[ Text Version ]


September 10, 1997
(As Prepared for Delivery)


I love TV; doesn't everyone?

I just saw a great new show for the fall season: Science Court, shown every Saturday at 12:30 on your local ABC station.

It's basically Dr. Katz -- if you've seen that great schizzy cable show -- meets Mr. Wizard through the prism of L.A. Law.

I think that summarizes it.

Meanwhile ABC is advertising that TV is Good. Actually I think TV is great: especially when it brings billions together to mark the tragic passing of an amazing young woman, or when it brings millions of kids together to learn serious truths about science in a completely entertaining way.

It is the power of TV that makes the fight for a public interest commitment by commercial broadcasters so critical to the country.

We need broadcasters to give us a widespread, free, universally available medium that contains shows that truly teach kids, that contains free advertising for political campaigns so we can truly reform the political process and not just play a game of 'gotcha,' and that entertains kids while refraining for selling them products like hard liquor that are illegal and dangerous for them to take.

Last year, for the first time in its sixty year history, the FCC required broadcasters to show a specific quantified amount of educational TV during times of day when kids were likely to be in the audience. After a lengthy, sometimes controversial proceeding, we adopted sensible, clear rules that include this 3-hour per week requirement and give concrete guidance to TV stations and parents about the public interest obligations of broadcasters.

The details of the educational TV rules alone are worth a whole law school course.

For instance, when you watch Science Court and then, say, 1001 Dalmatians, ask yourself:

If the Senate confirms our brilliant general counsel Bill Kennard as my successor in early October, as I certainly hope, I won't be around to deal with these questions as FCC Chairman.

But as the parent of three children, I will be looking to lawyers, law schools, the FCC, judges, and all Americans to help come up with answers.

If you watch an 8-year old try to find a TV show that a parent will find educational, you will understand exactly why the overwhelming majority of the country applauded when Bill Clinton and Al Gore told the Democratic National Convention that one of the ways they showed they cared about kids was the FCC's kidvid rule that they helped persuade broadcasters to accept.

But to respond to parents, the questions I've mentioned still have to be answered.

And more questions abound. This is the beauty of law school: it teaches you to find and ask questions. That makes you intolerable to friends, until of course you've winnowed your friendship group down to other lawyers.

Or moved to Washington, D.C., which is an easy way to get the same result.

So lawyers, who may know nothing else, know how to ask questions.

On Science Court the questions are about, naturally, science. I would propose that they do a show on my perennial favorite question: where is the universe going?

And its natural corollary: am I going with it?

We've recently received some good news from astronomical circles that the universe, like a middle-aged waistband, is apparently going to expand forever.

That other idea of a reversing universe that would inevitably recompress the whole shebang back into a pinhead of nullity had really been getting me down.

Imagine those three hours of kidvid, after all our trouble, being reduced in a shrinking universe to a mere nanosecond of family friendly TV.

On the other hand, law school, in a collapsing universe, might get down to a few weeks. Which would only seem like years.

But what we really need is a TV show that will ask and answer questions about law.

Here's a few:

Is law a "brooding omnipresence" in the sky? As if Close Encounters had been directed by John Grisham?

This hieratic, magical, semirevealed view of law dominated in the late 1800s and in the earlier part of this century.

Under this view, the issue in a contract case involving a reward offered for the return of lost property and claimed by the finder who hadn't known about the offer was not whether enforcing an entitlement to the reward would advance some social goal at an acceptable cost; it was whether unconscious acceptance of an offer was consistent with the concept of a legally enforceable contract.

Has this formalistic conception of law been replaced by a view that law is only a part of a political and social process that seeks to establish rights and resolve conflicts in society?

This raises a corollary question: Is law just a smokescreen for raw politics? Are lawyers simply engaged in a power game? This unfortunately often seems to be the popular image of lawyers today. We are viewed as manipulating a semi-secret, complicated set of rules in favor of powerful interests. Some people think that's all that happens in Washington.

That is what happens sometimes in law. But it is the law itself that condemns this lesser view of the way humanity can order its affairs.

It is the law itself that calls upon us to be better than our motives might drive us to be.

