Media Studies Journal
Spring/Summer 1999
The Bumpy Road of Regulation
By Stuart N. Brotman

When Chairman W.J. "Billy" Tauzin (R-La.) of the U.S. House Telecommunications, Trade and Consumer Protection Subcommittee banged the gavel to begin oversight hearings on March 17, 1999, those in attendance knew that this was not to be a typical congressional session. The chairman of the Federal Communications Commission, William E. Kennard, was sitting quietly at the witness table, along with his four fellow commissioners from the independent regulatory agency created by Congress in 1934 to regulate broadcasting and telecommunications. They knew that their appearance might be characterized as a trip to the woodshed.
Rep. Tauzin addressed the FCC's worst fears immediately. "The Commission has been operating without statutory authorization since 1991," he noted in his introductory remarks. "It is my hope that this will be the first in a series of public hearings, leading to the introduction of comprehensive FCC reform legislation later this summer."
That was a preamble to the real punch line: "When Congress passed the historic, much-publicized Telecommunications Act of 1996, we made a fundamental mistake. We failed to reform an outdated, out-of-touch Federal Communications Commission when we overhauled the law. As a result, as America prepares to enter the 21st century, we have, in effect, a horse-and-buggy agency trying to bridle supersonic technology. And it's simply not working. Simply put, can an agency created in the 1930s, instilled with a regulatory purpose and ingrained with a regulatory mind-set, effectively oversee the 'deregulatory' policies engineered by Congress for a modern-day marketplace? The answer is no."
Bill Kennard, a Clinton administration appointee who previously had served as the agency's general counsel, listened attentively and waited for his turn to speak. On the table in front of him was a report entitled "A New Federal Communications Commission for the 21st Century," in effect the term paper he and his colleagues had decided to write before having to face the teachers sitting above them at a distance. And in his quiet, lawyerly fashion, the chairman of the FCC began to deliver his response in measured tones: "In . . . a world where old industry boundaries are no longer and competition is king, we need a new FCC. . . . [T]he traditional boundaries delineating the FCC's current operating bureaus will cease to be relevant. Simply, in five years' time, the FCC will be dramatically transformed."
Although much of the focus of this process of reinventing the FCC is on telecommunications rather than electronic media, the broad and deep impact of this "less regulation, less government" paradigm shift also is destined to change the role of the FCC as it oversees program content regulation for broadcast radio and television news and public affairs programming.
In 1999, Kennard's agency has been the subject of growing scrutiny and withering comments from both House and Senate members, Republicans and Democrats alike. Rumors of legislative drafts float around Capitol Hill, some designed to prevent the FCC from enacting new regulations, others requiring a "super majority" of commissioners before any new rulings could be issued. Moreover, the dollars contemplated to support the FCC's intensified workload since the passage of the new Telecommunications Act are significantly less than what the FCC's budget planners say is necessary to maintain the agency. As Chairman Kennard noted in his testimony, the FCC in the future will need to focus less on traditional regulatory functions and more on protecting consumers in ways the market itself cannot. Thus, it is abundantly clear that the FCC is destined to become leaner and, correspondingly, have less ability to regulate news and public affairs programming. The only unknown is whether this will happen sooner because of congressional action or later if the FCC is allowed to phase in its proposed five-year restructuring plan. "Our guiding principle should be to presume that new entrants and competitors should not be subjected to legacy regulation," the FCC's 21st century report asserts. Those involved in broadcast news and public affairs are looking for signs of that principle taking hold. In an age of media convergence, the Internet represents Exhibit A. As text and video images become merged and transmitted to computer terminals as well as conventional television sets, there is no more dramatic or urgent test regarding whether the FCC really understands how the square pegs of technology no longer fit the round holes that segregate broadcasting, cable and satellites. With increasing frequency they are transmitting comparable or identical information services, making the logic of regulating them in different ways difficult to sustain. Already, in a speech that preceded the oversight hearing by a matter of days, Chairman Kennard stated unequivocally that the FCC for now has decided not to approach regulation of the Internet. In effect, the FCC has decided to invoke the Hippocratic oath with respect to regulating cyberspace¾first, do no harm. Speaking publicly before a meeting of telecommunications and Internet analysts, Kennard stated, "I want to say this as clearly as I can . . . as long as I'm chairman of the Federal Communications Commission, this agency will not regulate the Internet." He expressed concern that consumer groups and others already were saying, "the big bad FCC is going to impose all this regulation on the Internet" and noted that he gets "literally about 600 e-mail messages a day by people who are telling me to keep my hands off the Internet." Cynics argue that despite Kennard's sincerity, the key phrase is "as long as I'm the chairman of the Federal Communications Commission," a tenure that may end with the inauguration of a new president in 2001, if not sooner. Consequently, some members of Congress want to develop a more enduring and secure regulatory firewall by adopting new legislative language that would make explicit that the FCC has no statutory authority to regulate the Net. Other legislators, however, remain ambivalent about taking the reins off content regulation of the Internet, whether overseen by the FCC or by federal prosecutors. Web access by children remains a potent political issue that attracts headlines and heated debates in the religious, educational and civil liberties communities. But ironically, in this area, Congress faces the possibility of being called to the woodshed, too. After all, it is batting 0 for 3 when its Internet laws have faced federal judges, including the justices of the U.S. Supreme Court, who have ruled that attempts to impose Internet content regulation do not pass constitutional muster. In 1996, a three-judge panel of federal judges in Philadelphia struck down a portion of the Telecommunications Act of 1996 known as the Communications Decency Act (CDA). The CDA had been supported by a bipartisan coalition in Congress and defended by the Clinton administration after the president signed the bill into law. In that decision, Judge Stewart Dalzell struck down provisions that would have restricted "indecent" speech on the Internet as violative of the First Amendment. "As the most participatory form of mass speech yet developed," Judge Dalzell wrote, "the Internet deserves the highest protection from governmental intrusion."
