THE Atlantic FOUNDED IN 1857
BY ELIZABETH BRENNER DREW
THERE are scattered about Washington a number of relics of the 1930s, including some government agencies. They stand as antiquated responses to the challenges of another era. They go about their business with thirty-year-old machinery while the space age streaks by them. In some cases this is harmless enough. But with new communications technology exploding all about, the obsolescence of the Federal Communications Commission is not to be taken lightly.
The idea was that an independent federal agency would regulate the use of the publicly owned airwaves in the public interest, and assure an economic and efficient communications system. Yet the FCC botched the development of AM and FM radio, of VHF and UHF television, of allocating radio channels for other services; and it is now spreading confusion in the new field of community antenna television. It has been immobilized over pay-TV for fourteen years. To this day, there is no coherent FCC policy on minimal performance standards for broadcasting.
Disappointing as this record is, it could be lived with, as other policy failures are tolerated, if that were all there was to it. What worries close observers is that this same agency is now confronting a new set of developments undreamed of when it was established — of nations communicating within and between each other via satellites, of communication through a laser beam, of computers taking over from telephones and wire services, of ingenious electronic methods of invading privacy, of saturation of the electromagnetic spectrum while technological breakthroughs await its use, of mergers within the industry with unforeseen consequences. The evidence is that it cannot handle the job. What the consequences will be of permitting it to continue to try is anybody’s guess.
Newton Minow, who took a turn not long ago as chairman of the FCC, described it after his resignation as “a quixotic world of undefined terms, private pressures and tools unsuited to the work.”
In regulating broadcasting, for instance, the Commission is to “encourage the larger and more effective use of radio in the public interest.” What the Commission has made of these instructions is only one example of how the FCC chronically resolves the dilemma of nurturing the private and protecting the public interests. Over the years the majority of FCC commissioners have escaped the broadcasting conundrum by wrapping themselves in Section 326 of the Communications Act of 1934, which proscribes censorship. While it is a long way from censoring to requiring minimal quality programming, they make the trip with no difficulty.
The Commission’s power over broadcasting stems from its responsibility for allocating space in the publicly owned electromagnetic spectrum. The spectrum is like a mammoth rainbow divided into “bands,” or groups of frequencies, which are allocated for use by a particular type of radio service — the AM and FM bands for radio, VHF and UHF bands for television, or other bands for private uses. A company seeking to operate a radio or television broadcasting station applies to the FCC for the use of a particular frequency, or channel, during certain hours over a given radius. The applicant pays homage to the principles of serving the community by providing public affairs broadcasts and quality services; and if he is more persuasive than fellow applicants for the same channel, in exchange for a $75 to $100 fee he is granted a lucrative broadcast license.
In 1965 the television broadcasting industry had a net income of $447.9 million, nearly triple that of ten years ago; the radio broadcasting industry had a net income of $81 million, nearly double that of 1955. It has been estimated that some TV stations earn over $10 million a year. But the FCC has long agreed with the industry that to suggest measurable obligations to the public is to interfere with “free enterprise” and “freedom of speech.” Edward R. Murrow once remarked: “I can find nothing in the Bill of Rights or the Communications Act which says that [networks and stations] must increase their net profits each year, lest the Republic collapse.” On the other hand, the current FCC chairman, Rosel Hyde, typifies the traditional FCC stance: “The law forbids me from interfering with programming, even if it doesn’t forbid some other commissioners.” The argument goes on, even though the proponents of minimal standards have long since lost.
The Commission grants and renews licenses to use the airwaves for some five million transmitters — radio, television, marine, police, fire, industrial, transportation, amateur, citizens, and common carrier. Each year it processes some 800,000 license and renewal applications. The 7000-odd commercial radio and television licenses must be renewed every three years. When any station wants to increase its power or move its antenna, the FCC must consider the request. While it says that it cannot spare the manpower to check on whether broadcasters actually perform as promised in their license applications, the Commission vigilantly tracks down shrimp fishermen who use dirty words over their radios. The 1966 annual report tells us that it “closed down 40 unlicensed broadcast operations, the latter mostly by juveniles,” and investigated “over 500 cases of troublesome radiation from faulty garage door openers.”
