SPEECH BY REED HUNDT CHAIRMAN FEDERAL COMMUNICATIONS COMMISSION BROOKLYN LAW SCHOOL BROOKLYN, NEW YORK (AS PREPARED FOR DELIVERY) DECEMBER 4, 1995 READING THE FIRST AMENDMENT IN FAVOR OF CHILDREN: Implementing the Children's Television Act of 1990 As everyone knows, there's a communications revolution going on. A little agency known as the FCC is smackdab in middle. It's a fine time to be Chairman of the FCC: the greatest job in Washington you don't have to get elected to. We're having a revolution of our own at the FCC. We have dedicated ourselves to a twin mission at the FCC: We are for encouraging private competition in communications, and for guaranteeing public benefits from communications. This is the most deregulatory, procompetitive, market- oriented FCC in history. In particular, during the two years of my chairmanship the FCC has done more to promote deregulated competition in broadcasting and video programming than any other two-year period in history. The public benefits that we should guarantee are those that private competition doesn't necessarily give us. This goal leads us inevitably to redefining the public interest standard by which broadcasters get free use of the public airwaves. For 60 years broadcasters have been considered by Congress and the Commission to be public trustees, since they use the public's property of the airwaves. As trustees, it follows that they are obligated to adhere to the strictures of Congress and the FCC concerning the duties owed to the beneficiaries of the trust: the public. This legal regime has often been honored in the breach. But now it puts us at the crux of the values debate in this country. The simple reason is that the impact of the media, especially on TV, on our culture and especially our kids, is a major part of the values discussion that is in turn at the heart of political turmoil in our country. The debate about the public interest has caused unprecedented controversy at the FCC. I m happy to report that my side of this fight has just been bolstered by the addition to our ranks of Barry Diller, a legendary and visionary figure in broadcasting. If you read the New York Times editorial page today you ll see Barry saying that The FCC should be instructed [by Congress] to set minimum guidelines for local educational and nonentertainment programming, and to put in place a reasonable system for reviewing broadcaster performance based on these standards. The front line of the public interest debate at the FCC is our debate about how to implement the Children's Television Act. This law was passed by Congress in 1990. But the Commission has seriously struggled with how to implement it through rulemaking. A long, long time ago, when I was a child, the networks were trying to persuade families to buy TV sets, and so they scheduled family-style programming. In 1951 the networks scheduled 27 hours of children's TV a week: Captain Kangaroo, Ding-Dong School, Kukla, Fran and Ollie and many others. When I was a child, I watched as a child, and now that I am an adult, I am taking up again the concerns of children. Parents and responsible adults will accept updated versions of these gentle shows, but everyone would like more acceptable choices for kids. The educational TV of yesterday was not swept away by a force of nature. It was reduced by adverse rulemakings at the FCC. As Former FCC Chairman Newton Minow documents in his recent book, Abandoned in the Wasteland [see pages 51-52], when the FCC repealed public interest programming guidelines in the early 1980s, educational programming for children provided by the three historic networks dropped -- from more than 11 hours per week in 1980 to about four and one-half hours per week in 1983 and down to fewer than two hours per week in 1990. The public clearly disapproves of this trend. They decry the quantity and quality of television fare directed toward children. More than 80 percent of the Americans think television, on balance, hurts kids instead of helps them. And more than 80 percent want their kids educated better. Congress passed the Children's Television Act in part to reverse the FCC s retreat from children s programming during the 1980s. One part of that law ordered the Commission to consider when renewing licenses of broadcasters "the extent to which the licensee ... has served the educational and informational needs of children through the licensee's overall programming, including programming specifically designed to serve such needs." [47 U.S.C. 303b(a)(2)]. Therefore, the amount of programming specifically intended to educate kids is by law part of our application of the public interest standard to renewing broadcast licenses. Congress gave the Commission other factors to consider as well. But imagine a station that provides zero hours of children's educational programming and takes no special steps otherwise to promote educational programs. What would be the Commission's justification for renewing such a station's license? And how could we justify renewal of television stations that air not zero but only a little educational programming for kids? For example, one of the Westinghouse stations aired only about 15 minutes of educational TV for several quarters before its record improved. And one study submitted in our children's TV proceeding shows that one out of ten stations seem to be presenting little or no