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Seven years and five months:
a look back at the tenure of Nick Johnson
Leonard Zeidenberg, Senior Correspondent
December 10, 1973, p. 20
|Note from Nicholas Johnson||Zeidenberg Retrospective on Johnson|
NOTE from Nicholas Johnson, 31 years after publication:
This is a highly critical evaluation of my term as an FCC Commissioner, published in a trade magazine (Broadcasting it was called at the time) that was regularly critical of my actions in its news stories and excoriating in its editorials. I make this "retrospective" available here not only out of a sense of historical completeness, but also because Len Zeidenberg, who was a journalist of professional skills and ethics, tried to get it right and came extraordinarily close.
My own sense at the time, and now in retrospect, was that I had, as an FCC Commissioner (a) the opportunity to write my own job description, (b) an obligation to figure out what is meant by the statutory "public interest, convenience and necessity" standard to which the FCC was to hold broadcasters, and (c) the challenge of configuring, and executing, the most effective way to bring that about.
The concept of industry domination of regulatory agencies was well known and documented in the literature by the 1960s. Thus, the option of tweaking the FCC's policies in modest ways — what in the next to the last graf in the main piece is referred to as "what contributions Commissioner Johnson . . . might have made if he had been less extreme [and] cooperated with his colleagues" — struck me at the time as an approach that would never produce much change of consequence at best, and at worst would be, even in its modest dimensions, constantly frustrated by the legal and lobbying efforts of an unchallenged industry.
Moreover, I thought it a little presumptuous for seven (now five) commissioners in Washington to be making all these decisions for the viewing public. How much better for American democracy, civic education, the quality of television — and not incidentally, the more progressive members of the industry — if the public could be stirred to think through and then represent its own interests.
That was the rationale behind the books, articles, congressional testimony, dissenting opinions, speeches, radio and television appearances, and travel to colleges and universities, research "think tanks," and foundations.
Did I pay a personal price for this strategy and action plan? You bet I did! It's not easy working in the midst of colleagues and corporate representatives whom you are essentially criticizing, reading trade press accounts regularly challenging your motives, responding to wild, imaginative charges, knowing you are cutting yourself off from future governmental appointments or lucrative jobs in the industry.
But I knew I would, and I did it willingly. There are at least two theories of power. One, and the one most widely practiced, is that power is to be not only husbanded, but expanded — once elected or appointed to a federal position the goal is to so conduct oneself as to be re-elected or re-appointed, or ideally to be hired away into the private sector at a salary that is multiples of one's current pay. My theory was that you are not given power for your own personal enrichment; you are entrusted with responsibility to represent the public; power is to be used, to be parceled out over time, so that when one's term expires it is all gone; one uses it to accomplish as much as possible.
So how can I say that Len got it almost right? Because he describes how I could be simultaneously criticized for cutting myself off from effective tweaking of policies within the Commission, even being "hated" by many in the industry, and yet accomplishing much if not all of what I had set out to do in the way in which I had planned on doing it.
— Nicholas Johnson, Iowa City, October 24, 2004
He probably would not have had it any other way. Arousing those feelings was a by-product of the plan that those who have watched his career most closely say he evolved after President Johnson appointed him to the commission in 1966. For whatever reasons of policy, politics or psychological make-up, he decided early on that, if he was to have an effect, it would not be through the normal commission processes. His constituency and power were “out there,” among the people. He would engage them in the processes of government, stir them up, inform them of their rights in the broadcast-licensing process and of broadcasters’ obligations, and in the bargain, of what he regarded as the FCC’s failure to make sure the public interest was being served. And he did it with flamboyance and dash, in speeches, in dissenting opinions, in appearances on network and local television, in articles and in books — in all of them making outrageous statements that commanded attention.
Did he make a difference? The evidence indicates that he did.
Commissioner Johnson did not invent the consumer movement, generally or as it operates in the area of broadcasting. The Office of Communication of the United Church of Christ, for instance, was working in Jackson, Miss., among blacks who felt more abused than served by WLBT (TV), while Mr. Johnson, as a 29 year old maritime administrator, was still hassling the maritime industry's shipbuilders and unions.
