Television's Big Stick

On June 19, the second shoe dropped.

The first had finally fallen on Mar. 27 when, after seven years of bitter partisan wrangling, the McCain-Feingold bill banning unregulated soft money in national elections was signed into law by President Bush. Among the reasons the bill had such a rocky road through Congress: a provision mandating that television and radio stations provide free airtime to political candidates in the period leading up to elections. So virulent was the broadcast industry’s reaction to the provision that Senator John McCain, Republican of Arizona, and his cosponsors reluctantly removed it from their bill as a compromise to help assure passage.

Fast forward to June 19. The McCain team announced they’d introduce a new bill that would require TV and radio stations to hand over at least two hours a week to political candidates for debates, interviews and town hall meetings. It’s the natural and crucial next step, they argued, to opening up the electoral process to candidates with the best ideas, not just the most money. “This proposal simply tells broadcasters to give back to the American people some of the extraordinary benefits they have reaped from the public airwaves that they are licensed to use for free,” said the senators in a joint statement.

And so began another battle in the trench warfare between powerful, irreconcilable forces. Dug in on one side in a daunting fortification was an influential coalition organized by the five-year-old Washington-based Alliance for Better Campaigns. Among its members: the AFL-CIO, AARP, Common Cause, Consumers Union, the NAACP, the National Council of Churches, the Sierra Club and more than forty others. Fronting the alliance are two former presidents, Jimmy Carter and Gerald Ford, along with Walter Cronkite.

If that power-packed line-up sounds formidable, take a look in the other trench: the National Association of Broadcasters, which represents most of the nation’s television and radio stations. Led by a soft-spoken, sixty-one-year-old, million-dollar-a-year Mississippian, Edward O. “Eddie” Fritts -- a former small-town radio station owner, a University of Mississippi classmate of the Senate minority leader, Trent Lott -- the NAB has chalked up a virtually unbroken series of triumphs against any enemy that would dare impose unwanted obligations on the broadcast industry. As the battle unfolds, it is not the NAB that is looking nervous.

As a classic example and case history of the use of power in Washington, the free-airtime controversy has few equals. Broadcasters have successfully demolished at least a dozen previous attempts to mandate free airtime. Starting in 1996 to 1998, they spent almost $11 million in that cause, according to the Washington-based Center for Public Integrity, a watchdog that tracks political spending. In his 1998 State of the Union address, President Clinton said he would order the Federal Communications Commission to provide free or lower-cost television time for candidates. Days later, the FCC received messages from a light brigade of legislators -- Republicans and Democrats -- with the implied threat that the agency’s budget would be in real peril if it dared follow through on Clinton’s directive. That ended that. It was a stinging defeat for the president and the FCC.

Later that year, a twenty-two-member White House advisory panel (the Gore commission, cochaired by Norman Ornstein, resident scholar at the American Enterprise Institute, and Les Moonves, president of CBS Television) failed to agree on a free-airtime mandate after a deadlock developed between the broadcasters on the panel and the consumer advocates. Instead, the commission recommended that television stations -- voluntarily -- offer at least five minutes a night of what they called “candidate-centered discourse” during the month before elections. It was yet another victory for broadcast lobbyists. (Almost all the nation’s 1,300 commercial television stations have ignored the recommendation. For the 2000 elections, stations typically aired just forty-five seconds a night of candidate discourse, according to the Alliance for Better Campaigns.)

But victory is a commonplace for the NAB. Examples: In separate battles in the 1980s and 1990s, broadcasters forced cable and satellite systems to make space on their systems for the programs of all local television stations. During that same period, they successfully fought the creation of new low-power radio and TV stations that would have given consumers more voices in their communities. A plan by Senator Robert Torricelli of New Jersey for reduced-cost political ads -- and thus, reduced need for campaign contributions -- earned broadcasters’ wrath and was defeated in 2001. A wave of media mergers and consolidations followed the NAB’s successful lobbying for the 1996 Telecommunications Act, creating unprecedented concentration of power among media companies.

