Copyright c 1994 by Nicholas Johnson and the Federal
Communications Law Journal.  [47 Federal Communications
Law Journal 281-290 (December 1994).]  (See notice/s of
copyright conditions at end of file.)

Jefferson on the Internet
Nicholas Johnson*

Were Thomas Jefferson with us today, I am confident we
would have "Jefferson on the Internet" in both senses.

Surely someone with his intellectual curiosity and inventive
genius -- everything from pens to plows -- would have owned
and used a computer and modem. Jefferson would be "on the
Internet," with pithy comments scattered throughout a number
of newsgroups.

But it would also be true in the sense that we would have an
essay, if not a full length desktop-published volume, called
"Jefferson on the Internet." In it, this advocate of free libraries,
free education, and free speech would expound on the First
Amendment requirements for Internet users: free and easy
entry of their own information and ideas, along with access to
those of others.

Of course, Jefferson is not on the Internet, and I am no longer
on the Federal Communications Commission (FCC or
Commission). But having spent seven years writing dissenting
opinions as an FCC commissioner twenty years ago, the
readers of this Journal should not be stunned to find me still at
it and still calling on Thomas Jefferson for support.  

Communications technology has gone through some
revolutionary changes during the intervening years, and the
need for "regulation" has sometimes been altered thereby. But
the basic themes and values remain, for me, unchanged.1

THE ISSUE: FREE SPEECH FOR ALL?

With the page limit on this Essay it is impossible to, as the
old college essay exam question put it, "define the universe
and give two examples."

So I will skip the definition, and provide only one example. It
is, from my perspective, the single most important
telecommunications policy challenge confronting our country:
preserving the freedom of speech for all our citizens, not just
those who have $200 million or more in spare pocket change
to buy their own newspaper, broadcast station, or telephone
company.

Let me pose the issue as a two-tiered multiple choice question:
"Should telephone companies be (a) encouraged, (b) permitted,
or (c) forbidden to either (1) offer conduits for information
services owned and provided by others, or (2) offer
information and services, which they own, through conduits
which they own, in competition with the other suppliers?"  

To save the reader the trouble of skipping to something called
"Conclusion" (there is none) to find my answer, I will open
with the conclusion, and then undertake the task of trying to
persuade a skeptical, if not hostile, readership of its
correctness.  

I am untroubled by the first possibility: that information
services over "telephone lines" may cause cable monopolists to
cut rates and improve services. I am equally untroubled that
cable companies -- now providing a service best described as
one Dixie cup and a string -- are trying to enter what has been
traditionally thought of as "the telephone business." I am
untroubled at the prospect of others offering a continuously
updated, flexibly searchable database combining what we
today think of as telephone book "yellow pages" with what are
now newspapers' "classified ads" -- notwithstanding its modest
adverse economic impact on the newspaper and telephone
industries.

But I am very troubled by the second possibility: that
telephone companies may soon be permitted to distribute
information which they own through their own conduits.

I think it is fraudulent to argue -- as the phone companies
have in full page ads -- that unless they own the information,
then our hospitals, schools, and homes will be deprived of
access to it. Almost all of the information services they hype
not only can be offered by others, but are now being offered
by others such as Mead Data Central, CompuServe, and
Dialog, along with the free resources of the global Internet and
the thousands of private bulletin board systems.2 What
concerns me about the common ownership of content and
conduit, of course, is the telephone company's natural desire to
censor and engage in anticompetitive practices.

THE NATURAL DESIRE TO CENSOR

There is a natural and almost inevitable desire to censor or
otherwise use the media to support one's interests. Children are
told they should be "seen and not heard." In the workplace,
Peter Senge asks, "When was the last time someone was
rewarded in your organization for raising difficult questions
about the company's current policies . . . ?"3 Governments are
not the only powerful institutions that try to serve their own
interests through media manipulation and censorship.  

