EMBARGOED UNTIL NOON 11/14/95

    Remarks by Commissioner James H. Quello
          Before The Media Institute
    The Four Seasons Hotel - Washington, DC
               November 14, 1995

      I want to congratulate the Media Institute for
the strong First Amendment leadership that it has
provided on many public policy issues that are being
debated at the FCC and in the courts.

      It is critical for independent organizations
like the Media Institute to be able to defend the
First Amendment for the sake of the public -- and the
Republic.  Otherwise, these points of view are not
always heard.  It is not that those in corporate
positions do not believe in defending their First
Amendment rights.  But those who depend on the FCC for
licenses and other regulatory approvals are not always
free to advocate a strong principled position in the
face of some government opposition.  As Napoleon
Bonaparte said, "A man will fight harder for his
interests than for his rights."

      I am disappointed that some current and former
public officials have disparaged those in the industry
that have raised First Amendment questions.  A former,
well-known FCC Chairman, for instance, has said that
if ever a word were in need of a rest, "censorship" is
that word.  Others have castigated broadcasters for
hiding behind the First Amendment.

      Personally, as a long-time public official, I
think such views are either outdated or unseemly. 
Every FCC Commissioner and every employee of the
agency takes an oath to uphold the Constitution of the
United States upon taking office.  It is simply not
right to treat the First Amendment as an inconvenient
impediment to regulatory empire building.  I think it
is more becoming for public officials, who would use
the force of regulation to dictate what speakers
should say, to at least be sensitive to the idea that
they are treading on Constitutional turf.

      Quite frankly, Constitutional rights are
deliberately meant for people to hide behind.  The
framers of the Constitution designed the Bill of
Rights as a shield to protect the people from
dictatorial government decisions or zealous officials. 
Assuming that all FCC Commissioners (or government
officials) will automatically show restraint is not
the answer.  There is always the possibility that
someone vested with power will inadvertently (or
vertently) cross the line.  That is what the First
Amendment wants to prevent.

      Actually, if there is a word in need of a rest,
it is not the word "censorship," it is the word
"voluntary."  It is fantasy to suggest that corporate
officials with billions of dollars on the line and who
must come to the FCC as supplicants can effectively
resist the well-timed urgings of government officials
who have persisted in well-articulated programming
demands.  Acquiescence to such urgings is hardly
voluntary.

      I think it behooves all of us in government to
remember that the Constitution is the law that the
government must obey.  No government official, and no
federal agency, is above that law.  As former Chief
Judge David Bazelon of the U.S. Court of Appeals for
the D.C. Circuit said 20 years ago, "the use of
'raised eyebrow' tactics presents serious issues which
should at least engage our undivided attention as we
review communications policy and the Constitution."

      It certainly engaged my attention because I
supported Chairman Dick Wiley in our controversial FCC
"Family Viewing Hour" years ago.  It received harsh
court reviews and was placed in limbo.  At that time,
I preferred "jawboning" or "raised eyebrow" to direct
government mandates which offend Constitutional
rights.  I once explained it as the fine line between
exhorting or extorting . . . It is a matter of timing
and situations.  Certainly, strong exhortations at a
license transfer time on a contested, undecided FCC
issue, raises justifiable concerns of impropriety and
possible governmental extortion.  A basic question
comes to mind:  "Do you think government should tell
broadcasters what kind and amount of programming to
air?" 

      But, let's get back to the principal contention
in government-mandated program requirements --
Constitutionality.

      The Media Institute filed pertinent comments
with the FCC.  It stated:

      The Commission probably echoed Congress in
      listing specific examples of government
      approved educational programs for
      children.  The legislative history
      provides a wealth of examples of
      children's programming that is educational
      and informational.  These include "Fat
      Albert and the Cosby Kids" (dealing with
      issues important to kids, with
      interruptions by host reinforcing purpose
      of show), "CBS Schoolbreak Specials"
      (original contemporary drama educating
      children about the conflicts and dilemmas
      they confront), "Winnie the Pooh and
      Friends" (show based on books designed to
      encourage reading), "ABC Afterschool
      Specials" (everyday problems of youth),
      "Saved by the Bell" (topical problems and
      conflicts faced by teens), "Life Goes On"
      (problems of a retarded child, emphasizing
      pro-social values), "The Smurfs" (pro-
      social behavior), "Great Intergalactic
      Scientific Game Show" (basic scientific
      concepts), and "Action News for Kids"
      (weekly news program for and by kids). 
      Where determinations of whether a program
      qualifies as "educational and
      informational" are in doubt, we will
      expect licensees to substantiate their
      determinations.

Then, in what many lawyers considered a First
Amendment affront, the Commission volunteered that the
specifically named programs have received the
government stamp of approval for broadcast. 


Listen to what the Commission said:

      We will rely on the guidance given in the
      legislative history, including the
      specific examples cited above, in ruling
      on the sufficiency of such demonstrations
      [of whether a program qualifies as
      educational and informational].

