Preface and précis: This was the first 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 strictly limited to one hour 40 minutes, involved at least three participants in addition to Johnson, required additional time for English-to-Japanese translation, and was structured to leave 30-40 minutes for discussion. Thus, Johnson was requested to limit his presentation to 10 minutes (without translation), projected to require 15 minutes with translation, which is the reason for the brevity of this text.

The event, and this lecture, were predicated on the prior proposal by the then-newly elected Democratic Party of Japan to create a "Japanese FCC," modeled on the one in the United States. The thinking behind the proposal seemed to be that it is inconsistent with the Japanese commitment to "free speech," guaranteed in its Constitution, for the media -- with its role as a check on the government -- to be regulated by that government (in the form of the Ministry of Interior and Communication). Thus, it was proposed that many of the Ministry's functions be transferred to an independent regulatory commission.

Given this background, and the inappropriateness of an American presuming to tell the Japanese government precisely what it ought to do, 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.

(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).

Thank you very much for the honor of this invitation to spend some time with you.

What brings us together today is the DPJ’s proposal 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. Would a Japanese model of the U.S. FCC – an “independent regulatory commission” – be better than the Ministry?

There is much that we Americans can learn from you about the role and regulation of the media. Over the years I have always benefitted from my trips to Japan.

But there is little that an American former FCC commissioner can provide you as “advice.” How Japan should regulate its media is a challenge that can only be resolved by you: representatives of Japanese universities, media, ministries, and the Diet.

Indeed, as Professor Uozumi has explained in his great work, Japan has already tried an American-style FCC, in 1950.  The government abolished it two years later.

All I can do with my 15 minutes today is share a sampling of my experience with, and opinions about, how the United States has identified and resolved the questions of media power. If you want more, I have written for this occasion a much longer English-language draft with references, posted on my Web page.

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, even our hair styles, clothing fashions, and more.

Today that media content is not limited to hard copy newspapers and broadcasting stations. It may come from the Internet to a laptop, handheld computer, or smart phone. It may be on CDs, DVDs or a videogame. However, radio and TV are still very much with us.

The media also have an enormous impact on politics, public opinion and governing: the ideologies information and opinions we have, the legislation that can be proposed and adopted, and what citizens think about the elected officials for whom they can vote.

And yet reform does not come easily; because, just as fish are relatively unconscious of the water through which they swim, so are Americans of all ages largely unconscious of the media environment through which they swim – or drown.

The first question is, “How much FCC do you want?” The DPJ’s rationale for its proposal seemed to be grounded in media regulation. Therefore, I have concentrated on that – even though it is only about 10 percent of the FCC’s staff and budget. My American colleague, Dr. Michael Marcus, addresses some of the agency’s many other functions.
 
Is media regulation, as some contend, “a solution in search of a problem”? I do not think so. Something happens to American media when it is a for-profit business, rather than owned and operated as a community service – such as public schools, libraries, and museums. And today’s corporations emphasize not just profit, but their stock price – which is driven by Wall Street’s demands for ever-increasing profits.

Unlike Japan and Great Britain, which began with non-commercial, public media (the NHK and BBC), the U.S. got it backwards. Fearful of anything that might be called socialism, we put radio in the hands of profit-seeking entrepreneurs, with the hope we could regulate them into providing public service. Today such beliefs are, indeed, the triumph of hope over experience.

The FCC is located in the midst of a Washington awash with congressional campaign contributions, lobbying of legislators and FCC commissioners, and an ideological belief since the late 1970s that self-regulation, or marketplace regulation, is better than government regulation. As President Bush’s adviser Grover Norquist said, “I don't want to abolish government. I simply want to reduce it to the size where I can drag it into the bathroom and drown it in the bathtub.” At the FCC, this philosophy has led to pollution of the airwaves just as, at the Minerals Management Service, it produced BP’s oil pollution of the Gulf of Mexico.

Nations’ cultures, and their political and economic ideologies, differ. Because of the commendable resources of the Japanese people, you may be able to accomplish with your own Japanese FCC what Americans have been unable to do with theirs.

