Corporate Crime Reporter, vol. 7, no. 41, Monday, October 25, 1993, pp. 15-17. [Corporate Crime Reporter, American Communications and Publishing Company, 1322 18th St., NW, Washington DC 20036, 202-429-6928. Russell Mokhiber, Editor.] INTERVIEW WITH NICHOLAS JOHNSON, VISITING PROFESSOR, UNIVERSITY OF IOWA COLLEGE OF LAW, FORMER COMMISSIONER, FEDERAL COMMUNICATIONS COMMISSION Former Federal Communications Commissioner Nicholas Johnson believes that the merger between TCI and Bell Atlantic "is the most serious blow to the First Amendment in the last 200 years." Johnson fears that such mergers will limit access to a phone system that has up until now been defined by guaranteed universal access. Last week, Johnson and other consumer advocates urged the Justice Department to block the merger on antitrust grounds. Since 1981, Johnson has been a visiting professor at the Iowa College of Law in Iowa City, Iowa. Johnson teaches mass media law -- journalism law, defamation, privacy, access to government documents, free press, and the law of electronic media. Johnson was a Commissioner of the Federal Communications Commission from 1966 to 1973. He is the author of the 1970 classic How to Talk Back to Your Television Set (Little Brown) We interviewed Johnson on October 21, 1993. CCR: You have signed on to a letter to Anne Bingaman, the head of the Justice Department's Antitrust Division, urging that the Department take action to block the proposed merger between TCI and Bell Atlantic. Why is the proposed merger a bad idea? JOHNSON: There are two categories of reasons. One is the conventional antitrust concern about driving up advertising rates, driving out competitors in the production of media content, alternative delivery services, unfair business practices, stifling of competition. These are the problems you have whenever you have this kind of a vertical merger and you take another step toward consolidation. The Time Warner executives at the time of their merger said that "someday there are going to be five firms that control all the world's media and we intend to be one of them." We have not reached that point yet with all the world's media, but we have reached that state already with regard to music. There are now five firms that control over 95 percent of all the world's music, production, distribution and marketing. So, this is not wild, chicken little, the sky is falling. As consolidation continues, you are driving out firms, driving out opportunities for jobs, for competitors, for marketplace competition. These are the conventional antitrust concerns. They are very serious. They stand alone as reason enough to get involved in this merger and prevent it from happening. This merger is one of the largest in history. TCI and Bell Atlantic together have access to nearly half of all homes in America. But as serious and overwhelming as these antitrust concerns are, they pale almost into insignificance compared to the potential impact on the marketplace of ideas, on the diversity of ideas, information, and entertainment. CCR: In what sense will this merger cut back on diversity of ideas when there are going to be 500 channels available through the phone lines? JOHNSON: The issue is not how many channels there are. For example, before the breakup of AT&T, AT&T had 150 million channels. That is to say, it had 150 million telephone lines connected into the telephone distribution network -- so it had 150 million channels. The fact that there were 150 million channels would have been kind of irrelevant in deciding how much diversity there was in our society if AT&T had exercised its technological power to control the content on all of those 150 million channels. So today, whether you have a cable system with 5 or 20 or 35 or 48 or 100 or 500 channels is really totally irrelevant. The issue is what are the standards that control who has a legally enforceable right of entry into that system for the distribution of information and ideas and entertainment and culture. When AT&T had the 150 million channels, the law, the custom, the expectation, the practice, was that AT&T first had to make available a channel to anybody who wanted one. If you wanted a telephone and the regional office was out of lines, they had to put in another regional office. They had to provide a line to anyone who wanted one. Number two, you could say anything you wanted to over that phone. Now, you might find yourself subjected to obscenity prosecution, to defamation prosecution -- there are all kinds of reasons why what you said might lead to some adverse consequence for you, but it would not come from the phone company. So long as the Supreme Court is saying that the monopolist owner and operator of a conduit not only has the right to speak its own views, but has the right to silence the views of anyone it does not like -- it doesn't really make any difference how many channels there are. There will forever be scarcity, unless you have a common carrier approach, unless you have a total separation between content and conduit. As long as you permit a monopolist operator of a conduit to put content into that conduit, the Supreme Court is saying that the monopolist has the right to censor out of that conduit any ideas they don't like -- whether they are opposed by advertisers, they are contrary to their political ideology, they just think they are controversial -- whatever the reason may be, they can keep those ideas out. CCR: What do you mean by a common carrier approach? JOHNSON: Exactly what we did with AT&T when it controlled all 150 million channels -- anybody who wants a channel can have a channel, anybody who has a channel can distribute whatever they want to distribute to whomever they want to distribute it. Not only do you have a legally enforceable right of entry, you also have a legally enforceable right of access. If you want to get information from me over the phone