No such victory came even close, however, to matching the NAB’s triumph in helping acquire for the nation’s television stations, free of charge, a large chunk of publicly owned airwaves to be used for the transition to digital television -- spectrum space worth tens of billions of dollars on the open market. William Safire, the New York Times columnist, famously called it a “ripoff . . . on a scale vaster than dreamed of by yesteryear’s robber barons.” Senator McCain saw it as “one of the greatest scams in American history.” Senator Bob Dole, the majority leader at the time, called it a “giant corporate welfare program.”

Adam Thierer, a telecommunications analyst at the libertarian Cato Institute (he opposes mandated free airtime), says there has been “no bigger public policy fiasco” than the spectrum gift to broadcasters because hundreds of high-tech companies had been ready to “spend lavish, outrageous amounts of money” to buy that beachfront electronic real estate from the government. Instead, broadcasters lobbied hard to persuade lawmakers of both parties to simply hand it over. Thierer calls that “one of the most unjustifiable giveaways and biggest boondoggles in American history. You have to count it as the greatest victory the NAB ever had.”

Eddie Fritts, through a spokesperson, declined a request to be interviewed about the secret of NAB’s success through the years, or the lobby’s position on the free-airtime issue, or anything else. NAB did, however, provide cjr with a packet of editorials, columns and op-ed pieces condemning free airtime as a terrible idea. “Constitutionally problematic” -- George Will, Newsweek. “Could be the last stand by broadcasters to keep at least some of their core First Amendment rights.” -- Nat Hentoff, The Washington Post. “It is a fallacy that TV broadcasters, because they are licensed by the government, have an obligation to serve the public.” -- Jeff Jacoby, Boston Globe.

Shaun Sheehan, a Tribune Company vice-president and lobbyist in Washington, is candid about his own employers’ attitude on free airtime, which mirrors the NAB’s. “We have a responsibility to present the candidates to our viewers,” he says, “but we resist the notion of federal mandates, which could lead to a manipulation of the process and probably not be healthy for democracy.” Sheehan correctly points out that most incumbent candidates don’t want free airtime because it gives challengers exposure they otherwise wouldn’t get; and because office-holders can’t control the content of such airtime, especially if journalists are there asking them hard questions. In paid thirty-second political ads, which incumbents can afford far better than challengers, candidates can “call the other guy a bastard,” without fear of refutation, says Sheehan.

A former FCC chairman in the Clinton administration, Reed Hundt, calls television “the mother’s milk of politics, the essential nurturing element,” and he argues against the current system, which is funded heavily by fat cats. Until there’s a major amount of campaign airtime that isn’t bought by special-interest money, he insists, democracy is being hijacked by those special-interest bank accounts. “There’s not a shred of justification,” he adds, for broadcasters to claim there’s something unfair, unwise, or unconstitutional about mandating use of the airwaves for public debate.

What’s the morning line on free airtime’s prospects in Washington? If you’re an optimist about its chances, two bucks would probably win you a hundred. Republican congressman W.J. “Billy” Tauzin of Louisiana, chairman of the House Energy and Commerce committee, is a staunch partisan of the NAB and can be expected to pronounce the bill dead-on-arrival. It’s “unfair, it’s unconstitutional and it won’t solve the problem of campaign finance reform,” he wrote in Roll Call in 1997. Tauzin’s aide, Ken Johnson, told Broadcasting & Cable recently, “Senator McCain is a patriot and a great American, but if his bill hits the House, we’ll be playing Taps for it.” Charles Lewis, executive director of the Center for Public Integrity, says: “I hate to put it crudely, but Tauzin has been in the broadcast industry’s pocket for years.” In the 1997-2000 period, according to a center study, Tauzin, his family and his staff had lapped the field among the leading recipients of media industry freebie junkets: forty-two of them at a cost of $77,389.

