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April 5, 1998
The Public Interest Standard:
A New Regulator's Search for Enlightenment
(As Prepared For Delivery)
Good afternoon. I am delighted to have the opportunity to participate as a luncheon speaker in your forum on "Representing Your Local Broadcaster." So far today, you have had an opportunity to hear from a number of folks who are truly "in the know" about broadcast regulatory issues in Washington, including Chris Wright, the FCC's General Counsel, and Roy Stewart, the Chief of the Mass Media Bureau. They, and others, have covered a broad spectrum of specific topics ranging from the conversion to digital television to ownership and antitrust issues. Since I knew that the real experts were going to talk specifics, I decided to talk big picture about one of the most fundamental issues in broadcasting regulation -- how to apply the public interest standard.
When I first became aware that I might be nominated to a seat on the Federal Communications Commission, I was thrilled that I might be one of those charged with protecting and promoting the public interest. I had long known that the public interest was a pivotal part of communications regulation, but realized I was unsure what it really meant. I particularly wondered about the scope of the doctrine. I knew it was broad, but was sure that it could not be boundless. So, like a good lawyer, I hit the books and set out in search of the true meaning of the public interest. .
I turned immediately to the debates over the 1927 Radio Act on the floor of Congress. I was hopeful when I came upon remarks by Senator Clarence Dill, who was a leading expert on radio. His remarks surely would shed light on the standard=s parameters. I was left wanting, however, when I read his description of the breadth of the public interest. In his words: AIt covers just about everything.@ The standard would gain meaning, he went on, by the staffing of the Commission with Amen of big abilities and big vision.@ Well, I did not know how big my abilities or vision were, but I still wanted the job so I read on.
Surely a standard as vague and expansive as Senator Dill described would be an unconstitutional delegation of legislative authority, the law student in me said. The Supreme Court surely had spoken on the standard=s limitations. I turned to the Supreme Court reporters and read a trio of cases penned by the great jurist Felix Frankfurter that held that the public interest standard was not an unconstitutional delegation. Justice Frankfurter left me even more perplexed when I read his description of how to administer the standard: The Avagueish, penumbral bounds expressed by the standard of the public interest@ A[leave] wide discretion and [call] for imaginative interpretation.@ All this enlightened thinking apparently was reflective of the works of Dean James Landis of the Harvard Law School who believed that vague standards administered by enlightened wisemen was the best form for an administrative agency.
Having read the scriptures of Landis and Frankfurter suggesting that I would just know the right thing to do, I expected some sort of revelation, for I did not feel particularly enlightened after being confirmed by the United States Senate. The night after I was sworn in, I waited for a visit from the angel of the public interest. I waited all night, but she did not come. And, in fact, five months into this job, I still have had no divine awakening and no one has issued me my public interest crystal ball.
But I am here, an enlightened wiseman without a clue. The best that I can discern is that the public interest standard is a bit like modern art, people see in it what they want to see. That may be a fine quality for art, but it is a bit of a problem when that quality exists in a legal standard.
The lack of guidance leaves those governed by the standard at a loss as to how to structure their conduct to be compliant. And, I dare say, it invites mischief by regulators and politicians to advance parochial interests under the guise of public interest.
So, absent the revelation of great wisdom, I am stuck with what my parents and the schools taught me. And, as they taught me, if you want something done, you have to do it yourself. So, I set out to draft my own guiding principles for applying the expansive authority invested in the Commission and in me. Only by doing so, do I feel I can I execute this haughty responsibility without feeling my decisions are the result of nothing more than my personal preferences or the skillful lobbying efforts of the most effective special interest groups or politicians.
When a question is raised about the need for broadcast regulation in the public interest, I ask myself five questions: (1) Does the Commission have the authority to do what is asked; (2) Even if it does, is it nonetheless better to leave the matter to Congress or await more specific instruction; (3) Is the issue best addressed by a State agency or another Federal agency; (4) Should we address the matter at all; and (5) Would any action we take violate the Constitution. Let me elaborate.
1. Do we have the authority?
The first question that any administrative agency must ask itself before proceeding is whether or not it has authority to act. The FCC=s authority is strictly limited to that which Congress has delegated to it. I do not dispute that the public interest standard confers extraordinarily broad power on the Agency. Yet, one should not assume that the Commission is free to do whatever it wishes as a result. For one, we need to really ensure that the matter presented is about communications policy and not something else. There are many issues brought to the Commission which really are not communications issues, but other issues (public health, education, etc.) disguised as communications because they flow through or touch the electronic media in some way. Even under the broad public interest test, the matter at hand has to be a communications matter.
