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Broadcasting and Its Regulation: 1895-1970

Nicholas Johnson

"The FCC Past and Present" [panel with Gloria Tristani, United Church of Christ, Office of Communication (and former FCC Commissioner); FCC Commissioners Michael Copps and Jonathan Adelstein; and  Nicholas Johnson, University of Iowa College of Law (and former FCC Commissioner)]

May 14, 2005

The National Conference for Media Reform: Gathering Momentum
May 13-15, 2005
St. Louis, Missouri

Note: This is a transcription of Nicholas Johnson's extemporaneous remarks. There was no advance speech text. An audio recording of the entire panel is available at (scroll down to "Saturday May 14 9:00 A.M"). For citations to sources for material quoted, see Nicholas Johnson, "Forty Years of Wandering in the Wasteland," 55 FCLJ 521 (2003), nn. 17 and 31 (available online).

Nicholas Johnson:  Thank you, Gloria [Tristani].

I feel obliged to explain what I am wearing [blue, button-down shirt and khaki work pants]. I was going to wear a suit, and a friend of mine said, "I thought you were going to an FCC panel." I said, "I am." And they said, "Well then why donít you wear your FCC uniform?" So, thatís what this is.  For seven years, this is what I looked like at the Commission, but with much longer hair and a mustache and a beard, which was really pretty disreputable looking.

I was asked at a big conference once to explain why I looked that way and I said, "Well, there are so many people in Washington, D.C., that want to look like public officials but act like bandits that I thought there ought to be one that looked like a bandit and acted like a public official."

Now yesterday, we had a wonderful session on things weíve accomplished ["What Have We Won? A History of Media Activist Victories," a panel and discussion with Jeff Cohen, FAIR; Dee Dee Halleck, Deep Dish Television; Mark Lloyd, Center for American Progress; Andrew Schwartzman, Media Access Project] . They were looking far back into history, as far back as the 1970s.

I have been handed the assignment by my fellow commissioners here to tell you everything you need to know that has happened to radio from 1895 until the 1970s and to do it in five minutes.

Which would be difficult, except I think I can probably make the point better using the words of people at that time than using my own.

Because when radio came along it was a great mystery.  Nobody knew quite what is was, or how it worked or where it was going. And yet folks were extraordinarily prescient all around the world, that here was something that was so precious in terms of what it could do to uplift humanity, that it simply could not be used for commercial purposes.  And, number two, that it was so potentially politically powerful that is should not be put in private hands.

Most of the civilized world, as distinguished from what we did here in the United States, chose therefore to put broadcasting into the hands of public corporations. This is distinguished from a government agency. Public corporations -- Sverges Radio, BBC -- have often been instrumental in bringing down governments. As I once said, "The BBC is more independent of the British government than NBC is independent of the American government."

They [BBC employees] were certainly non-commercial in their operation, which has given the Brits a leg up on general public education and information which from we have yet to catch up.  Because they had the BBC and then added commercial broadcasting.  We started with commercial broadcasting and then tried to add public broadcasting to it.

But in this country as well, we recognized both of these phenomena: that it was too powerful politically to put in private hands, too precious to be wasted with commercialism.  And this was expressed in a variety of ways.

I am just going to give these quotes and I am going to sit down, because I donít have time for the rest of it.

If anybody is ever curious I have a website with thousands of screens more than youíd ever want to bother to read.  The website is listed in the participants bio section.  Itís just, but you are not going to remember. If you have that participants bios thing, it is at the end of my description.

Okay, hereís one.  That great radical, that early Abbie Hoffman of his time, Herbert Hoover, was Secretary of Commerce before he became president.

As you probably know, those of you who have studied administrative law, you know that in fact most of administrative agenciesí regulation resulted because the industry came to Washington and said, "Government, please get on our backs. Please drive out our competitors. Please give us a monopoly." I am not going to take you through the railroads and the whole business, but that certainly was the story here.

The broadcasters came to Hoover and said "Weíve got to hold some radio conferences. We are dealing with the most dreaded thing known to American business. Itís called competition. We have to get rid of it."

They got their monopolistic channels, but not before they held four radio conferences in the 1920s, trying to figure out what this darn thing was and what they should do with it.

