Whatever Happened to the 1934 Communications Act?

Nicholas Johnson

As Interviewed by Ed Madison on "Media Talk"
Program # 107
May 13, 2010

Note: audio available for downloading or streaming from the Media Talk Web site.

Ed (Ned) Madison (EM): This is Media Talk, a weekly exploration of topics relating to media, pop culture and politics from a multi-generational perspective. We're joined here by Ed Madison, Jr. [EMJ; Ed Madison's father], and Zack Goldstein [ZG]. And our guest today is Nicholas Johnson, who's an esteemed scholar, but also former FCC commissioner and during a time before the deregulation of the Reagan Administration and a time when people still had a sense, Professor Johnson, that the airwaves belong to the people. And that's kind of what we wanted to talk to you about today. Where did we lose sight of that?

EMJ: What happened to the Communications Act of 1934? I happened to be working in broadcasting while you were on the Commission.

Nicholas Johnson (NJ): The technology has changed a bit since our day, hasn't it?

EMJ: Considerably.

NJ: Well, as for "what happened" you might very well ask, "What happened to the Glass Steagall Act that used to separate regular banks from investment banks?" "What happened to the Minerals Management Service that was set up to prevent oil spills from offshore drilling in the Gulf of Mexico?"

It's called "agency capture." You set up an agency to regulate something in the public interest, whether it's the financial industry, or the oil industry -- or the broadcasting industry -- and next thing you know you turn around a few years later and the very industry that is supposed to be being regulated is calling the shots and controlling it.

And that was bad enough in my day. I spent seven years as an FCC commissioner writing dissenting opinions describing how awful it was and how it was totally controlled by the corporations and all. And we look back on those years Ė that was 1966 through '73 Ė we now look back at that as "The Golden Age of Responsible Broadcast Regulation" by the FCC by contrast with whatís going on now.

And whatís happened in the interim to make it worse is the change of the culture in Washington, D.C., where it is now virtually all about money. In order to run for Congress or the Senate, instead of it costing 50 or 100,000 dollars, we are talking about -- what is it last time, about three billion dollars to run those races -- and so kind of everything is turned over and become a great bazaar in Washington with the corporations calling the shots.

Thatís why we are the only nation in the world that doesnít have universal single payer health care. That never even got on the table.  "Public option" got on the table and then got quickly shoved off onto the floor.  But the kind of health care every other industrialized nation in the world has besides the United States we couldnít even talk about. And Big Pharma got a private, closed door meeting at the White House, in order to keep them from coming out full bore, opposing even what was,  in effect, a health insurance industry subsidy bill is what came out. They were even going to oppose that.  So they got a deal that we would never negotiate with them on pharmaceutical prices, and we would agree to not to let Americans import from other countries and so forth. So that they control that.

Thatís just the way the system works now, and broadcasting is just another part of it.  They [FCC] went through this period in the '80s of so-called deregulation, or re-regulation, removing what was once called "regulatory underbrush."

We had an FCC chairman at one time you know who said ďWhatís television anyway? It's just a toaster with pictures.Ē  It wasnít much sense of the role and responsibility of the media, the consequences of the media. [The commissioners had forgotten the] reason why, when the predecessor to the 1934 Communications Act, the Radio Act of 1927, was passed, a member of the House on the floor said in talking about the importance of maintaining a lot of small owners of these broadcast properties, he said ďif we should ever allow this great power to fall into the hands of the few, then woe be to those who would ever dare to disagree with them.Ē

Well, thatís what we have now: "Woe be to those who would ever disagree with the mass media owners."  When Time and Warner merged, we asked them, "How come you want to merge?" They candidly replied, "Because someday there are going to be five firms that control all the media on planet Earth and we intend to be one of them."  And thatís pretty much come to pass.  There may not be five that control all the media, but in the recording industry, for example, youíve got six companies that control virtually all the music you ever going to hear as a soundtrack for a movie or on the radio or whatever.

Well, thatís what you get when you ask an old geezer former FCC commissioner a question. You see, I am used to speaking for entire semesters at a time, so you are lucky that this only just took a few minutes.

