Michigan State University
Lecture by Commissioner James H. Quello
University Club - October 23, 1997
"Broadcasting and the First Amendment"
It is a special treat for me to experience a semi-triumphant return to my and my wife,
Mary's, beloved alma mater.
I'm really glad to be here. Of course, as a fugitive from the actuarial law of averages, I
should be glad to be anywhere.
I have lived ten years beyond the average life expectancy -- a source of annoyance to
some in Washington.
But, I'm particularly glad to have lived long enough to benefit from the exciting
progressive transition at Michigan State. It is great to come back as a graduate of a thriving, big
university instead of a college, to a Big Ten university rather than a non-conference college.
And to come back as a former winner of an honorary MSU doctor's degree and a
distinguished alumni award.
Incidentally, at my first distinguished alumni award years ago, the Communications Dean
told me, "We were thinking of displaying a transcript of your college grades as an
encouragement to mediocre students."
Fortunately for me, Dr. John Hannah, then the legendary President Emeritus of MSU,
came to my rescue with, "We remember Jim. He spent more time on the college newspaper and
radio station than in class."
It is true that I gained more practical experience on the newspapers and radio station. But
in seeking a job upon graduation, my overall academic record required explanation and did not
help. The lone saving grace was that I needed a straight A average in the last term to have
enough credits to graduate. I promptly gave grades a primary priority. I asked the professors to
inform me any day my performance fell below A. I finally made it. Professor Linton, a great
teacher, a humane educator, was one of the professors who gave me an "A" in a prime 5 hour
course. So, every time I pass the Linton building, you will see me with a respectful bow and
thumbs up in memory of Professor Linton.
Anyway, with more mature afterthought, I should have prioritized good grades much
earlier in my academic years. Grades really count, particularly in landing that all-important first
job and in creating the initial good impression.
Incidentally, you may see me crossing myself or blowing a kiss when I pass the
impressive Olin medical center on campus:
Fortunate for me, Dr. Olin was a great humanitarian as well as an expert doctor.
I don't know what the rules are now, but back then if you exceeded the number of
permissible class cuts, you were automatically and summarily discharged from college.
I miscalculated the number of allowable cuts and found myself automatically thrown out
of college -- right during my flourishing college newspaper and radio career.
I made an emergency call on Dr. Olin -- He said, "James, what can I do for you my boy?"
I said, "You can keep me from being kicked right out of college by giving me a
retroactive excuse for the flu." I did try to convince him I actually had the flu.
After a well-deserved stern lecture, I received the very essential bona fide medical
excuse. So, Dr. Olin up there somewhere -- heartfelt thanks again and you richly deserve the
Lord's blessings that are being bestowed upon you now.
Dr. Olin also volunteered a frank critique of my scandal-mongering, widely-read column
titled, "The Spartan Oracle" -- In short; "gossipy, humorous and entertaining, but not exactly a
fount of wisdom." He was right again.
So, now as an alumnus, I do contribute what I can afford to the MSU fund drives -- not so
much for what the university did for me, but kinda in reparation for what I did to it.
However, you are not in attendance today to hear recollections of my college
communications adventures and misadventures, as fascinating as they are to me.
Today, we have a more relevant communications mission. I believe you are interested in
learning more about the FCC functions and its more contentious issues.
Your esteemed Dean of Communications, Jim Spaniolo, suggested that you might be
interested in my viewpoint on that contentious and pervasive subject, "Broadcasting and the First
My principal views were articulated in a speech titled, "The Reeding of the First
Amendment," which received considerable press coverage.
The speech presented opposition arguments to Chairman Reed Hundt's pro-regulatory
viewpoints, artfully expounded in several of his well-structured speeches.
Areas of contention that need clarification include: Should broadcast spectrum be
auctioned? Is allocating digital spectrum to broadcasting really "the biggest give-away in
history?" Should the allocation of digital spectrum to broadcasters be accompanied by additional
quantifiable public interest obligations?
And particularly, are additional regulations a subterfuge for more government control of
media? Are additional regulations which serve public interest "values" justified or supported by
the First Amendment? Is the government justified in protecting broadcast journalists from suits,
charges in exchange for government instruction on journalistic ethics to ensure more fair and
objective news reporting? Is the scarcity argument once used to justify broadcast regulation still
valid or reasonable in the multi-channel, multi-faceted communications advancements of today?
The new Commission may have to face the overall unanswered question of "What is the
proper role of government in regulating broadcasting in the multi-channel explosion of today and
Chairman Hundt and I have forcefully expressed opposing views on these issues.
