pleased to report, however, that a growing minority of responsible broadcasters have responded more positively. They recognize their obligations, and their problems, and are trying to improve. But an uncomfortably large number still practice haughty, arrogant disregard of public, critics, government, professional standards-everything, indeed, save ever-escalating profits.

As a result, virtually every facet of television is under attack from some quarter. My mail comes from all age groups, all educational and economic levels, all sections of the country, and all positions of the political spectrum. Areas of concern and levels of sophistication vary. But that television needs some improvement, and that the profiteers of the public airwaves are not living up to their responsibilities, are propositions for which Vice President Agnew's Army and the "effete intellectual snobs" can march arm in arm.

It is neither possible nor purposeful to list all the complaints of individuals and groups. The basic problem is that television does to your mind what cotton candy does to your body. It attracts your attention, makes you want it, and then leaves you with nothing but an empty feeling and a tooth ache. A nation that permits its television industry to send 100 million Americans to bed intellectually hungry every evening will find their inevitable frustration and anger manifest in many ways. Some complain about the volume of commercials the quantity and loudness-and especially their impact upon children. A few other examples will make the point.

Blacks complain about the failure of the media to serve their needs and interests. (Picket signs read, "Soul Music is Not Enough.") The Kerner Commission found the broadcasting industry heavily implicated in the worsening race relations in this country, and concluded, "the communications media, ironically, have failed to communicate." Report of the National Advisory Committee on Civil Disorders, Chapter 15, "The News Media and the Disorders" (1968). The industry's record in employment of minority group members is about the poorest of any segment of American business; it has attracted the concern of the U.S. Department of Justice, the Equal Employment Opportunity Commission, the Civil Rights Commission, the Community Relations Service, and the FCC.

Mothers are angered by the lack of children's programing, and the impact of that which does exist. A new group called Action for Children's Television recently picketed a Boston television station for canceling part of "Captain Kangeroo." Mrs. Joan Ganz Cooney's $10 million production called "Sesame Street" is the best children's television of which our nation is now capable. It has received rave reviews, from, among others, my five-year-old son Gregory. The program was offered free to commercial stations. None, to my knowledge, chose to make it available to their young viewers.

John Banzhaf and his national organization, Action on Smoking and Health, are attempting to enforce the fairness doctrine requirement that stations carry anti-smoking spots-something the FCC refuses to do. You know, of course, that even the tobacco industry was prepared to take its ads off television before the broadcasting industry leadership was willing to lose the profitable revenue it gained from contributing to the premature deaths of some 300,000 Americans a year. The broadcasting industry actually went so far as to argue to the Supreme Court that broadcasters have a First Amendment "right" to keep information about the health hazards of cigarette smoking from their unsuspecting audience of potential consumers. Needless to say, they did not prevail.

Many have examined the general state of television and found it wanting. Charles Sopkin watched every channel in New York City (presumably one of our best markets) for a week and lived to tell about it in a book entitled Seven Glorious Days, Seven Fun-Filled Nights. He concludes: "I naively expected that the ratio would run three to one in favor of trash. It turned out to be closer to a hundred to one." Former press secretary to President Johnson, and now publisher of Newsday, Bill Moyeres, recently referred to "the interminable procession of mediocrity we are offered every night on television." Jack Gould, the distinguished television critic for the New York Times, has said, "Television, to be blunt about it, is basically a medium with a mind closed to the swiftly moving currents of tomorrow. The networks have erected an electronic wall around the status quo." N. Y. Times, March 30, 1969, II, at 21. Mason Williams says, "I am qualified to criticize television because I have two eyes and a mind, which is one more eye and one more mind than television has." And the most recent report is the first annual Alfred I. du Pont Columbia University Survey of Broadcast Journalism, which concludes that "most broadcasting must appear a hideous waste of one of the nation's most important resources."

The Congress has set up a regulatory scheme for dealing with complaints such as these. I am one of those responsible for carrying out your will. How well have we been doing?

Broadcast regulation in theory and practice

Virtually every country in the world treats broadcasting as an activity possessed of unique public responsibilities. In many countries-Scandinavia among them all stations are owned and programmed by an agency of government or a public corporation. Other countries have recently supplemented their public broadcasting facilities with the competition of privately owned, commercial stations (subject to government regulation). Japan is an example. When England supplemented its world-famous BBC service with a commercial "independent television service" the new stations continued to be publicly owned. They are merely programmed, during portions of the week, by various programming companies licensed for fixed terms by the Independent Television Authority (ITA). (Unlike the FCC, the ITA has been quite freely encouraging competition by refusing to renew some companies' authority.)

