Ethic for broadcasting; Lawmaker of the art, part 1

I think the Federal Communications Commission. Under the Communications Act of 1934 does have general authority to deal with most of these program problems. So why do we have confidence in your health. But not in your product. And that I think is a distinct danger. It's and it's a threat to our way of life. It's a retrogression to a dictatorship. There must be some clear cut final decision somewhere and if the Commission in its infinite wisdom by a majority vote decides to impose programming controls can a blue book or a pink book or green book it will be contest it. I am confident by responsible broadcasters with a view toward Supreme Court action. I think the people who object to the timing. You really are objecting to any kind of regulation.

I don't believe that there's too much difference of opinion as to what's in the public you know. Those voices belong to Dr. Walter Emory educator Newton Minow chairman of the Federal Communications Commission. John Derbyshire former chairman Saltash office editor and publisher. And Robert Barclay FCC commissioner. This is for broadcasting a series of 13 documentary radio programs compiled from interviews with men who make broadcasting their business. This series is produced under a grant from the National Educational Television and Radio Center in cooperation with the National Association of educational broadcasters program. The law maker of the art part

1 and now here is your host John Campbell. The law maker of the art appears to be a contradiction in terms for over and over you've heard it said on this series that you cannot legislate taste. But more than encroachments on cherished freedoms this may be a neat rationalization. A hands off policy which turns out to be the symptom of which it should be the cure for there are canons of aesthetics. There is an artistic ethic. But when it comes to good or bad broadcasting all of a sudden the lawmaker develops a tin ear. The Federal Communications Commission points to sections of the broadcasting code which prevent them from interfering with that which is broadcast. In a sense they say they respect the right of the broadcast licensee to broadcast in the public interest convenience and necessity as long as the station holds to the legal and technical limitations which are imposed. The FCC says it has done all it can. We wonder these seven political appointees no more than four of whom can be from one party have been called everything from obsequious

lackeys to the seven untouchables. What is the nature of the beast which can control the broadcast licenses in this country. We turn first to Dr. Walter Emery Michigan State University professor and authority on communication law. As we ask does the present commission have the authority to enforce the Communications Act in dealing with the current program offenders. Oh yes indeed. I think the Federal Communications Commission. Under the Communications Act of 1934 does have general authority to deal with most of these program problems. Now there is a limit of course. Section 326 of the Communications Act specifically prohibits the commission from censoring programmes and this has been interpreted by the commission and by the courts to mean that the FCC cannot tell a station what particular program it may or may not

carry. However since the beginning of the FCC that agency has taken the attitude that it does have the authority and responsibility to review the overall operation of a station when it comes up for renewal of its license. And this was tested in the courts during the early days and in my opinion there is no question that the commission can deal with deception on radio on television. There is no question that it has the power to deal with so-called payola practices. And. I believe that the commission has the authority to establish rules of course how far the commission goes is determined a great deal by the attitude of Congress where Congress has been sympathetic with

regulation. Then the commission has been able to do more. The Blue Book formerly called the Public Service responsibility of the broadcast licensee issued in 1946 enunciated schedules which could be used as guidelines in meeting the FCC requirements. We asked Dr. memory about this booklet or a written version. I said to the commission that I thought it was time for the commission to re-evaluate the criteria which it had a nazi added in 1946. There have been vast changes in the radio and television industry. Of course the world has changed a great deal in the last 15 16 years and the industry has become highly competitive. In 1946 there were no educational television stations on the air. Now there are close to 50 they work. There were very few commercial television stations now there more than 500 operating

and we've had such a tremendous growth in the industry that I think it's time for the commission to review the standards in terms of these developments these developments began when President Eisenhower asked Attorney General William P. Rogers to review the disclosures made in the course of investigations of the TV quiz programs as well as other deceptive and corrupt practices in radio and television. Many were called to Washington to defend their practices. We discussed this background with Assistant Attorney General Robert Kramer as we ask you know just specifically Mr. Cramer what was the attorney general's office interest in this. Why didn't they act. With reference to the investigations with the main reason I expect was because the president of the United States requested the attorney general is his legal advisor and consular and Cabinet officer to report to him on the

