Let the People Own the Airwaves; M. D. Barger

speech before the annual convention of the National Associa tion of Broadcasters in Washington, D. C., May 9, 1961. THERE COMES A TIME in every man',s life when his curi osity gets the better of his laziness. Whether or not he really wants to, he feels compelled to find out certain things for himself. The answers are often both rewarding and surprising, and it's good to do one's own searching. For personal reasons, I heartily recommend this busi ness of letting curiosity get out of hand. It eventually caused me to look into the "why" and "when" and "what" of federal control of the broadcasting industry. Starting with the idea that our chief concern should be to protect freedom of speech at all costs, I've become convinced that this freedom has been threatened or cur283 284 MELVIN D. BARGER tailed /by the FCC in the past, and is under heavy fire to day. I now suspect that the role of the FCC and the rights of speech and expression granted in the First Amendment are almost "mutually exclusive" things you can have either one, but not both together. I have concluded that if either free speech or the FCC ought to be curtailed, thoughtful men should cast their vote in favor of curtailing the powers of the FCC.

I had been mildly curious for years about what seemed to be an odd contradiction. Why wasn't the broadcasting industry-first radio, and then television-fully entitled to the same freedom traditionally secured by the Constitu tion for newspapers? Why had we talked so grandly about freedom of speech and expression, and yet im posed a government agency such as the Federal Commu nications Commission upon the broadcasting industry? Of course, I had no real proof that some kind of censor ship went on. But over the years I developed a suspicion that a tight, restrictive federal control of the industry did exist. Still, I was too lazy to look into the matter for myself and to learn how this had happened in a country that has always treasured free speech. I tried to find the an swers the easy way in casual conversations with radio announcers and station owners whom I knew. It turned out that many of them had been just as lazy as 1. The most frequent answer I got was that "complete freedom of expression is a great thing for newspapers and street corner orators, but in broadcasting the government has to control the airwaves because of the limited number LET THE PEOPLE OWN THE AIRWAVES 285 of frequencies." Intimidated by this hint of mysterious technical problems, I dropped the subject. I remained lazy-and ignorant.

No Ringing Rebuttal Yet, things kept happening to keep me from forgetting the subject altogether. In a national magazine with wide distribution, my wife and I read an article by the TV critic, John Crosby, in which he recommended what seemed to be a virtual government take-overo£ the tele vision industry (to cure its ills).1 I read the complete "vast wasteland" speech of Newton F. Minow-the one that has brought this whole issue into sharp focus as never before-and waited for somebody to rise up and make a ringing rebuttal on the grounds that Minow was openly threatening free speech. If a ringing rebuttal came, I missed it, but later on I did read newspaper edi torials agreeing with Minow's objectives and a four-part series in The Saturday Evening Post by John Bartlow Martin in which, like Crosby, he summarized by calling for more of the heavy hand of government. 2 Clearly, the television industry was getting some rough treatment from people who should have been its allies.

In times past, newspapers have risen up like one man to 1 John Crosby, "What You Can Do To Make Poor TV Better," Ladies' Hom-e Journal, November, 1960, p. 74. 2 John Bartlow Martin, "Television USA: Wasteland or Won derland," The Saturday Evening Post, 4-part series in weekly in stallments beginning October 21, 1961, p. 19.

286 MELVIN D. BARGER parry any attempts to censor even the most dubious phases of publishing, such as smut books, horror "comic" books, subversive literature, and other ghastly extremes. The principle has been that any attack on one part of publishing can set a precedent for eventual control of its other parts. This principle has even compelled edi tors to defend the rights of publications they actually loathed. Hence, it was probably the peculiar and incon sistent attitude of many newspapers (and persons of influence) toward the Minow challenge which caused prominent communications attorney, W. Theodore Pier son, to write: "... it is impossible to understand why journalistic craftsmen in nonbroadcast media either re main silent or applaud the cultural dictators when every constitutional justification for broadcast censorship can have similar counterparts with respect to nonbroadcast media."s What Mr. Pierson was saying, in plain English, is that when a lion is in the streets, it's the duty of every able bodied man to do something about it-if only for reasons of pure self-interest. His words were a rebuke to Messrs.

