Remarks by Commissioner James H. Quello
                               Before the
                       Midwest Chapter of the FCBA
                        Palmer House, Chicago, IL
                            October 19, 1995
     Thank you Red Quinlan for that sterling introduction -- that is supposed to be
kinda funny.  You see that Sterling "Red" Quinlan is a distinguished author of
numerous books including the notorious "$100,000,000 Lunch," an intriguing recount
of a super-expensive lunch preceding an FCC TV license revocation some years ago.
     Anyway, Red, after that kind of introduction I should quit right now while I am
still ahead.
     However, your generous memorable introduction will not be the most
momentous of my Chicago Palmer House experiences -- In September 1937, an
upper peninsula small town hillbilly, me, spent his first and only honeymoon in the
then-luxurious Palmer House.  It is still a fine hotel, but not with the exalted luxury
status it enjoyed in the 1930s.  Yes, that was over 58 years ago and I am still
married to that same woman.
     Some of my friends, or should I say acquaintances, can't understand how one
person could stand me for 58 years.  It proves what a great and tolerant sense of
humor can do for a good woman.
     As I have stated in other forums, I believe in marriage.  If it weren't for
marriage, some men might go through life thinking they had no faults at all.
     We all have faults -- even Commissioners and Chairmen.  But, I feel
comfortable quoting Goethe, the great historical German philosopher, "One only has
to grow older to become more tolerant and even permissive.  I see no faults
committed by others that I have not committed myself."
     However, I don't intend to include in my faults (1) violating the Constitutional
First Amendment and Section 326 of the Communications Act, which prohibits FCC
censorship, by in any way endorsing program quotas (quantitative standards or
guidelines) for any classification of programming, whether for children, senior citizens
or others; or,  (2) authorizing a government agency, controlled by political appointees,
to make specific judgments as to what children's programming is or is not acceptable
on the most influential news and entertainment medium in America.  Government
officials endorsing specific programs and disapproving others are already
accomplices in government-compelled speech forbidden by the First Amendment.

     For example, the Commission has already given the green light to "Fat Albert
and the Cosby Kids;" "CBS Schoolbreak Specials;" "Winnie the Pooh and Friends;"
"ABC Afterschool Specials;" "Saved by the Bell;" "Life Goes On;" "The Smurfs;"
"Great Intergalactic Scientific Game Show;" "Action News for Kids;" "Carmen
Sandiego."  One Commissioner even specifically voiced approval for "Bill Nye, The
Science Guy," and another has bemoaned the cancellation of "Cro" and the
substitution of "Dumb and Dumber."  From a regulatory official, these endorsements
represent government intrusion into program content.
     The Media Institute in its comments filed with the FCC states that the
Commission is probably echoing Congress in listing specific programs.  I agree and I
quote:
     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 officially blessed shows -- something that was never
intended by Congress.

     You don't have to look far to see how slippery a First Amendment slope this
type of approach puts the government on.  For example, 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.
     "It's Academic," celebrating its 35th anniversary on the air on station WRC(TV),
Washington, DC, has won numerous local and national awards, including an
endorsement by the National Association of School Boards.  Based on the well-
established theory that competition motivates learning, this game show questions
high school students from 162 schools in current events, history, geography, and
other areas covered in their school curriculum.  Because of its educational value,
public school systems in the Washington area have created "It's Academic" clubs to
extend the benefits of "It's Academic" to more students.  These clubs, along with the
show, are flourishing.
     Here's the bottom line -- FCC Commissioners casting judgments on what they
think constitutes "good" children's television programming unavoidably constitutes a
First Amendment intrusion.
     The subject is complex and politically charged because everyone heartily
endorses quality children's programming -- activists, the general public, Congressmen
and all five Commissioners.  I resent the implication that FCC Commissioners are
"against children" unless they support imposition of a 3 to 5 hour quantitative
standard, particularly when there has been a significant increase in children's
programming over the past four years.  Also, I believe we should be concerned that
children grow up in a society where First Amendment freedoms are fully appreciated.
This goal, as applied to society as a whole, is more important than arguing over the
number of hours of educational children's programming on broadcast stations.
     It is counter-intuitive and counter-factual to believe that broadcasters, ever
sensitive to government requirements, would not willingly comply with the Children's
Television Act.  In my view, the fight for additional children's programming is over.
