The Red Scare, Politics, and the Federal Communications Commission, 1941-1960 9780313084959, 9780275978594

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The Red Scare, Politics, and the Federal Communications Commission, 1941–1960

The Red Scare, Politics, and the Federal Communications Commission, 1941–1960 SUSAN L. BRINSON

Library of Congress Cataloging-in-Publication Data Brinson, Susan L., 1958– The Red Scare, Politics, and the Federal Communications Commission, 1941–1960 / Susan L. Brinson. p. cm. Includes bibliographical references and index. ISBN 0–275–97859–1 1. Anti-communist movements—United States—History—20th century. 2. United States—Politics and government—1933–1953. 3. United States—Politics and government—1953–1961. 4. United States. Federal Communications Commission— History—20th century. 5. Mass media—Political aspects—United States—History—20th century. 6. Broadcasting policy—United States—History—20th century. I. Title. E743.5.B736 2004 973.91—dc22 2004005439 British Library Cataloguing in Publication Data is available. Copyright 䉷 2004 by Susan L. Brinson All rights reserved. No portion of this book may be reproduced, by any process or technique, without the express written consent of the publisher. Library of Congress Catalog Card Number: 2004005439 ISBN 0–275–97859–1 First published in 2004 Praeger Publishers, 88 Post Road West, Westport, CT 06881 An imprint of Greenwood Publishing Group, Inc. www.praeger.com Printed in the United States of America

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Copyright Acknowledgments The author and publisher gratefully acknowledge permission to use excerpts from the following material. Clifford J. Durr collection, Alabama Department of Archives and History, Montgomery, Alabama. James Lawrence Fly collection, Columbia University Oral History Research Office Collection, Columbia University, New York. Edward Lamb collection, Center for Archival Collections, Bowling Green State University, Bowling Green, Ohio. Robert Taft papers, Library of Congress, Washington, D.C.

for Rikki and Mocha, whom I miss

for Mom and Dad, whom I love

and for J. Emmett Winn, whom I admire and cherish

Contents

Preface Introduction: Historical and Theoretical Contexts

ix 1

1

A New Deal for Broadcasters

25

2

The Nastiest Nest of Rats

61

3

The Menace Within?

95

4

“Pink-Nosed Gremlins” to Reluctant Regulators

113

5

A License to Subvert

141

6

The FCC versus Edward Lamb

159

7

Reds Need Not Apply

195

Conclusion: The Legacy of the Red Scare at the FCC

211

Works Cited

221

Index

237

Preface

Writing a book is an intense process in which the author becomes absorbed in both self and the project. It is a self-absorption that belies the fact that many other people contribute in myriad ways to its production. I gratefully acknowledge the following people for their charities to this project. This work would not have been possible without the tremendous help of archivists. As always, Dave Pfeiffer helped navigate the FCC archives at the NARA. Fred Romanski was indispensable in guiding me through the Department of Justice archives at the NARA and absolutely critical in getting some documentation declassified for my use; Chapter 6, “Reds Need Not Apply,” would have been impossible without his help. Mary Jo Scott at the Alabama Department of History and Archives was very helpful with the Clifford Durr collection. (I am particularly grateful that I was able to research the Durr collection before it was inadequately microfilmed.) Archivists at Columbia University and Bowling Green State University were also helpful. I take this opportunity to again publicly acknowledge the outstanding support provided by two librarians at Auburn University’s Ralph B. Draughon library. Barbara Bishop and Joyce Ledbetter are two women devoted to helping researchers. They are true gems. I am also indebted to three academic homes. My home department of Communication and Journalism provided ceaseless support for my research. Our former chair, Dr. Mary Helen Brown, consistently furnished the financial resources I needed to visit distant archives, and for that I’m deeply grateful. The department also provided research assistance in the

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Preface

form of graduate students, some of whom exceeded my expectations in conducting superior research for me. Amy May, Molly Wahl, Sam Brumbeloe, and Traci Frees were simply godsends. My second home department of Communication at the University of Missouri-Columbia nurtured my love for research and honed my abilities. My successes are due, in part, to my role models, Pam Benoit and Bill Benoit. And finally, my History professors at Cameron University instilled in me a conviction in the fundamental importance of understanding our past. Mark Stegmaier, Lynn Musselwhite, and Charles Smith cultivated my love of history and my ability to conduct historical research, and I am indebted to them for that. The editorial staff at Praeger Publishing is outstanding, and I deeply appreciate the time and consideration that Eric Levy, Michael Hermann, Hilary Claggett, and Nicole Cournoyer devoted to producing this book. I also appreciate the staff of Impressions Book and Journal Services for their efforts in polishing the manuscript. The personal costs of researching and writing a book are high. Days, weeks, and months are filled with intellectual exhilaration and exhaustion, ebbing and flowing fears of mediocrity, and impatience. Friends like Kathy and John Tamblyn, Liza Mueller, Seleena Foster, Elena Strauman, and Julie Hill Huff make the process bearable. Kim Follin always provides a comfortable home away from home. Sincere thanks to Bob Collins at the University of Missouri-Columbia for his advice and encouragement. At the end of every day, nobody was more critical to the successful completion of this book than J. Emmett Winn, my husband. He is a superior researcher and writer in his own right and the perfect partner for me. My daily life is a mixture of laughter, love, and an intellectual joie de vivre as a result of our relationship. I remain awestruck by my great fortune.

Introduction: Historical and Theoretical Contexts

The Red Scare at the Federal Communications Commission (FCC) began in the late 1930s when the political careers of two Texas Democrats embarked down paths that eventually intersected in a dramatic political clash. Martin Dies, a House of Representatives Democrat but no New Dealer, surveyed the landscape of the United States in 1938 and found, in his estimation, a vast terrain of un-American behavior. Dies persuaded a coalition of House Republicans and Southern Democrats to form a committee and appoint him as its leader. From his position, Dies enthusiastically began to investigate un-American activities throughout the nation, among both radical conservatives and liberals. He was after the Fascists and Communists, particularly the Communists, whatever the costs, and he would find them through the auspices of his House Committee to Investigate Un-American Activities. His expedition was motivated by the search for another kind of radical, too. As Walter Goodman described him, “Martin Dies was a David come to judgment on the New Deal.”1 As far as Dies and his cohorts were concerned, a thin fault line separated Reds from New Dealers. A year after Dies formed his beloved committee, fellow Texan James Lawrence (Larry) Fly was appointed by President Franklin D. Roosevelt to be the new chair of the FCC. Formerly an attorney with the Tennessee Valley Authority, Fly was an ardent and outspoken New Dealer, eager to promote Franklin Roosevelt’s new deal for American citizens. The two politicians’ journeys collided in late 1941, only three weeks before Japan attacked Pearl Harbor, when Dies publicly accused two of Fly’s employees at the FCC of being Communists and persuaded the House Appropriations Committee to propose a bill that specifically re-

2

The Red Scare, Politics, and the FCC, 1941–1960

fused payment to these federal employees. It was the start of a political clash that enveloped the FCC for 20 years. During those 20 years, liberals and conservatives competed for the hearts and minds of Americans. It was a political battle that manifested itself in many ways, the most visible and vicious of which was the contest over Communist influences in the United States. It was one of the defining political struggles, if not the political fight, of post–World War II America, and it reverberated throughout American politics. Beginning in 1940 and continuing through 1941, the FCC made a series of decisions from a fundamentally New Deal perspective. Alarmed by the sudden activism of the Commission and particularly its New Deal antibusiness policies, conservative legislators retaliated through a sequence of congressional actions, some of which involved accusations of Communist infiltration of the agency. The attacks were so unrelenting that the FCC eventually withdrew from its activist policies, not only making more conservative, probusiness decisions, but also by rejecting its New Deal past and becoming fully engulfed in the search for Communists. The goal of this book is to explicate the role that politics and, more specifically, Red Scare politics played in decisions and policy making at the FCC from 1940–1960. This chapter sets the historical and theoretical contexts for the following analyses. The first section concentrates on the political and economic explanations for the anti-Communist fervor of the 1940s and 1950s and sets the stage for understanding why FCC policies resulted in a formidable conservative backlash. The next section contains an explanation of the historical contexts of the FCC, particularly regarding its relationship with the broadcasting industry. The chapter closes by explaining why legislators maintained close vigilance on the Commission, and why, when the FCC started issuing new policies in the early 1940s, conservatives vigorously attacked. TH E RED SC A R E The 20 years between 1940 and 1960 witnessed an unprecedented political attack on individuals with extreme political philosophies. This period is generally referred to as the Red Scare, a reference to the extreme fear of Communist infiltration that gripped the country. Alternately vilified as reds, pinkos, commies, and a host of other appellations, the fear of Communists in the United States was almost palpable, particularly after World War II, when the Soviets successfully detonated an atomic bomb. Explaining Communism in the United States and the retaliation against its adherents has been the subject of a considerable body of scholarship for the past 50 years, a great deal of which is devoted to the negative consequences of the anti-Communist period. Many historians provide general explanations of anti-Communism and McCarthyism, whereas

Introduction

3

others analyze the political entities embroiled in the anti-Communist fervor of the 1940s and 1950s, particularly Congress and executive departments.2 Much attention has focused on the impact of conservative attacks against specific groups such as labor unions, universities, libraries, women, African Americans, and civil rights workers (to name just a few).3 A more recent historical interpretation argues that although people like J. Edgar Hoover, Joseph McCarthy, J. Parnell Thomas, and Richard Nixon may have engaged in political extremism, the larger problem of fighting Communism was an honorable goal for protecting the United States from outside influences.4 There is no research, however, on the role this political maelstrom had on executive agencies, despite the fact that agencies such as the FCC, the Federal Trade Commission, and the Interstate Commerce Commission wielded considerable influence over the most significant industries of the time. Notwithstanding this oversight, the voluminous research on the anti-Communist activities of modern America reveals important insights to the values, tribulations, and fears of Americans. Two theories that are the most salient to my interpretation of the impact of politics and FCC policy making during the 1940s and 1950s explain the Red Scare as a political attack against both the New Deal and the New Deal’s antibusiness policies. Many, though not all, historians agree that the anti-Communist attacks of the 1940s and 1950s were politically motivated assaults on the New Deal. Although an intriguing body of research reveals a concerted Soviet effort to infiltrate and overthrow the U.S. government through a variety of American Communist organizations, thereby lending credence to the long-held suspicions that the Communist movement in the United States was intended to overthrow democracy,5 a much larger body of mainstream historical interpretation asserts that the Red Scare was largely a situation in which political and economic conservatives, politicians, and ordinary citizens alike were overcome by anger and fear. After the United States escaped the Great Depression and helped the Allies win World War II, its citizens were able to pause and analyze the significant sociocultural, economic, and political changes they had experienced. Those with conservative political beliefs saw a virtually unrecognizable landscape, and their Congressional representatives began to retaliate against liberals, notably the New Dealers, whom they believed were responsible for the sociopolitical changes. In a very real sense, conservatives were angry and fearful that the United States might continue to progress in ways that were alien to their philosophies. Thus, the reality of anti-Communism was that it was a public mask for a political backlash.6 As the 1940s progressed and the Red Scare escalated, it was increasingly clear that those who supported the New Deal and advocated significant social and political change during the Depression were particularly at risk for being accused of Com-

4

The Red Scare, Politics, and the FCC, 1941–1960

munist sympathies. Several people at the FCC fit this bill, particularly Larry Fly, Clifford Durr, Goodwin Watson, and William E. Dodd, Jr. A variant of this historical interpretation explains the Red Scare as conservative retaliation against the antibusiness atmosphere created by New Dealers, whose policies hampered corporate America and violated a freeenterprise economy.7 As David Caute explained, the “real sources of the ‘anti-Communist’ hysteria [may be found in] that creeping, gradualist, Fabian New Dealism, which posed so insidious a threat to unbridled Business [sic], big or small.”8 Conservatives, of course, generally opposed the intervention of government into corporate affairs, believing it be a violation of basic free enterprise. Although there may be evidence that corporate America did not respond with a unified, monolithic voice to Roosevelt’s New Deal economic policies,9 conventional historical thought asserts that the American business community detested what they believed were interventionist policies.10 One of the policies held dearest to New Dealers was their opposition to monopolies, which they believed held a stranglehold on the American economy for too long and were largely responsible for the economic crisis in which the country found itself. Although convinced that “a system of private business, if it were conducted properly, was the best system in America,” President Roosevelt was equally certain that “business could no longer do as it pleased and call it free enterprise.”11 As Ellis Hawley explained, “The attempt to put that [antimonopoly] program into practice . . . was one of the central themes of [post-1937] New Deal policy.”12 The best remedy for monopoly was to encourage competition, and this the New Dealers vigorously promoted, concerning themselves with neither “the moral intent of corporations nor with protecting small business against large.”13 Several of the policies developed by Larry Fly and his fellow New Dealers at the FCC could easily have been interpreted as antibusiness. I argue that one of the principal reasons the FCC became the focus of such extreme political attacks, including the charge that some Commission employees were Communists, was the antibusiness policies developed between 1940 and 1942. Many of the most important policies generated by the FCC during this period had a decidedly antibusiness tone to them, including the Mayflower Doctrine, the Sanders Brothers case, ownership rules, and the Chain Broadcasting Rule. Moreover, part of the massive expansion of the federal government during Franklin Roosevelt’s administration was the growth of agencies to oversee particular industries, such as the FCC, which was one example of the business world’s belief that the New Deal and government regulation were synonymous terms. Hence, as conservatives gradually gained more clout in the House and the Senate during the late 1940s and 1950s and began hunting down the elusive Communists, they were partially motivated by the antibusiness policies of the New Deal. Again, as the Red Scare pro-

Introduction

5

gressed during the 1940s and 1950s, those with economically conservative philosophies viewed those with liberal philosophies as Communistic. Thus, two assumptions serve as the foundation for my analyses of the interrelationship between politics, the Red Scare, and the FCC. First, beginning in 1940, conservatives routinely attacked New Dealers at the FCC, often under the guise of rooting out Communists at the Commission. Second, Commission decisions that were perceived as negatively affecting the business interests of those in the broadcasting industry were similarly accused of being Communist influenced. The New Deal policies and decisions made by the FCC between 1940 and 1942 and choreographed by Larry Fly so outraged conservatives that they began to retaliate against the Commission. That retaliation lasted throughout the same years and beyond, until the Commission adopted a more conciliatory approach and, eventually, embraced the search for Communists. Branded as radicals, these attacks resonated through the FCC for several years, playing a role in the agency later developing a more conservative approach to regulation and eventually taking a strong stand against Communism. Indeed, by 1953 the accused became the accusers. THE FEDERAL C O M M U NI C AT I O NS C O M M I S S I O N One of the most important things to understand about the FCC is that it is a political agency. It was established by an act of Congress, it is subject to congressional review (particularly through the House and Senate commerce committees that oversee it), and its commissioners are appointed by the president of the United States. In the daily functions of their jobs, the commissioners are required to interpret the Communications Act of 1934, as well as establish and enforce policies that regulate the broadcasting industry. They accomplish these tasks, sometimes more effectively than others, but always with a political perspective in mind. Further, and problematically, as the Communications Act of 1934 repeatedly instructs, decisions must be made with the public interest, convenience, or necessity in mind. The following sections review the development of broadcasting in the United States and the resulting creation of the Federal Radio Commission and the FCC, lists their responsibilities, and investigates the meaning of public interest. Federal Regulation of Broadcasting The FCC was created in 1934 under the direction of the Communications Act, but its regulatory antecedents began much earlier. The first real attempts by the federal government to administer the industry came under the auspices of the Radio Act of 1912, which placed the wireless industry under the control of the Department of Commerce and Labor.

6

The Red Scare, Politics, and the FCC, 1941–1960

Setting a precedent for government control, the Radio Act of 1912 gave the government the authority to assign transmitting frequencies and hours of operation and, more significantly, required wireless users to be licensed by the government. The 1912 Act was largely ineffective, as it failed to give the Department of Commerce and Labor the ability to refuse, review, or revoke licenses for failure to comply with the regulations. Neither legislators nor administrators could predict that the technology that they understood as wireless, which was almost exclusively used as pointto-point communication to a single receiver, would, in only eight years, be transformed into an entirely different technology, one that would change life in the United States. This fundamentally different use of the technology, now employed to transmit voice and music to as large an audience as possible, not only transformed the industry associated with it, but also eventually revolutionized the role of the government in its use. Radio broadcasting had arrived. There are few technologies that have been so eagerly, almost fanatically, embraced by nearly every aspect of American society as radio was during the 1920s (although television caught on even quicker 30 years later). The U.S. government estimated that there were 60,000 radio sets in Americans’ homes in 1922, a figure that swelled to 1.25 million in only two years and reached 4.5 million sets in 1926.14 Americans spent $1 billion in 1929 alone buying home entertainment, including radios (a record spending spree that dropped precipitously after the stock market crashed and wasn’t achieved again until 1946).15 As one historian noted, “Behind those figures of radio sales lies a whole chapter of the life of the [post–World War I] decade: radio penetrating every third home in the country . . . and Rudy Vallee crooning from antique Florentine cabinet sets.”16 As radio’s popularity grew, so, too, did the conjoined problems of licensing and frequency interference. In 1922 there were 30 licensed commercial radio stations on the air in the United States, but by 1925 there were 571.17 That doesn’t sound like many stations, especially compared with the more than 13,500 on the air in 2004. But in the 1910s, the federal government was unaware that wireless technology would transform into radio broadcasting and become wildly popular, hence the Department of Commerce and Labor had reserved only a limited number of frequencies on the electromagnetic spectrum for the transmission of wireless signals. As the popularity of radio broadcasting grew, so, too, did the demands for licenses to broadcast. With only a limited number of frequencies with which to work, the harried regulators at Commerce found themselves with an insufficient number of frequencies to meet demand and the inability to legally refuse to grant them. As hundreds of radio stations went on the air, broadcasters found their capability to transmit programming blocked by someone else attempting to broadcast on the same frequency. Boosting power levels occasionally worked; some broadcasters simply

Introduction

7

blew their competition off the frequency with increased power. The more common solution to the interference problem, however, was to wobble, or simply to move to another frequency and transmit from there. In essence, the stations ignored the fact that the Department of Commerce and Labor assigned a specific frequency from which to transmit. These independent-minded broadcasters, living at a time when the federal government had not yet assumed a massive oversight role, simply ignored the federal regulation and jumped frequencies. It must have become something like a sport, with daily local and regional competitions to see who got to a frequency first and who could maintain their transmissions the longest. But it wasn’t a game. By 1922 millions of dollars were pouring into the new industry. The major corporations who controlled wireless-cumbroadcasting were directing huge sums of money into manufacturing and marketing transmitters and receivers and into research and development. Westinghouse was already involved in broadcasting through its radio station KDKA in Pittsburgh, and AT&T was launching its own station, WEAF, in New York City. Smaller companies, colleges and universities, and individuals similarly invested considerable amounts of time and money into developing the new mass medium. The effort was clearly worthwhile, as radio audiences swelled. Encouraged by the popular press to welcome radio into their homes and lifestyles,18 Americans purchased receivers in unprecedented numbers. The sale of radio receivers skyrocketed throughout the 1920s; by 1930 nearly 14 million homes had radio receivers.19 Within a very short period of time, a brand-new industry with the potential for both unprecedented profit and power captured America. But it was a house of cards whose structural infirmity was the interference problem. The promise of mass entertainment and information, as well as vast profits, was at risk because of the inability to consistently transmit a signal over the same frequency. Broadcasters were already attempting to build loyal audiences, but this was a virtually impossible accomplishment because their transmissions could be blocked by wobblers or they, themselves, might have to jump frequencies. It made sense that members of the industry turned to Commerce and Labor for a resolution. Between 1922 and 1926, administrators at Commerce, and particularly its secretary, Herbert Hoover, sought ways to repair the interference problems, but their efforts were met with constant legal impediments. As Attorney General Donovan made abundantly clear in 1926, the Radio Act of 1912 did not give the federal government the authority to do anything other than grant licenses and attempt to assign frequencies.20 Failed by judicial attempts to rectify the overwhelming problems, members of the industry held annual conferences to commiserate about the interference problems plaguing the nascent industry and to generate possible solutions. Two important ideas evolved from the Ra-

8

The Red Scare, Politics, and the FCC, 1941–1960

dio Conferences. The first was to request, and eventually demand, that the federal government create an agency that would oversee the broadcasting industry. The second was a belief, proposed and championed by Hoover, asserting that broadcasters should operate in the public interest (a concept that will be addressed later).21 From an early twenty-firstcentury perspective, it is incomprehensible that an industry would implore the federal government to take regulatory control of it, but this was the case in the mid-1920s with the radio industry. From 1922 to 1925 the annual Radio Conferences adjourned, having decided to formally request the government to create regulatory oversight, and each year Congress ignored the conferees’ requests. With each passing year broadcasters devoted more money to developing broadcasting, consumers bought more radio sets, and the interference problems worsened. By 1926 the first national radio networks went on the air. Under the protection of the giant RCA, NBC-red and NBC-blue formulated grand plans for profit and entertainment. It was becoming increasingly clear, however, that the industry was quickly approaching a crisis point and was singularly unable to cope with the coming emergency. Although a 1926 court decision involving WGN and its owner, the Tribune Company, held the promise for some relief of the interference debacle,22 the problem continued unabated. Finally, by early 1927, with the industry and administrators clamoring for help and President Coolidge instructing legislators to accommodate their requests, Congress grudgingly responded with the Radio Act of 1927. The Radio Act of 1927 was landmark legislation. My purpose here is not to provide a lengthy overview of the Act—other historians have done an admirable job of that23—but to provide an explanation of its most significant features as they eventually related to the Communications Act of 1934. The 1927 Act created the Federal Radio Commission, a five-member board of commissioners appointed by the president, who would administer the regulations contained in the Act. The legislation gave the commissioners the power to assign frequencies, power levels, and hours of operation and the responsibility for other technical decisions. The commissioners further had the power to assign, review, renew, or revoke radio licenses, thereby closing the canyonlike loophole of the 1912 legislation. One of the most significant aspects of the Radio Act of 1927, however, was its frequent requirement that all FRC decisions must be made with the public interest, convenience, or necessity in mind.24 Hoover’s philosophy that the airwaves belonged to the public was codified into federal law. Broadcasters were now required to behave as public trustees of a scarce resource (frequencies). Despite the fact that the radio commissioners were hamstrung from the outset, and the commission itself faced significant problems (not the least of which was the lack of office space and an administrative budget),25 the Radio Act of 1927 eventually proved to be extremely efficient at resolving

Introduction

9

the interference problems facing the industry. By 1934 many broadcasters were no longer licensed because the industry successfully persuaded Congress that broadcasting was no place for educators and amateurs;26 consequently, fewer broadcasters meant airwave congestion was an unpleasant memory. Consistent use of the frequencies meant that a more reliable system of broadcasting could develop. Given the centrality of a capitalist economy in the United States, it is not surprising that major corporations led the way in developing national and regional networks of radio stations, although it was by no means inevitable. By 1935 NBC and CBS dominated the national radio landscape, whereas the Don Lee, Yankee, and Texas State networks captivated regional audiences. That same year all five happily took in $30 million in general revenues and $63 million in advertising receipts. Five years later, in 1940, those figures escalated to a total of $166 million in revenue generated by the radio networks,27 accomplishments that could not have been achieved without the enormously successful Radio Act of 1927. Indeed, the Radio Act and its guardian Federal Radio Commission were so effective at repairing and regulating the radio industry that President Franklin Roosevelt successfully persuaded Congress to expand the Commission’s scope. The Communications Act of 1934 reconstructed the Federal Radio Commission into the Federal Communications Commission and gave it regulatory authority over all forms of communication, including broadcasting, telegraph, and telephone. Virtually all the operating and licensing requirements contained in the Radio Act of 1927 were carried over to the 1934 legislation, especially the public interest requirement. From its inception, the FCC was a political organism. The commissioners were (and are) appointed by the president. Although no more than a simple majority may be from the president’s political party, it is widely understood that all commissioners approach their regulatory responsibilities from political perspectives. The Commission is subject to congressional oversight, which occurs through the patronage of the House and Senate commerce committees. As such, these committees may investigate FCC activities, either formally or informally. The political nature of the FCC means that the commissioners must be constantly vigilant of the political implications of their decisions. Simply stated, although the FCC specifically was required to regulate broadcasting according to the stipulations of the Communications Act of 1934, it simultaneously was expected to supervise according to either liberal or conservative political philosophies, depending on who occupied the White House and which party(ies) held the majority in the House and Senate. The potential for political imbroglios is clear. Subject to both congressional and executive oversight, the Commission and commissioners well understood their political responsibilities. The quandary faced by the Federal Communications Commission was regu-

10

The Red Scare, Politics, and the FCC, 1941–1960

lating in an atmosphere of both political and industrial pressure. But there was a third group that had to be satisfied, and that was the elusive “public interest.” The Public Interest The FCC is required to regulate in the public interest, convenience, or necessity, as is clearly stated throughout the Communications Act of 1934. As guardians of the public’s airwaves, every regulation, policy, and decision made by the FCC is supposed to be made in the public’s interest. It is a deceptively simple term and has proven maddeningly difficult to define. What does it mean to regulate in the public interest? In general, the concept of regulating in the public interest is essentially pluralist and democratic in nature, placing the public in a preeminent position or, at the very least, on an equal footing with the power of capitalist corporations, demanding that the federal government hold industries accountable to the public for their decisions and activities. The concept has its origins in nineteenth-century America and was a philosophical outgrowth of the industrial infrastructures that cascaded across the national landscape, particularly railroads.28 Although arguably necessary for the development of a national economy, these industries grew into dominant corporations with little government oversight. Motivated by an atmosphere of runaway corporations answerable to no one, a public interest theory of regulation developed whereby the government was expected to oversee industry on behalf of the public. It was a theory of government that expanded rapidly during the Progressive and New Deal eras,29 accomplished through the creation of regulatory agencies, which in turn became the intermediaries between industrial and economic growth and the public. In essence, the regulatory agencies mediated between two concepts fundamental to our national identity: free enterprise and individualism. Herein lies the considerable tension within public interest theory and the key to two essentially different ways of explaining exactly how best to regulate in the public’s interest. One interpretation argues that the ideal way to regulate in the public interest is to require industries to follow policies that directly serve the public’s best interests. As Robert Horwitz explained, “Public interest theory treats the creation of regulatory agencies as the victorious result of the people’s struggle with private corporate interests. Agencies employ the positive power of the state to . . . serve the general welfare, and in so doing, regulation protects the consumer from corporate abuses.”30 Hence, the public enjoys direct government protection from corporate extremes; the government safeguards the public. Horwitz explains, however, that placing public interests at the center of public interest theory “slights the structural importance of the economy and of