But Commissioner Johnson certainly caught up with the movement. CBS Washington Vice President Richard Jencks, who has debated Commissioner Johnson on a number of occasions and who makes no secret of his basic disagreement with him, has said that next to Ralph Nader, Mr. Johnson is "America's foremost publicist” for the movement. And there is the testimony of former Commissioner Kenneth A. Cox, who held impeccable credentials as a liberal, activist and hard-nosed regulator while he was on the Commission. He often sided with Commissioner Johnson on the major issues but he played the game by more conventional rules. He says Mr. Johnson has “succeeded” in the tactics he employed. “Maybe he did better than I.” As proof, he cites the hundreds of petitions that have been filed with the commission to deny license renewal applications. “He didn’t go out and file all those petitions,” Mr. Cox says. “People did who were encouraged by him.”
Albert H. Kramer, founder and former director of the public-interest Citizens Communications Center, who filed many of those petitions on behalf of citizens groups, agrees with Mr. Cox’s assessment. “Nick’s message to the public has been, ‘You can’t rely on anyone. Do it I yourself.’“ As Mr. Kramer sees it,” Nick has tried to bring the American system to bear on the processes of government."
This picture of Commissioner Johnson drawn by Messrs. Jencks, Cox and Kramer is one that would be familiar to most of those who have known him over the past several years. But one who puts a different light on the commissioner's career is the commissioner himself. In an interview last summer, when his term was drawing to a close and it appeared he would be leaving the commission, he pictured himself not as a, revolutionary seeking solutions in the actions of the people but as an intellectual seeking solutions in the minds of academics.
“My emphasis was on the consideration of things other than economic and political power.”
In that connection, he said, he sought t to involve the academic community — the law schools and the departments of economics — in the job of helping to develop policy for regulating the communications industries. The commissioner, a one-time law professor at Berkeley, feels there is a considerable pool of talent in the universities — on the faculties and among the graduate students — that was going untapped. He tapped those sources for a total of some 100 staff aides — legal assistants, summer interns and the like — in his years on the commission.
Mr. Johnson said he spent relatively little time on matters related to citizen groups — maybe 5%. And if Mr. Cox points to the hundreds of petitions to deny as the fruits of a successful career, Commissioner Johnson suggests vaguely that law review articles and doctoral dissertations and communications courses in law schools and schools of economics have been generated at least in part by his visits to colleges and universities.
But this may be simply the reflection of a man with strong intellectual interests who early in his career as an FCC commissioner was reported in a Broadcasting “Profile” as expressing concern about the “wild-man” image he seemed to be acquiring (Broadcasting, April 24, 1967). For Mr. Cox recalls a Nick Johnson that conforms more closely to the public image. Mr. Johnson once offered a "friendly criticism” when they were serving together on the commission, Mr. Cox said. “He was getting a reputation as a headline hunter, but he felt that Fly and Durr and Minow and Henry had slugged along writing dissents read only by communications lawyers, making speeches to broadcasters, giving interviews to the trade press, and testifying before Congress — just talking to members of that ‘subgovernment’ that Nick is always talking about — and that our effort was therefore limited. He went outside to stir things up. It’s a valid approach.” James Lawrence Fly, Clifford Durr, Newton N. Minow and E. William Henry were all, like Mr. Johnson and Commissioner Cox, renowned commission liberals. All but Mr. Durr served as chairman. (It might also be worth noting, as an indication of Mr. Johnson’s approach, that when the Johnson office produced a major effort, such as the ranking of major-market affiliates, he made sure copies were hand-delivered to the news media he thought would be interested.)
If the approach was “valid,” some question the methods. They accused Mr. Johnson of believing that extremism In defense of the public interest is no vice. His criticisms were not measured; they re sweeping. His regard for the facts, some felt, was not always scrupulous. And perhaps most galling of all was the seeming self-righteousness that laced so many of his papers, the attitude, too, that those who disagreed with him on issues on which he felt deeply were, somehow, moral or at least intellectual incompetents.
His colleagues on the commission felt this last most acutely. They learned early in his term that the young Nick Johnson, so deferential to his elders on the commission in meetings and in social gatherings, wrote dissenting opinions in a blistering style that seemed to know no restraint. In dissenting to the commission’s approval of the ABC-ITT merger, in December 1966, he accused the commission of making “a mockery of the public responsibility of a regulatory commission that is perhaps unparalleled in the history of the American administrative process.” (The merger later came unstuck after the Justice Department entered the case and took the commission to court. While the court was still considering the matter, ITT exercised its option to withdraw from the agreement.)
