Remarks by Commissioner James H. Quello
                                Before the
                 Florida Association of Broadcasters, Inc.
                    June 26, 1997 - Boca Raton, Florida


              "REEDING" THE FIRST AMENDMENT-- A DISAGREEMENT
                       (Without being Disagreeable)

     Lately I have received continued inquiries about my current status and future
plans:  loosely paraphrasing an old saying "Rumors of my FCC demise now seem
premature."  In announcing my retirement plans early this spring I mentioned that I
would continue serving until someone is confirmed in my place.  As you know, the
confirmation process for proposed FCC and FEC nominees has become complicated
and even argumentative with no immediate resolution in sight.  It is comforting not to
be seeking reappointment during these contentious times.

     So for better or worse, here I am.  I am a happy camper.  People are still
answering my phone calls, I haven't been crowded away from the office drinking
fountain yet and I'm accorded continued tolerance from tennis doubles partners
whenever I'm the major contributor to losing the match.

     Future plans?  No, I don't plan moving back to Michigan and freezing my
private parts.  I'm staying in the Washington D.C. area.   I hope to cap my career in
the fascinating less hectic environment as a weekly lecturer at Michigan State
University, the alma mater for wife, Mary, and me.  And I'm particularly pleased there
has been some interest shown in eventually funding an endowed chair in my name.

     So under ideal conditions I could lecture on Friday and stay over Saturday for
a football or basketball game -- particularly if old MSU does a more aggressive job of
recruiting.  Lecture series and musicals would also be attractive.

     So my wife, the Lord, Michigan State University and my great FCC staff willing,
I plan to serve until someone is confirmed in my place or until I reach my mental-
pause.

     Of course, you have heard that Chairman Reed Hundt is also retiring from the
FCC.  We exchanged general pleasantries about each others services.    I issued a
statement on his announcement that stated:
  
     "Chairman Hundt and I had marked differences in regulatory
     approach.  

     However, the Chairman was a tireless dedicated worker, brilliant
     in understanding the complexities of the computer and other highly
     technical industries, a most formidable litigator in debating his
     viewpoints before the FCC and against adversaries, and an effective
     public speaker and FCC spokesman.

     Also, the Chairman played a leading role in establishing  
     a distinguished legacy -- the wiring of schools and libraries throughout
     the nation.

     In the overall count of Commission items, we agreed substantially
     more than we disagreed."

and, I am adding I certainly would hire him or recommend him as a very effective
lawyer.

     I was touched by his recent gracious remarks before a Federal
Communications Bar Association meeting in which he listed numerous of my FCC
accomplishments -- a few of these even I would not have recalled.  The sumptuous
anniversary dinner sponsored by the Chairman and Commissioners was probably the
most memorable event in my lifetime career.  We have worked together and voted
together on a great many items since he arrived at the FCC over three years ago.

     Nevertheless, there is a fundamental philosophical difference in the way the
Chairman and I view the First Amendment and the regulatory role of government.   
This is what I am compelled to discuss today.

     I'm afraid I have failed in convincing the Chairman to change what many
criticize as his over-regulatory fixation.  For example, I can't understand his
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 hugh 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 really serves the public
interest.  

     I can't 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.  Government can encourage its development by limiting its
intrusion.

     A special commission formed by Vice President Gore is studying the extent
and nature of additional public interest obligations for digital broadcasting.  I'm
looking forward to the Commission report and recommendations.  There is no need
for the FCC to be "out front," ahead of the Vice President.


     Also, I can't understand the logic in claiming it is a "give-away" to grant
existing licensees digital spectrum that they themselves developed.  I don't see the
equity in proposing that existing licensees compete in auctions against subscriber
supported businesses to be able to remain in business.  Furthermore, broadcasters
are merely being loaned the digital spectrum with the requirement that one of the
channels be returned.  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 the initial TV pioneering, broadcasters have paid the full marketplace price.

     We must also remember that it was the broadcasting industry that developed
technological and program production advances, not government financing and
certainly not government regulation.

     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. 
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
specific public interest programming they must air to mollify government regulators.

     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 economic survival.