My baptism by fire on this issue was ITT's proposed
acquisition of ABC back in 1965-66.4 Question: "Would ITT
ever try to control ABC's coverage of the news to favor ITT's
other business interests?" "Oh, no," ITT's executives would
testify at hearings, and while testifying, at that very moment,
their senior vice president for public relations was calling
executives of the Associated Press, the New York Times, and
the Washington Post, trying to change the content of the
stories being filed by their reporters about that hearing! Efforts
to manipulate media to serve one's other institutional interests
is the most natural thing in the world.

"WHAT ARE YOU GOING TO SAY ON THE PHONE?"

Imagine that we're still back in the days when AT&T owned it
all. You walk into the local phone company's office and ask,
"Do you have any phones? I'm new in town and I'd like a
phone and a line."

The clerk says, "Well, yeah, we've got some phones."

"Can I have one?"

You get a quizzical look. "Well, just a minute now," says the
clerk. "Suppose, I mean just suppose, I were to go back there
and get you a phone, and get you set up with a line. What
kind of things might you be planning to say over the phone?"

We either laugh or cry at that because it is so totally
unimaginable. It would have been illegal, contrary to custom
and experience. The phone company made lines available to
anybody who wanted them.5 And you could say anything over
the phone you wanted to say. There was absolutely no
censorship from the telephone company.6

FREEDOM TO SPEAK MEANS FREEDOM TO CENSOR

Readers of this Journal are well familiar with the Tornillo
case.7 The Florida legislature had passed a law that said, in
effect, that newspapers can attack politicians all they want, but
when they do, they have to give the politician attacked an
opportunity to respond. The Miami Herald attacked candidate
Pat Tornillo; he sought to reply under the terms of the act; the
paper refused; he took the paper to court; he won; the paper's
appeals ultimately brought the case to the Supreme Court.

The Court found the statute unconstitutional, even though the
paper enjoyed a dominance, if not near-monopoly, throughout
its circulation area, and even though the act imposed virtually
no limitation whatsoever on a newspaper owner's right to
speak her or his mind.8 Not only is a right of reply not
constitutionally compelled, according to the Court's
interpretation, but a state legislature's provision of such a right
is constitutionally forbidden.9 First Amendment rights belong
only to those who own the media. Their freedom to speak
comes complete with a censor's tool kit, which is certified as
constitutional by no less an authority than the Supreme Court
itself. Needless to say, that interpretation rather effectively
excludes all but a relative handful of America's 260 million
citizens from meaningful participation in a "marketplace of
ideas."10

But this is neither the time nor the place to search for a court
to which one could appeal a Supreme Court decision, nor to
draft the brief to file once such a forum was found. Tornillo is
the law. Moreover, it is the law not only for newspapers, but
for radio and television stations,11 cable television systems12
-- and even the billing envelopes of public utilities.13

FREEDOM'S LAST FRONTIER: FREE SPEECH BY
PHONE

Today, the only remaining constitutionally protected free
speech mass media for ordinary citizens are telephone
networks and the postal service. Everything else has been
taken from them. And once the phone companies start
providing "cable television," or other information services they
own, over the conduits they own, it is going to be very
difficult to explain why they should be denied the very same
censorship rights the Supreme Court has given to all other
mass media.

Should the continuation of freedom's last frontier be left to the
good intentions of phone companies? History suggests that
would be dangerously naive.

Even the post office has not been immune from the natural
human inclination to abuse the competitive advantages enjoyed
by owners of both content and conduit. The early post offices
delivered newspapers, and some of the first individuals to
become local postmasters were newspaper publishers.
Undoubtedly, they assured those concerned about this
combination by saying: "Oh, we'll provide carriage to our
competitors. Of course, we will." But it turned out they often
did so at a higher rate, while delivering their own papers for
free.