To handle all of this, plus regulating AT&T, a $35 billion industry, and the other common carriers, such as ITT and Western Union, plus facing the issues raised by new developments in the fastchanging communications industry, the Commission has a staff of 1500 and a budget of $17 million. This is slightly more than one third of the budget of the Bureau of Commercial Fisheries.
There are seven commissioners, more than on any other major regulatory agency except the Interstate Commerce Commission, each serving seven years. The commissioners are appointed by the President, who also designates the chairman, and are confirmed by the Senate.
THE Commission’s problems are deeper than the personalities of seven men at any given time. Partly they are the problems of any bureaucracy — of frozen-in personnel, of overproceduralized methods, of indecision. Partly they are the problems of any commission — of getting a majority in sustained agreement on complex issues, of each of the commissioners asserting prerogatives and independence, of the difficulty for the staff to proceed on any assumption of what the Commission’s view is, of staff and commissioners making alliances and playing off one against the other. One staff member told me bow a certain FCC commissioner is considered to be inclined to the most recent view he has heard, so various staff members vie to be the last to phone him before a Commission meeting. The turnover in Commission membership exacerbates the problem of policy continuity and even simple administration of the agency. More than one FCC commissioner has complained recently of the difficulty of securing paper clips.
Partly, the FCC’s problems are those shared by all of the regulatory agencies. John Kenneth Galbraith has written that “regulatory bodies, like the people who comprise them, have a marked life cycle. In youth they are vigorous, aggressive, evangelistic, and even intolerant. Later they mellow, and in old age — after a matter of ten or fifteen years— they become, with some exceptions, either an arm of the industry they are regulating or senile.” Supreme Court Justice William O. Douglas, who once headed the Securities and Exchange Commission, has suggested that every regulatory agency be abolished every ten years. Nobody loves them. For instance, the FCC occupies two dingy, labyrinthine floors in the Post Office Department, with the spillover staff lodged over a grocery store on 12th Street. While other agencies have limousines, FCC commissioners ride around in the mail-delivery station wagon; when all seven are being transported, the most junior rides in a jump seat facing out the back.
Presidents pay fitful attention to the regulatory agencies and have frequently used them as dumping grounds for burned-out politicians or difficult characters who must be given a job. Presidents Kennedy and Johnson put up admirable but incomplete resistance to this tradition. Congress insists that they are an “arm of Congress,” keeps them weak through meager budgets, and frequently jumps on them when they make a move or badgers them for not moving. Early in the Kennedy Administration, regulatory agency chairmen met informally to share their sorrows; they called their group, appropriately, “The Tightrope Club.”
On the whole, however, the more politically powerful is the industry to be regulated, the more likely are congressmen to frown at regulation, and there are few groups more powerful than the broadcasters. A broadcaster’s friendship can mean life or death for a member of Congress; his station may treat the congressman’s every utterance as newsworthy, or give aid and comfort to the enemy. Nevertheless, the FCC has been all too prone to bend before the real and imagined and anticipated pressures from Congress. It tends, even more than other agencies, to confuse the demands of a few congressmen for the will of Congress. At times it retreats further than the opponents require.
For years, for example, the Commission had a vague policy that too many commercials were too many, but it never stipulated how many were too many. In 1963 it proposed to adopt as a rule the limits contained in the National Association of Broadcasters’ Code: that commercials should take up no more than eighteen minutes out of an hour of radio time, and sixteen minutes out of an hour of television time. The FCC would enforce a rule to which the broadcasters in a burst of public spirit had “voluntarily” subscribed. If the NAB caught an offender, he lost his Seal of Good Practice; if the FCC caught him, he might be fined $I000 a day. Industry codes are a time-honored tactic for heading off government regulation; and although the FCC would not have been expected seriously to enforce the industry’s standards, many stations did not want it even to entertain the idea of regulating commercial time. The House Interstate and Foreign Commerce Committee, then heavily weighted by congressmen inclined to industry’s viewpoint, held a hearing and issued a report condemning the Commission’s proposal. Shortly thereafter, the FCC formally backed off, but to underscore the point, the House voted 317 to 43 not to permit it to adopt the rule anyway.