Crosby and Martin and the hundreds of others who have moralized about the misuse of the airwaves. Yet, voices of great influence have applauded Minow, and we hear much pious theorizing about how all of us can be ele vated and uplifted by a "truly responsible broadcasting industry." One thing was certain: the television industry had 3 W. Theodore Pierson, "Sees 'Electronic Press' Freedom Periled by Eggheads, Crackpots," The Detroit News, January 7, 1962.

LET THE PEOPLE OWN THE AIRWAVES 287 somehow acquired a bad press-and some of the press had advocated strong doses of government intervention as the remedy for what they thought to be wrong with television. Their reasoning was that the "people own the airwaves; hence, broadcasting isn't free in the same sense that publishing is." There is also the argument that TV is a very powerful medium, and shouldn't be left in "pri vate hands for private gain." The first argument is the more critical one, for it is the one that is presented to the public. The second argument-that TV is a particu larly powerful medium-works just as well for those of us who deplore government control of communications. It is, we can conclude, the fiction of the "people's own ership" of the airwaves that gives government its stra tegic hold on the licensed broadcasting industry. An Insoluble Dilemma? Now I did become extremely curious, for it appeared that free speech had indeed been forced into a dilemma simply by the physical limitation in the airwaves. And it remains an insoluble dilemma so long as one does not challenge the basic wisdom in "governmental owner ship." I feel that this whole matter of "government ownership" should be challenged.

I have four points to make-four opinions to offer. They run contrary to most of what is said and heard about the plight of the broadcasting industry. But if the past is any gauge of the future, they simply must be true: 288 MELVIN D. BARGER 1. The revocable, renewable FCC-granted license has been an effective censorship device and will continue to be so regardless of who is serving on the commission. 2. Attempts to dictate to the broadcasting industry will tend to increase in the future unless the licensing regulations are relaxed or abolished. 3. A better broadcasting industry, truly serving the "public interest" and offering a wide fare for viewers, can only come about through less control-never through more. 4. The "people" do not really own the airwaves now, but would actually be able to exercise more direct con trol over the industry if the present licensing system were to be abandoned.

Licensing the Press The licensing system has always been a means of con trol, and the feudal governments of old quickly imposed licensing restrictions on the printing industry in its earliest days. The practice of licensing the press was not abandoned in England until 1694. It had already be come rooted in the colonies, and the press censorship of one kind or another was carried on without apology. Journalists like to point to the case of John Peter Zen ger as one of the significant milestones in the battle for press freedom. In this famous case, back in those colonial days of 1734, Zenger was prosecuted for publishing harsh criticisms of the governor of New York and his admin istration. Freedom finally won the day when a jury acLET THE PEOPLE OWN THE AIRWAVES 289 quitted Zenger, whose plea was that what he had printed was true, and thus not libelous!' From this early beginning, press freedom in America finally made its way to the First Amendment of the U. S.

Constitution. It .became a national tradition. With re markable fidelity to principle, the Supreme Court has time after time destroyed laws which threatened press freedom. A Minnesota law which tried to suppress "ma licious, scandalous and defamatory" publications was struck down in 1931.5 A Louisiana law which sought to impose a discriminatory licensing tax on newspapers was invalidated in 1936.6 And in 1938 the High Court ruled that it was censorship of the press to enforce a munici pal ordinance requiring a permit from a city manager in order to distribute circulars and handbills. The per mit was actually a form of licensing, and in this decision the Court obviously made the tacit assumption that li censing and censorship go hand-in-hand. 7 The Court has also had something to say about the attempts of federal agencies to censor the press. In the famous case of Hannegan v. Esquire (Magazine), the Court ruled that the Postmaster General's authority over second-class mailing privileges could not be used to prohibit the mailing of a publication deemed to be salacious, and so forth. 8 4 William L. Chenery, Freedom of the Press (New York: Har· court, Brace and Company, 1955).

IS Near v. Minnesota, 283 U.S. 697, (1931). 6 Grosjean v. American Press Co., 297 U.S. 233, (1936). 'l Lovell v. Griffin, 303 U.S. 444, (1938). 8 Hannegan v. Esquire, 327 U.S. 146, (1946).

