[ Text Version | Word 97 Version ]

December 15, 1999


Re: Notice Of Inquiry, In the Matter of Public Interest Obligations of TV Broadcast Licensees

Although I join with my fellow Commissioners today in adopting this Notice of Inquiry, I do so with the concerns and reservations outlined in this statement.

As an initial matter, I am unpersuaded that the time is ripe for this Notice of Inquiry (NOI). Undoubtedly, there are important questions concerning the application of existing public interest obligations to the new digital medium. Digital transmission affords the opportunity and flexibility to offer HDTV, several standard DTV channels, ancillary services and any combination of them all. These new possibilities raise questions as to what facet of a multidimensional offering the public interest duty runs. Yet, we are at the very preliminary stages of the digital transition, and it is far from clear what form new services will take in the digital era. While I applaud the uncustomary effort to get far in front of the curve, it seems to me premature to attempt to fix public interest obligations to a service that has yet to blossom. The wiser course would have been to initiate this inquiry at a time when we understand more about the proposed or likely applications of digital television so our proposal would bear some plausible nexus to the service itself, rather than its potential.

I am reminded of the designers of the Empire State Building in New York City, who designed a building that, at the time, was the tallest man-made structure on the planet. In designing the building, the designers took into account features that might be needed for such a world-class structure. One of the most visionary features was a mast for mooring dirigibles atop the Empire State Building that would be used by dirigibles carrying passengers visiting the City. Needless to say, mass transit by dirigible never came to pass, but its prospects were well anticipated by the designers of the building. I have some reservation that some of the proposals floated in the Notice of Inquiry may one day suffer the same fate as the Empire State Building's dirigible mast.

Further, as a fundamental matter, I question why the mere use of a digital medium rather than an analog one justifies new public interest obligations, particularly ones of the breadth and scope envisioned in this NOI. Underlying many of these proposals seems to be the supposition that we gave broadcasters valuable spectrum for free, and thus we want payment in the form of new obligations. Yet, the government had the option to make broadcasters pay for their spectrum, and chose not to I assume because it believed the "public interest" was served by advancing free over-air-television. Thus, I recoil somewhat from the view that the transition to digital (and its putative commercial value to broadcasters) justifies consideration of new and expansive public interest duties.

Moreover, I believe that as we undertake this inquiry we have a solemn obligation to evaluate honestly the extent to which scarcity can still justify greater intrusion on broadcasters' First Amendment rights. It is ironic to me that as we enter the digital age of abundance and tout its myriad opportunities for more information through more outlets, we simultaneously propose greater public interest obligations that infringe upon speech, justified on the crumbling foundation of scarcity. Something must give.

Finally, this item seeks comment on a vast menu of proposals loosely aggregated under the heading of "political discourse." In their various iterations, these proposals contemplate the Commission requiring broadcasters to provide time for "candidate-centered discourse" or other types of air time under the mantle of the public interest standard. I have made no secret of my views concerning the appropriateness of the Commission initiating an inquiry into free air time for political candidates, without specific direction from Congress.(1) The Commission here avowedly promises not to propose such rules or polices, however, but only to initiate public debate on "whether, and how, broadcasters' public interest obligations can be refined to promote democracy and better educate the voting public." In light of this promise, and because I do not make a habit of dissenting on the initiation of inquiries generally, I have not dissented on this portion of the item.

I fully recognize that the expense of political campaigns, particularly broadcast air time, has a direct impact on democracy by affecting those who can run for and win political office. It may very well be the case that digital transmission technology holds promise to greatly reduce these expenses in a way that does not unduly interfere with the reasoned editorial and business judgments of broadcasters. Yet, putting aside the question of our authority, I feel strongly that a federal agency of un-elected officials should not on its own initiative tread in an area that may fundamentally affect the electoral process. Such modification or reform should come from the people through their duly elected representatives in Congress. It is even more troubling that an agency would pursue such questions, when the issue has been raised and debated by the Congress, but has to date been rejected, as is the case with this bevy of issues. Such action risks opening a back door to the legislative and electoral process. That said, to the extent the inquiry will develop useful information that proves useful to the legislature's consideration, I am unopposed.

For the foregoing reasons, I concur in the Notice of Inquiry.

1    Remarks of Commissioner Michael K. Powell before The Freedom Forum, April 27, 1998. The full text of these remarks is available on the Commission's website <www.fcc.gov/Speeches/Powell/spmkp809.html>. Press Statement of Commissioner Michael K. Powell Regarding Free Time for Candidates, January 28, 1999. The full text of this press statement is available on the Commission's website <www.fcc.gov/Speeches/Powell/Statements/stmkp802.html>.