Since the Senate did not act on the House resolution, it did not have the force of law. In light of the lopsided House vote, it would have been understandable for the Commission to drop the commercial issue for the time being. But the FCC kept marching backward. The Commission had been asking radio stations that were members of the NAB code to explain their reasons if they ran more than the code’s limit of eighteen minutes of commercials in an hour. Stations that did not belong to the code were queried only if they ran more than twenty minutes. The NAB complained to the FCC that it had established a double standard, which was encouraging members to drop out of the code. In response, last fall the FCC changed its policy and asked all stations if they planned more time for commercials than permitted under the NAB code, and if so, why. However, Chairman Hyde, according to Broadcasting magazine, quickly reassured broadcasters that the FCC would not be inflexible. It quoted him as saying the Commission would still “stress the idea that responsibility in this matter is more properly the concern of the licensee.”
Subsequently, Broadcasting reported that “word got around that the FCC was accepting explanations from a good many licensees who reported they were exceeding the code’s limitations on commercials.” In desperation, the NAB early this year eased the already generous code rules in order to be as lenient toward its members as the government agency supposedly regulating them.
There are a number of broadcasting pressure groups — the networks, FM broadcasters, “Daytimers,” advertisers, and so on — which form ad hoc coalitions, depending on the issues at hand. That they do as well as they do is less a testimonial to their professionalism than to the fact that there is hardly ever anyone on the other side. Even “public-spirited” newspapers, often owned by station owners as well, may applaud calls for better programming, but when an issue such as commercials arises, they are either silent or pro-industry.
Each year, the commissioners dutifully attend the NAB’s convention in Chicago (except in a presidential inaugural year, when the broadcasters go to Washington), visiting the hospitality suites and learning to understand the industry’s problems. Then they return to Washington to regulate it. The key pressure on the Commission, however, works more quietly. “It works subtly, almost silently,” says a former commissioner, “like the water on the stone. If you want to be reappointed, you do not want to earn the enmity of AT&T, a network, a multiple-station owner. These are really the insidious pressures. We spend too much time reading the trade press, and care too much what they say about us.”
If a commissioner does not want to stick around the agency, likely as not he ends up with the industry. If one were to include law practices, it is probable that 90 percent of the commissioners who leave the FCC take jobs involving the industry.
Occasionally, as in the late fifties, there are outand-out scandals involving the FCC, but it seldom comes to that. The industries that deal regularly with the Commission learn to be decorous. In more than one sense. Commissioners5 desks are littered with little plastic gewgaws, pieces of cable, models of satellites, many of them personally inscribed. One commissioner approvingly explained to me that when he lunches at an AT&T headquarters “they never serve pâté de foie gras, or strawberries out of season.”
Many an FCC staff member also has departed for the more lucrative pasture on the other side of the FCC, but as a general rule the staff is not as soft on industry as the commissioners are. Some of the highest-level staff inevitably reflect the commissioners’ views, but as a general rule it is the staff which wants to act, punish, or investigate, and the Commission which demurs.
I HAVE been assured by several longtime observers of the FCC that it now enjoys the highest-caliber set of commissioners in its history, a claim which invites a closer look at the group. (I am told on good authority that one of the commissioners was to go to the FPC, the Federal Power Commission, but ended up on the FCC through a typographical error.) Three out of the seven commissioners, including Chairman Hyde, have made a career of serving on the Commission. Robert T. Bartley, fifty-eight, a Texas Democrat and nephew of the late House Speaker Sam Rayburn, served on the staff in the 1930s, later worked for the NAB, and then was appointed an FCC commissioner in 1952. Bartley opposes the growth of large communications companies, but otherwise does not believe in an active FCC. “My personal feeling is the least regulation the better,” he told me. “I don’t think the government should attempt to spoon-feed or lead. The regulatory agencies were brought about to correct abuses. We should wait for signs of abuses.” Robert E. Lee, a fifty-five-year-old Republican, is a former accountant and FBI agent who was appointed to the Commission in 1953 through his connections with Joseph R. McCarthy. Lee’s apologists point out that he has made himself quite an expert on UHF.
