Let the People Own the Airwaves

Mr. Barger is Editor of The Flying A, com­pany magazine of the Aeroquip Corporation at Jackson, Michigan.

"I urge you to put the people’s airwaves to the service of the people and the cause of freedom. You must help prepare a generation for great decisions. You must help a great nation fulfill its future. Do this, and I pledge you our help."

Newton F. Minow, Chairman of the Federal Communications Commission, in closing his memorable "vast wasteland" speech before the annual convention of the National Associ­ation of Broadcasters in Washington, D. C., May 9, 1961.

There comes a time in every man’s life when his curiosity 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 business 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 curtailed by the FCC in the past, and is under heavy fire today. 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 Constitu­tion for newspapers? Why had we talked so grandly about freedom of speech and expression, and yet imposed a government agency such as the Federal Communica­tions Commission upon the broad­casting industry? Of course, I had no real proof that some kind of censorship 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 answers 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 I. 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 ofthe limited number 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-over of the television 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 editorials agreeing with Minow’s objectives and a four-part series in The Sat­urday Evening Post by John Bart-low 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 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 edi­tors to defend the rights of pub­lications they actually loathed. Hence, it was probably the pecu­liar and inconsistent attitude of many newspapers (and persons of influence) toward the Minow challenge which caused prominent communications attorney, W. Theodore Pierson, to write: "… it is impossible to understand why journalistic craftsmen in non-broadcast media either remain silent or applaud the cultural dic­tators when every constitutional justification for broadcast censor­ship can have similar counterparts with respect to nonbroadcast media."³

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 ele­vated and uplifted by a "truly re­sponsible broadcasting industry."

One thing was certain: the tele­vision industry had 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 "private 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 particularly 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 ownership" of the airwaves that gives government its strategic 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 ownership." 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:

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 control over the industry if the present licensing system were to be abandoned.

Licensing the Press

The licensing system has always been a means of control, 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 become 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 Zenger 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 administration. Freedom finally won the day when a jury acquit­ted Zenger, whose plea was that what he had printed was true, and thus not libelous!⁴

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 remarkable fidelity to principle, the Supreme Court has time after time destroyed laws which threat­ened press freedom. A Minnesota law which tried to suppress "ma­licious, 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 municipal ordi­nance requiring a permit from a city manager in order to distrib­ute circulars and handbills. The permit was actually a form of li­censing, and in this decision the Court obviously made the tacit assumption that licensing and cen­sorship go hand-in-hand.?

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

There is everything to applaud in these decisions, regardless of how one might have felt about the publications 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."

The result of our press freedom has been an unbelievable 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 nobody has shown us how to destroy the one and still preserve the other.

A Beclouded Issue

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 airwaves is discussed. The whole idea of licensing communications 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 communications or signals transmitted by any radio station and no regulation or condition shall be promulgated or fixed by the Commis­sion which shall interfere with the right of free speech by means of radio communication.¹º

Yet this well-intentioned (and perhaps impossible) restraint on FCC powers did not place the broadcasting industry in the same unfettered position as the publish­ing world. The FCC had the right to review the general performance of stations and to evaluate their performance in the "public inter­est." This remained as a potential means of indirect censorship.

The 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

10 Walter B. Emery, Broadcasting and Government (Lansing: Michigan State University Press, 1961).of view. The Mayflower Broad­casting Corporation, which owned the station, had to amend its poli­cies in order to keep its license.¹¹ This decision obviously had a co­ercive effect on all other license-holders, and obviously forced sta­tions to travel a neutralist 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 define the public service responsibility of licensees, and it triggered congressional charges that the FCC was censoring 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 express neutralist or mid­dle-of-the-road editorial view­points, the FCC has probably robbed the industry of the vigor and individualism which Minow complains it now lacks.

The Old Story

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 attacking or criticiz­ing the man who occupies it for the moment.

As we have already seen, the Supreme Court ruled explicitly against licensing of the press. It was flatly held to be censorship. If this be true in the case of publish­ing, it must also be true in the case of broadcast media. The fal­lacy in the Communications Act was that it forbade 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 become 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 any one 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 gaining new force at an ac­celerating tempo. Federal control of broadcasting is fully in accord with centralist thinking, as is fed­eral control of everything else.

Characteristically, the influen­tial centralists at the public level are mostly men of good will who advocate their 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 sayings. 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 inevitable 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 proliferation of commercials ex­horting and cajoling people to buy things. The remarks carried the subtle implication 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 distribution 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 that profits are wrong or have somehow been ex­torted from the public in an un­derhanded manner.