Next came the telegraph company. When the Associated Press
was formed around the middle of the nineteenth century, there
was not yet a submerged transatlantic cable. If an American
newspaper wanted news from Europe, it would have to get it
from Halifax, Canada, where it was obtained from ships'
passengers. The New York City newspapers decided to run a
telegraph line from Halifax to New York. To do that they had
to use the lines of a telegraph company that served the east
coast of the United States. Whereupon that telegraph owner
developed a sudden desire to get into the newsgathering
business himself, and refused to make his facilities available to
the Associated Press.14

This is not a matter of ideology. It's a matter of an
anticompetitive, self-serving, profit-maximizing strategy. Early
in the twentieth century newspaper publishers became
frightened that radio news promised to become a substantial
competitor. At that point, the same newspaper owners who
complained so loudly when excluded from the telegraph
network saw nothing inconsistent in using all the
anticompetitive political muscle at their command to keep the
radio stations from broadcasting news.15

When motion picture production houses were permitted to own
theater chains in which their own movies were shown, the
anticompetitive abuses became so severe that an antitrust
action was brought by the United States and sustained by the
Supreme Court.16

Not surprisingly, when there is common ownership of both
satellite programming services and the cable systems on which
such programming is shown, it turns out that the cable
company tends to use the jointly-owned programming and to
lock out programming of competitors. In fact, the cable
industry is as determined to stop the growth of home satellite
receiving dishes as the broadcasting industry had earlier been
to stop the development of subscription television (STV) and
cable.17

The point is simply that abuses have occurred, are occurring,
and will continue to occur when a single firm is permitted to
own both the conduit through which information flows and the
information itself -- in competition with others also using its
conduit.

The general proposition is so intuitive, and the evidence so
overwhelming, that examples from within the telephone
industry itself are not really necessary. Traditionally, the phone
company was not in the information business, so precise
precedents are hard to come by.18 Nonetheless, the analogous
abuses that have occurred reinforce the point.

Many years ago, AT&T was fighting vigorously to prevent a
little microwave company from running a line from St. Louis
to Chicago.19 AT&T felt it owned it all.20 Today that little
company goes by the name of MCI.

Neither AT&T nor MCI were then providing information over
their networks of the kind at issue. But the analogy was that
AT&T was both providing lines to its own individual
customers and also providing connections and bulk lines to
MCI, which MCI then resold to customers. AT&T was both
MCI's conduit and its competitor, and the anticompetitive
abuses in which AT&T engaged led to the largest antitrust
judgment in history -- $1.8 billion.21

It is not enough to say, "Ah, but we will require the conduit
provider to make service available to those firms competing
with it in the information business." It turns out that there are
10,000 ways to disadvantage one's competitor regardless of
what the rules may be.22 The opportunities are limited only
by human imagination. We have seen it in the postal service,
telegraph, radio and television, cable television, and telephone
industries.

And even if the FCC wanted to regulate such abuses -- which
it doesn't -- it wouldn't be able to. It has neither the will nor
the resources. And if it had, Congress would quickly tell it to
stop. So the only way to ensure fair competition and a diverse
marketplace of ideas, in my judgment, is to prevent the merger
of content and conduit in the first place.23

Such limitations should not be much of an economic sacrifice.
Isn't it enough that telcos can suck money out of both ends of
the cable -- charging both information providers and
recipients? In fact, I believe the case can be made that
shareholders will be better off if their management is
prohibited from combining conduit and content.

"COP KILLER" TELCOS

Sadly, few seem to care about the concerns of public interest
advocates and consumers: the fear of price hikes as telcos'
monopoly services are drained to subsidize competitive
businesses; the frustration over an FCC that can't, or won't,
regulate; and the worries over the discouragement of
innovation, censorship of content, and conflicts of interest
from heavy-handed, anticompetitive telcos.

Once phone companies start exercising their First Amendment
rights to speak through their own conduits, there's no reason
the Supreme Court won't give them the same right to censor as
newspapers and broadcasters. And at that point, the only mass
medium left for those 260 million Americans who do not own
their own newspaper or broadcast facility will be expensive,
and relatively ineffective, direct mail via the postal service.

Given the general lack of interest in the public interest in an
age of greed, and the growing gap between rich and poor,
perhaps a focus on shareholder interests would be more
effective in making my case.

Telco managements' interests are both clear and
understandable. Adding the information business means a
greater span of control and increases in executive pay and
perks. It brings the excitement and glamour of socializing in
Hollywood to bored, middle-aged executives.