And his Yale Law Journal
article, “A Day in the Life” of the FCC, published last July, indicated
that approaching separation from the commission had not mellowed Nick Johnson.
Why the analysis of a single day’s activities? It might
be instructive “in determining why an agency is failing at its job or why it acts in a consistently unprincipled manner” (Broadcasting, July 30). Obviously, he had long since passed the point of questioning whether the agency fails in its job or acts in an unprincipled manner.
The networks were a special and frequent target. They were “child molesters” and “pushers to a junkie nation.” In an appearance on CBS’s Face the Nation, in September 1969, in discussing political broadcasting, he said it is “preposterous” for an industry earning the profits he said broadcasters were earning to “hold up the elected officials” and require them to pay for the time they use, then added: “It’s kind of like a criminal stealing a woman’s wedding band after he’s raped her.” (Nor was that a spur-of-the-moment comment; he had tried it out on the office staff while preparing for the program, and decided to use it on the air.)
And before former Vice President Spiro T. Agnew occupied the role, Commissioner Johnson was the principal public critic of network news. In an article in TV Guide, on July 5, 1969, he had charged the networks with suppressing "anything” they found inconsistent with their personal views or interests. On the same Face the Nation on which Commissioner Johnson made the wedding-ring remark, two CBS newsmen, Mike Wallace and George Herman, who apparently took the TV Guide piece personally, sought to cross-examine him on the specifics of his charges, and failed; he bobbed and weaved until time ran out. But Richard Salant, president of CBS News, given the opportunity for a reply by TV Guide, cited specific stories CBS had done on subjects the commissioner said the networks purposely ignored. If today Commissioner Johnson is an eloquent and forceful defender of the network-news operations against what he sees as efforts at intimidation on the part of the Nixon administration, network officials are not impressed. They note that he has been the foremost advocate of public access to the airwaves on the ground that broadcasters are government instrumentalities — a proposition and an argument that broadcasters emphatically reject.
Commissioner Johnson shrugged off the criticisms of the networks and others. He was making his impact; he was getting his message across; he was serving as an advocate for those (whatever the validity of their positions) he felt would not otherwise be represented. (In an interview on CBS last summer, he suggested that the commission should have six members like him representing what he said was the public interest and one representing private interest. That one commissioner, he said, could then be the controversial and outspoken member.)
Mr. Cox believes stations have become more responsive to public-interest groups and more concerned about such matters as commercial practices and children’s programing at least in part because of Commissioner Johnson’s speeches and public appearances. And his TV Guide piece — extreme, overstated and unfair as it may have been — might even have persuaded network news executives and newsmen to take a hard look at their consciences and their motives. And if by his criticism he was alienating his colleagues on the commission and sacrificing any chance of winning support for policies he favored, that seemed a small price. But he paid it.
“His positions were so extreme, so vitriolic, that he lost the confidence of his colleagues,” a commissioner said recently. “Whatever he brought up was looked on with distrust and suspicion. I didn’t trust him. I did not think his intent was to find constructive solutions.”
Chairman Dean Burch did not try to hide his contempt. Like his predecessor, Rosel H. Hyde, Chairman Burch thought Mr. Johnson’s attacks on the commission scurrilous and his tactics and arguments dishonest. He said as much when, in commenting on “A Day in the Life” of the FCC, he called Mr. Johnson intellectually dishonest.
It would not be accurate to say, however, that Mr. Johnson had no impact on commission policy. He did, although with few exceptions — and one of historic proportions — his impact was negative. One former official who was no particular fan of Mr. Johnson’s, says that “fear of Johnson dissents” persuaded the commission on several occasions to modify positions they were considering. And in a number of instances when he did not persuade the commission to change course, the dissenting opinions he wrote figured in court reversals of commission actions. This was the case, for instance, when the commission adopted a policy statement aimed at protecting broadcasters against challengers for their frequencies at license-renewal time, and when the commission rejected the argument of environmentalists that its ruling extending the fairness doctrine to cigarette commercials was precedent for its further extension of the doctrine to commercials for high-powered automobiles and leaded gasoline. (It was also the case when the commission held that broadcasters could impose a flat ban on the sale of time for controversial-issue programing. However, although the appeals court overruled the commission, the U.S. Supreme Court later overruled the lower court and Commissioner Johnson.)
