June 12, 1997
Re: Proposed Notice of Inquiry
Broadcast Advertisement of Distilled Spirits
I cannot support the issuance of a Notice of Proposed Rule Making on Broadcast Advertisement
of Distilled Spirits because I believe that the Federal Communications Commission lacks
jurisdiction to consider the subject matter. I believe that a significant measure of our duty as
Commissioners to seek and serve the public interest in our decisions is to refrain from regulating
wherever possible and certainly where we are not authorized to act.
I am not an attorney so I do not intend for the following to be a treatise on the legal concept of
"jurisdiction." Nevertheless, after twenty-three years of service on the Federal Communications
Commission, including almost one year as Chairman, I have heard countless arguments on legal
concepts and am required to make judgments based on them in fulfillment of my oath of office.
Accordingly, I will offer my views as a Commissioner entrusted to vote on such matters.
It is precisely because I want to see the issue of liquor ads on TV responsibly and effectively
handled that I do not support engaging the FCC's investigative, rule making, or hearing processes
in what I fear would ultimately be a futile, and possibly counterproductive, effort to devise an
FCC mandated regulatory "solution." As I stated when this issue first arose: "In my view, the
issue is not whether something must be done, but rather who can most capably do it."
This issue is undeniably important. What is equally clear to me is that this Federal
Communications Commission is an unauthorized forum. We lack jurisdiction and no amount of
hectoring from the Chairman's supposed "bully pulpit" can change that. The good news is that
the matter is being handled competently by the FTC, an agency that has the requisite jurisdiction
and expertise. The only down side is that the FCC will not get to claim credit for resolving the
issue. When balanced against an unauthorized and unwise foray into jurisdictional power
grabbing, that is a result that I can support.
Jurisdiction is a fundamental precept to regulatory action. Jurisdiction must be conferred by
legislative enactment. It must not be "bootstrapped" from an overly expansive reading of general
regulatory oversight authority. It is not the importance to society of a particular subject matter
that, ipso facto, gives a particular agency jurisdiction to investigate. Accordingly, jurisdiction
cannot be obtained by one of the regulators -- who should retain impartiality -- conducting a public
Jurisdiction over the subject matter at hand is the condition precedent to lawful action. A body
acting in a regulatory capacity either has it or does not. Unlike judicial tribunals that are
elucidating constitutional issues, regulatory bodies should tread very carefully when entering the
arena of "penumbras and emanations." I am hesitant to infer jurisdiction from general
pronouncements. I prefer to read the enabling statute and give the words their plain meaning. Put
simply, jurisdiction is given in the statute or it is not. We either have it and can exercise it at our
discretion or we do not and must not.
Regulatory bodies are the creation of the body politic. They are endowed with carefully
circumscribed authority to perform certain roles that individuals in society deem more efficiently
accomplished by their representative acting in their behalf rather than individually for themselves.
Regulatory bodies are the result of statutory enactments. Agencies derive their very existence and
their authority from the enabling statute. Before this or any other commission or agency may act,
it must have authority to proceed. It is because I am convinced that this Federal Communications
Commission does not have such fundamental authority to exercise power to investigate the
advertising of distilled spirits on television that I have taken the extraordinary action of voting
against inquiring into the issue and, furthermore, have taken the equally extraordinary step of
issuing the instant Statement to put forth my reasons.
I am fully aware that the Federal Communications Commission has "[F]ull authority and power
at any time to institute an inquiry, on its own motion, [but only] in any case and as to any matter
or thing concerning which complaint is authorized to be made, to or before the Commission by
any provision of this Act . . . ." (1) As I have explained previously in a letter to Ranking Member
John Dingell in response to his inquiry regarding the FCC's jurisdiction to inquire into the
advertising of distilled spirits:
[T]he Commission does not possess sufficient express authority under its
statutory mandate to pursue the complex facts or balance the competing
interests necessary to resolve this issue. The First Amendment's protection
of commercial speech and the specific provisions in the Communications
Act proscribing censorship are well known. Crucially, the FCC has never
before taken action concerning TV advertising without a specific mandate
from Congress. In sum, absent a more specific mandate from Congress,
this controversy appears to be outside the FCC's jurisdiction and expertise.(2)
In the absence of explicit statutory authority, agencies are not free to impose limits on advertising
by cobbling together general assertions of "public interest" based on particular health effect
characteristics of the product. A federal court recently held that government assertions as to the
"unique" nature of a product and the alleged mandate to protect children do not confer statutory
authority to regulate advertising where none exists.(3) Similarly, the courts have limited this
Commission's ability to unilaterally assert jurisdiction over programming matters in the absence
of an express statutory grant.(4) This restriction on the FCC's authority to interfere with
programming content decisions applies both affirmatively and negatively; that is, we are limited
in what we may approve and what we may preclude. In ruling on the 1992 Cable Act, the U.S.
