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Programming Indecency and the FCC

Nicholas Johnson's Comments as a guest on

"These Days"
KPBS-FM 89.5 mHz
San Diego, California

March 10, 2004, 11:00-12:00 Central Time

Host Tom Fudge
Additional Guests: Station Manager Doug Myrland
and Melissa Caldwell, Parents Television Council


From the KPBS-FM program notes: "We'll talk about indecency on the radio.  Howard Stern is off the air in San Diego.  An L.A. public radio station fires a commentators for using the f-word.  Is it a justified crackdown, or an overreaction to the Janet Jackson episode? . . .

Guests: Nicholas Johnson, a professor at the University of Iowa College of Law and a former Commissioner on the Federal Communications Commission; Melissa Caldwell, Director of Research and Publications for the Parents Television Council, a national non-profit media watchdog group."

The recording of this program was such that only the comments of Nicholas Johnson have been transcribed, although the host's questions, guests' and callers' comments are usually clear from his comments.

Well, thank you, itís nice to be talking to you [Tom Fudge] again after your time here in Iowa City.

Well, I think it just reeks with hypocrisy.  Like most institutions, nobody at the top really cares about whatís going on until something hits the mass media.  And then there is an expression of great rectitude and "Oh, how could this possibly have happened? This is not the way we do business here." But, in point of fact, the broadcasting corporations know what they are doing, the FCC knows what they are doing, and the Congress knows what they are doing, and they all sat back and did nothing about it until something comes up and makes an issue about it as Doug Myrland was saying.  I think thatís what happened here.

If you want to start looking for offensive things about the Super Bowl, itís going to require more than a one hour program.  The Janet Jackson thing was the least of it.

And if you want to be offended by that, it seems to me the most offensive things about it were the lyrics and the dance and the image of a man ripping the clothes off a woman -- which is what the song and the dance were about, I mean, that maybe is offensive.

But youíve got so many issues here, if the FCC is going to get into this -- and I question whether they should for reasons we may or may not get to later -- but if they are going to get into this, letís start with the commercials.  I thought that the commercials on that half-time show were much more offensive than any of the entertainment.

Or letís look at the whole of TV entertainment.  Letís look at the programming filled with sexual innuendos and violence. And why it that?  Because that gets ratings.  Itís hard to turn your eyes from a TV set when thereís just been a car crash, and the name of the game is keeping the eyes on the tube and selling those eyes at a cost per thousand to an advertiser.

If the station is just making editorial decisions, obviously itís simply just exercising a technologically necessary imperative Ė theyíve only got 24 hours a day and thereís more programming that can possibly fit in that time.  The question is the one that the caller raised: to what extent is this [FCC and political focus on "indecency"] part of an overall intimidation of mass media, a structuring of media so that it falls into fewer and fewer hands.  You no longer need to have a White House dinner to invite all the media moguls to the White House Ė you can have a White House breakfast around one table.  So, they are easier to get to, you ensure that you get conservatives in control, and then you intimidate them in every way possible as you intimidate any protest groups in this country with FBI infiltration and the Patriot Act spying on people and so forth.  And, you see to it that they are running scared.

I have not read the legislation and I should do that before I comment on it, but if the legislation is simply referring to "indecency" with nothing more specific than that, you are opening up a real intimidation of broadcasters who are going to always have to opt for the even more bland than what they are providing now. In an age when the American Friends Service Committee and the National Education Association have both been designated as "terrorist organizations" you can imagine that an interpretation of "indecency" could go pretty far and wide indeed.

I certainly share Ms. Caldwellís concern about the appalling nature of television programming generally in an industry that is regulated to serve "the public interest, convenience, and necessity" by statute.  But we have relatively clear definitions in the law of "obscenity," and obscenity is not protected First Amendment speech.  Anything that is not obscenity, that one would consider "indecency," does have First Amendment protection, and therefore when you want to limit it in the broadcasting arena, we are back to arguments as to why broadcasting is different from print or film or other forms of media.  But, indecency in Ms. Caldwellís sense -- which I might say is shared by, I believe it was, Justice Stewart, who once said of pornography, "I canít define it, but I know it when I see it -- I think Ms. Caldwell knows indecency when she sees it.  But, it is difficult to define, and it does impose a chilling effect, and the range of intimidation is wide, particularly when, like Clear Channel, youíve got so much at stake.  They now are licensees for more radio stations than existed in the whole of the United States at the beginning of radio regulation.

As I say, and Ms. Caldwell said, there are laws on the books regarding obscenity, and there are some standards of the FCC regarding indecency.  But, I think, to the extent possible, it would be desirable to keep the FCC out of the content business simply because of the chilling effect in a variety of ways.

The great dilemma here can be seen with the comparison to print. Itís much easier for a parent to decide what will and will not be brought into the home.  One of the reasons that the courts use in justifying regulation of a free speech medium like broadcasting is on the one end the scarcity of the frequencies Ė there are more people who want to broadcast than can hold licenses and some selection needs to be made -- and the other is the somewhat intrusive nature of this medium. It comes into every home, and well, yes, you can turn off the set, but the fact of the matter is that any two-year old can turn it back on again.

