The complete text of the remarks referenced
below may be found at the FCC's website, Chairman Powell's web page:
FCC COMMISSIONER SAYS "THE FCC SUBVERTS THE CONSTITUTION!"
Michael K. Powell
Federal Communications Commission
The Freedom Forum
As Prepared For Delivery
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
are only three branches of government set out in the Constitution and we are not one of
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."
Michael K. Powell
Federal Communications Commission
"Willful Denial and First Amendment Jurisprudence"
April 22, 1998
"I am pleased to have this opportunity
to share some of my thoughts on media regulation with you."
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
"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
"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
"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."