The Decline and Fall of Broadcasters' Rights

A tortured reading of the First Amendment has allowed every street-corner crackpot and howling pressure group legal access to private broadcasting facilities.

On March 1, 1978, Seattle radio station KXA-AM dropped its popular two-hour program "KXA Two-Way." Only six months on the air, this listener phone-in program had included such guests as Governor Dixie Lee Ray and Seattle Mayor Charles Royer. Even when prominent public officials had been unavailable, however, the station's format had given an enthusiastic following an opportunity to express opinions on important issues.

It was not indifference to such issues that killed the program. This was underscored by some 400 letters KXA received from listeners in favor of, and only 70 against, keeping "KXA Two-Way" on the air.

What did kill it was a special-interest group, Classical Music Supporters (CMS). CMS alleged that KXA's "unique" format ("the only full-time classical music AM radio station north of San Francisco," according to CMS president Marguerite Sutherland) was being diluted by politics, religion, sports, and "garbage from the Mutual Network." This group threatened KXA's owners with a petition to deny renewal of their broadcasting license if they did not comply with CMS's demands, one of which was to reduce "the daily talk program to one hour from 11:00 a.m. to twelve noon." ("KXA Two-Way" had been on from eight to ten in the morning.) CMS also insisted "that all talk shows, commercials, announcements and news broadcasts, will be consistent with the character of KXA as a serious classical music station."

To avoid the financial burden of a prolonged legal confrontation, KXA's owners gave in. The agreement they signed became part of their license renewal application.

In April, however, the Federal Communications Commission advised both parties that it could not sanction the agreement, for it attempted "inflexibly to bind the licensee as to programming, an area where each licensee is required to maintain discretion and flexibility." KXA's license renewal was then delayed until late May, when the FCC accepted an amendment to the agreement stating that, the agreement notwithstanding, KXA would reserve the right "to alter its programming, including its format" to meet the needs, problems, and interests of the Seattle area.

A similar dispute in Alaska—where another pressure group has filed three petitions to deny on 13 stations—may last for years. Here again, broadcasters have had the majority of their audiences on their side. Most criticism has been aimed, instead, at Alaskans for Better Media (ABM), a coalition of environmental, native, and women's groups. A nonprofit corporation, ABM was formed "in an effort to involve citizens in helping to ensure that radio and television broadcasters meet their obligation to serve the public interest."

But in letters to the editor, many Alaskans made it clear that they neither wanted nor needed ABM'S "protection." Some Alaskans went even further, forming a group, Alaskans in Support of Alaskan Broadcasters, which was responsible for many of some 700 pieces of mail received by the FCC.

ABM nevertheless insists that it holds the "legal cards." The Alaska Advocate reported the statement of Pauline Utter, formerly chairman of ABM, "that whipping up local support for your position is a poor strategy compared to mounting an impressive legal and factual case in Washington, D.C." ABM's attorney, Harvey J. Shulman, executive director of Media Access Project in Washington, says that he "would be absolutely shocked if the [FCC] did not have a hearing."

ABM's complaints, according to Chairman Peg Tileston, fall into five main categories: inadequate news and public affairs programming, overcommercialization, misuse of public service announcements, employment discrimination, and inadequate ascertainment of community problems. To correct these alleged deficiencies, ABM demanded, among other things in their 33-page "proposal," a "Community Advisory Board" with members from "Native and Other Minority Organizations, Environmental Organizations, Consumer Organizations and Organizations of and for Youth."

FREE SPEECH FOR SOME

Citizen advisory boards are not new. During the early years of radio, up to about World War II, such groups were active across the country. But the demands of the newer groups, spawned from the puffed militancy of the so-called consumers' movement of the 1960s, have gone much further in a much shorter time. ABM's demands are a perfect example of these groups' goals and methods.

