ÿWPC¹ ûÿ2MÿÿBR Z¨ óCourierw Roman3|xw RomanTimes New Roman BoldûX@þþþþþþþÿþÿÿÿþÿÿþÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿHP LaserJet 5Si room 802 LPT2HPLAS5SI.PRSÛx Œ @ɇÏð\ðÚ$NSX@xxg9/9MS9ISISI9SS//S/‚SSSS9?/SSxSSIP!PZå9+ZM999+999999S9S/xIxIxIxIxI“lnIgIgIgIgI9/9/9/9/xSxSxSxSxSxSxSxSxSxSxIxSxRxSxSxS]SxIxIxInInInZnIxigIgIgIgIxSxSxSxZxSxZxS9/9S999Su]ZZxSg/gCg9g9g/xSbxSxSxSxS“xn9n9n9]?]?]?]ZgFg/gMxSxSxSxSxSxSxxZgIgIgIxSg9xS]?g9xSi+SS88WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN Ôà ÃVoluntary Standards Are NeitherÄ Ä Ô q%)r? ÔÁxÁOften, it helps to step back and think about what people are really saying when they use certain words. When we do so, we sometimes learn that the actual meaning of the terms and the accepted understanding of them ©© theÔ"|'0* ( (°°N*:"Ô "spin" ©© are worlds apart. ÁxÁLet's consider the etymology of the phrase "voluntary standard." According to my dictionary, the adjective "voluntary" means "performed, made, or given of one's own free will" and "acting of oneself, not constrained, impelled, or influenced by another." There is even a legal definition for all of the lawyers here: "acting or done without any present legal obligation to do the thing done or any such obligation that can accrue from the existing state of Ô ¬aŒá<ÔaffairsÃÃÄÄ." (ÃÃWebster's Third New International DictionaryÄÄ (1961)). ÁxÁThe original derivation of the noun "standard" is from the German term for "rallying place" or "flag to mark a rallying place." Today, it has come to mean "something that is established by authority, custom, or general consent as a model or example to be followed." ÁxÁThus, to meet the actual definition of a voluntary standard, an exemplary or suggested, but not definitive, approach to certain conduct ©© that is, a starting point or "rallying place" for behavior ©© would have to be undertaken as a matter of free will, without its selection being constrained or influenced by anyone outside the selecting group. Models, not baselines, for behavior would be created, adopted, and adhered to in the absence not only of current legal obligations to do so, but also of future legal obligations that could be imposed Ô ¬a‚'á<Ô©© as the dictionary says, "without . . . any obligation that ÃÃcanÄÄÃà accrueÄÄ."Ô"‚'0* ( (°°N*:"ÔŒÁxÁThe First Amendment is premised on a healthy skepticism toward government©supplied descriptions of official action. In the mind of the Framers, the "fourth estate" would always be free, under the Free Press Clause, to supply its own characterization of such action and to challenge the government's, and the citizenry would be at liberty, under the Freedom of Speech Clause, to ventilate their opinions about those matters politic. Such freedoms would, hopefully, serve as a check against the incentive of those in authority to seek to control public criticism of their decisions and thus to perpetuate their power. ÁxÁ Perhaps now more than ever, however, the language of government is the language of euphemism, as Robert Corn©Revere, the Chairman of your First Ô ¬aÈá<ÔAmendment Advisory Council, has observed in his refreshing essay, ÃÃ"Voluntary" Ô ¬aâá<ÔSelf©Regulation and The Triumph of EuphemismÄÄ. Quoting Orwell, Corn©Revere explained that this language is used to "make lies sound truthful and murder respectable, and to give the appearance of solidity to pure wind." ÁxÁBut even taking the government at its own choice of words ©© in this case, "voluntary standards"©© the FCC's regulatory efforts fail to qualify as the "sound©good, feel©good" mechanisms they purport to be. They don't even live up to their spin. ÁxÁToo many examples of supposedly voluntary commitments come to mind: broadcast ratings systems for v©chips; promises, such as free cable access forÔ"ˆ'0* ( (°°N*:"Ô schools, in "social contracts" for cable operators as consideration for the resolution of rate complaints; the airing of children's programming in exchange for waivers of broadcast ownership rules; the performance of conditions attached to telecommunications merger reviews; financial payments to the government by broadcasters for the dismissal of indecency filings; and compliance with unconstitutional employment "outreach" regulations and reporting requirements. Ô ©ax á<ÔThe list is long, and those are only the publicly made commitments.