We like to say we disagree without being disagreeable, but it could hardly be
characterized as the bland leading the bland.
I again laud the outgoing chairman as a dedicated worker, brilliant in understanding the
complexities of the computer industry, a formidable litigator, an effective public speaker and an
impressive FCC spokesman."
However, I must emphasize that there is a marked fundamental philosophical difference
in the way the Chairman and I view the First Amendment and the regulatory role of government.
This is what I was impelled to discuss in my previous speech -- and to repeat and update today
for the benefit of this audience and for any of the new Commissioners that may be interested.
First, I am afraid I have failed in convincing the former FCC Chairman and his followers
to change what many criticize as his over-regulatory fixation. For example, I can't understand
their longstanding aggressive PR campaign for additional quantifiable public interest
requirements for digital broadcasting.
After all, broadcasters initiated and developed HDTV and digital broadcasting over an
eight year period with huge investment in funds and executive and engineering talent. They
developed HDTV and digital to provide advanced improved video and audio for the public --
their customers. This new improved service in itself really serves the public.
I cannot understand the equity in rewarding the introduction of improved video and audio
quality which serves the public interest with additional quantifiable public interest requirements.
We must remember that all broadcasters already have longstanding existing statutory
public interest requirements that are conscientiously implemented by a great majority. Any
imposition of burdensome additional quantifiable public interest obligations for new costly
undeveloped services will impede growth, smacks of "big government." and could easily run
afoul of our most cherished constitutional rights -- the First Amendment.
DTV or digital broadcasting will initially be an expensive challenging exploratory
process. It should be encouraged in its development by limiting government intrusion.
A special commission formed by Vice President Gore is studying the extent and nature of
additional public interest obligations for digital broadcasting. In fact, it is possible that the new
FCC confirmed by the Congress as an independent agency could revise, reject or accept the Gore
Also, I cannot understand the logic in claiming it is a "give-away" to grant existing
licensees digital spectrum that they themselves develop. I don't see the equity in proposing that
existing licensees compete in auctions against subscriber supported businesses just to be able to
remain in business. Furthermore, broadcasters are merely being loaned the digital spectrum with
the requirements that the analog channels be returned for auction after digital is established.
Most TV licenses were granted in 1949 and 1950 and broadcasters lost money for years
in initiating TV services. Nothing happened to the initial TV spectrum grant until broadcasters
invested in acquiring property and buildings, buying equipment, hiring personnel and creating
and buying programs. Since that initial spectrum grant and TV pioneering, broadcasters have
paid the full marketplace price. Very few, if any, broadcasters today got their spectrum for free
and no one was initially granted a free solvent business.
We must also remember that it was the broadcasting industry that developed
technological and program production advances, not government financing, and certainly not
Broadcasters serve the public interest every day in ways in which no other medium or
business does. They provide news, information, emergency bulletins, documentaries and public
service announcements, entertainment, and education -- all free of charge. This year more than
ever broadcasters provided immediate life saving information on floods, tornados and other
natural disasters. No other medium can make that claim, and this tradition of free service is, in
itself, an important, underestimated contribution to the public interest.
Broadcasters contribute millions of dollars worth of public service programs and announcements
every single month. In fact, they could do a better job of informing the public and government
officials of their many public interest contributions.
From my experience in broadcasting, I can tell you that the great majority of broadcasters
make a commitment to community service over and above what the Communications Act
requires because it is good citizenship and because it is good business -- not because of FCC
regulations. And certainly not because broadcasting, the prime information and news medium,
has a government mandate to make a "social contract" with their communities, outlining how
many hours and what types of public interest programming they must air to mollify government
The simple fact is that broadcasters enter into a "social contract" with their communities
every day when they transmit their programs and the public votes its approval or disapproval
every day through audience ratings. Broadcasters depend on overall public acceptance for
In the multichannel world of today with cable, movies, DBS, the Internet, VCRs, along
with newspapers, sophisticated computer billboards, and magazines, it is disingenuous to center
blame for all society's ills on broadcasting. There are always other more immediate influences to
consider besides media -- like parents, relatives, friends, home environment, teachers and
But now back to my principal concern of this treatise -- the First Amendment and my
philosophic and regulatory differences or disagreements with the recent Chairman.
Last summer, Chairman Hundt made some positive sounds expounding First Amendment
rights. In an article published in BROADCASTING & CABLE, the Chairman wrote that "No
values in our society are more important than those advanced and protected by the First
Amendment." Then, the Chairman called for "a stronger and more well articulated set of First
Amendment principles for broadcast news."
