The DPJ's FCC: Letter from America
July 27, 2010
Preface and précis:
Nicholas Johnson made four appearances at four Japanese universities in
the Kyoto-Osaka area from June 30 through July 8, 2010. They were occasioned
by the proposal of the newly elected Democratic Party of Japan to move
media regulation from the Ministry of Interior and Communication to an
independent regulatory commission, a "Japanese FCC." The author's contribution
was designed to be reflections from a former FCC commissioner on the challenges
confronted by the U.S. FCC in its attempts at broadcast regulation. This
article was written during the course of preparing for those presentations,
some of which drew upon it without, of course, including the endnotes.
The references in those notes are now made available for any in those audiences,
or others, interested in pursuing further the subjects discussed in the
I. Introduction: How much FCC does Japan want and need?
II. Is there a need for regulation of the media?
What are the constitutional constraints on government regulation of media?
(Inadequacies in the vague constitutional language can be remedied to some degree by examination and application of the purposes of "free speech")
What media regulation has the U.S. FCC provided?
(How and why? What issues have emerged?)
What limitations are there on the independence of an "independent regulatory
("Agency capture" and "sub-governments"; executive and legislative branch pressure; advertiser and Wall Street pressure)
VI. The counterforce of public participation
I. Introduction: How much FCC does Japan want and need?
Following the 2009 election, the newly victorious and empowered Democratic Party of Japan ( DPJ) proposed the creation of a Japanese version of the United States Federal Communications Commission (FCC).1 Indeed, the DPJ refers to its proposed agency as a “Japanese FCC.” The Party’s commitment to the idea may have weakened somewhat since the original proposal, but it is still a very worthy subject for political dialogue in Japan.2
The United States has much to learn from Japan, as both countries confront the challenges that a rapidly changing mass media present to our societies.
However, there is very little “advice” that an American, even an American former FCC Commissioner, can offer regarding a Japanese FCC. Our two countries and peoples not only have different languages, we also have distinct histories, demographics, cultures, societal, political, economic and broadcasting systems.
Indeed, Japan has already experienced an American-imposed FCC from 1950 to 1952 – and chose to abolish it and transfer its functions to, what was then the Ministry of Posts and Telecommunications.3 Not incidentally, Professor Shinji Uozumi reports that at least some of the reasons for its abolition involved cultural differences between Japan and the U.S.4
What an American former FCC Commissioner can do, perhaps, is to share something of the history of the U.S. broadcasting and communications industries, their regulation by the FCC, and the problems and challenges they have created. However, it is only the Japanese people, their elected officials, journalists and academics, who have both the right, and the ability, to decide how much – if any – of this commentary regarding the American experience is useful, or even relevant, to Japan's media challenges.
The details of the DPJ proposal are not yet clear, and will not be unless and until the proposal takes specific form and is introduced in the Diet.
However, from the Party’s documents5 and Japanese newspaper reports,6 the organizational change involves moving the regulation of broadcasting and telecommunications from the Ministry of Internal Affairs and Communications into an agency independent of the Cabinet and Diet – a Telecommunications and Broadcasting Commission the DPJ calls a “Japanese FCC.”
What appears to be the rationale for this reform is that, because one of the media’s responsibilities is to report on the government, and provide a check on any abuses, for the government to be regulating the media creates inherent conflicts of interest. The hope is that this new agency will eliminate, or at least significantly reduce, the intervention of political interests into the regulation of broadcast media.
Thus, a threshold question in addressing an independent Japanese regulatory agency is the breadth and scope of its mission.
The U.S. FCC is not a small agency. For the fiscal year 2011 the FCC asked Congress for 32 billion yen ($352 million)7, based on a projection of two thousand “full-time” employees.8
The work of the Media Bureau is budgeted at less than 10 percent of that amount, 3 billion yen ($32 million).9
Given the apparent rationale for the DPJ’s proposal -- to protect media content from governmental control – it is not clear that the Party's goal requires an independent Japanese agency to regulate the full portfolio of FCC responsibilities.
The Japanese agency might be an independent commission with only slightly more powers and responsibility than that of the FCC’s “Media Bureau.” If so, its mission would be, as Minister of Internal Affairs and Communications Kazuhiro Haraguchi said, to protect the “three freedoms of speech, press and broadcasting.”10
The FCC has 17 bureaus and offices. Some have functions appropriate for any governmental agency, including a Japanese FCC, regardless of its mission. Examples are the FCC’s Office of the General Counsel, Office of the Managing Director, and Office of Media Relations.11
Other bureaus and offices have functions that could be included within a Japanese FCC, but would not have to be; that is, if its purpose is limited to separating media licensing, ownership, and content regulation from direct Cabinet control. Examples might be the FCC’s International Bureau (“represents the Commission in satellite and international matters”), Public Safety & Homeland Security Bureau (“addresses public safety . . . emergency management and preparedness . . .”), Office of Engineering and Technology (“allocates spectrum . . . and provides expert advice on technical issues . . .”), and the Wireline Competition Bureau (“responsible for rules and policies concerning telephone companies . . .”).12
The only bureau that would have to be included in a media-focused Japanese FCC would be the FCC’s Media Bureau which “regulates AM, FM radio and television broadcast stations, as well as cable television and satellite services."13
Given the apparent media-centered purposes behind the DPJ’s proposal, the subject of this article is limited to the challenges and potential advantages of an independent media-regulating agency.
II. Is there a need for regulation of the media?
Once we agree upon the Japanese FCC’s mission, the next issue is whether such a mission is desirable or even necessary.
Mass media influence virtually every aspect of Americans’ lives and society – our culture and values, economy, military adventures, nutrition, popularity of sports and music, health, and even hair styles, clothing fashions, and more.
Its influence is central to U.S. politics and governing: the ideologies we hold, the information and opinions citizens share, the legislation that can be proposed and adopted, and what citizens think about the candidates for public office for whom they may vote.
Thus, it is understandable, and appropriate, that academicians, journalists, government officials, and the public at large take an interest in the performance of the media.
Some Americans use the expression, “a solution in search of a problem,” as a way of deprecating government regulation. They believe that corporate self-regulation, or “marketplace regulation,” is preferable to government regulation.
The law requires broadcasters to “serve the public interest.”14 But when regulation critics are asked what they think that means, they just say, “the public interest is what interests the public.”15
Clearly, the American audience evidences significant interest in commercial entertainment. They pay billions of dollars, even in a down economy, for feature films in theaters and on DVD, cable TV and pay channels, music downloads and CDs, video games and related offerings.
Moreover, as the author conceded in “Forty Years of Wandering in the Wasteland,”16 the changes in distribution of audio-video material during the latter half of the Twentieth Century, while bringing their own problems, have also provided some improvements for the audience.
Nonetheless, it is my position that the power of the media, coupled with the harm that it does – and of much greater significance, the good that it fails to do – fully justify the American people’s desire to maintain some control over their media.
From the time of the Washington radio conferences that led to the Radio Act of 192717 there has been concern about excessive broadcast advertising and its adverse impact on programming. Other concerns that have found their way into FCC regulations and decisions include the responsibility of stations to their communities of license, the related concern about threats from the economic and political power when media ownership is concentrated in a few, and the special needs of children.
III. What are the constitutional constraints on government regulation of media?
It is for the Japanese to interpret their own Constitution,18 and its commitments to freedom of speech. What follows are merely some perceptions of an American regarding the purposes and consequences of the U.S. Constitution’s protection of freedom of speech and press.