Alaskan broadcasters, according to ABM, have a "special obligation" to provide programming that "will focus on the present state of the Alaska environment, as well as the environmental ramifications of the various proposals that would further develop and industrialize the state." (Broadcasters also have a "special obligation" to women, Indians, and Eskimos.) Furthermore, a station should employ "an individual who is knowledgeable about and sensitive to the environmental needs of the State of Alaska" and who "will not, in the reasonable judgment of the Environment Committee, have a bias or proclivity antagonistic to the aims and philosophy of the environmental movement." (When asked what the "aims and philosophy of the environmental movement" are, Chairman Tileston would say only that ABM had not considered this question. Nor would she give her personal views.)

And if a broadcaster believes that this movement is inimical to his well-being? Why, that's too bad. His interests, his views, his livelihood are not a primary consideration; his job is merely to provide support for the movement. Anyway, if he did air "a significant viewpoint on a controversial issue of public importance"—on the environment or anything else—he would be required, by FCC regulations, to make his facilities and air time available to parties with contrasting views.

Such contrasting "free speech messages," as ABM has euphemistically labeled them, should "not be censored by the licensee because it disagrees with the viewpoint expressed." Characteristically, the word censored is here used incorrectly (since only a government can censor), but the meaning is clear: the station owner is to have no control over what he puts on the air.

ABM also demanded that stations hire according to race and sex, pay ABM's attorneys' fees, and "provide to ABM $7,500 to continue ABM'S effort of encouraging citizen involvement in the broadcast media." These and other ABM demands, according to an accurate appraisal by ABM's lawyer, are "concepts which have been implemented in many other states by small, medium and large licensees."

When Alaskan broadcasters refused to submit, ABM carried out its threat "to use every legitimate avenue at the FCC and the courts" to express its concern. ABM followed the pattern typical of dozens of pressure groups seeking access to the airwaves.

FREEDOM DENIED

What sort of political theory could give moral plausibility to such outrageous effrontery? During the congressional debates prior to the passage of the Communications Act of 1927, Congressman White of Maine declared "that the right of the public to service is superior to the right of any individual…the broadcasting privilege will not be a right of selfishness. It will rest upon an assurance of public interest to be served."

According to the Communications Act of 1934 (which changed minor details of the 1927 law), the radio frequency spectrum is owned by the public, and the broadcaster is merely a "proxy" or "fiduciary" who must act on behalf of his munificent benefactors. In theory and in practice, this means that a broadcaster's moral and constitutional right to express his own views, or to support only those principles with which he agrees, must be severely curbed. This was confirmed in the 1940 Mayflower case, in which freedom of expression by broadcasters, the FCC decided, is not in the public interest.

Nine years later, the FCC issued the "fairness doctrine" (added to section 315 of the Communications Act in 1959). While this appears to be a victory for broadcasters' First Amendment rights, since it permits broadcasters to editorialize, this comes only with the qualifier that a "reasonable opportunity" to air different views be given to spokesmen of "all responsible positions" on matters of "sufficient importance." The fairness doctrine further maintains that broadcasters have an "affirmative duty" to cover such issues. A broadcaster may air his own views, but since the public has a "right to diversity"—a "right to hear"—he must also air opinions with which he disagrees.

Thus, the intent and result of the fairness doctrine is to give priority to listeners and viewers, rather than broadcasters. This administrative edict gave every street-corner crackpot and every howling pressure group in the country the legal ammunition they needed to demand access to private broadcasting facilities. In 1969 the Supreme Court affirmed the doctrine in the Red Lion case, holding that it is the alleged First Amendment "right of the viewers and listeners, not the right of the broadcasters, which is paramount," thus dissipating any legal doubts that broadcast activists might have had.

Even before Red Lion, however, the court of appeals had extended the fairness doctrine to cover not only editorializing by licensees but also commercial advertisements for such products as cigarettes and gasoline. In one case, Banzhaff v. FCC (1968), the court upheld the FCC'S contention that a "significant amount of time" must be provided to rebut cigarette commercials. Chief Judge David L. Bazelon wrote that when one party has large financial resources and a "compelling economic interest" unmatched by its opponent, "we think the purpose of rugged debate is served, not hindered, by an attempt to redress the balance." Besides, he said, advertising "is not normally associated with any of the interests the First Amendment seeks to protect." (This issue was carried to its only logical conclusion with Public Law 91-222, passed in 1970, which banned cigarette commercials on radio and television.)