Introduction

11

economic power.”31 Given the inherent conflict between corporate and public interests, it is not surprising that an alternative interpretation of serving the public interest exists and has been the dominant interpretation for over a century. In this model, the public’s interest is best served by protecting industrial interests because a strong economy provides optimum protection for the public. According to Willard Rowland, by the 1920s, “American public policy had established an accommodation between public and private interests that turned largely around the economic well being of the industries and the assumption that public service benefits would derive most fully from that relationship.”32 After passage of the Radio Act of 1927 and then the Communications Act of 1934, when the FRC and the FCC were directed to regulate the broadcasting industry in the public interest, the meaning behind that command was somewhat vague. Horwitz asserted that one of the deficiencies with interpreting public interest theory from a strictly public-centered perspective is the fact that some regulatory agencies “were established not in response to the democratic demands of an abused public, but in response to the pleas of particular industries for protection.”33 This is exactly what happened with the formation of the Federal Radio Commission, constituted at the behest of interested parties in the broadcasting industry. Because the Communications Act of 1934 specifically directed the FCC to make every decision with the public interest in mind, it was a concept with which they were forced to work on a daily basis. After 1934 the Federal Communications Commission found itself responsible for regulating under the pressure of expectations from government officials, industry leaders, the public, and a definition of public interest that fluctuated between all three groups. As Jon Crane explained, “The meaning of public interest has been used for political purposes by the White House, the courts, the FCC itself, and the Congress.”34 Political leaders defined public interest in varying ways, usually along politically conservative and liberal lines. Broadly speaking, a liberal politician defined public interest as serving the needs of the public, whereas a political conservative defined it as serving business needs. Industry leaders, of course, believed that the best way to regulate in the public interest was to protect their economic interests, but even this was eventually distorted as some organizations, particularly RCA, became corporate Goliaths against whom other companies found it extremely difficult to compete. Hence these smaller companies assumed an underdog position traditionally ascribed to the public in public interest theory and sought relief from the FCC. Finally, the Supreme Court tended to define the concept in a more liberal way, “consistently [applying] public interest to mean that the public must receive the advantages of broadcasting.”35 Although the voice of the actual public was virtually lost during the 1930s, 1940s, and 1950s, the Supreme Court apparently served as the public’s mouthpiece. Several

12

The Red Scare, Politics, and the FCC, 1941–1960

FCC decisions were appealed to the Supreme Court between 1940 and 1960, but the vast majority was not. Hence, the most active participants in defining public interest were politicians, industry leaders, and commission members. TH E CO MM I S S I ON A N D T H E B R O A D C A S T I N G IN DUSTRY When the industry forced a shotgun marriage between itself and the federal government by asking for regulation, it created a relationship that historically worked fairly well as long as the commissions remained mostly complacent to industry desires. Indeed, the industry refused to support proposed legislation during the 1920s radio regulation debates until their corporate and legal interests were guaranteed36 and succeeded in limiting the new government commission to policing the use of frequencies (or so the industry believed). Working within a technically chaotic atmosphere in the 1920s, it is understandable why the industry encouraged Congress to require the FRC (and later the FCC) to “study new uses for radio, provide for experimental use of frequencies, and generally encourage the larger and more effective use of radio in the public interest,”37 because this is exactly the kind of administrative position the industry wanted government to assume. Thus, the commissions found themselves regulating a highly technical industry. These essentially technical tasks proved daunting, requiring both the FRC and the FCC to manage the electromagnetic spectrum by reserving portions for specific uses and determining who may use those frequencies. (Indeed, for several years during the late 1930s and early 1940s some corporations, particularly RCA and NBC, argued that this was the FCC’s only responsibility). The agency’s day-to-day obligations included decisions about licensing, holding hearings to determine how best to use frequencies, and attempts at planning for the future. Yet, to effectively accomplish these responsibilities, the Commission had to conduct sophisticated engineering experiments to understand the physical properties of sound and radio wave transmissions. The commission employed only a marginal staff of engineers ill equipped to undertake significant technological experimentation, largely because the agency was notoriously underfunded by Congress. In 1935 the Commission’s appropriated budget was $1.15 million, and it employed only 329 people, a small fraction of which were electrical engineers; in 1936 the budget increased slightly to $1.5 million with 366 employees; by 1940 the FCC operated with a $1.8 million budget and employed 434 people.38 Charged by Congress to lead the way in finding new and “more effective” uses for radio, legislators simultaneously failed to provide the appropriations necessary for the Commission to realize those goals. Compare these figures

Introduction

13

with the fact that in 1940, industry giant RCA employed more than 25,000 people, enjoyed an operating profit of nearly $13.5 million, and collected more than $13.6 million in patent royalties.39 The patent royalties alone were six times the FCC’s appropriated budget for 1940. Even the little Farnsworth television company, the weak underdog to RCA’s manufacturing might, employed 600 people and had a gross income of $2.9 million in 1940.40 The disparity between commission and corporate financial resources resulted in an industry with vast coffers of capital and a profitoriented mind-set assuming principal responsibility for research and development. The technical expertise on which the Commission based many of its decisions, then, was largely assumed by the industry the agency was charged with regulating. The economic power of the broadcasting industry was indisputable. Already profitable and powerful prior to the emergence of broadcasting in 1920, companies such as RCA, General Electric, Westinghouse, and AT&T watched their profits soar during the 1920s, largely due to the crosslicensing agreement in which they created a patents pool among themselves. After their oligopoly was dismantled in 1926 and AT&T withdrew from the broadcasting industry, other companies quickly entered the radio manufacturing business, although few ever reached the dominance of RCA. A few statistics are in order to demonstrate the corporate power of the industry. By 1941, RCA, General Electric, and Westinghouse together employed nearly three million people, and their net incomes approached $100 million.41 Also in 1941, advertising agencies spent $247 million buying radio airtime; broadcasters took in $45 million in income and employed 276,000 people.42 Finally, in 1947 the communication industry represented 1 percent of the U.S. gross national product (GNP). Between 1948 and 1952 that figure remained relatively constant at 1.5 percent, but then grew so dramatically that by 1960 the communication industry represented 2 percent of the GNP.43 Clearly the industry was an important cog in the U.S. economic engine. Thus, broadcasting was a part of an industry that played an economically, and hence politically, important role in the United States. Further, in addition to their economic importance during the Depression, these companies played key defense roles during World War II, developing and manufacturing war materiel such as radar, radio devices for naval and army communication. Indeed, both David Sarnoff of RCA and William Paley of CBS were commissioned as generals and actively participated in fighting World War II. Overwhelmed by the technical research required for both the broadcasting industry to develop and for the Commission to execute its regulatory mission, the FCC increasingly turned to an immensely profitable industry to shoulder the responsibility for research and development and then report their findings to the Commission. Up to 1938 the FCC generally confined itself to technical issues and licensing decisions and al-

14

The Red Scare, Politics, and the FCC, 1941–1960

lowed the industry to develop technology and follow its own business interests. After 1938, the Commission became more active in regulating the industry, and the tacit agreement that the FCC would take a laissezfaire approach to regulating the industry started to disintegrate. From an industry perspective, the FCC strayed from its technical responsibilities and started to interfere with business decisions. The political implications of the Commission’s intervention were monumental. PO LITICIAN S A N D B R OA DC A S T IN G Aside from the economic significance of the radio networks and manufacturers, their profitability and employment rates, the networks were key to accessing national audiences through their programming practices. Historians such as Erik Barnouw, Susan Douglas, J. Fred MacDonald, Douglas Craig, and Michele Hilmes provide illuminating explanations of the role that radio played in “delivering and forging a national culture in the 1930s and 1940s.”44 Their ability to both access and communicate to masses of loyal listeners made the radio networks (and later the television networks) the key intermediary between politicians and listeners, a fact that was keenly understood by all legislators in the House and Senate. Politicians were quick to realize the potential of radio to mass communicate their messages. As Governor Pappy O’Daniel excitedly exclaimed as he approached radio station WEZY in the movie, O Brother, Where Art Thou?, “We’re mass communicatin’ now!” Indeed, politics were a central feature of radio broadcasting from its inception. When station KDKA in Pittsburgh went on the air for the first time in November 1920, its inaugural programming consisted of the presidential election returns. Frederick Lewis Allen noted that in 1924, radio audiences discovered “that a political convention could be a grand show to listen to and that a seat by the radio was as good as a ticket to the [Democratic convention].”45 Henceforth, politicians of every stripe utilized the airwaves to communicate their ideals to the listening audience. As Douglas Craig explained, “Politicians’ eagerness to use radio as a publicity and electioneering tool was exceeded only by their ignorance of its technical nature and demands.”46 Once politicians learned that neither the Radio Act of 1927 nor the subsequent Communications Act of 1934 gave the FCC authority to dictate radio content, hence legislators could not simply demand and receive broadcast airtime, they learned to develop a more symbiotic relationship with broadcasters. Throughout the 1920s and 1930s, the relationship between broadcasters and mainstream politicians snuggled into a comfortable warmth, to the extent that the networks and individual radio stations excluded political “extremists,” such as labor unions.47 Nobody used radio as effectively as Franklin Roosevelt through his “fireside chats.” Following Roosevelt’s

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15

lead, New Deal Democrats took full advantage of the opportunity to reach large audiences through radio during the 1930s, to the extent that one historian characterized their efforts as “bombard[ing] the public with a deluge of radio addresses.”48 Some theorists, particularly those in the educational community, celebrated the potential democratizing influences of the new medium. Kenneth Bartlett, writing in 1947, applauded the political use of radio, arguing that “by giving the candidate an opportunity to carry his [sic] message directly to the public, it has made the citizen feel he [sic] is more a part of the democratic process. The easy-to-listen-to speeches of Franklin D. Roosevelt unquestionably brought out more voters than the same speeches would have brought out if they had only been read.”49 Yet in reality a discomfiting relationship grew between politicians and broadcasters, a symbiotic relationship that redefined a politician’s constituency (citizen versus corporate sponsor) and challenged the concept of a democratic mass medium through which the marketplace of ideas was championed. It was an alliance that “blurred regulatory and legislative boundaries; lawmakers became the broadcasters’ regulators, customers, and debtors. Each of these roles brought benefits and tensions, forcing both groups to engage in a sometimes-complicated ballet of mutual support. Politicians soon found that they needed broadcasters’ goodwill as much as radio required legislative and political protection.”50 This delicate relationship was threatened when the Commission, under the direction of New Dealer Larry Fly, began developing policies that intervened in the broadcasting business. The resulting broadcasters’ lamentations made many conservative legislators nervous—not only did an economically important industry feel threatened, but politicians’ desires to keep broadcasters happy was also at risk. RA DIO AN D T E L E V I S I ON I N T HE U N I T E D ST ATES Between 1940 and 1960 FCC commissioners made appearances at a minimum of 80 House investigations and 96 Senate investigations, with peak attendance during the 77th Congress (1940–1941) and the 84th through 86th Congresses (1955–1960).51 Why did politicians devote so much time and effort to scrutinizing this particular agency? The answer lies in the nature of the industry the FCC regulated: broadcasting and its access to a mass audience. Radio and eventually television were the most pervasive media ever, reaching far greater audiences than the print media could ever hope to reach, if for no other reason than the fact that an audience member didn’t have to be literate. The further fact that radios and televisions were widely available at affordable prices and offered an extensive variety of entertainment and information programs meant that these media were rapidly accepted into people’s homes and incorporated into their daily

16

The Red Scare, Politics, and the FCC, 1941–1960

routines. Listeners and viewers didn’t even seem to mind (too much) that they were subjected to a constant barrage of advertisements. The explosive growth of radio first, and then television, caused many people to take notice of the media as something more than “just” a source of entertainment and information. Scholarly researchers were drawn to the media, most of whom questioned the effects radio and television had on the American audience. Between 1929 and 1932 a series of 13 investigations that became known as the Payne Fund Studies were undertaken to assess the effects of film messages on audiences.52 The researchers concluded that the films had “all powerful” effects on both the behaviors and attitudes of their audiences, and although all the studies focused on motion pictures, their results were widely assumed to be true of all mass media. Throughout the 1930s, the 1940s, and into the 1950s, some researchers (and eventually politicians, social leaders, and the general public) believed that the mass media had a “magic bullet” effect on their audiences who were generally passive to those messages. Because radio was by far the most pervasive medium of the time, it seemed logical to assume that radio must be all powerful as well. There was both anecdotal and social scientific research to support this contention. The psychological importance of radio in people’s lives was reinforced during the Depression, when many Americans would do almost anything rather than part with their radio. Reliance on radio programming, coupled with the degree to which Americans welcomed radio receivers into their homes, caused increasing concern during the 1930s and 1940s regarding the effects of radio content. Popular press magazines from the time period were filled with articles about the negative consequences of radio programming, such as juvenile delinquency, educational shortfalls, stereotyping, and emotional health, all belying an anxiety about the role the medium played in everyday lives. A writer for Woman’s Home Companion simply described radio content as “those dreadful programs.”53 When Orson Welles broadcast his infamous interpretation of “The War of the Worlds,” the ensuing panic it caused in one out of six listeners suggested that the radio broadcast had significant effects on audience’s behaviors, which they were powerless to resist. Indeed, a research project conducted by Princeton University immediately following the broadcast indicated that one reason listeners were persuaded by the program was “the confidence that the American public had developed in radio.”54 Much more seriously, however, was the growing evidence of the power of radio to communicate propaganda during the 1930s. As Nazi use of radio increased dramatically during the decade, so, too, did the number of U.S. popular press articles devoted to reporting on the effects of radio propaganda. Academicians turned their analytical eyes toward radio with the goal of trying to systematically determine what effects radio had on listeners.

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One of the earliest was the 1935 publication of The Psychology of Radio, in which authors Hadley Cantril and Gordon Allport attempted to understand the role radio played in audiences’ daily lives.55 Nine years later Paul Lazarsfeld conducted the now-famous research project on the voting behaviors of people in Erie County, Ohio.56 One of the unexpected results of Lazarsfeld’s study was the recognition of a behavior that became known as the “two-step flow” theory of indirect media effects. Lazarsfeld found that even individuals who did not directly consume media messages, including radio, were likely to be effected by them, albeit indirectly. Instead, another individual who was perceived as an “opinion leader” consumed media messages then relayed them to others who did not. The powerful effect was still the same, despite the fact that the media message occurred in two steps and, hence, was indirectly consumed. Academic analysis of the effects of radio programming continued through the 1940s. Kenneth Bartlett, for example, continued to believe that radio played an important role in providing entertainment and information, but conceded that it was time to “get down to the business of improving the material from which people make up their minds and on which they base their actions.”57 Mass culture and mass society theorists were equally disturbed by what they perceived to be the overwhelmingly negative effects of the mass media, particularly radio and television. Beginning in the late 1930s and early 1940s, researchers such as Theodor Adorno and Max Horkheimer excoriated the mass media as being responsible for “enlightenment as mass deception,” arguing that the very entertainment and informational programs to which American audiences were addicted debased their intellectual abilities and, worse still, made them willing but ignorant victims of the social elite, whose values and attitudes were communicated through the media.58 Adorno and Horkheimer focused their criticisms on the radio programs that, they argued, were mass produced according to narrative formulas and were essentially democratic because all participants were equalized as listeners consuming the same message but unable to provide feedback. Nonetheless, radio content rendered audiences passive to their messages. Indeed, the theorists argued that “the stronger the positions of the culture industry become, the more summarily it can deal with consumers’ needs, producing them, controlling them, disciplining them, and even withdrawing amusements.”59 Having achieved centrality to the average American’s daily life, the power of the culture industry (of which radio was a formidable member) was its ability to define reality for the general American population, to distinguish the appropriate from the inappropriate, the acceptable from the unacceptable, the right from the wrong in virtually every aspect of American behavioral and attitudinal life. This was unprecedented power, argued Adorno and Horkheimer, the

18

The Red Scare, Politics, and the FCC, 1941–1960

ability of the social “elite” to communicate their values and attitudes through the media under the guise of “entertainment.” Mass society theorists such as C. Wright Mills similarly argued that the mass media evolved into an inherent element of the political process, supposedly strengthening the mythical “Great American Public” by allowing the free flow of ideas through radio (an argument commonly and currently used to promote the development of the World Wide Web) but in reality transforming the politically active “public” into the politically passive “mass.”60 Unlike a public, the mass audience is dependent on the media—who carefully craft messages—for political information and is unable to participate in a free exchange of ideas because of the inability to directly respond to political messages. As Mills argued, the media as part of the “power elite” render the “Great American Public” passive by encouraging them to believe that listening to and watching political advertisements makes them “active.” By the early–mid 1950s, as television erupted on the American landscape, joining and surpassing radio broadcasting in its ubiquity and inescapability, mass culture theorists became even more concerned about the debilitating effects of mediated messages on American individualism and intellectualism. Autonomy was a thing of the past; the ability to have an original thought was replaced by the mind-numbing antics of Milton Berle and the “dumbing down” of American youth through Howdy Doody. As Bernard Rosenberg stated, “No art form, no body of knowledge, no system of ethics is strong enough to withstand vulgarization.”61 The great sin committed by the media, according to mass culture theorists, was giving “people just what they wanted: leisure activities that were ‘easy to assimilate,’ that promised diversion and relaxation but not ‘disturbance’ or ‘insight.’”62 The mass culture theorists’ concerns were not confined to obscure academic journals, but were periodically covered in the popular press as well and, hence, were available to the average American citizen and her/ his Congressional legislator. When Charles Siepmann began teaching a course in radio at Harvard University, Time magazine covered the story. “Scholar Siepmann is convinced,” Time wrote, “that radio permits the concentration of power in the hands of a few—power to blast social concepts, to construct or destroy. He is appalled by the fact that of the 500 U.S. universities offering radio courses, only four . . . touch on its social implications.”63 Siepmann’s opinion of radio mirrored that of other mass culture theorists. Further, in an article published in Atlantic Monthly in 1948, Gilbert Seldes wrote that the concept of a mass medium “parallels mass production and consumption and has some of the same characteristics: repetitive gestures on the producing end and passive enjoyment for the consumer,”64 arguments that clearly correspond to Adorno’s and

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Horkheimer’s. Seldes continued by asserting that “on this commercial basis [of mass production and assumption] an entire philosophy has been erected, of which the first principle is: Radio ought never to serve any interest except that of the mass.”65 Finally, to quote extensively from Mr. Seldes: When women’s clubs, educators, or New Deal bureaucrats criticize radio programs, the answer of the industry is usually a table of the many kinds of entertainment provided. . . . But the plea of “variety of interests” is unacceptable because . . . all these varied programs and interests are substantially of the same kind, appealing to the same people. Intellectually and emotionally, they lie within the same parallels of latitude, and the wide world of human interests outside this narrow zone is left untended.66

Clearly not everyone was thrilled with radio and television’s surge in popularity during the 1930s, 1940s, and 1950s. Although the radio manufacturers and broadcasters found orgasmic pleasure in the profitability of the media, and vast numbers of listeners turned to broadcasting as their principal source of entertainment and information, there were many who saw in the new media an unprecedented and frightening ability to play a fundamental role in the development of both individual and cultural psychology. Hence, there were many reasons why the Federal Communications Commission received such intense scrutiny from politicians during the 1940s and 1950s. The FCC regulated two media that enjoyed both unprecedented pervasiveness and, many feared, seemed to have unparalleled power to influence audiences’ attitudes and behaviors (notably political attitudes and behaviors). The media themselves were a single aspect of a much larger industry that employed hundreds of thousands of people, contributed mightily to the economic health and wealth of the United States, and played a significant defense role. Decisions made and policies created by the FCC affected some or all these aspects of American life. Thus, politicians maintained close vigilance on the Commission. But these may well have been smoke screens for the real reasons why legislators kept close tabs on the FCC. The more likely answer is politics. Bluntly stated, politics are about power, who has it, and who wants it. Radio and television became some of the most important tools through which politicians courted support, both industrial and electoral. Further, when Larry Fly took over the FCC in 1939, he made no secret about actively incorporating New Deal policies into regulation of the broadcasting industry. More conservative politicians, Democrats and Republicans alike, interpreted Fly’s actions as unrestrained attempts by Roosevelt and his fellow liberals to assert authority over the most powerful medium of the day. Fly’s political maneuver was met by swift conservative reprisal.

20

The Red Scare, Politics, and the FCC, 1941–1960

CO NCLUSION When Larry Fly and Martin Dies collided head on in the fall of 1941, they did so within an atmosphere primed for trouble. Radio was the most popular mass entertainment in the country, and television was on the horizon. The companies responsible for these media were among the most powerful in the country, holding a commanding position both in terms of economic distinction and political influence. The lowliest legislator to the president of the United States simultaneously depended on radio to mass communicate their messages and held the power to dictate to the industry, although politicians within the House of Representatives, Senate, and White House often disagreed about how this should be accomplished. The third aspect of the triumvirate was the FCC, created by Congress to administer the telecommunications industry. The commissioners who actually undertook regulatory authority were appointed by the president but also answerable to Congress. Lost in the haze was the elusive “public,” in whose interest everyone was supposed to decide. Between 1940 and 1960, politics played a central role in the development of broadcast regulation. After his appointment in 1939 and guided by New Deal philosophies, Fly led the Commission to make sweeping decisions regarding broadcast regulation. From a technical perspective, the Commission opened valuable and scarce frequencies for the development of FM radio while simultaneously slowing the public introduction of television. Fly and his fellow New Dealers at the FCC further developed policies that regulated business practices, specifically the Chain Broadcasting Rule, the Sanders Brothers case involving “economic injury,” and limits on the number of broadcast outlets one could own, including the attempt to prevent newspaper publishers from owning radio stations. Finally, under the guidance of New Deal philosophies, the FCC attempted to control the content of the airwaves through creation of the Mayflower Doctrine, which prohibited radio stations from editorializing on the air. Although all these policies were perfectly legitimate from a New Deal perspective, conservatives interpreted the Commission’s newfound activism, particularly its forays into business practices, as both interventionist and Communistic. Larry Fly and his New Deal compatriots received swift and angry rebukes from conservative members of Congress, usually in the form of congressional investigation, occasionally with the added accusation of being Communist. The contest between Fly and Dies that started in 1941 was simply one skirmish in a much longer anti-Communist campaign that manifested itself in a variety of ways at the FCC from 1940– 1960. NO TES 1. Walter Goodman, The Committee: The Extraordinary Career of the House Committee on Un-American Activities (New York: Farrar, Straus and Giroux, 1968), p. 19.

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2. August R. Ogden, The Dies Committee: A Study of the Special House Committee for the Investigation of Un-American Activities, 1938–1944 (Westport, CT: Greenwood Press, 1984); Kenneth O’Reilly, Hoover and the Un-Americans: The FBI, HUAC, and the Red Menace (Philadelphia: Temple University Press, 1983); Goodman, The Committee. 3. Gilbert J. Gall, Pursuing Justice: Lee Pressman, The New Deal, and the CIO (Albany, NY: SUNY Press, 1999); Ellen Schrecker, No Ivory Tower: McCarthyism and the Universities (New York: Oxford University Press, 1986); Louise S. Robbins, The Dismissal of Miss Ruth Brown: Civil Rights, Censorship, and the American Library (Norman: University of Oklahoma Press, 2001); Kate Weigand, Red Feminism: American Communism and the Making of Women’s Liberation (Baltimore: Johns Hopkins University Press, 2000); Mark Solomon, Cry Was Unity: Communism and African Americans, 1917–1936 (Jackson: University of Mississippi Press, 1998); Mark Solomon, Red and Black: Communism and Afro-Americans, 1929–1935 (New York: Garland Publishers, 1988). 4. This is a fairly new historical interpretation of the anti-Communist period, most notably argued by Richard G. Powers, Not without Honor: The History of American Anticommunism (New York: The Free Press, 1995). 5. Harvey Klehr, John E. Haynes, and Fridrikh I. Firsov, The Secret World of American Communism (New Haven, CT: Yale University Press, 1995). 6. A large number of histories explain the Red Scare as a political backlash against liberals, most notably Richard Fried, Nightmare in Red: The McCarthy Era in Perspective (New York: Oxford University Press, 1990); Ellen Schrecker, Many Are the Crimes: McCarthyism in America (Boston: Little Brown Publishers, 1998). 7. David Caute, The Great Fear: The Anti-Communist Purge under Truman and Eisenhower (New York: Simon and Schuster, 1978). 8. Caute, The Great Fear, p. 21. 9. See, for example, Peter Swenson, “Arranged Alliance: Business Interests in the New Deal,” Politics & Society 25, no. 1 (March 1997): pp. 66–116. 10. Arthur M. Schlesinger, Jr., The Coming of the New Deal (Boston: Houghton Mifflin, 1959); William Leuchtenburg, Franklin D. Roosevelt and the New Deal, 1932–1940 (New York: Harper and Row Publishers, 1963); George Wolfskill, “New Deal Critics: Did They Miss the Point?,” in Essays on the New Deal, ed. Harold M. Hollingsworth and William F. Holmes, (Austin: University of Texas Press, 1969), pp. 49–68. 11. Wolfskill, “New Deal Critics: Did They Miss the Point?,” p. 61. 12. Ellis W. Hawley, The New Deal and the Problem of Monopoly (Princeton, NJ: Princeton University Press, 1966). 13. Leuchtenburg, Franklin D. Roosevelt and the New Deal, 1932–1940, p. 246. 14. Bureau of the Census, U.S. Department of Commerce, “Radio and Television Stations, Sets Produced, and Households with Sets,” Historical Statistics of the United States, Colonial Times to 1970, Part 2 (Washington, D.C.: Government Printing Office, 1975), p. 796. 15. Bureau of the Census, U.S. Department of Commerce, “Personal Consumption Expenditures by Type of Product,” Historical Statistics of the United States, Colonial Times to 1970, Part 1 (Washington, D.C.: Government Printing Office, 1975), pp. 317–319.