The attacks on programming are not unlike the fondness 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 Broadcasting 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 immense power was J. C. W. Reith, whose replies to criticism are a good indication of how he felt about the citizen’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 control may be for the reasons indicated, it is essen­tially ethical, in order that one gen­eral policy may be maintained throughout the country and definite standards maintained." ( Italics mine. )

Mr. Reith’s influence was always available in Britain to protect the monopoly of broadcasting, and in­cidentally, 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 increased FCC juris­diction—that is, improved pro­gramming 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 broadcasting industry has some of the characteristics of a government-protected cartel, with broadcasters protesting FCC discipline and yet accepting the inevitable market protection the exclusive license provides. The very advantages 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 re­moved—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 became simply those showing it to be more efficient. The major issue involved here should be a free communications system versus a controlled one. Whether radio and 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 stations and programs to serve the millions who are supposed to have been ignored when TV networks developed 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 possible. 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 product lines for those who want them. Supermarkets have not destroyed the quality delicatessen stores, and mass-produced automobiles have not ruined the quality sportscar market. If there is a market for different kinds of television pro­gramming, the programming will find a way to appear.

Competition Changed BBC

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 been a gov­ernment monopoly. This has been fought bitterly through the years, and it was proved that many Brit­ish viewers tuned in on livelier broadcasts from the European continent—for the British Broad­casting Company was terribly dull. Finally, under mounting pressure, 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 audiences 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 5¹/₂ 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 portions 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 property. 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 Communications Act. Yet, the private broad­casters are not owners 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 remov­ing the airwaves from their spe­cial "public property" classifica­tion.

In discussing the possibility of removing federal control of the airwaves, one quickly finds himself swept into a narrow "either-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 alternatives. 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. Own­ership of the airwaves has been a government monopoly, to be shared sparingly with others. So long as this monopolistic owner­ship goes on unchallenged, there is little 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. Actually, the air­waves existed all along, and it was only the fantastic growth of the radio and television industries 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 reimburse the industry for the tremendous capital apprecia­tion 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 func­tioned admirably whenever it has been given a chance with respect to countless other scarce and valu­able resources; why not the air­waves? (At this point you will hear the "What-about-obscenity and-sedition?" argument, 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 private ownership or leasing arrangement has been advocated by Professor R. H. Coase of the University of Vir­ginia, and like all sensible solu­tions to perplexing problems, 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 FCC! 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 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 channels to permit broadcasting several pro­grams simultaneously 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 million 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?

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 effectively "control" or "own" the airwaves through their govern­ment. Which of us, because of his vote or his contact 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 consid­erable 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 freedom 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 indus­try 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 slighting the minority—being truly a service that is of and for the people.

Foot Notes

¹ John Crosby, "What You Can Do To Make Poor TV Better," Ladies’ Home Journal, November, 1960, p. 74.

² John Bartlow Martin, "Television USA: Wasteland or Wonderland," The Saturday Evening Post, 4-part series in weekly installments beginning October 21, 1961, p. 19.

³ W. Theodore Pierson, "Sees ‘Elec­tronic Press’ Freedom Periled by Egg­heads, Crackpots," The Detroit News, January 7, 1962.4 William L. Chenery, Freedom of the Press (New York: Harcourt, Brace and Company, 1955).

⁵ Near v. Minnesota, 283 U.S. 697, (1931).

⁶ Grosjean v. American Press Co., 297 U.S. 233, (1936).

⁷ Lovell v. Griffin, 303 U.S. 444, (1938).⁸ Hannegan v. Esquire, 327 U.S. 146, (1946).

⁹ Quoted in Encyclopedia Americana, Volume 22, 1961 (Freedom of the Press).

¹¹ William L. Chenery, op. cit.

¹² Walter B. Emery, op. cit.

¹³ Quoted on frontispiece of paperback edition, The Road to Serfdom (Chicago: The University of Chicago Press, 1960).

¹⁴Wilfred Altman, et al., TV: from Monopoly to Competition, Institute of Economic Affairs, London, 1961.

¹⁵Ibid.

¹⁶The year the Federal Radio Com­mission was formed. FRC was super­seded by FCC as a result of the 1934 Communications Act.

¹⁷Ronald H. Coase, "Why Not Use the Pricing System in the Broadcasting In­dustry?" The Freeman, July, 1961, p. 52.

¹⁸ No attempt here to discuss toll-TV controversy or the difficulties 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.