This is good.
Or is It?
Pardon my negative reaction, but what can we make of these kudos to the concept of free
expression when they are made by a public official who conditioned network mergers upon
programming commitments; who campaigned vociferously not only for quantitative
requirements for children's TV, but for time and scheduling mandates, (eventually his children's
programming proposal was corrected to provide reasonable flexibility); who proposes to quantify
all public interest mandates; who plans to make broadcasters the universal donors for political
campaigns; who is proposing to restrict broadcasters' rights with respect to advertising; who
favors mandatory counter advertising; and who would compel licensees to program more PSAs
with the government having the role of casting director and script writer? Did the Chairman
have a sudden change of heart?
Let's face it. The record on First Amendment issues before this last Commission is well
documented and cannot be prettied up or explained away by a press release and a couple of
speeches. When it comes to controlling broadcasters' speech, the past three years have been the
most intensely regulatory of all the twenty-three years that I have been at the FCC. Fortunately,
many of the initial regulatory proposals by the Chairman were rejected by three Commission
votes (DARs, LMDS, DTV and the Chairman's first of the year "Spectrum Management White
So I will ask the question. What is one to think of the Chairman's statements praising the
First Amendment? Or of his personal creative interpretation of First Amendment "values." The
answer is to be found, I believe, by reading his statements carefully, and by reading them in the
context of his actions.
The difference in the way that the Chairman and I viewed the First Amendment can be
summed up in two sentences: First, I see the Bill of Rights as a limitation upon government
action; the Chairman apparently sees it as a regulatory mission statement. Second, I consider
freedom of expression to be the result of the government's abstention from editorial
decisionmaking; the Chairman evidently viewed it as a gift to be bestowed by politically
appointed bureaucrats on politically correct licensees for good regulatory behavior.
The first of these statements is borne out both by the Chairman's promotion of
government federal power to force broadcasters to carry programs on the subjects he considers
worthy, and by his many speeches and articles on the subject. In a BROADCASTING &
CABLE article, for example, after writing that First Amendment values are most important,
Chairman Hundt promoted using government power to compel free time for candidates,
additional and quantified public interest commitments for digital broadcasting and, of course,
quantified specific children's programming requirements. Such requirements, it was explained,
are consistent with First Amendment "values" because they promote an informed and educated
citizenry. Chairman Hundt said he saw no difference between the experiment in free time this
past election in which the networks and major broadcasters donated specified blocks of time for
the major presidential candidates, with a quantifiable obligation" for every licensee "to deliver
media access to all participants in federal elections."
But there is a vast difference under the First Amendment between being permitted to
speak and being forced by government to do so. Under this view of the Constitution, First
Amendment rights -- to be free from government intrusion -- can be limited or canceled, so long
as the intervention can be justified by pointing to First Amendment "values." The misguided
theory seems to be that so long as the government provides specific quantifiable program
requirements, and does not seek to impose its opinions on licensees, then even the most intrusive
rules can be described as pro-First Amendment.
Such theories are alien to our Constitutional system. If First Amendment imperatives,
designed to restrict government involvement with the press can be brushed roughly aside in the
pursuit of First Amendment "values," then it is time to rethink those values. There is no limit to
this justification for government action, and it really does permit activist bureaucrats to promote
their personal wish lists as if they were constitutional mandates. The novel "values" theory
seemed to be Chairman Reed Hundt's "reeding" of the First Amendment that was rejected and I
believe the courts will reject. After all, how much is enough? One day it is specific children's
programming accompanied by specific time and scheduling mandate requirements, then comes
free time for politicians, followed by mandatory public service announcements, quantified
additional public interest obligations -- and whatever else someone might describe as a First
A basic flaw in the Chairman's theories was they add up to the notion that for free speech
to exist, the government must regulate. This understanding of the First Amendment is exactly
backwards. As I said, the First Amendment is not a charter or a mission statement for more
regulation of the media.
The second major problem with the Chairman's approach was that he appears to believe
that free speech is something to be doled out to worthy recipients. In this case, much of what he
said sounds First Amendment friendly. In one of his speeches at the Museum of Television and
Radio, the Chairman praised broadcast journalism, noting that "this is the most well informed
nation in history because of TV." And he said that we need "a clear and absolute commitment
that government should never reward or punish a broadcaster for the content, point of view or
opinions that the broadcaster expresses."
So far, so good. But as if the desire to regulate is an impulse the Chairman just could not
resist, he then called upon "Congress or the FCC . . . to hold hearings on the topic of how
through regulation we could buttress the protection of TV journalists, to ensure that they go
about their business without being chilled by the threat of litigation."