And it is the law that I hope calls on you to keep asking the questions important to creating and rebuilding a well-ordered, decent world.

Asking the questions the right way and asking the right questions is what I hope you learn and enjoy.

For my part, today I want to bequeath to you eight questions I have about communications policy, drawn from four years in the best job in Washington you don't have to get elected to.

First -- how do we create competition in the local telephone market?

The largest remaining monopolized markets in our economy may be the local telephone markets. The 1996 Telecommunications Act sought to replace these monopolies with competition. But the method was not to break up the local telco monopolies like AT&T was broken up some year ago; it was to force the local Bell companies to share their economies of scale and scope with their rivals.

This is analogous to forcing a patent holder to license his or her invention. But it is a very unusual, almost unique approach to introducing competition in a monopolized market. Can it work? This is still an open question that affects every American.

Second, is there any way to reconcile a Congressional mandate to open local telephone markets with a federalist tradition of leaving virtually all telco regulation to the states? I believe the FCC struck a proper balance last year when, after an extraordinary amount of hard work and public input, it adopted rules that would have opened up the local telephone monopolies to competition. But the 8th Circuit gutted many of these important FCC rules promoting competition in a crucial decision this summer.

While we're waiting for the Supreme Court to review this 8th Circuit decision, one of the local telcos, SBC Communications, is back in federal district court trying to overturn on constitutional grounds the sections of the 1996 Telecom that replaced the famous, longstanding antitrust consent decree that barred the local Bell telephone companies from the long distance business. And they've rolled out the big guns to do so, retaining the preeminent constitutional scholar Laurence Tribe.

It should be remembered that SBC persuaded Congress to dissolve the antitrust consent decree and allow it to enter the long distance business when the FCC judged, on a state-by-state basis, that its local telephone markets were open.

So here's a third, legal question: Having used the 1996 Act to its benefit in escaping the consent decree, in equity, law, and common sense, is SBC now estopped from attacking the constitutionality of the selfsame 1996 Act's requirement that it open its local telco markets to competition before it's allowed to get into the long distance business?

Here's a fourth legal question: what are the proper related roles for Congress, the administrative agencies, and the courts concerning matters like communications policy?

I believe Congress should set forth general principles and directives that administrative agencies can then implement in response to fast-changing markets and technology. Like a board of directors in a large corporation, Congress can't be expected to anticipate all these changes and to micromanage the details. It should set broad policies reflecting the electorate's wishes that the agencies then carry out.

The courts provide an important check on this process, but they shouldn't micromanage administrative agencies either. To do so permits industry players -- through their lawyers -- to stall, delay, and manipulate the process endlessly. Courts owe the democratically elected Congress deference, and they also owe deference to the administrative agencies that have been given the task of achieving practical solutions to difficult policy questions.

I commend to you Jerry Mashaw's new book "Greed, Chaos and Governance" on this very issue.

Even though I'm not in the index.

A fifth question: how we can use the mass media to promote the democratic process consistent with the First Amendment?

Professor Cass Sunstein of the University of Chicago has written brilliantly on how free speech is the foundation of the democratic process, "ensur[ing] broad communication about matters of public concern among the citizenry at large and between citizens and representatives." The government can advance these First Amendment goals by establishing mass media policies that foster attention to public issues and a diversity of viewpoints.

One important step in this direction would be free air time for political candidates. There have been a number of free time proposals. They all seek to address the endless "money-chase" eating away at our elective process as candidates spend ever-increasing amounts of time raising funds to buy access to the media.

Just yesterday, President Clinton again called for campaign finance reform, and said that one of the things we have to do is to guarantee free or reduced air time for candidates for office. Both the President and many members of Congress have called on the FCC to look into this pressing issue.

The FCC should consequently open a proceeding that examines a system that provides free access to qualified political candidates regardless of the size of their pocketbooks or fundraising abilities. How should such a system be crafted? Should it apply to just broadcast TV or to other media such as cable and DBS? These are vital issues we need to address.

A sixth question: what is the unified consistent meaning of the public interest standard? The Communications Act requires broadcasters and other users of the public spectrum to serve the "public interest, convenience, and necessity"? What does this mean? It's a strange question to ask given that this legal standard has been part of the Communications Act since its enactment in 1934.

