July 9, 1997
I was pleased to present to the Commission today for public debate and public vote the proposal to conduct an inquiry into the issues raised by hard liquor advertising on television and radio. Who's carrying the ads? What should be done about this troubling new development in the use of the public's airwaves? Why shouldn't we give the American people a report on these issues, after taking public comment from any and all, and after asking broadcasters to tell us how they feel about this issue?
Commissioners Ness and I voted to conduct an inquiry into these issues. However, Commissioners Quello and Chong have voted not to conduct this inquiry. A tie vote means that the notice does not issue at this time. I am glad that the public has a chance to judge the wisdom of the Commission's decision today by virtue of our open and public discussion and vote. Plainly, the tie vote means the debate about the wisdom of opening broadcast TV to hard liquor is far from over. It's a good day when the commissioners each make public their thinking and their votes on important issues, such as those presented by the hard liquor industry's attempt to get their ads on broadcast TV, for the first time since TV became the widespread phenomenon it is in America.
In the debate among commissioners and among private parties and government officials about the new hard liquor TV advertising campaign and the appropriate response by the FCC, the public's steward with respect to use of the public's airwaves, I think there are a handful of plain truths that ought to be clearly stated:
- first, of course the Commission has the jurisdiction to conduct an inquiry into any use of the public's airwaves. Any assertion to the contrary is risible.
- second, when the President, the Attorney General, 26 Members of Congress, 15 Attorneys General, and over 240 public interest organizations ask us to conduct an inquiry into a matter over which we have jurisdiction, we should generally willingly and enthusiastically do so without hesitation or purpose of evasion; and
- third, the existence of a private document gathering at the FTC into certain alcohol ads neither precludes FCC action nor explains any unwillingness to act on our part.
In any event, such questions as the extent to which hard liquor ads are now being carried on broadcast TV and the appropriateness of such ads are precisely in our bailiwick, as the proposed Notice of Inquiry indicated. The Notice proposed to reach no conclusions about what, if anything, should be done about this new development in broadcast history. It merely sought to permit a public record to be made on the pertinent issues.
How can anyone justify curtailing this legitimate inquiry? No one disputes that the issues are important. Indeed the commissioners who oppose this inquiry publicly proclaim that the introduction of hard liquor ads on broadcast TV is troubling. So why don't they want to learn the facts and the law, through a public recordmaking, that would permit the FCC at the very least to report to Congress, the Administration, and the American people about what is going on here, and what the possible responses may be?
And why don't broadcasters and the hard liquor industry join in supporting a fair and open inquiry? What are they afraid of? Why are they together in their unwillingness to have an open proceeding, where facts and laws can be cited and debated? It would not be sound or responsible for anyone to mistake or mischaracterize the scope and content of the proposed notice. The proposed Notice of Inquiry laid out all the important questions without bias or slant. It asked for comments on the petitions and proposals that the FCC has been receiving in droves. The NOI did not advocate a rule or take a position. It merely asked some important questions and sought comment from interested parties and the public, such as:
- how many broadcasters have carried these ads? at what times? during what programs? what number of underage viewers is estimated to have seen these ads? Many broadcasters have rejected these advertisements -- why? What policies have been developed?
- should the unique features of TV inform our evaluation of the effect of hard liquor ads?
- what do scientific studies show about the link between advertising and underage consumption? what information do other expert governmental agencies have on this issue?
- how should we respond to the State of Alaska's petition (joined by 13 States and Puerto Rico) proposing that we ban these ads?
- what about the National Council on Alcohol and Drug Dependence and MADD's petition that we require counter-advertising?
- what about the proposal that we channel these ads?
- what about pending legislation, or legislation that might be proposed?
- what is the authority of the FCC to act in this regard?
- what are the First Amendment considerations?
I do not think that my colleagues who prefer not to have this inquiry would claim that they already know the answers to all these questions. Instead, I understand them to be concerned that we not repeat what the FTC is reportedly already doing. However, there is nothing pending at the FTC that would answer any of the above questions. There is no other agency of government and no committee of Congress that is now aspiring to answer these questions. Yet no one would consider them insignificant, and many demand that they be answered. So how can anyone justify our failure to pursue answers, in an open and public proceeding?
As the United States Attorney General Reno pointed out, the FCC serves a "unique role in ensuring that the public interest is not undermined by certain uses of the public airwaves." What agency is better suited to get the facts and report to the public about this new use of the public airwaves?
