http://www.fcc.gov/commissioners/powell

HEADLINE:

FCC COMMISSIONER SAYS "THE FCC SUBVERTS THE CONSTITUTION!"

Excerpts from

REMARKS
by
Michael K. Powell
Commissioner
Federal Communications Commission

before

The Freedom Forum
As Prepared For Delivery
Arlington, Virginia
April 27, 1998

"...Recently, we have heard cries for television and radio to come to the rescue and save the electoral process from the corrupting influence of money, by offering candidates free air time. The impropriety of the FCC pursuing this matter is a theme of my remarks today, ..."

"...The convergence of communications medium afforded by digital technology, the transformation from regulation to market competition for governing the telecommunications industry, and the advent of entirely new communications outlets -- as well as the growth of existing ones -- all suggest that it is time to re-examine the proper role of government in shaping the content of the messages our citizens see and hear."

"While some who have sat in my seat at the Commission have welcomed the wide discretion afforded by what Felix Frankfurter once called the "penumbral bounds" of the public interest standard, I am much less comfortable with its vagueness. The lack of guidance leaves those governed by the standard at a loss as to how to structure their conduct to be compliant. And, I dare say, it invites mischief by regulators and special interests to advance parochial interests under the guise of public interest."

"While expert in its own right, the five members of this body (FCC) do not represent anyone, or any state and are unable to truly gauge and reflect the national will, except as it is derived from Congressional actions. Moreover, members of Congress are elected directly by the people, they stand before American citizens to have their actions judged. Who knows how FCC commissioners get their jobs!"

"There are only three branches of government set out in the Constitution and we are not one of them."

"I do not believe that the growing convergence of technology will allow us to maintain two first amendment standards, one for broadcasting and one for every other communications medium. Technology has evaporated any meaningful distinctions among distribution media, making it unsustainable for the courts to segregate broadcasting for First Amendment purposes. It is just fantastic to maintain that the First Amendment changes as you click through the channels on your television set."

"Moreover, unique scarcity as a justification for lesser constitutional protection for broadcasters is demonstrably unsupportable. Technology makes ever more efficient use of spectrum. Broadcast channels are continually increasing. Cable, internet, and VCRs provide an untold number of outlets for speech. We must admit to these realities and quit subverting the Constitution in order for the government to be free to impose its speech preferences on the public."

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Excerpts from
REMARKS
by
Michael K. Powell
Commissioner
Federal Communications Commission

Before the
Media Institute
"Willful Denial and First Amendment Jurisprudence"
Washington, D.C.
April 22, 1998

"I am pleased to have this opportunity to share some of my thoughts on media regulation with you."

"As you all know, there is a dual standard that exists today, which holds that broadcasting is somehow less deserving of First Amendment protection than other mass media. This theory, which derives primarily from the Supreme Court's 1969 decision in Red Lion Broadcasting Co. v. FCC, has been the target of much criticism. Many scholars have pointed out that the factual assumptions underlying this case and its progeny, if they were ever true, clearly are not true today."

"It will become impossible to separate "broadcast" from other services, and to continue to maintain the historic fiction of "uniqueness" of broadcast is to see the world through Lewis Carroll's looking Glass."

"Even this brief overview of the marketplace makes the reasoning of Red Lion seem almost quaint and leads unavoidably to the simple question: Should we continue to apply the reasoning of Red Lion to determine the First Amendment rights of broadcasters in today's communications environment? At the very least, any responsible government official who has taken an oath to support and defend the Constitution must squarely address this important question."

"The Court in Red Lion grounded its analysis in "the scarcity of broadcast frequencies, the Government's role in allocating those frequencies, and the legitimate claims of those unable without governmental assistance to gain access to those frequencies for expression of their views..." How can these rationales continue to be applied today?"

"Above all else, scarcity -- the need to ration licenses -- stands as the single greatest justification for dual track First Amendment analysis. Yet, contrary to the Court's assertions, there is nothing unique about the scarcity of radio frequencies. They are no more scarce than any other natural resource, such as oil, timber or gas, that is an essential input to other industries."

"If one parses Red Lion and its progeny, one will find a number of subtle variations on the scarcity rationale. Two, however, have the most prominence: (1) the false belief that spectrum is uniquely scarce; and (2) that there is an excess of demand for the limited number of outlets available, leaving the government to choose among applicants. Both predicates fundamentally misunderstand the technology and the nature of the broadcast industry."

"Since the beginning of radio, the Court seems to have viewed broadcasting almost mystically, unable to understand the nature of the technology that brought voice and pictures to consumers over the air."

"The fact is that spectrum is not really scarce. It may actually be infinite, dependent only on advances in technology that can make ever-increasing efficient use of it.... Perhaps, it is uniquely abundant rather than uniquely scarce."

"With scarcity and the uniqueness of broadcasting such demonstrably faulty premises for broadcast regulation, one is left with the undeniable conclusion that the government has been engaged for too long in willful denial in order to subvert the Constitution so that it can impose its speech preferences on the public -- exactly the sort of infringement of individual freedom the Constitution was masterfully designed to prevent. As Professor Tom Krattenmaker has observed: 'the belief -- or at least the assertion of a belief -- in a scarcity theory exists because those who wish to continue broadcast regulation believe that some theory of unique scarcity must exist. Otherwise, broadcasters could not be controlled by the government -- or its perception of the public interest.'"

"In sum, I submit that it is time to reexamine the defensibility of maintaining a separate First Amendment jurisprudence. We must take the truth about scarcity for broadcast media out of the closet. Rather than continuing to engage in willful denial of reality, the time has come to move toward a single standard of First Amendment analysis that recognizes the reality of the media marketplace and respects the intelligence of American consumers. Thank you very much."