Subject: [NEXTEL-1] The Role of the Federal Communications Commission on the Path from the Vast Wasteland to the Fertile Plain

From: [email-masked]
Date: Wed, 24 Sep 2003 04:51:59 -0400

4/9/2003 3:05 PM

The Role of the Federal Communications Commission on the Path from the Vast
Wasteland to the Fertile Plain
Kathleen Q. Abernathy*

In 1961, Federal Communications Commission (“FCC” or
“Commission”) Chairman Newton Minow expressed a lack of confidence
in the services provided by broadcasters.1 He challenged people to sit in
front of their television for a day to see if they would observe, as he had, a
vast wasteland. The Federal Communications Law Journal has asked us to
take up Minow’s challenge today. Yet, as a current FCC Commissioner, I
find that it is not my place to make value judgments on the content of
broadcasts.

Newton Minow’s speech goes to the heart of the most basic
constitutional right, the right of free speech as protected by the
Constitution. I believe that FCC Commissioners must tread carefully in
regulating, or even passing judgments, on the quality of programming

* Kathleen Q. Abernathy was sworn in as a Commissioner of the Federal
Communications
Commission on May 31, 2001. Before her appointment to the FCC, Abernathy was
director
for government affairs at Broadband Office, Inc.; a partner in the Washington,
D.C. law
firm of Wilkinson Barker Knauer, LLP; vice president for regulatory affairs at U S
West
(now known as Qwest Communications); and vice president for regulatory affairs at
Air
Touch Communications. She also served as legal advisor to FCC Commissioner Sherrie

Marshall and Chairman James Quello. Abernathy received a B.S. from Marquette
University, and a J.D. from Columbus School of Law, The Catholic University of
America.
She is a member and former president of the Federal Communications Bar
Association, and
a member of the Washington, D.C. Bar.

1. Newton N. Minow, Television and the Public Interest, Speech Before the National

Association of Broadcasters (May 9, 1961) [hereinafter Vast Wasteland Speech].

content. In exercising our regulatory duties, we should be mindful of the
need to protect and preserve free speech. In this regard, I am guided by two
principles. First, Congress has legislated standards for the Commission to
apply, and to the extent that courts hold these standards to be
constitutionally permissible, we should enforce Congress’s laws and
courts’ decisions regardless of our own personal predilections. Second, the
Commission must refrain from making personal judgments about the
messages that the media delivers. The Commission’s area of responsibility
is to enforce Congress’s laws. Broadcasters, in contrast, are the proper
parties to make judgments regarding overall media content. It is important
to recognize that broadcasters do not act alone. The American public places
an important check on the role of the media.

With respect to congressional guidance, legislation gives the FCC
direction on how to balance the right of free speech against other public
interests. For example, Congress directed the Commission to enforce
restrictions on indecency2 and, at renewal time, to consider the extent to
which a licensee has served the educational and informational needs of
children.3 As a result of this guidance, the FCC adopted clear and explicit
regulations on when indecent programming may be aired4 and how
broadcasters must comply with their duty to serve the educational and
informational needs of children.5 Congress also gave the Commission

2. 18 U.S.C. § 1464 (2000); 47 U.S.C. § 312(a)(6) (2000) (authorizes revocation of
a
station’s license for violation of 18 U.S.C. § 1464); 47 U.S.C. § 503(b)(1)(D)
(2000)
(authorizes the Commission to assess monetary forfeitures for violations of 18
U.S.C. §
1464).
3. 47 U.S.C. § 303b (2000).
4. The Commission’s rules restrict the broadcasting of indecent material to hours
when children are less likely to be viewing television—between 10:00 P.M. and 6:00
A.M. 47
C.F.R. § 73.3999 (2001).
5. FCC rules require that, over the term of its license, each television station
licensee
serve the educational and informational needs of children through both the
licensee’s overall
programming and programming specifically designed to serve such needs (“core
programming”). According to FCC processing guidelines, a licensee that has aired
at least
three hours of core programming a week will be deemed to have satisfied its
obligations to
air such programming. Core programming is defined as educational and informational

programming that
(1) It has serving the educational and informational needs of children ages 16 and

under as a significant purpose;
(2) It is aired between the hours of 7:00 A.M. and 10:00 P.M.;
(3) It is a regularly scheduled weekly program;
(4) It is at least 30 minutes in length;
(5) The educational and informational objective and the target child audience are
specified in writing in the licensee’s Children’s Television Programming
Report . . .; and
(6) Instructions for listing the program as educational/informational . . . are
provided to publishers of program guides . . . .

authority to prescribe guidelines for the identification and rating of
programming that contains sexual or violent material, and to require
distributors of such video programming to transmit such ratings in the
event that voluntary guidelines for doing so had not been established by the
industry.6 In these areas, Congress crafted a careful balance between
protecting First Amendment rights, on one hand, and on the other,
protecting our children from objectionable material and providing for their
educational growth. Thus, where Congress has, in a constitutionally
permissible way, balanced other important governmental interests against
free speech interests, the Commission is bound to follow the congressional
directives.