Here is some history of U.S. efforts to regulate broadcasting from the time of the Radio Act of 1927 and Radio Commission, through the Communications Act of 1934 and FCC, up to the present day.

For our purposes, there are three categories of FCC regulation of media: ownership standards; specific content – words that are either required, or forbidden; and processes for dealing with non-content-specific categories of speech.

In the 1920s and before, ownership of radio stations was in the hands of amateur radio hobbyists, and then small town, family operated AM stations. Most broadcasters owned only one. The categories of ownership concerns, spelled out in the “Media Barons” article, have been many. Multiple station ownership necessarily reduces diversity of potentially available points of view. Joint ownership of one or more newspapers and stations in a community, or region of the country, creates excessive political power in the owner. Slanted news from a conglomerate’s media subsidiary can boost the parent’s profits. When a single corporation controls book publishing, movie studios, TV networks, magazines and newspapers it further reduces cross-media competition and diversity. Unfortunately, as the years passed, and deregulation took over, single station family ownership gave way to ever-increasing concentration of media power into fewer and fewer hands.

Examples of specific content regulation are (a) the requirements that stations reveal their call letters at designated times, and the names of those paying for commercials, and (b) the prohibition of the broadcast of seven specified words, or what is found to be “indecent” television programming.

Examples of non-content-specific categories of regulation are in the FCC’s 1946 “Blue Book” of broadcasters’ responsibilities: the broadcast of non-sponsored “sustaining programming,” locally produced programs, discussion of public issues, and reduced numbers of commercials. Others include the political and public issue regulations: candidates’ rights to an “equal opportunity,” federal candidates’ rights to buy reasonable access, and the right to answer personal attacks. The Fairness Doctrine (now repealed) required that stations cover “controversial issues of public importance” and in doing so provide a range of views. Finally, there were requirements for ascertaining, and then programming about, local issues, and providing children’s programs.

There is an inherent internal conflict once for-profit corporations control the media. As they maximize profits, they minimize public service. The audience for “low” programming earns the broadcaster more advertising dollars than educational, informational or cultural programming.

“Agency capture” by the industries they are supposed to regulate occurs for a variety of reasons. “Sub-governments” emerge in which all major stakeholders participate and tend to agree. The “revolving door” creates agency administrators and employees from inside the industry to which they later return. There is little incentive for tough regulation. Industry representatives provide campaign contributions to legislators, and lobby them and White House staff. Thus, even if the FCC were to become an effective regulator, it would confront the industry’s countervailing force from elsewhere.

Regulation of the excesses of commercial mass media in a democratic society, at least in the United States, is far from perfect – whether done by an “independent regulatory commission” or as part of one of the President’s cabinet departments.

What is the answer for America? My preference would be non-commercial public broadcasting, with opportunities for as many individuals and institutions as possible, including rules requiring access for all citizens. But that horse has not only left the barn, it never was in the barn – not in America.

Open access and net neutrality was the way we originally designed and operated the Internet. Today, even Internet free speech is beginning to be closed off by the forces of commerce.

Clearly, America’s efforts to regulate commercial broadcasting have not created utopia. But what are our alternatives? As Britain’s Prime Minister Winston Churchill famously said of democracy in 1947, “democracy is the worst form of government except all those other forms that have been tried from time to time.”

Similarly, the U.S. FCC’s regulation of commercial media may be our “least worst alternative.”

DPJ proposed a “Japanese FCC”

U.S. can gain insights and ideas from Japanese experience; and possibly Japan from U.S.

Americans cannot offer “advice;” just share U.S. experience

A United States model may not work for Japan – as U.S. and Japan discovered in 1950-52

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

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

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

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

The inherent conflict of interest when profit-maximizing corporations control mass media

Political and industry pressures; is a truly “independent” agency possible?

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

Agency capture and sub-governments

Difficulties in maintaining FCC “independence” (e.g., appointments, budgets, lobbying)

Erosion of regulatory standards by U.S. FCC under pressure from industry, Congress