These special responsibilities of broadcasters are based upon a number of considerations. (1) Only one broadcast signal can operate on a given frequency, at a fixed time and place. Some rules are necessary. (2) Presumably the rules could have been evolved by courts (as we first regulated the use of air space for buildings and other purposes); but it has been generally conceded that administrative regulation of some kind seems to have worked better. (3) There tends to be a much greater demand for broadcast stations than the supply. This is due in part to the technological limits upon the number of stations in a given advertising market, and the resultant opportunity for monopoly or oligopoly profits. (4) Most countries have concluded that it is inappropriate to permit the "homesteading" of this public resource through ownership from use. They have, instead, utilized public licensing when private use is permitted at all. (5) They also recognize the awesome potential of such a powerful instrument of enlightenment or propaganda to do a nation's people good or ill. They know that in any country in which public opinion is relevant to public policy the power of those who control the mass media is as great or greater than that of the elected officials themselves. (6) Most countries have not limited profits, or exacted significant fees, for the use of frequencies. They have, instead, established some minimal standards of fair play ("fairness doctrine," free time for political campaigns, and so forth) and insisted that the public be repaid through public service programming-service above and beyond what profit-maximizing in the marketplace would produce. Such concerns and standards have their analog in the history of broadcast regulation in the United States. During the debates on the Radio Act of 1927 and the Communications Act of 1934, Senators and Congressmen repeatedly expressed their awareness of the potential economic and political power of this industry, its great opportunity and responsibility, and the need for a close public check upon it.

No more prophetic words can be found than those spoken by Congressman Johnson, of Texas, commenting on the proposed Communications Act:

"There is no agency so fraught with possibilities for service of good or evil to the American people as the radio.. .. The power of the press will not be comparable to that of broadcasting stations when the industry is fully developed. . . . They can mold and crystallize sentiment as no agency in the past has been able to do. If the strong arm of the law does not prevent monopoly ownership and make discrimination by such stations illegal, American thought and American politics will be largely at the mercy of those who operate these stations.... [W]hen such a weapon is placed in the hands of one, or a single selfish group is permitted to either tacitly or otherwise dominate these broadcasting stations throughout the country, then woe be to those who dare to differ with them. It will be impossible to compete with them in reaching the ears of the American people."

67 Cong. Rec. at 5558. During the floor debates in the House, Congressman White, of Maine, stated:

"[T]he right of the public to service is superior to the right of any individual to use the ether. ... [The conference bill] starts out by asserting in the first place that the right to broadcast is to be based not upon the right of the individual, not upon the selfish desire of the individual, but upon a public interest to be served by the granting of these licenses."

67 Cong. Rec. at 5479; 68 Cong. Rec. at 2579. As early as November 1927, Secretary of Commerce Hoover urged at the Fourth National Radio Conference that

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each applicant for a broadcast license be required to prove, "that there is something more than naked commercial selfishness in his purpose. [W]e should not freeze the present users of wave lengths permanently in their favored position, irrespective of their service." Fourth National Radio Conference, pp. 7–8. These views were quickly affirmed by the United States Supreme Court. In FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 138 n. 2 (1940), the Supreme Court directed the Federal Communications Commission to hold comparative hearings on applications for an AM radio station. The Court observed:

"Since the beginning of regulation under the Act of 1927, comparative considerations have governed the application of standards of 'public convenience, interest, or necessity' laid down by the law. . . . 'Since the number of channels is limited and the number of persons desiring to broadcast is far greater than can be accommodated, the Commission must determine from among the applicants before which of them will, if licensed, best serve the public. Those who give the least, however, must be sacrificed for those who give the most. The emphasis must be first and foremost on the interest, the convenience, or necessity of the listening public, and not on the interest, convenience, or necessity of the individual broadcaster or the advertiser.'" [emphasis supplied.]

It is my fear, to quote then-Secretary of Commerce Hoover, that S. 2004 would "freeze the present users of wave lengths permanently in their favored position," unless other businessmen and citizens are allowed to present their proposals to the Commission for comparative consideration.

Following this debate, in 1927 and 1934 the Congress purposefully provided that an FCC license would only be "for the use.. but not the ownership" of the assigned frequency. The license would be for a term. A six-month license term was originally specified. Later (as the industry gained political power) this term was extended to one year and then to three years. (Recently the industry has been urging a five year term! The FCC has, so far, refused to indorse the proposal.) After the original term the FCC must make an affirmative finding, every three years, that a renewal of the license will serve the public interest; it is not, like a license to practice law, something that lasts for life unless revoked. The FCC may refuse to renew, and grant the license to another party. Thus, the licensee's relationship to the government is very much like that of a highway contractor-he is free to bid against others for an extension of the profitable relationship, but he is not entitled to an additional term as of right. As Judge Burger said for the U.S. Court of Appeals, "after nearly five decades of operation the broadcast industry does not seem to have grasped the simple fact that a broadcast license is a public trust subject to termination for breach duty." Office of Communications of United Church of Christ v. F.C.C., 395 F. 2d 994, 1003 (D.C. Cir. 1966). A licensee must, says the Court, "literally run on his record." Id. at 1007.