James J. Wadsworth, sixty-two, is a former U.S. representative to the United Nations who was appointed to the Commission in 1965. Like others, he believes that the FCC is “bogged down in trivia,” and he says that his own problem is that “I don’t understand the technical jargon, the communicators’ language.” “I hate to read a long memorandum,” he told me. “Anything over two or three pages, I can’t handle it.”
Kenneth A. Cox, a fifty-year-old Democrat, is a former Seattle attorney who served on the staff of the Senate Commerce Committee, headed the FCC’s Broadcast Bureau under Minow, and was appointed to the Commission in 1963. Cox is thought to be one of the ablest and hardest-working commissioners.
Lee Loevinger, fifty-four, is perhaps the most controversial commissioner. A former law professor and Minnesota Supreme Court justice, Loevinger came from Minnesota with a reputation as a fire-breathing trustbuster to head the Justice Department’s antitrust division when the Kennedy Administration took over. Whether, as some say, he was too trustbustery for the Kennedys, or, as others maintain, he was too difficult to deal with, or both, Robert Kennedy wanted him out, and he was placed on the FCC in 1963. Since then, Loevinger has turned out to be almost constantly on the side opposing new regulatory moves, and is an industry favorite for the intellectual gloss he puts on the nonregulation philosophy. His harsh, sometimes brutal, criticism of some of his colleagues and the staff has caused an even further decline in agency morale. He once called the Broadcast Bureau the “pigpen” of the FCC. He caused a stir by stating in a speech last year: “The more I see of television the more I dislike and defend it. Television is not for me but for many others who do like it, but who have no time for many things that I like. It seems to me that television is: the literature of the illiterate; the culture of the lowbrow; the wealth of the poor; the privilege of the underprivileged; the exclusive club of the excluded masses. If television is forced to admit the elite, it will lose its exclusivity for the masses. . . . Television is a golden goose that lays scrambled eggs; and it is futile and probably fatal to beat it for not laying caviar.”
Nicholas Johnson, thirty-two, a former professor of administrative law, was named to the FCC last year after two stormy years of trying to breathe life into the Federal Maritime Administration, which he headed. Quickly dismayed by the FCC, Johnson busied himself trying to spread concern over the agency’s lack of resources to meet what he sees as “communications crises of substantial proportions.” After spelling out some of the new problems in a recent speech, Johnson characteristically reeled off a series of thoughtful questions: “The topics differ—and many more could be added — but for each similar questions spring to mind. What is the impact on our society? How can this new force most effectively be channeled to human good? Are unrestrained market forces, or some form of government regulation most appropriate? . . . What are the forces regulating the development and rate of introduction of the new technology? Are they effective in serving interests beyond private economic gain? . . . Who is asking these questions? Who answers back? What price do we pay for this placid comfort of silence in a boat none dares to rock nor cares to navigate?” Some of Johnson’s colleagues dismiss him as a brash and somewhat quixotic publicity-seeker, a naïve youth who asks questions that older and wiser men have long since laid aside.