Supreme Court stated that,
The FCC's oversight responsibilities do not grant it the power to ordain any
particular type of programming that must be offered by broadcast stations.
The Commission may not impose upon them its private notions of what the
public ought to hear.
Over zealous exercise of expansive and ill-defined regulatory powers would quickly descend into
the realm of the ludicrous. For example, the public has recently become concerned about the
safety of air bags in the proximity of children. Well, automobiles are advertised on television, are
they not? Are we, the Federal Communications Commission, to therefore, open an inquiry into
the matter? Can we thereby distinguish between one or another automaker as to which entity falls
within such asserted yet nebulous regulatory ambit?
I view this example as de minimus extrapolation of the arguments of those who urge jurisdiction
upon us in the matter of the effect on children of the advertisement of distilled spirits on television.
The jurisdictional nexus proffered by those who would have the Federal Communications
Commission act on the issue of the permissibility of advertising of a legal product -- as are
distilled spirits -- in the absence of an explicit legislative mandate is tenuous at best and trivializes
This example is not intended to make light of the seriousness of underage drinking. The tragic
consequences of such illegal behavior are well known. I believe that the concerns expressed in
the letters to this Commission asking that we pursue this matter are deeply-held, well-founded, and
well-articulated. Unfortunately for those who would urge us to act precipitously and outside the
scope of our authority, they are equally mis-directed.
This is not to say that those who are concerned about the subject of the effect of television
advertising of distilled spirits on children are without remedy or recourse. Far from it. The FCC
has an existing inter-agency agreement with the Federal Trade Commission under which our sister
agency has the responsibility of investigating advertising practices and making recommendations
to us for appropriate action within our jurisdiction, if warranted, upon evaluation of their
findings.(5) The FTC is already conducting an inquiry comprising two investigations into the
advertising of alcohol based products. It would be wasteful for this Commission to expend limited
resources on duplicative efforts.
The Federal Communications Commission has a very full agenda. We have only just completed the initial steps in implementing the most sweeping overhaul of regulatory authority, embodied in the Telecommunications Reform Act of 1996, that I have encountered in my lifetime first as
a broadcast executive and now as a Commissioner. We are not an agency in need of additional
work or one looking for something to do to justify our existence.
