Radio and the Public Interest

I

IT was a Scottish nationalist who said, two centuries ago, that if a man were permitted to make all the ballads he need not care who made the laws. Shelley, in a famous apologia, echoed the thought a hundred years later. Another century (of progress, no doubt) has reduced the making of laws to a status quite secondary in importance — and in talent — to the making of money; and the songsters have appropriately moved with the times into the ranks of big business. When, a few years ago, Warner Brothers paid $10,000,000 for the music catalogue of a small group of publishers, outsiders had a chance to see just how big this particular business was getting.

It grew, of course, on the wholesale mechanization of sound; and its growth displaced tens of thousands of musicians who had been hired to dispel the silence of the ‘silent’ film, and also a tremendous proportion — over two thirds — of all sheet music. Any summer evening of the 1920’s, suburban streets were enlivened by Millie’s efforts to render the new ‘song hit’ on the family piano, or Tom tooting something on the saxophone, or brother Ben picking out notes with one finger and wishing he had learned to ‘play.’ The modern Millie flops down by the radio and Tom ‘tries out a few records’ and Ben borrows the family car and is off to the movies or a roadhouse.

Day and night, from over six hundred broadcasting stations, androgynous individuals bleat about ‘love’ — in person or ‘ by electrical transcription.’ And the tunes stale much more quickly through their incessant repetition by radio, record, and film; the average business life of even a firstclass hit is not over three months. So the demand has multiplied, and the supply has fallen behind. The National Broadcasting Company tried to meet the situation by engaging a permanent corps of musicians and absorbing a couple of well-known publishing houses — a step which was expected ‘ to secure control of a sufficient number of composers so that it can dictate satisfactory terms for the vast amount of musical composition necessary to commercial broadcasting.’ All in vain. The cost of the supply, represented by royalty fees, continued to rise. Last year the American Society of Composers, Authors, and Publishers — ASCAP for short — received some $3,000,000 for performance rights, mostly from radio stations. At this writing the Warner group has seceded from the ASCAP system and is out for more money. It will get it. The Warner group’s rating for ‘hits’ — an objective, statistical affair — is very high. And music, mostly jazz, continues to occupy about two thirds of all time on the air.

Is this what the public prefers? That depends upon what you mean by ‘the public.’ This entire broadcasting business— that started barely fifteen years ago as a mere sales agency for receiver sets, and is now drawing nearly $100,000,000 a year gross advertising revenue — this whole business is conducted solely in and for the public interest. Believe it or not: that is what the law requires. No station may operate without a license, and no license may be granted except on grounds of ‘ public convenience, interest, or necessity.’ It sounds impressive — until one remembers that there is no such thing as the public. ‘Publics’ are made to order. In broadcasting it is the exact truth that ‘you pays your money and you takes your choice.’ The government of this country has never been able to make up its mind what sort of public it desired to serve in radio administration; the advertisers know precisely what public they desire to reach. They pay their money (up to $15,000 an hour for a national hookup, excluding programme costs) and there it is waiting for them. How do they know? They have very ingenious ways of finding out, apart from actual sales.

Here are two little success stories culled almost at random from the trade journal, Broadcasting. A MidWestern firm selling children’s shoes is confronted with this problem: There are not enough agents in the territory to enable them to say, ‘ Go to the nearest dealer,’ but there are too many to permit the reading — over the air — of the whole list; what to do? A children’s drama sequence is constructed around a central character, whose adventures are further described in a children’s newspaper. The newspaper is offered free for twelve issues to applicants; it carries the list of stores where particulars of prizes, premiums, and membership in a ‘club’ are available. Presto — there is precisely the right ‘public’ walking in at the shop doors! Oh yes, it responds all right. The Horlick’s Malted Milk people, about a year ago, offered over nine stations for three weeks a flashlight at ten cents (plus the usual wrapper). They and their contractors were deluged with no less than 174,000 requests. Now come tidings of a campaign conducted by the International Association of Ice Cream Manufacturers ‘to make the nation icecream conscious.’ They will probably succeed without difficulty if they can spend enough money. After all, it was a radio campaign conducted in prohibition days that persuaded ‘the public’ to eat yeast!

