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Is the FCC Wrong to Hire the Religious Right?

an Interview with former FCC Commissioner Nicholas Johnson

"The Mike Webb Show"
Producer, Jeremy Grater

Seattle, Washington
August 11, 2005


[Note: This transcript only captured Nicholas Johnson's responses to Mike Webb's questions and comments -- which can often be guessed at from the responses, but are not available for uploading.

For more details regarding the hiring of Nance, from Concerned Women for America and other organizations, see Todd Shields, "FCC Hires Conservative Indecency Critic," Mediaweek, August 8, 2005, available below and directly from]

Well, one assumes that they are bringing her [Penny Nance] on, Mike, as an employee and giving her those responsibilities.

Yeah, that’s a really serious matter.  I’m concerned about it both as a matter of process and procedure on the one hand and substance on the other.  I just think it is really questionable any time you start blending the politics of the White House with what is supposed to be an independent – the FCC is deliberately called an “independent” regulatory commission.  Many in the Congress refer to it as "an arm of Congress." It is not a part of the Executive Branch.  It’s not there to carry out the whims of the President.

In my case, when I was U.S. Maritime Administrator, the first position to which Lyndon Johnson appointed me, he was very solicitous and I was in and out of the White House, I wasn’t on the White House staff, I was running the Maritime Administration. But I had a pretty close relationship with the President and the White House staff.  The day I went to the FCC, I never heard from him again for the whole seven years of my term.  Not a peep, not a note, not a phone call, nothing.  And then as soon as I was off the FCC, we were back in communication again.  Now that’s the way it is supposed to work.

My term went on over into the Nixon Administration. They were desperately trying to get me impeached and quite frustrated to discover that there were no procedures for impeaching FCC Commissioners. They later discovered, as you will recall from history, they became even more frustrated when they found out there are procedures for impeaching presidents.  But, Nixon had all the FCC Commissioners over to his office one day.  I mean it was just unbelievable. And from what I understand, this [President George W. Bush] White House is having undue influence on the FCC, and I think that this [appointment of Penny Nance] may very well be another example of that.

* * *
I spent seven years writing dissenting opinions. I felt it was so awful how we were dominated by the industry and we weren’t serving the public interest, Now we look back on those years, by contrast with today, as "the golden years of responsible FCC regulation."  How things have changed!
* * *
I might also pick up with what you said and say something about the difference between a requirement that a station must put some news on the air, but leave it to the station to decide what that is, and how that's different from telling them they can’t play a particular song.
* * *
I think it’s terribly important when we throw around words like "censorship" that we draw a distinction between that and a requirement that a station has to serve the public interest in terms of providing a discussion of local controversial issues, that it has to have a certain percentage of news, that it has to have a certain number of hours of children’s programming and so forth.  Those standards leave to the station management and the on-air personalities the choice of what programming is going to be put on the air.  But when the FCC had a requirement, when I was on the Commission I dissented to it, but

[Vice President] Spiro Agnew was sent out by Nixon to attack the music industry and the lyrics of some of the songs.  But when you start talking about an individual song and trying to scare the broadcasters into never playing it, or when you start talking about, well, even the matter of indecency . . ..

* * *
Right, and given your personal experiences in broadcasting in the 1970s you would get a big kick out of reading a document that I was editing today for a fellow who wants to put it in a book. It is a speech that I gave in response to Spiro Agnew’s attack on the music business.  The New York Times picked up an excerpt out of it which they published [Nicholas Johnson, "Dear Vice President Agnew," New York Times, October 11, 1970]. But somebody found an audiotape of this speech and it’s now been transcribed.  Matter of fact, I’ll send you a copy of it because you would get a really big kick out of that piece. I really went after him and used a lot of the lyrics in the course of what I was trying to say.

But there is a big difference when officials use a vague word like “indecency,” which is what they are doing now. They are not talking about drug lyrics in songs now, they are talking about indecency.  You know, indecency is constitutionally protected (with some exceptions in broadcasting).  Obscenity is not.  Pornography is not.  The state, the federal government, can regulate those things.  But "indecency" is a very vague word.