Here was a sense of the conference statement from the one they held in 1922:

"The sense of the conference is that radio is a public utility . . .
Now you can hear the commission and courts saying, "We couldnít do that. That would make tradio a public utility."  Yes, thatís what it started out and was recognized as being.
" . . . and therefore should be regulated by the government in the public interest."
All right, there it is.
Then there recommendation 3E:
"Direct advertising in radio should be absolutely prohibited."
No advertising.  Furthermore, there's General [David] Sarnoff, who had a little something to do with NBC and RCA. Hereís a guy out of industry saying that broadcasting should be "untarnished by moneymaking."

I am just trying to give you sense of the thinking of the people at the time this began, as contrasted with how far it has come to the present day.

It didnít just start happening in the 1970s.

Hoover, later President Hoover -- from West Branch Iowa, just down the road from my boyhood home -- said,

"It is inconceivable we should allow so great a possibility for service to be drowned in advertising chatter.
Just one more quote, because I see Gloria looking at her cell phone, and that means sheís really trying to see what time it is.

When this was debated [in Congress; the Radio Act of 1927] -- this now goes to media ownership -- the political power of the media, these issues are being debated on the floor of the House. One question was "Should we be concerned as a people about allowing this ownership to be accumulated?"

Congressman, Luther Johnson -- no relation either to me or to President Johnson -- 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."
 that sound familiar?

It was true then, and itís true now.

Something awful has happened in this country that we are not able to see, with 80 years of experience with this thing, how right these people were. We canít see now what they saw clearly before they had a clue as to what was going on inside this box that produced voices.

They could see it. Why canít we see it today?

He [Congressman Johnson] concluded:

"It will be impossible to compete with them in reaching the ears of the American people."
How right he was, and weíre dealing with it today.

Thank you, and then we will have a lot more interchange.

Gloria Tristani:  I really do recommend to all of you to go to his Web page. It is an incredible source of resources, and it also has an incredible record of what Nicholas Johnson accomplished on the Commission.  He was probably the greatest dissenter on the Commission.  Those dissents, or many of those dissents, were picked up by the courts and were the basis for reversal of very bad FCC decisions.  We could use many more Nicholas Johnsons on the Commission today, but we have very good Commissioners on the Commission, thank heavens.

* * *

What You Can Accomplish with a License Challenge

Nicholas Johnson:  I think we need to think about the range of things that can be accomplished with a license renewal challenge as these commissioners have spoken to as well. Certainly a lot has come from the leadership that theyíve shown and the forums theyíve held around the country.

So even if the odds are against the license challenge being granted, and your suddenly becoming the proud owner of a multi-million dollar broadcast property, it is a way of getting the issues discussed. It is a way of getting the attention of the media and of the FCC and of Congress.  It is a way of building a citizen base. it is a way of going out to the people in your community with essentially the educational message that Iíve been advocating since the 1960s, which is:

"Whatever is your first priority, whether it is womenís rights or the environment, or whatever it may be, your second priority simply has to be media reform.  Because without it, as Congressman [Luther] Johnson said, you have no chance of reaching the ears of the American people, and without that you have no chance of bringing about any change."
Every single group in your community, regardless of what their issue is, is a potential source of support for you on a license challenge, a potential source of an organization whose members you can help to educate with regard to media issues.  And I could go on, and you may think I already have, with regard to other values of this process.  The point is, there are a lot of reasons to do it besides the fact that you might end up owning the station.

* * *

How to Play the "No-Lose Strategy" Game

Nicholas Johnson:  Just a real quick comment about a way of thinking about strategy, and then we are all anxious to hear the questions, and so I will be quiet and we will listen to questions.

If it hadnít occurred to you before, think in terms of what I call ďno-lose strategies.Ē

In other words, regardless of what happens, regardless of what the other side does, you win.

Itís a wonderful concept that requires you to think in terms of a range of multiple goals that you are trying to achieve.

If you ask for something thatís totally reasonable and youíre turned down, think of the news media statements you can make with regard to how preposterous and outrageous and greedy and self-serving and anti-American these people are, why they wouldnít even agree to, whatever.

Occasionally you are going to win one. Then you canít do that, so youíll be disappointed. But it wonít happen often.

You can also tie this into fundraisers, building memberships, networking, All kinds of wonderful things can come out of this:  public education, media attention, and so forth.

So, just bear that in mind. Play the no-lose strategy game.  Any way it comes out, you win.