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Want Free Speech Rights? Go Buy a Station
Nicholas Johnson
Des Moines Register, Opinion: "Iowa View"
June 23, 2003
p. 9A

Congress’ effort to undo the Federal Communications Commission's media power grab is far too little, too late.

The FCC permits owners to reach 45 percent of TV homes. Some in Congress prefer the old 35 percent. Either is unacceptable.

As an FCC commissioner fin 1966-73, I wrote hundreds of dissenting opinions. I was aghast licensees could have as many as seven each AM, FM and TV stations. Those years were the golden age of regulation by today's standards.

Congress first debated ownership limits in the 1927 Radio Act. As Congressman Luther Johnson then observed, if a small group could “dominate these broadcasting stations, then woe be to those who dare to differ with them.”

If Congress was prescient enough to see democracy’s demise from media concentration in 1926, when there was little media and less concentration, one wonders why more members cannot see it now.

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 or government agencies. The U.S. chose federal regulation.

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 use of public property, licensees promised substantial public service.

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

Something has gone terribly wrong when the FCC permits one corporate licensee to reach 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 of entry.

It’s the combination of the concentration of media ownership with 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. It’s not 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. Its “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 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.

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.

As Congressman Luther Johnson warned, woe be to us.

NICHOLAS JOHNSON served on the Federal Communications Commission in 1966-73 and currently teaches at the University of Iowa College of Law.