The specific language of the U.S. Constitution is of limited help in thinking about the wisdom of media regulation. The First Amendment says, simply, “Congress shall make no law . . . abridging the freedom of speech, or of the press . . ..”19 But the courts interpret the word “Congress” to mean all units of government from municipal to federal; some laws abridging speech are found to be constitutional notwithstanding the “no law” prohibition; and the definitions of both “speech” and “press” have varied from case to case.20
Some especially difficult constitutional questions arise with mass media.
If a municipality owns an auditorium where speakers appear it is sometimes called a “public forum.” As such, the city’s officials violate the First Amendment if they permit some speakers, and deny access to others, based on the content of their speech.
Consider a company, franchised by a city to operate its only cable television system. Whether or not the franchise makes it a governmental entity, does it have the exclusive First Amendment right to provide, and exclude, content from its dozens of distribution channels?
After all, even though the First Amendment language only limits government action, its principles are equally relevant to all media monopolies or institutions that stifle free speech.
The FCC’s “Fairness Doctrine” (now repealed) required that stations cover “controversial issues of public importance” and in doing so provide a range of views. Broadcasters thought it violated their First Amendment rights to exclusive control of their programs. The U.S. Supreme Court unanimously disagreed.21 The Court found the First Amendment rights of the audience (both those who might provide, and those who would receive views contrary to those of the broadcasters) to outweigh the free speech rights of the broadcasters.
In short, the language of the First Amendment is of greatest help when balancing the First Amendment rights of one party against non-First Amendment needs, or rights, of the government or some other party. However, its language is of little to no use when both parties rest their case on their First Amendment rights. Is it possible for laws and regulations that impact on one party’s speech to actually enhance, rather than abridge, free speech?
It is when one confronts such questions, seemingly unanswerable based on the language of the First Amendment taken alone, that it proves useful to turn to the reasons for, and values underlying, the First Amendment. Which policy, which outcome, will best serve the most of those purposes?
Arguments affirming the value of freedom of speech and press fall into five categories:
* their role in meeting the information needs of a self-governing citizenrySelf-governing. Most Americans recognize their citizenship responsibility, think self- governing is a precious thing – even something worth fighting to protect – and make some effort to participate.22 Meaningful self-governing requires citizens with the freedom to get access to as much information and opinion as possible23 – and to contribute to the public dialogue. Governmental restrictions on their access, and speech, are "un-American," undemocratic, and unconstitutional.24
* their contribution to the search for truth in a "marketplace of ideas"
* the "checking value" of the media, as it watches for, and reports, abuses by large institutions
* their importance to humans’ "self-actualization," basic liberty, and individual freedom
* the "safety valve" of dissidents’ speech, as an alternative to their otherwise violent actions
Search for truth. What is a marketplace of ideas?25 What is "truth"? Clearly, its meaning depends on the context in which we search for it. A religious truth may come from an ancient text, or a religious leader. A scientific truth may only come from the results of an experiment that other scientists can replicate with similar results. A political truth may be reflected in the election returns; a legal truth in a jury's verdict. Whatever the context, however we define “truth,” wherever we find it, a full range of available information and opinion will aid our search.
Checking value. The media’s use of its free speech and press rights make it, in effect, a constitutionally recognized "fourth branch of government."26 As such, it has a public function as important as, although autonomous from, the other three branches of government27 – its ability to help keep other institutions in the society more honest and efficient.
The need for a "checking value" assumes that every institution in society, not just government, is capable of becoming ingrown, resistant to change, secretive, systemically corrupt, and more interested in perpetuating itself than in its original mission28 – whether businesses, universities, churches, hospitals, or military and police units.29 This function is further encouraged by the fact that uncovering abuses,30 "investigative reporting," can often actually increase the audience, and therefore the advertising revenue and profits of the media.31
Self-actualization. Other animal species are superior to humans in a variety of ways, such as senses of hearing and smell, speed of running, or ability to fly. What distinguishes our species is our capacity and propensity to create, manipulate and communicate by means of symbols, including language. The opportunity to investigate, research, become educated, read, listen, think, speak and write – to exercise our First Amendment rights – is central to our development as humans.32 The ideas expressed may or may not contribute anything to the society's self-governing, search for truth, or check on institutions. If the speech contributes to the growth of an individual, it serves this value of the First Amendment.
Safety valve. A safety valve on a boiler can release steam before the boiler builds up pressure and explodes. The First Amendment serves this purpose for the potentially explosive pressures within a society.33 Dr. Martin Luther King practiced "non-violent" strategies for change. Others chose to shoot, loot, burn, take hostages, and become suicide bombers in order to be heard.34 If dissidents can get the attention of other citizens and officials with speech, if they have the feeling that they have been "heard," they are much less likely to use violence as a means of protest and reform.35
IV. What media regulation has the U.S. FCC provided?
Rationale. One of the exceptions, or interpretations, permitting government regulation of speech has been the licensing of broadcasting stations by the FCC, and the agency’s regulations that affect speech in one way or another. The most common argument used to justify the licensing and regulation of broadcast stations, when balancing them against the “no law” prohibition, is the “scarcity” of broadcast frequencies.36 Other rationale, used by the Supreme Court in a case upholding the FCC’s prohibition of seven words on radio, involved broadcasting’s pervasiveness, the fact it comes into the home, and is available to children.37
There are gradations of government regulation, or “abridgement,” of free speech, including the regulation of broadcasters’ speech by the FCC. They may be distinguished between regulation of “specific content” and regulation of “non-content-specific categories.”
Prior censorship and post-speech punishment. Starting with the most extreme form of content regulation, “prior censorship” occurs when a governmental agency reviews, judges, and approves, or not, specific content before publication or broadcast.38 On the one hand, the FCC does not engage in prior censorship. Indeed, the Communications Act expressly forbids it to do so.39 On the other hand, the post-broadcast penalties it can impose for specific content can range from license revocation (rare to never) to fines of $100,000 and more.40 Thus, ironically, vague standards and uncertain outcomes for post-speech punishment may curtail more speech than prior censorship. Speakers may self-censor, out of the fear of post-broadcast punishment, speech that a prior censorship official might actually approve.
Specific content regulation. Illustrative examples of post-broadcast content regulation during the history of the FCC include the agency’s examination of “indecency,” including the Commission's designation of specific forbidden words – with Supreme Court approval.41 The Commission attempted to discourage the broadcast of music with “drug lyrics,”42 and fined a licensee $550,000 for televising a dance routine during the halftime show of the National Football League’s “Super Bowl” game.43 The Commission also compels specific speech from its licensees – something that the Court might find a First Amendment violation in another context. For example, stations must identify themselves regularly by their call letters, and must reveal the names of those who paid for commercials.
Categories of speech regulation. As the phrase “non-content-specific categories regulation” suggests, it involves a broadcaster’s obligation to provide, or refrain from providing, a category of speech, the specific content of which is left to the discretion of the broadcaster.44
One of the FCC’s first, and most inclusive statements of broadcasters’ programming responsibility, was a 1946 report called “The Blue Book.”45 The Commission wrote, “In . . . renewing the licenses . . . the Commission [gives] particular consideration to four . . . factors relevant to the public interest . . .: (1) . . . [non-sponsored, or] sustaining programs . . .; (2) . . . local live programs; (3) . . . discussion of public issues, and (4) the elimination of advertising excesses.”46 Those would be examples of categories regulation, rather than regulation of specific words or content.
The Blue Book and these four factors were the centerpiece of the Commission’s “policy of a more detailed review of broadcast station [programming] performance when passing upon applications for license renewal.”47 Indeed, the report led with detailed stories of stations requesting license renewals when the programming they had delivered did not meet the promises they had made to the Commission, ultimately a renewal standard called “promise vs. performance.”48 This related to the questions on license renewal forms broadcasters had to answer and file with the Commission every three years.
