Breaking Through Power: The Media

Harnessing Progressive Reform to 21st Century Media

Nicholas Johnson
May 24, 2016

Ralph Nader’s “Breaking Through Power Conference”
Day 2, “Breaking Through the Media”
Washington, D.C., May 23-26, 2016
Video of the 20-minute presentation of these remarks can be found here, with many thanks for the efforts of Gregory Johnson's ResourcesForLife.com. YouTube videos of Day 1, Day 2, Day 3, and Day 4 are also available. Here is the Web page providing information about the Conference program and speakers, and Ralph Nader's Web page.

My name is Nicholas Johnson, and I'm not running for anything.

What you see here is my old FCC uniform.

I would have come with the long hair, shaggy beard, and cowboy mustache, but there wasn't time to grow them back.

So I settled on this Bernie Sanders haircut instead.

Having known and worked with Ralph and his family for the past half-century, it is a great pleasure to be able to share this commemorating conference with him, you, and The Real News Network audience.

He’s asked that I say something about the origins and values of American broadcast regulation, the demise of that system, and the past efforts of media reformers – to which I will add some thoughts on the options open to us in this 21st Century.

Because I am used to speaking for entire semesters at a time, my challenge this morning is putting all of this into my allotted 20 minutes.

Here goes.

“Long ago in a galaxy far away,” while European countries were choosing government ownership of things like railroads and telephone systems, Americans chose private ownership – modestly restrained by government regulation.

And so it was with broadcasting.

Most countries went the way of the BBC – ultimately a non-profit, public corporation.

Its first leader, Lord Reith, set the BBC’s public service standard: programming representing “all that is best in every department of human knowledge, endeavor and achievement.” He created the equivalent of our Fairness Doctrine, and a BBC as independent of commerce as of government – funding would come directly from listeners’ fees. Japan’s NHK, Sweden’s Sveriges Radio, and other countries followed this model.

Today's Corporation for Public Broadcasting is the American version.

In the 1920s, as the sale of radio receivers accelerated to 100 million, so did the number of stations increase. Their signals’ interference made intelligible reception difficult to impossible. As has so often been the case, it was the broadcasters who came to the government for regulatory relief. Government licensing was seen as a solution to chaos.

Of course, an added benefit was the elimination of competition.

Then Secretary of Commerce Herbert Hoover responded to their request by calling a series of Radio Conferences. From them came the recommendations that ultimately became the Radio Act of 1927 and the Communications Act of 1934.

It was the usual American compromise between the ideology of private ownership and the pragmatism of regulation through licensing. But the values at the foundation of the Act, shared by broadcasters, government and public alike, were very similar to those of Lord Reith.

Lord Reith’s “public service” standard became the Commission’s standard for the granting, renewal, or revocation of licenses – that radio programming serve “the public interest.”

Even broadcasters tended to agree with Secretary Hoover’s comment, echoing Lord Reith’s judgment, when Hoover said: "It is inconceivable that we should allow so great a possibility for service [for news, entertainment, and education] to be drowned in advertising chatter." [at n. 17]

Lord Reith’s preference for public over private ownership was reflected in the House floor debate about the Act. As Congressman Luther Johnson warned his colleagues, “American thought and . . . politics will be . . . at the mercy of those who operate these stations. . . . [If] placed in the hands of . . . a single selfish group . . . then woe be to those who dare to differ with them.” [at n. 31]

Ultimately, the language of the Act began, “It is the purpose of this Act . . . to maintain the control of the United States over all the channels of radio transmission; and to provide for the use of such channels, but not the ownership thereof . . ..”

Without an FCC license a studio, transmitter, and antenna tower had little more than scrap value. With that license they were worth millions.

Moreover, the FCC told the licensee where it could build, set its minimum and maximum hours of operation, its transmitter’s power, and direction of its signal. There were limits on how many licenses one could hold, maximums on advertising, and required minimums of educational and cultural programming, news, public affairs, and public service announcements. The Commission’s 1946 “Blue Book” provided even greater detail.

Thus, FCC licensees were owners in name only – with little more discretion than government employees or contractors might have when using the public’s airwaves; sort of like fast food or motel franchisees.

When I arrived at the Commission a half-century ago, the FCC was supposedly still regulating broadcasters according to standards at least similar to those in the 1920s and 1930s.