When you start talking about things like drug lyrics, or talking about things like indecency, what you are really doing is putting the chill into the broadcaster. So when the White House calls and says, "We really think you ought to get that editorial spokesperson off the air," the manager is going to do the equivalent of scratching out the cut on the vinyl record. [Mike Webb had described an experience as a broadcaster, after the Nixon Administration's attack on rock music, when an executive came into the studio and control room and literally scratched through the cuts on the vinyl records he thought might offend the government.] Because they are scared to death. You are talking about a multi-million dollar property [a licensed broadcasting station] than can potentially be taken away, or fined millions of dollars, on the basis of some unarticulated standard that nobody understands and is totally arbitrary.  And that is un-American. It’s not fair. It ought to be unconstitutional.

* * *
Precisely.  And Ben Bagdikian documents in his book, The New Media Monopoly [Beacon Press, 2004], that the very corporations that promoted the war in Iraq were the same corporations that were trying to get from the Administration a favorable ruling on expanding the reach of their ownership of radio and television stations.  This has been going on for some time.
* * *
There are different standards for broadcasting, I should have made that clear when I said it.  But, aside from broadcasting, indecency is constitutionally protected speech.
* * *
I think it is really scary.  We talked earlier in the program about the role of the White House in all of this.  I think the FCC was deliberately set up as an independent regulatory commission.  The President cannot fire an FCC Commissioner in the way that the President can fire an executive branch appointee.  It is designed to be independent. It's not quite a life-time appointment, but an appointment for a term of years. I just think that [an Administration putting ideological pressure on the FCC] is wholly inappropriate.

Now, I would agree with you, and I think that it is important that both of us emphasize the point that neither one of us want to put “Concerned Women of America” out of business.  They have a right to hold their views. They have a right to speak their views.

Moreover, I have been advocating for 40 years more opportunity for public involvement in the processes of the Commission.

If the Commission wanted to set up an advisory committee composed of a range of local groups, and include liberals and conservatives and religious folks and agnostics and labor unions and whatever, that’s another matter all together.

There are a couple of very progressive Commissioners who need to be recognized in this conversation, Michael Copps and John Adelstein. They happen to be the two Democrats.  They have been going around the country holding hearings on media ownership issues and on stations serving their local communities.  Hundreds of people come out and testify and explain to the Commissioners what the problems have been in their local communities as a result of what the FCC has been doing and I think they are entitled to a lot of credit.  And that’s the proper way to bring the public in, because they [the commissioners] hear a range of views.  They hear from the conservatives, they hear from the various religious groups and that’s fine.  But they hear from everybody.  That is what America is designed to be.

But I think when you start putting radical extremist ideologues on the courts or on the regulatory commissions or in the executive branch, you start bringing them in as a sop to whatever is your political base -- in this case it’s the religious right -- you know I just think that’s a real perversion of American government. It comes close to being treasonous.

* * *

You have to hand it to the conservatives.  Thirty years ago they applied the old salesman’s adage, "You plan your work and you work your plan."  And they planned their work. They had a 30-year plan of building the think tanks that would come up with the ideas, gaining control of the mass media to spread those ideas, and using that as the basis for taking over the House and the Senate. How ironic it is that they complain about the liberal media. You know the bumper sticker, “The media are as liberal as their conservative owners permit them to be.” They control the House and the Senate and most of the courts and the White House and states and yet they continue to complain about the liberals dominating America.  I mean, what more do they want beyond total control of the entire country?"

* * *

Well, I value you being on the air and I want to keep you there, and see to it that we get a little voice of sanity and truth and justice and reason out there on the airwaves occasionally So bless you, Mike.

FCC Hires Conservative Indecency Critic

Todd Shields


August 8, 2005

[Note: This material is copyright by Mediaweek, and is reproduced here as a matter of "fair use" for non-commercial, educational purposes only. Any other use may require the prior approval of Mediaweek.]

The Federal Communications Commission has hired as an advisor an anti-pornography activist and former lobbyist for groups that push for Christian precepts in public policy. The move may herald a reinvigorated campaign against broadcast indecency and bring renewed pressure on cable to reconsider its racy offerings.

Penny Nance, until recently a board member of Concerned Women for America, is working as a special advisor in the FCC’s Office of Strategic Planning and Policy Analysis, said aides to FCC Chairman Kevin Martin.