Wouldn't it be nice to have an FCC that was willing to recognize the importance of the question and to ask it, in detail and with thought, and to elicit public comment and debate?

There are a lot of sub-questions here: What is the rationale behind this public interest standard? Is it the fact that the spectrum is a scarce commodity, with many more people wishing to use it than can be accommodated? Or is it the fact that the spectrum is public property? Can the government place conditions on the right to use this property that require licensees to serve public interest goals? Should these public interest obligations apply to not only broadcasters but also to other users of the spectrum? Should they apply to nonspectrum-based program providers such as cable that similarly use public rights-of-way?

There are of course important First Amendment concerns here. One question that must be addressed involves vague versus specific rules. The latter give broadcasters proper notice of what is expected of them and restricts the discretion of the government administrator. Vague rules, on the other hand, leave things up in the air, raising the specter of surreptitious suppression of disfavored viewpoints.

Now for a seventh question that is the focus of much attention lately: How do we balance public figures' legitimate private interests with the demands of freedom of the press? What if the press claiming protection is paparazzi?

There's no question that both freedom of the press and privacy are important. If forced to choose, if forced on pain of being drawn and quartered, wouldn't we choose protecting the press over the privacy claims of public figures?

Actually, this might not be a hard choice at all. For law (in addition to civility) can come to the rescue.

If a photographer pushes you to provoke a response and create a scene, you can sue for battery and other torts.

Yes, there are some areas where lawsuits by public figures must meet a higher standard of proof: libel suits against the press, even suits for intentional infliction of emotional distress. But on balance, do we really need new anti-paparazzi laws?

This brings me to my eighth, and final unfolding mystery of the day: the internet. This bold frontier of cyberspace has boomed in the past years. Well over 40 million people are now using this exciting new medium, and the number is expected to mushroom to 200 million by 1999. Some call the internet unique -- a totally new phenomenon. But is this true? Isn't the internet an exciting extension of a long line of evolving modes of communication and information technologies?

What we do know is that we need a fully developed internet to give us competition, deregulation, economic growth, social change, and high productivity. The internet can also change forever the anti-individual, exclusively mass market, conglomerate-dominated centralized control model of lowest common denominator content. The internet promises to replace this model with unrestricted capacity to send and limitless capacity to choose.

What can government do to promote these goals? It can't necessarily make the internet succeed. But it can be an obstacle to its success -- through unwise action and unwise inaction.

Let me give you some examples of what I see as unwise action. The first is the Communications Decency Act, which I was relieved to see overturned by the Supreme Court. The second is a new bill introduced by Congress in July called the Internet Protection Act. Though the stated aims of the bill are worthy, I think it would be grievous misstep for this to become law. In practical effect, the bill would let the local telephone companies overcharge internet providers, stymie access to local telephone networks, and prevent solutions to the Internet congestion that occurs today.

Now let me give you an example of wise action: Last spring, the FCC adopted rules that provide up to $20 billion in federal, state, and local funding over the next five years to link public schools and libraries to the information highway.

But more needs to be done to promote data networks such as the internet. We need a new law -- a Free the Internet Law. It can be blessedly short. Here are its key components.

First, the First Amendment should clearly protect internet content from government regulation.

Second, the FCC should have the power to order states not to regulate digital packet network services, whether offered by new entrants or incumbents. There are thousands of pages of state regulations that govern investment, pricing, service quality and almost every other aspect of the existing telephone networks. These are the rules the FCC should be able to order the states not to apply to the country's data networks.

Third, the data networks should be free from subsidy. They shouldn't pay into any subsidy pool and they shouldn't take out. Let the markets build them.

Fourth, the FCC should have clear authority to impose in every state policies that open any and all communications bottlenecks to competition.

A short and simple law along these lines would be a real Internet Promotion Act.

Technology and the marketplace are changing at breakneck speed. With these changes come new legal challenges and mysteries. To meet these challenges, we don't need priestly incantations. We don't need power politics and gamesmanship masquerading as legal principles. We need pragmatic answers that advance the public good as best we can. To get these answers, we will need smart, hard-working, fair-minded lawyers.

I hope I can count on you. Thank you.