What do you do in this context, and particularly with, as you noted earlier, even over-the-air stations coming into the home by coaxial cable.  One solution I was talking to my wife about this morning at breakfast as we were thinking about this, would be if the cable operators had to provide the service, had to offer it to their customers, on a channel by channel basis. You could put together your own package of what you wanted and pay for each channel.  It would be the same revenue for them, it doesnít affect the revenue stream, because they would adjust the prices appropriately.  But, it would create then, in effect, every channel as a kind of pay channel.

I think those who complain about content, for example, have much less ground to stand on when they complain about HBO, which they are paying an additional $10 per month or more for, and they donít have to bring into their home at all.  Then those who complain today about what is on the range of channels that come in under basic cable or expanded basic could eliminate the ones they don't want.

Letís say that itís even a strong minority of 20% of the American people who are absolutely offended by, say, what they believe to be the liberal views of Peter Jennings in the ABC Evening News.  Should they have the right to press and press politically until he is taken off the air?  Well, weíd probably say not. But can you just ignore those people?  Thatís part of the problem with broadcasting. Once it goes out over the air, itís there for everybody in terms of radio. But at least there might be some ways with cable, where you could put more individual choice into the parents and the homeowner, and let them cut out the channels in their particular home that they would prefer not to have.

Well, yes, what I found offensive by it is, as I say, the assault Ė a man ripping the clothes off a woman.   That, I think, is kind of serious and very questionable.  I suppose we blame Janet Jackson because we always blame the woman, donít we.  I donít know.  It doesnít justify it, but there you are.

One of the points I would like to make is that I think much of what we are talking about is simply integral to and endemic with capitalism. I donít mean to attack the capitalist system, I simply mean to describe it.  Once you take anything as powerful and with as much potential for educational and social and political and economic good as broadcasting and you turn it over to marketers who make their money by selling viewers to advertisers at a cost per thousand, and you put them in publicly held corporations where they need to show not only a profit, but a greater profit this quarter than last quarter, you inevitably, you inevitably are going to drive down the quality.  You are going to increase the pandering, you are going to increase the use of sex to sell, sex to build ratings, and you are going to use violence.

And thatís why most civilized countries began their broadcasting history, at least, by addressing this and concluding broadcasting was simply too powerful and too wonderful to waste and to put into the hands of capitalist profiteers.  Now, thatís long since behind us, but I donít think we ought to ignore that issue.

Secondly, and quickly, picking up again on Ms. Caldwellís points, I have kind of come around after almost 40 years of thinking about this stuff, to the view that to the extent we can, it makes more sense to try and come up with solutions that provide choice rather than solutions that involve prohibitions.

Now, admittedly, technology creates at least as many problems as it solves. But we do have, on the Internet, the opportunity for some filters imposed by parents. We do have the V-Chip in TV sets, however inadequate it may be for reasons Ms. Caldwell has pointed out. We do have tape delay. And she and I are now talking about the notion of individual packages selected by the subscriber of cable channels.  There are things we could do technologically and legally that would leave the material out there Ė for people who like Howard Stern, without making it as pervasive, as she notes the court observed in the Pacifica/George Carlin case.  We could, thereby, to the extent possible, serve both standards of decency and also the values of the First Amendment.

About 40 years ago I wrote a piece in the Atlantic magazine they still keep up on their website called ďThe Media Barons and the Public InterestĒ.

I might note incidentally in that connection that I have a website if anybody wants to follow up with this or contact me, itís just  Thereís nothing commercial there.

I would say with regard to the last caller, there's a dramatic contrast between the coverage provided by the United States news media and that provided by the British news media with regard to the Iraq War Ė its buildup, its execution, its aftermath.  Not just the British media, but any virtually media in Western Europe, Japan, or elsewhere.  We really are suffering a measure of censorship. When anyone talks  "the liberal media" I tell them, "I can find you a station where youíll hear Rush Limbaugh followed by Gordon Liddy followed by Michael Reagan, followed by more conservatives. But I challenge you to find me one where I can listen to Noam Chomsky followed by Howard Zin , followed by Ralph Nader, followed by Jim Hightower, followed by Molly Ivins" Ė I mean they donít exist.  I think heís got a valid point.

Unfortunately, Tom, I agree with Manuel.  When we created the Corporation for Public Broadcasting, it started off with a million dollar contribution from Frank Stanton of CBS, and that was about its funding.  What we assumed was the usual play of bureaucratic forces and that ultimately the CPB would have adequate funding.

Weíve never really fully funded public broadcasting in this country. At least back when I last looked at the numbers we were spending something like 1% of what civilized countries spend on public broadcasting, whether you consider per capita contribution or proportion of gross domestic product or whatever measure you want to use.

My proposal was that we shouldnít have public television at all at the beginning; that we should pour all our money into public radio where you get about a ten to one return on your investment compared with TV.  Do that for a generation, build up the public support -- if necessary, go out and buy stations in the hundred largest markets radio stations, have maybe four outlets in the hundred largest markets -- and once youíve got a generation of public broadcasting followers, then go for the funding for public television.

Thank you, itís great to chat with you again, and donít forget the website,