Communications Policy is a Civil Rights Issue by Mark Lloyd This essay is about the relationship between civil rights and communications policy, the interplay between that set of rights we hold because we are citizens and the rules our representatives create which direct the activity of communications companies such as AT&T, TimeWarner/Turner, and Disney/ABC. It is also an argument that communications policy is of central importance to all Americans, that it touches on our fundamental rights, that communications policy is a civil rights issue. The historical relationship between the civil rights movement and communications policy provides a useful perspective to present and future challenges. Indeed, it is those challenges which make the ideas and passions of the civil rights movement so necessary in the debate over communications policy today, for this is the arena in which so many of our basic rights appear and are given meaning—the right to speak, the right to know, the right to information, the right to privacy, the right to equal economic opportunity, the right to equal educational opportunity, and the right to meaningful participation in the political process. The historic struggle to preserve and defend these rights is the prelude to our future. The Past is Prologue Fifty years ago, as Jackie Robinson began his historic sojourn across the for-whites-only baseball playgrounds, the modern civil rights movement was on the verge of critical victories, although public attention and interest was not immediately apparent. The nation was prosperous and heady with its new position of leadership after World War II. If the leaders of the nation agreed about which issues of the day required attention, that attention was focused on imagined internal and external threats posed by communism. The pages of Time Magazine, the New York Times, and the radio and television newscasts paid rare attention to what was then called "the Negro problem." Television sets went on sale only a year earlier, and black Americans were viewed through the voices and images of white Americans through popular programs such as "Amos and Andy" and "The Jack Benny Show," featuring Rochester. The first black-owned radio station, WERD in Atlanta, was not on the air until 1949. Few cameras ventured south to capture the violence of the non-violent civil rights movement. When the networks did produce documentaries about what was going on down south, those programs were not shown in the south. The civil rights leader, the Reverend Everett C. Parker, the head of the United Church of Christ, decided something had to be done about television's treatment of blacks. He started an office of communications at the church and in March of 1964 began tape recording the broadcasts of the two television stations in Jackson, Mississippi, WLBT—the NBC affiliate, and WJTV—the ABC affiliate. You know what he found. Though blacks comprised 45 percent of the audience, the stations ignored them, and eliminated any of the networks' coverage of blacks. The White Citizens Council could express its opinion but local black ministers were not allowed on the air. Most black folk in Jackson, Mississippi never complained about this, they took it for granted that that's the way things were. The United Church of Christ along with local NAACP officials confronted the Federal Communications Commission with a long list of violations, and by a four to two decision, the FCC renewed the licenses of the Jackson stations for one year—pending good behavior. Reverend Parker was not satisfied. The church challenged the FCC in the U.S. Circuit Court of Appeals for the District of Columbia. The church argued that the white-only programming of the stations violated the Fairness Doctrine, and was not "in the public interest" of either black or white viewers in Jackson, Mississippi. The court overruled the FCC. That ruling ultimately led to the loss of WLBT's license. Because it recognized the power of viewers to petition the FCC and take it to court, the United Church of Christ decision has been aptly characterized as the "Magna Carta for active public participation in broadcast regulation." This newly recognized power spurred citizen engagement with communications policy, and led to a process whereby stations were required to ascertain the issues of interest to the community they were licensed to serve by interviewing a wide range of local leaders. The station then had to report to the FCC, showing both the results of its ascertainment survey and how the community interests were reflected in programming. This ascertainment process clarified the political relationship between community and broadcast station, and it empowered local activists. Stations were forced to respond to local concerns about news and public affairs coverage, and to some extent even prime time entertainment programming. The FCC was finally hearing from the communities the licensees were obligated to serve. The result was more news and public affairs programming, more diversity of views expressed, and arguably better television and radio service—an outcome the market failed to create. The civil rights movement continued to work in the vineyard of communications policy, and continued to have success. Protests over the lack of minorities on staff at the broadcast stations led the Kerner Commission to examine the role of media in exacerbating the racial tensions that ultimately resulted in the widespread urban rioting in the late 1960's. The Kerner Commission warned that newspapers and television "have