Preface and précis: This was the second of four appearances at four Japanese universities during Nicholas Johnson's June 30-July 8, 2010, speaking tour in the Kyoto-Osaka area. This event was conducted in English, without the provision of a Japanese translation, for the faculty and some graduate students of the Center for American Studies.

It was in some ways a full 30-40-minute expansion of the ten-minute presentation the prior day under the same title, in that the lecture focused on description of the U.S. experience with media content regulation, the issues raised by those efforts, and how some of them have been resolved. Conclusions regarding the implications of this history for Japan were left to the audience. It was organized along the following lines:

Introduction: how much FCC do you want?

I. Is there a need for regulation of the media?

II. What are the constitutional constraints on government regulation of media?
(inadequacies in the vague constitutional language can be remedied to some degree by examination and application of the purposes of "free speech")

III. What has the U.S. FCC regulated with regard to the media -- how and why? What issues have emerged?

IV. What are the limitations on the independence of an "independent regulatory commission"?
("agency capture" and "sub-governments"; executive and legislative branch pressure; advertiser and Wall Street pressure)

V. The counterforce of public participation.

(See "Handout" for participants on that occasion, below; made available to them in both English and Japanese.)

Sample References: Shinji Uozumi, The Short Life of Japanese FCC: Social and Legal Origins of the Radio Regulatory Commission (1995) (available in both English and Japanese editions)
    Nicholas Johnson (available online from Web site, and as chapters in Your Second Priority (2008)): “An Autonomous Media;” “Jefferson on the Internet;” “Sailing Shark-Infested Waters: A Map for Media Literacy;” “Forty Years of Wandering in the Wasteland;” “With Due Regard for the Opinions of Others;” “The Media Barons and the Public Interest: An FCC Commissioner’s Warning;” “Media as Politics: What’s a Voter to Do?”, the book Nicholas Johnson, How to Talk Back to Your Television Set (English: Little, Brown; Bantam; Japanese: Diamond; 1970), and “A Day in the Life: The Federal Communications Commission,” Yale Law Journal, 82 Yale L.J. 1575 (1973).

Introduction: How Much FCC Do You Want?

Thank you for the honor of your invitation to me, to learn from you today, as we share some ideas about media regulation.

A part of what brings us together is the 2009 proposal of the Democratic Party of Japan, DPJ, to create a Japanese version of what Americans call the Federal Communications Commission, or “FCC.”  Indeed, the DPJ refers to its proposed agency as a “Japanese FCC.” The Party’s commitment to the idea may have weakened somewhat since the original proposal, but it is still an idea very worthy of political dialogue in Japan.

The United States has much to learn from Japan as both countries confront the challenges that a rapidly changing mass media present to our societies.

However, there is very little “advice” that an American, even an American former FCC Commissioner, can offer you regarding a Japanese FCC. Our two countries and peoples not only have different languages, we also have distinct histories, demographics, cultures, societal, political, economic and broadcasting systems.

Indeed, Japan has already experienced an American-imposed FCC from 1950 to 1952 – and chose to abolish it and transfer its functions to, what was then the Ministry of Posts and Telecommunications.  Not incidentally, Professor Shinji Uozumi reports that at least some of the reasons for its abolition involved cultural differences between Japan and the U.S.

What an American former FCC Commissioner can do, perhaps, is to share something of the history of the U.S. broadcasting and communications industries, their regulation by the FCC, and the problems and challenges they have created.

But it is only you who have both the right, and the ability, to decide how much – if any – of my commentary about the American experience is useful, or even relevant, to your media challenges.

The details of the DPJ proposal are not yet clear, and will not be unless and until the proposal takes specific form and is introduced in the Diet.

However, from the Party’s documents  and Japanese newspaper reports,  the organizational change involves moving the regulation of broadcasting and telecommunications from the Ministry of Internal Affairs and Communications into an agency independent of the Cabinet and Diet – a Telecommunications and Broadcasting Commission the DPJ calls a “Japanese FCC.”

What appears to be the rationale for this reform is that, because one of the media’s responsibilities is to report on the government, it is inappropriate for the government to be regulating the media. The hope is that this new agency will eliminate, or at least significantly reduce, the intervention of political interests into the regulation of broadcast media.