This is probably not quite the same ‘public’ that listens to the opera or the Boston Symphony Orchestra; but how far is it the same ‘ public ’ that listens to President Roosevelt and Dr. Townsend and the religious revivalists? Heaven knows — or it ought to: Father Coughlin is spending $300,000 this season to broadcast his peculiar brand of salvation.

II

This idea of the public interest, much or little as it may mean, developed almost inevitably in the course of radio litigation and legislation. The courts have held that broadcasting channels, or wave lengths, are in the nature of a public domain. They cannot be privately owned; and, since they are strictly limited in number, private concerns must be licensed to use them. These concerns, however, have never been asked to pay for the privilege; there is no franchise tax, license fee, or anything of that sort; so, in order to rationalize the situation, the phrase about public interest was written into the first radio law of 1927, and reënacted in the Communications Act of 1934.

The Federal Radio Commission, established under the White Act of 1927, officially ended its existence on July 11, 1934, when its successor, the Federal Communications Commission, was sworn in. The new Commission has two more members than the old — a total of seven — and includes in its jurisdiction communication by wire and cable; but so far as broadcasting is concerned the provisions of the old law are substantially incorporated in the new, and there are no major changes of principle or procedure.

The old Commission had had a troublous life, and no tears marked its passing. The conditions under which its work began were, as its chairman said, ‘very, very chaotic,’ and the Commission is not altogether to blame for the fact that chaos has largely persisted. As with most other aspects of American life, the situation had been allowed to develop without plan or foresight, and the attempt to tame it ex post facto proved too much for a weak administration. The Commission had had two basic principles to guide it, both of which are made binding on its successor. The first demanded that it should work toward an equalization of broadcasting facilities throughout the United States, on a somewhat complicated basis of zones, states, and population. This principle, however, was never made the dominant consideration in the renewal of licenses (that would have meant a minor revolution), but remained rather an ideal to be invoked in cases that proved disputable on other grounds.

The second principle, with which this paper is mainly concerned, is that the grant of a license to broadcast must be conditional upon ‘public convenience, interest, or necessity.’ The implications of this rule are obviously wide and debatable. The former Commission took the view that advertising must be accepted as the sole support of broadcasting, and that commercial stations ordinarily had a claim to preference over stations run by particular group interests; in fact, its interpretation of public interest did not differ perceptibly from that of the commercial broadcasters themselves. None the less, as a public body it found itself compelled to evolve some standard of public interest; and from this standard the quality of the programmes themselves could hardly be excluded — notwithstanding that the law expressly denied (and denies) to the Commission the power of censorship. When two or more stations are rival claimants for power or wave-length assignments, the question of what they have been doing in the past cannot very well be ignored. Situations of that sort are constantly arising. Again, when any scheme of reallocation is adopted for the general improvement of conditions, the same issue will arise among stations threatened with displacement. The most conspicuous case of this sort occurred in 1928, when the old Commission was arranging the forty cleared channels now devoted to network broadcasting. No less than 164 stations were affected, of which 81 incurred adverse action, 62 being deleted altogether.

Although the Commission has no power of censorship and no positive concern with programme content or quality, it is compelled from time to time to act in a negative sense by deciding what is not in the public interest, or which of two conflicting types of offering is the less so. The law itself stipulates that the Commission may make no regulation ‘which shall interfere with the right of free speech by means of radio communication’ and immediately adds that ‘ no person within the jurisdiction of the United Slates shall utter any obscene, indecent, or profane language by means of radio communication.’ The Commission, in the first instance, has to interpret these terms; but it has sometimes been compelled — in a negative sense — to go a good deal further.