ÃÃÄÄ ÁxÁFor speakers of ordinary English, none of those pledges could fairly be called voluntary. As two respected administrative law commentators, Professors Davis and Pierce, have observed, even agency statements that purport to be nonbinding Ô  ÔÐÐÂXxÂcan have coercive effects through more subtle, less formal means. To the extent that an agency possesses significant discretionary power over a class of regulatees or beneficiaries, many are likely to "comply" "voluntarily" with an agency's "nonbinding" statement of its preferred policies.Æ(#Æ Ô ¬aá<:ÔÐÐ(Davis & Pierce, I ÃÃAdministrative Law TreatiseÄÄ 232 (3d ed. 1994)). Ô ¬a2á<ÔÁxÁEach of these so©called voluntary standards, if done in a Ô q%)rG ÔÃÃÔ q%)rG ÔtrulyÔ q%)rG ÔÄÄÔ q%)rG Ô voluntary and resolute manner, might be considered a righteous act. But done by government coercion, or at government suggestion with government scrutiny, these acts cease to be either voluntary or righteous; they remain resolute only in their fear of government coercion.Ô"ˆ'0* ( (°°N*:"ÔŒÁxÁIn each of the aforementioned cases, the regulatees' promise of performance was made in the face of potential adverse action by the FCC in licensing, rate regulation, or enforcement matters. What regulated entities saw when they looked down the barrel at the agency was: possible denial of their license renewal applications; denial of applications to transfer licenses; orders of rate refunds; orders of divestitures; and monetary forfeitures. ÁxÁEven when the FCC had limited jurisdiction, as with respect to the ratings system, where our role was limited by statute to determining whether that system was "acceptable," broadcasters were faced with the explicit statutory alternative of outright government regulation if they failed to produce an agreement. That in itself is a harm that industry would strive to avoid, and indeed did. ÁxÁCircling back to the definition of voluntariness, in none of these scenarios did the regulatees "act of theirselves." In each instance, the regulatee's dance partner was the government: like Fred and Ginger, each step they took was cheek to cheek, made either in response to, or in anticipation of, a move by the government. Can it be doubted that the regulatee's every choice of maneuvers was influenced, limited, or affected by the government? And while perhaps executed without any presently existing, direct obligation, they were carried out not only under indirect pressure but surely also with the knowledge that failureÔ"|'0* ( (°°N*:"Ô to do so could lead to the accrual of express obligations. ÁxÁAs I said in the v©chip proceeding, once the government becomes involved in pressuring parties to take part in any particular program, the Ô ©a<á<Ôprogram ceases to be "voluntary" in any real sense of the wordà ÃÄ Äà ÃÄ Ä. Participation on Ô ©aPá<Ôpain of governmental penalty is simply not willing participation.Ã Ã Ä Äà ÃÄ Äà à Ô ©ad á<ÔÁxÁÄ ÄNor can the criteria decided upon in the above examples be termed "standards." When backed by the regulatory authorities, linguistically soft "guidelines" quickly harden into minimum rules of behavior. ÁxÁAs Judge Lawrence Silberman, writing for the D.C. Circuit, recently held, Ô ©a´á<Ôà ÃÄ Äeven "screening device[s] . . . create a strong incentive to meet the . . . goals" stated therein. "No rational firm©©particularly one holding a government©issued license©©welcomes a government audit. . . . In order to avoid the inconvenience and expense of being subjected to further review, [regulatees] will treat . . Ô ¬aá<Ôguidelines as 'safe©harbors.'" Ôq%)rHÃÃÔ(Ô q%)rH ÔÃÃÔ q%)rH ÔLutheran Church©Missouri Synod v. FCCÄÄ, slip op. at 17.) ÁxÁFor example, are broadcasters going to offer less than 3 hours of children's programming per week, the current "processing guideline" offering "nonmandatory guidance," as the Commission called it, on compliance with the Children's Television Act of 1990? Only if they wish to engender stricter scrutiny by the Commission.