Broadcasting Telecasting (Apr - June 1951)

Text (in part) of U. S. Court of Appeals Transit Radio Ruling (See Separate Story) . . . The passengers are known in the industry as a "captive audience." Formerly they were free to read, talk, meditate, or relax. The broadcasts have replaced freedom of attention with forced listening. Most people have to use mass transportation. In the District of Columbia this means they have to use (Capital) Transit and hear the broadcasts. Even as between the District and the adjoining Pentagon region in Virginia the Supreme Court has said: ". . . most government employes, in going to and returning from their work, were compelled to begin or complete their trips by utilizing buses or streetcars of Capital Transit." The forced listening imposed on Transit passengers results from government action. By authorizing Transit and forbidding others to operate local streetcars and buses, Congress made it necessary to hear the broadcasts. (They) cannot operate in city streets without a franchise. Congress has given Transit not only a franchise but a virtual monopoly of the entire local business of mass transportation of passengers in the District of Columbia. Furthermore, the forced listening has been sanctioned by the governmental action of the (Public Utilities) commission. If the commission had found it contrary to public comfort or convenience, or unreasonable, it would have stopped. Because the commission decided otherwise it continues. No occasion had arisen until now to give effect to freedom from forced listening as a constitutional right. Short of imprisonment, the only way to compel a man's attention for many minutes is to bombard him with sound that he cannot ignore in a place where he must be. The law of nuisance protects him at home. At home or at work, the constitutional question has not arisen because the government has taken no part in forcing people to listen. Until radio was developed and someone realized that the passengers of a transportation monopoly are a captive audience, there was no profitable way of forcing people to listen while they travel between home and work or on necessary errands. Exploitation of this audience through assault on the unavertible sense of hearing is a new phenomenon. It raises "issues that were not implied in the means of communication known or contemplated by Franklin and Jefferson and Madison." But the Bill of Rights . . . can keep up with anything an advertising man or an electronics engineer can think of. If Transit obliged its passengers to read what it liked or get off the car, invasion of their freedom would be obvious. Transit obliges them to hear what it likes or get off the car. Freedom of attention, which forced listening destroys, is a part of liberty essential to individuals and to society. The Supreme Court has said that the constitutional guarantee of Oi<&tAt!H WE'VE RAISED RATES! OUR OLD RATES WERE OBSOLETE (1940) We have adjusted our rates in line with the tremendous increase in size of our market and audience. AVERAGE RATE INCREASE 7Vi% POPULATION INCREASE 67.1% RADIO HOMES INCREASE 242.0% RETAIL SALES INCREASE ....341.0% Send for free booklet telling why KGER is still the best buy in Southern California! The Station of the American Home KGER 5 0 0 0 WATTS LONG BEACH LOS ANGELES Associated with KUOA, Siloam Springs, Ark. liberty "embraces not only the right of a person to be free from physical restraint, but the right to be free in the enjoyment of all his faculties. . . ." One who is subjected to forced listening is not free in the enjoyment of all his faculties. Of course, freedom from forced listening, like other freedoms, is not absolute. No doubt the government may compel attention, as it may forbid speech, in exceptional circumstances. But a deprivation of liberty to which the government is a party is unconstitutional when it is "arbitrary or without reasonable relation to some purpose within the competency of the state to effect." Forcing Transit passengers to hear these broadcasts has no reasonable relation to any such purpose. Some discomforts may perhaps be inevitable incidents of mass transportation, but forced listening is neither incidental nor inevitable. It deprives the appellants and other passengers who object to the broadcast of their liberty for the private use of Transit, Radio, and passengers who like the broadcasts. This loss of freedom of attention is the more serious because many people have little time to read, consider, or discuss what they like or to relax. The record makes it plain that the loss is a serious injury to many passengers. They suffer not only the discomfort of hearing what they dislike, but a sense of outrage at being compelled to hear whatever Transit and Radio (Transit Radio Inc.) choose. Willing listeners are entertained by the broadcasts. But the profit of Transit and Radio and the entertainment of one group of passengers cannot justify depriving another group of passengers of their liberty. The interest of some in hearing what they like is not a right to make others hear the same thing. Even if an impartial survey had shown that most passengers like the broadcasts or were willing to tolerate them on the supposed chance of a money benefit, that would not be important, since the will of a majority cannot abrogate the constitutional rights of a minority. Moreover, there is no evidence that any large group of passengers actually wish to go on being entertained by broadcasts forced upon other passengers at the cost of their comfort and freedom. It has been argued that when freedom of attention is abridged freedom of speech and press are abridged, and that when Transit sells the forcedattention of its passengers to Radio for advertising purposes it deprives them of property as well as liberty. Also, it may well be doubted whether Transit can perform its statutory duty of providing comfortable service for all by giving more than comfortable service to some and less than comfortable service to others. But we need not consider these issues. In our opinion Transit's broadcasts deprive objecting passengers of liberty without due process of law. Service that violates constitutional rights is not reasonable service. It follows that the (Public Utilities) Commission erred as a matter of law in finding that Transit's broadcasts are not inconsistent with public convenience, in failing to find that they are unreasonable, and in failing to stop them. This decision applies to "commercials" and to "announcements." We are not now called upon to decide whether occasional broadcasts of music alone would infringe constitutional rights. The judgment of the District Court is therefore reversed with instructions to vacate the commission's order and remand the case to the commission for further proceedings in conformity with this opinion. Reversed. Open Mike (Continued from page 18) 28]. Program quality taped or live is unimportant in evaluating the need for network. We assume that network programs have to be good, even though very often they are not. The point at issue is "are networks necessary unless they perform a service which cannot be performed in any other way by any other media? That's what they used to do. Today they seem to be lost in a maze of confusion, indecision and frustration. They need a reason for being; once they find it again TV will be only another competitor, not a monster. Gustav K. Brandborg Asst. General Manager KVOO Tulsa Prairie Isn't Lone EDITOR: Noticed recently in Broadcasting • Telecasting where someone was stating radio signals did not have as high strength in summer as in winter. In the primary-fringe area this becomes an asset in reducing same-channel interference to the point where each station actually gets out farther in summei than in winter. Another odd fact is that under present network rate-cutting we small stations out on the prairie far from TV become a highly rated asset to the networks, as our audience proved in placing us so high on the recent Queen for a Day contest. Bud Crawford President KCNI Broken Bow, Neb. RCA Deliveries RCA VICTOR Div. of RCA has notified suppliers that some of its departments will suspend operation for a two-week vacation period beginning June 29. Purchasing sections of the parts and tubes divisions and the record and home instrument departments will advise suppliers of specific deliveries that will be made during that period. Shipments to the Engineering Products Dept. will be suspended "except for orders referencing (certain) urgent defense contracts," RCA's Victor Div. added. Page 60 • June 11, 1951 BROADCASTING Telecasting