Though our public interest jurisdiction is broad, it is not limitless. We must always look further to see if Congress has spoken more specifically -- in the Communications Act itself or in other statutes, perhaps involving other agencies. These more specific directions may trump the public interest standard or curtail it significantly. For example, Congress has rightfully asked in the context of free air time for candidates whether the specific provisions dealing with lowest unit cost, bar free time under the broader general grant of jurisdiction.
2. Should Congress Do It?
The second question I ask is regardless of whether we have the authority to act in a given area, is it nonetheless better to leave the matter to Congress or await more specific direction from them.
I believe there are matters best left to Congress. That institution has a distinctly different dynamic than a regulatory agency. Its membership represents every state in the union and thus is capable of achieving broad national consensus. The Commission is much more limited. While expert in its own right, the five members of this body do not represent anyone, or any state and are unable to truly gauge and reflect the national will, except as it is derived from Congressional actions. Moreover, members of Congress are elected directly by the people, they stand before American citizens to have their actions judged. Who knows how FCC Commissioners get their jobs! We are appointed for a term by the President and confirmed by the Senate. Our actions are not directly evaluated by the public, but by politicians.
Given these differences, there are issues that are more suited for resolution by the Congress. Issues that require broad national consensus of both the industry and of the public should be handled by Congress. The FCC is very good at resolving matters that predominantly involve the competing interests of industry. FCC expertise allows it to engage and understand industry and sort through their conflicting claims, much more thoroughly than Congress. Furthermore, industry is quite attentive to the Commission because we are the people that can hold them accountable through our regulations and enforcement powers.
However, when broad national consensus is required of both industry and the public, involving an issue of great social, economic or political importance, the Congress should either take action or offer more specific directions to the Commission. While industry players have sufficient resources, information and access to the Commission to present their views. It is much more difficult for us to determine the "public's view" and factor that into Commission deliberations. Members of Congress are the ones that have direct access to the public through their respective constituencies. They visit citizens in their districts and it is their decisions that are subject to electoral ratification.
Occasionally, the FCC is confronted with a matter that profoundly impacts the foundations and mechanisms of the republic, because of its authority over the means of communication. I can think of no area more clearly the province of Congress. There are only three branches of government set out in the Constitution and we are not one of them. In battles of power between those branches, an administrative agency is well-advised to stay on the sidelines.
Similarly, the Commission should not intrude on the unique relationship between the legislator and his or her constituent. That is, the legislative and electoral process, and policies affecting them, must always remain the domain of elected officials. An agency should not tread here without very specific direction from those who depend on the process for their survival. Matters that are integral to how Americans choose their representatives are the business of those who must stand before the voters and answer for their actions not an unelected counsel of wisemen and women.
I believe, also, that we must take care that our actions not betray actions of Congress. If Congress has expressly declined to act or has demonstrated an unwillingness to do so, we should be restrained in our zeal to pursue such a policy. I vehemently reject the contention that the FCC is in place to do things for Congress that they can't or won't do for themselves. If Congress choose to expressly leave something up to the agency that is one thing, but invoking the general public interest standard to supplement Congressional authority is unconscionable.
3. Is this an issue more fitted for another agency?
This leads me to the third broad question in my public interest decisional schematic: Should another institution take the action?
To answer this question we must first consider who has legal jurisdiction. Even when we believe that we may have jurisdiction under the broad public interest standard, we should determine whether we share that jurisdiction with another agency or institution and, if so, whether that agency rather than the FCC should undertake the matter. In my view, where another agency has very specific statutory jurisdiction, we should seriously consider yielding to it, rather than exercising our broad public interest jurisdiction. It is a waste of time and resources for two agencies to regulate in exactly the same area.
When Congress has explicitly granted specific jurisdiction to another agency, it is fair to assume that it intended that agency to act, rather than the FCC under its 1934 broad standard. This is particularly true where the more specific grant has been conferred more recently than the 1934 Act.
It is also well-advised to yield when the other agency involved has the most appropriate expertise. Regulatory agencies have been long justified as bodies containing expertise particular to their field of responsibilities. Their employees and officers are chosen for their skills and acumen in the agency's area of expertise. An employee of the Federal Energy Regulatory Commission is no more uniquely qualified to pass on questions about labor relations than members of the National Labor Relations Board are to pass on energy issues. Thus, we must take stock of our mix of skills and talents and have enough humility to defer issues to other agencies or institutions that are more qualified to handle a matter than we.