Thus, a threshold question in addressing an independent Japanese regulatory agency is the breadth and scope of its mission.

The U.S. FCC is not a small agency. For the fiscal year 2011 the FCC asked Congress for 32 billion yen, based on a projection of two thousand “full-time” employees.

The work of the Media Bureau is budgeted at less than 10 percent of that amount, the equivalent of about 3 billion yen.

Given the apparent rationale for the DPJ’s proposal -- to protect media content from governmental control – it is not clear that goal requires an independent Japanese agency to regulate the FCC’s full portfolio of responsibilities.

The Japanese agency might be an independent commission with only slightly more powers and responsibility than that of the FCC’s “Media Bureau.” If so, its mission would be, as Minister of Internal Affairs and Communications Kazuhiro Haraguchi said, to protect the “three freedoms of speech, press and broadcasting.”

The FCC has 17 bureaus and offices. Some have functions appropriate for any governmental agency, including a Japanese FCC, regardless of its mission. Examples are the FCC’s Office of the General Counsel, Office of the Managing Director, and Office of Media Relations.

Other bureaus and offices have functions that could be included within a Japanese FCC, but would not have to be; that is, if its purpose is limited to separating media licensing, ownership, and content regulation from direct Cabinet control. Examples might be the FCC’s International Bureau (“represents the Commission in satellite and international matters”); Public Safety & Homeland Security Bureau (“addresses public safety . . . emergency management and preparedness . . .”); Office of Engineering and Technology (“allocates spectrum . . . and provides expert advice on technical issues . . .”); and the Wireline Competition Bureau (“responsible for rules and policies concerning telephone companies . . .”).

The only bureau that would have to be included in a media-focused Japanese FCC would be the FCC’s Media Bureau which “regulates AM, FM radio and television broadcast stations, as well as cable television and satellite services.

Given the apparent media-centered purposes behind the DPJ’s proposal, I have limited my subject today to the challenges and potential advantages of an independent media-regulating agency.

I. Is There a Need for Regulation of the Media?

Once we agree upon the Japanese FCC’s mission, the next issue is whether such a mission is desirable or even necessary.

Mass media influence virtually every aspect of Americans’ lives and society – our culture and values, economy, military adventures, nutrition, popularity of sports and music, health, and even hair styles, clothing fashions, and more.

Its influence is central to U.S. politics and governing: the ideologies we hold, the information and opinions citizens share, the legislation that can be proposed and adopted, and what citizens think about the candidates for public office for whom they may vote.

Thus, it is understandable, and appropriate, that academicians, journalists, government officials, and the public at large take an interest in the performance of the media.

Nevertheless, some Americans use the expression, “a solution in search of a problem,” as a way of deprecating government regulation. They believe that corporate self-regulation, or “the marketplace,” is preferable to the government.

The law requires broadcasters to “serve the public interest.”  But when regulation critics are asked what they think that means, they just say, “the public interest is what interests the public.”

Clearly, the American audience evidences significant interest in commercial entertainment. They pay billions of dollars, even in a down economy, for feature films in theaters and on DVD, cable TV and pay channels, music downloads and  CDs, video games and related offerings.

Moreover, as I wrote in “Forty Years of Wandering in the Wasteland,”  the changes in distribution of audio-video material during the latter half of the Twentieth Century, while bringing their own problems, have also provided some improvements for the audience.

Nonetheless, it is my position that the power of the media, coupled with the harm that it does – and of much greater significance, the good that it fails to do – fully justify the American people’s desire to maintain some control over their media.

From the time of the Washington radio conferences that led to the Radio Act of 1927  there has been concern about excessive broadcast advertising and its adverse impact on programming. Other concerns that have found their way into FCC regulations and decisions include the responsibility of stations to their communities of license, the related concern about threats from the economic and political power when media ownership is concentrated in a few, the special needs of children, and broadcasting’s relationship to free speech considerations.