      Thus, an illustrative list has, in the wink of
a bureaucrat's eye, been transformed into a laundry
list of government approved shows -- something that
was never intended by Congress and something that
would never be approved by any court.

      The programs listed above and many others are
among the many children's programs scheduled by
broadcasters.  Some reporters or exponents of advocacy
journalism single out examples of listed programs of
questionable educational or informational value while
conveniently forgetting to mention that broadcasters
also list many more programs that definitely are
educational or informational.  For example, it is
relatively easy for a broadcaster in listing seven or
eight qualified programs to list one that an opposing
advocacy group might find unqualified.  After all, it
is a very subjective judgment.  It is also a judgment
that must be questioned when a leading proponent of
"market failure" and the need for more children's
programming has characterized "It's Academic" as a
game show rather than a children's educational
program.  But, FCC Commissioners casting judgments on
what constitutes acceptable children's television
programming for government approval constitutes a
First Amendment intrusion in itself.

      However, it is time to balance a one-sided
Washington Post article (10/13/95) that selectively
presented 14 questionable children's programs listed
by broadcasters to the exclusion of many others.  None
of the 72 programs listed below that are currently
being broadcast appeared on the Washington Post list. 
These programs include many mentioned in the
legislation and in legal filings at the FCC.  They
provide a more balanced, positive view of numerous
educational/informational programs available to
children.

Fat Albert and the Cosby Kids             Syndicated
It's Academic                             WRC-TV
Washington & other stations
CBS Schoolbreak Specials                  CBS
ABC Afterschool Specials                        ABC
Great Intergalactic Scientific Game Show  Syndicated
Action News for Kids                      Syndicated
Where on Earth is Carmen Sandiego         Fox
Saved by the Bell                         NBC
Bill Nye the Science Guy                        
Syndicated
Winnie the Pooh and Friends               Syndicated
The Smurfs                                Syndicated
The Magic Adventures of Mumfie            Fox
Jim Henson's Animal Show                  Fox
Johnson and Friends                       Fox
Rimba's Island                            Fox
Budgie the Little Helicopter              Fox
Free Willy                                ABC
Fudge                               ABC
The New Adventures of Madeline            ABC
ABC Weekend Specials                      ABC
Beakman's World                           CBS
National Geographic's Wild Animals        CBS
Life Goes On                              Syndicated
California Dream                          NBC
Hang Time                                 NBC
The Fox Cubhouse                    Fox
Taking It Out                             Fox
Watch This                                Local,
Seattle, WA
The Magic Door TV Theatre                 Channel 2,
Chicago
Hang on to the Dream                      WDIV,
Detroit
News to Use (for kids)                    KTRV, Tampa
Talk Box                                  WISC-TV 3
Madison, WI
Know TV (weekly magazine/12-16 age group)     Wish TV
Orlando, FL
KCNC-TV News for Kids                     Denver, CO
Captain Bob                               WCVB-TV,
Boston
A Likely Story                            WCVB-TV,
Boston
News 4 Kids                         Syndicated
Fast Forward                              WPVI
Philadelphia
Capelli and Company                       Hearst
Broadcasting
Nick News                                 Syndicated
Real News for Kids                        Syndicated
Jack Hanna's Animal Adventure             Syndicated
Madison's Adventure, Growing Up Wild      Syndicated
Sesame Street                             PBS
Kid's Songs                               PBS
Story Time                                PBS
National Geographic Television                  All
NBC stations
Specials on African Americans--
  Hispanics and History                   NBC
Feed Your Mind                            Fox
Syndicated
Not Just News                             Fox
Syndicated
Animal Adventures                         WPLG/ABC
Growing Up Wild                           WCIX/CBS
Name Your Adventure                       WTVJ/NBC
Gladiators 2000                           Syndicated
Dial-A-Teacher                            PBS
Jack Houston's Imagineland                PBS
Magic School Bus                          PBS
Mr. Roger's Neighborhood                  PBS
Puzzle Place                              PBS
Barney                                    PBS
Reading Rainbow                           PBS
By Kids, For Kids                         WPLG/ABC
Adventures in Wonderland                  Syndicated
Blinkey Bill                                    
Syndicated
Captain Planet                                "
Zoo Life                                      "
Pick Your Brain                               "
World of National Geographic                  "
What's Up Network                       "
Peppermint Place                              "
Sing Me a Story                               "
Happy Ness                                    "
Jelly Bean Jungle                             "

      Along with the 73 educational/informational
programs listed above, there are many local short
vignettes with positive educational or pro-social
messages that are not included in the list.

      Today, there is a superabundance of program
choices -- over 1500 full power television stations,
including 4 networks, 2 additional emerging networks,
363 noncommercial educational stations, and more than
1600 low power community stations.  The 1600 community
stations claim that 90% broadcast children's programs
and 74% carried extensive children's programs.