For a variety of reasons, the system simply hasn't worked as intended. As in so many other instances of "regulation" of an industry, the FCC has permitted irresponsibility to run rampant-under its imprimatur and protection. Lest there be any doubt about the drubbing the public has taken under its leadership, just consider a few of these cases.

The FCC once decided that a radio station proposing thirty-three minutes of commercials per hour would be serving the public interest. Accomack-North Hampton Broadcasting Co., Inc., 8 F.C.C. 2d 357 (1967).

It permitted the wholesale transfer of construction permits from one licensee to another, prompting the Special Investigations Subcommittee of the House Interstate and Foreign Commerce Committee to conclude: "The Commission apparently confused its role as guardian of the public interest with that of guardian of the private interest." Special Investigations Subcommittee of the House Interstate and Foreign Commerce Committee, Trafficking in Broadcast Station Licenses and Construction Permits, H.R. Rep. 91-256, 91st Cong., 1st Sess. 58 (1969).

The FCC approved a license transfer application for a station that quite candidly conceded it proposed to program no news and no public affairs at all. Herman C. Hall, 11 F.C.C. 2d 344 (1968).

When presented with charges that a southern station was engaged in racist programming the FCC first refused to let the complainants participate in the case, and then found that the station's performance entitled it to a license renewal. Lamar Life Broadcasting Co. [WLBT], 38 F.C.C. 1143 (1965); 14 F.C.C. 2d 431, 442, 484 (1968). The Commission was roundly denounced by the U.S. Court of Appeals, not once but three times. Office of Communications of United Church of

Christ v. F.C.C., 359 F. 2d, 994 (D.C. Cir. 1966); No. 19409, 16 P & F Radio Reg. 2d 2095 (D.C. Cir., June 20, 1969); petition for rehearing denied, 17 P & F Radio Reg. 2d 2001 (1969). On one occasion the Court said the Commission exhibited "at worst a profound hostility to the participation of the Public Intervenors and their efforts." Office of Communications of United Church of Christ v. F.C.C., No. 19, 409, 16 P & F Radio Reg. 2d 2095 (D.C. Cir., June 20, 1969). Seldom has the FCC found even the most brazen monopoly ownership patterns to violate the public interest-notwithstanding the vigorous protests of the Antitrust Division of the United States Department of Justice in cases with appropriate names like “The United States versus the Federal Communications Commission" (appeal of the ITT-ABC merger case). ITT-ABC Merger, 7 F.C.C. 2d 245, 273 (1966); 9 F.C.C. 2d 546, 581 (1967). In another instance the FCC renewed the license for a newspaper-television monopoly as serving the “public interest" (presumably a much more onerous standard than that applied by the Justice Department) only to watch the Department move against it one year later and break up the continuation with a consent decree order. Broadcasting, Dec. 9, 1968 at 28. The FCC has licensed broadcast facilities to the single owner of all the mass media in about 70 cities.

Even technical violations get little attention. Recently the Commission refused to revoke the license for a station whose owner, it was charged, had ordered his engineer to make fraudulent entries in the station's log book, operated with an improperly licensed engineer, and whose three stations had amassed 87 other technical violations over a 3-year period. In the matter of liability of WKRZ, Inc., FCC 69–1273, FCC 69-1274; in the matter of liability of Olivia T. Rennekamp, FCC 69-1275 (Nov. 19, 1969).

Violations of the most elementary principles of good business practice don't even arouse the Commission to action. Recently the FCC examined the record of a station guilty of bilking advertisers out of $6,000 in fraudulent transactions. The local Better Business Bureau had complained. The station was already on a one-year "probationary" license status for similar offenses earlier. The result? The majority had no difficulty finding the station had "minimally met the public interest standard,” and it therefore renewed the license. Star Stations of Indiana, Inc. [WIFE], 19 F.C.C. 2d 991, 996 (1969).

Well, I could go on and on with examples like these, but I think the point has been made. The FCC has demonstrated over the years its utter contempt for the interests of any save the broadcasters themselves. Indeed, the Commission's performance is so shocking that many would argue I among them—that the agency is not even performing as an effective handmaiden of the industry. Every industry requires some minimal standards-in this instance of programming, advertising, ownership patterns, technical performance, and business practices. The FCC is not providing them. Needless to say, the "public interest" generally requires standards somewhat more rigorous than the minimal standards required to serve an industry's interests. The point is that the FCC is providing neither in broadcasting today.