nature of the deceptive practices in the broadcasting and television area and it was in response to a direct request from the president the attorney general on December 30th 1959 submitted to the president a report on the sept of practices in broadcasting meet. This report is a public document. It's preceded by a nine page printed letter of transmission from the attorney general summarizing the report and the report itself is a printed document of some 54 pages make. Do you think is does this appear to be a symptom of a much larger problem that exists socially This is one one of the big moral issues of the time. Are we concerned with deceptions in radio and television but seriously deceptions occur elsewhere. It's only partly in radio and TV. Yes I think again the attorney general has indicated his concern that this is as you say part of a much larger problem

that concerns all of us. Again I quote from his letter transmitted to the president. He says there that the conclusion in a sense the spectacle of corruption in the broadcasting industry presents a larger issue which is beyond the area of legislation or law enforcement. Our system of government preserves to each individual the widest latitude of personal freedom and freedom but as Clemenceau once said Freedom is nothing in the world but an opportunity for self discipline. In these times of ferment when the people of the free world look to the United States for responsible leadership we can ill afford any relaxation of the high ethical and moral standards which have kept our nation free and strong. We turn directly to the FCC and talk with former chairman John Durford. Here he talks of the commission and its authority and the powers of the FCC over programming control is much more limited and popularly Nollie

assume. President of the American Bar Association a man who's had a good deal of experience in First Amendment cases and another attorney who's had a good deal of experience in the field of broadcasting have concluded that the commission has very little power in view of the proscriptions and set forth in Section 326 of the act and of the First Amendment. You must remember that the Supreme Court of the United States has indicated that the that radio which includes television is in title of the same protections of the First Amendment as as a newspaper a magazine a book the pulpit or the stage. Mr. Duelfer goes on to discuss the authority of Congress and defines what he feels are the powers of the FCC.

I am doubtful that Congress has the authority to change the Constitution of the United States if in fact their attempts would be to. And Act laws which were the bridge the freedom of expression which is another way of saying freedom of speech. I think the primary powers and duties of the commission has to make available as many broadcasting channels as it can have in due regard to the other needs of the country. After all we have over half a million licenses out less than 5000 of those have to do with broadcasting our entire economy is now dependent upon communication via radio the air and the sea the land transportation are the

instruments of transportation and all of these fields. The police even the taxicabs public utilities. The amateurs who are a vast reservoir for this country in time of war supply us with technical know how and ability. Those are the important things. Frederick for der first successor appears to agree with him as he points his finger to what he feels is the problem. There is no question in my mind what the major problem is that's allocation and I think given that are you a chap at UHF VHF problem. That's right this is the thing we have to settle when it has to be settled fairly soon because I don't believe that either this commission or commission is to come will be able to withstand the pressures of the public generally and of the Congress for more television facilities even at the expense of interference in the rural areas. It would appear then that there is no programming problem just increase the number of facilities

for here as Mr Durfy States is what the commission does primarily protect broadcasters from interfering with each other in the air so to speak. We try to get at the maximum amount of service out of the spectrum. We are not too much concerned. With the content they program and that is because Congress wanted it that way to start with. We are not concerned about program content. Well what then is meant by serving the public interest. Who will enforce this procedure. Another commissioner Robert Bartley was asked to define the term. Well I think that you can't define it. And I think that's the reason it's in the law that Congress if it had felt that it could put down in words exactly what constituted the public service for a long period of time would have done so. I think the people who object to the term

really are objecting to any kind of regulation. I don't believe that there's too much difference of opinion as to what's in the public interest. I think they know pretty well. Former FCC chairman Frederick Ford also comments on this nebulous concept of public interest. I think the commission by statute is used as the instrumentality of Congress to make these determinations of the public interest convenience in the sense that the commission has in numerous instances found this to be or that not to be in the public interest. It's required by statute to make a finding of that kind before it grants any license I know of no comprehensive definition of it even though by case to case bases that things are included in the executed. But I would I would like to see an attempt to define it I just don't think it can be defined because

it itself is a definition. And to refine it I just don't believe you can. You can actually say what's in the public interest or not because in a bit in a in an interest like this where there is so much of an issue and originality and so much resourcefulness and ingenuity I just don't think that that you'd be able to define something hard and fast and say everything to the left of this is in the public interest and everything to the right is not because just a slight shade of difference. And it becomes vastly in the public interest so that unless we could and that's we could look forward in the future into the minds of everybody to see what they might possibly come up with. It would be very difficult. I think Congress struggled with it with the criteria and they've been trying to find something to take the place of this phrase as a guide. And as you know the Supreme Court has said it's adequate to guide the commission in making these determinations. But I'm unable to define it.

