long since have defined the public interest to include free time." Needless to say, the departing Chairman did not have the votes to work his will.

As I complete my watch at the FCC, I would like to emphasize that our First Amendment tradition mandates that broadcasters must be free to present whatever programming they believe will best suit the needs of their local audience. Except when there is a compelling government interest and it has chosen the most narrowly tailored way, government is forbidden from censoring your content or otherwise dictating categories of programming you must or must not show.

Having said that, I recognize that there are some limits on broadcast content that are part of the Communications Act, and have been upheld by the courts. These limits include obscenity, indecency, kids' educational programming, and some political broadcasting rules. Although the FCC must enforce such laws, it ought not expand the law to suit the whim of individual regulators. Our freedom as a nation is too important for that.

And so, I have come to New Orleans today to urge each of you to speak out. Oppose government intrusion into your programming decisions. Don't sit quietly in your frog pot -- assuming that you must take the heat for business reasons. Leap out of the pot, and voice your opposition to content regulation.

Speak out in any way you can, including through written and on-air editorials, and your public affairs programming.

Do it by lending support only to candidates and politicians who are sensitive to First Amendment issues.

Do it by using the combined strength of your association. I applaud NAB's decision to relaunch its education foundation with a focus on First Amendment issues. I think it wise that NAB has asked you to keep careful records of all the public service you do. NAB is in an excellent position to gather this data, marshall your arguments, and lead the fight for free speech.

Get off your duffs and fly to Washington to lobby legislators, White House and FCC Commissioners.

And finally, most importantly, strengthen your arguments for free speech by being responsible and responsive broadcasters. By this, I mean be responsible in your programming decisions and be responsive to the concerns of parents about violence, sex and adult language during hours when children are likely to hear it.

In sum, having found yourself in some very regrettable hot water, you can choose to jump out of the pot and to vigorously object while there's still life in you. But if you don't choose to fight but to take the heat passively, you will have no one but yourself to blame if you find yourself "dead in the water" on First Amendment issues. It's not easy being green.