[Congressional Record Volume 142, Number 111 (Thursday, July 25, 1996)]
[Extensions of Remarks]
[Pages E1372-E1373]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




            RECOGNIZING JIM QUELLO'S COMMON SENSE AT THE FCC

                                 ______
                                 

                            HON. JACK FIELDS

                                of texas

                    in the house of representatives

                        Thursday, July 25, 1996

  Mr. FIELDS of Texas. Mr. Speaker, once again, Federal Communications 
Commissioner Jim Quello has injected a healthy dose of common sense and 
sound judgment to a Federal agency badly in need of both.
  In a Wall Street Journal op-ed piece yesterday, Commissioner Quello 
argued eloquently for flexibility as the FCC works to approve 
guidelines implementing the Children's Television Act.
  The act--passed by Congress 6 years ago--seeks to increase both the 
quantity and the quality of children's television programming. Those of 
us who worked to pass the Children's Television Act sought to establish 
a simple, flexible yardstick by which broadcasters' compliance with the 
act could be measured.
  But, as Commissioner Quello points out in his excellent op-ed piece, 
proposed regulations implementing the act--regulations that are 
circulating at the FCC--now exceeds 100 pages. Disturbingly, reports 
suggested that as the number of pages has increased, the guidelines 
have turned into regulations, and flexibility has been replaced by 
rigidity and inflexibility. I say reportedly, because no one on Capitol 
Hill has yet been provided a copy of the proposed regulations.
  I wish to thank Commissioner Quello for his many years of 
distinguished service at the FCC, as well as commend him on an 
excellent op-ed piece. I also want to make clear that I share his 
position with regard to guidelines implementing the Children's 
Television Act, and I pledge to work with him to reduce the regulatory 
overkill that has been--and remains--the hallmark of so much of what 
the FCC does.
  I commend Commissioner Quello's op-ed piece in yesterday's Wall 
Street Journal to your attention, Mr. Speaker, and to the attention of 
my colleagues.

             [From the Wall Street Journal, July 24, 1996]

                     The FCC's Regulatory Overkill

                          (By James H. Quello)

       President Clinton has summoned broadcasters to the White 
     House for Summit on Children's Television next Monday. I hope 
     the president uses this highly visible event to set the stage 
     for creating sensible, effective rules to implement the 
     Children's Television Act.
       The Federal Communications Commission, charged with 
     developing the actual rules, has been trying to agree on 
     ``processing guidelines''--rules that would require 
     broadcasters to air three hours of kids' educational 
     programming per week. All four commissioners favor the 
     concept of guidelines and a three-hour rule. But some of us 
     believe that for the rules truly to be ``guidelines'' they 
     must contain a reasonable degree of flexibility. The proposed 
     rules the FCC is now considering are so rigid that they look 
     more like government edicts than true guidelines. Indeed, 
     taken in their entirety, these rules are as intrusive and 
     overregulatory as anything I have witnessed in more than two 
     decades at the FCC.


                            content control

       In their present form, these ``guidelines'' would have a 
     legal challenge--and probably would be held unconstitutional. 
     They dictate in such detail that they amount to a form of 
     content control in which the FCC cannot legally engage.
       For example, the draft rules would allow only regularly 
     scheduled, half-hour programs to be counted for purposes of 
     satisfying most of a broadcaster's three-hour children's 
     programming requirement. This would severely constrain 
     stations' ability to broadcast both programs shorter than 30 
     minutes and specials like President Clinton's hour-long talk 
     with American schoolchidren--not because they aren't 
     educational but simply because they don't fit the FCC-decreed 
     format.
       Television licensees would also have virtually no incentive 
     to finance the broadcast of educational shows on local PBS 
     stations. This would eliminate any realistic possibility that 
     commercial broadcasters would contribute to the 
     development of new noncommercial children's programs like 
     ``Sesame Street.''
       On top of these arbitrary rules are page after page of even 
     more burdensome and pointless ancillary requirements. There 
     are rules on how often the FCC-sanctioned programming must be 
     shown each season, on how many times it can be pre-empted, 
     and on what time of day it can be broadcast in order to 
     qualify.
       There is a new rule requiring all 1,444 television stations 
     to file paperwork with the FCC every three months--even 
     though the exact same paperwork must be made available on 
     request at the TV station's local office.
       On and on it goes, for over 100 pages and 200 paragraphs--
     an intrusive and meddlesome regulatory mess never envisioned, 
     let alone sanctioned, under the Children's Television Act.
       In fact, Congress seemed to have just the opposite in mind 
     when it passed the act in