But in Washington, like most industries, broadcasting had its own sub-government [pp. 16-19, nn. 49-59] – dominant corporations, their lobbyists, a trade association, trade press, eating club, agency employees, legislators, their staff, and a bar association for communication lawyers – all of whose futures and fortunes turned on successfully protecting their circled wagons.

Moreover, the money in this politics flowed upstream. Other industries had to pay to play [pp. 19-24, nn. 60-67]; they gave so-called campaign contributions to seek favor with elected officials. The reverse was true for the broadcasting industry. Elected officials gave most of their campaign contributions to the broadcasters! And the time and attention the broadcasters were selling to politicians was something they could also give for free.

So if the broadcasters were not successful in winning over the FCC’s commissioners and staff with private chats, free meals, receptions, golfing outings, and the prospects of future employment, they could always get what they wanted, or prevent what they feared, by going to their friends on Capitol Hill.

As a result, I discovered, no matter how outrageous a broadcaster’s performance might have been, the likelihood of a license not being renewed was so rare as to be indistinguishable from “never.” Rules were adopted, and then waived. Congressman Luther Johnson’s warnings about private power had been long since forgotten, as merger after merger was approved.

That, and more, was what motivated me to write some 400 separate opinions during my term. Charged with unfairly picking only the worst cases, I co-authored a Yale Law Journal article titled, courtesy of the Beatles, “A Day in the Life.” In it we itemized an entire week’s agenda, selected at random, and demonstrated how every decision that week left much to be desired.

My term coincided with a citizen activist period in American history – Ralph’s “Nader’s Raiders” consumer organizing, anti-war groups’ protests, civil rights legislation, Black Power demands, the women’s movement, protest songs, and “The Smothers Brothers Comedy Hour.”

In such times it was inevitable that failures of the media, as well as the Commission and the Congress, would ultimately lead to the creation of a media reform movement as well. As I put it at the time to anyone who would listen, “Whatever is your first priority, your second priority must be media reform.”

It took a variety of forms. Al Kramer’s Citizens Communications Center provided the legal support for hundreds of media reform groups in communities across the country. Stations’ license renewals were challenged for failure to serve their local communities, or discriminatory employment practices. Some groups wanted to save classical music stations. Others created community, or even illegal pirate radio stations.

Video portapaks, the predecessor of today’s ubiquitous smartphone video, led to the interest in video art, guerrilla television, video activism and what became cable television’s public access channels.

Foundations and donors were willing to provide at least minimal financial support for these efforts. And because the uprising had kind of caught the media establishment off guard, there were a few years of media reform Camelot.

Following this, as at least some of you have lived through, the swamp waters returned. Many in the establishment made a sharp right turn to follow Grover Norquist. As he put it, “I'm not in favor of abolishing the government. I just want to shrink it down to the size where we can drown it in the bathtub."

Drown it they did.

At the FCC this took the form of what was variously called “re-regulation” or more accurately “de-regulation.” License terms were lengthened. Restrictions on maximum station ownership were reduced to the point of non-existence. The Commission would not even acknowledge that a license renewal challenge had been filed, let alone address it. Seldom if ever did a merger fail to meet the commissioners' definition of “the public interest.”

As the fickle foundations focused on a new squirrel and lost interest, media reform organizations lost their funding. The courts lost their appeal. The Congress and Commission lost their sense of hearing.

Which brings us to this day in May of 2016.

What are we to make of the Tea Party, Occupy movement, and the millions of aware and angry Americans following Donald Trump and Bernie Sanders? Are we on the cusp of another burst of media reform revolution, enthusiasm and possibility?

Using the name of our day at this four-day conference, what can we do to “break through the media”?

It would be nice if we could wrap up today with an easily-remembered list of “five things you can do to improve the media!” But it’s not so simple. There are even more than five categories of things progressive activists can do before we start listing specific tasks – let alone trying to reinvigorate the FCC.

Here are a few, with illustrative examples.

Destination. Let’s start with the obvious. What’s your goal? How would you know if you or your organization were ever “successful”? As the old line has it, “If you don’t know where you’re going the odds are very slim you’ll ever get there.”

In what specific ways do you wish “the media” were different – and why? Are you trying to increase contributions, or members, for your local organization, and think positive column inches in the paper will help? Or are you trying to improve our political campaigns and the public officials they produce? And your goal is to raise the entire American electorate’s interest in articles and programming about the daily diet of policy wonks.