Nor is the industry doing any better with "self regulation." The New York Code manager of the National Association of Broadcasters Code of Good Practice, Warren Braren, recently resigned rather than continue to work with an organization so little concerned about its own standards. The Eisenhower Commission addressed the matter of the industry's "self regulation" of violence. It concluded, "The television industry has consistently argued that its standards for the portrayal of violence and its machinery for enforcement of these standards are adequate to protect the public interest. We do not agree." Commission Statement on Violence in Television Entertainment Programs (September 23, 1969), pp. 7-8. If FCC regulation hasn't worked, and industry self-regulation is even weaker, what alternatives are there?

Competition and participatory democracy

There are two principles to which we are deeply committed in America: competition and democracy. Institutions spring up from time to time that deviate from these principles, but we eventually get around to bringing them into conformity. And if we cannot create pure "competition" or "democracy" in a particular situation we try to simulate them; we try to make the institutions work as if competition and popular control were a check upon them. So it has been with broadcasting.

We want the American people to have "the best"-the best cameras, the best copying machines, and the best television programming. Every businessman takes a risk of losing his position in the market. A multi-million-dollar plant can become worthless over night. Bankruptcy rates are high. Those are risks the American people, and their government, are willing to take; those are risks the American businessman is willing to exchange for the opportunity to make great profits. When the Polaroid camera came on the market, no one concerned himself about providing protection to conventional camera makers and their "right" to continue in business. No one thought of requiring Xerox first to prove that conventional copying machines were not serving the public interest, before displacing other manufacturers' positions in the market. What we do as a people, in effect, is to subject the products offered for sale to a "comparative hearing"; the one that wins is rewarded with handsome profits, the one that loses may suffer losses in the millions.

This kind of pure competition cannot work in television programming. There are only a limited number of available frequencies; the demand exceeds the supply. There is no way that the new programming idea can find its way into the market place. Our typically American solution has been to try to stimulate that market process. Congress has provided that no one has a “right” to have his station license extended beyond its original term, that competing applications can be filed, that they must be considered by the people's representatives (the FCC), that programming proposals will be compared, and that the people will thus be assured "the best" in television programming as in other areas of their lives.

To select "the best" is a pragmatic approach. The best may not be very good. It may be an unexpected deviation from our previous standards. But standards tend, by their nature, to be minimal and conventional. One of the beauties of competition is that it is innovative. You cannot "predict” a Polaroid, a Xerox, or a transistor; but you want a system that makes them available to the people when they come along.

It is impossible to define the "perfect note." But it is possible for us to determine which of two notes is the higher. That is what the FCC must do when comparing programming proposals.

Not only does competition lead to innovation from newcomers to an industry, it also offers a spur to improve performance on the part of those already in the business. The broadcasters have complained that unless competing applications are curtailed, those in the business will have to cut back on investments in programming. It is interesting to note the parallelism between the broadcasters' arguments against competition and the arguments of those recently found guilty of price fixing in the plumbing fixture industry. Both believe they are merely looking for a way to earn “adequate profits" and to protect the expensive investments they have made. See Demaree, "How Judgment Came for the Plumbing Conspirators," Fortune, December 1969, p. 96.

In fact, the broadcasters' response to competitive challenges has not been to cut back upon programming at all. Just the opposite. They have responded to competition like any other industry, Variety reports:

"The recent wave of license challenges . . has without question raised the level of program aspiration in most major markets, and particularly in those where the jump applications were filed. There is on the whole discernably more local involvement, more community affairs and educational programming, more news and discussion and more showcasing of minority talent since the license challenges than there were before."

Variety, Aug. 20, 1969, at 33. And we can anticipate that, to a lesser extent, anxiety about potential competitors will provide incentive to improved programming performance throughout the country. This is healthy; it's American: it benefits everyone.

The argument is made by some broadcasters that they cannot fight" blue sky" promises from a fly-by-night applicant for their license. Of course, this could be a theoretical problem. But, as every informed observer of the FCC knows, it is not a real threat. The FCC has had over forty years experience in evaluating programing proposals-and the financial and professional ability of applicants to deliver on them. Its record is pretty good. It can be expected to continue to be biased in favor of the existing operator, and to take a very realistic look at competing proposals. It is significant that in the WHDH case itself the Commission found that one applicant's proposals-while attractive and superior in one sense-were simply unsupported. ("When an applicant proposes such a substan