Moreover, according to the press, the FTC document request is reported to be focussed specifically on the ads of a few companies. And it is a nonpublic law enforcement investigation, and is therefore closed to public view and cannot provide interested parties with an opportunity to participate. This is no broad FTC fact-gathering of the kind that would allow the public to evaluate the scope of the problem and to participate by providing their own views and proposed solutions.
The fact that the Attorney General, our nation's chief law enforcement official, has urged the FCC to act, is an overwhelming indication that the FCC has authority here. Nevertheless, in order to be perfectly fair to all points of view, the proposed NOI even raised the issue of jurisdiction and requested comment regarding the proper roles of the FCC and the FTC. Yet even this is not a matter on which my two colleagues or the hard liquor industry wish a public record to be made. Why not?
Finally, in excusing their belief that the FCC should stand by as hard liquor takes its place on the tube next to breakfast cereal and toothpaste, some have taken comfort in the fact that the amount of such advertising reportedly has been relatively low. But these readily comforted ones would in fact be very disturbed, I'm sure, if hard liquor advertising were poured across all broadcast TV channels at all times of day. Under such circumstances, would they still contend that the FCC should and could do nothing? Would they assert that the FCC could not even report to Congress on who is carrying the ads and when?
It's been true so far that many broadcasters have publicly stated that they will not carry hard liquor ads. However, we simply do not know how many broadcasters hold this view, or whether they intend to continue to hold the line against hard liquor ads in the future. Moreover, we should be concerned that once a few broadcasters in a market accept liquor ads, others will be forced to follow.
And one's head doesn't have to be far out of the sand to see that the liquor companies are eager to press the case for carrying these ads. According to a report in the June 2, 1997 Wall Street Journal, we can soon expect to see a dramatic rise in hard liquor advertising on TV. Various distillers, such as Seagram, International Distillers & Vintners, and Allied Domecq are ready with plans to introduce or expand hard liquor television advertising campaigns for their brands.
Some make a First Amendment argument as an excuse for not supporting an inquiry by the FCC. The argument is, I believe, an assertion that the First Amendment does not permit even an inquiry into the existence of hard liquor ads on TV and the legal issues associated with such ads being carried on broadcast TV. No cases and no statutes support this argument. Recent important cases reject it flatly.
First, hard liquor advertising is commercial speech, which does not have the same First Amendment protection as noncommercial speech. The Supreme Court decision in 44 Liquormart plainly did not stand for the proposition that commercial speech, much less hard liquor ads on broadcast TV, gets the highest level of First Amendment protection.
Second, the ads at issue are on the broadcast medium, with its special and unique treatment under the First Amendment. The relevant constitutional distinction was reiterated, again, in the Supreme Court's decision last week in Reno v. ACLU, striking down the Communications Decency Act. The Court there again affirmed that the broadcast medium is different from other media, in that very different protections and promotions of the public interest, through rules, are appropriate for the broadcast medium.
Third, the Supreme Court recently declined to review the Fourth's Circuit decision in Anheuser-Busch v. Schmoke upholding a Baltimore ordinance banning billboard ads for liquor in places where kids are likely to see them. The Court of Appeals' decision demonstrates that reasonable, narrowly tailored advertising restrictions to protect children can be constitutional. Furthermore, that ordinance dealt with billboards; broadcast would have an inferior claim to that presented by the billboard media in their losing argument in that case.
I return, however, to the core point that an informed Commission, taking public comment on matters of public concern, is what the public deserves, and that's why this inquiry should be conducted. Even those who believe that the Constitution requires that hard liquor ads should be able to run any time of day or night on broadcast TV should support this principle. (Of course, a person who argues for the First Amendment rights of hard liquor advertisers should be prepared to argue for the unconstitutionality of the Public Health Cigarette Smoking Act of 1969, which prohibits broadcast cigarette ads.) If we had a notice of inquiry, such alleged constitutional arguments could be made, on the record, in that proceeding. If we had a notice of inquiry and a public record, we could summarize that record in a report to the public. Each commissioner and all interested persons could comment. Any commissioner who believes that the law supports no rule relating to hard liquor ads on broadcast TV could so state in that report. That would be a fair, above-board, open, reasonable course of action. To vote not even to conduct an inquiry is to vote for the kind of agency that frustrates legitimate debate and denies the First Amendment value of a free exchange of views.