not communicated to whites a feeling for the difficulties and frustrations of being a Negro in the United States... The world that television and newspapers offer to their black audience is almost totally white..." Protests by civil rights groups and the Kerner report led to FCC adoption of equal employment opportunity provisions. Those provisions called for an accounting of minorities employed at the stations and asked the stations to compare the numbers of minorities and women on staff to the number of minorities and women in the station's service area. The FCC also asked stations to send job announcements to places where likely candidates might be found. Many of those places were the offices of the local NAACP or Urban League. In the late Seventies, in recognition of the lack of progress made with these employment policies, the FCC ruled that minority ownership was essential to create a diverse range of messages over the public's airwaves. Once again, civil rights leaders were at the forefront of the battle for rules to promote minority ownership. Among those testifying before Congress in support of such rules in 1974 were Ron Brown, on behalf of the National Urban League, and Joseph Rauh, Jr., on behalf of the Leadership Conference on Civil Rights. Policies promoting minority ownership were established by the FCC, and reaffirmed by the Supreme Court in the Metro Broadcasting decision of 1990. But now, the great progress made by the civil rights communities in the communications policy arena has been rolled back. The Reagan-dominated FCC destroyed the ascertainment process, arguing that it was too much of an administrative burden on the stations and on the FCC. Licensing renewal now can be accomplished with a postcard, certifying that the station can meet some stringent financial requirements, but that is about it. The Reagan-Bush FCC tried to destroy the affirmative action/EEO guidelines and the ownership diversity programs, but the Democrats in Congress prevented FCC action. In April 1995, however, the Republican Congress teamed up with President Clinton to kill the most effective method for increasing minority ownership, the tax certificate. With minority-owned broadcast licenses stuck at around 3 percent, loss of the tax certificate makes any progress beyond that invisible ceiling impossible. And in June 1995, in reaction to the Supreme Court's Adarand decision, the FCC rescinded rules designed to help women and minorities participate effectively in the spectrum auctions for PCS licenses. Then Came the Telecommunications Act of 1996 or Show Me the Money On February 8, 1996, a week after extended support in the House and Senate was vocalized, President Clinton signed the Telecommunications Act of 1996. While touted as a landmark bill updating the sixty-year-old Communications Act for the benefit of U.S. consumers, the T96 Act was created by and for a communications industry dominated by global conglomerates. The influence of this global industry over the national legislative process was hinted at in the scandal over the Speaker of the House's much publicized book deal with the international media magnate Rupert Murdoch. But the book deal was the tip of the iceberg. According to Charles Lewis of the Center for Public Integrity, Senate Leader Bob Dole received hundreds of thousands of dollars before the T96 Act from communications companies such as TCI and Time/Warner in direct contributions and through support of Dole fronts such as the Better America Foundation. As Ken Auletta reported in the New Yorker, AT&T spent nearly $1.3 million in soft-money contributions to both parties in 1994 alone. And the political action committees of the broadcasting industry, long considered the most powerful special interest group in the country, contributed over $1.3 million during the 1995-96 election cycle. For the first six months of 1996, the broadcast industry spent at least $10.7 million dollars in lobbying Congress, the Clinton Administration, and the FCC. The question must be asked: Whose interests were our representatives representing when they passed this legislation? In the absence of a strong public interest presence, the money spent by private industry in the political process reflected major distortion in the public debate. A good example of this distortion can be seen in the statements of the Clinton administration's point man on communications issues, Vice-President Gore. In 1992, while campaigning for office, Senator Al Gore introduced the idea of the "information superhighway." Perhaps as a defense of public investment, Gore said the information highway "ought to be built by the federal government" much like the interstate highway system. In fact, the high-risk and hard work of research and development of the high-capacity data link between academic institutions and military bases was made possible through federal funding. This link later became known as the Internet. The development of the Internet is a good example of government generating benefits for the public at large; a rich story for public interest advocates to tell. However, a year after extolling the federal government's role in building the information superhighway, and many campaign contributions later with, no doubt, hopes of more to come, the Vice-President announced that "unlike the interstates, the information highways will be built, paid for, and funded by the private sector." He announced the administration's support of removal of "judicial and legislative restrictions on all types of telecommunications