Zack Goldstein (ZG): Professor Johnson, this is Zack Goldstein here. I'm a student at the University of Oregon. I have a question regarding what you were recently talking about, along the lines of music and radio. I have witnessed the death of three or four local radio stations that were vibrant and had many fans, but were victims of Clear Channel and Clear Channel's reign. What's your feeling on the identity being stolen out of cities that have had radio stations for years, and are just losing it to Clear Channel's wishes and play counts and things of that nature?

NJ: Well, obviously, I think we lose an awful lot as a society as a result of that.

We talk about streaming now via the Internet of radio stations' product. I think you do that with your station out there, University of Oregon in Eugene [KWVA-FM 88.1]. And frankly, most of what I watch that we would have referred to as "television programming," I now watch on a little laptop that I keep by the bed.  I donít think we watch much on the television screen anymore.

But the fact is, with radio, there are a lot of places where people cannot or at least do not easily listen to radio on their iPhone or their laptop or whatever, when you are driving or working out in the workshop. I have a radio on pretty much all the time, three or four radios on, so as I move from room to room doing what Iím doing that I can follow the story.

And so thereís still a role for the old fashioned, early 20th century technology of broadcasting for radio. And it was designed to be a local service, to serve the local community, Initially these were stations in small towns, and we really lost a lot. There was a reason for those limitations on ownership and a value of diversity of ownership. The more we permitted the accumulation of media power in the hands of fewer and fewer people, the greater political and economic power it gave them, and therefore the greater power over Congress and by extension over the FCC. And so then the problem just got worse and worse.

When I was there, you couldnít have more than licenses to seven AM and seven FM stations -- and they had to be scattered around the country, they couldnít be in the same town, of course.

In its heyday, I think Clear Channel had well over a thousand stations to which they held licenses.

There was one famous case, I think it was in Minot, North Dakota, where they had an anhydrous ammonia spill, I donít know what it was, but it was some potentially toxic dangerous chemical. The local radio station was being controlled from corporate headquarters somewhere. They didnít have anyone there.  And so folks were tuning into the station, like the local police chief had told them [to do in an emergency], and they werenít getting any news at all of what was going on.

What was always one of the broadcasters' great claims to why it was appropriate to give them these incredibly profitable licenses, with which they were earning roughly 100% per year on depreciated capital, was that, "Well, weíre there in times of emergency. We warn people of floods and tornadoes, and anything that might happen." You canít do that if youíre operating the whole thing by computer remotely.  So I share your concern about that.

EM: One of the reasons we wanted to have you on is because you were sitting on the Commission when I first got inspired to be in this business. My dad started a National Association for Community Affairs group. And I can remember helping stuff envelopes and seeing your name on literature, and reading about this landmark case in Boston involving a television station that had its license taken away by a community group, a group that petitioned and actually won the petition --  I'm talking about Boston Broadcasters and WCVB -- by promising that they were going to put on more local television than any other television station in the country. And they did do that. That was a part of my reason for my wanting to attend Emerson College there. I had a chance to be a part of that legacy. So I have to thank you for all of your work during that period. You definitely were an inspiration to me.

But will we ever see anything like that happen again, where community groups are aware enough to realize that station licenses do expire? Stations don't have the type of mandate that they once did in terms of what's required in terms of community programming and all that. But are those days gone?

NJ: It is interesting you should ask, because there is a local group here in Iowa called Iowans for Better Local Television. They filed a petition to deny the license renewal of a station in Cedar Rapids, Iowa, KGAN TV owned by Sinclair.

Sinclair had been a really bad actor from a variety of points of view. This local group of activists decided they wanted better community programming. We donít have that many television stations here in Iowa, and so there were a lot of people who were affected by this station going that way.  It was really sad, because it was a station that formerly had the call letters WMT-TV -- your dad may or may not remember -- and WMT AM. It was one of the truly great, public spirited commercial stations, one that had a real sense of its local responsibility, did a lot of live local programming and so forth. It got turned over to Sinclair who pretty much ruined it and drove it into the ground.

So, they filed a petition to deny back years ago Ė 2005 maybe -- and they waited and they waited and they waited, and they never heard back from the FCC at all.  They decided that now that Obama is the president and he has appointed new commissioners and whatnot, maybe we have a chance. So they emailed the new commissioners. Well, they never heard back from them either.  So finally their lawyer told them that what they are going to have to do is file a mandamus with the U.S. Court of Appeals, District of Columbia Circuit.  As a courtesy to the commissioners, they told them they were going to do this within 30 days.  Well, on the 30th day, lo and behold, the FCC finally got a response back to them. So they didnít have to file a mandamus.

