August 11, 1997

                STATEMENT OF CHAIRMAN REED E. HUNDT
                                   
Re:  In the Matter of the Repeal or Modification of the
Personal Attack and Political Editorial Rules

     The Commission has before it a proceeding to determine
whether the personal attack and political editorial rules should
continue.  Changes in technology, the political process, and the
needs of the public make it appropriate for the Commission to
review the purposes and effects of these rules.  I believe that these
changes are insufficiently understood with respect to the two rules,
and that therefore we should seek prompt but ample further
comment.

       In general, I think a Commission inquiry into the use of
the public's airwaves to further the process of full and fair political
debate is long overdue.  President Clinton called just last week for
the Commission to commence an inquiry into the possibilities of
using the public's airwaves for free and reduced rate access for
political candidates. I think the same inquiry rationally should
examine the political editorial rule and the personal attack rule.
  
      It certainly is difficult to conceive of a more important
purpose for free, local, universal television than its role in
promoting democracy.  It is also plain to even the most casual
observers of politics and even the most occasional watchers of
television that the ways candidates and issues appear on television,
and the effects of television on the political process, have changed
substantially, for better and for worse, since these rules were
drafted.  Even more obvious is the way that paid access to
television has become one of the most troublesome necessities of
American politics.  It is virtually impossible to run for election by
a large constituency without devoting an inordinate amount of time
to the task of raising increasingly impossible sums of money to buy
television time.  Meanwhile, the nature of political discussion,
debate, and comment on radio and television outside of paid time
has changed radically.

     All these changes amount to a metamorphosis in the
relationship between the uses of the public's airwaves and politics
since the long-ago days when the country first realized that
television had swayed voters to Jack Kennedy, radio to Richard
Nixon, and newspapers to both. Because Kennedy won, television
was deemed the triumphant medium, for the first time in politics. 
Our ruminations about the significance of this well-documented
event are now relegated to the ancient history of both politics and
television. Yet the Commission has not in recent times looked
comprehensively at the implications of the transformations in the 
subtle, critical, and often justly criticized triangular relationship
among television, money, and politics.

     An inquiry of an appropriately neutral, fair, open,
nonpartisan, and broad dimension is in order. Indeed the current
Commission unanimously voted for an inquiry on the full extent of
the public interest duties of broadcasters in the digital age when it
granted the multibillion dollar gift of digital TV spectrum to
current analog broadcasters.  That inquiry was intended specifically
and clearly to include the political debate issues that are implicated
in today's decision.  It should be launched.

     Another aspect of that Public Interest Notice of Inquiry
should be a reexamination of the Commission's 1987 decision in
Syracuse Peace Council.  In that decision, the Commission
gratuitously took up the issue of what standard of review should
apply to the broadcast medium under the First Amendment.  Upon
review, the Court of Appeals for the D.C. Circuit declined to reach
that conclusion by the Commission -- a conclusion that is
inconsistent with repeated statements by the Supreme Court.  

     Since 1987, the Commission itself has clearly retreated
from the position taken in Syracuse Peace Council.  For example,
the rules recently written to implement the Children's Television
Act plainly and properly follow the standard of review for
broadcasters that has been set by the Supreme Court, rather than
that articulated in the Syracuse Peace Council dicta.  The Supreme
Court, of course, has repeatedly pointed out that the nature of
broadcasting warrants a special standard of review for the broadcast
medium, as recently as this last term's decision in Reno v. ACLU. 
Our overdue Public Interest Notice of Inquiry should address the
implication of  recent  decisions on that aspect of Syracuse Peace
Council.

     In our Public Interest Notice of Inquiry, we should also take
account of the current nature of the video marketplace.  Many
more people continue to seek to acquire broadcast licenses, and the
right to broadcast, than do obtain them.  That is a scarcity issue. 
Moreover the digital TV proceeding limited, as opposed to
expanded, the number of analog TV licenses that physically can be
granted.  By dint of Congressional decision, the digital television
spectrum grant therefore did nothing to increase the number of
voices in the marketplace and nothing to reduce spectrum scarcity
for free, broadcast television.  This is another aspect of the inquiry
that the Commission should undertake.

       Furthermore, the Commission should take this inquiry
beyond an examination of the issue of spectrum scarcity.  Scarcity
is not the only justification on which we can appropriately base
minimal, nonburdensome requirements for broadcast licensees to
serve the public interest, such as the requirements imposed by
Congress on cable (e.g., must-carry and "PEG" obligations) or on
direct-to-home satellites.  See Time Warner Entertainment Co. v.
FCC, 93 F.3d 957 (D.C.Cir. 1996).  

     There is a line of cases under Supreme Court's public
forum doctrine that permits government regulation of speech
activity on certain types of public property.  The 
appropriateness of their application to broadcasting should be
considered.  It is also worth considering whether a quid-pro-quo
approach or conditional license approach is a sound legal principle
for guiding future Congressional and Commission treatment of
broadcast licensees. 

     Yet another line of discussion lies in the notion that the
First Amendment directs the government to promote robust public
debate on public issues.  The marketplace alone will not ensure that
every kind of valuable speech is provided.  Many, such as
Professor Cass Sunstein, argue that the values embodied in the
First Amendment should be furthered through content-specific,
though viewpoint-neutral, rules.  A similar argument underlies, for
example, the Commission's unanimously voted children's
educational and informational television rule of 1996. Does the
theory of that vote, in which all members of today's Commission
concurred, suggest that when market forces do not promote
appropriate and necessary opportunities for fair political discourse
on television, some minimal, nonintrusive, and viewpoint-neutral
rules to correct for such market failure are constitutional and
indeed desirable?
      
     The inquiry that I, this Commission, many Members of
Congress, and most important in my view, the President, have
demanded must be seen in the context of the broadcast industry's
aggressive, persistent, and successful promotion of its own
commitment to use the public's airwaves to serve the public
interest.  Because of advocacy by not only the United States
government, but also by the broadcast industry, the courts
repeatedly declare the broadcast medium as specially deserving of
commercial benefits granted by law and regulation, and deserving
of special legal treatment as the carrier of special public interest
duties.  The Supreme Court's recent Turner II decision upholding
broadcasters' must-carry rights is just one example.  What are the
implications of the broadcasters' arguments on the definition of
their duties to promote, protect and further democracy in America?
     
     These issues are important to our democracy, and from a
constitutional perspective they are non-trivial. They should not be
addressed by glib, nonfactual, unsupported statements that scarcity
does or does not exist; that the First Amendment says one thing or
the other; that there is or is not adequate diversity of viewpoint in
television; that there is or is not sufficient access to free television
for candidates or issues.  The Commission cannot with any level of
intellectual honesty report to Congress or the country on the facts
and the law relating to these crucial issues without voting for a
respectable, even-handed, all-questions-asked inquiry.  The Public
Interest Notice of Inquiry should articulate with academic rigor all
relevant issues and invite a full exploration by academics, public
interest citizens' groups, affected industries, all political parties,
and indeed all citizens. Using everything from the Internet to
personal visits, all should comment, and a responsible, honest
report should be written about how the public's airwaves are used
and ought to be used to make our glorious and on-going experiment
in democracy work better and better.

      I believe that the personal attack and political editorial
rules should be considered comprehensively in that context.  It
might well be that after appropriate consideration, including but not
limited to consideration of the impact of digitization of television,
the Commission would include that the existing and arguably
antedated formulation of the personal attack rule or political
editorial rule does not further the goals it was intended to promote.
Perhaps the Commission would then change or repeal the rules.
However, further inquiry is appropriate, has already been promised
by this Commission, and should be made. 

                               - FCC -