Deregulation. Beginning in the late 1970s and 1980s, much of the FCC’s regulation of all kinds, including that which impacts speech, was repealed during a time of widespread political support for an ideology of “deregulation,” “marketplace regulation,” or “self regulation.”49 Nonetheless, the examples which follow represent not only what an FCC could do, but what the FCC actually did do at various times in the past.
Programming reports. The license renewal form included the broadcaster’s report of the programming he or she had provided during the prior license period50 and promised for the future. For example, the renewal form required broadcasters to report the proportion of their programming that had been “news” and “public affairs.”51 An accompanying “composite week log” from the station’s record of its programming and commercials provided support.52 The FCC composite week consisted of seven randomly selected days of the week from the prior year – one Sunday, one Monday, and so forth – unknown in advance by the licensee.
Commercialization. Another item on the renewal form asked for the licensee’s number of commercials per hour.53 The Commission had an informal standard of the maximum it would accept. More than that would trigger an inquiry from Commission staff as to the broadcaster’s reason for excessive commercialization.
Promise vs. performance. The promises regarding future conduct (such as amount of news and public affairs, and the number of commercials) made it possible for the staff, at the next renewal time, to compare the licensee’s promises with actual performance (based on the “composite week”). “Promise vs. performance” was a serious matter, as much for the licensee’s misrepresentations to the Commission as for the inadequate substantive performance.54
Children's programming. Licensees also need to report whether they have met the FCC’s requirements for “children’s programming” – standards that have varied over the years.55
Personnel and programming. The FCC hoped that licensees’ reports regarding their hiring of women and minorities might create a more diverse mix of employees in this predominantly white male industry, and that those employees would at least marginally influence the creation and content of news and public affairs programming.56
Local programming and community ascertainment. One way the Commission encouraged local programming was a logging requirement regarding the source of programming, one category of which was “local.”57 Another was the requirement that broadcasters do a “community ascertainment.” That is, the broadcaster would survey designated groups, make a list of issues confronting the community, and create and broadcast programs addressing them.58
There were a number of Congressional and Commission policies involving the broadcast coverage of issues and candidates, differing somewhat in rationale and detail but similar in purpose.59
Political and issue rights of individuals. Some generate rights in specific individuals.
The “equal opportunity” doctrine provides that a station need not provide time to candidates for public office, but that if it does so it must provide an “equal opportunity” to all other candidates for that office.60 In addition, candidates for federal office, such as the president, senators and members of Congress, have a right to buy a “reasonable” amount of time.61
A “personal attack” doctrine created a right in the person attacked during a broadcast. They are notified and offered an opportunity to respond.62
Fairness doctrine. Although the foregoing are sometimes characterized as a part of the “Fairness Doctrine,” it does not create rights in individuals.63 Therefore, it is conceptually more helpful to treat it separately.
The two requirements of the Fairness Doctrine involve little more than what professional journalism would dictate even if the Fairness Doctrine did not exist. (1) Stations are required to provide programming on “controversial issues of public importance.” (2) In doing so, they are required to present a range of views on those issues.64
It is significant what the doctrine does not require. The FCC does not designate issues. It does not designate the number or content of the viewpoints included. It does not require internal balance within each individual program. It does not require “equal time.” All it forbids are stations operated as instruments of propaganda – in short, it requires little more than what ethical, and profitable, civic journalism does as a matter of course.
V. What limitations are there on the independence of an "independent regulatory commission"?
However, regardless of what the Constitution, acts of Congress, and FCC regulations may provide regarding the independence of both the FCC (from the Executive and Legislative branches of government) and the media (from the FCC or other governmental units’ actions “abridging the freedom of speech”), there are other forces at work as well.
Both the FCC and media are significantly circumscribed (a) under the American constitutional structure of “checks and balances,”65 especially (b) given the role of media in determining who wins elections. There is also (c) the necessary intervention of the Executive and Legislative branches of government in the creation, staffing and funding of even an “independent” agency, and (d) the disproportionate political, economic, and media power of America’s wealthiest individuals and largest corporations.
Merely because broadcasters are not employees of government does not mean that they are in every way independent of government.
For many reasons, commercial broadcasters may provide support for "the establishment" in general – the wealthy, or those managing large institutions of all kinds – and the government in particular.
For starters, the owners of major U.S. media are the establishment.
An organization called FAIR66 publishes a magazine of media criticism called Extra! It has run a number of articles analyzing the tendency of news and interview programs to limit the choice of guests to middle-of-the-road establishment figures.67 One consequence is a media tendency to support government positions on issues.
Media owners may fear retribution by federal government agencies with regulatory authority over them. The FCC gives and can take away broadcasters' licenses, and its statutory standard for review is the vague "public interest."68
Broadcasting stations that are owned by large corporations with other subsidiaries, called "conglomerates," may be tempted to use their media power to serve their other corporate interests.69 For example, the media subsidiary of a multi- billion-dollar provider of goods and services to the Defense Department may be more inclined to support the U.S. going to war. When billions of dollars are at stake, and politicians are concerned about "image," the temptation to curry favor with the government is large.
The point is simply that there are many ways in which a government can exert influence over the media regardless of how “autonomous” it is as a “fourth branch of government,” and however “independent” the Federal Communications Commission may be.
There are also limits to how “independent” any agency can be from the normal, constitutional roles of the legislative and executive branches.
For example, in the case of the FCC, the commissioners are appointed, and reappointed, or not, by the President, with the “advice and consent” of the U.S. Senate.70 The President cannot remove them from office during their five-year term, but they have at least some association with the President – and possibly a sponsoring senator as well.
The FCC must send its budget request through the President’s Office of Management and Budget71 just like every executive branch agency. Moreover, the President’s budget is meaningless until approved by Congress, which has the appropriation power.72
The FCC’s ability to lobby the President and Congress is limited. The major industries and firms it regulates are not limited. They fund House and Senate members’ re-election campaigns. They spend millions more on the lobbyists who have access to members of Congress, the White House, and agencies.
Moreover, as I have elsewhere explained, Washington,
“works through dozens of sub-governments . . ..In April 2010, the United States witnessed two consequences of “agency capture” in one month. There were 29 dead miners in a coalmine with numerous safety violations. The U.S. Mine Safety and Health Administration failed to shut it down. Shortly thereafter 11 offshore drilling workers died in the course of the worst environmental pollution disaster in the nation’s history. Had the Minerals Management Service been doing its job, and more independent of the oil industry in general and BP in particular, it would not have happened.74
“Sub-governments grow under rocks, away from the media's spotlight. They require an industry dominated by a few firms that grow rich with government help, whether through subsidies, price supports, tax breaks, government contracts, use of public lands, bailouts or tariffs.
“A sub-government's membership includes a small, incestuous collection of one industry's corporate and trade association executives, their lawyers, lobbyists and publicists, its trade papers' journalists, congressional sub-committee members and staff, and the relevant agency's employees. They eat and play together, literally inter-marry, and protect each other.”73
There are civil servants at the FCC and elsewhere throughout the federal government who are bright, ethical, hard working, idealistic, and take seriously their obligations to serve the public interest. There are more than one might imagine. Howevver, some slowly and unconsciously, and others knowingly and cynically, find themselves becoming a part of their sub-government. Those who do not, find that the barriers they confront are systemic; their only meaningful option is to resign.
VI. The counterforce of public participation
From its earliest days, the United States has had a countervailing force as well, in its tradition of citizen action.75 Given the power and influence of the mass media, especially television, it is not surprising that a citizen-based media reform movement has taken a variety of forms over the years. The movement has had mixed results, but lives on.
However, an adequate discussion of its history and effect requires another day and another article.