Commissioner Barclay speaks here of the controversial document referred to earlier issued by the FCC which tried to set forth the public service responsibilities of the broadcast licensees or the Blue Book. Well the blue book itself has some very excellent guidelines and the guidelines themselves I think are not under too much attack. The attack against the blue book was its implied attack against commercialism. The implications in the Blue Book in some areas that you couldn't render as a public service program if it were commercial. Now it doesn't say that but that has been the interpretation put on it by many people and was one of the basic reasons why it was so strenuously attacked. The Blue Book. But it's call it the principles set forth in the blue book are still

sound saltation off editor and publisher of the magazine broadcasting telecasting a leading trade journal comments on the Blue Book as he has asked many of the suggestions have been made for the broadcasters to have them try to arrive at some kind of a balanced program. And many of the critics have suggested why not go back to the original book idea 1946. Well they We've discussed all the blue books many times since it was first perpetrated on the unsuspecting broadcasting industry back in 1946. We think the Blue Book that we described as a back door effort at censorship. We think the Blue Book is inherently wrong because again and I don't want to wear out the phrase it constitutes censorship in the purest and simplest form. What reactions do you have to a statement made by on this broadcast by Commissioner Barkley that we can look for a mean written blue book

I think. A commission of Bartley down the line and has favored some degree of programmers you are certain of his colleagues will favor them over the years they hadn't been very articulate until the disclosures as a result of the House Oversight Committee hearings precipitated the entire programming and if you please appetising issue of this this is a commission of Bartley's opinion my opinion is that they may attempt it but if they do it will be a contest in the courts there has never been a supreme court adjudication as to this precise issue. I think lawyers depending upon where they may stay and can argue either way on where the Supreme Court. Stands on the matter of program control. There must be some

clear cut final decision somewhere and if the Commission in its infinite wisdom by a majority vote decides to impose programming controls and a blue book or a pink book on a green book it will be contest and I am confident by responsible broadcasters with a view toward Supreme Court action. Why should it be contested by whom it may be. But Commissioner Barclay here States what he feels to be the position of the FCC concerning Section 326 of the code and the First Amendment. For some these two items pose a dilemma well and to me it isn't a dilemma because I don't think that the three twenty six. Prevents a commission from having an influence in the park program area. I certainly agree that we cannot censor. We don't want to prey censor programs but I would have no hesitancy

and am taking action against stations which were broadcasting a series of programs which I think a big clearly established without being arbitrary or capricious as being contrary to the public interest. We always have the courts to answer to and this commission may not take arbitrary or capricious actions without being reversed in court. Consequently it seems to me that there's all the protection that's needed. I and I do think that we have a responsibility in the program area for that is really the product of a station that's the only reason we grant a station is to put on programs. So if it's product is that programs only then certainly we have a responsibility in that area. The FCC has a responsibility in the program area but not having unanimity of opinion on that word responsibility. Maybe the problem or in

Horace representative from Arkansas and chairman of the special subcommittee on legislative oversight comments on what he feels will be the outcome of the investigations. Well John I assume you have reference to the investigation of the special subcommittee on legislative oversight which is a subcommittee of the Committee on interstate and foreign commerce of the House of Representatives of which I have the honor to be chairman. We refer to it as the special subcommittee unless legislative oversight because the Reorganization Act of the Congress in 1907 provides that each committee of the Congress shall maintain an oversight or oversee the administration of the laws of the agencies of the government that comes under his jurisdiction. Pursuant to that authority and direction of the conkers Committee on interstate and foreign commerce has then the authority and direction to keep and

maintain a watchfulness over the administration of the laws by the major regulatory agencies of the government. Now the good to be accomplished out of the investigation is precisely what was intended when they house by special resolution directive the committed to make the investigation and that was to determine whether or not these major regulatory agency the government are ministering the laws the Congress intended are if as the speaker put it some of these laws are being repealed by action or inaction of the agencies. And also whether or not the present laws are adequate for the members of the agencies and boards to perform their responsibility in the public interest. Robert Lish man the chief counsel of the committee talks here of censorship and the public interest.