Apparently President Johnson hoped that the appointment of a spirited young man would temper the dismay among the caring public and glee among the broadcasters at his promotion four days earlier of Rosel Hyde to the chairmanship. Hyde, a sixtyseven-year-old Idaho Republican, has been with the Commission and the Federal Radio Commission which preceded it for forty years and has been a commissioner since 1946. Hyde has a reputation as a kindly conservative who believes in minimal regulation and has learned through long training in the bureaucracy not to rock the boat. Associates of the President say that Hyde was selected in the hopes that appointing a Republican chairman would negate suspicion of favorable treatment for the broadcast interests still held by the Johnson family. If this is so, the President’s antenna failed him to a surprising degree. “The broadcasters,” commented Television, a trade magazine, “have recently begun to breathe a little easier. An old friend, very much to their liking, has been placed at the head of the agency.” When a commissioner, Hyde opposed FCC proposals to limit network ownership of programming, to further limit the number of stations in major markets one broadcaster could own, to police overcommercialization, and to require programming plans from license applicants. One of his first major acts was to appoint as head of the Broadcast Bureau — the section that grants and renews radio and television licenses — George Smith, a conservative Republican who had been a private communications lawyer for thirty years and then an assistant to Commissioner Lee. (Smith, who appears to be in his sixties, refused to reveal his age. He and Hyde are known among the staff as “The Dynamic Duo.”) Hyde likes to focus on other than broadcasting issues and says that the problems facing the agency are “awesome indeed.” “We must pioneer new policies in uncharted areas,” he says. The rhetoric is fine; the results remain to be seen.
THE Hyde appointment signaled the end of a sequence of troublemaking young chairmen: Minow, and his successor, E. William Henry. Minow, thirty-five when he was appointed, a former law partner of Adlai Stevenson and Willard Wirtz’s, came on strong in the fashion of the New Frontiersmen. His speech calling television a “vast wasteland” was his first before the NAB. The broadcasters retaliated. In 1960, Presidentelect Kennedy asked James M. Landis, a law professor and former chairman of two agencies, to make a special study of all the regulatory agencies. The FCC, reported Landis, “presents a somewhat extraordinary spectacle. . . . The Commission has drifted, vacillated and stalled in almost every major area. It seems incapable of policy planning, of disposing within a reasonable period of time the business before it, of fashioning procedures that are effective to deal with its problems.” He charged the agency with excessive subservience to congressional committees and the networks. Unfortunately, however, the portion of the Landis report that drew the most attention was a proposal characterized in the press as suggesting a White House “czar” over the agencies. This, plus the new Administration’s greenness in the first “hundred days,” jeopardized all the regulatory agency proposals. The FCC proposal, which would have strengthened the hand of the chairman and provided for considerably more delegation to the staff, was openly opposed by a majority of Minow’s fellow commissioners and gave the industry an opportunity to strike back. It was roundly defeated in Congress. (A watered-down version was later approved.) In retrospect, 1961 offered a great missed opportunity.
Regardless of his formal powers, however, and of whether he can command a majority of the commissioners’ votes — as Minow with rare exception could not — an FCC chairman can have an important effect. He sets the tone, focuses the issues, appoints key staff members, attracts or drives away fresh talent, drums up public and press interest. Moreover, if it is believed that he is close to the throne, he can have considerable influence over his colleagues, all of whom are subject to reappointment during a President’s eight years in office. Minow was believed to be close to President Kennedy — closer, perhaps, than he in fact was — and he was probably the first man to make the FCC glamorous. Moreover, he pushed through Congress bills to promote UHF television and give federal aid to educational television, and he steered the agency to closer examination of licensees’ performance. It is also said that he shamed the networks into more public-service programming, but how much this was a result of his harassment and how much of the networks trying to climb out of the trough of the quiz scandals is problematic.
Minow departed, however, after only two years. Loevinger was appointed to the Commission in his place, and Henry was named chairman. Henry, then a thirty-four-year-old Memphis attorney with Kennedy connections, was in the Minow mold but had to begin again the making of alliances. Some of his colleagues never forgave Henry the fact that he moved in glamorous social circles, and thought it unpardonable that he appeared in a muchpublicized charity show as Batman. Henry continued to fight for more educational television, for closer examination of licensees’ performance, and pushed through the FCC’s first full study of AT&T since the 1930s. Until then, the FCC and AT&T simply negotiated as sovereign if unequal powers. When a commissioner suggested that there ought to be a full-blown study of AT&T, AT&T officials assured him that he was quite an expert already; when commissioners asked questions, AT&T helpfully showered them with facts and figures; if commissioners, particularly the chairman, sought a rate reduction, AT&T would gladly discuss it. It was always a matter of who had the votes, the chairman or AT&T, with AT&T taking care not to inspire any noisy dissent.