290 MELVIN D. BARGER There is everything to applaud in these decisions, re gardless of how one might have felt about the publica tions or persons involved. The decisions upheld the principle of a free press, which goes hand-in-hand with a free country. As Justice George Sutherland said in the Louisiana decision: "A free press stands as one of the great interpreters between government and the people. To allow it to be fettered is to fetter ourselves."9 The result of our press freedom has been an unbeliev able torrent of publishing covering every facet of life and thought. Much of it is bad, but much of it is also very good. The same laws that protect the publishing of frivolous comic books also guard the journals and books carrying the great ideas that test the foundations of society. To get the wheat, we endure the chaff, for no body has shown us how to destroy the one and still pre serve the other.

Yet this wonderful shield of the First· Amendment, so jealously guarding printed matter and speech in open air parks, becomes beclouded when the issue of the air waves is discussed. The whole· idea of licensing commu nications media tends to contradict American principles, despite the intended safeguard of Section 326 in the 1934 Communications Act: Nothing in this Act shall be understood or construed to give the Commission the power of censorship over the radio com munications or signals transmitted by any radio station and no regulation or condition shall· be promulgated or fixed by 9 Quoted in Encyclopedia Americana, Volume 22, 1961 (Freedom of the Press).

LET THE PEOPLE OWN THE AIRWAVES 291 the Commission which shall interfere with the right of free speech by means of radio communication. to Yet this well-intentioned (and perhaps impossible) re straint on. FCC powers did not place the broadcasting industry in the same unfettered position as the publish ing world. The FCC had the right to review the general performance of stations and to evaluate their perform ance in the "public interest." This remained as a poten tial means of indirect censorship. T he Mayflower Decision In 1940 the FCC struck at the very roots of free speech when it issued the famous Mayflower decision against radio station WAAB, which had openly editorialized in favor of a political point of view. The Mayflower Broad casting Corporation, which owned the station, had to amend its policies in order to keep its license.!l This de cision obviously had a coercive effect on all other license holders, and obviously forced stations to travel a neu tralist political line as much as possible. The Mayflower decision was modified in 1949 to permit editorializing if both sides of an issue were presented. This is as if a magazine or a newspaper had to make all of its editorials of the "pro-and-con" variety.

An even more dubious venture was the development of the FCC Blue Book in 1946. It was an attempt to de fine the public service responsibility of licensees, and it 10 Walter B. Emery, Broadcasting and Government (Lansing: Michigan State University Press, 1961). 11 Chenery, op. cit.

292 MELVIN D. BARGER triggered congressional charges that the FCC was censor ing and controlling programs. 12 The net effect of this FCC posture has been to place the industry in the position of always staying on the "safe side." Freedom of speech clearly implies a right to express views that are contrary to our own, or to the prevailing political climate. If we define free speech simply as permitting people to say what we want them to say, we would then have to conclude that the Nazis and the communists granted free speech: one was always free in Nazi Germany or Russia to praise the regime, and it was only contrary viewpoints that were punished. Thus, by granting station owners only the right to ex press neutralist or middle-of-the-road editorial view points, the FCC has probably robbed the industry of the vigor and individualism which Minow complains it now lacks. Licensing is an unavoidable form of censorship; the FCC commissioners probably will continue to be censors whether or not they wish to be in that role. It is the old story: a federal agency given broad powers is actually forced to begin regulating and controlling in order to do its job properly. Far from being the officious meddler that many think him to be, Newton Minow may actually be one of the first FCC chairmen to have tried to do at least a thorough job. It is our fault-not his-if the job he's trying to do collides with our principles. We should change this by altering the purpose of the job, not by 12 E'mery, Ope cit.

LET THE PEOPLE OWN THE AIRWAVES 293 attacking or criticizing the man who occupies it for the moment. As we have already seen, the Supreme Court ruled ex plicitly against licensing of the press. It was flatly held to be censorship. If this be true in the case of publish ing, it must also be true in the case of broadcast media. The fallacy in the Communications Act was that it for bade censorship on the one hand, and yet on the other hand supplied the means of doing it. Increasing Centralism My second point is that the government's pressure to dictate to the broadcasting industry-and perhaps to the press through indirect means-can be expected to be come increasingly bolder in the future. We would do well to remember David Hume's wise observation: "It is seldom that liberty of any kind is lost all at once."13 In the case of the FCC, it could not be that anyone FCC chairman could in his administration gain absolutely dictatorial powers. What happens this year or next may not seem especially offensive. But we live in a time when the pressures for centralism in the U. S. seem to be gain ing new force at an accelerating tempo. Federal control of broadcasting is fully in accord with centralist think ing, as is federal control of everything else.