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16. Frederick Lewis Allen, Only Yesterday: An Informal History of the 1920’s (New York: Harper and Row, 1931), p. 138. 17. Bureau of the Census, U.S. Department of Commerce, “Radio and Television Stations, Sets Produced, and Households with Sets,” Historical Statistics of the United States, Colonial Times to 1970, Part 2 (Washington, D.C.: Government Printing Office, 1975), p. 796. 18. Michael Brown and Corley Dennison, “Integrating Radio into the Home, 1923–1929,” Studies in Popular Culture 20 (1998): pp. 1–17. 19. Bureau of the Census, U.S. Department of Commerce, “Radio and Television Stations, Sets Produced, and Households with Sets,” Historical Statistics of the United States, Colonial Times to 1970, Part 2 (Washington, D.C.: Government Printing Office, 1975), p. 796. 20. Frank J. Kahn, “Breakdown of the Act of 1912,” Documents of American Broadcasting, 4th ed. (Englewood Cliffs, NJ: Prentice Hall, Inc., 1984), pp. 30–35. 21. Louise M. Benjamin, “Working It Out Together: Radio Policy from Hoover to the Radio Act of 1927,” Journal of Broadcasting and Electronic Media 42 (1998): pp. 221–236. 22. Louise M. Benjamin, “The Precedent that Almost Was: A 1926 Effort to Regulate Radio,” Journalism Quarterly 67 (1990): pp. 578–585. 23. See Douglas B. Craig, Fireside Politics: Radio and Political Culture in the United States, 1920–1940 (Baltimore: Johns Hopkins University Press, 2000); Daniel Garvey, “Secretary Hoover and the Quest for Broadcast Regulation,” Journalism History 3 (1976): pp. 66–70; Donald G. Godfrey, “The 1927 Radio Act: People and Politics,” Journalism History 4 (1977): pp. 74–78; Donald G. Godfrey, “Senator Dill and the 1927 Radio Act,” Journal of Broadcasting 23 (1979): pp. 477–489; Donald G. Godfrey and Val E. Limburg, “The Rogue Elephant of Radio Legislation: Senator William E. Borah,” Journalism Quarterly 67 (1990): pp. 214–224; Mary S. Manders, “The Public Debate About Broadcasting in the Twenties: An Interpretive History,” Journal of Broadcasting 28 (1984): pp. 167–185; Robert W. McChesney, Telecommunications, Mass Media, & Democracy: The Battle for the Control of U.S. Broadcasting, 1928–1935 (New York: Oxford University Press, 1993); Joseph P. McKerns, “Industry Skeptics and the Radio Act of 1927,” Journalism History 3 (1976): pp. 128–131. 24. James L. Baughman, Television’s Guardians: The FCC and the Politics of Programming, 1958–1967 (Knoxville: University of Tennessee Press, 1985). 25. Erwin G. Krasnow and Lawrence D. Longley, The Politics of Broadcast Regulation, 2nd ed. (New York: St. Martin’s Press, 1978). 26. McChesney, Telecommunications, Mass Media, & Democracy; McKerns, “Industry Skeptics and the Radio Act of 1927,” pp. 128–131. 27. Bureau of the Census, U.S. Department of Commerce, “Radio Advertising Expenditures, Finances, and Employment,” Historical Statistics of the United States, Colonial Times to 1970, Part 2 (Washington, D.C.: Government Printing Office, 1975), p. 797. 28. Robert B. Horwitz, The Irony of Regulatory Reform: The Deregulation of American Telecommunications (New York: Oxford University Press, 1989); Willard D. Rowland, Jr., “The Meaning of ‘The Public Interest’ in Communications Policy, Part I: Its Origins in State and Federal Regulation,” Communication Law & Policy 2 (1997): pp. 309–328.

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29. Horwitz, The Irony of Regulatory Reform. 30. Horwitz, The Irony of Regulatory Reform, p. 26. 31. Ibid. 32. Rowland, Jr., “The Meaning of ‘The Public Interest’ in Communications Policy, Part I: Its Origins in State and Federal Regulation,” p. 328. 33. Horwitz, The Irony of Regulatory Reform, p. 26. 34. Jon S. Crane, “Issues of Public Interest Regulation in Supreme Court Decisions: 1927–1979,” in Communications Policy and the Political Process, ed. John J. Havick (Westport, CT: Greenwood Press, 1983), pp. 109–126. 35. Crane, “Issues of Public Interest Regulation in Supreme Court Decisions: 1927–1979,” p. 123; Crane, Supreme Court Interpretations of ‘Public Interest’ in Broadcast Decision: 1927–1979, Ph.D. Dissertation, University of Massachusetts, September 1980. 36. McKerns, “Industry Skeptics and the Radio Act of 1927,” pp. 128–131. 37. Sixth Annual Report of the Federal Communications Commission (Washington, D.C.: Government Printing Office, 1940), p. 15. 38. First Annual Report of the Federal Communications Commission (Washington, D.C.: Government Printing Office, 1935), pp. 2–3; Second Annual Report of the Federal Communications Commission (Washington, D.C.: Government Printing Office, 1936), pp. 1, 9; Sixth Annual Report of the Federal Communications Commission (Washington, D.C.: Government Printing Office, 1940), p. 25. 39. Moody’s Manual of Investments (1941), p. 2959. 40. Moody’s Manual of Investments (1941), p. 692. 41. Moody’s Manual of Investments (1941), pp. 2176, 2224, and 2959. 42. Bureau of the Census, U.S. Department of Commerce, “Radio Advertising Expenditures, Finances, and Employment,” Historical Statistics of the United States, Colonial Times to 1970, Part 2 (Washington, D.C.: Government Printing Office, 1975), p. 797. 43. Bureau of the Census, U.S. Department of Commerce, “Gross National Product by Type of Industry (in 1958 dollars),”Historical Statistics of the United States, Colonial Times to 1970, Part 1 (Washington, D.C.: Government Printing Office, 1975), p. 233. 44. Erik Barnouw, A Tower in Babel (New York: Oxford University Press, 1966); Erik Barnouw, The Golden Web (New York: Oxford University Press, 1968); Erik Barnouw, The Image Empire (New York: Oxford University Press, 1970); Erik Barnouw, Tube of Plenty (New York: Oxford University Press, 1976); Susan J. Douglas, Listening In: Radio and the American Imagination (New York: Random House, 1999), p. 62; Michele Hilmes, Radio Voices (Minneapolis: University of Minnesota Press, 1997); J. Fred MacDonald, Don’t Touch That Dial!: Radio Programming in American Life from 1920–1960 (Chicago: Nelson-Hall Publishers, 1979); Craig, Fireside Politics. 45. Allen, Only Yesterday, p. 137. 46. Craig, Fireside Politics, p. xii. Also see Robert J. Brown, Manipulating the Ether: The Power of Broadcast Radio in Thirties America (Jefferson, NC: McFarland & Company, Inc., 1998). 47. Robert W. McChesney, “Labor and the Marketplace of Ideas: WCFL and the Battle for Labor Radio Broadcasting, 1927–1934,” Journalism Monographs 134 (August 1992): pp. 1–40. 48. Joon-Mann Kang, “Franklin D. Roosevelt and James L. Fly: The Politics of

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Broadcast Regulation, 1941–1944,” Journal of American Culture 10, no. 2 (summer 1987): p. 23. 49. Kenneth G. Bartlett, “Social Impact of the Radio,” Annals of the American Academy of Political and Social Science 250 (March 1947): p. 91. 50. Craig, Fireside Politics, p. 280. 51. These figures were derived from simply tallying the number of investigations listed under the Federal Communications Commission in the CIS Index for congressional hearings. These figures exclude appearances regarding appropriations issues. 52. Shearon A. Lowery and Melvin L. DeFleur, Milestones in Mass Communication Research: Media Effects, 3rd ed. (White Plains, NY: Longman Publishing, 1995). 53. J. Frank, “Those Dreadful Programs,” Woman’s Home Companion 74 (February 1947): pp. 116–117. 54. Lowery and DeFleur, Milestones in Mass Communication Research: Media Effects, p. 65. 55. Hadley Cantril and Gordon Allport, The Psychology of Radio (New York: Harper & Row Brothers, 1935). See also Craig, Fireside Politics; Douglas, Listening In: Radio and the American Imagination. 56. Paul F. Lazarsfeld, Bernard Berelson, and Hazel Gaudet, The People’s Choice: How the Voter Makes Up His Mind in a Presidential Election (New York: Columbia University Press, 1948); Lowery and DeFleur, Milestones in Mass Communication Research: Media Effects. 57. Kenneth G. Bartlett, “Social Impact of the Radio,” Annals of the American Academy of Political and Social Science 250 (March 1947): p. 97. 58. Theodor Adorno and Max Horkheimer, “The Culture Industry: Enlightenment as Mass Deception,” in Mass Communication and Society, ed. James Curran, Michael Gurevitch, and Janet Woolacott (Beverly Hills: Sage, 1979), pp. 349–383. 59. Adorno and Horkheimer, “The Culture Industry: Enlightenment as Mass Deception,” p. 366. 60. C. Wright Mills, The Power Elite (New York: Oxford University Press, 1956). 61. Bernard Rosenberg, “Mass Culture in America,” in Mass Culture: The Popular Arts in America, ed. Bernard Rosenberg and David Manning White (New York: The Free Press, 1957), p. 3. See also Clement Greenberg, “Avant-Garde and Kitsch,” in Mass Culture: The Popular Arts in America, ed. Bernard Rosenberg and David Manning White (New York: The Free Press, 1957), pp. 98–111; Dwight MacDonald, “A Theory of Mass Culture,” in Mass Culture: The Popular Arts in America, ed. Bernard Rosenberg and David Manning White (New York: The Free Press, 1957), pp. 59–73. 62. Richard H. Pells, The Liberal Mind in a Conservative Age: American Intellectuals in the 1940s and 1950s (New York: Harper & Row Publishers, 1985), p. 223. 63. “Dynamite at Harvard,” Time, 6 October 1941, p. 57. Charles Siepmann later participated in researching and writing “The Blue Book” for the FCC. 64. Gilbert Seldes, “How Dense Is the Mass?” Atlantic Monthly, November 1948, p. 23. 65. Seldes, “How Dense Is the Mass?” p. 23. 66. Seldes, “How Dense Is the Mass?” pp. 23–24.

CHAPTER 1

A New Deal for Broadcasters

The New Deal came to the Federal Communications Commission (FCC) in September 1939, when James Lawrence Fly took over as the new chair of the Commission. Together with an equally committed team of young lawyers, Fly and his commission energetically undertook an unprecedented number of hearings and decisions to review and govern the broadcasting industry. These cases are familiar to broadcasting and media law historians: the Sanders Brothers “economic injury” case, the Mayflower Doctrine, FM allocations, TV allocations and technical standards, the Chain Broadcasting Rule, and ownership restrictions. Nearly all these cases have been the subject of study since their inceptions. However, investigating these decisions together and in their historical context reflect the New Deal approach to broadcast regulation brought to the Federal Communications Commission by Larry Fly. The enthusiasm Fly and his lawyers brought to regulating in the public’s interest resulted in investigating and overseeing the content of radio programs and, more significantly, the business practices of broadcasters and networks. Eventually it also resulted in considerable tension between the FCC, Congress, and the industry. Both Congress and the broadcasting industry were caught by surprise by the sheer scope of the FCC’s liberal incursions into the business of business. This chapter reviews six major cases that were central to FCC policy making between 1939 and 1942, cases that reveal the degree to which FCC policies were guided by New Deal liberalism, a regulatory approach that in turn both startled and angered the broadcasting industry and their politically conservative defenders in Congress.

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The Red Scare, Politics, and the FCC, 1941–1960

TH E FCC AN D T H E N E W D E A L Buffeted by depression since 1929, the United States experienced an economic recession in the fall of 1937. Analysis of why the recession occurred led Franklin Roosevelt and his inner circle of advisors to blame big business.1 The New Dealers had always been deeply apprehensive about big business, its stranglehold on the American economy, and its concomitant ability to direct the destiny of the country. Among the many big business practices that worried Roosevelt and his administration, none excited more concern than monopoly. The 1937 recession “reinvigorated a recently dormant, but deeply rooted, concern among liberals . . . about the dangers of monopoly power.”2 Roosevelt’s confidantes recognized the recession as something more than just a threat to the national economy, however; it was also a menace to New Deal liberalism. As Alan Brinkley argued, the 1937 recession was the catalyst that caused the New Dealers to slowly begin transforming their political philosophy. Remaining as zealously opposed to monopoly as early New Deal adherents, many of the reconstructed New Dealers understood that a complete destruction of corporate America was both unfeasible and unnecessary; there were, after all, some positive economic aspects to corporate America. The new liberals spread their revised philosophy throughout the federal government in “a loose and sprawling alliance of seemingly like-minded people situated in important secondary (and at times primary) positions.”3 Robert Jackson was the U.S. Attorney General in 1938 but was appointed in 1941 as a Supreme Court justice. Tom Corcoran held a lowlevel position at the Reconstruction Finance Commission but was one of Roosevelt’s closest and most trusted advisors. Advisors outside the federal government also held considerable influence in promoting the New Deal. Harvard law professor Felix Frankfurter, for instance, was able to foster liberalism through his ability to funnel law school graduates into the federal bureaucracy,4 until he was appointed to the U.S. Supreme Court in 1939, after which he played a more direct role in legitimizing liberal approaches to government. Regardless of their role, New Dealers believed the federal bureaucracy was central to effective government management of business from a New Deal perspective, in which “a modern state . . . required the proliferation of independent executive agencies and expert administrators, insulated as far as possible from political pressures. . . . Only in the executive branch (indeed, some believed, only in the independent regulatory agencies) was it possible for trained administrators to work effectively and disinterestedly on behalf of the public interest.”5 It was in this atmosphere that the New Deal, personified by Larry Fly, joined the FCC in 1939. Prior to September 1939, the FCC was an agency led by men who didn’t administer the communications industry according to New Deal values.

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Although the agency held potentially wide regulatory latitude through the authority of the Communications Act of 1934, with few exceptions it rarely exercised that strength in its decision making. Under the direction of Eugene O. Sykes (1934), Anning S. Prall (1935–1937) and Frank McNinch (1937–1939), the FCC became essentially what the industry wanted it to be, a “traffic cop” of frequency allocations. Although McNinch attempted some reform, the agency certainly didn’t live up to the regulatory expectations of the New Dealers who transformed the body from the Federal Radio Commission, with authority over the radio industry only, to the FCC, with power over all forms of communication. Although the administration was dismayed by McNinch’s lack of prowess, the communications industry was dismayed by his attempts at reform. According to Time magazine, McNinch’s tenure resulted in a “turbulent” Commission.6 Unlike the relatively complacent bureaucrats of the Federal Radio Commission, the industry believed McNinch was too interested in attempting to control them. As Time reported upon McNinch’s replacement by Larry Fly, “observers guessed that Jim Fly’s assignment at FCC would be less a cleaner-upper than a mopper-upper.”7 In reality, after McNinch resigned his position as a result of ill health, the New Deal transformation of the FCC began in the fall of 1939 with the appointment of Larry Fly. As it developed, McNinch’s commission was a light dusting compared to the spring cleaning wrought by Fly. The first step on the path to New Deal transformation of the broadcasting industry was to populate the FCC with sympathetic men and women. The most important step in that direction was the appointment of James Lawrence (Larry) Fly as the new chair. A tall Texan with thin red hair indicative of his Scot–Irish heritage, Fly was a dynamic, hardworking, thoughtful, short-tempered man who completed his Harvard law education in two years. He received early recognition within the Hoover administration when, serving as a lawyer in the Justice Department, he won an antitrust lawsuit against the Sugar Institute in the early 1930s.8 Soon after Franklin Roosevelt won the presidency, Fly was appointed to be the general counsel for the newly formed Tennessee Valley Authority, where his reputation as a meticulous, hard-nosed government attorney was solidified. He became well known among government lawyers as a tenacious and devout New Dealer. Paul Porter, who served as an FCC commissioner and eventually became the chair when Fly resigned, revealed that “all of us on the New Deal front knew of Larry Fly.”9 When he joined the FCC in September 1939, Fly had no particular background in broadcasting, but he had a strong will, a keen legal mind, a short temper, a fundamental opposition to corporate monopolies, and a devotion to Franklin Roosevelt and the New Deal. Immediately on his arrival to the FCC, Fly began hiring more “likeminded people” for his legal division; “young blood, people with a for-

28

The Red Scare, Politics, and the FCC, 1941–1960

ward looking approach to the problems of communication.”10 Benedict Cottone joined the Commission in October 1939, followed soon thereafter by Harry Plotkin in January 1940. In late 1940, Roosevelt advisor Tom Corcoran persuaded Telford Taylor, an attorney at the Department of Justice, to assume the FCC General Counsel position (Taylor later distinguished himself as a Nuremberg Trial lawyer). Taylor similarly persuaded Charles Denny to leave Justice and join the FCC in 1942. This legal “young blood” was critical to the work Fly envisioned for the FCC. As Benedict Cottone explained, this “great infusion of new blood into the legal staff . . . was the spearhead . . . of all the innovations.”11 The bond between Fly and his lawyers was strong. Fly, who had little patience with incompetence, hired “top flight personnel” for his legal division, “bright people [who were] all very eminent and distinguished lawyers.”12 In return, Fly enjoyed “the loyalty and confidence of his staff and his subordinates, and there was a kind of fierce faith in what Larry Fly was doing.”13 Harry Plotkin, who joined the Commission in early 1940 and rose through the ranks to the position of General Counsel during the 1948 Freeze, asserted that “the New Deal came to radio because of [Fly]. The whole concept of public responsibility of broadcast licensees got a strong impetus from [him].”14 As Telford Taylor described Fly’s actions on the FCC, “many of the things he did were politically very adventurous and involved strong hostilities toward him on the part of congressmen and senators.”15 Years later, with unabashed admiration, Cottone described Fly’s FCC as “the most vigorous, aggressive and even most intelligent Commission we ever had was in [Fly’s] era, and [Fly] was without doubt the most courageous and the most intelligent of any of the administrators.”16 Accompanying Fly and his top-notch legal staff were fellow commissioners who similarly held New Deal philosophies. Principle among them was Clifford J. Durr, a Rhodes scholar from Alabama who was appointed to the FCC in 1941. Durr was as quietly devoted to the New Deal as Fly was strident, and the two together formed a powerful alliance in guiding liberal broadcasting regulation. The third consistent member of the FCC New Deal alliance was Paul Walker, who joined the Commission at its formation in 1934 and remained until 1953. Other supporters came and went, such as Paul Porter, Frederick Thompson, and George Payne. The Commission was not completely dominated by New Dealers, however, as commissioners T. A. M. Craven and Norman Case repeatedly demonstrated. Nevertheless, with a Democrat in the White House, the majority of the FCC followed strongly liberal lines. The goal of the New Deal FCC was to diminish the concentrated monopolistic power that controlled the broadcasting industry and simultaneously encourage competition. Immediately on Fly’s arrival the agency began tackling these problems, which meant focusing on two general areas: technology and broadcasting stations. Technologically, taming mo-

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nopoly and encouraging competition meant making regulatory decisions regarding FM and TV. In terms of stations, it meant zeroing in on the network–affiliate relationship and reviewing ownership patterns. Within two years of arrival at the FCC, the agency reviewed all four issues and promulgated regulations. Clearly the New Dealers did not wait for these issues to present themselves, but instead forced the hearings and decisions. This is not to say that interested parties in the industry didn’t actively encourage the Commission to review issues, because they did.17 The point is that the reinvigorated New Deal FCC did not passively accede decision making to the industry as previous commissions were inclined to do, but began regulating actively from a liberal position. Sometimes the Commission created the case, and sometimes the case came to the Commission, such as the issues involved in the Sanders Brothers case. Sanders Brothers and Economic Injury One of the first major policies to come out of the New Deal FCC was decided by the U.S. Supreme Court in March 1940, but actually started at the Commission in January 1936. The case is known as the Sanders Brothers case and is significant for establishing the Commission’s policy of both refusing to assess the economic injury that a newly licensed station may have on existing stations and for encouraging competition among radio stations in communities. In early January 1936 the Dubuque, Iowa, Telegraph-Herald newspaper applied for a construction permit for a new station (KDTH). Soon thereafter, the Sanders Brothers Radio Station, Inc. petitioned the FCC for permission to move their station, WKBB, broadcasting since 1934 from East Dubuque, Illinois, across the river to Dubuque, Iowa. The Sanders Brothers also challenged the Telegraph-Herald application, asserting that the community was too small to support two radio stations. The Commission ordered a hearing to be held to review the merits of the two cases. For three days in mid-September 1936, Hearing Examiner James P. Bramhall listened to oral arguments made by attorneys for both the Telegraph-Herald and Sanders Brothers. The Telegraph-Herald argued that Dubuque had a healthy economy (at least by Depression-era standards) with a large number of potential advertisers who were willing and able to buy advertising time on the new KDTH. The attorneys further argued that the new station would serve its public better because Sanders Brothers’ WKBB did “not localize their programs to any extent,”18 thereby asserting that WKBB did not live up to its public service expectation. Sanders Brothers countered with the argument that its station consistently operated at a loss. If the FCC allowed another radio station to operate in Dubuque, it would cause extreme economic injury to the already-existing WKBB. The central issue inherent to the case was a definition of public interest; whether to regulate

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The Red Scare, Politics, and the FCC, 1941–1960

according to public or business interests. The public would be best served by the competition that the two stations would create; however, business, in the form of the existing WKBB, would be best served by eliminating the competition from KDTH. The Commission made conflicting decisions regarding the applications. Six weeks after the hearing in October 1936, Hearing Examiner Bramhall reached the initial decision that the Telegraph-Herald construction permit should not be granted because they had “failed to establish a need” for an additional station in the community. By July 1937, however, both the Broadcast Bureau and the commissioners themselves decided to grant both applications, thereby allowing KDTH to start a new radio station and create competition for WKBB.19 The decision ignored Sanders Brothers’ economic injury complaint and instead focused on the financial standing of each applicant and the program of service each promised. The decision did not compare the qualifications of the applicants, nor did it offer an explanation for the Commission’s reasoning, other than to state simply “that public interest, convenience, and necessity will be served by granting the applications of Telegraph Herald and Sanders Brothers Radio Station.”20 Sanders Brothers petitioned the FCC to rehear the case, arguing that the Commission decision was “financially unsound and likely to impair the meritorious service now available in Dubuque.”21 The Commission remained firm in its decision, so Sanders Brothers appealed the ruling. The federal judicial review of the Sanders Brothers case started when it was heard by the District of Columbia Court of Appeals in January 1939. Sanders Brothers continued its argument that construction of the TelegraphHerald’s KDTH would result in serious economic injury to their radio station WKBB. The Court of Appeals was persuaded by the Sanders Brothers argument, holding that the Commission should have carefully considered the economic injury argument in its decision.22 Failing to consider economic injury, according to the Appeals Court, meant that the Commission’s decision was “arbitrary and capricious.”23 Not surprisingly, the FCC appealed the decision to the Supreme Court and was granted a hearing in February 1940. In the time between the appeals court hearing and the Supreme Court’s, Larry Fly joined the Commission and introduced a strong New Deal commitment to both open competition and opposition to monopoly. It is also clear that the Roosevelt administration supported the FCC decision to encourage competition between radio stations, as U.S. Attorney General Robert Jackson joined FCC General Counsel William Dempsey in arguing the case before the Supreme Court. Jackson was an important part of the New Deal’s “sprawling alliance,” and the Sanders Brothers case was significant to the New Deal administration. From a political perspective, it fundamentally represented their devotion to free enterprise, “individual

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opportunity and the encouragement of small independent businesses.”24 From a legal perspective, the FCC argument rested on the Communications Act of 1934, under which “economic injury to a competitor is not a ground for refusing a broadcasting license.”25 The Commission argued it had no statutory authority to consider the economic injury one station may do to another. The Supreme Court agreed that economic injury was not an issue the Commission was required to weigh in passing licensing judgments. The Court further stipulated that the Commission did not have the authority “to regulate the business of the licensee. The Commission is given no supervisory control . . . of business management or of policy.”26 It was a decision that worked well for the Commission in this particular instance, for it allowed the FCC to implement a policy that was consistent with the New Deal aim to encourage competition and discourage concentration of power. In retrospect, it was the beginning of a shift toward defining public interest from the public perspective that competition was good for the audience, even if it was bad for big business. The Sanders Brothers case was a quiet but significant victory for the New Deal FCC. Although it received little press attention (compared to future decisions), it was an important first step for an agency fashioning itself to make broadcast regulatory decisions from a liberal position. In upholding the FCC’s refusal to consider economic injury in licensing, the Supreme Court effectively validated the Commission’s liberal philosophy in the Sanders Brothers case. In promoting competition among radio stations, the FCC sought to protect the public’s interest by giving it a choice of radio stations; the station that served its public the best would survive. The key to the New Deal approach was that an openly competitive marketplace had to exist for the public to make its choice, and licensing KDTH created that competitive marketplace. As a result of the Sanders Brothers decision, regulatory protection of broadcasters’ business interests was out; regulatory protection of the public’s interest was in. Protecting public interest was central to the Mayflower Decision, another significant decision made by the New Deal FCC regarding program content. The Mayflower Doctrine In the early part of 1939 as the Commission weighed the merits of the Sanders Brothers case, another contentious licensing decision began its way through the regulatory maze. This one pitted the interests of the Mayflower Broadcasting Corporation against those of the Yankee Network, Inc., both of Boston. The final decision in this case revealed a New Deal perspective on broadcast content and was a fundamentally different approach to previous regulation. It eventually became one of the Commission’s most controversial decisions. The Mayflower Case began in mid-February 1939 when the Yankee