II. What are the constitutional constraints on government regulation of media?

It is for you to interpret your own Constitution,  and its commitments to freedom of speech. But I will share with you some of my perceptions regarding the purposes and consequences of the U.S. Constitution’s protection of freedom of speech and press.

The specific language of the U.S. Constitution is of limited help in thinking about the wisdom of media regulation. Our First Amendment says, simply, “Congress shall make no law . . . abridging the freedom of speech, or of the press . . ..”  But the courts interpret the word “Congress” to mean all units of government from municipal to federal; some laws abridging speech are found to be constitutional notwithstanding the “no law” prohibition; and the definitions of both “speech” and “press” have varied from case to case.

Some especially difficult questions arise with mass media. If "Congress shall make no law . . . abridging the freedom of speech," how can a governmental FCC justify regulating the speech of broadcasters?

If a municipality owns an auditorium where speakers appear it is sometimes called a “public forum.” As such, the city’s officials violate the First Amendment if they permit some speakers to use the auditorium, and deny access to others, based on the content of their speech.

Consider a company, franchised by a city to operate its only cable television system. Whether or not the franchise makes it a governmental entity, does it have the exclusive First Amendment right to provide, and exclude, content from its dozens of distribution channels?

After all, even though the First Amendment language only limits government action, its principles are equally relevant to media monopolies or institutions that stifle free speech.

The FCC’s “Fairness Doctrine” (now repealed) required that stations cover “controversial issues of public importance” and in doing so provide a range of views. Broadcasters thought it violated their First Amendment rights, that they should have exclusive control of their programming. The U.S. Supreme Court unanimously disagreed.  In the Red Lion case the Court found the First Amendment rights of the audience (both those who might provide, and those who would receive, views contrary to those of the broadcasters) to outweigh the free speech rights of the broadcasters.

In short, the language of the First Amendment is of greatest help when balancing the First Amendment rights of one party against non-First Amendment needs, or rights, of the government or some other party. However, its language is of little to no use when both parties rest their case on their First Amendment rights. Is it possible for laws and regulations that impact on one party’s speech to actually enhance, rather than abridge, free speech?

That is when we must turn to the reasons for, and values underlying, the First Amendment. Which policy, which outcome, will best serve the most of those purposes?

Arguments affirming the value of freedom of speech and press fall into five categories:

• their role in meeting the information needs of a self-governing citizenry
• their contribution to the search for truth in a "marketplace of ideas"
• the "checking value" of the media, as it watches for, and reports, abuses by large institutions
• their importance to humans’ "self-actualization," basic liberty, and individual freedom
• the "safety valve" of dissidents’ speech, rather than their violent actions

Search for truth. What is a marketplace of ideas?  What is "truth"? Clearly, its meaning depends on the context in which we search for it. A religious truth may come from an ancient text, or a religious leader. A scientific truth may only come from the results of an experiment that other scientists can replicate with similar results. A political truth may be reflected in the election returns. Whatever the context, however we define “truth,” wherever we find it, a full range of available information and opinion will aid our search.

Checking value. The media’s use of its free speech and press rights make it "a fourth branch of government."  As such, it has a public function as important as, while autonomous from, the other three branches of government  – its ability to help keep other institutions in the society more honest and efficient.

The need for a "checking value" assumes that every institution in society, not just government, is capable of becoming ingrown, resistant to change, secretive, systemically corrupt, and more interested in perpetuating itself than in its original mission  – whether businesses, universities, churches, hospitals, or military and police units.  Given the public's interest in uncovering abuses,  "investigative reporting" is not only a public service, it can even be profitable for the media.

Self-actualization. Other animal species are superior to humans in a variety of ways, such as senses of hearing and smell, speed of running, or ability to fly. What distinguishes our species is our capacity and propensity to create, manipulate and communicate by means of symbols, including language. The opportunity to investigate, research, become educated, read, listen, think, speak and write – to exercise our First Amendment rights – is central to our development as humans.  The ideas expressed may or may not contribute anything to the society's self-governing, search for truth, or check on institutions. If they contribute to the growth of an individual, it serves this value of the First Amendment.