Characteristically, the influential centralists at the pub lic level are mostly men of good will who advocate their 13 Quoted on frontispiece of paperback edition, The Road to Serfdom (Chicago: The UniversIty of Chicago Press, 1960).

294 MELVIN D. BARGER doctrines because they believe they are best. In their view, centralism is even the moral thing; "the public good versus private greed," "production for need rather than production for profit" are some of their choice say ings. Mr. Minow is also a man of good will and his words ring with high moral purpose. Yet it is the duty of the rest of us to see clearly what must be the inevita ble outcome. Each decision or precedent that paves the way toward centralism paves the way for more of the same in the future, since one action is used to justify a similar but more drastic one at a later time. Thus, Mr. Minow's attempt to strengthen the hand of the FCC is a dangerous thing, if indeed we regard federal control of communications to be dangerous. Attacks on Television Are Part of a Campaign We must also remember that many of the attacks on television have been the kind of attacks made right along at business organizations. They are simply one part of a massive campaign to thrust the government into every activity. Minow blasted the industry for the prolifera tion of commercials exhorting and cajoling people to buy things. The remarks carried the subtle implica tion that it is wrong to try to persuade people to buy things, when in fact successful salesmanship has again and again been shown to be a necessary phase of the dis tribution function. Minow also made pointed references to the industry's profits, which have been enormous in recent years, but once again there was the implication LET THE PEOPLE OWN THE AIRWAVES 295 that profits are wrong or have somehow been extorted from the public in an underhanded manner.

The attacks on programming are not unlike the fond ness left-leaning writers have shown in recent years for attacking fickle things like "automobile tailfins" and "hula hoops." There seems to be a familiar sound in this idea of running "public service" programs rather than "popular" programs; isn't it a little like the notion that funds should be diverted from the private sector to the public sector? Once they have established their power, it is hard to break, for the cultural dictator is certain he's right. The egotism of these powerful, entrenched centralists is a frightful thing to behold. In Britain the British Broad casting Company held a tight monopoly of the radio industry, and, when it developed, television. One of the bureaucrats who headed the BBC and hence held im mense power was J. C. W. Reith, whose replies to criti cism are a good indication of how he felt about the citi zen's intelligence and judgment: "It is occasionally indicated to us that we are apparently setting out to give the public what we think they need and not what they want, but few know what they want, and very few what they need."

And another: "It is becoming obvious that, however desirable central con trol may be for the reasons indicated, it is essentially ethical, in order that one general policy may be maintained through out the country and definite standards maintained." (Italics mine.) Mr. Reith's influence was always available in Britain 296 MELVIN D. BARGER to protect the monopoly of broadcasting, and inciden tally, to maintain and enlarge Mr. Reith's own sphere of influence as director.14: A. Better Broadcasting Industry My third point is that the stated objectives of in creased FCC jurisdiction-that is, improved program ming in the "public interest" -probably will continue to elude us under the present system. The reason is simply that the market is forcibly restrained, and new ideas for increasing or varying broadcasting services are thwarted in the FCC hearing rooms. In fact, the entire broadcast ing industry has some of the characteristics of a govern ment-protected cartel, with broadcasters protesting FCC discipline and yet accepting the inevitable market pro tection the exclusive license provides. The very advan tages this system is supposed to achieve-the offering of fine, high-level public service programs-has, in fact, been denied us. I don't dare suggest that the programs now featured would disappear if restrictions were re moved~my chief hope is only that the free market would have a tendency to serve all audiences.

Yet, it would be a sad day for the cause of liberty if the main remaining arguments favoring freedom be came simply those showing it to be more efficient. The major issue involved here should be a free communica tions system versus a controlled one. Whether radio and 14 Wilfred Altman, et al., TV: from Monopoly to Co.mpetition, Institute of Economic Affairs, London, 1961.