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The Red Scare, Politics, and the FCC, 1941–1960

Network, Inc. applied for relicensing of its station WAAB in Boston, Massachusetts. Soon thereafter the Mayflower Broadcasting Corporation applied for a construction permit to build a station that would utilize the same frequency on which Yankee broadcast. With two companies competing for the same frequency, the FCC held a hearing in November 1939 to allow both broadcasters to argue their cases. Before Hearing Examiner George Porter, Mayflower made a compelling argument for why it should receive the coveted frequency assignment. Yankee Broadcasting, particularly news editor Leland C. Bickford of station WAAB, consistently used the station’s broadcast facilities to promote specific political interests and, indeed, to attack certain political candidates. Consequently, the Yankee Network did not meet its public interest mandate; it did not serve the public’s interests, but rather those of the owners of the Yankee Network. Despite Yankee Network’s assurances that WAAB served its public, Hearing Examiner Porter decided that the Mayflower Corporation should get the license.27 The Commission opposed the hearing examiner’s initial decision. A month after Porter released his decision, the commissioners completely dismissed the editorializing complaints against the Yankee Network and instead focused on Mayflower Broadcasting’s financial misrepresentation.28 Although the FCC claimed to have little interest in a broadcast station’s business decisions once it was on the air, the agency considered the financial stability of an applicant to be a key characteristic on which licensing decisions were made. Their reasoning focused on the fact that broadcasting frequencies were scarce, hence only individuals or organizations that rested on strong financial and character foundations were suitable licensees. On its original application for a construction permit, Mayflower asserted that it was financially sound as a result of stock in the company that was already issued and outstanding. In reality, however, that stock was not issued until four months after the application was filed, hence Mayflower was not financially capable to build a station at the time it made its application. The Commission denied Mayflower’s application on the grounds of financial instability and, having done so, pronounced that it was unnecessary to review other evidence collected in the hearing. Case closed. Case reopened. The Mayflower Corporation requested a hearing before the full commission. In July and September 1940 the combatants argued their cases. Attorneys for Mayflower Corporation outlined their complaints against the Yankee Network, concentrating on the significant number of WAAB editorials that were “bitter attacks made on public officials, with those officials having absolutely no chance to answer and tell their side of the story.”29 Mayflower provided documented evidence of the Yankee Network’s use of WAAB in political influence peddling. For example, the Massachusetts legislature passed a law prohibiting dentists from ad-

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vertising, a bill that would negatively affect WAAB’s profit margin because it received nearly $30,000 per year in advertising revenue from dentists. The bill was awaiting the governor’s decision when WAAB news editor Bickford phoned the governor and warned him that “you know our stations are very powerful politically in this area, and if you sign that bill we will ruin you.”30 Larry Fly was incredulous. “That is in the record?” he asked. “It is in the record, . . . and it isn’t disputed or denied,” the Mayflower attorney replied.31 With the commissioners’ full attention, the attorney continued describing the Yankee Network’s editorial activities. The Massachusetts governor responded to the threat by signing the advertising bill into law, after which WAAB honored its warning and began attacking him over the air, then refusing to allow him response time. The Mayflower attorney also enumerated other political officials who were attacked over station WAAB, many of whom specifically requested air time to respond and were denied. Moreover, the Yankee Network enjoyed patronage appointments from elected politicians it supported. Again, the commissioners were incredulous. “Is that of record?” Commissioner Thompson asked. “Yes, sir, every word that I have said,” replied the Mayflower attorney.32 The coup-de-grace came when the commissioners learned that Bickford represented WAAB when he gave public speeches supporting certain candidates, thus reinforcing the argument that WAAB was used to advocate political positions. Under intense questioning from commissioners Fly and Thompson, the Yankee Network attorney attempted to persuade them that Bickford represented only himself in the political speeches, but the commissioners were unimpressed. The attorney assured the administrators that the Yankee Network no longer editorialized, a point on which the commissioners demanded an affidavit from owner John Shepard. Later in the hearing, however, the Yankee attorney successfully reaffirmed the central point that led the Commission to side with the Yankee Network in the first place, which was Mayflower’s misrepresentation and its financial inability to construct and operate a new station. The issues at contest in the Mayflower Broadcasting v. Yankee Network case were significant to an agency guiding its decisions according to New Deal philosophies. In this case, however, the FCC was faced with making a choice between two unsatisfactory options. On the one hand, the Commission wanted to discourage the concentration of business and political power that many radio stations held in their communities, such as the Sanders Brothers WKBB in Dubuque and the Yankee Network’s WAAB in Boston. Unfortunately, the only alternative in this case was the financially unstable Mayflower Broadcasting, which meant that the Yankee Network’s WAAB would have to win the license. That was an equally untenable decision for the liberal agency because WAAB’s editorializing violated the New Deal commitment to an open marketplace of ideas. New

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The Red Scare, Politics, and the FCC, 1941–1960

Deal liberals believed that the concentration of economic power was part of a larger problem, “the more serious problem was not economic; it was social, cultural, even moral. ‘Bigness’ was a threat not just to prosperity but, more important, to freedom.”33 WAAB’s editorializing represented a New Dealer’s worst fears regarding the operations of a station taking precedence over its public service responsibilities, especially a station that relied on the use of a public resource (the airwaves) to communicate its message. Larry Fly earlier signaled his attitude in this regard when he stated that, “You have one man at the transmitter who is claiming some sort of right [to broadcast] and you have millions of people at the receiving end of it . . . where the public interest is involved; . . . Conceivably the man that [has] the most money . . . has gotten himself the greatest freedom of speech.”34 Equally troubling was the unrestrained ability of a broadcaster to wield power in an atmosphere free of competition, communicating partisan messages to a public who could hear only one side of a political argument because of that station’s local monopoly. Which was worse, a financially weak station that would likely fail to operate effectively in a large market and, therefore, be unable to serve its public, or a station that failed to serve its public by using its station as an uncontrolled editorializing tool? In its final decision, released in January 1941,35 the Commission found a compromise that satisfied its New Deal ends but created an extremely controversial policy to attain those goals. The FCC held to its original decision that the Mayflower Broadcasting Corporation was financially unfit to construct and operate a radio station in Boston. The Yankee Network presented “more difficult and less easily resolvable questions,” however.36 The commissioners were somewhat appeased by John Shepard’s affidavit, which guaranteed that the Yankee Network “has and will continue to refuse to present controversial questions unless equal and fair opportunity is given for the presentation of both sides or viewpoints on or in connection with such controversial subject or question.”37 While privately assured that editorializing would no longer occur on the Yankee Network, the Commission made it publicly clear that brash editorializing did not serve the public interest: Radio can serve as an instrument of democracy only when devoted to the communication of information and the exchange of ideas fairly and objectively presented. A truly free radio cannot be used to advocate the causes of the licensee. It cannot be used to support the candidacies of his friends. It cannot be devoted to the support of principles he happens to regard most favorable. In brief, the broadcaster cannot be an advocate (emphasis mine).38

With these words, the FCC created what became known as the Mayflower Doctrine, a policy by which the Commission forbad radio stations from

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broadcasting opinions on controversial ideas. It was a ruling that was completely consistent with the New Deal philosophy now fully operational at the FCC, one that promoted public interests over individual, political, and/or business interests. The FCC’s point was not to limit free speech, but to broaden the marketplace of ideas by preventing misuse of a public resource. In essence, the FCC meant to increase public speech by allowing a free flow of ideas. Station licensees could not use the airwaves to advocate personal positions. The policy was largely the result of Larry Fly working behind the scenes toward its establishment and was the result of his commitment to the public service responsibility of broadcast licensees.39 Moreover, it was a vehicle through which Fly wanted to communicate to licensees that he did not envision the FCC as merely a “traffic cop” of frequencies; he would lead the Commission to more actively regulate all aspects of broadcasting from a liberal perspective. The Mayflower case represented a clear manifestation of the New Deal faith in the power of regulatory agencies to operate in the public’s interest. Although both the Sanders Brothers and Mayflower decisions received some attention from Broadcasting magazine, they received relatively little attention from the popular press. The obscure nuances of broadcast regulatory decisions regarding licensing and content were generally unimportant to the average American in the early 1940s. There were fewer than 800 “standard” (AM) radio stations operating in the early 1940s, many of which operated during daylight hours only. Most communities had only one station, whereas metropolitan areas often had two or three on the air. Large portions of the country were served by distant radio stations, the clear channel stations operating with considerable power. To the average American, the most commonly understood aspects of radio (aside from programs) were the networks, NBC (the National Broadcasting Company, commonly referred to as the National) and CBS (Columbia Broadcasting Company, often referred to as the Columbia), and MBS (the Mutual Broadcasting System, or Mutual). When listeners tuned to their favorite NBC, CBS, or MBS system, they received stations broadcasting programs using amplitude modulation, or AM transmissions, the standard of radio broadcasting at the time, although the alternative FM, or frequency modulation, was currently under development. Even more amazing, in April 1939, the Radio Corporation of America (RCA) demonstrated television at the New York World’s Fair and promised that this wondrous technology that added sight to sound would be available to the general public in the near future. These were the issues around which the FCC made significant and controversial decisions during 1940 and 1941, issues that were known to the general public. The FM, television, newspaper ownership, and network monopoly cases were public, dramatic, controversial, and further reveal the FCC’s commitment to regulating according to a New Dealer’s definition of public interest.

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The Red Scare, Politics, and the FCC, 1941–1960

Television: Frequency Allocation and Technical Standards When the New Deal came to the Commission in September 1939, television was in the developmental state. An internal Television Committee, composed of commissioners T. A. M. Craven, Norman Case, and Thad Brown, determined in May 1939 (a month after RCA’s public demonstration of television at the New York World’s Fair) that “television is now barely emerging from the first or technical research stages of development.”40 Among the technical issues under review was the lines-per-frame standard. Television images are composed of lines of electronic information that are transmitted through the receiver and scanned across the screen with such rapidity that they appear to create a solid moving image. One of the primary goals throughout television’s development was improving image clarity by increasing the number of lines per frame. By the fall of 1939, the number of lines had increased to 441, a standard that was adopted by the Radio Manufacturers Association (RMA). A few weeks before the November 1939 FCC report, the RMA notified the Television Committee that recent technical developments indicated that the 441-line image might be improved to as high as 600, but continued research was necessary, information that confirmed the Committee’s belief that television was still in the experimental stage. In November 1939 the committee released a second report in which it analyzed the slow development of television, focusing on frequency allocations and television stations. There were at least five major reasons why television was not developing faster. First, there were only three television stations operating in the United States. Second, there was a significant lack of both quality and quantity of television programs. The lack of television stations and programming resulted in the third problem, which was consumers’ hesitation to buy receivers, and the fourth problem, which was investors’ reluctance to finance an unstable industry. Finally, the Committee believed the FCC had insufficient information on which to build a “logical licensing policy.”41 Analysis and informal investigations into these problems convinced the TV Committee that “television as a service to the public has reached a crucial stage,”42 and it urged the Commission to schedule hearings so that interested parties could provide guidance to the agency for the resolution of these problems. In December 1939 the Commission complied with its committee’s suggestion and called for hearings to be held the following month, January 1940. Although frequency allocation received some attention, the January hearings were more significant because they revealed a rift within the television manufacturing community.43 The RMA, as a trade organization, supported establishing 441 lines as the transmission standard for the industry. Individual corporate members of RMA held a different attitude toward the 441-line standard. Zenith, DuMont, and Philco believed that

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further experimentation to improve television picture clarity would be aborted if the Commission adopted the 441-line picture as the transmission standard. Moreover, they claimed that the RMA supported the 441line standard because RCA railroaded the organization into doing so, because that standard protected RCA’s patents. This was exactly the kind of evidence of corporate monopoly the New Deal FCC wanted. Tipped off to RCA’s manipulations regarding television, the FCC demanded that RCA produce information regarding the companies that held licenses for RCA patents. The FCC soon learned that more than 60 different manufacturers were licensed to use RCA patents for radio receiving tubes, radio receivers, and radio/television transmitters, a fact that demonstrated RCA’s influence over the RMA. The Commission also launched an investigation into the organizational structure of the RMA, learning that the organization was heavily populated by RCA employees who consistently argued for regulations based on purely technical standards, because RCA controlled most of the technical patents in the industry.44 Philco and CBS, particularly CBS Vice President Paul Kesten, passionately explained that there was only one reason to launch a schedule of commercially sponsored programs, and that was to sell TV sets. As the sale of TVs grew, so would the inclination to fix transmission standards at 441 lines, because the Commission and manufacturers would be hesitant to render a large number of sets obsolete to improve picture quality. Indeed, it would be difficult to argue that a decision favoring the 441-line standard would be in the public’s interest. After seven days of hearings, the Commission had plenty of information on which to base a decision. On the leap year date of February 29, 1940, the FCC released its television decision. Faced with trying to strike a balance between encouraging the development of television without simultaneously strengthening RCA’s concentration of power, the FCC reached a decision that almost managed to accomplish both. It refused to establish transmission standards for television, asserting that doing so would “inescapably” encourage the commercial sale of receivers, which, in turn, would freeze further refinements in picture quality. The agency further urged the industry to “scrupulously avoid” setting technical standards. On this point the Commission agreed with the manufacturers, who argued that the potential for further development was significant. In agreeing with the majority industry perspective, the Commission revealed its reconstructed New Deal philosophy of working with industry for the public’s interest rather than being simply across-the-board anti-industry. The size of the corporation wasn’t necessarily problematic, but “only when its size, and its behavior, threatened the competitive machinery . . . was there reason for state intervention.”45 Clearly the FCC believed that RCA’s size and behavior were a threat to the further development of picture quality, hence the FCC publicly sided with the smaller corporations. The order was clear indication

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The Red Scare, Politics, and the FCC, 1941–1960

of support for smaller manufacturers and their resistance to RCA’s technical domination. However, the Commission also understood that television would be a commercial medium. The cost of producing television programs for experimental purposes would be quite expensive, hence the networks needed to develop the sponsorship practices that would pay for programming. As a result, the FCC created a temporary Class II television station that allowed the networks to broadcast limited advertising. As the Report clearly stated, however, “nothing should be done which will encourage a large public investment in receivers which, by reason of technical advances when ultimately introduced, may become obsolete in a relatively short time.”46 In the face of a clearly stated prohibition against encouraging “a large public investment in receivers,” the Commission must have been alternately stunned and angered when it learned three weeks later, on March 20, 1940, that RCA placed full-page ads in both the New York Times and the New York Herald-Tribune promoting the sale of RCA television sets. It was clear contravention of both the spirit and the specific directives of the February 29 report. The ads’ appearance, coming two days into the FM hearings in which RCA was attempting to persuade the Commission that the 42–50 mc frequencies should remain allocated to TV Ch. 1, was either poorly timed or displayed surprising arrogance. The Commission took swift action, releasing “Order No. 65” two days later on March 22, declaring that “certain promotional activities in connection with the sale of television transmission and receiving equipment have been engaged in by the Radio Corporation of America . . . [which] . . . may be detrimental to the public interest by unduly retarding research and experimentation and the achievement of higher standards for television transmission.”47 As a result, the Commission ordered a further hearing into the matter and suspended its February 29 order, essentially halting commercial television broadcasting until further notice. The reopened hearings commenced on April 8, 1940, and quickly became a contest of wills. It was a clash between two powerful men, Larry Fly and RCA President David Sarnoff, but more importantly, between what they represented, government regulation versus industry power. In essence, the Commission publicly chastised RCA by specifically naming it in “Order No. 65” and laid blame for reopened hearings at RCA’s door. According to Harry Plotkin, this represented “picking up Sarnoff sort of by the scruff of his neck on television. . . . [Fly] sort of lectured Sarnoff, [who] had never been lectured in his life before. [Fly] set out to show Sarnoff who was boss.”48 During the hearings Fly unflinchingly challenged the RCA attorney, demanding to know if Sarnoff understood that his representatives at the January hearing agreed not to attempt to fix standards. Answering in the affirmative, Fly further demanded to know whether Sarnoff agreed with the industry’s belief that standards should

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not be set. Again the attorney answered positively; RCA would willingly accede to the majority wishes of the industry, the attorney assured Fly, and would gladly follow FCC decisions. Yet, as the Commission soon learned, barely two weeks after the January hearing closed, the RMA Board of Directors met in New York City, and Sarnoff complained about “the efforts of the so-called New Deal to invade the domain of industry.”49 Moreover, Sarnoff revealed that RCA intended to move quickly toward promoting and selling television sets using the 441-line standard. The president of Philco, which opposed the 441-line standard, told Sarnoff that “I am afraid if you would sell 25,000 sets in a year within a short time that would mean there would be $10,000,000 worth of obsolete apparatus in the hands of the public.” “We live on obsolescence, don’t we, in this industry?” asked Sarnoff. “I think it is rather silly to argue about obsolete apparatus under those circumstances.”50 Sarnoff made good on his promise to market television sets against the public’s interest. Clearly the corporation was not interested in either the predominant sentiment of its industry colleagues or that of the federal government. Sarnoff and RCA well understood that a promotional campaign would result in the largescale purchase of television sets, which would eventually result in establishing its 441-line image as the de facto industry standard. As further demonstration of his belief in RCA’s power, Sarnoff chastised his fellow corporate leaders, particularly those who broke ranks and failed to support the RMA’s 441-line television standard. “No more disgraceful evidence by an industry itself was given . . . than was given by this industry before the FCC during these hearings. For minor selfish purposes . . . virtually certain RMA members invited the Commission to regulate” aspects of the television industry.51 The RCA chief launched into a discourse about the technological development of television, RCA’s leading role, and the failure of other companies to follow along quietly. In a clear demonstration of dominance, Sarnoff told the assembled executives that either they all agreed upon the RMA standard, or he was “sure the Radio Corporation does not belong around this table. And the quicker it resigns from membership, and the quicker it gets out of the RMA and runs its own business in the best way that it thinks it can run it, the greater freedom we shall all have to follow whatever course we wish to follow without any arguments or contentions or oppositions.”52 The executives stumbled among themselves as they reassured Sarnoff that they didn’t want RCA to withdraw from the RMA, and they initiated a discussion meant to explain the renegade behavior. What else could they do? The patents by which their manufacturing businesses existed were at stake, as RCA could take its patents and leave the RMA. The result would be manufacturers who could no longer legally manufacture. When the commissioners learned about this meeting and Sarnoff’s veiled threat, their beliefs that RCA held concentrated monopolistic in-

40

The Red Scare, Politics, and the FCC, 1941–1960

dustry power were confirmed. Despite RCA’s assertions to the contrary, the Commission was convinced that the industry was controlled by RCA’s monopolistic practices. If it hadn’t been for an equally arrogant and tenacious Larry Fly, Sarnoff’s coup may have been successful. On May 28, 1940, the Commission issued its decision that standards would not be set and limited commercial broadcasting would not take place until further research occurred. It was then a full year before the Commission established a 525-line image as the standard for television transmissions, and that was the result of creating the National Television System Committee (NTSC), composed of industry engineers that represented the entire industry with only one representative per company, thus relieving RCA of its undue influence. The 1940 FM Allocation Decision At the end of 1939 there were approximately 800 standard radio stations operating in the United States. AM formed the foundation and entire structure of the commercial broadcasting system; both regional and national networks affiliated with standard broadcast stations, all commercial programming was broadcast over standard stations, the technology of transmitters and receivers was based upon it, and the mass audience listened to radios that received only AM frequencies. The entire commercial broadcasting industry, with revenues of $147 million in 1940,53 was built on AM radio. Daily decisions, as well as those about the future, were based on what the industry understood and believed to be true: AM was the standard. FM was waiting in the wings, though, eager for its opportunity to join AM on center stage. The static-free technology invented by Major Edwin Howard Armstrong had received considerable press attention since its first public demonstration in 1933.54 Despite continued technical development, FM grew very slowly as the result of two interrelated problems. First, and most important, manufacturers refused to produce radios that received FM transmissions, largely because the powerful RCA refused to promote FM technology. Because RCA held most of the patents the manufacturers needed to do AM-related business, the smaller companies rarely contested RCA’s wishes. To do so meant risking losing patent licenses and, hence, losing their manufacturing business. Second, because of limited public interest in FM and industry disinterest, the FCC insisted on maintaining FM as an experimental service. Hence, rather than taking the lead on promoting development of a new competitive broadcast service in the United States, the FCC allowed RCA to obstruct development of this technology until late 1939. With an eye toward clipping the monopoly power of the corporate radio giants, particularly RCA, the New Deal FCC formed by Larry Fly and his legal team decided to review the

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development of FM because of its potential to challenge the broadcasting status quo. As Fly said on the first day of the 1940 FM hearings, “Frequency modulation is now to have its day in court.”55 Industry interest in the FM hearings was considerable. When the FCC announced that it would hold informal hearings regarding the allocation of frequencies and specifically whether FM was sufficiently developed that it could begin commercial broadcasting, everyone realized the decision had the potential to have an enormous competitive impact on the AM industry. Moreover, it was now clear that the FCC was seriously interested in reserving a fixed portion of the spectrum for FM broadcasting. The Commission received dozens of responses from interested parties wanting to participate in the hearings, including manufacturers such as RCA, Zenith, Westinghouse, and the Farnsworth Radio and Television Corporation and organizations such as CBS, the National Association of Broadcasters, the National Association of Educational Broadcasters, and FM Broadcasters, Inc. Likewise, Howard Armstrong, the inventor of FM, requested permission to participate. When the hearing opened in midMarch 1940, the room was so full that attendees spilled into the hallway outside and had to be moved to another auditorium at the Department of Labor. The Monday morning when the hearing started, the FCC signaled its predisposition toward FM by hearing its advocates first. In hearing Armstrong for the first two days, then trade group FM Broadcasters, Inc. on the third, the Commission placed FM in the offense position, allowing them to argue both for its merits and against its detractors. On his first day of testimony, Armstrong provided dramatic evidence of the astonishing clarity of FM transmissions when he played sound recordings of radio station broadcasts during an electrical storm. The first recording was station WEAF in New York City, filled with so much static that the broadcast could barely be heard. The second recording was the broadcast from Armstrong’s experimental FM station in Alpine, New Jersey, during the same electrical storm. The broadcast was so clear that it would have been impossible to know that a thunderstorm was underway. As Armstrong testified, “I think the performance of [these stations] shows that my predictions [about FM] have been more than fulfilled. . . . [Current experimental FM stations] are now giving a regular service . . . which is superior to the existing broadcasting service.”56 Armstrong continued his testimony on the second day of hearings by dismissing broadcasters’ fears that FM would completely ruin AM service. That fear was “on par with the belief that the old Model ‘T’ Ford would stop working when Henry Ford brought out his ‘A’ model,” Armstrong asserted. Where program duplication on AM and FM stations existed, Armstrong believed, listeners would naturally choose to listen to the FM station because of the sound

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clarity. Otherwise the two technologies would coexist peacefully and profitably. The most significant issue at stake in the eight days of hearings, however, was the allocation of precious limited frequencies. With the TV standards and allocations hearings barely two months behind them, it was clear that FM and TV were competing for the same frequencies. In the early 1940s the FCC had reserved only a very limited portion of the electromagnetic spectrum for broadcasting. With a restricted number of frequencies to use, a large number of which were concretely assigned to AM broadcasting, there were few frequencies to allot to both FM and television, the latter of which was particularly demanding because TV transmissions require considerably larger bandwidths. As the hearings progressed, it became clear that both FM and television wanted to use the 44–50 mc frequencies, at that time allocated to television Ch. 1. In a contest for limited frequency space, the battle lines were drawn. On one side were the upstarts, FM, Armstrong, and FM Broadcasters, Inc., who wanted a significant number of frequencies on which they would build a broadcasting service that would both challenge the AM status quo and effectively interrupt the technological and commercial development of TV. On the other side was RCA and its patent licensees, who over the years had poured tens of millions of dollars into the development of both AM and television, and who saw their corporate might challenged by Armstrong and his invention, once financially supported by RCA. As RCA saw it, “There is no reason why the public should be deprived of the opportunity to receive [television] in order to get the benefits of the improvements FM gives in aural broadcasting.” Further, “a change in allocation of television channel No. 1 would be a most serious [and] unnecessary blow to television in order to provide an unneeded space for FM.”57 The Commission was unmoved. FM scored a coup when the FCC released its decision on May 20, 1940.58 Commercial FM broadcasters were granted the coveted 42–50 mc bandwidth and educational FM broadcasters were granted the 41 mc bandwidth. The Commission could barely contain its enthusiasm regarding FM, which it described as “one of the most significant advances that has been made in aural broadcasting in recent years.”59 Moreover, the agency took a significant step forward in its New Deal aims by asserting that developing FM would “create employment for thousands of persons” and, more importantly, resolve the problems caused by “a lack of stations in some communities and other communities [that] do not have sufficient choice of program service.”60 In other words, FM would help diminish the concentration of power held by AM stations and increase broadcasting in the public interest. Reactions to the decision were underwhelming. The popular press responded with moderation. The New York Times reported specifics of the

