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Whose airwaves?

Nicholas Johnson

The Progressive

Volume 43, October 1979, pp. 8-9

The public's rights in broadcasting, like many other rights we take for granted, are under attack. Those rights have been expressed in a variety of ways over the years. Some have said "the public owns the airwaves." Others speak of broadcasters as "public trustees." The Communications Act of 1934 directs the Federal Communications Commission (FCC) to give radio and television stations limited, three year licenses to serve "the public interest, convenience, and necessity." The Supreme Court has declared, in upholding the constitutionality of the "fairness doctrine," that the interests of the broadcast audience are paramount.

To qualify for relicensing every three years, broadcasters must produce local programming, news, and public affairs. They cannot just maximize profit by serving up the cheapest entertainment available. They must deal with controversy and provide some opportunity for a range of views to be heard. They must present free "public service announcements." There are limits to the number of commercials they can run per hour. They may not favor candidates for public office, but must provide an "equal opportunity" for reaching voters (sometimes called "equal time") to each contender. There are many other requirements.

Broadcasters have chafed under these restraints, and from time to time they have mounted an assault on Capitol Hill in pursuit of self-serving amendments to the Communications Act. Over the past two years, the latest of these assaults has taken the form of a massive "rewrite" of the Communications Act. The effort has been led by Representative Lionel Van Deerlin, California Democrat, who chairs the communications subcommittee of the House Interstate and Foreign Commerce Committee. His bill was a measure to thrill broadcasters beyond their wildest dreams of avarice.

Under the terms of H.R. 3333, licenses would have been granted in perpetuity. The "equal time" rule would be substantially repealed, and so would the "fairness doctrine," which requires controversial programming, and some balance in its presentation. There would be no requirement for news or public affairs programming, public service announcements, or religious, agricultural, or children's programming. And the FCC would be expressly forbidden to encourage equal employment opportunities for women and minorities at radio and television stations.

Though H.R. 3333 represented the first major overhaul of the communications law in half a century, its provisions received little coverage in the daily press, and virtually none on radio and television. Still, concerned citizens managed to organize against this power grab by a communications empire armed with the latest in electronic technology. Word-of-mouth produced a unique assemblage of organizations representing labor, religion, women, blacks and other minorities, media reform and other groups, called the Coalition for Public Rights in Broadcasting (CPRB). With other groups, such as the Telecommunications Consumer Coalition, these organizations persuaded members of Congress that a political price would have to be paid for capitulating to the powerful broadcasting lobby. As a result, Van Deerlin lost control of his subcommittee, and in July a majority voted to reject H. R. 3333 and to proceed with amendments to the 1934 Act.

While this vote represented a victory for the CPRB and other public interest forces, it was a narrow victory. Press reports that broadcasting "reform" was dead for the current Congress were misleading. The focus had merely shifted. Now, instead of keeping their eyes on a single piece of legislation - H.R. 3333 - citizens must anticipate an ambush behind every tree. There is no way to know who is working on an amendment, what it may contain, or how anyone can go about countering it in time.

"Deregulation" is in vogue right now, and some argue sincerely that broadcasting should be freed from FCC control and left to the competition of the "marketplace." The problem with applying the "marketplace" model to broadcasting is that there is no marketplace. Those who seek to enter broadcasting without official Government sanction -- the "pirate radio stations" in New York and elsewhere, for example -- are threatened with fines and imprisonment in a Federal penitentiary. Holders of broadcast licenses are profiting from a monopoly created and protected by Government. Only one station can operate on a given frequency at one time in one location.

One can imagine ways in which something closer to a "marketplace" could be created in broadcasting. A "common carrier" cable system, with virtually unlimited channels, could provide the same ease of access for new radio and television stations that is now available for new telephone connections to the AT&T network. Anyone who wanted a "station" (cable channel) could have one. Or conventional, over-the-air stations could sell some or all of their time, giving anyone, whether commercial Hollywood producer or local community action group, access to the airwaves. Under other proposals the number of stations could be radically increased by narrowing band width or reducing the power of each. Or operation could be limited to human beings, not corporations, with no more than one to a customer. Each of these steps would democratize the industry to some extent.

But under the present rules, broadcasters can censor off the air almost anything that does not suit their political or economic interests. "Fairness" and "equal opportunity" are the only limitations, and broadcasters are trying to do away with those. There is no way "marketplace forces" can produce an adequate democratic diet of news, public affairs, serious opinion, and education. There is no way they can produce expensive, locally originated community programming, controversial documentaries, or innovative creativity in the arts. There is no way they can guarantee fair employment for women and minorities. There is no way they can protect the political interests of third parties. The private-enterprise system is no more capable of protecting our public interests in broadcasting than of guaranteeing our physical safety from exploding nuclear reactors and falling DC-10s, or our society's interests in preserving unspoiled wilderness.

What the broadcasters seek is freedom to silence, not freedom to speak. I am unaware of any case in the entire history of the FCC in which a broadcaster's political speech has been restrained. Broadcasters already have as much freedom as anyone could have. The only effect of "deregulation" would be to give broadcasters even more power to censor others' freedom of speech. Such a course is warranted neither by the Constitution nor by common sense.

The fight does go on. The broadcasters will never abandon their quest for the opportunity to be more fully irresponsible, to profit even more on public property, to curtail ever more effectively the public's access to the public's airwaves. We came within a hair's breadth of losing our public rights in broadcasting this year with H.R. 3333. It is a risk against which we must be eternally vigilant. Write the CPRB, Box 19101, Washington, DC 20036, to find out what you can do about it. [Note: This address is no longer in use. See link to opening Web page, at the top of this screen, for current "coordinates" for Nicholas Johnson.]


(Nicholas Johnson, a member of  the Federal Communications Commission from 1966 to 1973, now heads the National Citizens Communications Lobby in Washington, D.C.)