But the real source of NAB’s phenomenal influence in Washington is not its financing of free trips for complaisant legislators, or even its copious contributions ($710,677 in 2000) to both parties, or its planting of op-ed pieces, or long lunches at the Palm with Washington power brokers. More important is its members’ presence in virtually every congressional district in the nation, and the perceived power of those television and radio stations to shape the news and control how issues that affect their own destiny get covered. (In a 1995 speech, Eddie Fritts declared: “No one has more sway with members of Congress than the local broadcaster.”)

Broadcasters are the “dominant mechanism that the public uses to get news,” says Gene Kimmelman, co-director of Consumers Union’s Washington office. “They control the imagery of what people learn about public officials. They can show a candidate picking his nose, his hair blowing the wrong way, making a funny face or a silly comment. They can make you look like a fool or a brilliant politician.”

Or worse, they can simply ignore you. “Who wants to be blacklisted nationwide by the broadcast industry?” says Charles Lewis. “If you’re a politician, you might as well start packing your bags, because it’s all over.” The industry’s power is subtle, he says. “It’s a sledgehammer, which everyone knows is sitting there waiting to be used. No one actually needs to lift it.” News directors at TV and radio stations often intuit their bosses’ wishes about how to cover particular candidates and behave accordingly.

The broadcast lobby is like the Wizard of Oz, pulling levers behind the curtain, says Reed Hundt. “They’re against anything the Congress might do to urge them to do good. I can think of no example to the contrary.” If Emmys were awarded for lobbying, Hundt says, the NAB top brass would win every year.

Scott Harshbarger, president of Common Cause, says the NAB regularly hauls out its its heavy guns when public-interest issues collide with broadcasters’ capacity to earn profits; and that free airtime is “a classic example of their making it crystal clear that this will happen only over their dead bodies.” But it’s really not the NAB’s power he is criticizing, Harshbarger says. The association is entitled -- indeed obligated -- like any high-powered Washington lobby, to defend its members’ interests with vigor. “What we’re saying is that citizens have a special claim on them because they have a public franchise that they’re using for profiteering. But they want to dictate the terms by which the public can make demands on them. It’s the public’s airwaves they are monopolizing.” In the free-airtime debate, he says, NAB is using its power to frustrate “a legitimate, fair, responsible step toward improving the quality of democracy, and that’s unfortunate.”

No deep mystery surrounds the rationale for NAB’s position on free airtime. The industry earned a billion dollars in political advertising in the 2000 election period, so why give away what you can sell? That goes unstated by NAB, however, in favor of the association’s habitual appeal to the First Amendment (an argument unavailable to other mammoth lobbies: health care, defense, airlines). Whenever legislators or consumer advocates attempt to impose public-interest obligations, the broadcasters condemn the effort as unconstitutional meddling in their editorial affairs.

In response, the other side points for the hundredth time to the 1969 Supreme Court decision in Red Lion v. Federal Communications Commission, for which Justice Byron White wrote the court’s seven-to-zero unanimous decision, cherished by anti-NAB forces everywhere: “It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.”

The Radio-Television News Directors Association is an ally of NAB on the mandated free-airtime issue. Barbara Cochran, president of RTNDA, thinks the proposal has “unintended, extremely dangerous consequences” and is an “unconstitutional infringement on the editorial discretion of the individual stations.”

In dueling polls, NAB/RTNDA and the Alliance for Better Campaigns offered differing figures about the public’s appetite for free airtime. In 2000 more than half of voters (54 percent) in five Super Tuesday primary states were against mandated free airtime, according to the NAB/RTNDA tally. Supporting the idea: only 34 percent. An independent Pew Research Center study trumpeted by the alliance, on the other hand, had 73 percent in favor and only 20 percent opposed. (The same Pew poll found that only 31 percent of Americans know that the public owns the airwaves.)