Broadcasters have responsibly responded to the concerns of Congress, the FCC and
public activists by significantly increasing children's programming without the
government risking First Amendment encroachment through government-mandated
program quotas or social contracts.
     An objective review of the latest NAB survey reveals that broadcasters have
responded to the Children's Television Act of 1990.  Some of the results from the
currently released survey are:
    The average commercial television station aired more than 3-3/4 hours
     (225.85 minutes) in Fall 1993 and over four hours (244.74 minutes) in
     Fall 1994 of regularly scheduled full length (30 minutes or more)
     educational and informational children's programs.
    The Fall 1994 amount was over 100% higher than the Fall 1990 amount
     (122.02 minutes).
    Similar significant increases were also found in the airing of children's
     educational and informational specials (i.e., program length 30 minutes
     or more but not regularly scheduled).
    Stations in all market sizes showed strong increases from Fall 1990
     through Fall 1994.
    All affiliate types (ABC, CBS, Fox, and NBC) and independents aired
     substantially more children's educational and informational programming
     in Fall 1994 than in Fall 1990.
    For Fall 1994 over four fifths (81.4%) of the children's educational and
     informational programming started after 7:00 AM, with nearly another
     sixth (15.8%) starting between 6:00 AM and 7:00 AM.
     For its research purpose, the NAB defined educational 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."
     With these latest figures, Congress, the FCC and the public, particularly
children, have won.
     In addition, several networks, already in compliance, have comprehensive,
ongoing plans for future informational and educational programs for children that will
not be undertaken under threat of government-imposed quantitative social contracts.
     However, more and better children's programming has such a seductive
political-social appeal that the programs available in the unprecedented multichannel
universe of today will never satisfy insatiable regulatory appetites reverting to the
good 'ol regulatory "TV scarcity" days of the 1960s and 1970s.
     A former FCC Commissioner I respect as a foremost communications legal
expert, Professor Glen Robinson, succinctly summarized this problem years ago in
his separate statement accompanying children's programming:
     There is especially seductive appeal to the idea of "protecting" children
     against television . . . .  For this reason, regulation of children's
     programming raises the most subtle and the most sensitive of problems.
     Everyone recognizes the free speech dangers of governmental control
     of political broadcasting.  Not enough people appreciate the far more
     subtle problem of governmental control when it is extended to an area
     like this one, where there is widespread popular sentiment supporting
     some measure of governmental control.  But if the First Amendment is
     to mean anything at all, it obviously does not mean that we can make
     judgments on the basis of majoritarian sentiment alone.
     Professor Robinson's statement highlights the difficulty of maintaining First
Amendment rights when confronted with a socially and politically sensitive issue.
     Moreover, his statement was issued in the regulatory era of so-called
broadcast scarcity.  In the multichannel world of today, there is even less justification
for government control.  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 community
low power stations -- claiming that 90% of the community stations surveyed carried
children's programming and 74% carried extensive children's programming.
     Broadcast television is no longer the sole dominant player in the video
marketplace.  Today, cable television reaches 97 percent of all television homes and
65 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.
     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.
     Incidentally, I don't believe I have to disenfranchise myself as a Commission
Democrat, particularly a middle of the road or conservative Democrat, by opposing
politically liberal, outdated regulations in the competitive multichannel communications
market of today.
     Many solid Democrats have stated that regulation is necessary only when
there is lack of competition.  In fact, it was a Democratic Congress in 1990 that
rejected quantitative program requirements for children's programming, thus avoiding
problems with the First Amendment and Section 326 challenges.
     The Senate committee report accompanying the children's television legislation
declared that:
     The Committee does not intend that the FCC interpret this section as
     requiring a quantification standard governing the amount of children's
     educational and informational programming that a broadcast licensee
     must broadcast to have its license renewed pursuant to this section or
     any section of this legislation.
The House committee report with only minor difference, was to the same effect.
Thus:
     The Committee does not intend that the FCC interpret this section as
     requiring or mandating a quantification standard governing the amount
     of children's educational and informational programming that a
     broadcast licensee must broadcast to pass a license renewal review
     pursuant to this section or any section of this legislation.