educational programming specifically designed for children. If we renew licenses of stations with such records, what will be our explanation? What rule of law will we be following? Yet ever since Congress passed the CTA there has been a heated dispute at the Commission about minimum requirements. They are fiercely supported by all citizens' groups and just as fiercely opposed by broadcasters. As of now our rules require no minimum amount of educational programming. But such minimums certainly would guarantee that each station would comply with the plain direction of Congress to assure free over the air educational TV. And in addition such minimums would further the goal of making broadcasters' obligations as clear as possible. In fact in a kind of semi-secret internal process at the staff level the Commission had a quantified minimum standard as a guideline for the license renewals under the Act in 1992-4. Internally it treated one-half hour a week as an adequate amount of children's educational programming to justify renewal. But the Commission did not publish this number. If it had, the public and Congress undoubtedly would have been shocked and unhappy. The number one-half hour a week may have been startlingly low, but of course any license renewal process inevitably leads to quantification either in a public statement of policy, or a behind-closed doors practice, or a case-by-case process of adjudication. The renewal process runs again from 1996 to 1998. In this renewal cycle, we have an obligation to tell broadcasters in clear, specific language what is required to comply with the law. And we should report to the citizens of the country what we are saying to broadcasters. The cost of a vague or clandestine implementation of the public interest standard can be frighteningly high. Imagine a broadcast licensee whose renewal is denied because it has not aired enough educational children's programming. Without an explicit, public standard, the licensee wonder if the Commission's decision on the theory that the Commission may have been retaliating against an anti-government slant in the station's news broadcasts. Too fantastical a possibility? For this Commission, yes. But let's recall some history so that we can clearly see how vague, ambiguous interpretations of the public interest standard create a slippery slope from which we should stay as far away as possible. In 1974 President Nixon and his top aides discussed using the FCC's vague and ambiguous license renewal process to punish the Washington Post for its Watergate coverage. On being informed that the Post owned two television stations in Florida that would soon be seeking renewal, President Nixon is reported to have said, "The main thing is the Post is going to have damnable, damnable problems out of this one. They have a television station . . . and they're going to have to get it renewed." Similarly, Bob Haldeman and John Dean informed Nixon that the Post also owned a radio station and that the practice by nonlicensees of filing competing applications at renewal time had increased. Nixon reportedly responded by stating that "its going to be goddamn active here . . . Well, the game has to be played awfully rough." Three months after this conversation three applications were filed against the renewal application of the Post's Jacksonville station, and one against the renewal application of its Miami station. Participants in one of the Jacksonville applications and in the Miami application included a number of individuals identified as friends and supporters of the President and the Administration. Whether these applications were part of an effort to carry out President Nixon's threats is unclear. Even so, they demonstrate the potential for abuse that is inherent in vague, ominous, and empty standards that can be manipulated in a pernicious manner by an ill-motivated Commission. As the Supreme Court stated in 1988 in City of Lakewood v. Plain Dealer Publishing Co., "[t]he absence of express standards makes it difficult to distinguish . . . between a licensor's legitimate denial of a permit and its illegitimate abuse of censorial power. Standards provide the guideposts that check the licensor and allow courts quickly and easily to determine whether the licensor is discriminating against disfavored speech." So, if the Constitution requires that we set up standards that provide guideposts, what should those standards be? Should we say that any station that has delivered less than the average number of hours of educational television, using the current, broad definition would not get renewed? Or should it be only the bottom third in performance? Or the bottom tenth? Or just the worst television station in the country in terms of children's educational television? Whatever the standard, letting broadcasters know it ahead of time seems to me to be the only fair thing to do. Indeed, an aggressively deregulatory, market-oriented, and First Amendment friendly approach to the public interest standard requires that the FCC state clearly what it expects from broadcasters. Moreover, without clear public interest obligations, broadcasters who do more to fulfill their obligations will suffer financially, because sports and other entertainment programming attract larger audiences than educational television. So requiring a certain amount of educational programming is fairer to all