The strategic planning office helps develop agency policy. Concerned Women for America describes its mission as “helping…to bring Biblical principles into all levels of public policy.” In recent weeks Nance, a longtime supporter, stepped down from the organization’s board, said an official with the Washington, D.C.-based group.

Nance founded the Kids First Coalition, a nonprofit group based in Alexandria, Va., that describes itself as working to protect children. It invites members to contact Congress on such issues as abortion and pornography, and publishes Republican speeches and position papers on its Web site. In recent years Nance has twice testified before Congress, describing Internet pornography as a threat to children and speaking in favor of technology that lets DVD movie viewers skip past sexual and violent scenes.

In a January letter to President Bush, Nance joined others in calling for stricter enforcement of indecency laws and identifying a “huge indecency problem” on basic cable. She has said TV broadcasters should restore a family hour when racy programming is held off the air. In 2002, she asked regulators to ensure direct broadcast satellite provider DirecTV did not fall under control of News Corp. chairman Rupert Murdoch, whom she dubbed a purveyor of “must-sleaze TV” on the Fox network. (Murdoch gained control of DirecTV in 2003, after regulators blocked its merger with EchoStar Communications that Nance backed.)

Nance arrives during a quiet period for FCC indecency enforcement, following record fines of $7.9 million proposed in 2004 under Martin’s predecessor, fellow Republican Michael Powell.

Martin is on record as supporting strict enforcement of indecency laws, although the extent of his enthusiasm has yet to be tested. The commission has proposed no indecency fines during his five months in the chair.

Some observers believe the FCC is preparing to act, perhaps in coming weeks, on as many as 50 indecency complaints. Some see Nance’s arrival as an indication the agency is leaning toward stricter enforcement. “Why else would [Martin] have someone like that on board?” asked one Washington attorney who watches the FCC closely.

Nance declined an interview, telling Mediaweek, “I can’t talk now.” Martin’s office said she advises the commission on “broadcast- and cable-related consumer and social issues” in a post that “serves as liaison and provides outreach to Congress, public interest groups and the industry.” A Martin aide said Nance is working part-time, but did not say when she began working at the agency.

In filings to Congress last month, Nance said she had terminated her work as a lobbyist for Kids First and for the Fort Lauderdale, Fla.-based Center for Reclaiming America, a group that says it works to “implement the Biblical principles on which our country was founded.” The filings may have coincided with Nance’s start at the FCC, since she couldn’t plausibly represent both the agency and private groups.

Nance’s activism has spanned a broad range. In 1999 she worked for conservatives fighting a nuclear test ban treaty favored by President Clinton, and the previous year she helped organize a rally in Washington to demonstrate women’s dismay at Clinton’s sex scandals, according to an account in The Washington Times. This year she signed letters calling for an end to Senate filibusters of judicial nominees and urging Bush to appoint a Supreme Court justice “who understands the difference between cherished liberty and ruinous license.”

Nance has previously taken a direct interest in issues of broadcast indecency. “It is time the networks revisited the family hour,” she wrote in a bylined article in The Washington Times on May 5, 2003. The family viewing hour resulted from an agreement among major broadcast networks to keep graphic programming off the air from 8 p.m. to 9 p.m. when children are most likely to be watching.

In January, Nance joined others in the letter urging Bush to appoint as FCC chair someone committed to enforcing indecency laws. Other signatories included stalwarts of the conservative political movement such as Tony Perkins, president of the Family Research Council, and Phyllis Schlafly, president of Eagle Forum, as well as longtime FCC critics Donald Wildmon, chairman of the American Family Association, and Brent Bozell, president of the Parents Television Council, who both argue the agency has shirked its responsibility to crack down on indecent broadcasts.

“The breakdown of standards on TV and radio is a ‘moral values’ problem we cannot ignore,” said the letter to Bush, which was widely interpreted in D.C. as a plea to appoint Martin. It called for “repeated and expanded” fines “until broadcasters understand they are not above the law.” It also cited “a huge indecency problem on basic cable channels.”

Cable operators are facing demands that they offer subscribers channel-by-channel program selection, in part so consumers need not subsidize racy programming that is part of broad programming tiers. Such an approach is favored by consumer groups that want to cut monthly cable bills and by many cultural conservatives, including the Concerned Women group that Nance served. 



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