companies: cable, telephone, utilities, television, and satellite." The Vice-President's representatives denied any connection between the financial largess of the communications industry and the Vice-President's 180-degree turnaround on the role of private industry, but he now ignores past and present public and government support (i.e., the tax dollars of ordinary citizens) in favor of making private industry's contribution seem dominant and therefore controlling. As private industry is given credit for building the road, so private industry dominates discussion about the rules of that road. While citizens are blinded to the government support that makes the road possible, they remain blind to their right to benefit from their contribution. The industry compromise that became the Telecommunications Act of 1996 was sold to the American public as a great consumer victory. Competition, it was reported, would reduce prices and provide more services. Despite the promise of greater competition, the effect of the Act has been an unprecedented wave of consolidation and partnerships of mutual interest among potential competitors. Less than a half-dozen communications corporations now control more than 90 percent of the communications companies in the U.S., because of the record-setting mergers and acquisitions, and the destruction of regulations that once encouraged new market entrants. Local telephone companies were allowed to combine and provide long distance service. National broadcast ownership limits were increased to 35 percent. Prohibitions limiting the ownership of radio, television, and newspapers by one company in the same market were lifted, thus encouraging media consolidation and the crowding out of independent voices. Broadcast license periods were increased, making it virtually impossible for local communities to exercise any control over the stations licensed to serve them. And only existing broadcasters will be given additional spectrum to broadcast high definition digital signals, creating a further barrier to competition and new voices. The early promises of competition and reduced prices have failed to materialize, as has the promise of new jobs. Prices, particularly cable prices, have gone up. Employment growth is negligible and wages are depressed, particularly in the telephone industry. And something even more fundamental and dangerous has occurred. Far more troubling than the broken promises to consumers has been the shift in the public debate. That shift began during the Reagan years of the 1980's, with the crude pronouncements of Chairman Mark Fowler, when the FCC moved quickly to merge the concept of the public interest with the myth of the market. This shift in the public interest standard peaked in the 90's, perhaps best demonstrated by the essays of Nicholas Negroponte in Wired magazine (who asserted "there will be no information have nots, only information want-nots") and a manifesto funded by Newt Gingrich's Progress and Freedom Foundation, "Cyberspace and the American Dream: A Magna Carta for the Knowledge Age." Under the signatures of Esther Dyson, Alvin Toffler, George Keyworth, and George Gilder, the "Magna Carta" is a relentlessly upbeat stew of cyberspeak, utopian fantasy, and laissez-faire economics. Unlike the Magna Carta-like United Church of Christ case, this new "Magna Carta" left the determination of the public interest to the not-so-invisible hand of a market dominated by international conglomerates, not the direct engagement of the local community. Those voices that once called for equality and public responsibility in the communications arena were unprepared for the strategic shift in the terms of the communications debate. That shift asserted that something new was happening around digital technologies and fiber optics, and the old problems of monopolistic behavior and the market's inability to correct human bigotry somehow did not matter anymore. And the civil rights community was largely silent. As a result, the conversation is now centered on the citizen as "consumer," who will be provided cheap costs, and dazzling choices in entertainment services and technology. The civil rights agenda has given way to the agenda of the commercial market. The stirring call to community is no longer "We Shall Overcome" but "Show Me The Money." The work of the civil rights community has suffered through a sustained assault by the right. The core of that assault is to deny funding to civil rights work, silence liberal voices, and set the agenda of public debate by an opposition that is better funded, more organized, and more savvy about strategic communications. The assault on affirmative action, welfare, multi-cultural studies, immigration, and foundations supporting progressive causes has been carefully orchestrated. Combined with this assault is a relentless marketing of the failed dogma of laissez-faire economics. Long removed from the experience of the Great Depression, America's latest romance with the neat theories of unfettered markets has infiltrated every discussion of national policy with disastrous consequences in nearly every field including law, health care, and communications. This "market" or "laissez-faire" capitalist vision of society holds that the common good is best understood as an unchecked individual pursuit of economic self-interest. This "market" vision has a particularly invidious effect on communications policy where commercial communications interests have long been formidable adversaries, adept at co-opting government and, more