New FCC Chairman Poised To Pursue Liquor Ad Inquiry
By Richard T. Kaplar
New FCC Chairman William Kennard appears likely to succeed in one area where former chairman Reed Hundt failed -- persuading the Commission to open an inquiry into distilled spirits advertising on
television.
Liquor advertising was one of the first subjects Kennard discussed after taking office Nov. 3. "This is all about kids," the new chairman said, adding that he wants the FCC to create a public record and serve as a forum on the issue.
Under Hundt, the FCC deadlocked 2-2 last July on whether to adopt a notice of inquiry on liquor advertising. But Commissioners James H. Quello and Rachelle Chong, who strongly resisted the inquiry, have departed. With four new commissioners, Kennard may gain a 3-2 edge in pursuing the alcohol question.
As the FCC's general counsel, Kennard was Hundt's chief legal advisor on the alcohol advertising issue, which Hundt pursued with little apparent regard for the FCC's jurisdiction or the First Amendment.
Kennard, however, seems more mindful of jurisdictional and constitutional concerns but believes the FCC can regulate on the basis of its public interest mandate.
In a written response to the Senate Commerce Committee following his confirmation hearing, Kennard said he was aware of the decades-old liaison agreement between the FCC and the Federal Trade Commission. Under that pact, the FCC agrees to defer to the FTC on advertising regulation.
Any FCC action on alcohol advertising "must avoid unnecessary duplication of regulatory efforts," Kennard said. He stopped short, however, of pledging that the FCC would cede advertising regulation to the FTC in every instance, distinguishing the FTC's focus on false and misleading advertising from the FCC's public interest mandate."
On the constitutional question, Kennard said the FCC "must analyze these issues in light of the important First Amendment concerns that are implicated." He acknowledged the commercial speech protections of 44 Liquormart, but noted that the Fourth Circuit subsequently upheld the Baltimore billboard bans.
Handicappers predict that Democrats Kennard, new commissioner Gloria Tristani, and returning commissioner Susan Ness will vote to open an alcohol inquiry. New Republican commissioners Harold Furchtgott-Roth and Michael Powell are expected to vote against an inquiry.