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decision on May 20, then reported that the “Threat to Television is Feared in Frequency Modulation Order” the next day.61 Business Week, which later became an outspoken critic of Fly and the New Deal FCC, reported that the FM decision was simply “a reshuffling, one that may call forth squawks but will likely prove more annoying than hurtful” to television.62 Newsweek reported the decision, concentrating on the positive aspects of FM development and ignoring the implications for television. Broadcasting was in a perplexing position, wanting to applaud the development of a new broadcasting medium without antagonizing the industry giant RCA, a balancing act it accomplished by applauding the commercial start of FM while fretting about the stifling of television. On the heels of the reprimand delivered to RCA a month earlier regarding television, the corporate giant must have been reeling at the news of the FM decision. The Commission, however, was very pleased. In the 12 months immediately following the FM decision, 99 applications requesting FM licenses were filed.63 By July 1941 the Commission licensed 19 of those stations, meaning there were 69 FM stations on the air in the United States, 49 of which were commercial.64 By mid-1941 the Commission was succeeding in its goal to promote FM and, hence, promote competition. Ownership Throughout 1940–1941 a continuing problem faced by the New Deal FCC was radio station ownership. It was a vexing dilemma for an agency regulating from a liberal perspective, as the concentrated ownership of stations in the hands of a relatively small number of organizations violated the liberal philosophy of open competition in a free marketplace. Networks were the primary offenders. By 1938 NBC and CBS already owned (or essentially controlled) 23 stations between them, all of which were in major markets. The regional networks dominated their regions, such as Don Lee Broadcasting in California and the Yankee Network in New England. Limited ownership was doubly vexing for a medium of mass communication; the more radio stations that were owned by a single entity, the more limited was the marketplace of ideas. From both economic and philosophical perspectives, concentrated ownership violated the spirit of the Communications Act of 1934, which theoretically created radio stations as a local medium required to serve the local public interest via local ownership. As networks and concentrated ownership developed, it became increasingly difficult, and sometimes impossible, for a local station to accomplish that goal because its programming and business decisions were controlled from distant corporate offices. Recognizing the problem, the FCC began regulating against multiple station ownership. The Commission started developing policy to limit station ownership as early as May 1940 when, following the RCA televi-

44

The Red Scare, Politics, and the FCC, 1941–1960

sion standards fiasco, it issued “Order No. 65.” Although it wasn’t a policy statement, the FCC clearly communicated its belief that, “there is no room for squatters [in broadcasting]. Monopoly must be avoided. Free competition is to be promoted and preserved. Accordingly the Commission deems it to be in the best interests of the public that there be a strict limitation on the number of authorizations to any one licensee for television broadcast stations.”65 The first actual policy statement regarding multiple ownership was included in the 1940 FM decision, in which the FCC established that no organization could own more than one FM station in a market and could own no more than five FM stations nationwide.66 Limiting ownership with the FM decision was a smart strategy. First, because broadcasting’s corporate might wasn’t involved in FM, they were not invested in the ruling. Second, because commercial licensing of FM stations got underway as a result of this decision, the Commission could carefully regulate ownership at the onset of FM’s commercial development. Furthermore, the new rule established the precedent of ownership limitations. A few months later when the Commission made its final ruling in the Mayflower case, it validated the Mayflower argument that granting the Yankee Network’s license would result in its ownership of two stations in the Boston market. “This argument raised a serious and troublesome question of policy,” the agency asserted, “one to which the Commission has given considerable attention and which is presently under consideration in connection with the Commission’s investigation into chain broadcasting. The question is peculiarly one which cannot be effectively and fairly dealt with by singling out individual instances for treatment.”67 The commission made good on its promise to limit television station ownership with the 1941 Chain Broadcasting Rule. As a result of the investigation, the Commission established an ownership cap of three television stations nationwide.68 Finally, having won the judicial review of the Chain Broadcasting Rule in 1943, the Commission established ownership limits on AM stations as well.69 Although the Commission’s overall policy regarding multiple ownership was successful, we have to return to 1940 to see the beginning of an ownership policy that failed. In the 10 months following the Commission’s 1940 FM decision, the resulting inflow of requests for FM licenses was a source of both gratification and concern. The agency was pleased that its decision to spur the development of an alternative broadcasting system was having its intended effect; by March 1941 the agency had received dozens of licensing requests. The commissioners had cause for concern, however, when they learned that half those applications came from newspaper publishers.70 The trend was alarming and posed two significant predicaments. The first problem was philosophical in nature. One of the stated aims of opening FM to commercial licensing was to provide radio stations to com-

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munities not served by AM stations. Licensing a publisher created the very real possibility that it would control the only two mass media in the community: the newspaper and the FM radio station. It was a potential circumstance that sent shock waves through New Deal sensibilities, particularly Larry Fly’s, who chafed at the notion of newspapers’ ability to “throttle” freedom of expression.71 The second problem was partisan and was a clear view into the politics of broadcast regulation. President Franklin Roosevelt was deeply concerned, if not paranoid, of newspaper publishers, many of whom had been very critical of his politics and presidency.72 Radio, on the other hand, had been very good for Roosevelt; it was a medium through which the President could directly communicate to American citizens. As Time euphemistically put it, “In the eyes of the New Deal, which has often made clear that it doesn’t like newspapers and does like radio, this is very bad business.”73 The prospect of newspaper publishers gaining control of FM radio stations was untenable to Roosevelt. “This was a fetish of [Roosevelt’s],” Paul Porter revealed, “and he was constantly putting the blow torch on Larry . . . about ‘what are you going to do about newspaper ownership of broadcast facilities?’”74 Under direct presidential instruction, the FCC attempted to arrest the growing newspaper ownership of broadcasting stations. In March 1941 the Commission issued “Order No. 79,” in which it called for hearings to investigate whether public interest, convenience, or necessity was served “where it results in common control of one or more radio stations and one or more newspapers.”75 Four months later the Commission issued “Order No. 79-A,” in which it clarified the 10 issues that would be central to the upcoming hearings.76 Although the agency earlier emphasized that its call for hearings “did not imply that it [was] opposed to newspaper ownership of radio stations in general or in any particular situation,” “Order No. 79-A” communicated otherwise. Seven of the 10 stipulations questioned whether joint ownership of both radio stations and newspapers resulted in restrictions of either economic competition or the free flow of information. Only stipulations 8–10 questioned the benefits of joint ownership. The newspaper industry was displeased with the FCC’s incursion into their domain. Soon after the Commission initially revealed its intent to investigate the issue, a subcommittee of the American Newspaper Publishers Association (ANPA) composed of radio stations owners met in New York City to determine a strategy for testifying at the hearings.77 The group was led by Mark Etheridge, a prominent publisher who produced The Louisville Courier-Journal, and they agreed to raise $200,000 to pay for a lawyer to help them prepare for the FCC hearings. Soon after the Commission issued its “Order No. 79-A,” the ANPA filed a motion petitioning the FCC to vacate orders 79 and 79-A and vacate the hearings. Among other points, the petition specifically argued that the Commission did not have the authority to refuse a license to “any persons belonging to a par-

46

The Red Scare, Politics, and the FCC, 1941–1960

ticular class because of their belonging to that class.”78 The Commission asserted it had rightful authority to review the situation and denied the ANPA motion.79 The hearing commenced on July 23, 1941, before the Commission en banc and very quickly became contentious. The ANPA informed the commissioners that four of the publishers subpoenaed to testify in the hearings would not do so because the FCC did not have the legal authority to call the hearing. Eight days later, as promised, publisher James Stahlman did not appear. FCC lawyers immediately filed a motion specifically against Stahlman with the U.S. District Court in Washington, D.C., requesting that the court compel him to appear. On August 16 the District Court upheld the FCC’s authority and ordered Stahlman to testify at the hearing, but the ANPA immediately appealed the decision to the U.S. Court of Appeals for Washington, D.C., again arguing that the FCC exceeded its statutory authority by investigating newspaper ownership of radio stations. The Court of Appeals issued its decision in late January 1942, a ruling that was both a victory and defeat for the FCC.80 The three justices unanimously agreed that the FCC had the authority to review the issue, hence Stahlman was compelled to appear before the agency. The court further stated, however, that if “the Commission’s investigation was solely for the purpose of the consideration or adoption of a hard and fast rule or policy, as the result of which newspaper owners may be placed in a proscribed class and thus made ineligible for or receive broadcast licenses, we should be obliged to declare that such an investigation would be wholly outside of and beyond” the FCC’s authority. The court went on to suggest that banning newspaper ownership of radio stations would set a dangerous precedent that could logically lead to exclusion of other similarly defined groups, such as schools and churches. Clearly, then, the FCC’s authority to investigate licensing issues was well within the rule of the Communications Act of 1934, but the court suggested, the Commission was on thin ice in its attempt to discriminate against newspaper owners specifically. The hearings continued throughout the court challenge and beyond, as it was important for the FCC to follow through with its demand that Stahlman testify before the commissioners. The Appeals Court, however, rendered the point of the entire investigation, inconsequential. If the Commission carried forward its apparent intent to create a policy preventing newspapers from owning radio stations, the rule would very likely be overturned on judicial appeals. The hearing was closed after Stahlman finally appeared on February 12, 1942, but it was nearly two years later before the FCC finally closed the case. In a 38-page report issued in late January 1944,81 the Commission outlined the information it had gathered during the hearing, revealing the significant extent to which the newspaper industry held interest in radio broadcasting. Unlike other investigations conducted by the New Deal commission, however, this one ended

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with a fizzle. As the Appeals Court made clear two years earlier, the FCC could not prevent a specific group of people from owning broadcasting outlets. The newspaper ownership investigation is significant, however, because it represented another example of the FCC’s commitment to regulating all aspects of the broadcasting industry according to New Deal philosophies. Indeed, New Deal attempts to regulate issues of competition and ownership were not dead, as the network monopoly investigation demonstrated. The Network Monopoly Investigation (The 1941 Chain Broadcasting Rule) The network monopoly investigation undertaken by the FCC in 1938 surpassed everything else the New Deal Commission did in terms of scale and significance.82 It was a forthright and in-depth inquiry into the broadcast networks’ business practices, with the intent of determining whether they resulted in a monopoly in the radio industry. The fact the investigation was launched reveals the widely held belief among the New Deal regulators that the monopoly existed; their real task was to determine how it was accomplished and regulate against those practices in the public interest, convenience, or necessity. The network monopoly investigation, which eventually resulted in the landmark Report on Chain Broadcasting in 1941, is significant for what it reveals about New Deal regulation, both in terms of the final report and in terms of the two distinct phases of New Deal regulation it represented. The first phase of the network monopoly investigation began in March 1938, when “Order No. 37” was issued, authorizing an examination of chain broadcasting (as networks were then called) in the Unites States.83 The “Order” revealed the Commission’s concern regarding “contractual relationships between chain companies and network stations, multiple ownership of radio broadcast stations . . . , competitive practices . . . by which competition may be restrained or by which restricted use of facilities may result,”84 and provided a list of 13 different aspects of the chain broadcasting industry that would be scrutinized. The Commission was particularly interested in delving into NBC (and, by extension, its parent company, RCA) and CBS operations, as well as those of regional networks. The hearing began on November 14, 1938, with David Sarnoff as the first witness testifying to the popularity of radio, the “vigorous” competition within the industry, its significant economic contributions, and the FCC’s lack of authority to regulate the chains,85 points that were often repeated throughout the proceedings by people such as Lenox Lohr, the President of NBC, CBS President William Paley, CBS Director of Research Frank Stanton, as well as representatives of the 18 regional networks. Representatives of the Mutual Broadcasting System did not agree with these sen-

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The Red Scare, Politics, and the FCC, 1941–1960

timents and instead provided evidence of the variety of ways in which networks prevented competition, particularly focusing on the exclusivity clauses of the network–affiliate contracts and on NBC’s dual Red and Blue networks. Seventy-three hearing days, 94 witnesses, 674 exhibits, and nearly 9,000 pages of testimony later, the hearing concluded on May 19, 1939.86 The subcommittee of commissioners charged with conducting the investigation was faced with sifting through a massive record to determine what regulations, if any, should be promulgated regarding chain broadcasting. The entire industry, as well as Congress, anxiously awaited a Commission decision. None came forward. Some believed that the McNinch commission was never really serious about creating rules, that the investigation was the result of congressional complaints and threats to launch an investigation of network monopoly.87 In an attempt to forestall such an investigation, McNinch had ordered an FCC inquiry. Thus, after the hearing concluded, the investigation stalled; having compiled an enormous record, the issue quickly became a “stagnant” one “that was not taken too seriously.”88 The industry must have believed it had successfully convinced the Commission that it only had the authority to be a frequency traffic cop. By the fall of 1939 the industry must have been cautiously breathing a sigh of relief. That relief was short-lived. Two things changed the prevailing commission attitude toward the network monopoly investigation: baseball and Larry Fly. In the fall of 1939 the baseball World Series found the New York Yankees defending its title against the Cincinnati Reds. The World Series was a relative newcomer to radio chain broadcasting. The fall classic was broadcast on all the networks in 1935, 1936, and 1938, but in 1939 Major League Baseball established a precedent by granting exclusive broadcast rights to the Mutual Broadcasting System.89 Because Mutual did not have an affiliate in every market in the country, the network offered its World Series broadcasts to NBC- and CBS-affiliated stations in markets where there wasn’t an MBS affiliate. NBC and CBS affiliate stations were contractually bound, however, to get their programming exclusively from their network, hence they were not allowed to carry Mutual’s broadcasts of the World Series. Learning that NBC and CBS had notified their affiliates they would not be granted network permission to carry the World Series, MBS informally notified the FCC, and particularly Larry Fly, who’d been in his job for only two weeks, of the situation.90 The result of the exclusivity clause was that a significant number of Americans were unable to listen to the 1939 World Series in which the Yankees swept the Reds in four games and Joe DiMaggio was named the MVP. The recently appointed Larry Fly, in the process of building a New Deal–oriented Commission, took immediate action.91 The FCC developed a questionnaire intended to find out whether stations carried the broad-

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casts; if so, under what contractual arrangements were the games carried; if not, under what circumstances they were not carried. The questionnaires were sent to every radio station in the country.92 As it later turned out, the results of the questionnaire were less significant than the fact that the network monopoly investigation was reopened as the result of NBC and CBS refusing to allow their affiliates to broadcast the 1939 World Series. As Broadcasting reported at the time, the network-monopoly “record presumably had been closed,” and “the baseball incident is seen in some quarters as bearing directly on” the issue of exclusive contracts.93 The industry may have hoped the investigation would fade away, but congressional leaders remained interested. By the spring of 1940 Larry Fly was under increasing pressure to release a report based on the network monopoly investigation. Senator Charles Tobey of the Committee on Interstate Commerce was particularly keen on learning when a report would be issued and was rankled by the fact that on three different occasions since November 1938 he was told the Commission would release a report “within sixty days.” Because a report had not been issued as of May 1940, “these assurances would seem to be nothing but a mockery,” decided Tobey, who demanded to know when the FCC would release a report. Failing to receive a response, Tobey wrote to Fly again a month later, testily demanding to know when the FCC would reveal its conclusions.94 When Fly finally responded to Senator Tobey on June 5, 1940, he assured him a report was forthcoming. Indeed, the initial report was released one week later on June 12, 1940. It was a bombshell for the industry. The New Deal FCC analyzed the mountain of information collected during the investigation and crafted an initial report that sent shock waves through the industry. “The Commission may proceed to a consideration of the need for a revision of its licensing policy in the radiobroadcast field in order to correct the serious inequities and arbitrary practices which have developed in connection with chain broadcasting,” the report asserted.95 Describing the “unhealthy predominance of the network organizations,”96 the Report contained a laundry list of anticompetition practices in which the networks engaged, particularly noting NBC’s use of dual networks, the Red and the Blue, to stifle competition with CBS. The bulk of the report, however, focused attention on the network–affiliate relationship. The investigating committee found that the contracts binding networks and radio stations together were particularly egregious. First, stations were bound to the networks for five years, but the networks were obliged to the station for only one. In other words, a network could legally abandon a radio station at the end of a yearly contract, but the radio station could not leave the network until the end of a five-year contract. Throughout that five-year period, a radio station was required to carry its network’s programs and was prohibited from carrying another network’s broadcasts. Further, the networks held “options” on their affiliate’s air-

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The Red Scare, Politics, and the FCC, 1941–1960

time. With 28 days’ notice, a network could essentially take station airtime, requiring the station to drop whatever program it scheduled and replace it with the network’s program. The practice made it difficult for local stations to create local programming that could consistently be broadcast; a program that was inconsistently broadcast was difficult to sell to local advertisers; hence, local stations rarely developed local programming, despite the fact that the networks often let the “option time” go unused. According to the Committee, the “provisions of these contracts . . . stifle competition and tend to make the outlet the servant of the network rather than an instrument for serving the public interest. The station is thereby rendered incapable of serving as a medium of local self-expression through the broadcast of local programs.”97 The New Deal FCC was disturbed by the state of business in radio broadcasting. Despite the philosophy of the Communications Act of 1934, with its emphasis on broadcast frequencies being a natural resource, the use of which must serve the public interest, the unchecked corporate development in the broadcasting industry made it virtually impossible for local radio stations to honor their commitments to serve the public and for the industry to honor the spirit of the 1934 legislation. “To the extent that the ownership and control of radio broadcast stations fall into fewer and fewer hands, whether they be network organizations or other private interests, the free dissemination of ideas and information, upon which our democracy depends, is threatened” the Committee asserted. Further, “the inescapable conclusion is that National and Columbia, directed by a few men, hold a powerful influence over the public domain of the air and measurably control radio communication to the people of the United States.”98 Industry response to the report followed two paths. Publicly the networks remained silent, although the findings of the Report “were enough to send a network tycoon gibbering to the hills.”99 The industry instead relied on Broadcasting to publicize the dominant reaction. With his usual dramatic flair, Broadcasting editor Sol Taishoff warned that “broadcasters generally had better resign themselves to an era of unbridled regulation and bureaucratic control.”100 Yet the networks, and particularly NBC’s parent, RCA, remained unusually quiet. Given the FM and TV standards decisions that were released just a few weeks before the network monopoly report, they very likely decided it was best to let Broadcasting do the public talking, and the networks’ lawyers would respond to the FCC report within the confines of the hearing the Commission scheduled for that purpose. Although National Association of Broadcasters (NAB) president Neville Miller hoped for the best when he asserted that the NAB was “confident there exists in the commission sufficient good judgment and restraint as to the exercise of powers,”101 his hopes were in vain. Because he wasn’t a member of the Commission at the time, Fly did not participate

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in the original 1938–1939 fact-finding hearing. Now chair of the agency, Larry Fly took a leading role in questioning network lawyers as they took their turns trying to persuade the FCC its report was wrong. After two days, Fly concluded the hearing by encouraging the lawyers to craft legal briefs that described “areas of actual competition, . . . feasible areas of competition, . . . and how best can the public get [the] most out of the industry in terms of a healthy competition.”102 Clearly Fly was unmoved by two days of corporate pleadings; he remained convinced that a network monopoly controlled the radio industry, and he wanted the network lawyers to explain how they would resolve the problems. When the December hearing concluded, the FCC came under considerable fire. Business Week took up the networks’ cause, warning that the agency would “have a fight on its hands if it carries out its obvious intention to clamp down on the broadcasting networks.”103 If the Commission continued on its present course, exceeding its authority to license, Business Week believed it would be opposed by the legislative, judicial, and executive branches. In May 1941 the FCC issued its Report on Chain Broadcasting. Affirming the findings and conclusions contained in the 1940 initial report, the Commission created rules intended to encourage competition and weaken the network monopoly. Because it did not have the authority to directly regulate the networks, the FCC accomplished its goals by reconstructing the network–affiliate relationship. The agency stipulated conditions under which it would not license a radio station: a station that signed an exclusive contract with a network and was prohibited by that network from broadcasting the programs of another network, a station that signed a network contract for longer than one year, a station that granted any option time to a network, and a station that affiliated with an organization that operated more than one network. It was the networks’ worst fears come true; the end of the broadcast world was at hand, the networks cried. NBC President Niles Trammel feared that the new FCC rules would “ultimately destroy the freedom of the air,” and would most surely threaten popular public-interest programs such as “Town Meeting of the Air” and broadcasts of Toscanini’s NBC Symphony Orchestra and the Metropolitan Opera.104 In a public meeting of RCA stockholders, David Sarnoff asserted that his company was not a monopoly and encouraged stockholders to write to their legislators complaining about the FCC action.105 A speech by CBS President William Paley was reproduced in magazine format and mailed to radio stations around the country. Entitled “First Paralyzing Blow At Freedom of the Air in the United States,” the publication is a case study in the use of inflammatory rhetoric. It assailed the Chain Broadcasting report as “a dangerous grab for power” created by a “hostile” commission “calculated to torpedo” the existing business structure of radio broadcasting. “The first paralyzing blow will have been struck at freedom of the air,” Paley warned, “because a Commission which can exercise

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such drastic powers without even going to the Congress for authority to exercise them will have reduced the networks and stations of America to impotent vassals, able to survive only so long as they please the regulatory authority.”106 The news media covered the story extensively, usually with a decidedly pro-network angle, and Broadcasting was apoplectic.107 Although network interests publicly condemned the FCC’s decision, many applauded it. The Mutual Broadcasting System was satisfied by the Commission ruling.108 Radio stations that were not affiliated with either NBC or CBS, who faced great difficulty in competing in an unfair business atmosphere, wrote many letters thanking the Commission for its actions. A station owner in Louisville, Kentucky, appreciated the FCC’s “fearless upset of the old order of network broadcasting. The clamor will be loud and long from some quarters, but you may be sure that many of us who have experienced the abuses you seek to correct will be happy to cooperate with the Commission in any way possible to enlarge program service.”109 Further, as Fly wrote to the Director of the American Civil Liberties Union, “I have been continuously gratified in realizing the number of stations which have indicated openly or covertly their support of the Regulations. I think you may be genuinely surprised at the extent to which the Regulations are already accepted by those portions of the industry which are free to speak.”110 The Nation applauded the FCC rules, arguing it was “clearly in the public interest that they be upheld and enforced. Control of news and opinion and entertainment over the air by two great chains is just as bad as a similar control of the nation’s newspapers would be.”111 The tension between the government and industry reached its boiling point at the annual meeting of the National Association of Broadcasters in St. Louis in mid-May 1941, less than two weeks after the Report on Chain Broadcasting was released. In a program that was arranged long before release of the report, Fly agreed to participate with NAB leaders in a discussion of current issues facing the broadcasting industry. By the time the program got underway, however, the NAB participants were not interested in an academic discussion. Instead, Mark Etheridge, a leading member of the NAB, attacked Fly and the FCC, accusing them of regulating with “bad temper, impatience and vindictiveness.” Although Fly was earlier promised the opportunity to respond to NAB comments, the proceeding was quickly adjourned after Etheridge’s comments, leaving him unable to answer the attack. A shouting match between Fly and NAB leaders ensued, and Fly stormed out of the meeting. He later likened the NAB to “a dead mackerel in the moonlight, it both shines and stinks,” an analogy that was widely quoted in the news media. In a reference to Niles Trammel and Bill Paley, respective presidents of NBC and CBS, Fly also called the NAB the “Niles and Bill” club.112 The rancorous exchanges between Fly and Etheridge were personifi-

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cations of the deeper antagonism that had developed between the FCC and the broadcasting industry over the previous year and a half. With their tenuous relationship strained to the breaking point, industry lawyers began meeting with Larry Fly during August 1941 in an attempt to find some point of reconciliation. In a move that deeply surprised, and to some extent disappointed, Fly’s legal team, the commissioners compromised with the industry on the extent of the new chain regulations.113 The most significant concession made by the FCC was virtually relinquishing its ban on network option time. Under the new agreement, a broadcast day was divided into dayparts, and stations were allowed to provide up to three hours per daypart for network option time. The networks were required to “claim” the time a minimum of 56 days in advance, and stations were required to maintain at least two hours within each daypart for local programming. In theory it sounded like a good compromise; in effect, however, it allowed the networks to maintain a strong grip on local program times. Despite attempts to compromise, the FCC found itself at the center of both industry and congressional challenges to its decisions. Two weeks after the Supplemental Report was issued, both NBC and CBS filed complaints in federal court against the Commission,114 arguing that the agency did not have the statutory authority to issue such regulations. The U.S. Supreme Court eventually ruled in favor of the FCC, deciding that the Commission had the statutory authority to both investigate the industry and promulgate the rules. As a result, RCA was forced to sell one of its networks, ultimately selling the Blue to Edward Noble, who reformed it into the American Broadcasting Company (ABC) in 1943. The Chain Broadcasting Rules went into effect in late 1943 and, despite the networks’ ominous predictions, the industry did not collapse. Indeed, in the 60 years since the rules were promulgated, it is clear that they had little long-term impact on the industry other than forcing it to reformulate the network– affiliate relationship. It certainly did not have the intended effect of significantly reducing the monopolistic practices of the networks. In the early 1940s, however, both industry and members of Congress were disturbed by the seemingly sudden onslaught of New Deal regulations emanating from the FCC, the most strident and extreme of which was the Chain Broadcasting Rule. Texas representative Martin Dies was particularly incensed by New Deal activities at the FCC and began investigating the agency under the auspices of his House Committee on UnAmerican Activities. Goaded by industry, many other legislators began to take stronger interest in the Commission. CO NCLUSION The FCC had changed dramatically in the 26 months since Larry Fly joined. Indeed, Time magazine could not have been more wrong when it

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predicted in August 1939 that McNinch’s successor would be a “mopperupper.” In the first two years of his leadership, Fly changed the Commission from an agency that regulated from a business-oriented perspective, essentially defining “public interest” as that which would benefit the broadcasting industry, to a bureaucracy fundamentally guided by New Deal antimonopoly, pro-public philosophies. In just over two years, Fly, a majority of his fellow commissioners, and a devoted legal staff turned an arrogant and overindulged industry on its head, unflinchingly creating regulations that promoted industry underdogs. The Sanders Brothers case made it clear that the Commission would promote competition rather than protecting the business interests of established stations. The Mayflower decision communicated the agency’s belief that the airwaves belonged to the public and should not be used as the private mouthpiece of the station owners, which, in turn, established the agency’s devotion to maintaining a free marketplace of ideas through broadcasting. The FCC took especially strong stands against broadcasting monopolies in the FM, TV standards, chain broadcasting, and ownership regulations. The sudden zeal with which the New Dealers approached broadcast regulations caught the industry and legislators off guard. As the next chapter reveals, the growing enthusiasm of New Deal regulation was met by a growing sense of alarm on the part of some members of Congress. While the industry attempted to fight the Commission’s New Deal approach during FCC hearings and through judicial challenges, legislators retaliated with their own weapons. NO TES 1. Alan Brinkley, The End of Reform: New Deal Liberalism in Recession and War (New York: Alfred A. Knopf, 1995). 2. Ibid., p. 48. 3. Ibid., p. 55. 4. Brinkley, The End of Reform. 5. Ibid., p. 63. 6. “Mopper-Upper,” Time, 7 August 1939, p. 32. 7. Ibid. 8. Henry F. Pringle, “The Controversial Mr. Fly,” Saturday Evening Post, 22 July 1944, pp. 9Ⳮ. 9. Reminiscences of Paul Porter, 1970, on p. 1 of the James Lawrence Fly Project, Columbia University Oral History Research Office Collection, Columbia University, New York, NY (hereafter cited as the Porter oral interview). 10. Reminiscences of Ben Cottone, 1970, on p. 2 of the James Lawrence Fly Project, Columbia University Oral History Research Office Collection, Columbia University, New York, NY (hereafter cited as the Cottone oral interview). 11. Cottone oral interview, p. 3. 12. Porter oral interview, pp. 9–10.