But it turns out that shareholders may well have more in
common with the creative community and consumers than
with management.

Time Warner experienced enormous grief from rapper Ice-T's
Cop Killer song. There were nationwide boycotts of the
company's subsidiaries, bomb and death threats to corporate
officers, the likes of Charlton Heston attacking management at
shareholders' meetings. There was talk of criminal
prosecutions. The creative community and the American Civil
Liberties Union were equally outraged at the prospect of
"censorship." And this was all from one song, on one CD, by
one artist, with one record company, well down on the
organization chart of this media conglomerate. A few little
lyrics suddenly became a very big deal.24

There are thousands of such land mines lying about out there
for a large corporation in the information business. Yet,
controversies such as Cop Killer will go with the shareholders'
territory once telcos provide content as well as conduit.
Suddenly telcos will confront threats of defamation suits,
copyright controversies, objections to obscenity -- or anything
thought "controversial" -- and charges of censorship.  

So long as telcos' shareholders insist that management stick to
conduits -- cables, fiber, and satellites -- management can
properly dismiss critics by saying, "We're just a common
carrier, take your content concerns to providers, courts or
legislatures. We won't oppose you or support you. We will
comply with the law." In the process, shareholders will get
rich beyond their wildest dreams or avarice.

But devastating and diverting adverse public relations is only
the beginning.

(1) Does telco management really have the expertise, and time,
to focus on information service businesses? One study reported
non-phone operations were losing telcos $1.7 billion annually
not long ago.25 Do shareholders really want more of these
losses? How about a return to shareholders on
telecommunications -- what management is supposed to know?
Adding information services makes telco executives' jobs as
difficult (and senseless) as assigning one manager
responsibility for administering both a virtuoso violinist and a
steel mill.

(2) Are shareholders willing to take the financial bath the
information businesses may offer? Motion pictures can lose, as
well as make, tens of millions of dollars -- even for those who
know the business. More videotext and interactive businesses
have gone under than prospered. Why give shareholders those
headaches -- and losses?

(3) Getting into the information business only heightens the
risk of more antitrust grief. Is this what shareholders are
looking for? Is it really worth jeopardizing the solid profits
from local, long distance, and cellular data and voice
telephone businesses to flirt with the risks in information?

(4) Finally, shareholders' profits are maximized by expanding
capacity, and filling it with as many independent information
providers as possible. With a skilled sales force, and myopic
focus on that goal, profits are virtually unlimited. When telcos
also sell information there's an inherent conflict. Will they
make more money by selling conduit space to more providers,
or by hindering them and selling the telco's own information
service? Resolving that confusion only slows response time
and invites antitrust suits -- while reducing conduit revenues,
rates of expansion, and business opportunities.

There is every reason to encourage telco provision of conduits
for information providers. Everyone benefits from the
competitive marketplace of ideas it creates: providers,
customers, and telco shareholders.

There is every reason to oppose telco provision of information
services. Everyone loses, especially the shareholders.

If telco shareholders don't want their investment to chill, while
being portrayed as a Cop Killer, it's time they told
management to take a sip of Time Warner's Ice-T.

Yes, however you look at it -- from Thomas Jefferson's
perspective, or the purposes of the First Amendment, or the
needs of 260 million First Amendment-deprived citizens, or
the profit opportunities of telco shareholders -- separating
content and conduit not only makes lots of sense, it can make
lots of dollars as well.
_______________

* The Author, a former FCC Commissioner, currently teaches
at the University of lowa College of Law and lectures for the
Leigh Lecture Bureau. He has no corporate ties or other
economic interests in the subject here discussed. B.A., LL.B.,
University of Texas, Austin, 1956, 1958. Law clerk, U.S.
Court of Appeals Judge John R. Brown, Supreme Court
Justice Hugo L. Black, 1958-60. Associate Professor,
University of California Law School, Berkeley, 1960-63.
Covington and Burling, 1963-64. U.S. Maritime Administrator,
1964-66. Commissioner, FCC, 1966-73. U.S. Senate and
House candidate, 1972, 1974. Chair, National Citizens
Committee for Broadcasting, 1974-78. Presidential Advisor,
White House Conference on Libraries and Information
Services, 1979. Host and contributing editor, New Tech Times,
1983-84. Columnist, Communications Watch, 1982-86. Fellow
and executive board member, World Academy of Art and
Science.

