SEPARATE STATEMENT OF COMM. HAROLD W. FURCHTGOTT-ROTH
In the Matter of Implementation of Section 551 of the Telecommunications Act of 1996: Video Programming Ratings, CS Docket 97-55
It cannot be gainsaid that the First Amendment prohibits government from either abridging or compelling protected speech. In view of that fundamental constitutional principle, section 551 of the Telecommunications Act prudently provided an alternative to a government-created, government-policed scheme for judging the content of video programming: the establishment of a private, voluntary ratings system by video programming distributors.
Under section 551, if the Commission determines that such establishment has occurred, the provision of the Communications Act that creates governmental ratings guidelines, section 303(w), never takes effect. By this Report & Order, the Commission fulfills its limited statutory role of determining that the industry's ratings rules are "acceptable," section 551(1)(A), and that "distributors of video programming have . . . agreed voluntarily to broadcast signals that contain ratings," section 551(1)(B). Under the Act, our involvement in programming ratings is now at an end.
This Order should not be interpreted as a basis for future governmental efforts to compel adherence to the industry guidelines at issue in this proceeding. Once the government becomes involved in pressuring distributors to take part in this program, the program of course ceases to be "voluntary" in any real sense of the word. Participation on pain of governmental penalty is simply not willing participation. And forced participation in content-based regulation of speech runs headlong into the First Amendment, as the drafters of section 551 realized.
In this regard, I salute the courage and fortitude of those programmers, such as NBC and BET, who have resisted political pressure to effectively convert these voluntary guidelines into mandatory regulations. Whether these companies opt in or out of the guidelines is a matter between them, their colleagues in industry, their advertisers, and last but not least their viewers. In the end, programming distributors should look to their own viewing audience, rather than to government, to determine what type of ratings, if any, to employ. When programmers do so, they should be commended, not condemned, for their independence of mind. That, after all, is what the First Amendment is about.