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13. Porter oral interview, p. 10. 14. Reminiscences of Harry Plotkin, 1970, on p. 24 of the James Lawrence Fly Project, Columbia University Oral History Research Office Collection, Columbia University, New York, NY (hereafter cited as the Plotkin oral interview). 15. Reminiscences of Telford Taylor, 1970, on p. 56 of the James Lawrence Fly Project, Columbia University Oral History Research Office Collection, Columbia University, New York, NY (hereafter cited as Taylor oral interview). 16. Cottone oral interview, p. 21. 17. Hugh Slotten, Radio and Television Regulation: Broadcast Technology in the United States, 1920–1960 (Baltimore: The Johns Hopkins University Press, 2000). 18. Volume 1, p. 25 of Sanders Brothers hearings, In the Matter of Telegraph-Herald and Sanders Brothers Radio Station, Docket 3967, Box 958, FCC Docket Section, NARA, College Park, MD. 19. In the Matter of Telegraph-Herald and Sanders Brothers Radio Station, 4 FCC 392 (1937). 20. Ibid., p. 399. 21. “Sanders Brothers Petition for Rehearing,” 11 August 1937, In the Matter of Telegraph-Herald and Sanders Brothers Radio Station, Docket 3967, Box 958, FCC Docket Section, NARA, College Park, MD, p. 8. 22. Sanders Brothers Radio Station v. Federal Communications Commission, 106 F.2nd 321, (1939). 23. Ibid. 24. Saul Nelson, as quoted in Brinkley, The End of Reform, pp. 60–61. 25. Sanders Brothers Radio Station v. Federal Communications Commission, 106 F.2nd 321, (1939). 26. FCC v. Sanders Brothers Radio Station, 309 U.S. 470, 475 (1940). 27. “Proposed Findings of Fact by Hearing Examiner George Porter,” In the Matter of Mayflower Broadcasting and the Yankee Network, 29 April 1940, Box 1701, Docket 5640, FCC Docket Section, NARA, College Park, MD. 28. “Proposed Findings of Fact and Conclusions of the Commission,” In the Matter of Mayflower Broadcasting and the Yankee Network, 8 FCC 333 (1940). 29. Transcript of Oral Argument before the FCC, In the Matter of Mayflower Broadcasting and the Yankee Network, p. 4 (25 July 1940), Box 1696, Docket 5618, FCC Docket Section, NARA, College Park, MD. 30. Ibid., pp. 5–6. 31. Ibid., p. 6. 32. Ibid. 33. Brinkley, The End of Reform, pp. 58–59. 34. U.S. Congress, House, Subcommittee of Appropriations, Independent Offices Appropriation Bill for 1941, 76th Cong., 3rd Sess. (December 1939), p. 952. 35. “Decision and Order,” In the Matter of Mayflower Broadcasting and the Yankee Network, 8 FCC 338 (1940). 36. Ibid., p. 339. 37. “Affidavit of John Shepard,” 11 September 1940, In the Matter of Mayflower Broadcasting and the Yankee Network, Box 1701, Docket 5640, FCC Docket Section, NARA, College Park, MD. 38. “Decision and Order,” In the Matter of Mayflower Broadcasting and the Yankee Network, 8 FCC 340 (1940).

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39. Plotkin oral interview, pp. 24–26. 40. “Second Report of Television Committee, In the Matter of Exceptions to the Rules and Regulations for Television Stations Tentatively Adopted by the Commission on December 21, 1939, and to Specific Recommendations of its Television Committee” (15 November 1939), Box 1762, Docket 5806, FCC Docket Section, NARA, College Park, MD. 41. Ibid., pp. 4–5. 42. Ibid., p. 4. 43. For a more detailed explanation of the hearings, see Mickie Edwardson, “Blitzkrieg over Television,” Journalism History 25, no. 2, (summer 1999): pp. 42–53. 44. Slotten, Radio and Television Regulation. 45. Brinkley, The End of Reform, p. 114. 46. “Report, In the Matter of Exceptions to the Rules and Regulations for Television Stations Tentatively Adopted by the Commission on December 21, 1939, and to Specific Recommendations of its Television Committee,” pp. 2–3 (29 February 1940), Box 1765, Docket 5806, FCC Docket Section, NARA, College Park, MD. 47. “Order No. 65” (22 March 1940), Box 1765, Docket 5806, FCC Docket Section, NARA, College Park, MD. 48. Plotkin oral interview, p. 18. 49. Statement of David Sarnoff, “Proceedings of Board of Directors Meeting of the Radio Manufacturers Association,” p. 14 (8 February 1940), Box 1768, Docket 5806, FCC Docket Section, NARA, College Park, MD. 50. “Report, In the Matter of Order No. 65 Setting Television Rules and Regulations for Further Hearing,” p. 16 (28 May 1940), Box 1768, Docket 5806, FCC Docket Section, NARA, College Park, MD. 51. Statement of David Sarnoff, “Proceedings of Board of Directors Meeting of the Radio Manufacturers Association,” p. 14 (8 February 1940), Box 1768, Docket 5806, FCC Docket Section, NARA, College Park, MD. 52. Ibid., p. 14. 53. Bureau of the Census, U.S. Department of Commerce, “Radio Advertising Expenditures, Finances, and Employment,” Historical Statistics of the United States, Colonial Times to 1970, Part 2 (Washington, D.C.: Government Printing Office, 1975), p. 797. 54. For explanations of Armstrong and his invention of FM, see Don V. Erickson, Armstrong’s Fight for FM Broadcasting: One Man vs. Big Business and Bureaucracy (Tuscaloosa, AL: University of Alabama Press, 1973); Tom Lewis, Empire of the Air: The Men Who Made Radio (New York: HarperCollins Press, 1991); Erik Barnouw, A Tower in Babel (New York: Oxford University Press, 1968); Erik Barnouw, The Image Empire (New York: Oxford University Press, 1970); Christopher Sterling and John Kittross, Stay Tuned: A Concise History of Broadcasting (Belmont, CA: Wadsworth Publishing, 1990). 55. “Hearings In the Matter of Aural Broadcasting on Frequencies Above 25,000 kc,” Before the Federal Communications Commission, Vol. 1, p. 4 (18 March 1940), Box 1757, Docket 5805, FCC Docket Section, NARA, College Park, MD. 56. Ibid., pp. 44–46. 57. “Brief for RCA, In the Matter of Aural Broadcasting on Frequencies Above

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25,000 kc,” pp. 17–19 (22 April 1940), Box 1760, Docket 5805, FCC Docket Section, NARA, College Park, MD. 58. “Report on Frequency Modulation, In the Matter of Aural Broadcasting on Frequencies Above 25,000 kc,” 39 FCC 29 (1940). 59. “Report on Frequency Modulation, In the Matter of Aural Broadcasting on Frequencies Above 25,000 kc,” 39 FCC 29 (1940). 60. Ibid., p. 30. 61. “Communications Body Opens Door to Frequency Modulation Radio,” New York Times, 20 May 1940, p. 19; “Threat to Television is Feared in Frequency Modulation Order,” New York Times, 21 May 1940, p. 25. 62. “FM Gets Go Sign,” Business Week, 25 May 1940, p. 21. 63. Seventh Annual Report of the Federal Communications Commission (Washington, D.C.: Government Printing Office, 1941), p. 25. 64. Seventh Annual Report of the Federal Communications Commission, p. 62. 65. “Order No. 65,” p. 29 (22 March 1940), Box 1765, Docket 5806, FCC Docket Section, NARA, College Park, MD. 66. Title 47, Chapter 1, §3.228: Multiple Ownership, 5 FR 2384. 67. “Decision and Order,” In the Matter of Mayflower Broadcasting and the Yankee Network, 8 FCC 341 (1940). 68. Title 47, Chapter 1, §4.226: Multiple Ownership, 6 FR 2285. 69. Title 47, Chapter 1, §3.35: Multiple Ownership, 8 FR 16065. 70. Seventh Annual Report of the Federal Communications Commission, p. 24. 71. Reminiscences of Charles Denny, 1970, on p. 9 of the James Lawrence Fly Project, Columbia University Oral History Research Office Collection, Columbia University, New York, NY (hereafter cited as Denny oral interview). 72. Joon-Mann Kang, “Franklin D. Roosevelt and James L. Fly: The Politics of Broadcast Regulation, 1941–1944,” Journal of American Culture 10, no. 2, (summer 1987): pp. 23–33; Douglas B. Craig, Fireside Politics: Radio and Political Culture in the United States, 1920–1940 (Baltimore: The Johns Hopkins University Press, 2000). 73. “FCC v. Publishers,” Time, 5 May 1941, p. 58. 74. Porter oral interview, p. 18. Other FCC attorneys confirm that the newspaper ownership investigation was politically motivated by President Roosevelt; see Cottone, Hyde, and Taylor oral interviews. 75. “Order No. 79,” p. 1 (20 March 1941), Box 1932, Docket 6051, FCC Docket Section, NARA, College Park, MD. 76. “Order No. 79-A” (1 July 1941), Box 1932, Docket 6051, FCC Docket Section, NARA, College Park, MD. 77. “Publishers to Raise $200,000 Radio Fund,” New York Times, 23 April 1941, p. 17. 78. “Motion to Vacate Order No. 79 and Order No. 79-A and Terminate Proceeding,” p. 2 (15 July 1941), Box 1932, Docket 6051, FCC Docket Section, NARA, College Park, MD. 79. “Decision and Order of Motion to Vacate Order” (23 July 1941), Box 1932, Docket 6051, FCC Docket Section, NARA, College Park, MD. 80. Stahlman v. Federal Communications Commission, 126 F.2nd 124, (1942). 81. “Summary of Record” (21 January 1944), Box 1939, Docket 6051, FCC Docket Section, NARA, College Park, MD. 82. The network monopoly investigation was a mammoth undertaking, the de-

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tails of which cannot be adequately covered within the confines of this book chapter. The industrial, political, regulatory, and labor implications of this single Commission investigation would make a rich topic for an entire book. 83. “Order No. 37, Instituting Chain Broadcasting Investigation,” Report on Chain Broadcasting (Washington, D.C.: Government Printing Office, 1941). 84. Ibid., p. 95. 85. “Hearings Concerning Network Monopoly,” Before the Federal Communications Commission, Vol. 1, pp. 25–40 (14 November 1938), Box 1400, Docket 5060, FCC Docket Section, NARA, College Park, MD. 86. Fifth Annual Report of the Federal Communications Commission (Washington, D.C.: Government Printing Office, 1939). 87. “Nomination of Thad Brown,” Hearings Before Senate Interstate Commerce Commission, 76th Cong., 3rd Sess., June–August 1940, p. 1; Porter oral interview, p. 7. 88. Porter oral interview, p. 27. 89. “World Series on Air,” New York Times, 18 August 1939, p. 18; “Gillette Sponsors Baseball on MBS,” Broadcasting, 1 September 1939, p. 14. 90. “FCC Stirs Network Issue by Request for World Series Data from Stations,” Broadcasting, 15 November 1939, p. 26. 91. “World Series on Air to be Investigated,” New York Times, 6 November 1939, p. 19; “FCC Stirs Network Issue by Request for World Series Data from Stations,” p. 26. 92. Copies of the questionnaire and responses from radio stations may be found in Box 166, Office of Executive Director, General Correspondence 1927–1946, FCC Archives, NARA, College Park, MD. 93. “FCC Stirs Network Issue by Request for World Series Data from Stations,” p. 26. 94. Charles Tobey to James L. Fly, 2 May 1940, and Charles Tobey to James L. Fly, 4 June 1940, both in Box 165, Office of Executive Director, General Correspondence 1927–1946, FCC Archives, NARA, College Park, MD. 95. “Report of the Committee Appointed by the Commission to Supervise the Investigation of Chain Broadcasting,” Report on Chain Broadcasting (Washington, D.C.: Government Printing Office, 1941), p. 97. 96. Ibid. 97. Ibid. 98. Ibid., p. 99. 99. “Bad News for the Networks,” Time, 24 June 1940, p. 66. See also Sol Taishoff, “Monopoly Report Seen Industry Threat,” Broadcasting, 15 June 1940, p. 13; “More Business-Baiting: The ‘Monopoly’ Report,” Broadcasting, 15 June 1940, p. 81. 100. “More Business-Baiting: The ‘Monopoly’ Report,” p. 81. 101. “U.S. to Investigate ‘Monopoly’ in Radio,” New York Times, 30 November 1940, p. 32. 102. “Hearings Concerning Network Monopoly,” Before the Federal Communications Commission, Vol. 75, p. 8897 (3 December 1940), Box 1425, Docket 5060, FCC Docket Section, NARA, College Park, MD. 103. “Radio Monopoly?” Business Week, 14 December 1940, p. 32. 104. “Federal Control of Air Seen by NBC,” New York Times, 5 May 1941, p. 12. 105. “Radio ‘Monopoly’ Denied by Sarnoff,” New York Times, 7 May 1941, p. 39.

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106. “First Paralyzing Blow at Freedom of the Air in the United States,” published by CBS in May 1941. Several copies of the publication may be found in Box 164, Office of Executive Director, General Correspondence 1927–1946, FCC Archives, NARA, College Park, MD. 107. “Un-Chaining Radio,” Business Week, 10 May 1941, p. 14; “Crackdown on the Chains,” Newsweek, 12 May 1941, pp. 67–68; “Chains Unchained?” Time, 12 May 1941, p. 68; “FCC Adopts Stringent Monopoly Report,” Broadcasting, 5 May 1941, p. 13; “Networks Seek Ways to Halt FCC Action,” Broadcasting, 12 May 1941, p. 17; “The Monopoly Report: Five Men Against the Public,” Broadcasting, 12 May 1941, p. 18. 108. “Mutual Endorses Revision of Radio,” New York Times, 8 May 1941, p. 25. 109. S. A. Cisler to James Lawrence Fly, 9 May 1941, Box 164, Office of Executive Director, General Correspondence 1927–1946, FCC Archives, NARA, College Park, MD. 110. J. L. Fly to Roger Baldwin, 14 August 1941, Box 165, Office of Executive Director, General Correspondence 1927–1946, FCC Archives, NARA, College Park, MD. 111. “Control of the Air,” The Nation, 10 May 1941, p. 545. 112. “Bad temper, impatience, and vindictiveness” was reported in “Ethridge [sic] Attacks FCC on Monopoly Issue,” New York Times, 15 May 1941, p. 1; “Judgment Day for Radio,” The Nation, 31 May 1941, pp. 634–636; “Radio v. New Deal,” Time, 26 May 1941, p. 17; The “dead mackerel” analogy may be found in “Removal of Fly Demanded by NAB,” New York Times, 17 May 1941, p. 17; “Radio v. New Deal,” Time, 26 May 1941, p. 17; “Man on the Spot,” Business Week, 24 May 1941, p. 37; “Fly in the Network Pie,” Time, 26 May 1941, p. 71. The “Niles and Bill” comment was reported in the Porter oral interview, p. 12. 113. “Supplemental Report on Chain Broadcasting,” 11 October 1941, Box 163, Office of Executive Director, General Correspondence 1927–1946, FCC Archives, NARA, College Park, MD. 114. CBS v. U.S., 316 U.S. 407 (1942); NBC v. U.S., 319 U.S. 190 (1943).

CHAPTER 2

The Nastiest Nest of Rats

Dr. Goodwin Watson sat in a chair facing his panel of inquisitors. Before him he saw a row of legislators shuffling papers, conferring with aides, preparing for the coming interrogation. Watson was alone; no attorney to protect him, no aides to support him. He had only a prepared statement on the table in front of him and a gripping nausea in his stomach. Outside it was a pretty spring morning in early 1943, but the atmosphere in this room was chilly. The climate changed from cool to icy when Watson brazenly asked to read the statement in front of him so the hearing could be held “in accord with the procedures of the Constitution.”1 “We know already of your feelings toward the committee,” rebuked the chair of the committee, Joe Starnes of Alabama, “and what you think about its procedures, . . . but frankly, we do not care.”2 Thus began Goodwin Watson’s first day of testimony before an executive session of the House UnAmerican Activities Committee. The path to this particular hearing began 16 months earlier in November 1941, when the FCC hired Columbia University professor Dr. Goodwin Watson, a social psychologist and a nationally recognized authority on propaganda techniques, to take charge of the Commission’s Foreign Broadcast Monitoring Service (FBMS). That same month the Commission augmented its Foreign Broadcast Intelligence Service (FBIS) by appointing young historian Dr. William E. Dodd, Jr., as an assistant news editor. Under the leadership of the dynamic Larry Fly, the Commission felt itself fortunate to have such distinguished intellectuals serving both the agency and the United States, individuals who utilized their unique talents to help the country monitor the messages broadcast by Germans, Italians,

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and Japanese. Unknown to everyone, of course, was the fact that the stage was set for a drama that would unfold around these appointments, events that would evolve into a conflict pitting the FCC, the Senate, President Franklin D. Roosevelt, and the Supreme Court against Representative Martin Dies’ House Committee to Investigate Un-American Activities and the House Appropriations Committee. Watson’s appearance before this particular committee was one aspect of a much larger struggle. It was a political contest that began in the fall of 1939 when Larry Fly joined the Commission, soon after which the activities of the FCC began to draw a considerable amount of attention from a variety of congressional committees. Barely three months into the New Deal reformation of the broadcasting industry, Fly and other members of the Commission found themselves making frequent, sometimes hasty, trips to Capitol Hill to explain their activities. Periodically the FCC representatives testified regarding routine bureaucratic matters but, more often than not, they found themselves having to explain and justify their regulatory actions in increasingly hostile political environments. By 1943 one legislator described the FCC as “the nastiest nest of rats in the country.”3 Occurring simultaneously with U.S. involvement in World War II, a war metaphor is apt to describe the tension between the FCC and Congress during these years. Unlike the global military conflict, the battle lines were not clearly drawn in Washington, D.C. On one side was the Commission, largely composed of commissioners Larry Fly, Clifford Durr, George Payne, Ray Wakefield, Frederick Thompson, and Paul Walker, as well as the FCC Legal Division, all of whom altered the agency from traffic cop to active regulator in a short period between 1940 and 1942. Commission decisions were not unanimous, however, as T. A. M. Craven and Norman Case demonstrated in their outspoken critiques of New Deal regulations. On the opposing field was Congress but, again, it was not entirely unified in its contempt for the FCC. House committees more vigorously opposed the Commission than did the Senate, striking at Fly and his agency whenever and however possible, initially through the Appropriations and Commerce Committee considerations of “mundane” issues, then through the House Committee on Un-American Activities and the House Special Committee to Investigate the Federal Communications Commission. The Senate was an equally interested, albeit less bloodthirsty, partner to the House through the auspices of the Senate Appropriations and Interstate Commerce Committees. Both legislative branches followed two general strategies. The first investigated specific Commission decisions, scrutinizing the degree to which the agency exceeded its authority, as the broadcasting industry loudly claimed, in the FM, TV allocation, Chain Broadcasting Rule, and other decisions. Failing to undermine the Commission by attacking its authority, legislators developed a second strategy:

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they accused the FCC of harboring Communists as part of the larger “Red Scare.” Historians argue that there were two fundamental reasons for the conservative attack on liberals that resulted in the “Red Scare.” Throughout a significant portion of the 1930s and 1940s, conservatives were forced to take a back seat to overwhelming popular support of Franklin Roosevelt and Democratic control of Congress. During the Great Depression and beyond, a groundswell of support for increased government activity on behalf of the public, and particularly restraints against corporate America, grew in the United States. Political conservatives could do little more than watch as the social, political, and economic fabric of the country was transformed into something they found deeply shocking. By the late 1930s and early 1940s, conservative Democrats and Republicans alike began to challenge the New Deal in various ways, one of which was the accusation that Communists were taking over the country, a charge that was a public cover for a political backlash.4 As the 1940s progressed and the Red Scare escalated, those who supported the New Deal and who advocated significant change were particularly at risk for being accused of Communist sympathies. Few drew such vehement attacks as Larry Fly and the FCC. The Red Scare is also explained as conservative retaliation against the antibusiness atmosphere created by New Dealers, whose policies hampered corporate America and violated a free-enterprise economy.5 As David Caute argues, the “real sources of the ‘anti-Communist’ hysteria [may be found in] New Dealism, which posed so insidious a threat to unbridled Business [sic].”6 Conservatives generally opposed the intervention of government into corporate affairs, believing it be a violation of basic free enterprise. The loud cries of the broadcasting industry regarding the Chain Broadcasting Rule and, to a lesser extent, the FM, TV allocations, Mayflower Rule, and ownership decisions certainly convinced many legislators that the FCC was making antibusiness decisions. The New Deal policies and decisions made by the FCC between 1940 and 1942 and choreographed by Larry Fly so outraged some congressional conservatives that they paid unusually concentrated attention to the Commission. They did so for at least three reasons. Initially politicians generally kept a close eye on the FCC simply because it regulated an industry that was near and dear to their political interests. In 1940 that attention became more fixed as committees of both the Senate and the House started zeroing in on the FCC but taking decidedly different paths in their investigations. Early inquiries questioned Commission policies, especially those that were perceived as New Deal regulations that negatively affected the business interests of the broadcasting industry. These anti–New Deal examinations became increasingly contentious and elaborate as the 1940s progressed and spawned another line of attack, which was to accuse the New Deal FCC of being influenced by Communists. Beginning in late

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1941 conservatives routinely attacked New Dealers at the FCC under the guise of “rooting out” Communists at the Commission. CO NG RESS T A K E S A I M Between the two houses of Congress, it was the Senate that took a more reasoned approach to investigating the activities of the FCC. The Senate Appropriations and Interstate Commerce Committees tended to support the agency (although individual members were often quite caustic in their interactions with FCC representatives). Given the mission of the Interstate Commerce Committee, it makes sense that it took the lead on investigating FCC decisions regarding business practices of the broadcasting industry. Senate inquiries began quietly at first, but between early 1940 and early 1942 the investigations intensified as the FCC’s decisions became progressively more dramatic. As the broadcasting industry’s cries of the end of the business world mounted, so too did Senate investigations. Unlike the Senate, in which the Interstate Commerce Committee led most of the significant investigations of the FCC, four different House committees worked to undermine the Commission: Appropriations, Interstate and Foreign Commerce, the Un-American Activities Committee, and finally the Committee to Investigate the Federal Communications Commission. Appropriations took the lead in investigating the FCC for the House of Representatives. Appropriations was, and still is, a powerful committee because it partly controlled the federal purse strings. Every arm of the federal government had to have its operating budget approved by the Appropriations Committees of both the House and the Senate, hence bureaucrats had to constantly justify their budgetary requests. Failure to adequately justify a budget or to please the Appropriations Committees often meant that the offending requestor was denied funding. It was a lesson the FCC learned the hard way in the early 1940s, and it was a particularly effective way for the House to communicate its displeasure with New Deal FCC regulatory activities. The Beginning: 1939–1940 Larry Fly reenergized the FCC after he joined it in late summer 1939. By January 1940 several languishing issues were scheduled for hearings, including FM and television frequency allocations, TV standards, and the long-controversial network monopoly issue. As quickly became apparent with the TV standards decision and subsequent rebuke of RCA, the Commission had a new attitude toward broadcast regulation. Legislators responded rapidly to FCC decisions, under considerable industry pressure to do so. The House Appropriations Committee signaled its early interest in FCC

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activities in December 1939, only three months into Larry Fly’s tenure. In hearings to determine appropriations for independent offices (such as the FCC), Everett Dirksen (R-Illinois) repeatedly questioned Fly about radio station ownership and particularly newspaper ownership of stations, about the National Association of Broadcasters (NAB) position on broadcasting controversial issues, and about the network–affiliate relationship.7 Although the discussion between Dirksen and Fly was cordial and professional, it was clear that the House Appropriations Committee had definite ideas about what it believed should be the focus of FCC activities. Within a few months the tone of interactions between FCC representatives and members of the House Appropriations Committee became decidedly more tense. Commissioner Paul Walker and other FCC representatives, testifying in a hearing to persuade the committee to fund the relocation of broadcasting monitoring stations, were blindsided by legislator John Taber (R-New York), who referred to the FCC as “the most inefficient organization in the United States, and the only way to clean it up is to get rid of about one third of the help.”8 A year later Taber asked Fly whether “your outfit [is] still in competition, to be the most inefficient outfit in the Government [sic], as strenuously as it was a year ago?”9 In addition to the House, the Senate Appropriations Committee signaled its interest as early as January 1940, when it questioned Fly about the likelihood of a monopoly in the radio industry and the status of the FCC’s ongoing network–monopoly investigation.10 It was relevant questioning as the Commission’s television standards hearings were underway simultaneously. As the discussion between Fly and various committee members continued, it was clear that the senators were interested in the state of the industry but were not concerned about FCC activities. Indeed, because Fly had been chair of the Commission for only four months, there was no reason for concern. That attitude changed rapidly, however, in April 1940 as the result of the RCA television promotional campaign. Despite a clear FCC statement discouraging television manufacturers from advancing the sale of television sets, in late March RCA launched an aggressive promotional campaign to sell television sets. The move drew the ire of Larry Fly, who immediately rescinded the FCC order allowing experimental commercial broadcasts and announced a second set of hearings for early April 1940 to review the situation. The FCC’s swift action against RCA was met with an equally brisk response from Senator Ernest Lundeen (D-Minnesota), who introduced Senate Resolution 251 on April 1, calling for the Senate Interstate Commerce Committee to “investigate the actions of the [FCC] in connection with the development of television and . . . ascertain whether the Commission has exceeded its authority, and whether it has interfered with the freedom of public and private enterprise.”11 For two days in April 1940, at exactly the same time as the FCC held