The limited purpose of this article is simply to to provide some illustrative background regarding the role and regulations of the U.S. Federal Communications Commission related to its regulation of broadcasters' performance.
The lack of “advice” for the Japanese regarding the DPJ’s proposed “Japanese FCC” is deliberate. The author is mindful of the differences between the legal systems, customs and cultures of Japan and those of the U.S. Those differences necessarily will play a major role as Japanese academicians and officials sort through the media regulation experiences of both countries, separating out the ideas that will, or might, work in Japan from those that definitely would not.
* Nicholas Johnson, U.S. FCC Commissioner, 1966-73, now faculty, University of Iowa College of Law; biography, texts of books and articles, coordinates available at http://www.nicholasjohnson.org; Blog: http://FromDC2Iowa.blogspot.com.
Sample References: Shinji
Uozumi, The Short Life of Japanese FCC: Social and Legal Origins of
the Radio Regulatory Commission (1995) ("Uozumi").
Nicholas Johnson (available online from Web site, and as chapters in Your Second Priority (2008)): “An Autonomous Media;” “Jefferson on the Internet;” “Sailing Shark-Infested Waters: A Map for Media Literacy;” “Forty Years of Wandering in the Wasteland;” “With Due Regard for the Opinions of Others;” “The Media Barons and the Public Interest: An FCC Commissioner’s Warning;” “Media as Politics: What’s a Voter to Do?”, tNicholas Johnson, How to Talk Back to Your Television Set (English: Little, Brown; Bantam; Japanese: Diamond; 1970), and “A Day in the Life: The Federal Communications Commission,” Yale Law Journal, 82 Yale L.J. 1575 (1973).
1 See, e.g., the DPJ’s “Manifesto”: 2009 Change of Government: The Democratic Party of Japan's Platform for Government; Putting People's Lives First, The Democratic Party of Japan (2009), available online http://www.dpj.or.jp/english/manifesto/manifesto2009.pdf (last visited October 17, 2009), and Democratic Party of Japan, Policy: Index 2009, available online (in Japanese) http://www.dpj.or.jp/policy/manifesto/seisaku2009/img/INDEX2009.pdf (last visited October 17, 2009). References to “the FCC” are to the United States independent regulatory commission in Washington, D.C., unless the “DPJ’s FCC” or “Japanese FCC” is indicated. “The Commission” may refer either to the entire FCC, with its numerous bureaus and offices and some 2000 employees, or to the five (formerly seven) “commissioners” and their personal staff. The FCC’s Web site, http://fcc.gov/, provides links to information about the commissioners, the FCC’s organization, its rules and regulations, some history, and related data. For a dated, but still useful critical description of the commissioners’ handling of the range of agency responsibilities, see the author’s article, Nicholas Johnson and John Jay Dystel, “A Day in the Life: The Federal Communications Commission,” Yale Law Journal, 82 Yale L.J. 1575 (1973), available online, http://www.uiowa.edu/~cyberlaw/lem97/dayinlif.html.
2 Since this article was first written, but before it was published online, the DPJ’s intentions and legislation appear to have changed in May 2010. Moreover, Prime Minister Yukio Hatoyama resigned on June 2, 2010. Less than one week later the DPJ replaced him with Naoto Kan, “From Lowly Stock, a Rise to the Top: Profile of Naoto Kan, New Prime Minister,” Asahi Shimbun, June 7, 2010, http://www.asahi.com/english/TKY201006060172.html (last visited June 9, 2010). A new election was scheduled for July 11, 2010. Martin Fackler, “Japan’s Premier Will Quit as Approval Plummets,” New York Times, June 2, 2010, p. A1, http://www.nytimes.com/2010/06/02/world/asia/02japan.html (last visited June 3, 2010). Nonetheless, the issues remain, and the original proposal has become a part of Japanese thinking and literature regarding media regulation. Thus, this article continues to comment on the proposal as if it will still be before the Diet. Editorial, “Broadcast Act Revision,” Asahi Shimbun, May 23, 2010 (“The revision bill for the Broadcast Act . . . now has a dangerous clause [that] will give the Radio Regulatory Council, a consultative body for the Minister of Internal Affairs and Communications, the power to examine, discuss and propose to the minister whether a broadcaster is politically neutral. However, this may give way to state intervention in broadcast content.”), http://www.asahi.com/english/TKY201005230181.html (last visited May 24, 2010).
3 For what is presumably the best explanation of the history of the creation, operation, and dissolution of the first Japanese FCC, see the insightful, exceptionally well-researched and written masters’ thesis, Shinji Uozumi, The Short Life of Japanese FCC: Social and Legal Origins of the Radio Regulatory Commission (University of Hawaii, 1995), available online, http://www.hi-ho.ne.jp/~uozumi/Uozumi.pdf (last visited July 20, 2010).
4 For some of our cultural differences, and why they must be understood in creating broadcast regulation policies, see Uozumi, supra note *, throughout, but especially chapter 3, pp. 41-63.
5 “Information, Telecommunications
and Post," Democratic Party of Japan, Policy: Index 2009, pp. 11-12, available
online (in Japanese),
6 See, e.g., “Independent Body to Regulate Media,” Asahi Shimbun, September 24, 2009, http://fr.kiosko.net/asi/2009-09-24/np/asahi_shimbun.html (last visited July 27, 2010) (excerpts: “The government has revealed plans to create an independent regulator for the communications and broadcasting industries in a push to reduce political influence in the media.
“The new commission, to be modeled loosely on the U.S. Federal Communications Commission (FCC), will take over authority from the Ministry of Internal Affairs and Communications, which has enjoyed uninterrupted regulatory control over the industries for decades.
“The government will draft a bill for the commission by the end of 2010 and present it to a regular Diet session in 2011, officials said.
“Communications minister Kazuhiro Haraguchi, on a visit to Lima for a conference on digital terrestrial broadcasting, said Monday (Tuesday Japan time) the government was planning to create a Japanese version of the FCC . . .
“Divesting the government of the authority to oversee communications and broadcasting would help protect the ‘three freedoms of speech, press and broadcasting,’ he said. . . .
“The commission will cover comprehensive regulations and supervision of the communications and broadcasting industries, from the allocation of radio waves and granting of broadcast licenses to the regulation of program content. . . .
“Naito said that ‘only regulatory oversight functions will be cut off (from the ministry's communications and broadcast administration), and assigned to a new body.’
“The comment has been construed as meaning that planning and industry promotion divisions will be retained within the ministry. . . .” “DPJ At the Helm: Govt Ponders Broadcasting Watchdog,” Yomiuri Shimbun, September 20, 2009, http://ww.istockanalyst.com/article/viewiStockNews/articleid/3492868 (last visited July 27, 2010) (“The study group is expected to . . . discuss granting the independent organization the right to order broadcasters to provide redress to people negatively affected by content that clearly violates broadcasting ethics, for example content that violates human rights.”).
7 Conversion at ¥90.192 to the dollar, May 25, 2010 (“Conversion”).
8 Federal Communications Commission, “Fiscal Year 2011 Budget Estimates Submitted to Congress,” February 2010, p. 1, http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-296111A1.pdf (last visited May 25, 2010) (“Budget Estimates”). The actual numbers are $352,500,000, or ¥31,792, 680,0008.
9 Supra note 7; the actual numbers are $31,880,000, or ¥2,875,321,0009.
10 Supra note 6.
11 “About the FCC,” http://www.fcc.gov/aboutus.html (last visited June 1, 2010).
14 E.g., Communications Act of 1934, 47 U.S.C. § 307 (2006) (last visited July 22, 2010).
Note Regarding Search of the U.S. Code (USC). U.S. Code sections are available from the Government Printing Office site. Go to http://www.gpoaccess.gov/uscode/index.html (last visited July 24, 2010). Enter citation in the Search box in the form, e.g., 47USC307 and click "Submit." That goes to a page with the choice of format (text or pdf); click on choice.