There was, for example, the case of the doctor who ran a radio station in conjunction with a private hospital. The radio station gave out medical advice to unseen individuals who requested it, in the course of which advice they would be referred to the doctor’s hospital or recommended to use the doctor’s preparations. There was the similar case of the gentleman who ran a cancer hospital, and used his radio station not only to exploit his ‘cure,’ his theories, and his merchandise, but to make bitter attacks upon various individuals and associations with whom he had personal differences. There was the case of the two stations in the same town whose owners indulged in a continuous campaign of personal abuse, freely exchanging charges of perjury, libel, and slander. There was the case of the gentleman who wanted to be mayor, and used the greater part of twelve hours a day to promote his candidacy, his merchandise, and his opinions of the opposition, eking it all out with phonograph records and programmes rebroadcast from other stations without their consent. There was the case of Judge Rutherford, leader of the sect known as Jehovah’s Witnesses, whose inspiration led him to outspoken abuse of the ‘international bankers,’ the people of Israel, and the clergy of all other denominations. ‘ The facts show,’ he used to say, ‘that the clergy, Catholic and Protestant, and Jews are supporting and serving the League of Nations, which is the Devil’s scheme.’ All church organizations were charitably dismissed as ‘servants of the Devil’ and, with the other categories, ‘a wicked conspiracy formed by Satan.’ Along with the League of Nations, the British Empire was singled out for special castigation, identified with the beast of Revelations, and doomed to all the penalties with which the learned gentleman was so familiar. The preacher was not suppressed by the Radio Commission; on the contrary, it was he, when the network stations decided not to take his money for more broadcasts, who came to the Commission complaining bitterly of persecution.

Such cases — and there are many more of them — show how inevitably the licensing power is brought into relation with the actual conduct of broadcasting; and the connection has been clearly affirmed and upheld by the courts. Persons and stations whose programme material has been regarded by the Commission as ‘not in the public interest’ have sometimes argued that the situation amounted to censorship. The Court of Appeals of the District of Columbia, to which these cases go, made the following ruling in 1931: (a) broadcasting is ‘impressed with a public interest’; (b) the burden of establishing that a renewal of his license is in the public interest lies on the applicant; (c) ‘the Commission, in passing on applications for renewal, must consider the character and quality of service to be rendered’; (d) an applicant’s past conduct is relevant; (e) refusal of a renewal on the ground that public interest would not be served thereby is not censorship. Censorship, the Court stated, would arise only in case of scrutiny of the proposed material prior to its release. Similarly, the Supreme Court in 1933 specifically included ‘the scope, character, and quality of services’ within the purview of the Radio Commission.

III

Mr. Henry Bellows, until recently a vice president of the Columbia Broadcasting System, argues in a recent Harper’s article that this is censorship in fact, whatever the law may say. Defining censorship as ‘any limitation not applicable in like measure to those forms of publication which we regard as essentially free,’ he contends that radio ‘is censored by the Federal Communications Commission, despite the law, through interference with programme quality and content, made possible by the threat of refusal to renew licenses; it is censored by the broadcasters themselves because, owing to the limitation of facilities, they cannot do otherwise.’ He then proceeds to condemn the policy of the Commission as an ‘extralegal activity’ which had better be abandoned.

Now, aside from the question as to whether the Commission does act extralegally, — a point on which the opinion of the judges themselves contradicts that of Mr. Bellows, — the difference between the power of the Commission and that of the broadcasters is too wide to be thus slurred over. The broadcasters, by their own admission, regularly scrutinize material in advance of its broadcasting. They have been known to refuse their facilities to speakers who declined to submit manuscripts in advance, or to delete expressions objected to. The Commission does, and can do, nothing of the sort; and the cases in which it has actually refused a license renewal have been relatively flagrant and few. Mr. Bellows might as well contend that, since periodicals may be sued for libel after publication, the power of the judges over the press is equal to that of the editors.