The response was that the Commission was going with the station with regard to every single issue that this local group raised, which included not just local programming, but their public files, and the inadequacy of the signal just technically, and violation of ownership rules and control, and failure to meet the childrenís television standards Ė just a long list of stuff.  So, what the staff essentially said was, "Look, the Commission has repealed all of these requirements.  They may be a very bad actor, but there is nothing in our present regulations that says they canít be doing what theyíve been doing."

So, this group then filed an application for review or something like that of the staff decision. It goes to the full Commission. and what they did in that document was they appealed to the commissioners and said, "Are these really the standards that you want. We understand that with this deregulation business, that the commission actually declared that the station could commit fraud and that was still within the public interest and would entitle them to a license renewal.  Do you really want to be associated with that?  Are those really the standards you want to explain to your grandchildren you ruled with while you are on the Commission?"

I donít think theyíve heard back from that. But at some point, the Commission is going to have to respond to them even if they have to try and go get another mandamus out of the court.  But, I think they were really disappointed to find out that these new commissioners have not done anything to change any of those standards.

So, yeah, it is still alive in that sense. Thereís a specific case.  And I think there are others in the country. But there are not a lot, because nobody is winning any of them. The commission just sits on them and wonít even respond to the public.  They wonít even say, "Weíve received your petition."  So, it is not really encouraging for people who are actually trying to bring about change.  But there are still some groups who are doing it.

EMJ: So you don't think petitions to deny filed by citizens groups are as effective as they were when you were on the FCC?

NJ: No, they are not.  And that is in part because of the change in commissioners, but it is also in part because of the deliberate effort on the part of the intervening commissioners -- those who served between the time I left and now, during the Reagan administration and to some extent before. They deliberately destroyed these standards. We donít have a Fairness Doctrine anymore. We donít have a requirement for community ascertainment anymore.  Iím not sure weíve got commercial limits anymore.  We donít have requirements for news and public affairs programming anymore.  So the whole spirit is, "Let the marketplace regulate." Let Clear Channel have over 1000 stations, let them program whatever they want, they can be as outrageous and one-sided as they want to be.  You can have a right wing station or a liberal station thatís just hour after hour of the same old bash Obama, or a station that hour after hour criticizes Glenn Beck and Rush Limbaugh and the Republicans.  So, since there arenít any standards anymore, it is kind of hard to build a case on what the station has done wrong except by appealing to common sense and some of the regulations the Commission had in the past.

EM: What do you think the long term impact of such a polarized media is going to be on our democracy?

NJ: I think you are seeing it. You are seeing it in Washington, D.C.  It is a part of this increased role of money, and this almost pathological need on the part of these guys to get re-elected.

Every position I have ever held -- from FCC to Maritime Administrator to Presidential Advisor with the White Conference on  Libraries and Information Services to the school board here locally -- Iíve always said up front, "I am going to serve one term and thatís it."

I think Iím perfectly capable of standing up to any kind of industry pressure, but I want the appearance of a total lack of conflict of interest as well as the reality of it.  Occasionally, if the industry is being abused, Iíll vote with them. But Iím not voting for or against the person. I am looking at the issue always, and whatís in the best national interest.  And sometimes that does involve voting with a company or whatever. But Iím not doing it because I am voting for the company.

I just want to have it be perfectly clear that I am not casting my votes on the basis of my desire to get a job in the industry when I leave the agency. And Iím not casting my votes because of personal friendship -- or worse, campaign contributions from somebody who is trying to influence me. I am there to serve one term and thatís it. Then Iím out.  If I canít solve the problems in the length of the term, then somebody else is going to have to work on them.

But, these guys, the most important thing to them is to get re-elected. So then the most important thing becomes to bash your opponent and thatís what we are seeing in Washington.  I mean it is absolutely outrageous.

I am not so confident the Democrats would do any better, so I am not making a partisan comment here.  I am pretty well disgusted with both parties.  But, I certainly think that what the Republicans have been doing is really despicable. Contrast it with how Great Britain is solving its problems now, with Liberal Democrats and the Conservatives. Theyíre putting together a coalition.  They see the problems theyíve got with their finances overdrawn, the same way ours are, the same way in Greece, and they are doing something about it.  And they have only been working together for less than a week!