These Congressional committee observations were, in the Commission's view in April
and again in August of 1991, an order that bound the agency to stay away from
numbers of programs or numbers of hours.  Given this strong legislative direction, the
Commission reacted to what it regarded as marching orders from the Congress.
     The Commission adopted its current rules to implement the Children's
Television Act in April 1991.  Those rules were reconsidered in a Memorandum
Opinion and Order, that reaffirmed most of the decisions of the earlier Order.  In both
documents, the Commission bluntly stated that it was not adopting any minimum
amount of programming standard.  It was staying away, the Commission confessed,
because the Congress had directed it not to go that far.  Thus, in the April 1991
Report and Order, the Commission explained that:
     The Act imposes no quantitative standards and the legislative history
     suggests that Congress meant that no minimum amount criterion be
     imposed.  Given this strong legislative direction . . . We thus decline to
     establish any minimum programming requirement . . . .
On reconsideration in August 1991, the Commission affirmed its view of its limited
authority, as follows:
     We declined to adopt minimum quantitative criteria, finding that the Act
     imposes no such quantitative standards, and the legislative history
     indicates that none should be imposed.
     Notwithstanding all this history, the Commission adopted a further notice of
proposed rulemaking in 1994 that asked whether the Commission should adopt
quantitative children's programming requirements, among other proposals.  And that
brings us full circle to where we are today.
     The few Democratic Congressmen now taking the lead in aggressively
espousing children's quantitative programming 3 to 5 hours weekly should have
simply included them in the Act.  Everyone at the FCC is duty bound to implement a
Congressional Act -- but the point here is, the Children's Television Act doesn't
mandate quantitative standards because Congress explicitly -- and in my view,
correctly -- rejected them.  For us to adopt them now would be to fly in the face of
the statute, not comply with it.
     Many think it is unseemly for a few Congressmen, through aggressive
denunciations, to now insist that the FCC implement a Constitutionally-suspect
quantitative requirement rejected by Congress and previously repeatedly rejected by
the Commission itself.
     In my 20+ years tenure at the Commission, I have adhered to the principle that
I don't decide important controversial issues on the basis of whether I am a
Democratic or Republican appointee.  I do my best to make common sense decisions
on how to best serve the public and industries that employ the public within the
framework of existing law.  I believe Commissioners are appointed to serve the
overall public and are on the public payroll.  When private interests conflict with the
public interest, the public interest must prevail.  However, in complex issues, there
may be differences among Commissioners in what action would best serve the public
interest.  That is why five Commissioners are appointed with different backgrounds
and perceptions to achieve a balance of viewpoints.  The conflicting viewpoints
sometimes result in contentious untidy proceedings.  It lends authenticity to the old
adage that there are two things you never should see being made -- sausage and
FCC regulations.
     However, there are many regulations with positive public interest implications.
Among the current regulatory issues I believe serve the public interest are:  (1)
reasonable local caps on radio and TV multiple and cross ownership to obviate
market domination or antitrust problems; (2) time constraints providing a safe harbor
for children against indecent programming which I have vigorously enforced; (3) the
requirement that broadcasters maintain quarterly issues/program lists open to public
and FCC inspection; and (4) the installation of the V-chip to empower parents to
protect children against objectionable programming as long as the government does
not dictate composition of the ratings board -- although parents always had the
ultimate control by merely tuning out undesirable programming.  I also continue to
favor tax certificates and distress sales -- which we no longer have the authority to 
grant -- to encourage minority ownership.  None of these regulations involve the
government in prescribing what specific programs can, and cannot, be broadcast.
     At this writing, it seems doubtful that an FCC majority will impose any
quantitative or processing guidelines.  Then, too, the Commission would be
complying with Congressional intent if it declined to adopt any form of quantitative
standards.
     Any legislative or FCC regulatory attempt to influence program content will be
closely scrutinized, and likely rejected by federal courts concerned about government
censorship and intrusions on First Amendment rights.
     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 by broadcast
     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.
     The Supreme Court statement must be considered by both the FCC and
Congress when contemplating content-related issues such as violence or children's
television quantitative standards accompanied by specific program pre-approval.  As
a longtime strong advocate of programming violence restraint and indecency
enforcement, the court statements have influenced my legal, if not personal, position.
However, I believe there is a continuing need for broadcasters, cablecasters and
program producers to exercise more responsibility in reducing violent and indecent
programming.