Would all journalists be protected? When government is empowered to decide these
questions, it is doubtful. My respected adversary, Chairman Hundt said that as we offer such
protection "we should continue to expect the highest standards of integrity from them." He also
spoke of the need for journalists to be "fair," and after reminiscing about the Fairness Doctrine,
asked, "wouldn't we all benefit if there were some way to assure the public that news on TV will
be impartial and that opinions on TV will be balanced?" In the eyes of what beholder? Will the
politically appointed FCC be the judge?
According to this theory, the price of journalistic protection will be the obligation to be
"fair" and to have the highest ethics, as those terms are defined by the government represented by
the FCC. With friends like this, the First Amendments needs no enemies.
Even as the Chairman was praising broadcast journalism for creating the most informed
citizenry in history, he denigrated broadcasters for lacking the "richly developed sense of ethics"
of print journalists. In particular, he singled out the Washington Post and the New York Times
as having a strong sense of responsibility to the country. I agree with these two examples, but I
would add that many broadcasters also embody these ideals. Also, these two newspapers like
dozens of others are broadcast licensees in good standing.
A particularly good example is the donation of time by the networks for campaign
coverage in the last election. The Chairman thought it was such a good idea it must be
compelled -- I simply think it is a good example of corporate citizenship and responsible
programming, and a reason why the government should not interfere. It is worth remembering
that it was the existence of broadcast regulation that forced the networks to ask the FCC for
permission to provide extra campaign coverage in the first place. This is a powerful reason to
regulate less, not more, as the Chairman believes.
It simply is too dangerous to permit the government to define First Amendment
protection as applying to those with the proper government approved journalistic ethics.
As I said earlier, the First Amendment is a Constitutional guarantee not a gift to be
bestowed by politically appointed bureaucrats, and that includes me, for regulatory good
Not so incidentally, I have been asked how do I reconcile First Amendment values with
my obvious leadership in fining Howard Stern 1 million, 750 thousand dollars for indecency. As
I have mentioned before, Howard Stern had a right to be wrong, a right to ridicule government
officials and a right to be an insufferable smart-ass. (Now, I'm exercising my own First
Amendment privilege.) However, he did not have a right to violate established and court-approved rules supporting time constraints to provide a safe harbor for children.
Nevertheless, appeal of the FCC Stern decision would have provided a provocative court
Personally, I believe Howard is a raunchy, entertaining talent who could attract radio
audiences without pushing the indecency envelope.
Much has been said over the past three and a half years about broadcasters' obligations as
public trustees, but what about the obligations of public officials? We, too, are public trustees.
As government officials we are sworn to uphold the Constitution, and in that way we are called
upon to be guardians of the First Amendment. This calls for an extremely delicate balance and
common sense, because as regulators we are also authorized to exercise the power to regulate
some speech. How can we do both?
In the past, the Commission walked what reviewing courts have described as a
"tightrope" by first being aware when we were treading on dangerous constitutional turf. We
also sought to be sensitive to the First Amendment issues in the balance.
This meant regulating speech only when it was clearly authorized by Congress that we do
so, and even then regulating only to the extent necessary. It meant acknowledging that emerging
multi-channel, multi-faceted technology reduced the need to regulate, and that spectrum scarcity,
which was used to justify almost all of our content controls, is now a thing of the past. As a
result, the FCC could fulfill the public trust and its commitment to the First Amendment by
eliminating the government's detailed review of broadcast programming. And the courts have
discarded regulatory relics like the Fairness Doctrine and the Financial Interest and Syndication
We have entered a new multi-channel, multi-faceted media age in which abundance and
diversity -- not scarcity -- are the rule. Now in this intensely competitive communications
marketplace, is the time for the FCC to consider imposing fewer regulations on speech content,
not more as Chairman Hundt has advocated.
The Administration and Congress must have had the massive communications explosion
of the past three years in mind when they repeatedly proclaimed that the era of big government is
over. Is it over for everyone but the FCC? -- I have repeatedly asked that question.
I respect Chairman Hundt's drive, litigation expertise, and P.R. spins, but I strongly and
respectfully disagree with his subtle over-regulatory approach to First Amendment "values."
I ended my previous speech with, "I'm sorry I failed to convince you. With this
exposition, I present the case for what I believe is a valid, time honored, court accepted,
interpretation of the real value of the First Amendment."
Nevertheless, honest debates on this important contentious issues will continue. Many in
this audience will probably become involved. So, here today, I have expounded my viewpoint
and rest my case.