EMJ: They have a new man at number 10 Downing Street, right; a new Prime Minister?

NJ: Right.  But, they have to put together this coalition and they have to bring [Liberal Democrat Party leader] Nick Clegg into it.  And they are doing it.

And here we are. I mean the Republicans have overtly, clearly, unambiguously stated up front, "We want to ruin Obama."  And we will not vote for anything he wants.  And we think that being "the party of no," and opposing unanimously, all the republicans opposing in lock step, anything Obama wants to do is the best way to make him look sufficiently bad that when the off year election comes up this year for Congress that we may be able to get more seats in the Senate and more seats in the House.  Theyíre just very up front.  Thatís their strategy.  Thatís not what I remember from my days in Washington.  I mean I worked with Democratic and Republican senators and congressmen alike.  There were reasonable people there.  They may have wanted different solutions, but they werenít willing to destroy the country.

EM: One of the more pressing issues facing the future of the media is net neutrality, and yet I would venture to say that the majority of the people in the country are not even aware of what that means. How do you think that issue is going to shake out, and maybe just say a little bit about that, because I know you've written about it.

NJ: Here's the analogy I would draw.

There were a lot of problems with AT&Tís monopoly back when I was on the Commission. But one thing you can say about it is that there were two basic principles in First Amendment terms. One was that anybody who wanted a phone could get a phone, and they could get it pretty darn quickly installed.  And the second thing was once they got a phone, they could say anything they wanted to over the phone Ė they could call anyone they wanted and they could say anything they wanted.  And now that doesnít mean there might be some force outside of that if theyíre engaged in some security fraud or using the phone to do that, or they are harassing somebody, or engaged in disclosure of national security secrets.  There might be some government agency that would come after them.  But the phone company wouldnít.  So, that we had this total separation of content and conduit.  AT&T owned the conduit and they sucked the money out of it and they did very nicely for their widows and orphan shareholders, but they did not concern themselves with the content of what was passing over the telephone line.

Now what net neutrality is about, is that we have now substituted the internet for the AT&T network.  All you could do with the AT&T network was have a human voice in analog. With the internet, it was deliberately designed to not only be multipurpose, but to be non-purpose Ė that is to say, it was simply designed to be a network, and if you can build multi-player video games on top of that, if you can build these peer to peer systems for students to share hear music with each other illegally, if you can devise a way to let people talk over Scipe on the internet, you can do that, if you can figure out a way to download and watch movies, if you can come up with an idea like eBay or YouTube or whatever, all those things can be built, indeed, the web itself was a use that was designed and could be put on top of the internet that was originally put together by the defense department and suddenly we had a world wide web.

Well, thatís the genius of the internet and thatís the benefit of it and you can put any content up there that you want and anybody who has access to the internet can get to your blog or your web page or whatever.  Well, it doesnít take long before somebody wants to make a profit out of double-dipping on the thing, and control what sites you can get to and charge you for it.

[Remainder of answer, cut for time: The Internet was always kind of free from the beginning. People contributed their content to it, and anybody could get to it. I have a Webpage, nicholasjohnson.org, and a link off of that Webpage to my blog that I write. I figure I contribute that to anyone who wants to use it, and I donít get paid for it. My payment is I have access to everyone elseís stuff on the Internet.

Now some of these internet service providers and content providers want to get into the conduit business. They want to make it possible for you to get to some Websites faster than you can get to others.  They want to perhaps control that you go to Websites that they own and they benefit from more, so you canít get to their competitors and so forth.  This is so totally contrary to what the internet was designed to do that itís really kind of appalling.

Here again, we have the problem of corporate power and lobbyists and campaign contributions coming in and saying, "Let us profiteer off of this. Let us control content of what people can get to."

So on the other side, there are the folks that talk about open access and net neutrality who are fighting that, and it is yet to be seen how thatís finally going to get resolved.]

EM: Well, thank you Nicholas Johnson. It's been great having you as our guest today, and that we could speak to you. And perhaps we'll try to have you on again sometime in the future. Thank you.

EMJ: Thank you.

NJ: All right, thank you.

EM: All right; talk to you later.

NJ: Goodbye.