Opportunity. The lack of a legal right does not remove all opportunity. The Supreme Court has given media owners legal control of content. [at n. 24] But as we’ve recently observed, one can even win the presidential nomination of a major American political party without paying for broadcast time or newspaper space.

Progressive causes do not always do all they could to promote their efforts with public radio and television.

Even commercial media offer us opportunities with op ed columns and letters to the editor in newspapers, guest appearances on television, calls to radio talk shows, developing relationships with editors, producers, journalists and on-air personalities, making use of free kiosks, store windows, and bulletin boards.

Education. There’s something to be said for the suggestion, “if you really want to improve the quality of American media, start by spending more public money on K-12 and higher education” – specifically, in our case, on media literacy. If the media consumer can’t tell the difference between the junk news in ABC’s evening program and the truly significant there’s little more we can do.

Media. What do we mean by “media”? From the 1920s through the 1960s CBS and NBC were the dominant networks. ABC was said to make it only “a two-and-a-half network economy.” Media reformers wanted more diversity. Well, we got it – hundreds of cable channels, thousands of smart phone apps, billions of Internet users and Web pages, Facebook and Twitter accounts.

The new social media have proven their worth to reformers, from the Arab Spring to the 2016 presidential campaign, and offer constantly evolving applications to all of us.

They've also required a re-definition of “journalist” – should it include everybody with a Web page, blog, email list, Facebook, YouTube or Twitter account?

Even more significant is that this increased diversity and quantity of communication brought with it a demise of the wealthy newspapers that formerly provided the electronic media with content.

TV no longer offers a 21st Century version of your grandparents’ Walter Cronkite, the most trusted American. It no longer provides a huge swath of the citizenry a shared body of consensus-building quality journalism each evening.

And the resulting political polarization has paralyzed the Congress and prevented compromise. According to a recent TED talk, it’s even reprogrammed our brains.

Alternatives. Are foundations and nonprofits a part of the answer? The Iowa Center for Public Affairs Journalism is filling some of the void in my home state. Created and run by Lyle Muller, a quality former editor of a major Iowa paper, Iowa Watch is making investigative pieces available to Iowa papers.

What can we do to encourage our fellow citizens to include within their volunteer activities the possibility of studying, following, and then writing up the work of local institutions no longer covered by a beat reporter – say, a zoning board, county government, local hospital, major corporation, or university?

Regulation. It’s unlikely we’ll soon return to the micromanaging regulation of broadcasters of the 1920s through 1950s.

Nor would it make as much difference today as it did then were we to do so. An increasing source of Americans’ audio and video consumption today comes via the Internet, from Web pages, podcasts, YouTube, Netflix, Amazon, and independent cable programming producers. But that doesn't mean the old media are devoid of influence.

The FCC and Congress are still potential forces worth encouraging to support our efforts – as we've attempted, for example, with maintaining Network Neutrality.

What we do to use and strengthen the Freedom of Information Act, or whistle-blower protections, are also a form of government support of journalism.

I might even offer what Donald Trump would call “suggestions” that we consider reinstating a modified Fairness Doctrine – at least as a shared value – and conceptualize an antitrust principle regarding media mergers that goes beyond the economic marketplace to the “marketplace of ideas.”

Pressure. Even without the force of government, pressure from private “regulation” of a sort can have its impact.

Here are five examples.

(1) So far as I know the only time the levels of TV violence were reduced was as a result of the 1970s efforts by the National Citizens Committee for Broadcasting to identify and publicize the advertisers supporting the most violent programs.

(2) Project Censored reveals annually the ten most significant stories that failed to receive adequate presentation by mainstream media. FAIR and the journalism reviews provide continual oversight of media performance.

(3) For 41 years the Minnesota News Council received and publicized citizens’ grievances regarding the media.

(4) The academy can contribute much more than it has in terms of professors’ scholarship, seminars, and doctoral dissertations. More of our 15,000 school districts could give their students the tools of media literacy.

(5) And of course we'll all want to join Ralph's latest venture in breaking through media power, called simply “Voices.”

There’s much more to say, but no more time to say it. So I thank you for your attention, and very much look forward to the rest of the presentations at this historic conference.

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