right now, you have a legally enforceable right to call me up and talk to me and get information from me -- by voice, by fax, by e-mail, by whatever means. The phone company does not have a right to say "Wait just a minute, we didn't give you the phone to call up Johnson. That man opposes telephone company expansion and I'm sorry. You can call anyone else you want, but you are not going to call him again." They don't do that. CCR: So you approve of the merger if there is a legally enforceable right of access and entry? JOHNSON: We did refer to a separation of content and conduit in the letter. CCR: But are you saying that if there were a common carrier approach, you would not oppose the merger? JOHNSON: There were many problems with AT&T over the years. But nobody ever complained, as far as I know in First Amendment terms, about the consequences of telephone company actions. The problem today is already there with newspapers, broadcasters and cable operators. If you go to the Washington Post, and ask for ad space, you get their rates, you put your money on the counter, you put your copy on the counter, and the Post decides whether to run it or not. Same with broadcasters and cable stations. Once the phone company is in the information business, once the phone company owns the movie studio, then it seems to me that the Supreme Court is going to be in a position to give the phone company the same right of censorship that they give to every other monopolist media conduit. CCR: Other than the phone system, what communications system has guaranteed this right of access that you are talking about? JOHNSON: Direct mail. Direct mail and the telephone is all we have left, and we are about to lose the telephone. At that point, direct mail will be all the American people have left. We have lost the newspapers, radio, television, and cable. There is a big footnote on cable, because of the community access stations. But if you want to get onto a cable channel that people are actually watching, where the cable company is selling commercial time, and you want to buy commercial time on that channel on the cable system, they can refuse to sell you time. CCR: What do you mean when you say we are about to lose the telephones? JOHNSON: Let's assume Bell Atlantic owns the Paramount Studio, and Bell Atlantic starts offering Paramount movies over Bell Atlantic's fiber optic system into homes. Then let's assume you and I own movies. We go to Bell Atlantic, say "We'd like to lease some space on that optic fiber and put our own video programming service up there." They say, "No, you are not going to put your movies on there." They are asking how can they make the most money. If they are not in the business of programming, they are going to make the most money by going out, beating the bushes, and try to get as many people as possible to put programming out over their optic fiber. But once they have a cable system operating on that optic fiber, they have to sit and think, twist a piece a string, look out the window and try to figure out whether they will make more money by leasing this space to a competitor, who will take business away from Bell Atlantic's programming service, or will they make more money by keeping the competitors off their system entirely and then make all the money off the programming service. CCR: What is the solution to this? JOHNSON: One solution is to prevent this merger. This merger is the most serious blow to the First Amendment in the last 200 years. This issue has not been well articulated and confronted. The people who understand it have an economic interest in nobody else ever understanding it. Once the takeover is completed, there is nowhere to go to discuss it, except low circulation publications. CCR: Let's assume the merger takes place and other mergers take place so that five companies control the system. Wouldn't it be possible for the Congress to mandate access? JOHNSON: Well they can do anything, but they won't because at this point, these firms are so large, so powerful, contribute so much in the way of campaign contributions, have on the string so many law firms, lobbyists, public relations firms, ad agencies, and there is so little understanding of the issue with the general public and so little in the way of organizing on these issues, everyone is betting that the merger is going to be approved. CCR: What can be done to bring the cable communications system more under public control? JOHNSON: You don't have a prayer. CCR: That's pretty cynical. JOHNSON: Washington inside the beltway has become more insular, there has been a radical increase in the amount of money needed to run for office. The opportunities for reform in Washington, D.C. are substantially less than they were 20 years ago. The real reform and opportunity for progress today exist both on a global level with non-governmental organizations and on a local and regional level. Of course you continue to try on the national level. But as Harlan Cleveland, president of the World Academy of Art and Science, has put it, the nation-state today is too small for the big problems and too big for the small problems. [Contact: Nicholas Johnson, Box 1876, Iowa City, Iowa 52244. E-mail: Internet: 1035393@mcimail.com] # # # *** Copyright c 1993 by Nicholas Johnson. Conditions: This material is copyright by Nicholas Johnson. However, permission is hereby granted to download, copy and distribute the text to others if (1) the text is not altered, and (2) there is no charge to the recipient, and (3) this copyright notice and conditions are attached. It is a copyright violation to distribute this material altered, or without the copyright notice and conditions attached, or to use the material in any way for which remuneration is received without the prior permission of Nicholas Johnson. Contact: 1035393@mcimail.com; Box 1876 Iowa City IA 52244; 319-337-5555. *** END OF FILE