Broadcasting Telecasting (Jan-Mar 1960)

Commission, therefore, would not consider individual programs or categories of programs in granting or denying a license other than those that would clearly violate existing laws. Rather, it\ would be judging a licensee on the basis of his responsible service to a responsible portion of his community as determined by that licensee. "If, in its review of such narrative reports, the Commission should find no evidence of a bona fide effort on the licensee's part to respond to the wants of a responsible element of the community, then there would arise such question concerning the licensee's character that the Commission should investigate the matter further. "This was the burden of what we said, although it took 15,000 words to make the point. "Among those words were these: "(1) 'Any broadcaster who would defy the public interest by condoning such practices (as "payola" and "quiz rigging") deliberately would not stand the test of public responsibility which we are recommending.' "(2) 'In effect, what we have said here is that we believe the government should stay out of programming per se — that self-regulation by the broadcasting industry, even with its limited sanctions, is more in keeping with our democracy than government control, whether by lifted eyebrow or by lifted mace.' "(3) 'We do not believe that new rules are needed by the Commission to satisfy itself with respect to the licensee's sense of responsibility in meeting the public interest. A narrative report, as we have suggested, should give the Commission a clearer idea of the broadcaster's seriousness of purpose than now is available— and obviate the recurrent temptation to censor, or to supervise, if we might put it in softer language.' "(4) 'We believe the Commission should abandon the idea of reviewing "performance" insofar as such review concerns itself directly with program content.' "(5) 'The First Amendment states not only a fundamental principle of law but also a fundamental philosophy representing the thinking of the public of this country. We believe that there is general agreement on the fact that, legalistics notwithstanding, the basic philosophy of this country is that even if government could regulate programming, it should not.' "This states as clearly as we know how to state it the feeling of the National Assn. of Broadcasters that the federal government should stay out of programming in American broadcasting. . . "Have we said anything new here? No indeed, we have not. We started BROADCASTING, February 29, I960 taking this position as an association at least 30 years ago, when the first struggling efforts were made to establish a system of self-regulation in radio broadcasting. We have maintained consistently, before the Congress and the Commission and before other interested government bodies and private groups, ever since that time, that the intrusion of government into programming is a terrifying dangerous experiment, with unusual possibilities of damage to the public interest. "Mark Ethridge said it in 1941, at a convention of the National Assn. of Broadcasters held in St. Louis, when a former chairman of the Federal Communications Commission, James Lawrence Fly, made that famous reference to us as 'a dead mackerel in the moonlight.' "Neville Miller said it back in 1943. "Judge Justin Miller said it in commenting on the Bluebook, that abortive endeavor by a few ambitious people at the Federal Communications Commission to get into the business of program direction. That was in 1947. He said it again in 1952, during hearings on Capitol Hill. "And I said it again, a few weeks before this meeting, when I appeared before the Federal Communications Commission." MR. FELLOWS' identification of present policy with that of Justin Miller's time was not as apparent in his testimony before the FCC as it was in his speech last week. In his prepared testimony he said that although the FCC could not control or scrutinize programming "per se," the NAB felt it proper for applicants to submit narrative reports on general performance in seeking new grants or license renewals (Broadcasting, Feb. 1). This struck the FCC hearing attorney and some commissioners as a deviation from the association's former stand. 1 In questioning Mr. Fellows after he finished reading his prepared statement, Ashbrook Bryant, FCC attorney, tried to find out how the new NAB position compared with positions the association had taken in the past. Mr. Bryant quoted this NAB testimony, by an unnamed witness, at congressional hearings in 1934: "It is the manifest duty of the licensing authority, in passing upon applications for licenses or the renewal thereof, to determine whether or not the applicant is rendering or can render an adequate public service. Such service necessarily includes the broadcasting of a considerable proportion of programs devoted to education, religion, labor, agriculture, and similar activities concerned with human betterment." Mr. Fellows said that statement dif fered from the current policy. The Miller Doctrine • Mr. Bryant then quoted from testimony by Justin Miller, then president of the NAB, before the Senate Commerce Committee June 17, 1947. Mr. Bryant read these two questions by Sen. Wallace White, who was chairman of the committee at the time and these two answers by Judge Miller: Sen. White asked: "I would like to have your view as to whether, in reaching a conclusion as to the public service or the want of public service being rendered, the regulatory body has a right to look at the programs and has any control whatsoever over the programs they send out." Judge Miller answered: "I think it has not." Sen. White asked: "So you would say that the quality of the programs has nothing to do with the question of whether a public service is being rendered or is not being rendered." Judge Miller said: "I do. Unless it goes so far as to constitute an obscenity* or incitement to crime or something like that which is well within the limits which have been placed upon the freedom of speech generally." In Between • Mr. Bryant noted that the position taken by Judge Miller in 1947 was markedly different from that taken by the association in 1934. He said to Mr. Fellows: "I gather that the position you are stating here today is somewhere midway between those two views." Mr. Fellows said: "I think I stand just as Judge Miller stood in that statement, sir." Then he added: . . . "We do not say that the Commission has no right to investigate the programming content of any station. We start by saying that before the man is given a license or a renewal that he should state what manner he has pursued in attempting to determine the public interest, convenience and necessity, the wants, the needs of that particular community which he chooses to serve or to continue to serve. "Then he states the manner in which he proposes to meet these wants and desires; or, if he is then up for renewal, he proposes the manner in which he has met them . . . "I cannot see how it [the FCC] can properly determine whether or not the man has met the public interest, convenience and necessity, unless it concerns itself with his overall program structure . . ." Almost, Not Quite • A clearer distinction between the NAB position described by Mr. Fellows and the position taken formerly by Judge Miller was sought, later the same day, by FCC *In the transcript of the FCC hearings the words "an obscenity" were incorrectly reported as "a vicinity." 49