     In the face of public concern and Constitutional constraints, aggressive citizen
action can play a key role in sensitizing programmers and advertisers to the need for
more responsibility and more positive family values in TV, radio and cable.
     Citizen groups like Americans for Responsible TV, Action for Children's
Television, Morality in Media and American Family Association have sensitized
programmers and advertisers to the critical need for responsible, positive
programming.  Under pressure from public groups, some advertisers have dropped
sponsorship and stations have become more aware of constant public opposition
against program excesses in glamorized sex and brutal violence or the need for
programming to meet the educational and informational needs of children.  Direct
citizen action can be very effective and doesn't implicate governmental First
Amendment intrusions.
     In conclusion, there is a principle involved that transcends mandating an
additional three hours per week of broadcast children's programming in the existing
multichannel TV universe in which broadcasters already exceed the three hour per
week proposal.
     The all-important principle is whether a government agency, controlled by
political appointees, or advocacy groups petitioning that government agency, should
have the power to impose their quantitative and qualitative programming will on the
most influential and pervasive news and entertainment medium in the nation.
     Congressional Acts and Court precedents, conscious of First Amendment
rights and Section 326 provisions, have said no.  I hope the majority of
Commissioners agree.
     Broadcasters don't need another layer of government regulation in the
competitive multichannel program era of today.  And the Commission doesn't need
another opportunity to lose in Court -- no matter how good our lawyers are.
     Ignoring the 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.
                                    ###
NEWS                                                       October 19, 1995
                       COMMISSIONER JAMES H. QUELLO
                     ADDRESSES THE MIDWEST CHAPTER OF
                THE FEDERAL COMMUNICATIONS BAR ASSOCIATION
                             CHICAGO, ILLINOIS
     In a speech before the Chicago Federal Communications Bar Association today, Senior
FCC Commissioner James H. Quello said the fight over additional children's programming is
over.  Broadcasters have responsibly responded to the concerns of Congress,  the FCC, and
public activists by increasing children's programming by over 100% from the fall of 1990 to the
fall of 1994, according to the latest survey released this month by the National Associations of
Broadcasters (NAB).  Stations in all market sizes showed strong increases during this period.
The average TV station broadcast more than 3-3/4 hours in the fall of 1993 and over four hours
in the in the fall of 1994.
     "Latest survey figures show that the Congress, the FCC and the public have won,"
Quello said.   "In fact, it is counter-intuitive and counter-factual  to believe that broadcasters,
ever sensitive to government requirements, would not willingly comply with the Children's
Television Act."   Quello added, "These significant increases in children's programming were
achieved without objectionable First Amendment encroachments through government-mandated
quantitative program quotas or social contracts."
      For its research purposes the NAB defined educational 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."
     Commenting on the sensitivity of the problem, Quello said, "More and better children's
programming has such a seductive political-social appeal that the superabundant programs now
available in the unprecedented multichannel world of today will never satisfy the insatiable
regulatory appetites of some.  They insist on reverting to the good ol'  regulatory "TV scarcity"
days of the 1960s and 1970s."
     Quello continued, "Regulatory activists lacking congressional approval, court precedent
and choosing to ignore the substantial increases in children's programming are playing the
emotional "C" (children's) card for all its worth.  From a First Amendment perspective they are
dealing from the bottom of the deck."
                                  (over)
                                   - 2 -
     Quello said, "The Supreme Court in the summer of 1994 issued a most significant and
broad First Amendment ruling that government mandated quantitative program advocates avoid
like vampires shunning the cross.  The Supreme Court stated, 'The FCC's oversight
responsibilities do not grant it the power to ordain any particular type of programming that must
be offered by broadcast stations.  The Commission may not impose upon them its private notion
of what the public ought to hear.'  Thus, both the FCC and Congress must consider the Supreme
Court statement when trying to impose on broadcasters, the government's notion of what
programming the public ought to see.".
     In conclusion, Quello emphasized, "The all-important principle is whether a government
agency, controlled by political appointees, or advocacy groups petitioning that agency, should
have the power to impose their quantitative and qualitative programming will on the most
influential and pervasive news and entertainment medium in the nation."
                                  - FCC -
     For further information contact:  Lauren J. Belvin (202) 418-2000