The danger in a media culture with a commitment to free expression and ideas is that virtually any subject that is noteworthy is likely to be discussed, advertised and chastised through the electronic medium that the FCC regulates. However, simply because we regulate the means of output does not mean we are experts in the content of all messages that avail themselves of that output. The FCC is not staffed with public health experts, nor does it have attorneys specifically trained in the legal fields of false or fraudulent advertising. Thus, we should be hesitant to jump into issues with which we have no particular talent simply because it is broadcast or transmitted electronically in some other form. If Congress makes a judgment that the FCC should regulate in certain areas it can specifically invest us with that mission (which it has done time and again) and is in a position to authorize and appropriate the funds necessary for us to hire the personnel and regulate the field responsibly.
In addition to other Federal agencies, we should also ask ourselves if the problem is one that a State is better suited to solve. Though some federal regulators might do it differently were they privileged to have been at the Constitution Convention in 1787, we have a federal form of government that shares the governing between the states and the national government. It has always been understood that some things are best left to the states and other things are best vested in the national body. States are filled with very talented public-minded officials that are more than capable and often more suited to deal with many problems.
4. Should we address the issue at all?
And so, I come to the fourth question in my decisional schematic: Should the action be done at all? Is there a really a demonstrated problem? There are many ills in our society and many of them can be overlaid (sometimes fairly and sometimes unfairly) on the media. Yet, no matter how intuitively true a well-articulated fear may seem and no matter how sympathetic the cause, we must scrutinize carefully claims used to justify us taking action.
I would insist upon at least a prima facie case that there is in fact a problem, rather than unsubstantiated, and often emotional, appeals to us. I would require that such a case give some sense of the scope of the problem. If there is the potential for a problem, is it a widespread problem? Is it really affecting more than a handful of people? In a perfect world, we would aspire to prevent harm to even one individual in our society. But the cold reality is that that is impossible for the government to do, given its time and resources. Like in all endeavors, we must prioritize our actions.
There are many sympathetic tales brought before the Commission. And, there are many profound ills that inflict our society. But television and radio simply are not the source of all societies problems. Even if what is portrayed on television encourages or perpetuates some societal problem, we must be careful in invoking our regulatory power. Very often our public interest policies though noble in design, really fail to make a substantial impact on the problem and thus it is hard to justify their regulatory costs. I am skeptical of policies that make us feel like we have done something, that have great symbolic value, but which in reality have very little impact.
There is another very important aspect to whether we should be acting at all: does the FCC have the time or resources to do what is being asked? As an arm of government we have responsibility to use the taxpayer's money wisely. There are more good ideas in this world than there is time, money, or personnel to tackle. Thus, we should always question whether the expense of time and significant resources necessary to structure, implement, and enforce a regulatory regime is justified by the proposed regulatory act. This is especially true at this moment as we try to drink from the firehose of telecommunications change, turned on by the Telecommunications Act of 1996.
On this point of time and priorities, I am critical of those that urge us to simply "open an inquiry." They maintain rhetorically, "what does it hurt." The real answer is that it costs money and other resources that could be used elsewhere. We are not the Federal Research Agency. Our staffs should not be used lightly to go fishing to cull out the possible dangers of this or that. This is a time of tremendous change in our industry. There simply are not enough hours in the day for us to lend our institution to those who wish to build a record in areas where our jurisdiction or expertise is limited. We can barely keep up with the things we have been specifically instructed to do.
5. Is it Constitutional?
The final question I ask myself is whether the considered action would be Constitutional. I hope you have noticed that this is the last question I ask. Not because it is last in importance, however. I save it for last, because I think too often in public interest debates people hide behind the First Amendment. Rather than tackle whether a policy is warranted or not they take solace on one side or the other of the constitutional question. Just because a policy is constitutionally permissible does not make it a sound one. Thus, even if one is convinced that the Constitution is not a bar to developing a policy, one must nevertheless consider whether the regulatory policy actually provides greater benefit to the public than it imposes costs or harm.
I want to also say of the First Amendment standard that I personally believe there is only one of them. I do not believe that the growing convergence of technology will allow us to continue to maintain two First Amendment standards, one for broadcasting and one for every other communications medium. I sincerely question how long we can continue to maintain in the face of technological convergence that broadcasting is uniquely undeserving of full First Amendment protection. Technology has evaporated any meaningful distinctions among distribution medium, making it unsustainable for the courts to segregate broadcasting from other medium for First Amendment purposes. It is just fantastic to maintain that the First Amendment changes as you click through the channels on your television set.
Let me conclude by saying that until I find the path to greater enlightenment, I will be following the decisional schematic I have outlined when considering public interest questions. It has been a pleasure being with you and I thank you for your attention.