Safety valve. A safety valve on a boiler can release steam before the boiler builds up pressure and explodes. The First Amendment serves this purpose for the potentially explosive pressures within a society.  Dr. Martin Luther King practiced "non-violent" strategies for change. Others chose to shoot, loot, burn, take hostages, and become suicide bombers in order to be heard.  If dissidents can get the attention of other citizens and officials with speech, if they have the feeling that they have been "heard," they are much less likely to use violence as a means of protest and reform.

III. What has the U.S. FCC regulated with regard to the media -- how and why?

One of the exceptions, or interpretations, permitting government regulation of speech has been the licensing of broadcasting stations by the FCC, and the agency’s regulations that affect speech in one way or another. The most common argument used to justify the licensing and regulation of broadcast stations, when balancing them against the “no law” prohibition, is the “scarcity” of broadcast frequencies.  Other rationale, used by the Supreme Court in a case upholding the FCC’s prohibition of seven words on radio, involved broadcasting’s pervasiveness, the fact it comes into the home, and is available to children.

There are gradations of government regulation, or “abridgement,” of free speech, including the regulation of broadcasters’ speech by the FCC. They may be distinguished between regulation of “specific content” and regulation of “non-content-specific categories.”

Starting with the most extreme form of content regulation, “prior censorship” occurs when a governmental agency reviews, judges, and approves, or not, specific content before publication or broadcast.  On the one hand, the FCC does not engage in prior censorship. Indeed, the Communications Act expressly forbids it to do so.  On the other hand, the post-broadcast penalties it can impose for specific content can range from license revocation (rare to never) to fines of $100,000 and more.  Thus, ironically, vague standards and uncertain outcomes for post-speech punishment may curtail more speech than prior censorship. Speakers may self-censor, out of the fear of post-broadcast punishment, speech that a prior censorship official might actually approve.

Illustrative examples of post-broadcast content regulation during the history of the FCC include the agency’s examination of “indecency,” including forbidden words – with Supreme Court approval.  The Commission attempted to discourage the broadcast of music with “drug lyrics,”  and fined a licensee $550,000 for televising a dance routine during the halftime show of the National Football League’s “Super Bowl” game.  The Commission also compels specific speech from its licensees – something that the Court would find a First Amendment violation in another context. Stations must identify themselves regularly by their call letters, and must reveal the names of those who paid for commercials.

As the phrase “non-content-specific categories regulation” suggests, it involves a broadcaster’s obligation to provide, or refrain from providing, a category of speech, the specific content of which is left to the discretion of the broadcaster.

One of the FCC’s first, and most inclusive statements of broadcasters’ programming responsibility, was a 1946 report called “The Blue Book.”  The Commission wrote, “In . . . renewing the licenses . . . the Commission [gives] particular consideration to four . . . factors relevant to the public interest . . .: (1) . . . [non-sponsored, or] sustaining programs . . .; (2) . . . local live programs; (3) . . . discussion of public issues, and (4) the elimination of advertising excesses.” )

This was the centerpiece of the Commission’s newly announced “policy of a more detailed review of broadcast station [programming] performance when passing upon applications for license renewal.”  The report led with detailed stories of stations requesting license renewals when the programming they had delivered did not meet the promises they had made to the Commission, a problem of “promise vs. performance.”  This related to the questions on license renewal forms broadcasters had to answer and file with the Commission every three years.

Beginning in the late 1970s and 1980s, much of the FCC’s regulation of all kinds, including that which impacts speech, was repealed during a time of widespread political support for an ideology of “deregulation,” “marketplace regulation,” or “self regulation.”  Nonetheless, the examples which follow represent not only what an FCC could do, but what the FCC actually did do at various times in the past.

The license renewal form included the broadcaster’s report of the programming he or she had provided during the prior license period and promised for the future. An accompanying “composite week log” from the station’s record of its programming and commercials provided support.  The FCC composite week consisted of seven randomly selected days of the week from the prior year – one Sunday, one Monday, and so forth – unknown in advance by the licensee. For example, the renewal form required broadcasters to report the proportion of their programming that had been “news” and “public affairs.”

Another item on the renewal form asked for the licensee’s number of commercials per hour.  The Commission had an informal standard of the maximum it would accept. More than that would trigger an inquiry from Commission staff as to the broadcaster’s reason for excessive commercialization.