Similarly, the alliance touts figures showing that broadcasters are offering less and less political coverage: In 2000 ABC, CBS and NBC nightly newscasts had 28 percent less campaign coverage than in 1988, and coverage of the two national conventions was down two-thirds in the same period; presidential candidate sound bites lasted forty-three seconds in 1968 and 7.8 seconds in 2000. Meanwhile, NAB/RTNDA had evidence that more than 85 percent of key Super Tuesday voters thought there was “too much” or the “right amount” of primary election reporting in 2000.

Says an NAB partisan who spoke to cjr on condition of being identified only as “a broadcast industry source”: “I think we take our public-interest obligations seriously. Just as the government does not dictate the number of pages in your magazine, we don’t think the government has a role in dictating program content. It’s a pure First Amendment issue.”

Is the NAB the most powerful lobby in Washington?

“I’m not going to comment on that.”

What’s a good example of broadcasters doing public service?

“Look what happened on 9/11 when stations, day after day, in the midst of the worst advertising recession since World War II, provided blanket coverage, radio and television, forgoing tens of millions of dollars of revenue. Does that not count for something?”

And besides that, says the “broadcast industry source,” TV and radio news gives plenty of free airtime to politicians on regular news and interview programs. “Our polling shows that most people think broadcasters do a damned good job of covering politics.” What he calls a “small segment of Washington insiders” think otherwise, but folks in “real-life America” aren’t clamoring to see and hear more politicians.

In June NAB released figures claiming that broadcasters should get credit for $9.9 billion worth of public service in 2001, thanks to free PSAs (public service announcements), and money raised for charity and disaster relief. That makes broadcasters “the number one provider of public service in America,” said Eddie Fritts in a press release.

A handful of broadcast groups have, in fact, stepped up to the plate and volunteered time to candidates in the 2002 elections: The New York Times, which owns eight television stations, along with Hearst-Argyle Television and E.W. Scripps.

But the irreconcilable has become no more reconcilable: broadcasters -- abetted by friends and dependents in Congress -- doggedly, effectively defending turf of which they are custodians, not owners; and activists struggling, usually to little effect, to claim for the public what they deem is its electronic birthright.

The goal of securing free time for candidates goes back to the pre-TV era. Frank Knox, the 1936 Republican nominee for vice president, suggested that the two parties be given radio airtime so that “both sides of all issues be fairly and adequately presented to the people.” NAB, founded in 1922, has been unrelenting in its opposition. NAB’s operating budget is now $48 million. Its annual convention (this year’s, in Las Vegas, drew 74,000 participants) is one of the world’s largest trade group meetings, dutifully attended by the chairpersons of important congressional committees and FCC commissioners. In 2000 and 2001 it spent $11.14 million on lobbying for various issues, according to the Center for Public Integrity.

A few media experts contend that the legendary power of NAB is on the wane. “Over-the-air broadcasting is a dinosaur,” says Norman Ornstein. “It’s not going to last very long.” The spectrum giveaway was “one of the most colossally bad decisions made in the public interest in the last fifty years” because 77 percent of viewers already get their TV pictures via cable or satellite.

NAB is showing a few signs of coming apart at the seams. Three networks -- CBS, NBC and Fox, along with their owned-and-operated stations (fifty-one of them, in total) -- have quit the association in a nasty disagreement over the limit on how many stations a network can own. (NAB wants the FCC to retain the current limit in deference to the wishes of its independent, nonaffiliated station members; the three defecting networks want to push the FCC to expand it because they’re eager to buy up more stations.) Since the disagreement is about that one issue, says our “broadcast industry source,” the three networks will probably be back in the fold when it’s resolved.

Realistically, NAB’s influence is virtually undiminished. Negotiation is not their style, says Blair Levin, former FCC chief of staff. Their primary tactic is to kill unwelcome initiatives outright whenever they can. “They don’t want to credit the notion that owning a broadcast license commits them to any concrete action.” Cato’s Adam Thierer puts it more sternly: “They spend more time wooing policymakers than they do worrying about consumers, and they have benefited wildly from that little calculus,” he says. “You have to be impressed by their success, even if you’re disgusted by it. And I am.”

Neil Hickey is CJR's editor at large.

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