The Role of the Federal Communications Commission on the Path from the Vast Wasteland to the Fertile Plain
Abernathy, Kathleen, Federal Communications Law Journal
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 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 indecency (2) 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 aired (4) and how broadcasters must comply with their duty to serve the educational and informational needs of children. (5) Congress also gave the Commission 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 [section] 1 have not been construed to go so far as to authorize the FCC to regulate program content. …