Ô"‚' 0* ( (°°N*:"ÔŒÔ ©aá<ԙà ÃEvasion of Statutory Limits and the ConstitutionÄ Ä Ô q%)rI ÔÁxÁSo the phrase "voluntary standards" is, even by the government's own terms, a misnomer. But what is substantively wrong with this administrative mechanism? What is it that the misnomer seeks to obscure? ÁxÁThe use of voluntary standards allows administrative agencies better to skirt statutory limits on their authority, an offense to the concept of administrative agencies in possession of only those powers delegated to them by Congress. Their use can also more readily permit agencies to impose requirements violative of the Constitution. Ô q%)rJ ÔÁxÁIt is no coincidence that the commitments extracted from regulated entities in the guise of voluntary standards tend to be things that the agency lacks statutory authority straightforwardly to require. Voluntary standards, as opposed to duly promulgated rules, can all too easily be used to bootstrap jurisdictional issues: got jurisdiction to approve or disprove the transfer of licenses but no express statutory authority to require unbundling of the licensee's product offerings? Just make it a "optional" condition of the license transfer, add water, mix, and you have fresh jurisdiction to regulate a whole new area. ÁxÁThe problem with this approach, however, is that it renders superfluous Congressional attempts to delineate our areas of responsibility. When unelected federal regulators are not bound by specific Congressional delegations of power,Ô"|' 0* ( (°°N*:"Ô governmental accountability, principles of federalism, and the rule of law are thwarted. And each time this happens, we are all a little less free. ÁxÁThe agency may not only be seeking to impose conditions that exceed its statutory authority. The conditions might be unconstitutional to boot. As with the commitment to provide children's programming that arose out of the FCC's consideration of the 1995 CBS/Westinghouse application for transfer of control, the Commission might seek to require indirectly the very sort of content©based commitments that it may well suspect the First Amendment cordons off from its reach. And each time this happens, we lose some freedom of speech. Ô q%)rK ÔÁxÁVoluntary standards are tempting to regulators for technical reasons too. They allow agencies to bypass the seemingly cumbersome and time©consuming requirements of the Administrative Procedure Act, such as notice and comment. These procedures, however, were designed and enacted into law in order to provide some measure of accountability and reasoning in agency decisionmaking. When effectively binding rules ©© which, as I have argued, is Ô ©a,á<Ôwhat "voluntary ÃÃÄÄstandards" are ©© are adopted but these procedures are not followed, the safeguards of the APA are violated. ÁxÁThere is another reason that agencies might prefer voluntary standards to rules: they are harder to challenge in a court of law. Judicial review of the statutory basis for "voluntary" standards may be difficult to obtain because suchÔ"|' 0* ( (°°N*:"Ô guidelines, being technically non©binding, may never formally be announced or enforced against any regulatee. Indeed, the agency's "suggestions" may be Ô ¬a(á<Ôentirely unwritten, emanating from ÃÃad hocÄÄ discussions between regulators and the regulated. For these reasons, procedural problems of jurisdiction and of justiciability may arise for plaintiffs who try to challenge administrative armªtwisting. ÁxÁ Moreover, while regulatees who are the subject of retaliatory adverse action for failure to accede to the agency's wishes will have certainly have Ô ¬a¦á<Ôstanding to challenge ÃÃthatÄÄ action, as opposed to the standards themselves, success in that endeavor will be hard to come by. It is not easy to prove retaliation as a factual matter. And as long as the agency articulates a contemporaneous, reasonable explanation for its decision, courts are generally required to defer to the agency. ÁxÁThus, by issuing "voluntary standards" in one area while wielding tremendous discretionary authority over industry in others, the agency can obtain indirectly guarantees from regulatees that it lacks substantive authority to require directly or which would likely violate the Constitution if that were done ©© all the while increasing insulation of its actions from judicial review. ÁxÁRegulated entities should not be put in the untenable position of being asked by those with potential power to regulate their businesses out of existenceÔ"ˆ' 0* ( (°°N*:"Ô to "agree" to certain rules of conduct that would be unlawful if promulgated formally. In the interest of fairness and accountability, I believe that the Commission should adopt rules, as opposed to nominally non©binding "standards" or "guidelines," whenever possible. ÁxÁ If our statutory authority to prescribe certain rules of conduct is dubious, covered entities should have the opportunity to challenge the legal basis for any such rules in a court of law. We should not resolve doubts about statutory authority by issuing nonbinding documents rather than rules. We should either not act at all, or act through established rulemaking processes, with notice and comment, and then defend our position. But we should not leave regulated entities with decreased opportunities for judicial review of the standards but effectively bound to comply with them. ÁxÁBy avoiding procedural mechanisms such as "voluntary standards," we could help, as Ôq%)rLthe Ôlegal scholar Lars Noah put it, to "push administrative bargaining out of complete darkness and, if not into the sunshine, at least into the shadow of the law." (Lars Noah, "Administrative Arm©Twisting in the Shadow of Congressional Delegations of Authority," 1997 Wis. L. Rev. 873, 941)). Ô ©aT#á<ÔÔ q%)rM Ô Ã ÃConclusion Ä Ä Ô : ÔÐÐÔq%)rNÁxÁ ÔÁxÁIn the end, though, what makes the above©described administrative armªtwisting work is the repeat©player nature of most regulated entities. They knowÔ"|' 0* ( (°°N*:"Ô they will have to deal with regulators not just once, but over the course of many decisions about their very livelihood. The pressure to go along to get along can be powerful. ÁxÁI understand that pressure. Yet I would give the media industry an admittedly unsolicited piece of advice to place on the other side of the scale: the broad discretion that you bargain away to your friends today will almost certainly be used against you by your foes tomorrow. In the long run, negotiating when the law is on your side may be more harmful to your interests than the immediate regulatory evil you seek to avoid. ÁxÁBut it is the Media Institute that is uniquely situated to take a stand against the subtle, but nonetheless real, effects of administrative arm©twisting. It has no government licenses to lose or sanctions to avoid, only people to persuade. ÁxÁAs Americans, we join many voluntary groups: civic, social, religious, charitable, and others. In the last century, DeTocqueville was amazed at the capacity of Americans to join voluntary groups. Through these groups and Ôq%)rQthrough Ôour own initiative, we engage in many voluntary activitiesÔ q%)rS Ô ©© nÔ q%)rS Ôot as the result of coercion oÔ q%)rU ÔrÔ q%)rU Ô government enforcement, but through personal commitments. The Media Institute is one such organization. ÁxÁIn this regard, the Media Institute is a striking symbol of the byproductsÔ"|'0* ( (°°N*:"Ô of the constitutional principles that it so vigorously defends. It is the First Amendment that protects the associational rights of the members of the Media Institute to convene likeminded persons for the purpose of advancing their ideas. It is the First Amendment that protects the Media Institute from government impingement upon, or retaliation for, the statements that it makes in pursuit of those goals, however critical of government or individual decisionmakers they may be. Without the First Amendment, we might not have a Media Institute: its ideas might be "too dangerous," or its voice "too loud." Ô•q%)rVÁxÁWithout the First Amendement, voluntary standards might replace voluntary associations and coercion might replace volunteerism. •ÔÁxÁAnd without the Media Institute, we would not have a First Amendment discourse in government that is as meaningful as it is. Thank you for the good work that you do, for your vigilance and thoughtfulness on the issues that surround the regulation of communication. Please keep it up. ÁxÁThank you.Ô q%)r[ Ô