Most of the world's political parties and governments want to increase their power by increasing their control over television and radio.

It’s heartening to see the Democratic Party of Japan relinquishing this power as a matter of principle.

It believes the media cannot provide the independent check on government a democracy requires if it’s licensed and regulated by government.  So it wants to move these functions from the Ministry of Internal Affairs and Communications into an independent regulatory commission like the U.S. Federal Communications Commission – its "Japanese FCC."

This will be Japan’s second FCC.  The first, from 1950 to 1952, had a unique history. Its 21st Century model will be entirely Japanese – which makes it of even greater interest to Americans rethinking our own FCC.

Our FCC is 75 years old -- 82 including the earlier Radio Commission.  What began as the "wireless," amateur radio hobbyists, and "mom and pop" small town am radio stations, soon evolved into singing commercials, radio networks, FM, TV, cable and satellite distribution, and now Internet streaming audio and video.

This evolution creates challenges for the FCC.  The U.S. Constitution forbids any governmental action "abridging freedom of speech." That prohibition requires a persuasive rationale for regulating the performance of broadcasting stations.  What began as a necessity for government allocation of scarce frequencies to avoid signal interference (the "scarcity rationale") ultimately expanded.

Stations had to give or sell federal candidates "reasonable" time.  All candidates got an “equal opportunity" to use stations on which their opponent appeared.  Anyone attacked, or subjected to an opposing political editorial, could respond personally. Otherwise, individuals had no right to force stations to sell time. There was, however, a "Fairness Doctrine" requiring stations to both cover controversial issues and present a range of views.

There were requirements for minimum amounts of news and maximum amounts of commercials, culminating in the 1946 "Blue Book" of programming standards. Although obscene speech is not protected by the Constitution, "indecency" is -- except on radio and television. It remains a concern of today's FCC, although with the agency's post-1980s infatuation with "the marketplace" and "deregulation” many program regulations have been modified or, as with the Fairness Doctrine, repealed.

Indecency has provided additional rationale for broadcast regulation. Courts observe that young children can’t read. Parents control the stories read to them. Broadcasting enters the home uninvited, unpredictable, and instantly impacting children.

New technology complicates broadcast station regulation. Today most Americans "watching television" are watching signals from a cable or satellite dish – they neither know nor care whether signals come from broadcast or unlicensed cable program suppliers. Yet their regulation is different.

The FCC’s “independence” is checked by courts, Congress, president, and “special interests.” No more than three (of five) commissioners are of one party. But they are appointed by the president with the consent of the Senate. Courts can overrule FCC decisions. During commissioners’ five-year terms they cannot be removed, but if industry protests they won’t be reappointed. Congressional “oversight” and appropriations committees are influential.

And given the importance of broadcasting to representatives’ re-election, plus the role of big money “campaign contributions” from industry special interests, FCC “independence” is limited.

The continuing concentration of media in fewer companies, and Wall Street’s demands, are especially troubling. Book and magazine publishing, movie studios and theaters, TV networks and stations, cable and satellites, may be combined in a single firm – further contributing to potential private censorship, barriers to entry, diminished diversity of opinion and creativity. Wall Street’s insistence on ever-increasing stock prices forces newspapers and TV networks to increase profits by cutting costs, resulting in fewer reporters and overseas news bureaus.

What creates profits for corporate media creates losses for the American people and their democracy. With or without U.S. FCC regulation “selling eyeballs to advertisers” will probably never be able to create a quality of programming that is the cultural equivalent of a BBC or NHK at its best.
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Nicholas Johnson, a former U.S. FCC commissioner, teaches at the University of Iowa College of Law, and is the author of How to Talk Back to Your Television Set (Japanese and English editions), and Your Second Priority (with insights into American broadcasting), among others. He was recently included in the Yale Biographical Dictionary of American Law as one of the 700 individuals during the past 250 years with the most “lasting impact and influence.” His Web page and blog are http://www.nicholasjohnson.org (for links to supporting material for this article) and http://FromDC2Iowa.blogspot.com.