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its own investigation, (Fly had to shuttle back and forth between the Senate inquiry and his own at the Commission), senators asked the FCC chair to explain the reasoning behind the original TV allocation decision and, more specifically, the recent move to prevent RCA from commercially distributing television sets. As Fly explained in painstaking detail, the FCC decision was meant to promote competition between television manufacturers by encouraging them to improve the 441-line technology; halting television set distribution was a short-term obstruction that would eventually result in a better television technology that would benefit the public. Fly was unusually candid about RCA’s power in the industry and his belief that the corporate giant held a monopoly, an argument that was well received by most of the senators, including the committee chair, Burton K. Wheeler (D-Montana), who developed into a powerful FCC ally. The Commission’s nemesis on the Senate committee, Ernest Lundeen, strongly disagreed with the FCC’s interference in the business decisions of the broadcasting industry. Lundeen took a forceful stand against the agency by arguing that its decisions prevented the employment of millions during a time of economic depression and impeded the forward progress of research and development. Indeed, as far as Lundeen was concerned, the FCC was little more than “a little group of incompetent people behind locked doors, in a midnight session, putting something over [on the American public].”12 The majority of Lundeen’s colleagues disagreed with him, and after two days of hearings the Senate investigation of the FCC’s television decision adjourned without recommending an investigation of the FCC. The next two months proved chaotic for the FCC and the broadcasting industry. Between March 22 and June 12, 1940, the agency rescinded experimental commercial development of television, promoted the development of FM at the expense of television, and issued its preliminary report against chain broadcasting. Whereas the Commission attempted to promote competition with these decisions, industry leaders (particularly RCA) saw a meddlesome government agency exceeding both its statutory authority and traditional role. The industry responded furiously, demanding that congressional leaders investigate the FCC. Barely two months after the Senate Commerce Committee looked into the FCC’s television decision, the committee again investigated the agency, this time through the hearing reviewing the renomination of commissioner Thad Brown.13 The Thad Brown hearing in June 1940 was notable for the attacks launched by Senator Charles Tobey (R-New Hampshire) against the FCC for its incompetence. Undeterred by recent Commission decisions, Tobey instead believed that RCA held unchecked power to the extent that it was able to control both the industry and the FCC. Tobey devoted considerable attention to revealing a 1932 incident in which RCA successfully bribed

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two former senators to use their influence to essentially protect RCA’s monopoly. The event that came to light in 1937 and prompted outraged legislators from both houses to demand a congressional investigation of the broadcasting industry, and which subsided only after an FCC investigation was promised. The negotiated investigation into the network monopoly failed to materialize until late 1938 and then was undertaken half-heartedly by the FCC, all of which convinced Senator Tobey that the Commission was unduly influenced by the industry. Tobey bolstered his distrust of the FCC–industry relationship by questioning Brown about his dubious behavior at a dinner party hosted by NBC executives (including NBC President Niles Trammell), following a favorable FCC decision toward an NBC affiliate. In addition to the obvious conflict of interest, there was considerable discussion about an interaction between Brown and a young lady who slapped him across the face and broke his glasses. The result was that Thad Brown was not reappointed as an FCC commissioner. More importantly Tobey successfully attacked the credibility of the Commission, despite the fact that the agency had just made three significant decisions intended to minimize the monopoly practices within the industry and, more specifically, had just released its initial report against chain broadcasting. At the end of 1940 when Fly and his New Dealers looked back on the year, it must have looked more successful than not. The agency made several significant decisions regarding both the technical and business development of the broadcasting industry. In doing so, they minimized monopoly power within the industry and successfully pushed the boundary of FCC regulatory authority. Certainly the industry set up quite a howl. Congress also took note of the Commission’s activities. Other than the unusually personal nature of attacks against Thad Brown, there were no indications that either the House or the Senate were interested in pursuing the FCC in unusual ways. The next year was markedly different. The Attack Intensifies: 1941 The year started with the House Appropriations Committee signaling its continuing interest in the FCC’s decisions regarding the development of television, FM, and the Chain Broadcasting Rules. Throughout the year the Appropriations Committee used every opportunity to question Commission decisions. In early 1941 committee member James Fitzpatrick (DNew York) imputed that the FCC created artificial obstacles to delay the development of television, an allegation that Fly strongly denied.14 Eleven months later, in December 1941, Fitzpatrick repeated his interest in the development of television, while Richard Wigglesworth (R-Massachusetts) questioned Fly about network–affiliate relationships and the status of the network monopoly case.15 Wigglesworth later proved to be an especially

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vehement adversary of the FCC, eventually aligning with Martin Dies and Eugene Cox in their crusades against the agency. This particular hearing is noteworthy as it was the first time the Commission faced serious questioning regarding the loyalty of its employees. From a conservative perspective, there seemed to be ample evidence of subversive influences on the agency. FCC regulations since 1939 were increasingly antibusiness, and the New Deal influences represented by Larry Fly, other commissioners, and many of the lawyers in the Legal Division were unmistakable. The suggestion of Communist influences seemed to start innocently during this Appropriations hearing when Everett Dirksen questioned FCC Engineering Chief E. K. Jett about the subversive activities of radio operators.16 Dirksen suggested that all licenses should be terminated, and all licensees should have to go through the licensing process again, except this time the licensing application would question whether the applicant engaged in subversive activities. Jett explained that the process would be far too difficult to undertake. In retrospect, it might have been better if Jett had responded more favorably to Dirksen’s suggestion. As was already established, however, it was the Senate Commerce Committee that continued to take the lead in investigating the FCC. Inquiries reached a crescendo in June 1941 when the Commerce Committee again launched public hearings, this time looking into the recently announced Chain Broadcasting Rules. The Commission’s ruling outraged industry leaders, and as witnesses such as Mark Ethridge made clear during testimony, the inquiry was motivated by the broadcasting industry petitioning Congress to renew its investigation of the FCC. Industry pressure resulted in Senate Resolution 113, introduced by senators Burton Wheeler (D-Montana) and Wallace White (R-Maine), in which the Senate Commerce Committee was requested to investigate whether the FCC exceeded its authority in establishing the Chain Broadcasting Rules.17 Industry representatives were straightforward in their demands that Congress should write a new law regulating the industry under the auspices of a newly formed commission with clearly delineated powers. It was an especially contentious hearing. As the resolution suggested, the principle goal of the investigation was to determine whether the FCC exceeded its statutory authority in promulgating the new rules. Larry Fly was the sole witness for the first four days of the hearing, during which he explained in detail the three-year process of the FCC’s network monopoly investigation, the evidence it amassed, and the statutory authority under which the Commission promoted the rules. Whether the Commission had the authority to regulate against a monopoly was a central issue in the hearing. Fly repeatedly argued there was plenty of evidence to indicate that NBC and CBS engaged in anticompetitive practices through their affiliate relationships and, further, the FCC had the legal right to

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regulate against monopolistic practices. Fly found political support for his assertions by citing statements made during congressional debates of the Radio Act of 1927 and the Communications Act of 1934, particularly by the bill’s proponents, Wallace White and Clarence Dill, during which both legislators made their opposition to broadcast monopolies very clear. Fly also turned to the Communications Act of 1934 for statutory authority. Representatives of the Mutual Broadcasting System supported the FCC, arguing that the new rules would go a long way toward leveling the broadcasting playing field and increasing industry competition. As testimony clarified, the FCC enjoyed a powerful combination of legal, political, and industry support for the Chain Broadcasting Rule. The majority of the broadcasting industry, however, cried out against the “first paralyzing blow” that would eventually kill the broadcasting industry.18 They vehemently contended that the Communications Act of 1934 did not give the FCC the authority to investigate the business practices of the industry; as NBC President Niles Trammell put it, the Chain Broadcasting Rules represented “arbitrary control of business practices.”19 It was an argument that found support from Wallace White, one of the architects of the original Radio Act of 1927. The industry further asserted that the FCC did not have the legal authority to declare a business practice a monopoly. As CBS President William Paley asserted, declaring a monopoly was a decision only a court could make,20 hence the FCC usurped judicial authority by functioning as judge and jury in finding the networks guilty of monopolistic practices. A long procession of attorneys and network affiliates bolstered industry claims against the FCC, accompanied by complaints from other noteworthy witnesses, such as FCC commissioner T. A. M. Craven and NAB President Neville Miller. After a month of hearings and considerable venting of anger and frustration, the Senate investigation of the FCC closed. No laws were passed, the 1934 Communications Act was not revised, not even an admonishment against the Commission was issued. Nonetheless, it was clear the FCC was on notice. In the space of only 13 months the agency was the subject of three major Senate investigations. Although the inquiries generally resulted in senatorial acceptance of the FCC and its decisions, it was nonetheless clear that senators were keeping a close eye on the agency. The moderate, judicious tone adopted by the Senate Interstate Commerce committee in this hearing must have been a welcomed relief for the FCC, which was subjected to increasingly antagonistic investigations by various House of Representatives committees. Communists in the Commission? One of the most significant attacks against the FCC was launched by a member of the House in November 1941 and eventually embroiled the

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House Appropriations and Un-American Activities Committees and the Senate Appropriations Committee in an investigation of Communist influences at the FCC. These committees were particularly interested in a newly formed division of the FCC, the Foreign Broadcast Monitoring Service (FBMS). As the federal government continued its national defense efforts during 1941, the FCC made its preparations for the seemingly inevitable global conflict to come. The Commission had a unique service to offer the United States: the ability to monitor the radio signals transmitted and received by any country. Toward this end, in the fall of 1941 the FCC began augmenting its Foreign Broadcast Monitoring Service, a division within the Agency that analyzed transcripts of radio broadcasts originating in Germany, Italy, and regions under Axis control.21 Analyses were written and distributed as reports to a limited number of high-ranking government officials and agencies. Considered highly classified and significant work, the FBMS employees were privy to information that was crucial to defense preparations and, after December 7, 1941, considered essential wartime information. The FCC invited Dr. Goodwin Watson to join the agency as the head of the FBMS in November 1941. The commissioners believed that Watson’s considerable expertise in the psychology of propaganda would be an invaluable asset for analyzing Axis messages. Watson enjoyed a national reputation as a social psychologist, the author of more than 200 books, scholarly articles, and book chapters. His national reputation was based mostly on his scholarly activities, but he was well known as a political liberal who, during the 1930s, frequently criticized the American social, political, and economic systems’ inability to cope with the ill effects of the Depression. It was a fairly common philosophy held by members of the academy during the 1930s.22 Furthermore, Watson’s sociopolitically liberal philosophies were deeply rooted in his ardent Christianity (he was also an ordained Methodist minister); he was committed to improving the lives of all American citizens, but particularly ethnic and racial minorities, women, and workers who suffered the greatest during the Depression.23 His travels within Soviet Russia during the early 1930s confirmed Watson’s belief that the United States was ineffective in meeting the needs of its people. Upon his return to the States, Watson became deeply involved in social activities intended to improve America’s plight either directly, as with his formation of the Consumers Union, or indirectly, through his support of many liberal-minded groups. Watson, like many intellectuals in the coming years, would be forced to account for his political liberalism when he would be accused of being a Communist. Although Watson eschewed Communist and Socialist policies, he frequently found himself in the company of individuals who supported more radical politics. Their politics were different than his own but their mo-

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tivations were the same: to help the disenfranchised. One such person was J. B. Matthews, an outspoken and aggressive Communist and founder of the Consumers Research organization.24 Watson and Matthews were acquaintances who met occasionally at meetings or events, but their association ended when Matthews’ Consumers Research employees went on strike against him and joined Watson’s Consumers Union. According to Watson, Matthews harbored deep resentment against him for the loss of his employees and the demise of his organization, but Watson thought little of it until 1942 when he faced the accusations of the House UnAmerican Activities Committee and its lead investigator, J. B. Matthews.25 Like many United States citizens in 1941, Watson wanted to contribute to the defense of his country. When he found himself courted by the FCC to become the chief of the Foreign Broadcast Monitoring Service, he agreed that his expertise in the social psychology of propaganda could be effectively utilized at the Commission. While his family remained in New York City, Watson moved to Washington, D.C., took a 50 percent pay reduction, and began his leadership at the FBMS, dedicated to putting his expertise to work for his country’s benefit at a crucial time. Concomitantly, the Commission invited Dr. William E. Dodd, Jr., to join the Foreign Broadcast Intelligence Service as an assistant news editor. After completing his History doctorate in 1933 at the University of Berlin, Dodd became involved in the International Peace Campaign and, soon thereafter, was employed by the American League for Peace and Democracy in 1937.26 After a short period working at the Modern Industrial Bank as a radio commentator, Dodd was hired by the FCC “to read [transcripts of foreign broadcasts] and pick out items that . . . would be of news interest to the various Government departments.”27 With the addition of Watson, Dodd, and others, Larry Fly was certain the FBMS was a top-notch agency division, providing important and useful information. The remaining six commissioners agreed with Fly, later asserting that Watson, in particular, was virtually irreplaceable.28 As Commissioner Clifford Durr subsequently explained, “Watson and his group would go through [the notes of foreign broadcasts] and see what political significance they could get out of it. Watson got so damn good, he’d call the turn on a lot of German military operations from their propaganda broadcasts.”29 Not everyone in Washington was pleased with the appointments. Representative Martin Dies (D-Texas), the fervent leader of the House Special Committee to Investigate Un-American Activities (commonly known as the Dies Committee), who developed a national reputation as ardently anti-Communist and anti-New Deal by 1941, was particularly distressed by Watson’s federal employment. Dies publicly expressed his displeasure in a letter to Larry Fly that was released to the press before it was received at the FCC.30 It was a strongly worded attack on Watson as a “propagan-

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dist for communism and the Soviet Union.”31 For two pages Dies outlined the basic evidence he held that “proved” Watson’s Communist sympathies, which consisted primarily of affiliations with “Communist front” organizations and publications with “questionable” philosophies. Dies offered to allow Fly to review the complete Watson file held by the Dies Committee and strongly suggested to the FCC head that Watson should be fired without delay. Fly immediately responded to Dies’ missive by strongly defending Watson and his importance to the FCC’s mission, refusing to look at Dies’ “evidence,” and dismissing Dies’ accusations. Privately, however, Fly initiated an internal investigation of Watson led by newcomer Commissioner Clifford Durr, himself an enthusiastic New Dealer. As a result of his inquiries and analyses, Durr concluded that Dies’ attack was baseless. During an executive session of the FCC to discuss Watson’s employment, commissioners Craven, Case, and Payne expressed concern that Watson’s continued employment would damage the Commission’s increasingly fragile relationship with Congress. But Durr, Fly, Wakefield, and Walker agreed that Dies’ attack was unwarranted and decided to support Goodwin Watson.32 Hence, a politically contentious year ended on a hostile note. As was clearly communicated by attention from the House Appropriations and Un-American Activities Committees, the Commission was being subjected to increasingly aggressive attacks. Although the Senate Interstate Commerce committee responded in more measured tones, it, too, bowed to both industry and political pressure to investigate the Commission. New Deal regulatory activity at the FCC drew considerable industry and political fire. The agency managed to dodge most of the partisan bullets, but the coming year proved to be more dangerous than the previous two. Escalating Hostilities: 1942 The controversy surrounding Watson and Dodd followed the FCC into the new year. In January 1942, the House Appropriations committee questioned Fly about the FBMS, an early indication that someone other than Martin Dies was paying attention to the FBMS.33 As it soon developed, the committee had more than just a passing budgetary interest in the FBMS. The dispute between Larry Fly and Martin Dies regarding FCC employment of Goodwin Watson escalated following their public exchange of heated correspondence in November and December 1941. In January 1942 Newsweek published a brief note in which it reported that “the FCC’s short-wave monitoring service has found that Rep. Martin Dies is the American most frequently quoted by the Axis radio in programs beamed to this hemisphere. They emphasize his anti-Communist statements.”34 Not surprisingly, Dies was infuriated at the apparent complicity of the

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FBMS with linking him with fascists. Privately, Dies sent a telegram to Fly naming Watson as his attacker. Publicly, Dies questioned whether Watson retaliated against Dies by releasing the information to Newsweek.35 Fly publicly rebutted Dies’ accusations, asserting that the broadcasts and resulting analysis had been completed a full month prior to Watson joining the Commission. The Newsweek report was a significant moment in the growing tensions between the Dies Committee and the Commission. A political dispute that could have been handled with finesse assumed emotional and personal proportions as a result of this report. Moreover, the public sniping in early 1942 was indicative of the political maneuvering underway to investigate Goodwin Watson’s appointment to the FCC and, more broadly, the FCC itself. Displeased with Fly’s refusal to fire Watson, Dies developed another strategy to eliminate him from the FCC. In January 1942 the House Appropriations Committee questioned Larry Fly about the FCC’s FBMS. Later that month the committee released its approved budgets for independent agencies for 1943, including the FCC. The first version of the House bill contained a clause that specifically stated “that no part of any appropriation contained in this Act shall be used to pay the compensation of Goodwin Watson.”36 It was a bold move on the part of the House Appropriations Committee, which was responding to Dies’ political pressure. On February 4, 1942, Fly, Durr, and Watson appeared before a Senate Subcommittee on Appropriations to contest the amendment,37 arguing at the outset that Watson: has committed no offense. . . . He is guilty of no crime and has not been even charged with any crime. . . . He is doing a very valuable job for the Commission. He has an undeviating loyalty to the Government. He is not a member of the Communist Party or of any foreign party or organization. He has never advocated the overthrow of government by force; he has never advocated the overthrow of government by any means.38

The remainder of the hearing established a pattern that became familiar to Watson and eventually to Dodd as well. The Subcommittee members peppered Watson with questions about his activities and writings over the past 10 years. Taking sentences out of context from articles written a decade earlier, the legislators asserted that Watson’s meaning was clearly pro-Communist, despite Watson’s assurances that they were not intended to be so. Convinced of his Communist sympathies, some committee members turned to Watson’s membership in a variety of organizations which Attorney General Francis Biddle labeled “Communist fronts,” paying particular attention to the American League for Peace and Democracy. Fly eventually concluded his remarks by prophetically asserting that the Senate Appropriations Subcommittee had before it “a sort of bill of attain-

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der,”39 an unconstitutional legislative action in which Congress deprives a citizen of life/liberty/property without due process. Some legislators were unmoved by Fly’s protestations. Only two days after the subcommittee hearing in February 1942, Watson and Dodd (who was publicly mentioned for the first time) were condemned on the floor of the House, and a list of their activities in specific “Communist front” organizations was inserted into the public record.40 It is unclear why the Dies Committee targeted William E. Dodd, Jr. Unlike Watson, Dodd was not a nationally recognized academic, so his scholarly influence could not have been an issue. It is possible that his employment by the American League for Peace and Democracy may have attracted attention, but he was one among many of that organization’s employees. It is more likely that he drew notice when J. B. Matthews discovered Goodwin Watson at the FCC and started nosing around for other “Communists.” Dodd was hired at virtually the same time as Watson and held a similarly sensitive post at the Commission. Between February and May 1942, FCC employment of Goodwin Watson and William Dodd hung in political suspension. In the meantime, another House committee decided to investigate the FCC. As the Watson–Dodd controversy became the subject of back-room politicking, the House Interstate and Foreign Commerce Committee scheduled its own investigation of the agency. In April 1942 it opened hearings on HR5497, the so-called Sanders Bill to amend the Communications Act of 1934.41 Unlike nearly every investigation to date, in which representatives of the FCC led the list of witnesses, this hearing spent its entire first month listening to industry representatives berate the Commission and entreat Congress for an overhaul of the Communications Act of 1934. Witness after witness fumed about the FCC’s recent decisions, particularly the Chain Broadcasting Rule. Neville Miller of the NAB waxed eloquently about the positive social, political, economic, and wartime contributions of the radio industry, then beseeched Congress to revise the Commission’s licensing powers so it could not “aggrieve or adversely affect the interest of any licensee, applicant, or other person” in its decisions.42 William Paley and Frank Stanton of CBS similarly spoke movingly about their network then turned angrily toward the FCC. “When the network rules were instigated,” Paley testified, “we then saw for the first time a tendency or desire on the part of the Commission to seize powers which we thought were never intended for the Commission by Congress. . . . [T]hrough the action by the Commission we see an appetite for more power.”43 Rattled by the FCC’s incursion into regulating business practices, industry leaders proposed a variety of changes to drastically revamp the FCC and weaken its authority. They entreated Congress to change the Communications Act of 1934. They did not want the agency to have

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the authority to regulate business practices in any way. They further wanted revision of the appeals process, giving anyone the right to appeal an FCC decision, rather than just those directly affected, a direct response to the Chain Broadcasting Rule in which only radio stations had the right to appeal the rule. The networks, who were not licensed by the FCC nor in any other way directly regulated, did not have the right to appeal the Chain Broadcasting Rule within the Commission, despite the fact that it had significant consequences for them. The networks enjoyed considerable support from Commissioner T. A. M. Craven, who was particularly outspoken against the Chain Broadcasting Rule. The NAB promoted the complete reorganization of the FCC, whereas the Federal Communications Bar Association encouraged revision of the hearings process at the agency. Even former FCC chair Eugene Sykes believed that the Commission should be reorganized so the leadership was a rotating one-year appointment rather than a permanent one. After a month of listening to industry lamentations about the FCC’s escalating intrusions, the House Interstate and Foreign Commerce Committee finally allowed Commission supporters and representatives to present their side. Fred Weber, the General Manager of the Mutual Broadcasting System and a strong proponent of the Chain Broadcasting Rule, explained the positive aspects of the rule to the committee members. Larry Fly spent many of those June 1942 days before the committee testifying against the proposed changes, championing FCC decisions, and once again devoting considerable attention to reviewing the decision-making process surrounding the Chain Broadcasting Rule. Over the past year Fly had spent a substantial amount of time before similar committees justifying his agency’s decisions. He was clearly becoming exasperated. Using the sort of colorful language he often used during congressional hearings, Fly told the legislators that “all of the big broadcasting companies . . . make a big noise and blow the big wind.”44 He angrily continued, “Every time one of these big broadcasters runs into something he does not like . . . [he runs] to Congress and start[s] investigations.”45 By the end of July, the hearings adjourned and, once again, resulted in no legislation. But the Watson–Dodd problem remained. Their appropriations troubles temporarily ended on May 6, 1942, when, after considerable political wrangling by Fly and Durr during the spring, the House Independent Offices Appropriations Bill of 1943 was finally debated and defeated on the floor of the Senate.46 Senators were clearly uncomfortable with the House’s public attack on Watson. Senator Alben Barkley (D-Kentucky) astutely noted both the personal and political implications of the action during the debate, stating that “it is brutal and arbitrary to undertake to legislate a man out of office. . . . The appointment of men to public office is an executive function, not a legislative function, and the whole history of Congress, . . . indicates that it has frowned upon provisions of this kind

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which are, in fact, bills of attainder.”47 As procedure dictated, however, the bill returned to the House Appropriations Committee for review, and the political maneuvering began anew. Watson sent letters to members of both the House and Senate Appropriations Committees, offering to meet with them, explain his positions, and answer their questions. Similarly, Durr sent letters intended to assuage legislators’ concerns.48 Fresh from their victory in preventing the rider from gaining Senate approval, the two men felt invigorated and deeply satisfied that they managed to prevent legislative action against an individual American citizen. As Watson wrote to Durr a week after the Senate vote in his favor, “I realize how completely the Senate victory depended upon you, and wish there were some way to express appreciation more adequately. My guess would be that the fact that you have made this type of ‘rider’ so unlikely in the future, may be your biggest compensation.”49 As later events revealed, however, the 1942 attack on Watson was simply the preliminary round. Martin Dies was still smarting from the perceived personal attack, and powerful alliances within the House of Representatives were reorganizing their campaign against the FCC. War on the Home Front: 1943–1945 Congressional troubles for the FCC escalated to unprecedented levels in 1943. The year started for the FCC when Fly was called before the Appropriations subcommittee considering independent offices budget requests for 1944. Richard Wigglesworth and Joe Starnes hammered away at the FCC chief, demanding answers about the loyalty of William Dodd and a new subject of concern, Frederick Schuman.50 Only four days after this subcommittee hearing the House of Representatives passed Resolution 21 on January 19,51 which called for an investigation of the Commission and created a select committee led by Eugene Cox (D-Georgia) to undertake the review. The Cox Committee was underway, and its examination of the FCC developed into one of the nastiest congressional investigations of the twentieth century. Watson and Dodd With the Cox Committee demanding the Commission’s attention, FCC employment of Watson and Dodd seemed to have disappeared until Martin Dies launched a stinging attack on the floor of the House in February.52 Still vexed by the Newsweek report that appeared a year earlier linking him to fascists, Dies was convinced more than ever that individuals in the FCC provided the information to the news magazine because his “committee had just exposed some of the officials in that Commission, and in their attempt to fight back or to discredit the committee this so-called