Editorial advertising, on the other hand, remains sacrosanct. As the court made clear in a 1971 case, if a broadcaster accepts advertising generally, he may not issue a flat ban on editorial advertising. This would infringe both the public's First Amendment "right to hear" and the "right" of those who would buy time to editorialize. The court here advised the FCC to "develop reasonable regulatory guidelines to deal with editorial advertising." But how, in the name of the First Amendment, asked Broadcasting (Aug. 30, 1971), can the government provide criteria for the acceptance of one opinion and the rejection of another?

THIS IS CENSORSHIP

Broadcast activists, before 1966, had comparatively little influence in the licensing of broadcasters. After the Act of 1934 was passed, the FCC permitted only those with "a legally protected interest or an injury which is direct and substantial" to intervene as third parties. The FCC had confined parties in interest to other licensees who claimed economic injury or signal interference. Listeners and viewers could do little more than write letters to the FCC'S Complaints Division. (This was—and is—damaging enough, considering the time, money, and trouble a letter of complaint can mean for a broadcaster.)

The Court of Appeals for the District of Columbia changed this in Office of Communication of the United Church of Christ v. FCC (1966), a case that involved citizen complaints against WLBT-TV in Jackson, Mississippi, alleging racial and religious discrimination, overcommercialization, and violation of the fairness doctrine. The court held that "responsible representatives" of the listening public may actively participate in a license renewal proceeding. (In 1969, this court stripped WLBT of its license.)

The court's ruling in Citizens Committee to Preserve the Voice of the Arts in Atlanta on WGKA v. FCC (1970) combined the landmark WLBT decision with yet another extension of the fairness doctrine: that the public's "right" to diversity in broadcasting permits citizens to intervene in a license transfer when it involves the loss of an entertainment format not otherwise available in the license area. In this case, the "unique" format was classical music; others have involved rock music and jazz.

In most of these cases, the FCC has opposed the court of appeals and broadcast activists, claiming that government interference with entertainment formats is both unconstitutional and beyond its statutory authority. Yet the differences between the court and the FCC are matters of detail, not of principle. Since both accept the public-interest standard, the trend that is evolving in the court's decisions is identical to the FCC's rules requiring broadcasters to air certain categories of programming and limiting the kinds (and amount) of advertising they may air. In any case, the only way a station can broadcast one kind of program is to forgo other kinds.

When required by the government, this is censorship. It changes nothing that the specific content of, say, public affairs programming is not dictated.

In every important case, the First Amendment has been corrupted into a weapon to use against those who furnish the time, effort, money, and facilities that make the broadcasting spectrum usable. (It is beside the point, in this context, that broadcasters operate coercive monopolies—in that others are not free to enter the industry. Under the present system—and although some support it—they have no alternative.)

Most regulatory laws, especially the antitrust laws, have been intentionally designed to throttle the productive ability of those best able or most willing to supply goods and services. This is done in the name of economic freedom. Playing the other end against individual rights in the middle, the act of 1934 goes a frightening step further. In the name of intellectual freedom, it stifles the ideas, views, and interests of those who, despite the government's restrictive economic policies, have been able to acquire the material means to express them.

DEREGULATION?

A bill introduced during the last session of Congress (and expected to be reintroduced in the new session) by Representatives Lionel van Deerlin and Louis Frey, Jr., attempts to change the relationship between government and broadcasters. There is no mention, for example, of broadcasters having to serve the "public interest, convenience, or necessity." Rather, they are to provide "services which are diverse, reliable, and efficient, and which are available at affordable rates."

Given contemporary political thought, however, even such an apparently solid, fact-oriented legal footing is likely to sink. This is emphasized by the bill's caveat that "regulation…is necessary, to the extent marketplace forces are deficient." Since a central tenet of the regulator mentality and modern economics is that "marketplace forces" are almost always "deficient," it is not likely that communications regulators will soon become unemployed. Under this bill, someone besides "marketplace forces" would have to decide when these "forces" are "deficient."