15 On the other hand, when “what interests the public” involves 500,000 messages encouraging the FCC to limit the number of media outlets any corporation can own, regulation critics tend to ignore public preference. See, e.g., Michael A. McGregor, “When the ‘Public Interest’ Is Not What Interests the Public,” 11 Comm. L. & Policy 207 (Spring 2006), https://litigation-essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&crawlid=1&doctype=cite&docid=11+Comm.+L.+%26+Pol%27y+207&srctype=smi&srcid=3B15&key=588c2ee237f7edfc03b101b96c1f2e7a (last visited June 20, 2010).
16 Nicholas Johnson, "Forty Years of Wandering in the Wasteland," Federal Communications Law Journal, 55 F.C.L.J. 521 (2003), http://www.nicholasjohnson.org/writing/masmedia/55FCL521.html (last visited July 22, 2010).
17 See Erik Barnouw, A Tower in Babel: A History of Broadcasting in the United States (Oxford Univ. Press, 1966), throughout, e.g., pp. 94-96, 107, 121-22, 174, 177-79, 195-201, 257 (no known online availability).
18 The Constitution of Japan, Prime Minister of Japan and His Cabinet, May 3, 1947, http://www.kantei.go.jp/foreign/constitution_and_government_of_japan/constitution_e.html (last visited June 10, 2010). See Chapter III, Rights and Duties of the People, especially Article 21, “Freedom of . . . speech, press and all other forms of expression are guaranteed.”
(The full text of Article 21, and related,
relevant provisions include:
Article 19. Freedom of thought and conscience shall not be violated.
Article 20. Freedom of religion is guaranteed to all. No religious organization shall receive any privileges from the State, nor exercise any political authority. No person shall be compelled to take part in any religious act, celebration, rite or practice.
The State and its organs shall refrain from religious education or any other religious activity.
Article 21. Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed.
No censorship shall be maintained, nor shall the secrecy of any means of communication be violated.
Article 22. Every person shall have freedom to choose and change his residence and to choose his occupation to the extent that it does not interfere with the public welfare. Freedom of all persons to move to a foreign country and to divest themselves of their nationality shall be inviolate.
Article 23. Academic freedom is guaranteed.)
19 U.S. Const. amend. I, available http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html (last visited July 22, 2010).
20 For examples of some of the exceptions to the “no law” prohibition, see infra note 24. “Congress” includes not only the federal legislative branch, but the executive and independent administrative agencies as well. It also includes, essentially, all levels of government: states, counties, cities, and other public institutions, such as K-12 schools and public universities.
21 Red Lion Broadcasting v. FCC, 395 U.S. 367 (1969), available at http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=395&page=367 (last visited July 22, 2010).
22 Of course, there will always be those who, for whatever reason, do not. In the same way, there are always some students, parents, doctors, or other professionals, who do not take their responsibilities very seriously. Some citizens do not even bother to vote. However, a democracy cannot force people to govern themselves. It can only give them the opportunity to do so. Although the author is often critical of the failures of the American political and mass media systems, he also acknowledges the extent to which they are not only working, but vigorously doing so. At almost any hour of the day or night there are numerous, ongoing opportunities for citizens to express their views on radio, television and cable "talk shows" of various kinds – not to mention the many guest interview programs (onto which one must be invited, but which together present a range of views). Nationally broadcast programs are available to all; others broadcast locally. In addition to broadcasting outlets there are also, of course, the numerous newspaper and magazine "op-ed" and "letters" pages, and increasing numbers of electronic communications opportunities from Web pages, blogs, text messages, tweets and list-servs, on the one hand, to anonymous comments regarding newspapers’ stories that readers can put in the papers’ online editions, on the other. In addition, much of the local and antional dialogue goes on over family dinner tables, in coffee shops, and around the water coolers at work. The discussion feeds back upon itself, public opinion forms, and then shifts. There is a constant polling of public opinion by numerous media, political and commercial firms. Political and public interest organizations propose actions based on public opinion – everything from the need for a new local streetlight, to a ban on cigarette smoking, to going to war. Government officials often change policies based on their perception of public opinion – without even waiting for a formal public protest. In short, the self-governing process really does work in practice in its own imprecise and imperfect way. It is more than just a theoretical model.
23 Although not the subject of this paper, the provision of free public education, free public libraries, and reduced postal rates for newspapers, magazines, books, and library materials were also early expressions of official commitment to the provision of the informational needs of a self-governing society. Additional, modern forms of this recognition in the U.S. are the creation of the Corporation for Public Broadcasting (Public Broadcasting Service (television) and National Public Radio), and President Clinton's, and subsequent Administrations', efforts to make government documents available to citizens electronically, online, by way of Internet connections to government computers.
24 In practice, courts
“balance” the values of the First Amendment against other societal and
legal interests (such as protecting children from obscenity, requiring
the disclosure of contents on food and pharmaceutical products’ labels,
or maintaining secrecy in wartime about the movement of troops). But at
least one Supreme Court judge has pointed out that the literal language
of the First Amendment (unlike, say, the Fourth Amendment, which protects
citizens from "unreasonable” searches of their homes by government officials),
does not merely prohibit unreasonable restraints on free speech.
It provides that "Congress shall make no law" (emphasis supplied)
abridging free speech. Ginzburg v. United States, 383 U.S. 463,
476 (1966) (Black, J., dissenting) http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=383&page=463
(last visited July 24, 2010). Another Supreme Court judge referred
to the "preferred position" of the First Amendment when weighing values.
States v. Carolene Products Co., 304 U.S. 144, 152 n. 4 (1938)
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=304&page=144#t4 (last visited July 24, 2010). . Whatever language or analyses they use, virtually all judges recognize that there is something very special and precious about free speech.
25 The reference to a “marketplace” of ideas is an allusion to a marketplace of goods, in which customers can compare one product with another. Just as goods may be displayed and compared on the tables of a market, so may the public compare ideas – thus, a "marketplace of ideas." Of course, there is a distinction between "a marketplace of ideas" and "the ideas of the marketplace." The former refers to what emerges from the public dialogue in the academy and other non-commercial institutions. The latter refers to what comes from a commercial mass media: a dialogue (or monologue) that may or may not be designed to inform, but one clearly modified as necessary to maximize the profits of the media owners and their advertisers. For example, before Congress limited cigarette advertising, lung cancer became a greater health risk for women than breast cancer. Health, nutrition and exercise were big topics for "women's magazines." However, women's magazines that accepted cigarette advertising wrote very little about the 450,000 tobacco-induced deaths every year. Additionally, influential media, owned by large conglomerate corporations engaged in other controversial businesses about which journalists need to report, have a conflict of interest that may limit their contribution to the "ideas of the marketplace” regarding abuses by other subsidiary corporations owned by the parent corporation.
26 The first three branches of government would be the legislative, executive and judicial. The federal "independent regulatory commissions" are a “fourth branch of government.” The Federal Communications Commission would be an example of such an agency.
27 “Autonomy” does not necessarily guarantee “independence.” Outside pressure can come from many sources. See infra, discussion following heading, V. What limitations are there on the independence of an "independent regulatory commission"?