     Also, in the multichannel world of today with cable, movies, DBS, the Internet,
VCRs, along with newspapers, sophisticated billboards  and magazines, it is
disingenuous to center blame for all society's ills on broadcasting.  There are always
other more important influences to consider besides media -- like parents, relatives,
friends, home environment, teachers and schools.

     But now back to my principal concern  -- the First Amendment and my
philosophic and regulatory differences or disagreements with the Chairman.

     Recently Chairman Hundt has been making positive sounds expounding First
Amendment rights.  In an article published last March in BROADCASTING & CABLE,
the Chairman wrote that "No values in our society are more important than those
advanced and protected by the First Amendment."  More recently, the Chairman
called for "a stronger and more well articulated set of First Amendment principles for
broadcast news."

     This is good.

     Or is It?

     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 specific
programming commitments; who campaigned vociferously not only for quantitative
requirements for children's TV, but for specific time and scheduling mandates,
(eventually his over-regulatory children's programming proposal was corrected to
provide common sense 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?  Has the Chairman suddenly changed his mind?

     When people reach my age, they often become more religious or more
ecumenical.  Some call it "cramming for finals."  So too, when some public officials
leave office, they would like to ensure that their legacy is free of criticism, even if that
criticism is well founded.  Especially if that criticism is well founded.

     So, I think the Chairman's recent discovery of the First Amendment has less to
do with an end of term conversion, and far more to do with what we in Washington
call spin control.

     Let's face it.  The recent record on First Amendment issues before this
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
proposals by the Chairman were rejected by three Commission votes (DARs, LMDS,
DTV and the Chairman's first of the year "Spectrum Management White Paper").  But
the Chairman still has some rules on the table he would like to push through before
he leaves office.

     So I will ask the question again.  What is one to think of the Chairman's recent
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 view 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 sees it
as a gift to be bestowed by politically appointed bureaucrats.

     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 his
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."  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.  This theory
sets fire to the global village in order to save it.

     Such theories are alien to our Constitutional system.  If First Amendment
commands, 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 seems to be Chairman
Reed Hundt's "reeding" of the First Amendment that I reject and I believe the courts
will reject.    After all, how much is enough?  One day it is specific children's
programming accompanied by time and scheduling mandated requirements, then
comes free time for politicians, followed by mandatory public service announcements,
counter advertising, public interest obligations -- and whatever else someone might
describe as a First Amendment "value."

     A basic flaw in the Chairman's theories is that 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 is that he appears to
believe that free speech is something to be doled out to worthy recipients.  In this
case, much of what he says sounds First Amendment friendly.  In a recent speech 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 can't 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.  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?  Reed wasn't practicing communications law at the time, but
we've been down that regulatory road before.

     Maybe I've been in Washington too long, but I think I smell a quid pro quo
approaching.  If the meaning of the First Amendment is to be fashioned in FCC and
Congressional hearings, it has been my experience that the government hardly ever
gives something for nothing.  And if the Chairman's speech is any clue -- and it is
sometimes difficult to penetrate the subtleties of his statements -- then 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 thinks it is 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.  It was telling that the Chairman jokingly singled out the New York Times as a
particularly good newspaper "with editorials I agree with" after it published a laudatory
piece about his term at the FCC.  At least I think he was joking.  After all, the New
York Times is a notable broadcast licensee.  But I find it difficult to separate the
Chairman's praise for one news media from his desire for "government [to do] a
better job of creating clearer rights and a context for self-regulation in the
development of TV journalism."  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.

     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 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.  Most Commissioners 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 limited 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, we could fulfill our
public trust and our 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 Rules.

     It did not mean, as Chairman Hundt repeatedly says, that the FCC serves the
public interest or the First Amendment by actively seeking new issues to regulate and
describing the endeavor as a public interest "wish list."  Nor did it mean that we could
ignore the massive development of newer media and the diverse programming that
came with it -- such as the development of entire networks devoted to children's
programming on cable and the abundance on public television while singling out
broadcasters for additional special obligations.

     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 the Chairman advocates.

     The Administration and Congress must have the massive communications
explosion of the past three years in mind when they repeatedly proclaimed the era of
big government is over.  Is it only for everyone but the FCC?

     So Reed, I respect your drive, litigation expertise and skillful P.R. spins, but I
strongly and respectfully disagree with your own subtle over-regulatory approach to
First Amendment "values."

     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. 

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