To speak frankly, there is a much stronger motive than logic behind this weak-kneed argument. That motive is fear. The broadcasters have had a real scare in the past twelve months. Not only has the Communications Commission taken a much more positive view of public interest in broadcast programmes than did its predecessor; the Federal Trade Commission has organized a special survey of radio advertising, and the two organizations, together with the Food and Drug Administration, are actively coöperating. The case which probably has done most to put the fear of government into the broadcasters is that of Marmola. This preparation — an alleged fat reducer — has achieved the distinction of interesting no less than four government departments, on and off, for six years. It was condemned as dangerous to health by the Federal Trade Commission in 1929;but the manufacturers fought the case through to the Supreme Court, and succeeded in upsetting the Commission’s ‘cease and desist’ order. The Supreme Court agreed that ‘the preparation is one which cannot be used generally with safety to physical health except under medical direction and advice ’; but the Trade Commission Act refers to ‘unfair methods of competition’ and there was no proof of injury to competitors. It was merely the public that was being imperiled! That is why the Trade Commission is now urging Congress to amend the act so as to include ‘unfair or deceptive acts or practices in commerce’; and it is much to be hoped that Congress will accede to the request. Meanwhile the Post Office Department had barred the stuff from the mails; but it continued on sale in drugstores — and then it went on the air. At this the Communications Commission summoned twenty-one stations to appear before it and prove that their operations were in the public interest. Most of them, afraid that they might lose their licenses, promptly dropped the programme in question. And it is this sort of action by the Commission that Mr. Bellows and the advertising fraternity specifically denounce as ‘ censorship.’ They want to see the Commission definitely barred from using the licensing power in any way to control programmes before it goes any farther.

IV

Now it must be clearly borne in mind that whatever influence the Commission may have or acquire over programmes is bound to be of a negative or retrospective character. The Commission may have some power to decide what comes off the air; but the only people who have the power to decide what goes on the air are the broadcasters. This power, however, is not called censorship; it is called ‘ editorial discretion.’

The analogy with publishing is today the favorite one of the broadcasters. It was emphatically invoked, for instance, last January when the Republican Party claimed equal radio time and coverage to that given the President for his message to Congress. In some respects the analogy is valid; but it is subject to one important qualification. A writer, finding his message rejected by all the editors and all the publishers, can, if he has money, print and publish it himself; but a would-be broadcaster, refused facilities by the station licensees, has no access to the air whatever, and money cannot help him. ‘Freedom of speech’ in the case of printed matter is possible only because of the freedom and elasticity of publication. ‘Freedom of speech’ on the air, where such conditions do not and cannot obtain, means not the unlimited right of all and sundry to address the public, but impartial standards of selection impartially applied. Radio time and facilities are absolutely limited; the position of those in control of them is therefore fundamentally different from that of editors and publishers, and their responsibility far graver.

In response to increasing public and Congressional interest, and to hints which were not always gentle from the Communications Commission, the past year has witnessed a marked improvement in the average quality of commercial programmes. Both major networks announced changes of policy enforcing stricter standards, particularly in respect of children’s programmes, the duration of sales talks, and, as Columbia delicately phrased it, ‘advertising which describes graphically or repellently any internal bodily functions, symptomatic results of internal disturbances, or matters which are generally not considered acceptable topics in social groups.’ Whether this improvement would have come about so generally, or so soon, had there been no power at all behind the Commissioners’ observations is a question we need not discuss.

The principal networks have not only shown themselves responsive to advancing standards of public taste in commercial programmes; they have spent, and are spending, very large sums in public service beyond what considerations of mere expediency would necessitate. It is necessary, however, to point out that these systems comprise less than 200 stations out of 620. It is true that they include a majority of the most powerful stations on a majority of the best channels, but their standards cannot be taken as applying to anything like the whole of broadcasting. Further, the control exercised by the National and Columbia systems, or other chains, in respect of noncommercial programmes is much less in both extent and degree than their control of advertising contracts. Network stations are under no compulsion to follow the lead of the basic stations as regards sustaining programmes. And, apart from all network systems, there are 265 stations with no affiliation whatever. These are mostly lowor medium-power stations catering to local markets, and they constitute the most difficult element in the problem of programme control.

Two elements of that problem have so far defied all attempts at solution, and demand special consideration; these are the question of news and the question of education.