1. Those "themes and values" are, quite simply, the underlying
purposes, or consequences of the First Amendment: a robust
"marketplace of ideas," facilitating a "search for truth," by a
citizenry thereby empowered to engage in "self governing,"
while encouraged, through opportunities for self-expression, to
"self-actualization," as they, and the more conventional media,
provide a "checking value" on government and other large
institutions, and a "safety valve" for those who, if denied a
forum, might have chosen to express their frustrations through
violence. See, e.g., Whitney v. California, 274 U.S. 357, 
375-77 (1927) (Brandeis, J., concurring), overruled in part by
Brandenburg v. Ohio, 395 U.S. 444 (1969); THOMAS I.
EMERSON, THE SYSTEM OF FREEDOM OF
EXPRESSION 6-9 (1970).

2. A classroom may not have a phone line. That's a problem.
But with a computer, modem, and phone line, every student
can have access to the Library of Congress and everything else
publicly available to a government official or academic
scientist.  See, e.g., Edward A. Gargon, The Media Business,
N.Y. TIMES, Oct. 6, 1994, at D20.

3. PETER SENGE, THE FIFTH DISCIPLINE 25 (1990).
Those denied opportunities for speech may find alternative
means of expression. As Dr. Martin Luther King once said,
"Having been denied access to radio and television we have
had to write our most persuasive essays with the blunt pen of
marching ranks." Dr. King believed in nonviolent solutions to
grievances, but it is amazing how revolution, terrorism, or
hostage-taking involves, in large part, a frustration at being
silenced.

4. Compared to today's galloping global media mergers, the
ABC-ITT merger looks like small potatoes indeed. But it was
a big deal at the time. See In re Applications by ABC, Inc.,
Memorandum Order and Opinion, 7 F.C.C.2d 245, 278 (1966)
(Johnson, Comm'r, dissenting), modified by Order on Petition
for Reconsideration, 7 F.C.C.2d 336, 343 (Johnson, Comm'r,
concurring), modified by Opinion and Order of Petition for
Reconsideration, 9 F.C.C.2d 546, 581 (1967) (Johnson,
Comm'r, dissenting).

5. Unlike the limited number of channels provided by today's
cable companies, the phone company was required to build a
new switching station whenever it came close to running out
of phone lines.
  
6. Limitations on harassing phone calls, criminal transactions,
disclosure of national security secrets, defamation, or obscenity
were generally imposed and enforced by others.

7. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241
(1974).

8. Although the act provided for free access to the paper's
pages, the Court's opinion does not hold that the result would
have been different had the law provided for paid access.

9. Tornillo, 418 U.S. at 257-58.

10. Of course, it is true that thousands of citizens are heard as
guests (or call-in participants) on radio and television
programs, and appear in print in newspaper and magazines'
"op-ed" and letters columns. As a result, at least some small
proportion of the information and ideas from the general
public that are supportive of the economic and political
interests of media owners and advertisers will receive
widespread distribution by the media. The issue is not how
much of this diversity, and entry, are permitted as a matter of
grace. The issue is what happens to the information and ideas
of those whom media owners wish to silence. How much
confrontational and controversial diversity can be distributed
via the mass media over the objection of the owners as a
matter of legal right? With rare exception, the answer is none.

11. CBS, Inc. v. Democratic Nat'l Committee, 412 U.S. 94
(1973).

12. See FCC v. Midwest Video Corp., 440 U.S. 689 (1979);
see also Turner Brdcst. Sys., Inc. v. FCC, 114 S. Ct. 2445,
reh'g denied, 115 S. Ct. 30 (1994).