important, shaping public opinion. A Civil Rights Vision of America The failure of laissez-faire economics as a foundation for communications policy is made most clear in the arena of children's programming. Despite countless studies demonstrating that people mimic behaviors shown on television, despite the 1972 Surgeon General's report, "Television and Growing Up: the Impact of Televised Violence," the Reagan FCC effectively destroyed regulations that called for educational programming for children and limited the number of commercials that could run during children's shows. Not content with jettisoning the government's public interest standard, the Reagan Justice Department forced the National Association of Broadcasters to eliminate its own code of conduct in 1982. The result, of course, was an unfettered market, and a dramatic increase in the level of violence and sexual behavior and commercials children were exposed to on television. So upset about the result of this free market mania, Congress passed, without President Bush's signature and after an earlier veto by President Reagan, the Children's Television Act of 1990. The commercial television industry made a mockery of that Act, as has been made clear by the work of the Center for Media Education which, in 1992, showed that dozens of broadcasters had listed cartoons such as <">The Jetsons<"> as educational children's programming. Clearly, the market fails to provide for children's needs. Media activists and children's rights advocates and ordinary concerned parents joined to battle for enforceable rules based upon an alternative vision of what should drive policy, a vision based upon the needs of children, a vision that puts a healthy community before the avarice of broadcasters. For the far right to argue that getting out of the business of regulation is the only constructive role for government to play is as blind as it is disingenuous. The challenge is to create a set of rules that reflects the best nature of our society. As Newton Minow makes clear in Abandoned in the Wasteland, the issue is not really whether the market provides good choices, but whether citizens have a real say in what those choices are. The issue is whether the parent must let his child be a consumer, or, more to the point, a product to be sold to advertisers, or whether the parent has a right as a citizen to demand more. As demonstrated above, one of the few actors influential enough to overcome the prerogatives of the commercial interests and assert the needs of communities in the field of communications policy has been the civil rights groups. The civil rights community has been in the vanguard of progressive action in the U.S. for many years. The work of the NAACP, the Urban League, the Leadership Conference for Civil Rights, and others have demonstrated effective strategies for civil action to other minorities, women's groups, children's advocates, environmentalists, and gays. Undergirding those strategies has been an articulate vision of a society of decent people who understand that we make a nation together. This vision lives in the work of thousands of community organizations, full of smart and talented people who are paid a relative pittance to help create better neighborhoods. It lives in the new "volunteer" movement. Moreover, the civil rights vision of America, the dream, as King argued, is deeply rooted in the American dream. It is the dream of America as a principled democratic community embodying the spirit of brotherhood and equality. It is a vision of America as a place of sanctuary and celebration of that portion of humanity cast off from less-closed societies. As King argued in his famous Letter from the Birmingham Jail, the civil rights movement is not the creator of tension, but seeks "to bring to the surface the hidden tension that is already alive. We bring it out in the open, where it can be seen and dealt with. Like a boil that can never be cured so long as it is covered up but must be opened with all its ugliness to the natural medicines of air and light, injustice must be exposed, with all the tension its exposure creates, to the light of human conscience and the air of national opinion before it can be cured." And the cure was only that America live up to "the real promise of democracy." The philosopher Karl Popper called this promise an "open society," a society where all boils could be exposed to the crucible of public discussion and debate. In a similar vein, Robert McChesney and others make the point that a critical factor in the rise and success of democratic movements is the existence of a public sphere for democratic deliberation. The public sphere is a place where citizens can interact, study, and debate the issues of the day, a place dominated by neither government nor corporate interests. This shining civil rights vision of a democratic helping community is untarnished by conservative business propaganda. The language of equality and citizenship rights and community needs, about which civil rights advocates speak so potently, is embedded in the concepts of public trusteeship and diversity of expression made explicit in the 1934 Communications Act and the subsequent amendments to that Act. Broadcasters (to whom the public airwaves are licensed), telephone and cable and satellite oligopolies (which benefit from government regulation, support, and public rights-of-way) are all responsible for acting in "the public interest, convenience, and necessity." The failure of our representatives (and the expert regulators they