The service of ‘up-to-the-minute’ news is on the face of it a natural function of radio. So natural is it that even in the United States the service has grown rapidly, in spite of the most determined endeavors to check it. Some writers now forecast the total displacement of the newspaper by the radio as a purveyor of ‘ spot news ’ — though the experience of other countries does not support this doleful prediction. But the majority of newspaper managers have always regarded broadcasting as their natural enemy. They see it simply as a rival competitor for the advertiser’s dollar — and so, over a large field, it is. Press advertising has lost nowhere near as much as radio advertising has gained, and in many cases the two have advanced together; but there are always enough contracts for which the local newspaper and the local radio station compete to maintain the feeling of hostility. This attitude has been carried over to the news service itself. The newspapers — in this case with little real evidence — regard radio news as a threat to circulation, and they have taken energetic and effective measures to restrict it. The news-gathering organizations contended that their news was their property — a view which the courts upheld — and could be released for broadcasting only with their consent and on their terms. The end of a long struggle was apparently reached in March 1934, when the Press-Radio agreement was concluded between the Associated Press, United Press, and International News services, their affiliated newspaper proprietors, and the broadcasting networks. The agreement laid down very stringent limitations on the amount of news that might be broadcast, the time at which it might be broadcast (so as not to anticipate the morning and evening newspaper editions), and the use of newspaper-owned broadcasting stations.

The resulting radio news service was beyond question stale and inadequate, and the public voiced its discontent. Enterprising stations set out to form their own news services, gathering the news independently in the United States and establishing connections with important foreign agencies. The foremost of these ventures, the Transradio Press Service, has proved a powerful competitor of the Press-Radio system, giving fresher and better news free of arbitrary restrictions, and has rapidly gained subscribers from coast to coast. The control of the press over radio news has been challenged, and there have been important defections. The United Press and the International News Service now sell their news reports direct to advertisers, and the news thus enters, along with crooners and jazz bands, the field of commercial sponsorship.

The resentment of the newspapers toward this new development is perhaps warranted on other than commercial grounds. Whether or not it be true, as the Inland Press Association recently alleged, that ‘advertisers are now so intermingling advertising and propaganda with news that the value of the news is lost,’ it may well be doubted whether the broadcasting of news should be in any way under the control, or even under the sponsorship, of commercial advertisers. On the other hand, the rapid growth in newspaper ownership of broadcasting stations is not without its dangers. There are at this writing 125 stations owned by or affiliated with newspapers; and the number is being added to in consequence of the recent decision of the Scripps-Howard chain to enter the broadcasting field. While some of this development may indicate a mere insurance policy in view of possible future developments, and while a good deal of it certainly represents a desire to retain circulation by up-to-date publicity, the resulting atmosphere of chaos and competition in news broadcasting can hardly be deemed consistent with the public interest. It is noteworthy that the California Newspaper Publishers Association, with 350 members, has lent its support to the principle of government ownership and operation of the radio.

V

While the news problem, in its present phase at any rate, affects mainly the commercial sphere of broadcasting, that of education lies mainly outside it. There have been some genuinely educational enterprises under commercial sponsorship, such as the school broadcasts conducted since 1928 by the California Standard Oil Company; but the bulk of radio education is, and obviously should be, a nonprofit activity. The proportion of radio time and facilities devoted to noncommercial ends has been hotly contested during the past three years; and it is not only the professional educators who are contesting it. The Women’s National Radio Committee — an intergroup organization claiming to speak for 17,000,000 women — is a new force in the field; and, if one may judge by recent motion-picture history, it is a force to be reckoned with. The officials themselves (to Mr. Bellows’s discomfiture) have not been silent. Judge Eugene Sykes, who carried over his chairmanship from the old Commission to the new, told the industry in May 1934 that ‘our broadcasters are giving the most interesting and diversified programmes, but changes are needed. They have not carried the educational features they should, and there has been no national coöperation.’ Twelve months later his successor, the Honorable Anning S. Prall, — formerly a member of the New York City Board of Education, — told a representative gathering of reform organizations: ‘You have my assurance now that we are ready to coöperate fully with you and contribute as far as possible to the final and complete development of a definite, practical, and workable plan for the extension, expansion, and modernizing of education by means of radio broadcasting.’ This is by no means the only assurance that has come from the present Commission.