[[Page E1373]]

     1990. The legislation itself does not require any prescribed 
     number of hours or specific types of programming. Its 
     champions in both the House and Senate explained that the 
     criterion should be ``a station's overall service to 
     children'' and that a broadcaster should have the ``greatest 
     possible flexibility in how it discharges its public service 
     obligation to children.'' In so framing the Children's 
     Television Act, its sponsors wisely sought to insulate both 
     the act itself and the regulatory power of the FCC from legal 
     challenges.
       For as the courts have repeatedly found, public-interest 
     requirements relating to specific program content create a 
     high risk that such rulings would reflect the FCC's tastes, 
     opinions and value judgments--rather than a neutral public 
     interest. Such requirements must be closely scrutinized, lest 
     they carry the commission too far in the direction of 
     censorship. As the Supreme Court recently concluded, ``The 
     Commission may not impose upon licensees its private notions 
     of what the public ought to hear.''
       The draft programming guideline rules ignore Congress's 
     deliberate decision to allow stations flexibility and thereby 
     avoid constitutional challenges. Instead, the draft rules 
     virtually invite such a challenge.
       What's going on here? A most worthy goal, children's 
     educational and informational programming, is being cleverly 
     manipulated to revive outdated and discarded ``scarcity'' 
     theories of broadcast regulation. Scarcity justified 
     regulation many years ago, when broadcast TV was the only 
     show in town and a few stations were the only source of video 
     programs.
       Today, however, there is a superabundance of over-the-air 
     broadcast outlets. Cable, with its 135 networks, reaches 98 
     percent of all television homes. Satellite services have 
     grown rapidly, and VCRs are now in 83 percent of all American 
     homes. To top it off, computers and the Internet are becoming 
     an outlet of choice for our children's time and energy.
       With this incredible menu of program choices, claims of 
     marketplace failure are outdated and farcical. The main 
     legislative and regulatory thrust today must be toward 
     competition and deregulation, not program content regulation 
     and First Amendment intrusion. Thus, it is increasingly 
     difficult, logically and legally, to justify additional 
     regulation of broadcasting, the only medium providing 
     universal free service.
       What to do? First, this controversial draft FCC order 
     should be released right away in its entirety for public 
     comment. Let's fully inform everyone of its contents.


                              wake-up call

       This is an unusual step, but this issue is deteriorating 
     into an unusually misguided proceeding. If this draft order 
     were made public, I can't imagine anyone with any sensitivity 
     to the First Amendment supporting it, since it calls for 
     unprecedented government micromanagement of the nation's 
     leading news and information medium. If adopted, these rules 
     would set a precedent that could shackle broadcasting with 
     the prospect of even more extensive content and structural 
     regulation in the future. Public disclosure would serve as a 
     nationwide wake-up call to what is potentially at stake for 
     all communications media.
       Many congressmen have, in good faith, signed a letter 
     generally supporting three hours of children's programming. I 
     cannot believe these congressmen would support the adoption 
     of overly rigid rules that threaten to undermine the judicial 
     sustainability of the act itself. A three-hour-per-week 
     guideline for children's educational programming makes sense 
     and is universally supported. But it must be flexible enough 
     to allow broadcasters to do their job--and flexible enough to 
     avoided censorship.
       At the risk of violence to the first Amendment, we will not 
     be doing children or their parents any favors by rushing 
     ahead with an overregulatory exercise in micromanagement. 
     Both President Clinton and leaders in Congress have declared 
     that ``the era of big government is over.'' Is that true for 
     everyone but the FCC?

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