The promises regarding future conduct (such as amount of news and public affairs, and the number of commercials) made it possible for the staff, at the next renewal time, to compare the licensee’s promises with actual performance (based on the “composite week”). “Promise vs. performance” was a serious matter, as much for the licensee’s misrepresentations to the Commission as for the inadequate substantive performance.

Licensees also need to report whether they have met the FCC’s requirements for “children’s programming” – standards that have varied over the years.

The FCC hoped that licensees’ reports regarding their hiring of women and minorities might create a more diverse mix of employees in this predominantly white male industry, and that those employees would at least marginally influence the creation  and content of news and public affairs programming.

One way the Commission encouraged local programming was a logging requirement regarding the source of programming, one category of which was “local.”  Another was the requirement that broadcasters do a “community ascertainment.” That is, the broadcaster was required to survey designated groups, make a list of issues confronting the community, and create and broadcast programs addressing them.

There were a number of Congressional and Commission policies involving the broadcast coverage of issues and candidates, differing somewhat in rationale and detail but similar in purpose.

Some prgramming regulations generate rights in specific individuals.

The “equal opportunity” doctrine provides that a station need not provide time to candidates for public office, but that if it does so it must provide an “equal opportunity” to all other candidates for that office.  In addition, candidates for federal office, such as the president, senators and members of Congress, have a right to buy a “reasonable” amount of time.

A “personal attack” doctrine created a right in the person attacked during a broadcast. They are notified and offered an opportunity to respond.

Although the foregoing are sometimes characterized as a part of the “Fairness Doctrine,” it does not create rights in individuals.  Therefore, it is conceptually more helpful to treat it separately.

The two requirements of the Fairness Doctrine involve little more than what professional journalism would dictate even if the Fairness Doctrine did not exist. (1) Stations are required to provide programming on “controversial issues of public importance.” (2) In doing so, they are required to present a range of views on those issues.

It is significant what the doctrine does not require. The FCC does not designate issues. It does not designate the number or content of the viewpoints included. It does not require internal balance within each individual program. It does not require “equal time.” All it forbids are stations operated as instruments of propaganda. In short, it requires little more than what ethical, and profitable, civic journalism does as a matter of course.

IV. What are the limitations on the independence of an "independent regulatory commission"?

However, regardless of what the Constitution, acts of Congress, and FCC regulations may provide regarding the independence of both the FCC (from the Executive and Legislative branches of government) and the media (from the FCC or other governmental units’ actions “abridging the freedom of speech”), there are other forces at work as well.

Both the FCC and media are significantly circumscribed (a) under the American constitutional structure of “checks and balances,”  especially (b) given the role of media in determining who wins elections. There is also (c) the necessary intervention of the Executive and Legislative branches of government in the creation, staffing and funding of even an “independent” agency, and (d) the disproportionate political, economic, and media power of America’s wealthiest individuals and largest corporations.

Merely because broadcasters are not employees of government does not mean that they are in every way independent of government.

For many reasons, commercial broadcasters may provide support for "the establishment" in general – the wealthy, or those managing large institutions of all kinds – and the government in particular.

For starters, the owners of major U.S. media are the establishment.
 
An organization called FAIR  publishes a magazine of media criticism called Extra! It has run a number of articles analyzing the tendency of news and interview programs to limit the choice of guests to middle-of-the-road establishment figures.  One consequence is a media tendency to support government positions on issues.

Media owners may fear retribution by federal government agencies with regulatory authority over them. The FCC gives and can take away broadcasters' licenses, and its statutory standard for review is the vague "public interest."

Broadcasting stations that are owned by large corporations with other subsidiaries, called "conglomerates," may be tempted to use their media power to serve their other corporate interests.  For example, the media subsidiary of a multi- billion-dollar provider of goods and services to the Defense Department may be more inclined to support the U.S. going to war. When billions of dollars are at stake, and politicians are concerned about "image," the temptation to curry favor with the government is large.

The point is simply that there are many ways in which a government can exert influence over the media regardless of how “autonomous” it is as a “fourth branch of government,” and however “independent” the Federal Communications Commission may be.