28 Thus, the media are
a “check” on governmental and other institutions in a way that is analogous
to the checks the three branches of government provide each other. Supranote
26. For example, the President nominates presidential appointees, but
the Senate must consent to their appointment. U.S. Const. art. II, §
2, cl. 2. (The full text of this provision, and those that follow, may
be found at
http://www.archives.gov/exhibits/charters/constitution_transcript.html (last visited July 24, 2010).) The President may request money, but the House appropriates it. Id. art. I, § 7, cl. 1 and § 8. The Congress passes bills, but the President must sign them to make them laws. Id. art. 1, § 7, cl. 2. Following passage the President may choose to veto a bill, but the Congress can override the veto. Id. And after all of that process, the Supreme Court still has the power to render the laws void, as unconstitutional. Id. art. III – as interpreted by the Court in granting itself this power, in Marbury v. Madison, 5 U.S. 137 (1803), http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=5&page=137 (last visited July 24, 2010).
29 A society has many other ways to investigate and hold institutions to account. The court system is of some use. There may be regulatory agencies to control, or break up, monopolies. Legislative committees can hold hearings. Various police agencies, with a variety of techniques, may play a role. Many institutions have internal offices, and personnel (often called “inspector general”) to watch for, try to avoid, and investigate criminal violations or other abuses.
30 (a) Many of these opportunities are legally enforceable rights of reporters. Although outside the scope of this article, a couple of examples would include "public trials," "sunshine" or "open meetings" laws, and the "Freedom of Information Act" (providing that, with some exceptions, reporters and citizens alike can get access to most of the documents in government files). President Clinton's Administration opened up millions of formerly-classified documents in what the New York Times has called "the least secretive policy on Government records since the birth of the modern national security apparatus in 1947." Tim Weiner, "U.S. Plans Secrecy Overhaul To Open Millions of Records," New York Times, March 18, 1994, p. A1 (no known online availability). (b) Of course, reporters may have assistance from others. But that only makes their "checking value" function more obvious and effective. "Whistle-blower" refers to someone within an institution who refuses to maintain secrecy about an abuse (that is, they "blow the whistle" to attract attention). Whistle-blowers sometimes provide information, often in confidence, to reporters. This might take the form of machine copies of documents mailed to a reporter in a plain envelope with no return address. (c) The option of "going to the media," as it is called, may be thought of as analogous to someone turning to the courts, or an elected legislator, for relief.
31 But see infra note 69.
32 Even the U.S. Army once used this concept in its efforts to recruit new soldiers with its motto (in a singing television commercial): "Be all that you can be; find your future in the Army." E.g., “Be All You Can Be (1986),” http://www.youtube.com/watch?v=ebjlKQOmgjo&NR=1 (last visited June 10, 2010).
33 The "safety valve" value may be thought of as (a) a cynical, meaningless grant from those who control the society to those who do not, in an effort to reduce any effective (that is, violent) efforts at change by the latter that would reduce the wealth or power of the former. On the other hand, (b) it may be a very real commitment to democratic rule, including the possibility of loss of power, based on a belief that it is wrong to silence any group in the society – whether or not they would be likely to turn violent if suppressed. Both are relevant for purposes of this article.
34 Following the arson, looting, and rioting in downtown Los Angeles in 1965, one of the young rioters said, "What we do last night, maybe it wasn't right. But ain't nobody come down here and listen to us before" -- again making the link between speech and violence. As Dr. King put it, "A riot is the language of the unheard." Dr. Martin Luther King, “The Other America,” Grosse Pointe, Michigan, March 12, 1968, http://www.postbourgie.com/2010/01/18/remembering-martin-luther-king (last visited June 10, 2010). Many instances of airline hijacking, or hostage taking, turn out to involve both a speech-related frustration on the part of those committing the crime, and a desire (sometimes demand) for access to the media to tell their story.
35 Whether this reason is valid is another matter. Some argue that by permitting the expression of grievances one only raises the expectations of those doing the complaining, increases the anger of those already upset, contributes to the organization of what may turn out to be even larger groups of individuals willing to engage in violence, and thereby intensifies the danger of societal disintegration. Nonetheless, the "safety valve" effect of the First Amendment is one of the values of free speech. It can also be thought of in the context of self-governing; that is, that government is best which does hear and respond to all its citizens' grievances, whatever may or may not be the violent consequences.
36 NBC v. United States,
319 U.S. 190, 226 (1943) (“Because it [radio, the spectrum, frequencies]
cannot be used by all, some who wish to use it must be denied.”)
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=319&page=190 (last visited July 24, 2010). In upholding the Fairness Doctrine (requiring broadcasters to provide both the discussion of controversial issues, and the presentation of a range of views) the Court said, among other consistent things, “Where there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish. . . . It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here.” Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 388, 390 (1969) http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=395&page=367 (last visited July 24, 2010).
37 FCC v. Pacifica Foundation, 438 U.S. 726 (1978), http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=438&page=726 (last visited July 24, 2010).
38 At one time the U.S. State of Maryland had an agency called the Maryland State Board of Censors. “Maryland State Board of Censors,” Wikipedia.org, http://en.wikipedia.org/wiki/Maryland_State_Board_of_Censors (last visited June 12, 2010). It was tasked with viewing all motion pictures, and either granting or withholding its seal of approval, before they could be shown in theaters in Maryland. The Board prohibited the showing of movies it believed to be “sacrilegious, obscene, indecent, immoral, or tending to debase or corrupt morals.” This would be an example of “prior censorship.” “Agency History for Board of Censors,” Maryland State Archives Guide to Government Records, http://guide.mdsa.net/history.cfm?ID=SH72 (last visited June 12, 2010). See Grove Press v. Maryland State Board of Censors, 255 Md. 297, 258 A. 2d 240 (a state court determination that the motion picture “I Am Curious (Yellow)” was obscene), aff’d by an equally divided court, 401 U.S. 480 (1971), http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=401&page=480 (last visited July 24, 2010), but see Near v. Minnesota, 283 U.S. 697 (1931), http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=283&page=697 (last visited July 24, 2010).
39 Communications Act
of 1934, 47 U.S.C. § 326 (2006) (“Nothing in this chapter shall be
understood or construed to give
the Commission the power of censorship . . ., and no regulation . . . shall interfere with the right of free speech by means of radio communication.”). See supra Note Regarding Search of USC, note 14.
40 See FCC Consumer & Governmental Affairs Bureau, “Obscene, Indecent, and Profane Broadcasts,” http://www.fcc.gov/cgb/consumerfacts/obscene.html, and FCC Enforcement Bureau, “Obscene, Profane & Indecent Broadcasts: Notices of Apparent Liability,” http://www.fcc.gov/eb/broadcast/NAL.html (last visited June 12, 2010).
41 Pacifica, supra note 37, and text at notecall 37. That which is “obscene” is outside the protection of the First Amendment, and is subject to federal, state, and local regulation and prohibition. By contrast, the Constitution protects speech defined as merely “indecent” – in most settings. Indecent broadcast speech is an exception for the reasons mentioned in the text. Id. But see the 2010 modification in Fox Television Stations v. FCC (2nd Cir., July 13, 2010) (prohibition of "fleeting expletives" as indecency a vague standard that could inhibit free speech) http://www.ca2.uscourts.gov/decisions/isysquery/d8efd442-4028-4bf8-9082-e7a6f679ed41/1/doc/06-1760-ag_opn2.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d8efd442-4028-4bf8-9082-e7a6f679ed41/1/hilite/ (last visited July 27, 2010), and news coverage, e.g., Edward Wyatt, "F.C.C. Indecency Policy Rejected on Appeal," New York Times, July 14, 2010, p. B1, http://www.nytimes.com/2010/07/14/business/media/14indecent.html (last visited July 27, 2010).
42 Yale Broadcasting Co. v. FCC, 478 F.2d 594 (D.C. Cir. 1973), http://openjurist.org/478/f2d/594/yale-broadcasting-company-v-federal-communications-commission (last visited July 24, 2010).