Minow is particularly proud of securing a rate of $I for the first three minutes on station-to-station calls after 9 P.M. and on Sundays. The problems with such a procedure are that it is difficult to trace where AT&T might make up for the lost revenue, and perhaps another chairman will prefer low rates on Tuesdays, or when there is a full moon. The AT&T investigation is still under way, with a grand total of eighteen staff members spending full or part time on it.
THE most common explanation put forward for the Commission’s chronic failure of foresight is that it is too busy with its day-to-day problems. It is therefore fair game to examine how well the Commission does what it does do. (It should be said here that in my many visits to the Commission offices I detected no signs of frenzied labor, or of long hours.) For all of its burdens, the Commission meets only one day a week, and frequently disposes of its business by lunchtime. Each Wednesday morning, the Commissioners mount the semicircle dais in their meeting room and deliberate whether Broadcaster X may move his antenna tower, or Broadcaster Y may go from 250 watts to 500 watts. A Commission meeting apparently resembles nothing so much as a Mad Tea Party, with commissioners dozing and bickering and catching at straws.
Earlier this year, for example, the Commission deliberated whether an unpopulated mountain is a “community” and somberly concluded that it was not. On another occasion the staff brought before the Commission the request of a group of Delaware educators for a small closed-circuit television system. The staff suggested that since the rules involved were so many and so complex, the Commission should waive the lot of them. John Gardner once remarked that “the last act of a dying organization is to get out a new and enlarged edition of the rule book.”
While some problems before the Commission take years to resolve, it can act with surprising dispatch, as it did in the case of the merger of ABC and ITT. The proposed merger would be the largest in the history of broadcasting; the two companies have a combined revenue of over $2 billion annually. ABC and ITT applied for FCC approval of the merger on March 31, 1966. During the summer, because Commissioner Bartley was pushing for a full evidentiary hearing, the Commission scheduled a one-day meeting in which principals of the two companies would tell the commissioners why they wanted to merge. Questioning by Bartley, Cox, and Johnson extended the “hearing” into two days, September 19 and 20. Meanwhile, Hyde had been writing to the Justice Department’s Antitrust Division, asking if it saw any problems. The Division finally responded with a five-page single-spaced letter from Assistant Attorney General Donald F. Turner stating that Justice was “not presently contemplating an action under the antitrust laws” but laying out “the possibilities of adverse effects [which] are significant enough . . . that they deserve full and serious consideration by the Commission.” Turner’s letter arrived after 6 P.M. on December 20. The following morning the Commission approved the merger.
The principal reason given for approval was the one advanced by the applicants: that ABC needed additional revenues, which ITT could provide, to make it more competitive with the other networks. Bartley, Cox, and Johnson dissented. Bartley charged that the Commission had “rushed into an approval of the merger” without considering “fundamental questions of highest importance.” Johnson said he was “simply stunned and bewildered.” He pointed out that ABC was already a profitable venture, and that ITT had made no commitment of funds to ABC. He and Bartley worried about the effects on ABC’s news and publicaffairs programming of ITT’s extensive overseas holdings, and about the economic effects on the broadcasting industry of having one major broadcaster part of a huge conglomerate corporation.
Justice petitioned the FCC to reopen the case, charging that the FCC had violated the law by holding such a brief hearing, that it had failed to examine “crucial facts.” The Department later produced evidence that funds would not actually be passing from ITT to ABC, but that ITT was looking upon ABC as a source of funds—$100 million over the next five years. The FCC’s own staff subsequently agreed with Justice on this key point, and the Commission reluctantly reopened the case. It declared that in the light of “the public interest in a prompt settlement of the present uncertainty, we think that expedition is required.” A new decision was expected as early as June.
