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Federal Communications Commission
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Washington, D.C. 20554
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Internet: http://www.fcc.gov

This is an unofficial announcement of Commission action. Release of the full text of a Commission order constitutes official action. See MCI v. FCC. 515 F 2d 385 (D.C. Circ 1974).

August 11, 1997


Re: In the Matter of Repeal of Modification of the Personal Attack and Political Editorial Rules

The Commission has before it a proceeding to determine whether the personal attack and political editorial rules should continue. Changes in technology, the political process, and the needs of the public make it appropriate for the Commission to review the purposes and effects of these rules. I believe that these changes are insufficiently understood with respect to the two rules, and that therefore we should seek prompt but ample further comment.

In general, I think a Commission inquiry into the use of the public's airwaves to further the process of full and fair political debate is long overdue. President Clinton called just last week for the Commission to commence an inquiry into the possibilities of using the public's airwaves for free and reduced rate access for political candidates. I think the same inquiry rationally should examine the political editorial rule and the personal attack rule.

It certainly is difficult to conceive of a more important purpose for free, local, universal television than its role in promoting democracy. It is also plain to even the most casual observers of politics and even the most occasional watchers of television that the ways candidates and issues appear on television, and the effects of television on the political process, have changed substantially, for better and for worse, since these rules were drafted. Even more obvious is the way that paid access to television has become one of the most troublesome necessities of American politics. It is virtually impossible to run for election by a large constituency without devoting an inordinate amount of time to the task of raising increasingly impossible sums of money to buy television time. Meanwhile, the nature of political discussion, debate, and comment on radio and television outside of paid time has changed radically.

All these changes amount to a metamorphosis in the relationship between the uses of the public's airwaves and politics since the long-ago days when the country first realized that television had swayed voters to Jack Kennedy, radio to Richard Nixon, and newspapers to both. Because Kennedy won, television was deemed the triumphant medium, for the first time in politics. Our ruminations about the significance of this well-documented event are now relegated to the ancient history of both politics and television. Yet the Commission has not in recent times looked comprehensively at the implications of the transformations in the subtle, critical, and often justly criticized triangular relationship among television, money, and politics.

An inquiry of an appropriately neutral, fair, open, nonpartisan, and broad dimension is in order. Indeed the current Commission unanimously voted for an inquiry on the full extent of the public interest duties of broadcasters in the digital age when it granted the multibillion dollar gift of digital TV spectrum to current analog broadcasters. That inquiry was intended specifically and clearly to include the political debate issues that are implicated in today's decision. It should be launched.

Another aspect of that Public Interest Notice of Inquiry should be a reexamination of the Commission's 1987 decision in Syracuse Peace Council. In that decision, the Commission gratuitously took up the issue of what standard of review should apply to the broadcast medium under the First Amendment. Upon review, the Court of Appeals for the D.C. Circuit declined to reach that conclusion by the Commission -- a conclusion that is inconsistent with repeated statements by the Supreme Court.

Since 1987, the Commission itself has clearly retreated from the position taken in Syracuse Peace Council. For example, the rules recently written to implement the Children's Television Act plainly and properly follow the standard of review for broadcasters that has been set by the Supreme Court, rather than that articulated in the Syracuse Peace Council dicta. The Supreme Court, of course, has repeatedly pointed out that the nature of broadcasting warrants a special standard of review for the broadcast medium, as recently as this last term's decision in Reno v. ACLU. Our overdue Public Interest Notice of Inquiry should address the implication of recent decisions on that aspect of Syracuse Peace Council.

In our Public Interest Notice of Inquiry, we should also take account of the current nature of the video marketplace. Many more people continue to seek to acquire broadcast licenses, and the right to broadcast, than do obtain them. That is a scarcity issue. Moreover the digital TV proceeding limited, as opposed to expanded, the number of analog TV licenses that physically can be granted. By dint of Congressional decision, the digital television spectrum grant therefore did nothing to increase the number of voices in the marketplace and nothing to reduce spectrum scarcity for free, broadcast television. This is another aspect of the inquiry that the Commission should undertake.

Furthermore, the Commission should take this inquiry beyond an examination of the issue of spectrum scarcity. Scarcity is not the only justification on which we can appropriately base minimal, nonburdensome requirements for broadcast licensees to serve the public interest, such as the requirements imposed by Congress on cable (e.g., must-carry and "PEG" obligations) or on direct-to-home satellites. See Time Warner Entertainment Co. v. FCC, 93 F.3d 957 (D.C.Cir. 1996).

There is a line of cases under Supreme Court's public forum doctrine that permits government regulation of speech activity on certain types of public property. The appropriateness of their application to broadcasting should be considered. It is also worth considering whether a quid-pro-quo approach or conditional license approach is a sound legal principle for guiding future Congressional and Commission treatment of broadcast licensees.

Yet another line of discussion lies in the notion that the First Amendment directs the government to promote robust public debate on public issues. The marketplace alone will not ensure that every kind of valuable speech is provided. Many, such as Professor Cass Sunstein, argue that the values embodied in the First Amendment should be furthered through content-specific, though viewpoint-neutral, rules. A similar argument underlies, for example, the Commission's unanimously voted children's educational and informational television rule of 1996. Does the theory of that vote, in which all members of today's Commission concurred, suggest that when market forces do not promote appropriate and necessary opportunities for fair political discourse on television, some minimal, nonintrusive, and viewpoint-neutral rules to correct for such market failure are constitutional and indeed desirable?

The inquiry that I, this Commission, many Members of Congress, and most important in my view, the President, have demanded must be seen in the context of the broadcast industry's aggressive, persistent, and successful promotion of its own commitment to use the public's airwaves to serve the public interest. Because of advocacy by not only the United States government, but also by the broadcast industry, the courts repeatedly declare the broadcast medium as specially deserving of commercial benefits granted by law and regulation, and deserving of special legal treatment as the carrier of special public interest duties. The Supreme Court's recent Turner II decision upholding broadcasters' must-carry rights is just one example. What are the implications of the broadcasters' arguments on the definition of their duties to promote, protect and further democracy in America?

These issues are important to our democracy, and from a constitutional perspective they are non-trivial. They should not be addressed by glib, nonfactual, unsupported statements that scarcity does or does not exist; that the First Amendment says one thing or the other; that there is or is not adequate diversity of viewpoint in television; that there is or is not sufficient access to free television for candidates or issues. The Commission cannot with any level of intellectual honesty report to Congress or the country on the facts and the law relating to these crucial issues without voting for a respectable, even-handed, all-questions-asked inquiry. The Public Interest Notice of Inquiry should articulate with academic rigor all relevant issues and invite a full exploration by academics, public interest citizens' groups, affected industries, all political parties, and indeed all citizens. Using everything from the Internet to personal visits, all should comment, and a responsible, honest report should be written about how the public's airwaves are used and ought to be used to make our glorious and on-going experiment in democracy work better and better.

I believe that the personal attack and political editorial rules should be considered comprehensively in that context. It might well be that after appropriate consideration, including but not limited to consideration of the impact of digitization of television, the Commission would include that the existing and arguably antedated formulation of the personal attack rule or political editorial rule does not further the goals it was intended to promote. Perhaps the Commission would then change or repeal the rules. However, further inquiry is appropriate, has already been promised by this Commission, and should be made.

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