43 “Specifically, the complaints state that the halftime segment, which featured musical performances by Janet Jackson, P. Diddy, Nelly, Kid Rock and Justin Timberlake, contained indecent material, including ‘crude,’ ‘inappropriate,’ ‘lewd’ and ‘sexually explicit’ dancing and song lyrics, culminating in a performance by Ms. Jackson and Mr. Timberlake that concluded with Mr. Timberlake's removal of a portion of Ms. Jackson's bustier, exposing her breast to the camera.” Notice of Apparent Liability for Forfeiture, Complaints Against Various Television Licensees Concerning Their February 1, 2004, Broadcast of the Super Bowl XXXVIII Halftime Show, 2004, http://www.fcc.gov/eb/Orders/2004/FCC-04-209A1.html (last visited June 12, 2010).
44 However, there are some examples of specific speech the FCC requires or forbids. For example, stations were required to announce their call letters at specified times throughout their programming. Station Identification, 47 C.F.R. § 73.117 (1968). On the other hand, the “broadcasting of, any advertisement of or information concerning any lottery” was prohibited. Lotteries, 47 C.F.R. § 73.122 (1968).
Note regarding the U.S. Code of Federal Regulations (CFR). Just as the U.S. Code is a compilation, by subject-matter title, of laws passed by Congress, signed by the President, and entered in the Statutes at Large, so the U.S. Code of Federal Regulations a compilation, by subject-matter title (identical to that used in the U.S. Code) of regulations enacted by executive agencies and independent regulatory commissions, and published in the daily Federal Register. The Government Printing Office provides an online search of the CFR, http://www.gpoaccess.gov/cfr/index.html (last visited July 24, 2010). However, also like the U.S. Code, there are newly published editions of CFR from time to time. The GPO CFR site, linked above, provides access to the versions from 1996 to the present. However, for prior editions one must find access to the hard copy versions in a research, or law, library that has retained them. (The law library at the University of Iowa College of Law is such a library.) So the sections referred to, above, which were in the 1968 edition, do not have a known online source.
45 FCC, Public Service Responsibility of Broadcast Licensees (March 7, 1946) (hereafter “Blue Book”), http://www.nicholasjohnson.org/material/BlueBook.pdf (last visited June 15, 2010).
46 Id., p. 55.
47 Id. p. 3. This was a change from the Commission’s approach to logging, and virtually automatic license renewals (with regard to programming). For the contrast between the pre-Blue Book almost exclusive focus on engineering data (“operating logs”) reflected in the 1936 Code of Federal Regulations and the focus on programming, with detailed “Program Type Definitions” in the post-Blue Book era, reflected in the 1968 C.F.R., see infra note 51. And see Note Regarding CFR, supra note 44.
48 Id. pp. 3-4.
49 Leading American conservative, and one-time George Bush adviser, Grover Norquist famously put the ideology this way: “I don't want to abolish government. I simply want to reduce it to the size where I can drag it into the bathroom and drown it in the bathtub.” “Grover Norquist,” Wikipedia.org, http://en.wikipedia.org/wiki/Grover_Norquist (last visited June 13, 2010). (Wikipedia cites as its source for the oft-repeated quote “Morning Edition,” National Public Radio program, May 25, 2001.) The FCC went so far with this ideology as to repeal its previous prohibition of fraud by licensees: “No licensee . . . shall knowingly issue to any . . . advertiser . . . any bill . . . which contains false information . . ..” Fraudulent Billing Practices, 47 C.F.R. § 73.124 (1968). And see Note Regarding CFR, supra note 44.
50 “The following entries shall be made in the program log: (1) For each program. (i) An entry identifying the program by name or title. . . . (ii) An entry of the time each program begins and ends. . . . (iii) An entry classifying each program as to type, using the definitions set forth in Note 1 . . ..” Program Log, 47 C.F.R. § 73.112 (a) (1968). And see Note Regarding CFR, supra note 44.
51 “Program Type Definitions,” provides 11 categories by which a licensee is to identify its specific programs: agricultural, entertainment, news, public affairs, religious, instructional, other (that is, other than the six prior categories), editorial (“stating opinions of the licensee”), political (“those which present candidates for public office”), education institution (“prepared by, in behalf of, or in cooperation with, educational institutions . . . or similar organizations”). Id., Note 1. This went beyond the standards in 1936: “(a) The program log. (1) An entry of the time each station and call announcement is made . . .. (b) An entry briefly describing each program broadcast, such as ‘music’, ‘drama’, ‘speech’, etc., with the time of the beginning and ending.” 47 C.F.R. § 3.151 (a) (1936). Operating log requirements went into considerably more detail. The Operating Log, 47 C.F.R § 3.151 (b) (1936). And see Note Regarding CFR, supra note 44.
52 What are normally called “commercials” the FCC denominated “commercial continuity” and defined as “the advertising message of a program sponsor.” “Definition of Commercial Matter . . ..,” 47 C.F.R. § 73.112, Note 3 (a) (1968). Public service announcements, or “PSAs,” were encouraged. A PSA is “an announcement for which no charge is made and which promotes programs, activities, or services of Federal, State or local governments . . . or . . . nonprofit organizations . . ., and other[s] . . . serving community interests . . ..” Definition of a Public Service Announcement,” § 73.112, Note 4. All programs and commercials were to be logged and the logs retained by the station, Retention of Logs, § 73.115, and made available to FCC representatives. Availability of Logs and Records, § 73.116. And see Note Regarding CFR, supra note 44.
53 What are normally called “commercials” the FCC denominated “commercial continuity” and defined as “the advertising message of a program sponsor.” “Definition of Commercial Matter . . ..,” 47 C.F.R. § 73.112, Note 3 (a) (1968). The FCC also required the logging of commercials. The quantity of time stations were devoting to commercials rather than programming was a major part of the Commission’s 1946 list of concerns in the Blue Book, supra note 45 at pp. 40-47 (Part III. D. Advertising Excesses). And see Note Regarding CFR, supra note 44.
54 As then-FCC Chair Paul
Porter described it in a National Association of Broadcasters speech in
March of 1945, “an applicant seeks a construction permit for a new station
and in his application makes the usual representations as to the type of
service he proposes. These representations include specific pledges that
time will be made available for civic, educational, agricultural and other
public service programs. The station is constructed and begins operations.
Subsequently the licensee asks for a three-year renewal and the record
clearly shows that he has not fulfilled the promises made to the Commission
when he received the original grant.” Blue Book, supra note 45
at p. 3; quoted in Harry Cole and Patrick Murck, “The Myth of the Localism
Mandate: A Historical Survey of How the FCC’s Actions Belie the Existence
of a Governmental Obligation to Provide Local Programming,” 15 Commlaw
Conspectus 339, 350,
http://commlaw.cua.edu/res/docs/Cole%20Murck%20pp%20339-371.pdf (last visited June 14, 2010).
55 “Reports From Commercial TV Broadcasters Concerning Children’s Educational Programming Extended,” FCC News, September 14, 2000, http://www.fcc.gov/Bureaus/Mass_Media/News_Releases/2000/nrmm0036.html (last visited June 14, 2010); FCC Consumer & Governmental Affairs Bureau, “Children’s Educational Television,” http://www.fcc.gov/cgb/consumerfacts/childtv.html (last visited June 16, 2010).
56 FCC, Broadcast Equal Employment Opportunity Model Program Report, Form 396, http://www.fcc.gov/Forms/Form396A/396a.pdf (last visited June 14, 2010).
