Return to Nicholas Johnson Home Page
 

A Hasty History of U.S. Broadcast Regulation

Nicholas Johnson

Transcript of extemporaneous remarks delivered at the

Seminar on Proposed Broadcast Legislation

Organized by the American Bar Association, Internews, National Democratic Institute and Open Society Georgia Foundation

Republican Hearing Room, Parliament of Georgia

Tbilisi, Georgia

February 27, 1998



Note:  The following extemporaneous remarks were delivered, sentence at a time, and then translated into Georgian.  The audio recording was such that, with rare exception, only Nicholas Johnson's remarks were audible.  The other two principal presenters were Johan Hamels, Parliamentary Expert with the National Democratic Institute, and Professor Gabor Halmai, Director, Hungarian Human Rights Information and Documentation Centre.  During the question and answer session, in many instances the question was repeated and contained here.  In other cases it is not.  -- N.J.

[In response to a request for brief self-introductions.]  Nicholas Johnson:  My name is Nicholas Johnson and I am from the United States of America. I am now a Professor of Law at the University of Iowa, but I was at one time a Commissioner of the United States Federal Communications Commission, and that is an agency that I will be talking about this afternoon.  Thank you.

* * *

[Nicholas Johnson opening statement.]  I would like to add my thanks to those that Johan [moderator Johan Hamels] has mentioned, those who have made this seminar possible, as well as thanks for the very gracious hospitality that I and the others have received here from Georgians.

The subject I am going to speak about is one that normally takes me four-and-one-half months [an academic semester] to explain.  This afternoon I have been asked to summarize it in 15 minutes.  So I will either have to speak very fast or  leave out a great many details.

I have been asked to review the history of broadcasting in America, and I would break it into four periods.

The first would be the twenty-five years from 1895 to 1920; the second would be from 1920 to 1934; the third would be from 1934 to 1975; and the fourth would be from 1975 to 1998.

The point is that throughout this period of years the attitude about broadcasting and its regulation have changed over time.  And not only has it changed over time, but within any one of these time periods you would find a great range of views among Americans as to what the proper policy should be.

Radio first began with Marconi's invention in 1895, and it was first thought of as an alternative to sending telegraph messages by wire.  The first laws that we had in the United States were called the wireless (without wires) the Wireless Ship Act of 1910 and 1912.  One of the disadvantages of using radio for sending private messages is that anyone can hear the message.  Then this was seen as an advantage: that one could broadcast, could cast broadly, a message that would be intended for many people to receive.

So that brings us to the 1920 to 1934 period. Many people started radio stations and they were interfering with their signals.  And are you familiar -- maybe you can answer this question for me:  is the story of the "six blind men and the elephant" a story that is told in Georgia?  There are two people approaching the elephant?  Well, then, you know the story of the two people approaching the elephant.  The telephone company thought that radio was something that should be broadcast through the telephone wires, very much like cable television today. The United States Navy thought they should be the only ones with anything to do with radio, that it should just be used for ship-to-shore communication. Ultimately, we had the first Radio Act of 1927, and it is the provisions of that Act that we are still operating under today.

Although the Act we refer to -- and we are now into the third period -- is the Communications Act of 1934, which embodies the 1927 Radio Act.

Most countries began with broadcasting as either something controlled by the government or something controlled by independent public corporations. In the United States we did something different.  We said that the public, the people of America, own the airwaves, but an individual would have permission for a very short term to operate this public property.

The very first section of the Act makes very clear that there will be no right of ownership in a radio station license. We use the expression "public trustee."

We have always been very concerned in the United States about government control of media in any way. We have, for example, with our overseas shortwave broadcasts through the Voice of America a law that prohibits the Voice of America from ever broadcasting inside the United States.  We did not want to create an agency within a Ministry of Communications that would be under the control of our President.  So we invented a fourth branch of government. And that is called Independent Regulatory Commissions.