LET THE PEOPLE OWN THE AIRWAVES 297 television are good or bad should concern us little. Yet it seems that many people have drifted into a state of mind that asks only: "Which system will give us the best television programs?" rather than "Which system will keep our communications free?" It would be better if they chose to defend the principle of free expression, but in any case it should be made clear that our best hope of improving broadcasting lies in liberating the entire system. "Improving" broadcasting ought to mean only the creating of conditions that will tend to create the sta tions and programs to serve the millions who are sup posed to have been ignored when TV networks devel oped shows for the "lowest common denominator." A characteristic of the free market is that "demand" seeks to bring "supply" into existence, if the thing is at all pos sible. As we look about at all other industries, we can easily see that all businesses offer tremendous quantities of standardized low-cost products for the mass market; yet this has not done away with unusual or special prod uct lines for those who want them. Supermarkets have not destroyed the quality delicatessen stores, and mass produced automobiles have not ruined the quality sports car market. If there is a market for different kinds of television programming, the programming will find a way to appear.

The experience of television in Britain is interesting proof that increased competition (which would have to result in a free market) improved the programming. For almost all its existence, British broadcasting has 298 MELVIN D. BARGER been a government monopoly. This has been fought bit terly through the years, and it was proved that many British viewers tuned in on livelier broadcasts from the European continent-for the British Broadcasting Com pany was terribly dull. Finally, under mounting pres sure, the government allowed one commercial network to begin broadcasting in 1955. The result: the coming of a rival forced the BBC to begin competing for audi ences by using the same type of program fare. Viewers suddenly took to television as they never had before. It is estimated that the total TV audience (read market) in Britain has grown in seven years from 5~ million to 40 million. 15 Yet this was only competition of a very limited kind.

We have no way of determining what an uncontrolled television industry would be like. We can only point to the rest of our economy-particularly the freest por tions of it-and say that something very fine would happen. Nobody's Property My fourth point is that the people do not effectively "own" the airwaves simply because they are public prop erty. While this "people's ownership" may be true in a strict legal sense, it is not true in practice. At present, the airwaves hardly belong to anybody. The government does not really own them fully, because their use has been allocated to private broadcasting by the Commu15 Ibid.

LET THE PEOPLE OWN THE AIRWAVES 299 nications Act. Yet, the private broadcasters are not own ers either-they simply have three-year licenses. Thus, everybody's ownership rights have been diluted. It is a stalemate that ought to be broken-and it can be by re moving the airwaves from their special "public prop erty" classification. In discussing the possibility of removing federal con trol of the airwaves, one quickly finds himself swept into a narrow Heither-or" argument. Either we have federal licensing and control, the argument goes, or we face the broadcasting anarchy that existed before 1927.16 After all, governments have to provide policemen to direct traffic, don't they? Freedom of the airwaves was fine back in those ancient times before 1927, but it would never work today. One loses this kind of an argument every time if he permits it to remain on the narrow "either-or" basis.

The fallacy of the argument is in its assumption that we have a choice only between federal control and chaos. Even persons who are quite suspicious of any kind of federal control of broadcasting cannot see other alterna tives. We must remember that this federal control has existed ever since broadcasting's infancy, so the idea of liberating the airwaves has had little consideration. Own ership of the airwaves has been a government monopoly, to be shared sparingly with others. So long as this mo nopolistic ownership goes on unchallenged, there is little 16 The year the Federal Radio Commission was formed. FRC was superseded by FCC as a result of the 1934 Communications Act.

300 MELVIN D. BARGER chance that the roots of broadcasting's problems will be touched. Despoilers of Public Property? The dispute will probably go on endlessly so long as the government continues to claim that it "owns" the airwaves. It is this claim of ownership that casts the broadcaster in a role only slightly above that of a free loader or a despoiler of public property. To hear all of the moralizing about the "people's airwaves" and the "sacred public trust," one would think that the airwaves were something built and paid for by public funds. Ac tually, the airwaves existed all along, and it was only the fantastic growth of the radio and television indus tries· which gave them value at all. Most people didn't even know of their existence until the miracle of radio proved it. If anybody should be in another's debt in this situation, it is the government which should reim burse the industry for the tremendous capital apprecia tion of its airwaves.