In other areas, however, Congress has not legislated. In these
circumstances, the Commission is often pressured to act on its own by
regulating, or even passing judgment, on what are deemed to be “good” or
“bad” messages, or on what is “good” or “bad” television. Those who
encourage the Commission to act are often motivated by what they truly
believe would be a desirable result. On these issues, however, the
Commission cannot begin to stray across the line and start regulating
messages based on content. We should not be making personal judgments
that reflect our own tastes or desires. Indeed, the Court of Appeals for the
D.C. Circuit recently held that the FCC cannot use its general powers under
Section 1 of the Communications Act of 1934 for authority to regulate
program content:

To avoid potential First Amendment issues, the very general
provisions of § 1 have not been construed to go so far as to authorize
the FCC to regulate program content. Rather, Congress has been
scrupulously clear when it intends to delegate authority to the FCC to
address areas significantly implicating program content.7
Some express concern, however, that if Congress does not act and the
Commission does not act—who is left to make these content decisions?
Who will provide a moral barometer for society? Fundamentally, all
citizens who watch television participate in this process. On a daily basis,
however, as a country we have chosen to leave content decisions in the
hands of the media. The vast majority of broadcasters understand and
appreciate the unique role that their organizations play in the local
communities and in our national society. Broadcasters generally have taken
this responsibility seriously. Moreover, their control over content does not

47 C.F.R. § 73.671 (2001).
6. 47 U.S.C. § 303 note (2000) (Effective Date of 1996 Amendment);
Telecommunications Act of 1996 Pub. L. No. 104-104 sec. 551(b)(1); see also 47
U.S.C. §
303 note (2000) (Codification).
7. Motion Picture Ass’n of Am. v. FCC, 309 F.3d 796, 805 (D.C. Cir. 2002).

go unchecked by the American people. The public has immense power to
influence programming decisions simply by turning the channel.
Broadcasters, by necessity, respond to the public, thus providing a much
more reliable version of “good society” than regulators can ever bring
about by governmental decree.

It also is important to remember that today—as compared to 1961—
consumers have many more choices vying for their eyeballs. When Newton
Minow delivered his speech, the Commission had just “approved an
experiment with pay TV, and . . . [was] testing the potential of UHF
broadcasting.”8 Chairman Minow stated that “most of television’s
problems stem from lack of competition.”9 He longed for “more channels
on the air” and “a half-dozen networks instead of three.”10 Since that time,
television has grown up. Today, there are seven broadcast networks, 1331
commercial television stations (752 of which are UHF stations), and 381
non-commercial educational stations (254 of which are UHF stations).
Sixty-nine million households subscribe to cable, and more than eighteen
million households subscribe to direct broadcast satellite service. There are
more than 230 national cable programming networks and more than fifty
regional networks.11 Furthermore, digital television (“DTV”), which gives
broadcasters the capability to provide a high definition signal or multiple
streams of programming, has been introduced in most markets.12 Thus, the
ability to attract and retain a viewer has unprecedented value. Today’s
marketplace dynamic will drive broadcasters to be responsive to their
communities.

To the extent that Chairman Minow was concerned about the effects
of not having a competitive television market, the current array of video
programming and distribution choices should alleviate those fears. To the
extent that Chairman Minow was concerned about indecency and violence
on television and the lack of educational programming for children, these
issues have also been addressed consistent with our constitutional
guarantees. To the extent that Chairman Minow was making value
judgments about the quality of programs that were on the air—from
westerns to game shows, from The Fabulous Fifties to The Twilight Zone—

8. Vast Wasteland Speech, supra note 1.
9. Id.
10. Id.
11. 2002 Biennial Reg. Review—Review of the Comm’n’s Brdcst. Ownership Rules
and Other Rules Adopted Pursuant to Section 202 of the Telecomms. Act of 1996,
Notice of
Proposed Rulemaking, 17 F.C.C.R. 18503 (2002).
12. As of January 29, 2003, there were 700 DTV stations operating in 178 markets.
The
National Association of Broadcasters, DTV Stations in Operation, at
http://www.nab.org/
Newsroom/issues/digitaltv/DTVStations.asp (last visited Jan. 29, 2003).

I respect his opinion as a consumer, but am unwilling as a Commissioner to
substitute my judgment for his or any other consumer’s. Where Congress
has not specifically spoken, broadcasters have an obligation to work
together with their communities to determine how to best serve the needs
and interests of the public. So, I leave it in the hands of Congress, the
media, and the public to lead us on the path from a vast wasteland to a
fertile plain.