I was appointed by President Lyndon Johnson, and when President Nixon came into office he wanted to -- do you have the word "impeach"?  OK.  He wanted to have me impeached. He was very disappointed to find out there were no procedures for impeaching F.C.C. Commissioners.  And he was even more disappointed to find out there are procedures for impeaching the President. [laughter]  So I served under a President who did not want me there.

The F.C.C., today, has responsibility not just for radio, television and cable television, but also all mobile radio, telephone companies, satellites.

During this period from 1934 to 1975 the F.C.C. took very seriously its responsibilities to regulate broadcasting -- and the statutory phrase is "in the public interest."  I will not go into the detail of the regulation now -- but would be happy to provide more information to anyone who might want it -- because my time is nearly over.

To give you another example of the independence of the Federal Communications Commission, before I was F.C.C. Commissioner Lyndon Johnson appointed me in charge of United States shipping, a position called Maritime Administrator. That was an Executive Branch appointment. The President could remove me any day he wanted to and I would be gone. During that time I was in and out of the White House and saw the President quite often. After I was appointed to the F.C.C. President Lyndon Johnson and I never talked to each other for the seven years of my term.  He never tried to get any message to me directly or indirectly.  And then, when I left the Commission, we started talking again.

Beginning in 1975, from 1975 to the present, the philosophy has changed although the law has not.  It is what is called the ideology of "deregulation," or "marketplace regulation." Again, I could go into detail about that but I do not have time. If you would like to ask me questions I would be happy to explain what used to be regulated and now is not.

Finally, I would like to say a word about our public broadcasting system.  (We are now through with those four time periods.)  Prior to 1967 we had what we called educational television stations. These would be stations normally affiliated with a university. In 1967 we created, with a law in Congress, a public corporation, the Corporation for Public Broadcasting.  That was the beginning of our public broadcasting system.  It was deliberately created to provide many bodies through which political pressure would have to go so as to protect the producers of the programs from any political influence.

The members of the Board of the Corporation for Public Broadcasting are nominated by the President and approved by the United States Senate like all other appointments.  But they are not political people. They are not identified with individual parties, trade unions or corporations. They are appointed as leading individuals in the United States.  And Congress deliberately created them because they knew that the producers would need protection from the Congress. So their job is to protect from political pressure. Then we have another layer called the Public Broadcasting System. And then we have another layer which is an association of the individual stations. And then we have, finally, the individual stations where the producers work to make the programs. Because not only is there concern about government influence, there is also a desire for localism, to have the political power, or media power, located in individual cities, not in Washington D.C.

I thank the Chair for the yielding of additional time, as to which he has been very gracious. But I am more interested in listening to my colleagues than to me, so I am going to stop.

* * *

[Beginning of Question-and-Answer portion of seminar.]  You have asked me two questions. The first was, as I understand it, "Has the F.C.C. ever won a case in court?"  The answer to that is that they have won many cases in court.

[Additional question.]

Yes, there have been such cases. There are very few.

The second question was with regard to the length of time that the public trustee is permitted to use public property. Initially the license term was for 18 months. It was then extended to three years. When I was on the Commission it was three years.  It has now been extended to a much longer time, seven to ten years.  Cable television franchises often run 15 years.

Does that answer that?

* * *

There not only has been the annulling or rejecting of a license, but many penalties have been assessed for not having balanced programs, or having too many commercials.

There are two cases I will mention in which licenses were taken away. One involved a station in Jackson, Mississippi; WLBT were the call letters and the name of the case. What that station did was to have racist practices, anti-African-American practices at the station. Jackson was 40 percent African-American, but there had never been an African-American on the station.  When we ordered them to put one on under the fairness doctrine that person was assassinated on their way home after their appearance. The F.C.C. wanted to renew the license, but the court told them they could not. I wrote a dissenting opinion, and the court said I was right and that the F.C.C. should take away the license.

The other was a case involving antitrust violations. Do you have antitrust?

