[From the Wall Street Journal, July 24, 1996]

The FCC's Regulatory Overkill

(By James H. Quello)

President Clinton has summoned broadcasters to the White House for Summit on Children's Television next Monday. I hope the president uses this highly visible event to set the stage for creating sensible, effective rules to implement the Children's Television Act.

The Federal Communications Commission, charged with developing the actual rules, has been trying to agree on "processing guidelines"--rules that would require broadcasters to air three hours of kids' educational programming per week. All four commissioners favor the concept of guidelines and a three-hour rule. But some of us believe that for the rules truly to be "guidelines" they must contain a reasonable degree of flexibility. The proposed rules the FCC is now considering are so rigid that they look more like government edicts than true guidelines. Indeed, taken in their entirety, these rules are as intrusive and overregulatory as anything I have witnessed in more than two decades at the FCC.

In their present form, these "guidelines" would have a legal challenge--and probably would be held unconstitutional. They dictate in such detail that they amount to a form of content control in which the FCC cannot legally engage.

For example, the draft rules would allow only regularly scheduled, half- hour programs to be counted for purposes of satisfying most of a broadcaster's three-hour children's programming requirement. This would severely constrain stations' ability to broadcast both programs shorter than 30 minutes and specials like President Clinton's hour-long talk with American schoolchidren--not because they aren't educational but simply because they don't fit the FCC-decreed format.

Television licensees would also have virtually no incentive to finance the broadcast of educational shows on local PBS stations. This would eliminate any realistic possibility that commercial broadcasters would contribute to the development of new noncommercial children's programs like "Sesame Street."

On top of these arbitrary rules are page after page of even more burdensome and pointless ancillary requirements. There are rules on how often the FCC- sanctioned programming must be shown each season, on how many times it can be pre-empted, and on what time of day it can be broadcast in order to qualify.

There is a new rule requiring all 1,444 television stations to file paperwork with the FCC every three months--even though the exact same paperwork must be made available on request at the TV station's local office.

On and on it goes, for over 100 pages and 200 paragraphs--an intrusive and meddlesome regulatory mess never envisioned, let alone sanctioned, under the Children's Television Act.

In fact, Congress seemed to have just the opposite in mind when it passed the act in 1990. The legislation itself does not require any prescribed number of hours or specific types of programming. Its champions in both the House and Senate explained that the criterion should be "a station's overall service to children" and that a broadcaster should have the "greatest possible flexibility in how it discharges its public service obligation to children." In so framing the Children's Television Act, its sponsors wisely sought to insulate both the act itself and the regulatory power of the FCC from legal challenges.

For as the courts have repeatedly found, public-interest requirements relating to specific program content create a high risk that such rulings would reflect the FCC's tastes, opinions and value judgments--rather than a neutral public interest. Such requirements must be closely scrutinized, lest they carry the commission too far in the direction of censorship. As the Supreme Court recently concluded, "The Commission may not impose upon licensees its private notions of what the public ought to hear."

The draft programming guideline rules ignore Congress's deliberate decision to allow stations flexibility and thereby avoid constitutional challenges. Instead, the draft rules virtually invite such a challenge.

What's going on here? A most worthy goal, children's educational and informational programming, is being cleverly manipulated to revive outdated and discarded "scarcity" theories of broadcast regulation. Scarcity justified regulation many years ago, when broadcast TV was the only show in town and a few stations were the only source of video programs.

Today, however, there is a superabundance of over-the-air broadcast outlets. Cable, with its 135 networks, reaches 98 percent of all television homes. Satellite services have grown rapidly, and VCRs are now in 83 percent of all American homes. To top it off, computers and the Internet are becoming an outlet of choice for our children's time and energy.

With this incredible menu of program choices, claims of marketplace failure are outdated and farcical. The main legislative and regulatory thrust today must be toward competition and deregulation, not program content regulation and First Amendment intrusion. Thus, it is increasingly difficult, logically and legally, to justify additional regulation of broadcasting, the only medium providing universal free service.

What to do? First, this controversial draft FCC order should be released right away in its entirety for public comment. Let's fully inform everyone of its contents.

This is an unusual step, but this issue is deteriorating into an unusually misguided proceeding. If this draft order were made public, I can't imagine anyone with any sensitivity to the First Amendment supporting it, since it calls for unprecedented government micromanagement of the nation's leading news and information medium. If adopted, these rules would set a precedent that could shackle broadcasting with the prospect of even more extensive content and structural regulation in the future. Public disclosure would serve as a nationwide wake-up call to what is potentially at stake for all communications media.

Many congressmen have, in good faith, signed a letter generally supporting three hours of children's programming. I cannot believe these congressmen would support the adoption of overly rigid rules that threaten to undermine the judicial sustainability of the act itself. A three-hour-per-week guideline for children's educational programming makes sense and is universally supported. But it must be flexible enough to allow broadcasters to do their job--and flexible enough to avoided censorship.

At the risk of violence to the first Amendment, we will not be doing children or their parents any favors by rushing ahead with an overregulatory exercise in micromanagement. Both President Clinton and leaders in Congress have declared that "the era of big government is over." Is that true for everyone but the FCC?

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