Side-stepping the "either-or" argument, one begins to see a possibility of reasonable solution through private ownership and control of the airwaves. Let broadcasters own the airwaves themselves or lease them from other owners. Let the market pricing system allocate this scarce, valuable, economic resource to the highest bidder, with full powers to use his property as he judges best in the conduct of his own business. The market has func tioned admirably whenever it has been given a chance LET THE PEOPLE OWN THE AIRWAVES 301 with respect to countless other scarce and valuable re sources; why not the airwaves? (At this point you will hear the "What-about-obscenity-and-sedition?" argu ment, but this doesn't apply either, for our courts are empowered to deal with obscenity and sedition, despite who happens to own the offending medium.) The pri vate ownership or leasing arrangement has been advo cated by Professor R. H. Coase of the University of Vir ginia, and like all sensible solutions to perplexing prob lems, it is perhaps the only one which gives any promise of correcting broadcasting's present confusion. 17 Everything Else Is Limited, Too!

Since these channels are limited in number, wouldn't this be to favor some individuals over others? Well, of course, that is what has already happened even under the FCCI Professor Coase answered that argument very well by pointing out that land, labor, capital, and almost everything else of commercial value is in limited supply. (Indeed, if the supply were unlimited, the commercial value might not be high!) Actually, ownership of the stations and the airwaves would most likely continue to rest with the persons and corporations who are in the business now, for they are the ones with the capital, and experience. One must remember that a "free enterprise" broadcasting industry would "favor" those who run their stations most effectively, and would eliminate those 17 Ronald H. Coase, "Why Not Use the Pricing System in the Broadcasting Industry?" The Freeman~ July, 1961, p. 52.

302 MELVIN D. BARGER who don't. Use of the airwaves would tend to revert swiftly to those who could make the best use of· it. Private ownership of the airwaves would introduce another factor that has been virtually absent from the industry: an intensified, well-financed campaign to bring more channels into existence or to narrow existing chan nels to permit broadcasting several programs simultane ously in the band now used for one. At present there is no incentive at all for private enterprise to sponsor this kind of an effort, and other efforts are constantly thwarted by restrictions. Let us suppose, however, that private broadcasters were in a legal position to increase the worth of their own investments through a technological breakthrough of this kind, or through promoting pay-television and the ultra high frequency channels. 18 Would they not do so as quickly as possible? And would not the availability of more channels eliminate for all time the often-heard complaints that wonderful programs with only 10 mil lion viewers were removed from the programming to make way for westerns watched by 30 million viewers?

Would not broadcasters seek to serve minority audiences as they are now unable to do? 18 No attempt here to discuss toll-TV controversy or the difficul ties of developing UHF channels. Author believes toll-TV dispute is a direct result of licensing system, which throws upon FCC rather than the open market the burden of deciding utilization of new broadcasting methods. UHF problems are quite involved, but it is safe to generalize that the free market also has the means of developing UHF when the need for additional channels occurs in specific areas.

LET THE PEOPLE OWN THE AIRWAVES 303 Of and For the People Thus, I argue that the people and not the government ought to own the airwaves. I think we should label as utter hypocrisy this notion that "the people" can effec tively "control" or "own" the airwaves through their government. Which of us, because of his vote or his con tact with a congressman, has the slightest voice in the operations of the U. S. Government Printing Office or the Tennessee Valley Authority? Yet, in theory, we "own" these establishments. But over privately-owned businesses, we do have power-the immense and consid erable power of exercising our right to buy or not to buy. We can influence the direction of privately-owned establishments whenever it suits us-but our government "ownership" of the airwaves will continue to get us more troubles like the ones we've had. As a citizen, I would be glad to aid the cause of free dom by relinquishing my own microscopic interest in the public's airwaves. If the other 184 million "co-owners"

would do likewise, we could let the broadcasting indus try become something it hasn't as yet had a chance to be -the greatest and most effective medium the world has ever seen-offering something of everything and not too much of anything-serving the majority without slight ing the minority-being truly a service that is of and for the people.