Moreover, the issue is already being addressed in a forum of competent jurisdiction. I have no
doubt that the FTC will resolve the matter consistent with the public interest. Nevertheless, if
others perceive a gap in governmental responsiveness, Congress, as the duly elected
representatives of the people, can exercise its legislative prerogative to inquire into the matter on
its own as a prelude to legislation or to grant this or some other commission explicit jurisdiction
to regulate on this subject. Until such time, I will continue to vigorously oppose efforts to engulf
the Federal Communications Commission in a matter beyond its historical expertise and
The authority of Congress to conduct wide ranging investigations into issues of national concern
such as the health effects of the advertising of a particular product and to fashion an appropriate
legislative response is plenary and beyond peradventure. By contrast, this Commission has long
recognized that we lack expertise to adjudge the health effects of broadcast advertising. Over two
decades ago we stated that:
If in the future we are confronted with a case similar to that presented by
the cigarette controversy, it may be appropriate to refer the matter to
Congress for resolution. For Congress is in a far better position than this
Commission to develop expert information on whether particular broadcast
advertising is dangerous to health or otherwise detrimental to the public
interest. Furthermore, it is questionable whether this Commission has a
mandate so broad as to permit it "to scan the airwaves for offensive material
with no more discriminating a lens than the 'public interest' or even the
I find it significant that many Congressional leaders agree with my interpretation of our
jurisdictional boundaries. Moreover, the Committee Chairman cancelled the proposed hearings
on liquor advertising when the major networks agreed that they would continue to abide by the
voluntary ban and not carry such advertisements. In cancelling the proposed hearing, Senator
Conrad Burns, the Chairman of our oversight subcommittee cautioned Chairman Hundt in the
strongest possible terms against, "[Y]our repeated attempt to assert jurisdiction over the
advertisement of various legal products . . . ."(7) Senator Burns concluded that, "[A]ny further
investigation of this matter by the FCC would be inappropriate and would be a waste of the FCC's
resources." Additionally, there is no doubt that Senator John Ashcroft, Chairman of the Senate
Committee on Consumer Affairs, Foreign Commerce and Tourism, agrees that the FTC rather
than the FCC has jurisdiction over liquor advertising. Senator Ashcroft concluded in a letter to
the Chairman of the Federal Trade Commission, Robert Pitofsky, that, "[T]he FTC appropriately
regulates the advertising of alcoholic beverages on television."(8) The Federal Communications
Commission also responded to a detailed set of questions from John Dingell, the Ranking Member
on the House Committee on Commerce, the clear import of which was to inform the FCC that we
did not have jurisdiction to investigate the advertisement of a legal product.(9) Congressman Dingell
noted that in creating the FCC:
Congress also carefully limited the Commission's authority. For example,
Congress has never given the Commission the ability to censor specific
programming or advertising; to prohibit or limit broadcasters' ability to air
commercial advertising; or to prohibit or limit particular advertising of
products or services legally sold in interstate commerce. It is unclear that
Congress could give the Commission the ability to do any of these things
in a manner consistent with the First Amendment. Even in those limited
instances where the content of broadcast advertising, or the specific
products or services that may be advertised, is regulated or prohibited --
including obscene or indecent advertising, prohibitions on gambling
advertising and public broadcasting underwriting, and cigarette advertising
-- it was Congress that required the Commission to act. Id.
I concur in the judgment of key Congressional leadership that the matter is being responsibly
addressed in another government agency with clear jurisdiction and that the major networks are
acting in a responsible manner in maintaining their voluntary commitments. I will not countenance
intrusive regulatory micromanagement by this Commission masquerading in the form of
government directed "voluntary" commitments.
I am particularly suspect of regulations, characterized as "voluntary" or not, that could easily run afoul of the First Amendment. It seems to me that those who want us to "investigate" this issue are in actuality seeking mandatory content regulations. The Supreme Court of the United States recently held that liquor advertisements are "protected speech" within the contours of the First Amendment.(10) In 44 Liquormart Inc. v. Rhode Island, the Supreme Court unanimously affirmed
the alcohol industry's commercial free speech rights in granting price advertising for alcohol
products the same First Amendment protection given other legal products and services. On the
other hand, the First Amendment does not convey unlimited rights to any speaker, commercial or
I continue to hew to my judgment that, "The issues raised by hard liquor advertising constitute a
very difficult legal and factual no-man's-land."(11) I am deeply concerned about striking a proper
balance between free speech and the protection of our children, but I firmly believe that the
Federal Communications Commission does not have the jurisdiction to strike that particular public
interest balance. I am unaware of any legal authority for the FCC to undertake the exercise of
rendering expert judgment or evaluating claims concerning the alleged harmfulness of liquor
advertisements. The FCC has no established expertise in this area, and this is neither the time,
nor the forum, nor the controversy for this Commission to try and learn about such matters,
particularly given the other immense challenges confronting this agency.
I am all too aware of the high level of Commission resources that may be drawn into a debate over
appropriate social policy with respect to "protecting" children. In view of the Commission's
recent experience in this regard, I do not support committing any Commission resources to
attempting to render expert judgments or evaluating claims concerning the harmfulness of liquor
advertising or to even "merely gathering information" that would lead to the expectation that this
Commission would do so.