57 A “local” program was defined as “any program originated or produced by the station . . . employing live talent more than 50 percent of the time.” “Program Source Definitions,” 47 C.F.R. § 73.112, Note 2 (a) (1968). Other program sources were “network” and “recorded” programs. Note 2, (b) and (c). The 1946 Blue Book, supra note 45, specifically addressed in Part III. B., “The Carrying of Local Live Programs,” pp. 36-39. And see Note Regarding CFR, supra note 44.
58 For an example of one station’s use of an online community ascertainment survey, see “Community Ascertainment Form – Community Problems, Concerns, Issues,” WSYT-TV68, Syracuse, New York, http://www.foxsyracuse.com/sections/community/ascertainment/ (last visited June 14, 2010). For a broadcaster’s explanation of why he continues community ascertainment, notwithstanding its repeal in 1984 as a Commission requirement for licensees, see Comments of Steve Giust, General Manager, KWEX-TV, San Antonio, Texas, Localism Task Force Public Hearing, San Antonio, Texas, January 28, 2004, pp. 2-3, http://www.fcc.gov/localism/012804_docs/giust_statement.pdf (last visited June 14, 2010).
59 The Blue Book, supra note 45, devoted a section to “Discussion of Public Issues,” Part III. C., pp. 39-40. It put broadcasters on notice that “the Commission, in determining whether a station has served the public interest, will take into consideration the amount of time which has been or will be devoted to the discussion of public issues.” It acknowledged that “The use of broadcasting as an instrument for the dissemination of news, ideas, and opinions raises a multitude of problems of a complex and sometimes delicate nature . . ..” As if to drive the latter point home, it then proceeded to list some 19 categories of such complex and delicate problems. Examples include: “(3) . . . what precautions are necessary to insure that the most time shall not gravitate to the side prepared to spend the most money?” Anticipating the Fairness Doctrine, “(6) What measures will insure that such programs be indeed fair and well-balanced among opposing points of view?” “(9) Should news be sponsored . . .?” “(13) What provisions . . . are necessary . . . during a political campaign?” “(15) . . . Should station licensees have the absolute right of censorship . . .?” “(19) What measures can be taken to open broadcasting to types of informational programs which contravene the interests of large advertisers – for example, news of . . . unfair advertising [or] the effects of cigarette-smoking . . .?” And, of relevance to the personal attack doctrine, “(17) Should the ‘right to reply’ to broadcasts be afforded . . .?”
60 Communications Act of 1934, 47 U.S.C. § 315 (2006). “No station licensee is required to permit the use of its facilities by any legally qualified candidate for public office, but if any licensee shall permit any such candidate to use its facilities, it shall afford equal opportunities to all other such candidates for that office to use such facilities. . ..” See supra Note Regarding Search of USC, note 14. Broadcasts by Candidates for Public Office, 47 C.F.R. § 73.120 (b) (1968). And see Note Regarding CFR, supra note 44.
61 The candidate’s “right” is actually provided as a negative: the “willful or repeated failure” of a station to provide “reasonable access” could result in license revocation by the Commission. Communications Act of 1934, 47 U.S.C. § 312 (a) (7) (2006) (“(a) The Commission may revoke any station license . . . (7) for willful or repeated failure to allow reasonable access to or to permit purchase of reasonable amounts of time for the use of a broadcasting station . . . by a legally qualified candidate for Federal elective office on behalf of his candidacy.”) See supra Note Regarding Search of USC, note 14.
62 “When . . . an attack is made upon the honesty, character, integrity or like personal qualities of an identified person or group, the licensee shall . . . transmit to the person or group attacked (1) notification of . . . the broadcast; (2) a script or tape . . . of the attack; and (3) an offer of a reasonable opportunity to respond over the licensee’s facilities.” Personal Attacks; Political Editorials, 47 C.F.R. § 73.123 (a) (1968). Comparable requirements applied to a station that “(i) endorses or (ii) opposes a legally qualified candidate.” § 73.123 (c). And see Note Regarding CFR, supra note 44.
63 For example, assume that the FCC still enforced a Fairness Doctrine, and that following BP’s pollution of the Gulf of Mexico in early 2010 the FCC considered the continuation of offshore oil well drilling a “controversial issue.” If BP feels a specific broadcaster presented nothing favoring drilling, or a disproportionately small amount of pro-drilling programming, and the broadcaster refused BP’s request for coverage of the issue, BP might file a Fairness Doctrine complaint with the FCC. If the Commission agreed with BP, this would not entitle BP to airtime – although that might be a rational response by the broadcaster. A reporter for the station might make the presentation, or interview a spokesperson for the American Petroleum Institute. Nor need the station provide “equal time” for BP’s position. Similarly, the National Resources Defense Fund, a public interest environmental group, might follow the same process if it thought the station’s coverage made short shrift of environmental considerations.
64 Communications Act of 1934, 47 U.S.C. § 315 (a) (“Nothing in the foregoing sentence [regarding exceptions to the equal opportunity doctrine] shall be construed as relieving broadcasters . . . from the obligation imposed upon them under this chapter to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public importance.”). See supra Note Regarding Search of USC, note 14. Nicholas Johnson, Your Second Priority: A Former FCC Commissioner Speaks Out (2008), Chapter 6, “With Due Regard for the Opinions of Others,” p. 87; originally published under that title, 8 Calif. Lawyer 52 (August 1988), http://www.uiowa.edu/~cyberlaw/LRevArt/8CalL52.html (last visited June 14, 2010).
65 See supra note 28.
66 http://www.fair.org (last visited June 16, 2010).
67 Seth Ackerman, “Network of Insiders; TV News Relies Mainly on Officials to Discuss Policy,” Extra!, Nov./Dec. 2001, http://www.fair.org/index.php?page=1085 (last visited June 16, 2010). A search of the FAIR site will produce many more.
68 Communications Act of 1934, 47 U.S.C. § 309 (2000). See supra Note Regarding Search of USC, note 14.
69 See generally, Nicholas Johnson, “The Media Barons and the Public Interest: An FCC Commissioner’s Warning,” The Atlantic, June 1968, http://www.theatlantic.com/past/docs/unbound/flashbks/media/johnsonf.htm (last visited June 16, 2010).
70 See supra note 28.
71 http://www.whitehouse.gov/omb/ (last visited June 16, 2010).
73 Nicholas Johnson, “New Challenges Facing Global Leadership: Refocusing the International Leadership Forum,” Western Behavioral Science Institute’s International Leadership Forum, La Jolla, California, April 27, 2002, http://www.uiowa.edu/~cyberlaw/ilf/ilf0427.html (last visited June 16, 2010).
74 See discussion in Nicholas Johnson, “P&L: Public Loss From Private Profit; Capitalism Pours More Than Oil on Troubled Waters,” FromDC2Iowa.blogspot.com, May 3, 2010, http://fromdc2iowa.blogspot.com/2010/05/p-public-loss-from-private-profit.html (last visited June 16, 2010), and additional blog entries linked from Nicholas Johnson, “Uncanny Prediction of BP Disaster & Response,” FromDC2Iowa.blogspot.com, June 10, 2010, http://fromdc2iowa.blogspot.com/2010/06/uncanny-prediction-of-bp-disaster.html (last visited June 16, 2010).
75 See, e.g., Alexis
de Tocqueville, Democracy in America, Chapter 5, "On the Use Which
the Americans Make of Associations in Civil Life" (vol. 1, 1835; vol. 2,
1840) (George Lawrence translation; J.P. Mayer, editor; 1966, 1969), http://books.google.com/books?id=LXbJ8jdEYYoC&dq=%22Democracy+in+America%22&printsec=frontcover&source=bn&hl=en&ei=P89OTNmqDsGHnQePnIiPCA&sa=X&oi=book_result&ct=result&resnum=4&ved=0CC8Q6AEwAw#v=onepage&q&f=false
visited July 27, 2010).