13. See Pacific Gas & Elec. Co. v. Public Utils. Comm'n of
Cal., 475 U.S. 1 (overturning rule requiring a utility to include
in the billing envelope a consumer newsletter), reh'g denied.
475 U.S. 1133 (1986). Note that, unlike advertising-paid
space, which is paid for by the speaker only if used, utility
customers pay for the postage and billing envelope sent them
by the utility (with its paid-for but unused space and weight)
regardless of whether they are granted or denied the
opportunity to use it for their own speech.

14. See OLIVER GRAMLING, AP: THE STORY OF NEWS
20-30 (1940).

15.  See, e.g., ERIK BARNOUW, A TOWER IN BABEL 278
(1966); SYDNEY W. HEAD & CHRISTOPHER H.
STERLING, BROADCASTING IN AMERICA 160-61 (4th
ed. 1982); CHRISTOPHER H. STERLING & JOHN M.
KITTROSS, STAY TUNED: A CONCISE HISTORY OF
AMERICAN BROADCASTING 122-23 (1978). With the
upper hand, the newspaper publishers (normally advocates of
the First Amendment's guarantees) were able to exact an
agreement with the radio networks that exchanged a morsel of
news from the papers for the stations' agreement to cease any
newsgathering operations whatsoever.

16. United States v. Paramount Pictures, Inc., 334 U.S. 131
(1948).

17. HEAD & STERLING, supra note 15. at 297-99, 318.

18. But see Judge Harold H. Greene's analysis of the First
Amendment and other risks involved in AT&T's potential
entry into electronic publishing. United States v. AT&T, 552
F. Supp. 131, 180-86 (D.D.C. 1982), aff'd sub nom., Maryland
v. United States, 460 U.S. 1001 (1983).

19. Microwave Comm., Inc., 18 F.C.C.2d 953, 976 (1969)
(concurring opinion).

20. It was this attitude that was made famous by comedian
Lily Tomlin's great line: "We don't care. We don't have to.
We're the telephone company." AT&T forbade customers to
attach equipment to the telephone network if supplied by other
firms. See, e.g., In re Carterphone, Decision, 13 F.C.C.2d 420,
modified by Memorandum Opinion and Order, 14 F.C.C.2d
571 (1968). It even went so far as to argue that a plastic
protective cover over a phone book was a "foreign attachment"
with the potential to harm the quality of network service.

21. See, e.g., P. L. CANTELON, THE HISTORY OF MCI:
THE EARLY YEARS 304-09 (1993); $1.8 Billion AT&T
Defeat, L.A. TIMES, June 14, 1980, at 1.

22. We don't have time or space for the 10,000 examples, but
here are some illustrations. The conduit provider has the lines
up and operating that serve its customers but it's going to take
another six weeks before lines will be available for the
competitor. The provider's lines are functioning, but the
competitor's lines went down. Everybody's lines are down but
the conduit provider's are back up in 45 minutes and it takes a
day for the competitor, "Because we didn't have the parts on
hand." Customers can get access to the conduit provider's
information in a fraction of a second, but they have to wait 20
seconds to activate the competitor's line. To connect them, the
conduit provider necessarily has to be told the name and
address of all the competitor's customers. What is the first
thing the conduit provider's marketing department wants to do?
It wants to call up the competitor's customers and try to get
them to sign up, or switch.

23.  Such a limitation does not, of course, prevent an
individual investor from owing a small amount of stock in two
separate businesses, one providing conduits and another
providing the content. The limitation only applies to a single
business that is engaged in both or that controls subsidiaries so
engaged.

24. See ICE T, Cop Killer, on BODY COUNT (Rhyme
Syndicate Music/Emkneesea Music 1992) ("I got my twelve
gauge sawed off/l got my headlights turned off/I'm 'bout to
bust some shots off/I'm 'bout to dust some cops off." Chorus:
"Cop Killer, it's better you than me/Cop Killer, fuck police
brutality!/Cop Killer, I know your family's grievin'/(Fuck
'em!)/Cop Killer, but tonight we get even.").

25. See Steve Sazegari, The Shape of Competition in the
Local Loop, BUS. COMM. REV., Mar. 1992, at 47. 


# # #

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