The Court of Appeals for the District of Columbia recently warned this very Commission that,
"[I]t goes without saying that the bald assertion of power by [an] agency cannot legitimize it."(12)
The Court "categorically" rejected the suggestion that, "Unable to link its assertion of authority
to any statutory provision, the [FCC's] position in this case amounts to the bare suggestion that
it possesses plenary authority to act within a given area simply because Congress has endowed it
with some authority to act in that area".(13)
I intend to heed this clear and emphatic warning from our reviewing court. Our regulatory
authority, indeed duty, to ground our decisions regarding broadcast licensees firmly in the public
interest does not confer upon us the power to range afar and conduct "fishing expeditions" to
gather information outside that narrow and explicit grant of power. This issue of the potential
effect on consumption of alcohol by minors as a result of advertising on the broadcast medium is
far too important to subject the parties to a duplicative and unproductive "dog and pony show" that
is merely window dressing and distracts from the efforts of an on-going investigation being
conducted by an authorized entity.
As part of the Chairman's public relations campaign to hype this issue he has asked rhetorically
how those who oppose his power grabbing machinations would respond to those who have
petitioned this Commission to address the issue of broadcast advertising of distilled spirits. My
answer is plain and direct. I congratulate the President, Members of Congress, and concerned
citizens for articulating the importance of the issue and direct their attention to the Federal Trade
Commission for resolution of the on-going investigations. In that forum they will have ample
opportunity to shape public policy in an authorized venue.
I have said it before but it bears repeating, I thought the era of "big government" was over. Why
then does the Chairman demagogue this issue by seeking duplicative government efforts,
particularly in an unauthorized body? I will not be bullied into opening an FCC investigation on
this subject -- an action which I firmly believe would violate administrative and Constitutional
principles -- by the efforts of some to paint me as anti-child, or insulting to other officers of the
government, or somehow a bad Catholic. Ad hominem attacks do not jurisdiction make.
Accordingly, I support the decision to pull the draft NOI on Broadcast Advertisement of Distilled
Spirits from the agenda for the upcoming open meeting of the Federal Communications
Commission. I eagerly await the results of the Federal Trade Commission investigations on this
topic and will be guided by their expert analysis and recommendations.
1. 47 U.S.C. 403, Communications Act of 1934, as amended, (emphasis added).
2. Letter from J.H. Quello to Hon. J.D. Dingell (Jan. 31, 1997).
3. Coyne Beahm, Inc. v. FDA, 958 F.Supp. 1060, 1083-1086 (M.D.N.C. 1997).
4. See, e.g., FCC v. Midwest Video Corp., 440 U.S. 689 (1979).
5. Copy of Inter-Agency Agreement between the FCC and FTC attached.
6. The Handling of Public Issues Under the Fairness Doctrine and the Public Interest Standards of the Communications Act, 48 FCC.2d 1, 25 n.22 (1974), aff'd, National Citizens Committee for Broadcasting v. FCC, 567 F.2d 1095 (D.C. Cir. 1977)(quoting Banzhaf v. FCC, 405 F.2d 1082, 1099) (1968), cert. den., 396 U.S. 842 (1969).
7. Letter from Hon. Conrad Burns to Reed Hundt (April 14, 1997)(copy attached).
8. Letter from Hon. John Ashcroft to Mr. Robert Pitofsky (March 21, 1997)(copy attached).
9. Letter from Hon. John D. Dingell to Reed Hundt (January 2, 1997)(copy attached).
10. 44 Liquormart Inc. v. Rhode Island, 116 U.S. 1495 (1996).
11. Press Statement of Commissioner James H. Quello (Nov. 18, 1996).
12. COMSAT Corp. v. FCC, No. 96-1325 (May 30, 1997) citing with approval, Railway Labor Executive Ass'n v. National Mediation Bd., 29 F.3d 655, 669 (D.C. Cir. 1994)(en banc).
13. Id. (quoting Railway Labor Exec. Ass'n v. Nat'l Mediation Bd., id. at 670)(emphasis in original).