The U.S. Supreme Court agreed, affirming Judge Dalzell's application of the most stringent level of First Amendment review for regulation of Internet content. In a unanimous decision (with Chief Justice Rehnquist and Justice O'Connor concurring in part and dissenting in part), the Court held that "in order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another."
Following this stinging rebuke, Congress and the Clinton administration went back to the drawing board, enacting a new but narrower law that was incorporated into the 1998 budget bill. The Child Online Protection Act (COPA) was challenged immediately by a coalition of 17 organizations and businesses, including the American Civil Liberties Union, which successfully had litigated the CDA, and the Internet Content Coalition, which represents nearly two dozen Web publishers such as The New York Times. The law was intended to regulate the availability of sexually explicit material on the Internet that was deemed "harmful to minors" (those under 17 years of age), a standard that, unlike pornography, was given a lesser threshold—namely, "lacking serious literary, artistic, political or scientific value for minors." The law's opponents argued successfully that this definition was too broadly drafted to take effect absent a full trial on the merits, thus warranting an immediate injunction against enforcement.
Even though COPA encompassed only commercial Web sites, and despite its allowing defenses by site providers such as age verification through credit card registration, the journalistic community and other plaintiffs asserted that there was no justification for avoiding the Supreme Court's prior First Amendment bar. After all, Internet news coverage might display controversial works of art, discuss issues related to sexuality and public health or carry items that contained graphic, nonpornographic details.
Federal Judge Lowell A. Reed Jr. reached the same result as had the Supreme Court and Judge Dalzell in the previous case. But he wrote with less sweeping brush strokes than Judge Dalzell, who had painted a picture of the Internet as "a never-ending worldwide conversation." Instead, Judge Reed seemed to encourage Congress not to give up hope. "This Court and many parents and grandparents would like to see the efforts of Congress to protect children from harmful materials on the Internet to ultimately succeed and the will of the majority of citizens in this country to be realized through the enforcement of an act of Congress," he wrote. The Department of Justice has appealed Judge Reed's injunction barring COPA's enforcement to the U.S. Court of Appeals for the 3rd Circuit, which is expected to hear the case later this year.
So despite statements that give rise to a belief that the technological convergence embodied in the Internet inevitably will trump the regulators, it's clear that this debate still has a lot of steam left. As time passes, the Internet's growing pervasiveness as a source of news and information will attract more attention. Journalists, now and in the future, will work for literally thousands of broadcast news services with mirror operations in cyberspace. Will their product be regulated in one medium—broadcasting—but be completely free of restrictions in print or cyberspace? And if reporting displayed on a computer terminal can't be regulated, the body politic will begin to ask questions such as, Why is there a constitutional distinction between Tom Brokaw reporting a story on the "NBC Nightly News" and seeing him through streaming video on the MSNBC Web site?
The U.S. Supreme Court went well beyond the traditional explanation of lesser First Amendment protection for broadcasters due to broadcast spectrum scarcity when it decided in 1978 that the FCC could regulate "indecency" in broadcasting because it was a medium that was "uniquely accessible to children," and "uniquely pervasive in the lives of all Americans." But with personal computers now in the majority of American homes, a national commitment to have them in all schools and libraries, and the development of "always on" Internet connections by leading cable television and telephone companies, it's somewhat difficult to parse why the Supreme Court's affirmance of the FCC's ability to regulate broadcast indecency won't extend to the Internet if the FCC decided to reverse course and the Court chose to apply the same constitutional reasoning. In other words, if the Internet is deemed to be uniquely accessible to children and pervasive to all Americans—a reality that either is here today or soon to come—couldn't such a characterization serve as the constitutional hook that prior Internet regulation schemes have lacked? With this frame of reference, those who express anxiety about how progressive cyberspace jurisprudence really will be are raising serious concerns indeed.