Well in the first place it is understood that the content of an individual program certainly cannot be submitted for prior scrutiny as to its content and and approved by the Federal Communications Commission or any other government agency that would be contrary to the First Amendment as well as Section 326 of the act. But it would seem when we remember that. In 1927 and even prior to that in one thousand twenty two. When I was a great debate going on with respect to how far radio should be regulated in the public interest secretary of commerce who were at that time stated that regulation of the content of programs was necessary in order to prevent the airways being drowned in what he called advertising chatter.

The Rev. William Lynch of Georgetown University asks for an unequivocal stand to be taken by the commission when he says if the FCC cannot go any further than this and let it make an absolute public declaration of this back and then let us not take this as an admission of defeat. But let us go on to find other means and other group to do the job. The FCC would be honest enough to acknowledge it cannot. Let it end so I say let it not take the position. Nothing can be done beyond this let it say honestly and openly. We cannot. This would be a giant step forward. You want it but they are taking the position. Let us not interfere with the industry why can't they keep their if I may use a way only a semi courteous phrase now why can't they keep their mouths closed about this principally because this is not in their company let them say what they can or cannot do. But let them not say what you can or can't be done. This is a dangerous way of tackling the situation.

Newton Minow the chairman of the Federal Communications Commission in a speech before the National Association of Broadcasters pulled out all the stops as he said. So I have confidence in your help. But not in your product. When television is good nothing not the theatre not the magazines or newspapers nothing is better. But when television is bad Nothing is worse. I invite each of you to sit down in front of your own television set when your station goes on the air and stay there for a day without a book without a magazine without a newspaper without a profit and loss sheet or a reading book to distract you. Keep your eyes glued to that set until the station signs off. I can assure you that what you will observe is a vast wasteland. You will see a procession of game shows formula comedies about totally unbelievable families blood and thunder mayhem

violence. Say it is a murder western bad men Western good men Private Eyes gangsters more violence and cartoons and endlessly commercials many screaming cajoling and offending and most of all boredom. True we'll see a few things you will enjoy but they will be very very few and if you think I exaggerate I only ask you to try a constant referral to the product. How will this be handled. Former FCC chairman Ford here refers to a definition of the FCC enunciated by a noted author. You know had a favorite phrase and I think there are other boarders would enjoy that FCC doesn't stand for a Federal Communications Commission. It stands for or from crisis to crisis so that unless there's a crisis a lot of these things tend to get lost. Maybe this is the problem. No crisis is felt and what we feel to be a problem is lost in the Washington shuffle. This could be possible because as Mr Durfy states

here you don't get any smarter because you moved to Washington at what point do we stop passing the buck. The FCC points to Congress. Congress points to the people of the people point. Or do they. But as has been said accusing fingers are pointed only to be met by other accusing fingers. This is no mere political football. The lawmaker in wanting to protect rights does so but in this case the rights of a minority the broadcaster. One of the vast majority the listening audience at what point are they taken into consideration. They alone should not define the public interest for as has been shown. Public interest can be created. All right you can't codify taste any more than you can still the questioning child. And maybe it shouldn't be but this inquiring mind can be stultified by this modern communications giant. If someone in this case the Federal Communications Commission doesn't step in to see that that which is broadcast has a taste sense so that you don't have the bland leading the

bland. You've been listening to the lawmaker of the art part one of the eight then a series of 13 programs on ethics for broadcasting a radio documentary which is investigating the current broadcasting trends compiled from interviews with men who make broadcasting their business. Your host was Dr. John Cambers of the Detroit Institute of Technology. Producer for the series is Dr. Mary MQ sak of Michigan State University Oakland ethics for broadcasting was produced under a grant from the National Educational Television and Radio Center and is being distributed by the National Association of educational broadcasters. This is the N E B Radio Network.