Questioning the Power

The networks . . . represent a concentration of power over American public opinion unknown in history . . . We'd never trust such power in the hands of an elected government. It's time we questioned it in the hands of a small and unelected elite.

--SpiroAgnew, 1969

The Vice President's famous speech in Des Moines, Iowa, was the opening blast in a sustained campaign by the Nixon Administration. Its aim: to chip away at the control exerted by the three major television networks over the programming they carry. That campaign received an uncalculated boost last year when the Federal Communications Commission limited the networks to three hours of evening prime-time programming (leaving 550 local stations across the country to fill the other half-hour with programming of their own). The FCC also barred the networks from acquiring financial interests in outside programs being produced for their use. Last week, in a move that spread consternation and confusion, the Justice Department in effect put the industry on notice that it had not seen anything yet.

Double Action. In federal court in Los Angeles, the department filed three far-reaching antitrust suits against the networks, claiming that they use their control of air time to block "free and open competition in the broadcasting of entertainment programs." Specifically, the department said the networks monopolize prime time with shows and films they own or partly own, thus denying air time to competing producers, distributors and advertisers--or compelling them to give the networks a stake in their shows--and controlling the prices paid for TV rights to feature films.

The intention of the suits, said a spokesman, was twofold: "We want the networks to quit producing their own programs; their own programs obviously have a better chance of getting on the air than somebody else's programs, and that's not fair. And we want them to quit bankrolling or buying syndication rights, or whatever, for outside productions. Obviously those productions have a better chance of getting on the networks too."

Strictly speaking, none of the networks produce more than 10% of their 21 hours per week of prime-time programming. That is, each network buys about 90% of its prime-time shows from independent producers. But the FCC ban on financial interests in these outside productions has never really been effective, and even if it had, the networks could still retain interests in productions that were created before the agency ruled. The suits sought to prohibit all "ownership interests," claiming that they applied in substantially more than half the prime-time shows broadcast by the networks. Oddly, the suits cited out-of-date ownership figures from the decade 1957-67 to support that claim.

Whether prime-time shows are network-produced or bought from outside, the networks' function remains the same: they schedule time for the shows, sell advertising for them, then beam them out to local affiliates (who have the option of not carrying them, but do not exercise it frequently). The most ominously unclear aspect of the suits concerned the networks' leeway on program selection and scheduling. Was the Justice Department directly attacking the networks' "control of access" to air time, and therefore their ability to function as networks? The department spokesman insisted that the networks "can decide what goes on and when, as long as their own shows aren't in the competition." But CBS President Robert D. Wood, in a message to affiliates, charged that the department "seeks to transfer control of network schedules, including what programs are put on the air and when, to advertising agencies and motion picture producers," reducing networks to "mere conduits."

NBC and ABC joined CBS in denouncing the suits and vowing to oppose them vigorously in court. All the networks also maintained that the suits, by duplicating FCC rulings in some cases and going far beyond them in others, tended to undermine the authority of the very agency that is responsible for regulation of the industry.

Privately, network executives speculated that political motives may have determined the thrust and timing of the action, which the department conceded had been pending for years. "Is it the ITT case?" asked one, and answered himself: "Possibly it's an attempt to blur that image with this and a slew of other [antitrust] actions." Another saw the filing of the cases at this particular moment as a symbolic gesture designed to serve as "highly visible proof that the Justice Department is not in bed with big business."

The department went out of its way to emphasize that news, public affairs, and documentary programming were not affected by its complaint. Yet if the suits succeed, the networks will lose substantial revenues from the shows they produce or hold rights to. That in turn could curtail the budgets of news and public affairs shows, and make an already nervous industry even more wary of the Administration.

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