The Commission can also show dispatch in renewing license applications. When a broadcaster applies for a license, he makes specific pledges about the amount of time he will devote to publicaffairs programming and local service. It is explained that the Commission does not have the manpower to monitor stations to see if in fact these pledges are carried out, but that his program practices will be closely examined when he files for his triennial license renewal. Minow and Henry instituted a renewal application form designed to draw more information about actual programming practices, but this information appears to be of little moment to the Commission. Earlier this year, Cox and Johnson dissented from the routine renewal of a group of 206 licenses when the applications showed that 2 proposed no news programming whatsoever, 7 proposed no public-affairs programming, 23 proposed less than one percent of their time to be devoted to public affairs, and 88 proposed no other type of public-service programming. “It seems to me,” said Cox, that stations “are downgrading their commitments . . . because they feel the majority of the Commission won’t do anything about it.” Cox charged that the Commission was making “a farce of the whole reporting and reviewing process.”
Theoretically, the Commission sought to reduce its agenda by developing a set of standards for licensees and permitting the Broadcast Bureau itself to grant and renew licenses if they meet those standards. “Frankly,” conceded one commissioner, “I couldn’t tell you what the standards are now. The staff sort of figures out our current policy from what we did in the last two months.” Though there is a great deal of talk about delegating, the Commission is too suspicious of the staff and the staff is too perplexed about Commission policy for it to happen much. One of the penalties of all this is a serious backlog of contested applications, and for the wrong reasons. There are some cases of competing applications for licenses, or appeals from a Commission decision, which have been before the Commission for ten or twenty years.
Minow believes that the station-by-station license and renewal procedure, conceived in the days before networks, amounts to swatting gnats. Henry came to believe that it would make more sense to establish minimal requirements and then give licenses away by lottery. The broadcasters, typically confusing a privilege with a right, say that station licenses ought to be granted permanently, subject to revocation for cause. It is possible that they suggest this in knowledge of the Commission’s record of revoking licenses: 1 in 1961, 5 in 1962, 4 in 1963, 4 in 1964, 0 in 1965, and 2 in 1966. The record of renewals refused is not much more extensive: 16 in the last 5 years. Hyde’s solution is to renew licenses for fiveinstead of three-year periods (“with maturity goes responsibility”).
WHEN Congress in 1962 created the hybrid Communications Satellite Corporation — part owned by the common carriers, most AT&T, and part a public corporation — to operate an international satellite, it left a number of issues unresolved. Should Comsat compete with the common carriers, or should it be a common carriers’ carrier? The Commission chose the latter course, thus guarding against severe competition for the carriers. Who should operate the lucrative ground stations, Comsat, the carriers, or someone else? The Commission “temporarily” permitted Comsat to operate the first ones and told Comsat and the carriers to get together and carve up the rest. This is an odd way to proceed on such an important matter, but by thus splitting the baby, nobody got too hurt. Except perhaps the baby, but it is too early for the layman to know that.
Also left unresolved by Congress was the enormously important and complex question of who is to operate a domestic satellite system, or systems, and for what purposes. What kind of domestic system, or systems, should there be, available for what kinds of uses, by whom, and how competitive? Should the common carriers continue to be protected from the competition of new technology? Who will benefit — or will anyone — from the costs saved by communicating by satellite? Technically, some of the issues are before the Commission in the form of the Ford Foundation’s proposal for a satellite system for television, with the money saved when the commercial networks switch from conventional to satellite communication to be turned over to public television. Comsat, now an aggressive creature itself, countered by urging the FCC to permit it to operate a general-purpose domestic system, arguing that that is what Congress intended, that technology is ready and time is wasting. (Whether technology is ready is debated by the experts.) The satellite issues are so fundamental, the competing interests so great — the networks, AT&T, which earns $50 million a year from carrying television signals, the nation’s largest foundation, Comsat — and the stakes are so large that it is possible that Congress and the White House will make the decisions. (The separate issue of public television raised by the Ford and Carnegie Foundations is already before Congress.) That might be just as well. I asked Chairman Hyde how many FCC employees were studying the issues raised by Ford. “Only one full-time person,” he replied.