But one staffer says that Mr. Johnson played a positive major role in shaping FCC cable-television policy. “He did a great, constructive job” on the package of cable-television rules that was adopted in February 1972, he said. But, the staffer added, Mr. Johnson went too far in “trying to hang on cable systems the kinds of access-channel obligations they could not handle.”
Eventually, Mr. Johnson denounced the package, in a statement in which he concurred in it in part and dissented in part, calling it “a classic case study” of “the decision-making process at its worst,” an example of “industry domination of government,” and of “presidential interference in the operation of an agency responsible to Congress” — this last a reference to the Office of Telecommunications Policy’s efforts to persuade the contending industry parties to accept a compromise package that would eliminate the danger of Congress being dragged into a bitter fight over cable legislation.
The one major matter on which Commissioner Johnson did put his stamp was the celebrated Boston channel-5 case, in which the commission for the first time denied the license-renewal application of a television station — WHDH-TV — and granted a competing application, that of Boston Broadcasters Inc., on Jan. 22, 1969. Since a major factor in the decision was the concentration of control of mass media — the station was under common ownership with the Herald-Traveler — and since many television stations, including most of the major ones, would be vulnerable to challenge on that ground, the decision had the impact of an earthquake. And the reverberations have not yet ended, despite the commission’s determined efforts to erase the decision’s precedential effects.
Four years later, the commission
action still seems unreal. Only four commissioners voted — Mr. Johnson,
T. Bartley, Robert E. Lee and James J. Wadsworth. Only Commissioner Lee favored renewing WHDH-TV’s license. Commissioner Wadsworth, who retired from the commission in November 1969, was incensed at WHDH because of the ex-parte activity that had placed the grant of its original authorization under a cloud and because of what he considered the cavalier attitude of WHDH officials toward the ex-parte charges. As he acknowledged later, he cared not at all about the concentration-of-control issue (Broadcasting, Dec. 28, 1970-Jan. 4, 1971).
But former Commissioner Bartley, who retired from the commission last year, and Mr. Johnson cared. It was an article of their ideological faith. And although Commissioner Bartley was listed as the supervising commissioner on the opinion, commission sources say it was Commissioner Johnson who pressured the staff into basing the opinion on the newspaper television station crossownership issue.
Which was within his authority as commissioner. But then he added a final touch. He did not vote for the commission opinion. He concurred in the result and wrote a separate statement in which he affected a detached attitude. He said he felt no “passion” for the ultimate winner in the case, and was taking no position on the merits of continued newspaper ownership of broadcasting properties where there are competing media. But he also said the decision was “a step, however small, back toward the commission’s often professed but seldom evidenced belief in the benefits of local ownership and media diversity. It is at the very least,” he concluded, with an air of supreme casualness, considering the devastating loss to WHDH, “an interesting experiment which will be watched carefully.”
Why the detached air? Commissioner Johnson said he did not recall the circumstances surrounding his vote, although he did say he remembers being particularly “concerned” at the time about the concentration-of-control issue. It might be as a commission staffer — a staffer who admires Mr. Johnson’s “style” and respects his intelligence — puts it: “Commissioner Johnson is a wrecker. He doesn’t want to win; he wants to bleed. He never wants to conclude anything. It’s got to be perfect.”
Or it could be too that the burden of responsibility that goes with success is one he does not want to carry. Commissioner Johnson chose not to make clear his unequivocal support for a bold new departure in commission policy in the WHDH case; he talked of an “interesting experiment.” And experiments by their nature sometimes fail. (For the record the decision, based in large part on the ground that WHDH-TV was owned by the corporation that published the Herald Traveler, led to the demise of the newspaper.)