The singular importance of economic regulation of the industry under this bill is shown by section 440, which would restrict the number of stations a licensee may own, operate, or control. This section would also empower the proposed Communications Regulatory Commission to act "with regard to diversity of ownership of broadcasting stations and other communications media."

Nevertheless, some portions of the proposed new act offer significant benefits for broadcasters. They have commonly complained that the present license renewal period—three years—is too short for proper long-range planning. The new bill would, 10 years after its effective date, permit licenses to be granted to television stations for an indefinite period of time. For radio stations, the effective date would not be delayed.

Unfortunately, the bill also empowers the government to revoke a license or construction permit. If, now, a broadcaster cannot safely plan or invest beyond his license term of three years, he would be even less safe if he invested millions in an indefinite, government-controlled future. While outright revocation is today unusual, this bill would make it the primary means of regulation, a perpetual threat hanging over every dollar invested.

INTERVENTIONISM

Although the bill would leave activists ample room to maneuver (on the premise that "pure and perfect competition" does not exist in this industry), one of their favorite tools, the fairness doctrine, would be legally narrowed. Licensees would no longer be required to air controversial issues; they would merely have to treat such issues in an "equitable manner" when and if they covered them. (The bill does not state whether this would apply to allegedly controversial advertising.)

If a television station (radio station licensees are exempted) permitted a legally qualified political candidate to use his facilities, he would have to afford other candidates for that office an equal opportunity. (Exceptions to this rule: candidates for the offices of president, vice-president, senator, or "any other office for which statewide election is held.")

This section states further that the licensee would "have no control over the content or format of any material broadcast" by a political candidate. The outrage this provision could perpetrate was illustrated this past summer when J.B. Stoner, a "segregationist" candidate for the Democratic nomination for governor of Georgia, used the word nigger on political broadcasts. Licensees' hands were tied by section 315 of the 1934 Communications Act. Since they had granted time to other candidates they could not refuse him. Nor could they edit his material.

Another major flaw—a blatant and totally inexcusable contradiction—emerges where programming is concerned. While on the one hand forbidding the government "to censor or otherwise regulate the content of any transmission" over the airwaves, on the other hand, the bill would require licensees to air news, public affairs, and locally produced programming. Again, this is censorship.

Despite its authors' obvious reluctance to abandon interventionism, activists see the bill as a threat to their ideal of airwave control. They bristle at any hint that broadcasters' own ideas and interests might hold sway. This view was epitomized by former FCC commissioner Nicholas Johnson during the bill's first public hearing in July. Johnson, now chairman of National Citizens Committee for Broadcasting, lamented that, under the new bill, broadcasters' political coverage would be "as slanted and propagandistic as suits their own whim or economic interest" (Broadcasting, July 24, 1978).

Why should broadcasters not support some ideas and reject others? Why should they not pursue their own economic and ideological interests? By what right can they be forced to support those who would destroy them? The usual rationale for public "ownership" of the airwaves is that the number of broadcasting frequencies is limited and, therefore, "not available to all who may wish to use them," as Justice Frankfurter once put it (National Broadcasting Co. v. United States, 1943). This simply evades the fact that printing presses and newsprint—and skyscrapers, bars of soap, fertilizer, diamonds, toothbrushes, and every other object of value, from the most ordinary to the most sophisticated—are also limited, "not available to all who may wish to use them." (And what hypocrisy it is not to observe that in most major cities, the number of broadcasting stations far exceeds the number of daily newspapers.)

The only proper solution to broadcasting's many dilemmas—the only way to truly make broadcasting the political equal of the print media and of toothbrush manufacturers—is for the government to recognize frequencies as the private and exclusive property of those who will apply the knowledge and effort to develop and enhance their potentials. Unless and until this is done, the intellectual-cultural vitality of man's most powerful means of communication will continue to degenerate.

Winston Martin makes his residence in Seattle, Washington, where he works for a surveying-engineering firm.