      Broadcast television is not the sole dominant
player in the video marketplace any more.  Today,
cable television reaches 97 percent of all television
homes and 63 percent of households subscribe.  Cable's
135 program networks, with 60 more in the planning
stages, have brought an undreamed-of diversity of
programming that responds to virtually every
conceivable want and wish.  DBS, MMDS, and, soon,
video dialtone systems will augment and extend this
array of programming.  Also vying for the hearts and
minds and eyes of the viewer are the Internet and
VCRs, which are now in 82 percent of all homes.


      The notion of a general marketplace failure in
children's programming is further refuted by the
public's willingness to subscribe to cable services
like the Learning Channel, Discovery, Nickelodeon,
Arts and Entertainment, the Disney Channel and others. 
In addition, Children's Television Workshop has
announced plans to form a new cable channel.  Also,
most networks have announced future plans for
increasing both children's and family value
programming.

      Then too, let's not forget that numerous
educational and informational children's programs are
available on VCR tapes, which can be played over and
over in the 82% of homes that now have VCRs.

      With this incredible menu of program choices,
the main legislative and regulatory thrust today must
be toward competition and deregulation -- not program
regulation and First Amendment intrusion.  In fact, we
are fast approaching the millennium when competition
will replace the need for regulation -- a long-term
goal sought by both Congress and the FCC.

      However, deregulation doesn't seem to be what
some government officials have in mind.  One recently
equated the public interest with, and I quote,
"specific, concrete, and meaningful duties" imposed on
broadcasters.  These are, of course, code words for
specific quantitative programming requirements.  If
this is a deregulatory "new regime" at work, thank God
for Congress, the federal courts of appeal, the
Supreme Court, the Media Institute, the Radio-TV News
Directors Association and editorial pages of
newspapers and magazines.

      Broadcasting & Cable and Electronic Media
Magazine have been especially supportive in defending
media First Amendment rights.  An editorial in this
week's issue of Broadcasting & Cable Magazine is right
on point.  The last paragraph reads "Come to think of
it, considering all the children's fare available in
all TV media, perhaps the time has come to repeal the
Children's Television Act of 1990 rather than ask the
FCC to make it worse.  This may be the moment to
declare victory and get out."

      Any activist claim of a "marketplace failure" in
children's programming is a farcical notion in today's
multichannel, multi-faceted era and represents only
the viewer's failure to locate the desired programs.

      Thus, it is increasingly more difficult, both
logically and legally, to justify legislation or
additional regulation imposing program restrictions or
quantitative children's educational requirements on
broadcasters when a great and ever-increasing variety
of program choices are available to the public for
just a twist of the dial or the insertion of a VCR
tape.

      The most recent NAB survey of 559 TV stations,
the most comprehensive survey to date, indicate that
broadcasters are now averaging 4 hours programming
weekly and that there has been a significant increase
in children's programming from 1990 to 1994.  For its
research purposes, the NAB used the government's
definition of educational/informational TV programming
as "programming originally produced and broadcast for
an audience of children 16 years old and younger which
serves their cognitive/intellectual or
social/emotional needs."

      For all practical purposes, the fight over
additional children's programming is over.  It is
counter-intuitive and counter-factual to believe that
licensed broadcasters, ever sensitive to government
requirements, would not willingly comply with the
Children's Television Act.  The significant increases
were achieved without objectionable First Amendment
encroachments of government-mandated, quantitative
program encroachments or social contracts.
 
      Overall, there is one all-important, overriding
principle that transcends the problem of mandating an
additional three hours per week of TV children's
programming in the existing multichannel superabundant
TV program universe in which broadcasters already
exceed three hours per week.  It also transcends the
minor arguments over the relative merits of
conflicting program surveys.  This all-important
principle is whether a government agency, controlled
by political appointees, should have the power to
impose its quantitative and qualitative programming
will on the most influential news and entertainment
media in the nation.  The answer is a resounding First
Amendment "No" -- particularly when the government-
mandated quantitative requirement is measured by
broadcasts of government-approved programming or type
of programming.

      The Supreme Court in the summer of 1994 issued
a most significant broad First Amendment ruling that
quantitative program advocates avoid like vampires
shunning the cross.  In ruling on the 1992 Cable Act,
the Supreme Court stated, and I quote:

      The FCC's oversight responsibilities do
      not grant it the power to ordain any
      particular type of programming that must
      be offered bybroadcast stations.  The
      Commission may not impose upon them its
      private notions of what the public ought
      to hear.

      An implausible counterargument to this Supreme
Court statement seems to be that the courts have
supported time constraints to provide children a safe
harbor from indecent programming.  However, it is a
quantum First Amendment leap from time constraints to
provide a safe harbor for children to specific,
government-mandated quantitative program requirements
for government approved programming.

      I closed my speech to the Chicago FCBA with the
statement:  "Ignoring the surveyed facts of a
substantial increase in children's programming,
lacking Congressional approval or Court precedent, the
regulatory activists are playing the emotional C
(children's) card for all it's worth.  From a First
Amendment perspective, they are dealing from the
bottom of the deck."

      And that's the way it is, at least with me and
I trust with you.

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