Mr. Johnson does not see his departure from the commission signaling a weakening of the citizen movement in broadcasting. He feels the citizen movement generally is getting stronger, nourished by an increasing number of people with the necessary education and the time and financial resources to work for change. Furthermore, he says, “People have seen evidence that that they can no longer place unrestricted faith in authority — particularly since Watergate. The respect that the average person has for business is down. Students are prepared to challenge teachers, the citizen in the street, the police. And they’re not going to trust the station operator. Also, they have seen evidence of citizen activity, some of it successful, as in the civil-rights movement."
Now he is moving back home to Iowa to a farm house he is renting in Kesley where he is expected to prepare for a race for Congress. Representative H. R. Gross, the conservative Republican who represents Iowa's Iowa’s third district, is the man he has an eye on opposing next fall. In the meantime, Mr. Johnson, who is divorced, will practice law, write — a book about his experience at the FCC is one project — and live the kind of basic, simple life he extolled in “Test Pattern for Living" — doing his own mending, and doing without a television set.
With James H. Quello in CommIssioner Johnson’s place — assuming he is finally confirmed — the commission will certainly be quieter. And there are those who, like Mr. Cox, feel it will be poorer. “He has filled a vitally necessary role of critic,” Mr. Cox says. “The industry needs critics; it gets into trouble without them. The commission needs critics too.”
Some at the commission -- commissioners and staff members alike -- indulge in what-might-have-beens in discussing Nick Johnson. They wonder what contributions Commissioner Johnson, with his intelligence and energy, might have made if he had been less extreme in his petitions, if he had cooperated with his colleagues instead of antagonizing them, worked patiently for changes in commission policy that he thought serve the public interest. “A more moderate Nick Johnson would have been a most valuable addition to the commission," one staffer said recently.
There are many, of course,
who would dispute that — the citizen groups he helped arouse and encourage.
In any case, talking about a “moderate” Nick Johnson is obviously a contradiction
in terms. For better or worse, he did it — his seven years and five months
— his way.
(This retrospective on the FCC career of Nicholas Johnson was written by Leonard Zeidenberg, senior correspondent.)
# # #
NOTE: The following is excerpted from an article in the same December 10, 1973, issue of Broadcasting reporting on the news of the prior week from the FCC, p. 20.
But much of the attention on the changing character of the FCC last week was still focused on Nicholas Johnson. He had originally announced his plans for last week’s departure at a Democratic fund-raising party in Cedar Falls, Iowa, on Saturday, Dec. 1. However, the announcement received little or no media attention. So he disclosed his plans again, on Monday, in an interview on KCFI(AM) Cedar Falls. That made the wire services. And on Wednesday, he took advantage of a long-standing invitation to address the Main Line Forum, in Philadelphia, to discuss his departure — the reasons for it and the seven years and five months that preceded it — in some detail.
He said he was leaving the commission “not to abandon the fight” for the public interest “but to continue it effectively.” And he made it clear that fight includes opposition to Mr. Quello’s nomination.
Mr. Johnson said he had stayed on the commission pending the appointment of a successor to facilitate “a smooth transition.” But he said he found the appointment of Mr. Quello “appalling.” And because he wants to remove “any possible question” as to his motive in opposing the nomination, he said, he is resigning.
As for his future, Mr. Johnson did not mention the possibility of his running for Congress. If he does run, it would mark a reversal from last year, when at the last minute, he announced a decision against running for the Senate (Broadcasting, March 27, 1972). However, his decision to resign from the commission and return to Iowa in December rather than next year is understood to have been dictated at least in part by a desire to establish residence in the state in 1973. The third district, now served by Representative H. R. Gross, a conservative Republican and a one-time newsman for WHO(AM) Des Moines, is the district he is said to be interested in representing.
Mr. Johnson said he will
live in a farm house he has rented in Kesley, and will be associated with
a law firm in Waterloo
— Fulton, Frerichs, Nutting & Kennedy. But, he said, he “will never cease to use whatever forum is available” to encourage citizens to take an active role in government in general, and broadcast reform in particular. He is reported to have been urged by the National Citizens Committee for Broadcasting to take a post with it. And an aide to the former commissioner last week said that he might, if he can serve NCCB from an Iowa base.
However, Mr. Johnson disclosed
that he will not be cutting himself off from the Washington scene, regardless
of whether he runs for Congress. He told his audience in Philadelphia that
“in looking at the present and future role of community-reform efforts
in broadcasting,” he will maintain a Washington office.