broadcasters than a failure to state any minimum. I am absolutely convinced that broadcasters would willingly comply with any reasonable quantification of their public interest standards and they would compete aggressively to attract audiences to their educational tv shows. But by contrast, suppose that the Commission fails to enact some minimum standard. It is inevitable that competitive pressures would then drive some broadcasters to react to the absence of a mandatory minimum by reducing their educational children's programming to zero for several months in a row. Does the FCC intend to state that such stations licenses would be renewed? Would the Court of Appeals uphold such a result? If we are terminally vague, surely the appellate court will be concerned that the Commission has failed to give full force and effect to the Children's TV Act. Some say that quantitative children's television standards would violate the First Amendment. A frequently cited case in support is the Supreme Court must-carry decision in Turner Broadcasting. This is an odd citation. That case did not vindicate a First Amendment claim. Instead it upheld the principle that Congress and the FCC may require cable operators to carry broadcast stations -- over the cable operators' First Amendment objections -- as long as the evidence shows that broadcast stations would really be harmed in the absence of a must-carry requirement. In Turner Broadcasting, the Court stated that "broadcast programming ... is subject to certain limited content restraints imposed by statute and FCC regulation." [114 S. Ct. at 2462.] Moreover, the Court referenced the Children's Television Act and noted that it directs the FCC to consider whether a license renewal applicant has served the educational needs of children. [Id. at n. 7.] Thus, the Court explicitly recognized that a broadcaster may lose its license if it does not air enough children's educational programming, and the Court appeared to approve of that requirement. The Court did note in Turner Broadcasting that broadcasters were not currently required to carry any particular quantity of educational broadcasting [114 S. Ct. at 2463], but it did not say that such a requirement would be impermissible. To the contrary, the Court recognized that broadcasters are subject to "certain limited content restraints," including those imposed by the Children's Television Act, and also obligations relating to political campaigns, such as the personal attack rule (The victim of an on-air attack must be given an opportunity to respond.) In my view, a rule requiring three hours a week of educational programming for children -- which amounts to 1.8% of the broadcast week -- is precisely what the Court had in mind by a "limited" restraint. Any content basis to such a rule exists only on the highest level of generality. Under the FCC s proposed rule, broadcasters would not be told what to say or even what topics to address, but would just have to provide some programming on any subject that could fairly be termed "educational." This reading of Turner Broadcasting is compelled by the 1981 CBS decision which, unlike Turner Broadcasting, directly concerned broadcasters' obligations. In CBS the Supreme Court held that broadcasters may be forced to carry campaign advertising. The Court explained that "[a] licensed broadcaster is 'granted the free and exclusive use of a limited and valuable part of the public domain; when he accepts that franchise it is burdened by enforceable public obligations.'" [453 U.S. at 395.] One of those obligations is the obligation to serve the educational needs of children. Through the Children's Television Act, Congress has made clear that broadcast licenses should not be renewed in the absence of evidence that the licensee has taken steps to increase educational programming. The CBS decision squarely supports any rules establishing quantified minimum guidelines for compliance with the Children s TV Act. This reading of the First Amendment is fully consistent with its purposes. As Justice Louis Brandeis said in 1927 in his opinion in Whitney v. California, "the greatest menace to freedom is an inert people." The author of the First Amendment, James Madison, believed that its freedoms were designed to produce a dynamic democracy that would require and should encourage a certain kind of citizen -- one who takes his or her citizenship seriously. Alexander Meiklejohn, perhaps the most influential 20th century philosopher of the First Amendment, similarly linked the First Amendment to promoting a public capable of engaging in public debate on public issues, and not to engaging in any sort of speech that is most remunerative. His spiritual progeny include the brilliant Cass Sunstein at Chicago Law School, who makes similarly astute arguments from history and the Constitution. Mandating that a reasonable amount of time on the public airwaves be used to provide education for our kids is constitutional. It will help produce the kind of citizens of whom Madison would be proud. It is in the tradition of Brandeis and Meiklejohn. In taking the right step the Commission will also at last make progress on a successful definition of the public interest. Let's take this historic opportunity to improve our children's lives, our prospects as a nation and the constitutional underpinning of Commission policy. Thank you very much. - FCC -