There was another case in which -- we have a, how to explain, there is a rule that a Commissioner must not talk to the party, the owner of the station or the lawyer for the station, while the case is before the Commission. And this was a case that involved the broadcaster taking the Commissioner out on a fishing trip. And there were some other contacts that I won't go into. They also got their license renewed a couple of times, but finally I was able to get enough Commissioners to take it away.

I could give you more examples but those are illustrative.

* * *

The short answer is "yes, it is the same."  The longer answer takes awhile.

* * *

The question is, "What is it about the F.C.C. that makes it independent?" And I think that central to that is the anecdote I described earlier about my own experience when a President wished to remove me from the Commission and legally was unable to do so. A part of the reason for the independence of our judges is that they are appointed for life, they cannot be removed, and their salaries cannot be decreased.  An F.C.C. Commissioner is not appointed for life, but for seven years you have a "lifetime appointment." And those terms are for -- each year one Commissioner comes up. Now there are only five Commissioners, and each serves a five year term.

* * *

The only thing that is similar to licensing is the franchise process I described which involves a contract between the city and the cable company.

Much of the programming carried on cable systems comes to the local cable system from a satellite to a satellite dish. For most of those program suppliers there is no licensing requirement. They are thought of as similar to a book publisher putting books in a bookstore, or somebody making videotape cassettes.

The exception would be someone who owns a broadcasting station, which must be licensed, and also takes that programming and puts it up on a satellite to go out to cable.  But they are only licensed because they have the broadcast station.

* * *

[Question regarding ownership concerns and standards.]  But it is not only overlapping signals; it is also having a number of stations that don't have overlapping signals but are in the same part of the United States; so that a single owner might have more control than they should have of political power within an individual state or region of states.

Then we have a concern about national media power, and when I was on the Commission there was a limit that anyone could own throughout the entire United States.  No one could own more than seven AM, seven FM, and seven TV stations.

The fifth would be a concern about a multimedia corporation.  By that I would mean someone who owns book publishers and newspapers and magazines and television and cable TV and feature film studios.

And finally, last is the matter of conglomerates. A conglomerate is a firm that is in a lot of different kinds of businesses that are not media businesses. For example, one of the first big cases I was involved in as a Commissioner involved an effort by ITT -- a telecommunications firm -- to buy the ABC network. And that merger did not go through. The concern was that ITT might use ABC for public relations purposes, for advertising purposes, to promote its other businesses.

Q: What was the result in that case?

The result of the case was a vote of four to three.  I wrote the dissenting opinion.  It went to the U.S. Court of Appeals and the court was probably going to reverse the F.C.C., and so ITT backed off.  It called off the merger.  They did not merge.

* * *

Your first question was, "Can the F.C.C. take away a license without first going to court?"  The answer to that question is "yes they can." There is then a right in the broadcaster to take the F.C.C. to court.

The question is, "Will the F.C.C. make a decision and then somebody go to court, or does the F.C.C. have to go to court in order to effectuate its decision?"  The answer is, "the F.C.C. makes the decision all by itself; that is a final decision."  The F.C.C. has legislative and judicial and executive powers. And if the decision of the F.C.C. is acceptable to the parties, that's the end of the matter. If it is not it goes to the U.S. Court of Appeals, and from there it can be appealed to the Supreme Court.

As a concession to the shortness of life I am moving to the second question, which is the cost of the license. And the answer to that question is, "when I was there you could get a $100 million television station for a $100 license fee."

* * *

In general whoever would wish to reverse the decision of a body below would have the burden of showing what it did was wrong.

* * *

[Chairman Ramaz Sakvarelidze asked what would be the most appropriate policy for Georgia.  Professor Gabor Halmai responded with what he self-described as an "undiplomatic answer."]

Nicholas Johnson:  More diplomatic answer:  I think whatever you and the parliamentary and executive processes of Georgia do will be very appropriate.



Return to Nicholas Johnson Home Page