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Media Concentration: An Historical Perspective

Nicholas Johnson

FCC Commissioners Copps and Adelstein Forum on Media Concentration
St. Paul, Minnesota, Town Meeting
Sundin Music Hall, Hamline University

December 9, 2004

As a law professor I am used to speaking for entire semesters at one time. Very little of what I have written over the past 40 years about broadcasting and media reform can be shared with you in the five minutes I have tonight. So perhaps the most useful thing I can offer is the location of my Web site, which is indicated on the handout on the table. It is, simply, Ultimately it can take you to literally thousands of computer screens of information you may find useful in your efforts to reform the media that have such a powerful impact upon our lives.

You know the importance of the mass media, the broadcasting and cable industries, to our society. Their impact on our economy, our schools, our politics, our culture, how we raise our children, the way we perceive our neighbors  -- in fact, the way we perceive ourselves, our self-esteem.

You know this because you're bright, you care, and you've been paying attention.

But you and I have another advantage when it comes to understanding the implications of our communications policies. We have at least some awareness of the 80-year history of broadcasting in America.

Let your mind drift back over those 80 years. A few AM radio stations were broadcasting. There was little or no regulation. Stations' signals were interfering with each other. Herbert Hoover was Secretary of Commerce. At the broadcasters' request he called for a series of Radio Conferences. Their recommendations were sent to Congress and the debate began.

Think how remarkable this was. Only a handful of radio amateurs had even a clue as to how a human voice, from hundreds of miles away, could come out of this mysterious box. Many people thought it relied upon ghosts and was the work of the devil. Now some of us still do.

And no one could have imagined what it would become -- FM radio, television, cable, communications satellites, the dominant role of commercialism, programming playing to the lowest common denominator, President Roosevelt's "Fireside Chats" to a nation, and the hundreds of millions of dollars that would someday be raised, and spent on television, by presidential candidates.

So the Congressional concern about the ownership of these stations is truly remarkable. What insight! What prescience! How could they have imagined, then, the political power of a Clear Channel or Sinclair, or the global multi-media conglomerates like Disney, Time Warner, Viacom, Bertelsmann and Rupert Murdoch's News Corporation, Fox?

And yet they did. They saw the threat. And they realized it was serious.

It was a brisk, early spring morning in Washington, March 13, 1926, to be exact, when a young man from Corsicana, Texas, quickened his stride upon nearing the Capitol Building. Luther Johnson was in his first term of what would later prove to be over 20 years of distinguished service in the U.S. House of Representatives. He walked onto the floor of the House to address his colleagues.

He expressed concerns about which many of them had also spoken. But they listened to this young man, with his Texas drawl, as his words echoed through the House chamber, because they knew he was right to bring the passion that he did to these issues.

He said,

American thought and American politics will be largely at the mercy of those who operate these stations. For publicity is the most powerful weapon that can be wielded in a Republic, and when such a weapon is placed in the hands of one, or a single selfish group is permitted to either tacitly or otherwise acquire ownership and dominate these broadcasting stations throughout the country, then woe be to those who dare to differ with them. It will be impossible to compete with them in reaching the ears of the American people.
[67 Cong. Rec. 5558 (1926). Quoted in Nicholas Johnson, "Forty Years of Wandering in the Wasteland," 55 F.C.L.J. 521, n. 31 (2003).]

If young Luther Johnson could see this truth nearly 80 years ago, before anyone had a clue as to what broadcasting was destined to become, why is it that our Senators and Congressman today cannot see what now stares them in the face? Why are FCC Commissioners Copps and Adelstein the only FCC Commissioners who can see it? Why do we have to rely upon you to make your concerns heard in Washington?

In fact, at the birth of broadcasting, all nations initially recognized broadcasting as having too much potential to be treated as commerce, too much political power to place in private hands. Most countries chose to entrust that potential and power to public corporations. The U.S. chose federal regulation of private licensees.

Our law provided that no individual could “own” a frequency. One could only apply for limited-term licenses. In exchange for the private profit from their use of public property, licensees promised substantial public service.

The FCC valued “integration of ownership and management” – a station actually run by the licensee. The diversity of voices from the greatest possible number of licensees was considered a value deeply rooted in the First Amendment.

It was understood that broadcasting is so much more than a generous cash cow subject to none but marketplace forces. Or as one FCC Chairman once said, "Television is just a toaster with pictures." Broadcasters are wrong when they say of the legal, "public interest" standard: "The public interest is what interests the public." Whatever "the public interest, convenience and necessity" may mean, it logically has to mean more than the same profit-maximizing behavior that would be produced with no standards whatsoever.

Something has gone terribly wrong when the FCC goes from the localism and diversity represented by a one-station-per-licensee policy to conglomerate corporations, one of which holds 1200 radio station licenses, and all of which are permitted to reach 35 or 45 percent of the nation’s homes.

Meanwhile, four factors substantially multiply the evil from this agency capitulation to corporate political power.

1. Censorship. The Supreme Court says the First Amendment gives a mass media owner not only the right to free speech, but the right to freely censor others. And the FCC sees no problem with those who own mass media distribution systems, such as cable, also owning the programming.

As a result, there is no legally enforceable right even to buy space in a newspaper or time on radio or TV, let alone get it free. If there were, the number of owners would make little difference. The pre-divestiture AT&T had an absolute monopoly – but no censorship complaints. Everyone had a legally enforceable right to have a phone, and to say whatever they wanted to over the phone.

Not so, says the Supreme Court, with newspapers, radio, television, cable, and comparable media.

It’s not just the ownership. It's this combination of the concentration of media ownership with the owners’ rights of censorship that threatens democracy.

Even editors and journalists don’t have First Amendment rights; only owners do. The audience certainly doesn’t.

Want to exercise your free speech rights in the mass media? Go buy yourself a station.

2. Multiple media. Nor is it just the number of stations. It’s that a company owning chains of radio and TV stations can also own newspaper, magazine and book publishers, movie studios and theaters, cable systems and programming, DVD and video manufacturing and rental. What these multiple-media corporations call “synergy” is just another name for driving out the creative diversity of new talent with hyped superstars and formula programming, cross-promoted by the conglomerate’s subsidiaries.

Neither public service programming nor the Fairness Doctrine were a substitute for a citizen’s right to speak. But they were something.

3. Service. The FCC used to require coverage of local news, public affairs and community events. There were requirements for public service announcements limits on commercials. Licensees’ performance was reviewed. No longer. License renewals are virtually automatic.

4. Fairness Doctrine. Licensees used to have to cover local controversies with a range of views. Not all. Not given individuals. Not “equal time.” Not specified content. And not within each program. Just some minimal balance. Now it’s gone. The FCC repealed it. Can you imagine a government agency coming out flat footed in opposition to "fairness"? Well, the FCC did it.

FCC and Congress’ approval of media concentration is outrageous. But it’s made multiples worse when only owners have First Amendment rights, they can censor, own content as well as distribution systems, combine multiple media within one firm, have few to no obligations to their communities and are not even limited by a watered-down Fairness Doctrine.

Some 36 years ago the Atlantic magazine published an article of mine entitled, "The Media Barons and the Public Interest: An FCC Commissioner's Warning." In it I told the story of the ABC-ITT merger, and described the many categories of concerns involving the various aspects of media ownership.

And what was my warning? It was an echo of sorts to that of Congressman Luther Johnson 40 years earlier. It was the warning I pass along again, to you tonight. The last line of that article read,

"If we are unwilling to discuss this issue fully today we may find ourselves discussing none that matter very much tomorrow."