The obstacles to progress have been, and still are, formidable. One of the most serious has been already alluded to; it arises from the very nature of the existing system. Participation of nonprofit activities in commercial broadcasting exists at the discretion of the station owners. The two principal systems, on their own initiative, have contributed very much that is valuable, and they have also made generous donations of time to independent groups. But they have no means of compelling their associated network stations to rebroadcast noncommercial material; the associated stations may, and mostly do, sell their time independently when it is not claimed for network advertising, and of course the large number of unaffiliated stations are outside the scope of these nationwide services altogether. That is why educational opinion veered largely toward schemes for legislative action.

The one definite proposal backed by many — but by no means all — reform groups was that Congress should set aside a certain percentage of all radio facilities for allocation by the government to nonprofit organizations (including itself). This was urged, in and out of Congress, to such effect that the legislature instructed the new Communications Commission to hold hearings as soon as it was established. The hearings were duly held in the fall of 1934. The educators made a rather poor showing, the commercial broadcasters a very good one. The Commission reported (in the present writer’s opinion, wisely) against the proposal; but it indicated that this negative verdict would not be its last word on the matter. ‘The Commission feels, in particular, that broadcasting has a much more important part in the educational programme of the country than has yet been found for it. We expect actively to assist in the determination of the rightful place of broadcasting in education and to see that it is used in that place. . . . It is our firm intention to assist the nonprofit organizations to obtain the fullest opportunities for expression. Every sound, sensible, and practical plan for the betterment of the broadcast structure will be speedily effected.’ These are strong words.

The proposal to which an increasing body of opinion is now tending is one formulated originally by the personnel director of the Tennessee Valley Authority, and since adopted and expanded by the National Committee on Education by Radio. In essence, the suggestion is that the United States itself establish and maintain a limited number of publicly owned and controlled broadcasting stations ‘to supplement but not to supplant the present private system, and to make available to American listeners programmes free from advertising, presenting entertainment and information to promote public welfare.’ The operation of such stations, as regards programme material, would be vested in a series of publicly appointed boards comprising persons selected solely according to their qualifications, experience, and eminence in their respective fields; and the reëxamination of the broadcast band now being conducted by the Commission gives ground for hoping that a limited number of cleared channels could be secured with comparatively slight disturbance to private interests. The details of the scheme — which, by the way, corresponds in essentials to one just adopted by the Australian Commonwealth in a similar situation — are obviously adjustable, provided the cardinal principle is secured. That principle — for which, whatever happens, the fight will surely continue, to an ultimate victory — is that there be some sphere of the national life in which cultural ends are not subordinated to the demands of immediate monetary gain, and that in that sphere public service be conducted by persons directly and officially responsible to the chosen representatives of the public.

So far, the battle for broadcasting reform has aroused singularly little interest in the Atlantic States. There would appear to be two publics, one of which cares little what it hears, while the other does not listen. The great educational institutions of the East have scarcely noticed the existence, let alone considered the possibilities, of broadcasting; and the fight has been waged by the Middle and the Far West — by Illinois, Ohio, Wyoming, California — during many years of actual experiment and experience, much of it very bitter. But the issue is a national one, and the task of evolving, and then applying, an adequate conception of the public interest in this sphere deserves far more attention than it has yet received. It matters as much to the East as to the West whether we let our people drift into a materialistic inertia, steadily ripening for the chauvinist and the demagogue, or whether we make a deliberate effort to guide them to the true democracy that is theirs as soon as they are fit for it.

While there is much to be said, on technical grounds, for the contention that broadcasting should be a public monopoly with central control and decentralized operation, — and while that may in fact prove the ultimate solution, — American opinion is certainly not yet ripe for serious consideration of such a change. But meanwhile the proposal for a limited and experimental public service under public auspices deserves a friendly consideration — both by the Congress and by the public whose interest is at stake.