There are also limits to how “independent” any agency can be from the legislative and executive branches.

For example, in the case of the FCC, the commissioners are appointed, and reappointed, or not, by the President, with the “advice and consent” of the U.S. Senate.  The President cannot remove them from office during their five-year term, but they have at least some association with the President – and possibly a sponsoring senator as well.

The FCC must send its budget request through the President’s Office of Management and Budget just like every executive branch agency. Moreover, the President’s budget is meaningless until approved by Congress, which has the appropriation power.

The FCC’s ability to lobby the President and Congress is limited. The major industries and firms it regulates are not. They fund House and Senate members’ re-election campaigns. They spend millions more on their lobbyists who have access to members of Congress, the White House, and agencies.

Moreover, as I have elsewhere explained, Washington,

“works through dozens of sub-governments . . ..

“Sub-governments grow under rocks, away from the media's spotlight. They require an industry dominated by a few firms that grow rich with government help, whether through subsidies, price supports, tax breaks, government contracts, use of public lands, bailouts or tariffs.

“A sub-government's membership includes a small, incestuous collection of one industry's corporate and trade association executives, their lawyers, lobbyists and publicists, its trade papers' journalists, congressional sub-committee members and staff, and the relevant agency's employees. They eat and play together, literally inter-marry, and protect each other.”

There are civil servants at the FCC and elsewhere throughout the federal government who are bright, ethical, hard working, idealistic, and take seriously their obligations to serve the public interest. There are more than you might imagine. Some slowly and unconsciously, others knowingly and cynically, find themselves becoming a part of their sub-government. Those who do not, find that the barriers they confront are systemic; their only meaningful option is to resign.

V. The counterforce of public participation.

From its earliest days, the United States has had a countervailing force as well, in its tradition of citizen action. Given the power and influence of the mass media, especially television, it is not surprising that a citizen-based media reform movement has taken a variety of forms over the years. The movement has had mixed results, but lives on.

However, an adequate discussion of its history and effect requires another day and another speech.

My purpose today has simply been to provide some background regarding the role and regulations of the U.S. Federal Communications Commission with regard to mass media.

I have deliberately not offered you “advice” regarding the DPJ’s proposed “Japanese FCC.” I am mindful of the differences between the legal systems, customs and cultures of Japan and the U.S. Those differences necessarily will play a major role as Japanese academicians and officials sort through the media regulation experiences of both our countries, separating out the ideas that will, or might, work in Japan from those that definitely would not.

Thank you again for the invitation to be with you, your attendance today, your courtesy and attention. I do wish you well with your endeavor, and look forward to continuing to follow your progress from my home across our shared Pacific Ocean.

DPJ proposed a “Japanese FCC”; U.S. can gain insights from Japan; possibly Japan from U.S.

Media as a powerful cultural, political, economic, military force

Americans cannot offer “advice;” just share U.S. experience; U.S. model may not work for Japan

DPJ identified potential “conflict of interest” with government agency regulating media content

That problem is solvable without moving all communications regulation to an independent agency

How much FCC do you want? FCC’s media regulation 10% of workforce and budget

FCC regulation of satellites, phone, mobile radio, equipment approval have few “free speech” issues

Is media regulation needed? Yes, when controlled by profit-maximizing corporations

FCC concerns: advertising, community service, media ownership & political power, children

What does “free speech” mean in mass media (Japan Art. 21; U.S. First Amendment)? One-way media.

Constitutions don’t answer: Do only media owners have free speech; or do we have rights of entry?

Must look to reasons for, purposes of, consequences of Constitutional provisions.

Self-governing; search for truth; checking value; self-actualization; safety valve.

FCC regulation of ownership, content of speech and categories of speech

Content: seven forbidden words, drug lyrics in music, “indecent” visuals, violence, anti-tobacco

Categories: quantity of commercials, “community ascertainment,” Fairness Doctrine, equal opportunity

Political and industry pressures; are “independent” media and agency possible? (Agency capture; sub-governments; FCC “independence” from Executive and Legislative branches; media reform movement)