appoint) in federal and state offices is not a failure of the public interest standard as such, but a failure of the public to demand a public-oriented definition of that standard and its enforcement. Just as the poor black and white folk of Jackson, Mississippi had no idea they had a right to service from their local television stations, most Americans have no idea they have rights with respect to the commercial communications companies that dominate their environment. Just as the civil rights community stepped in in Jackson, the civil rights community needs to step in today. History shows that civil rights advocates have been effective actors in the communications policy debates. Former FCC Commissioners Ben Hooks, Tyrone Brown, Henry Rivera, and Andrew Barrett especially, successfully linked civil rights interests to communications policies. Though communications policy has been reduced and marginalized to a debate over the proper mechanisms to induce competition, and hype about which new gadgets will create the new consumer utopia, the civil rights community has shown that communications policy is really about determining those rules that will establish equality in a free, plural, and democratic society. The civil rights community has demonstrated that the communications policy debate is really about free speech and equality of voice in the public debate, the right to know and equality of access to public information and resources, equality of economic and educational opportunity and the right to meaningful democratic participation in the political process. ____________________________ Mark Lloyd is the Director of the Civil Rights Forum on Communications Policy. He also serves as General Counsel and a member of the Board of Directors of the Benton Foundation and on the CTCNet Executive Committee. Mark can be reached at mlloyd@crpi.org. = = = = = = = = = = = = = = = = = = = This is an edited version of the first part of an extensive analysis that may be obtained from the author. Citations and references for this section include: E. Barnouw, Tube of Plenty 2nd Revised Edition (Oxford University Press, 1990); Window Dressing on the Set: An Update (A report of the United States Commission on Civil Rights, January 1979); L. Bennett, Jr., Before the Mayflower (Pelican Books, 1962); Office of Communication of United Church of Christ v. F.C.C., 359 F.2d 994 (1966); F. Kahn, ed., Documents of American Broadcasting (Prentice-Hall, 1984); Ascertainment of Community Problems, 27 F.C.C. 2d 650 (1971); K. Montgomery, Target: Prime Time (Oxford University Press, 1989); Report of the National Advisory Commission on Civil Disorder, Otto Kerner, Chairman, p. 210 (Bantam, 1968) (Kerner Commission Report); Newhouse Broadcasting Corp., 37 Rad. Reg. 2d 141, decided April 21, 1976; Statement of Policy on Minority Ownership of Broadcasting Facilities 68 F.C.C. 2d 979 (1978); R. Reich, The Work of Nations : Preparing Ourselves for 21st Century Capitalism (Knopf, 1991); C. Lewis, et al, The Buying of the President (Avon Books, 1996); K. Auletta, Pay Per Views, The New Yorker, June 5, 1995; Common Cause, Your Master's Voice, Wired, August 1997; K. Hafner & M. Lyon, Where Wizards Stay Up Late: The Origins of the Internet (Simon & Schuster, 1996); K. Ofori & V. Thomas, Blackout, Medgar Evers College Conference Draft, April 4, 1997; M. Perez-Rivas, Cable Rates Not a Hit in Montgomery, The Washington Post, May 22, 1997; P. Phillips, Censored 1997 (Seven Stories Press, 1997); M. C. Miller, Free the Media, The Nation, June 3, 1996;Prospects for Employment in Competitive Local Telephone Markets: A Labor Perspective, Communications Workers of America, March 1997; N. Minow & C. Lamay, Abandoned in the Wasteland: Children, Television, and the First Amendment (Hill & Wang, 1995); K. Auletta, Three Blind Mice: How the TV Networks Lost Their Way (Random House 1991); E. Dyson, et al, Cyberspace and the American Dream, Future Insight, August 1994; J. Joseph, Remaking America: How the Benevolent Traditions of Many Cultures Are Transforming Our National Life (Jossey-Bass, 1995); M. L. King, Jr., Why We Can't Wait (Harper & Row, 1963); K. Popper, The Open Society and Its Enemies (1945); R. McChesney, Corporate Media and the Threat to Democracy (Seven Stories Press, 1996); J. Habermas, The Structural Transformation of the Public Sphere, Thomas Burger with Frederick Lawrence, translators (Cambridge, Mass: MIT Press, 1989); R. Delgado & J. Stefancic, No Mercy, How Conservative Think Tanks and Foundations Changed America's Social Agenda (Temple University Press, 1996); see also Buying a Movement, People for the American Way, 1996; R. Kuttner, Everything For Sale: The Virtues and Limits of Markets (Knopf, 1997); R. McChesney, Telecommunications, Mass Media, & Democracy (Oxford University Press, 1994); D. Walsh, Selling Out America's Children: How America Puts Profits Before Values and What Parents Can Do (Fairview Press, 1995); Wimmer, Deregulation and Market Failure in Minority Programming, The Socioeconomic Dimensions of Broadcast Reform, 8 Comm/Ent. L.J. 329 (1986). [Editors' Notes: 1) Consider learning more about the National Urban League, one of the partners in the Civil Rights Telecommmuncations Forum, by visiting its web site at: http://www.nul.org. 2) Of potential tangential interest to the article above is a historical analysis by Abdul Alkalimat, which was published in CyRev: Technological Revolution And Prospects for Black Liberation in the 21st Century.] Community Technology Center Review, January 1998 Table of Contents