Having peered into the future, let's review the current situation. With respect to today's regulation of broadcast news and public affairs, the glass seems both half full and half empty. For those taking comfort in the FCC's diminishing role as a government editorial gatekeeper, the agency's decision to exempt all news programming from the new V-chip ratings system suggests that the Commission recognizes its need to treat broadcast journalism with extra-sensitive care. So too does the May 1998 ruling by the FCC's Mass Media Bureau that the no-censorship provision of the Communications Act of 1934, as amended by the Telecommunications Act of 1996, prohibits the agency from reviewing the news judgments of radio and television stations.
In that case, a citizen's group called Rocky Mountain Media Watch filed petitions to deny the license renewals for the ABC, CBS, NBC and WB network affiliates in the Denver market. The group cited a number of complaints, including a failure to cover community issues adequately, overcommercialization in news programming and stereotyping of news anchors. Writing on behalf of the FCC, Barbara Kreisman, chief of the Video Services Division, noted that broadcast licensees are "entitled to the widest latitude of journalistic discretion" in presenting news and public affairs information, and presented a number of FCC precedents to support this conclusion. The broadcasting community immediately applauded the FCC's decision. "We defend the right of stations to exercise editorial judgment in local news coverage," said Eddie Fritts, president of the National Association of Broadcasters (NAB). Barbara Cochran, president of the Radio-Television News Directors Association (RTNDA) was even more emphatic. "The FCC's decision supports definitively the editorial freedom of broadcast journalists," she asserted.
What remained hidden from view when these statements were made was the protracted battle both the NAB and RTNDA have been waging against the FCC because they believe that their glass of First Amendment protection really is half empty. After the Fairness Doctrine was eliminated by the FCC in a bold decision in 1987, the regulatory fiat requiring broadcasters affirmatively to air diverse views on "controversial issues of public concern" became a footnote in communications law history. Although there are periodic murmurings among public interest advocates to have the FCC reverse course, the most recent petition requesting this has been languishing at the agency for five years, with no signs of any agency interest in taking action. Congress is not interested in a revival, either, making it safe to assume that the Fairness Doctrine has moved beyond suspended animation to rigor mortis.
But in pronouncing the Fairness Doctrine dead and buried more than a decade ago, the FCC left the doctrine's offspring¾the personal attack and political editorializing rules—very much alive. The personal attack rule, developed by the FCC in the 1960s, covers situations where broadcast facilities are used to attack a person or group. According to the FCC, if "the attacks are of a highly personal nature which impugn the character and honesty of named individuals, broadcasters have an affirmative obligation to see to it that the persons attacked are afforded the fullest opportunity to respond." The political editorializing rule gives a right-of-reply to candidates for any elected office when a broadcaster endorses an opponent. Both rules remain on the books and have generated hundreds of enforcement actions against radio and television stations over the years. Despite all the rhetoric of regulatory freedom it delivers to the broadcast community, the FCC has failed to rescind these rules during the last decade and, in doing so, has created confusion in the broadcast journalism community regarding the scope of editorial freedom that is in place.
The NAB and RTNDA asked the FCC to eliminate these rules in 1987, arguing that the Fairness Doctrine's demise due to its chilling effect on broadcasters compelled their rescission as well. By 1996, with no FCC response, these groups filed a federal court appeal asking the judges to mandate that the FCC rule on the matter rather than have it remain in limbo. The U.S. Court of Appeals for the District of Columbia Circuit agreed with this request and ordered the FCC to reach a decision. But the five-member FCC deadlocked on the matter after Chairman Kennard, a former NAB staff attorney, recused himself to avoid a potential conflict of interest.
The NAB and RTNDA now are back in court, arguing that since the FCC hasn't been able to decide even when it was ordered to, the judges should decide the issue on the merits once and for all. The FCC, in its reply brief, argues that preservation of these rules is both reasonable and constitutional.
So despite visions of cyberspace as a long, smooth information highway that rolls on endlessly, the current roadblock of rules regulating broadcast indecency, personal attacks and political editorials suggests that there may be a bumpy road ahead. The FCC, as we have seen, is the least likely regulator to resolve these First Amendment tensions, even if it chose to, because its scope and influence are destined to be diminished. Congress, the agency's overseer, could step in to write its own road map, but even if this happens, the ultimate policy-makers are destined to be the courts. The judicial branch, which is the most removed from the fray, represents the best possible First Amendment guardian for electronic media. But this role only can be assumed if there is a ripe controversy at hand and if there is a judicial willingness to confront the challenge.
Former NBC Executive Vice President and General Counsel Corydon B. Dunham framed the issue with unusual precision. "Whether print, broadcasting, cable, satellite, telephone or the Internet, the real question is: Is it news?" And "[i]f it is," he concludes, "then it should have full First Amendment standing." That's not the law of the land today, but rather an endpoint that I think should be pursued. So hopefully, when this article is retrieved from a time capsule 10 years from now, Rep. Tauzin, Chairman Kennard and all of us will be able to look back at the House Subcommittee's hearings as the starting point of a process. The best oversight will ensure that our deep American instincts supporting free press finally can emerge from the shadows of FCC and congressional intervention.