The Commerce Department, ordinarily not a very melodramatic place, completed a study not long ago of what it called the “silent crisis” —the shortage of spectrum space — and recommended a special group with an initial budget of $11 million, eventually $50 million, to handle the problem. The FCC, in a major leap forward, will devote $300,000 to research on spectrum allocation this year. The questions involved are complicated and important: what are the relative social, economic, even political implications of allocating more or less space to the various users — from doctors’ beepers to police cars to television stations to communications satellites? Should traditional users, such as oil companies and ham radio operators, be displaced in favor of new technologies such as pocket telephones? The popularity of a children’s walkietalkie toy last Christmas caused something of a crisis for the FCC. What should be done about this? Or is it perhaps time to rearrange the allocations among private spectrum users? The FCC still proceeds, according to a system established some twenty years ago, to grant a certain band across the country to each type of private user, although the need for the forestry band is minimal in New York City, and there is even less demand for the taxicab band in the Gulf of Mexico.
Is cable television, which reduces the use of spectrum space, something that ought to be encouraged on those grounds, regardless of the discomfort to established television interests? Does it suggest methods of bringing other services, such as facsimile, data, or shopping, into the home? What does it mean that within five years about half of all information transmitted will be between computers, and how can the competing interests between, say, AT&T and IBM, be resolved, preferably with the public getting its share of the benefits? The FCC has begun a study of the computer issue, but no special staff has been assigned to it.
Chairman Hyde explains that the acute staff shortage is ameliorated by the fact that “we get a lot of valuable help from various industry groups.” Hyde said that the industry groups give information and advice, and that a representative of the FCC sits in their meetings to prevent collusion. But collusion is not the only danger, nor is it likely to be eradicated by the FCC representative. Many government agencies set up business advisory committees as a way of getting advice and keeping peace; but there can be a problem when a limited staff is dependent upon the industry to the point where the industry can dominate the agency’s policies. Presumably Congress did not set up regulatory agencies with the intent of having the agencies turn to the industry to inquire how it should be regulated.
There is thus a great deal of evidence that it is time to redefine and re-evaluate the FCC’s mission. It is time to dust off “the public interest” and reexamine where it comes in. It is not all that new to suggest that the FCC should be revised. The law journals are full of suggestions for changing the FCC, and the literature is a nitpicker’s delight. Most of it is in terms of establishing more clear-cut procedures on behalf of the applicants. But the FCC’s problems are beyond nitpicking, and of importance to more than the clients. A thorough re-evaluation would suggest a number of new combinations, ranging from tinkering with the existing institution, to transferring some of its functions elsewhere, to starting afresh. There are some basic principles on which thoughtful critics agree: somewhere there must be an agency with sufficient funds for research, in house or contracted out, that can keep the government abreast of communications developments. There must be sophisticated analysis of the interrelated communications issues which are now approached in a haphazard ad hoc manner.
It is all too easy to call for a reorganization of an agency which does not seem to be coping, for reorganization for its own sake means next to nothing without a redefinition of purpose and without sufficient resources in both staff and funds to carry it out. Yet there have been many worthy suggestions for structural changes: almost all observers of the FCC feel that seven commissioners is at least two too many (Henry thinks it is four too many, and Minow concluded it was six too many); no one disputes that the machinery must be streamlined. But none of this will matter unless the FCC, or whatever agency emerges, is invested with the mission and prestige which the issues before it demand, and which in turn will attract, and hold, good men. It would be naÏve to suggest that such an agency could operate, or its leaders could be chosen, without regard to the political context, but it is not too much to ask that it be more independent of it.
One close observer has suggested that the issues are so important that the agency should be as prestigious as a U.S. Court of Appeals, and the appointments to it taken as seriously. Perhaps commissioners should serve for longer terms. Certainly the agency might be less composed of men who use it as a sinecure or springboard. The FCC cannot be expected to work a self-transformation. That leaves Congress and the White House, and this sort of reform is not likely to start in Congress.