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report was [given] to Newsweek.”53 According to Dies, the report “came from those in the Commission who wanted to smear” him.54 Dies renewed his campaign against Watson, revealing that in the year since Watson’s original investigation, the FCC had increased his salary by almost $1,000 per year. In addition to Watson, the legislator named William E. Dodd, Jr., and Frederick Schuman as co-conspirators. Dodd was so dangerous, according to Dies, that the State Department refused to grant him a visa so that he might travel to England, and Schuman held “violent political views.”55 Once again, the goal of Dies’ attack was to persuade both the House Appropriations Committee and the entire House membership to support an amendment to the House Independent Offices Appropriations Bill of 1943 that specifically prevented federal dollars from being spent to pay the salaries of Watson or Dodd.56 Showing considerably less subtlety than that evidenced in his November 1941 letter to Fly, Dies now specifically told the FCC from the floor of the House, “If you do not get rid of these people we will refuse to appropriate money for their salaries.”57 Dies’ colleagues in the House, however, did not line up behind his threat. Four days after his speech before the House, on February 5, 1943, Representative Henry M. Jackson (D-Washington) expressed discomfort with the idea of “branding these men in public print as [Communist], and that while they are not charged specifically with a crime, perhaps, to all intents and purposes they will be branded as such and their reputation [sic] destroyed.”58 Jackson’s sentiments prevailed, and the House rejected the amendment by a narrow vote of 153–146.59 Unable to attain adequate support for his rider, Dies persuaded the House to support the formation of a Special Subcommittee of the Appropriations Committee that would investigate his charges of the un-American activities on the parts of Watson and Dodd.60 Under the leadership of John Kerr (D-North Carolina), the so-called Kerr Committee immediately sprang into interrogative action, becoming the fifth House panel to investigate the FCC in three years. Over the course of a two-week period in late March and early April 1943, the House Special Subcommittee on Un-American Activities and the House Special Subcommittee on Appropriations called Goodwin Watson and William E. Dodd, Jr., before their respective bodies. The rules of engagement clearly favored the committees. All the hearings were held in executive session, hence neither the public nor the press were allowed to attend. Neither Watson nor Dodd were allowed legal representation during their testimony, although an FCC attorney was admitted to—but not allowed to participate in—the proceedings. The witnesses were not allowed to read statements into the official record unless benevolently granted permission to do so by either Joe Starnes, the chair of the UnAmerican Activities special subcommittee, or John Kerr of the Appropriations subcommittee. The charges against the “accused” were not formally

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made because, according to Starnes, “they are in the Congressional Record, which is a public record, and they were made by Mr. Dies on the floor of the House.”61 Although the “accused” may have been somewhat unclear about the nature of the evidence against them, the Un-American Activities Committee graciously and generously shared its voluminous collection of evidence with the hastily organized Appropriations subcommittee. Less than two months after Dies’ initial pronouncements on the floor of the House, and only six weeks after the formation of the Appropriations subcommittee, the two bodies began calling witnesses. They turned first to the chief of the FBMS, the man against whom both Dies and J. B. Matthews held a personal vendetta: Dr. Goodwin Watson. Appearing before the subcommittee on April 1, 1943, the tone of the proceedings made it clear that this was no April Fools’ joke. The tenor of the hearing started badly, with Watson asking permission to make a statement so that the hearings might be held “in accord with the procedures of the Constitution.”62 Incensed by Watson’s audacity, the subcommittee members assailed his organizational memberships and scholarly writings. The list of suspect organizations with which Watson was affiliated was long, including the American League for Peace and Democracy, the American Committee for Democracy and Intellectual Freedom, the American Student Union, Consumers Union, Descendants of the American Revolution, and the International Workers Order (to name a few), all of which were listed by Attorney General Francis Biddle as fronts for Communist activities. Watson’s attempts to explain his affiliations with these organizations, memberships that invariably ended when he realized they were under Communist influence, fell on deaf ears. Instead, the subcommittee members turned to analyzing Watson’s scholarly writings. In classic myopic style, the subcommittee members (following the lead of investigators such as J. B. Matthews) focused on misinterpreting minor passages out of hundreds of books, articles, and chapters, all of which, according to the Committee, revealed Communist ideology. Again, Watson’s attempts to explain his work went unheard. He later explained that the Subcommittee members “weren’t interested in explanation. They were only interested in whether they could find some point, some place where they could get leverage to support their case.”63 With four days to contemplate Watson’s experience before the subcommittee, Dodd must have wondered about his future when he arrived on April 5, 1943, to answer the committee members’ questions. His experience mirrored that of Watson, although Dodd took a more conciliatory approach to the event. Dodd was questioned about his affiliations with a wide variety of organizations, particularly the American League for Peace and Democracy. Like Watson before him, Dodd asserted that the organizations were not Communist controlled during his association. With barely a break to catch their breath, Watson and Dodd were called

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to testify before the Kerr Committee, investigating their “fitness for continuance in federal employment.”64 As with the subcommittee on unAmerican activities, Watson received special attention from the Kerr Committee, which questioned him for two full days on Friday April 9 and Monday April 12, 1943. Following the path of previous questioning, the Kerr Committee focused its attention on Watson’s organizational affiliations and scholarly writings. Watson attempted to contextualize his activities and writings within Depression-era America by explaining his frustration with the federal government’s inability to respond to the economic and psychological needs of its citizens. His perception of an ineffective American government caused him to believe that more active government intervention in its citizens’ lives, like he witnessed in Soviet Russia, was a more effective path for solving the problems of the Depression. Despite his protestations that he no longer believed the Soviet system to be effective or even legitimate, and that he never advocated an unconstitutional change in government, the Kerr Committee was ready to brand him a Communist. Dodd fared no better when he appeared before the Kerr Committee on April 13, 1943, and, in fact, was singled out for particular scorn when the Committee questioned him regarding his draft status reclassification, an action the FCC took without Dodd’s knowledge to retain his services at the Commission.65 Despite Dodd’s assurances that he did not knowingly belong to any organization controlled by Communists, and that he was no “fellow traveler,”66 the Kerr Committee was unimpressed with Dodd’s guarantees. Rather, as was the case with Watson, the Committee was persuaded that Dodd’s writings and past employment proved his Communist affiliations. On April 21, 1943, the Kerr Committee released its report on Watson’s and Dodd’s “fitness for continuance in federal employment,” finding that both men were “unfit for the present to continue in government employment.”67 Neither man responded publicly to the decision. Indeed, over the coming summer months, the individuals and their reputations became secondary to the developing power struggle between the conservative House of Representatives on one side, and the liberal Senate and Executive Office on the other, the constitutionality of which was eventually decided by the Supreme Court. Having received the Kerr Committee’s report and, persuaded by its conclusions, the House once again attempted to prevent payment to Watson and Dodd. Unsuccessful in earlier attempts to attach a rider to the 1943 Independent Offices Appropriations Act, the House decided to follow a similar tactic by attaching Section 304 to the Urgent Deficiency Appropriations Act of 1943, which specifically forbade the use of any of the emergency appropriations from paying Watson’s and Dodd’s salaries. It was a politically decisive move because these appropriations were vital for maintaining U.S. military pursuits in World War II. On May 18, 1943,

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the House passed the Act, with Section 304, by a vote of 307–62.68 Following procedure, the Bill was sent to the Senate Appropriations Committee for approval. The Senate Committee took issue with the amendment and deleted Section 304 from the Urgent Deficiency Act. The Act, minus Section 304, received full Senate approval. The Act was remanded back to the House Appropriations Committee, which reinstated Section 304 with full House support and resubmitted the Act back to the Senate Appropriations Committee. This same process was repeated twice more, each time the Senate refusing to include Section 304, and each time the House returning it to the Senate with Section 304 restored. The stalemate was broken only when the Senate, desperate for the federal funds held hostage by the House, agreed to a “compromise” in late June 1943, whereby Watson and Dodd could continue in federal employment until November 15, 1943. After that date their employment could continue only if their appointments were resubmitted by President Roosevelt and confirmed by the Senate. Equally desperate for the money, Roosevelt signed the Urgent Deficiency Appropriations Act of 1943 under protest on July 13, 1943. The President wasted no time in publicly castigating the House for its actions and accusing the representatives of “encroachment on the executive and judicial branches” of government by passing what amounted to a bill of attainder.69 Two months later he sent an official message to Congress in which he asserted that the rider was “not only unwise and discriminatory, but unconstitutional.” Roosevelt wrote that if he had been able to veto the Act without threatening the pursuit of World War II, he would “unhesitatingly have done so.”70 Roosevelt’s remarks highlighted the conflict between the New Dealers and the House, whose sentiments were with the conservative backlash against the New Deal. Watson and Dodd, “pawns in a political test of strength,”71 did not surrender to the extreme pressure of the Congressional attacks. Within a month after Roosevelt’s message to Congress, Fly sent a letter to the President informing him of the FCC’s plan to retain both Watson and Dodd on staff beyond November 15, thereby allowing the two men to establish grounds on which to pursue a lawsuit against the House of Representatives.72 As promised, both men remained at the FCC performing their government jobs until November 21, 1943, a week beyond the date for which they could be legally compensated. On December 3, 1943, Watson and Dodd filed a lawsuit against Congress for unconstitutionally violating the executive branch’s right to make appointments and for passing a bill of attainder.73 In a highly unusual move, the Attorney General, generally expected to represent Congress in such judicial matters, agreed that Section 304 was a bill of attainder and refused to represent Congress. The House of Representatives was forced to appropriate money to hire a lawyer for its own defense.74 In its fight against the New Deal FCC, the House

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now found itself in a constitutional struggle for power against the Senate and executive branch, and the case began federal judicial review in late 1943. The Wheeler/White Bill As the Watson–Dodd employment drama played itself out during November 1943, the FCC once again found itself the subject of yet another congressional investigation. Already the subject of unrelenting congressional attention as the result of the Chain Broadcasting Rule and other decisions, the year’s political struggle over Watson and Dodd magnified legislative attention toward the Commission. Senators Burton Wheeler and Wallace White introduced a bill to amend the Communications Act of 1934, the so-called Wheeler/White Bill,75 after which the Senate Interstate Commerce Committee once again scheduled hearings to review the proposed legislation. Following soon after the FCC’s battle with the House Appropriations and Un-American Activities committees, Fly once again trekked to a hearing to assure legislators that the Communications Act did not need to be revised; betraying both anger and weariness, Fly asserted that “seldom in history has any set of regulations had the detailed and painstaking attention in the various forums that might review a matter such as these very regulations.”76 Using familiar arguments repeated many times before various committees and subcommittees, Fly assured the senators that the FCC had not exceeded its authority and, in fact, the U.S. Supreme Court recently upheld the constitutionality of both the Chain Broadcasting Rule and the Commission’s authority to create and implement it.77 Fly further revealed that the apocalyptic-like effects of the Chain Broadcasting Rule predicted by the networks were not occurring. Taking an offensive posture, Fly assured the senators that they were being manipulated by broadcasting corporate interests who controlled the National Association of Broadcasters and its president, Neville Miller. As Fly made very clear, the NAB did not represent all broadcasters but only NBC and CBS, hence the NAB should not be interpreted as an independent organization representing broadcasters. The usual cast of witnesses decrying the FCC’s unwarranted power followed Fly, including T. A. M. Craven, Neville Miller, William Paley, and Niles Trammel. And, as usual, the hearings did not result in new or revised legislation. By late 1943 the Senate was losing its interest in investigating the FCC. A variety of factors likely contributed to the Senate’s loss of interest: the importance of fighting more significant battles in Europe and the Pacific, a stronger political affiliation with transformed New Deal philosophies than legislators in the House, and the growing understanding that the FCC had not exceeded its authority, although it had frightened and angered a powerful industry. In any case, the Senate turned its attentions away from the Commission.

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Cox versus Fly In the late fall–early winter of 1941, just as the Watson controversy was unfolding, an FCC investigator traveled to Albany, Georgia, to continue an inspection of alleged unethical business transactions by a former FCC commissioner. While searching through the financial records of radio station WALB, the investigator discovered check #178 in the amount of $2,500 for “services rendered” and written to E. E. Cox. The check caught the FCC man’s attention for two reasons. First, it was a substantial amount of money (the median annual income in the United States was approximately $1,500).78 Second, and more importantly, the check was written to Eugene E. (“Goober”) Cox, a member of the Georgia delegation to the U.S. House of Representatives and a powerful man in Washington, D.C. The FCC investigator made a Photostat copy of the check and gave it to his superiors at the Commission, who recognized that the check might be evidence of criminal activity because it was a violation of federal law for a member of government to accept payment to influence decision making. The Commission launched an investigation of the check, determined to learn what, if anything, “Goober” Cox did to warrant payment of such a sizable sum of money. When Cox learned the agency was investigating the check and his activities, he responded immediately. In mid-January 1942 on the floor of the House he passionately urged Congress to investigate the FCC, referring specifically to Larry Fly as “the most dangerous man in the government [who] maintains an active and ambitious Gestapo.”79 Less than a week later Cox assured his colleagues that “there is nothing personal in this suggestion [to investigate the FCC] on my part. I have nobody to punish.”80 Cox’s request for an investigation languished in committee; some at the Commission believed it was intended to be understood as a threat, warning the agency not to pursue investigation of the $2,500 check. But the FCC continued its inquiry and soon learned that Cox actively sponsored WALB before the Commission. Every lawyer at the FCC understood that this was a clear-cut criminal case. The agency decided to take action. It scheduled a relicensing hearing for WALB in the fall of 1942, turned over the check and its investigation file to the Department of Justice, and waited for charges to be filed against “Goober” Cox. The act of submitting their evidence against Cox was anything but straightforward. Legally and ethically the Commission was obliged to turn over the material, but it was a politically risky move. Already subjected to numerous House and Senate investigations, and contemporaneously at odds with the Dies Committee, the FCC placed itself in a politically precarious position by submitting the information to Justice, a fact that was recognized by The New Republic magazine.81 Leading conservative members of the House actively searched for ways to undermine

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the Commission and its New Deal regulations. Moreover, Cox was a powerful man on the Hill with equally influential allies such as Martin Dies, Speaker of the House of Representatives Sam Rayburn, Joe Starnes, Richard Wigglesworth, John Kerr, and many others. Despite the power enjoyed by Cox and his political allies, Larry Fly and his commission gave the information to the Justice Department. Once again Cox responded with fury. In early January 1943 he renewed his demand for a Congressional investigation of the FCC, complaining that the agency had “completely established terroristic control of all media of communications”82 and describing the agency as “the nastiest nest of rats in the country.”83 Cox persuaded his allies to create the House Special Committee to Investigate the FCC in January 1943 and appoint him as its chair. With an appropriation of $60,000 to undertake the investigation,84 and Wall Street lawyer Eugene L. Garey as his general counsel, Cox undertook what quickly became known as the most vindictive, legally questionable, unethical, and embarrassing investigation conducted by the House of Representatives. The New Republic summarized the situation by saying, This is something like an all-time low in the moral level of Congress. One of its members is charged with a serious breach of ethics. The evidence is clear and above-board. It is offered not as part of a campaign against the congressman, but in line with the obvious duty of the FCC. And instead of looking into the charge, Congress appoints a committee to look into the FCC and makes the very man whose guilt is in question the chairman.85

The Nation claimed that “the honor of Congress and the political future of the New Deal are both involved in this scabrous affair. . . . Cox is prosecuting the FCC and through it, he hopes, the New Deal.”86 FCC general counsel Charles Denny characterized the investigation as “loaded for the purpose of doing damage to the FCC. And that was the whole tenor on which the chairman . . . and the counsel of the committee conducted themselves.”87 The Commission faced tough questioning before several committees in the previous three years, but nothing could have prepared it for the coming onslaught. Cox and his cohorts were determined to conduct an exhaustive investigation of virtually every aspect of the past four years of FCC activities. Highest on the list was an inquiry into war-related activities of the Commission, particularly the Radio Intelligence Division, the Foreign Broadcast Monitoring Service (motivated by the Watson–Dodd intrigue), and the War Problems Division of the Legal Division. When Larry Fly appeared as the first witness in July 1943, Cox demanded that Fly appear solely in his capacity as chair of the War Communications Board; he was not allowed to comment on general FCC activities (despite the fact that it

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was supposed to be an investigation of the FCC). Cox was particularly interested in probing the agency’s involvement and/or responsibilities regarding Pearl Harbor, especially the rumor that Fly was partially accountable for the attack on Pearl Harbor because he refused to submit to a request to shut down all Japanese-language radio stations in Hawaii.88 The committee was further incensed that a large number of FCC personnel received draft deferments. In addition to Pearl Harbor, the investigation turned its attention to virtually everything the FCC did during Fly’s tenure: the controversy with the FBI regarding fingerprinting communications workers, alleged abuses in licensing power (especially lengthy investigations into relicensing stations WNNY, WFTL, and WMCA), the alleged FCC predilection for harassing extreme right-wing (fascist) radio broadcasters while ignoring extreme left-wing (Communist) broadcasters, and inevitably, the Chain Broadcasting Rule and industry dissatisfaction with the Commission. When the hearings finally got underway in the summer of 1943, they were immediately contentious. The opening day of testimony with Larry Fly set the tone for nearly the entire hearing as Fly squared off against Cox and Garey, Fly accusing the Committee of making “grave charges [that were] broadcast by this committee” and Cox chastising Fly for refusing to answer questions and making speeches.89 Cox prevented FCC representatives from playing any role in the conduct of the hearings. FCC general counsel Charles Denny was often chastised by Cox for attempting to question witnesses or make statements, and at least on one occasion was escorted away from the hearings.90 From July 1943 until mid-December 1944, the Committee continued its investigation into FCC activities, including at least five executive sessions closed to the public and the press. As argumentative as they often were, the public hearings were a summer stroll compared to the behind-the-scenes maneuvering. Despite his public assurances to the contrary, the investigation was a barely concealed vendetta, with Cox and Garey conducting a spiteful, mean-spirited exploration into Larry Fly’s personal life from virtually the moment the committee was formed. Aware of Fly’s reputation for being a “man about town,” committee gumshoes retraced Fly’s travels throughout Tennessee while he served as the TVA general counsel. Using travel vouchers to locate specific motels, investigators traveled from one to another in April 1943 trying to find damaging information about Fly, being particularly keen to question motel owners and housekeepers.91 Investigator James Dunne unearthed evidence of an affair between Fly and a TVA lawyer named Bessie Margolin, excitedly reporting back to Garey that “Mrs. Fly had beaten the subject [Fly] and his companion [Margolin] on the street in Knoxville.”92 Following a detailed review of the travel vouchers (that included handwriting analyses to “prove” they were submitted by Fly), an investigator improbably named Bugeye revealed to Garey that “the

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total amount paid out by the Treasurer of the United States on these ‘Honeymoon’ vouchers is: $2478.33.”93 The Cox Committee investigators were giddy with excitement as they enthusiastically reported that “We will drive this bastard dizzy before we are finished with him.”94 Already caught with a $2,500 check, Cox didn’t think twice about blackmailing Larry Fly with the Margolin information. Colleagues noticed that Fly became unusually reticent; he shared information about the affair and the blackmail with very few of his FCC colleagues, most notably Clifford Durr.95 Throughout that spring of 1943, while the Cox committee investigated his agency and the Dies and Kerr committees investigated his employees, Fly struggled with whether to testify truthfully before the Cox Committee and suffer the possible scandal or acquiesce to Cox’s blackmail. Eventually, through a series of back-channel contacts, Fly received assurances from House Speaker Sam Rayburn that Cox would confine questioning to Fly’s public responsibilities at the FCC.96 Soon thereafter, Fly pugnaciously appeared before the Cox committee. The Cox Committee’s aggressive tactics were met by an equally determined Commission. The counteroffensive was led primarily by commissioner Clifford J. Durr, who developed a variety of strategies for responding to the questionable legal conduct of the hearings. Durr objected to the investigative extremes utilized by the Committee and finally balked when it requested his personal financial records. In a strongly worded letter Durr told Eugene Garey that the information was relevant only if the committee suspected that Durr accepted bribes, and if that was the case, the evidence should be turned over to the Justice Department for prosecution. But he, Durr, would not comply with Garey’s requests for personal bank records. Durr completed his counteroffensive by sharing a copy of Garey’s letter and his response with the press.97 Durr’s refusal to answer the questionnaire was a calculated attempt to force the Cox committee to subpoena him for testimony.98 If they did so, he would be ready with a statement in which he planned to publicly castigate the committee for its unconstitutional conduct, and in which he would reveal the true motivation for Cox’s investigation: the $2,500 check. When the committee failed to subpoena Durr, he took decisive action. In an unprecedented move, Durr petitioned Speaker of the House Sam Rayburn to remove Cox from leadership of the committee, citing the questionable legality of the $2,500 payment and the resulting conflict of interest in reviewing the activities of the FCC. Durr pointedly asserted that Cox “prejudged and condemned the Commission, its personnel and activities and has shown himself to be biased, prejudiced and lacking in the objectivity of mind.”99 In a further audacious move, Durr turned to the press. Carrying copies of the check, the FCC’s investigation of the Cox–WALB relationship, and the Rayburn petition, Durr went to Eugene Meyer, conservative publisher

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of the Washington Post. Meyer agreed to publish the story with the condition that the Post would get the scoop before Durr released the information to any other news media. As Durr hid in a movie theater the next day to avoid the press, the Post broke the story that the Cox investigation was motivated by the fact that the FCC had found evidence of Cox’s federal crime and Durr’s petition for Cox’s removal from the committee.100 Meyer bolstered the front-page article with a stinging editorial in which the publisher described the Cox Committee as a “mockery of justice.” Meyer further declared that “Congress cannot hope [to preserve democracy] if it gives narrow personal prejudices and interests precedence over the public welfare.”101 It was a harsh public rebuke of both Congress and “Goober” Cox. The struggle between the Committee and the FCC intensified. In midMay 1943, Durr took the unprecedented action of petitioning the House of Representatives to remove Cox from leadership of the committee because of conflict of interest.102 Throughout the summer as the hearings got underway and the FCC and the Cox Committee exchanged charges and countercharges, the press nearly unanimously castigated Eugene Cox and his House colleagues.103 The summer brawl reached its denouement when colleagues finally convinced Cox that he had to step down from his committee. In late September 1943, in a tearful address on the floor of the House, Cox acquiesced. “Day after day the poisoned shafts of slander have been driven through my heart,” he whimpered. “It is a difficult thing . . . for a man to sit silent under the lashes of slander and falsehood such as have been laid upon me.”104 Rayburn followed with a tribute to Cox’s patriotism and loyalty to Congress, but must have been quietly relieved that the man who threatened the reputation of the House was out of the spotlight. The committee to investigate the FCC came under the responsible leadership of Clarence Lea of California. The FCC was finally allowed to provide rebuttal testimony in the fall of 1943. In early 1944 Eugene Garey resigned from his position as lead counsel to protest what he believed to be the lack of commitment of the reformed committee. The committee finally reached the end of its term in late 1944 and was forced to present its final report in January 1945. Thousands of dollars and several damaged reputations later, the committee concluded virtually nothing. In a 53-page report, Lea reviewed the testimony of dozens of witnesses and accusations, concluding that the record indicated that there were problems with enforcing the vaguely written Communications Act of 1934. More than anything else, Lea surmised, the investigation and the years of controversy leading to it were the result of “innumerable bitter conflicts largely based on personal interests and animosities . . . [that] provoked exaggerated statements. Suspicions and rumors were converted into reckless charges. . . . Partisans of each side were parties to these bitter and vindic-

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tive activities which contributed more of confusion than enlightenment to the proceedings of the investigation.”105 The report was a vindication of sorts for the FCC. Although representatives Miller and Wigglesworth dissented from the majority view, the committee found no wrongdoing at the agency nor did it propose significant revisions of the Communications Act of 1934. The House of Representatives quickly put the whole affair behind it and moved on to the more pressing domestic issues involved in preparing for a postwar United States. The commission enjoyed another victory in November 1945 when the Washington, D.C. Court of Claims decided in favor of Watson and Dodd and ordered Congress to reimburse the men for their lost wages.106 Congress lost its appeal to the Supreme Court in June 1946 when the High Court ruled that “Section 304 falls precisely within the category of Congressional actions which the Constitution barred.”107 The Court further noted that previous Congressional acts established that “legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial are bills of attainder prohibited by the Constitution. Adherence to this principle requires invalidation of Section 304.”108 As a result of the Supreme Court decision, the federal government was forced to pay Watson and Dodd for the week they remained at work, and the House of Representatives momentarily lost its political fight to keep accused Communists off the federal payroll. CON CLUSIO N With Larry Fly at its helm, the FCC launched an ambitious plan of regulating the broadcast industry according to New Deal definitions of public interest and antimonopoly. The agency attracted the alarmed attention of business and government leaders alike in 1940 when it made its FM and television decisions and then punished RCA by rescinding a decision to allow limited commercial television broadcasts. The most controversial decision was the 1941 Chain Broadcasting Rule, and it resulted in the industry summoning all its legal and political influence to challenge the FCC. Indeed, the industry found many politicians who were sympathetic to their claims of FCC abuses. By the early 1940s the New Deal faced a growing number of opponents. Democrat and Republican conservatives used their influential committee positions to attack New Deal reforms, and the FCC became a favorite target of both the Senate and House. There is a clear correlation between FCC decisions and congressional investigations. Starting in early 1940, as the agency added policies that fundamentally redefined both the FCC’s authority and the business structure of the broadcasting industry, the number of investigations similarly increased. These congressional investigations were motivated by several

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factors, including conflicting political and business philosophies, personality clashes, and fears of progressive change. Moreover, as congressional attacks on the Commission increased, so too did the agency’s determination to fight, due, in no small part, to its fiery chair Larry Fly. As The New Republic declared, “the FCC is about the only agency left in Washington that still shows fight under congressional attacks.”109 Constantly fighting both Congress and the broadcasting industry took its toll on the Commission, however. The years 1940–1944 were spent in seemingly endless hearing sessions, both at the Commission and in the halls of Congress. By late 1941 and early 1942, the House of Representatives, in particular, grew increasingly belligerent in its attitude toward the Commission. The agency’s New Deal reforms drew stinging accusations that agency employees were Communists. In addition to its connection to the FCC, the Watson–Dodd controversy was a case study of the broader political struggles at hand. Political conservatives in positions of significant power hauled liberals before their committees and subcommittees. Conservatives like Dies, Starnes, and Kerr were considerably less interested in political debates than in publicly demonstrating against and castigating New Deal liberals as Communists. Because the FCC was the most visible New Deal agency in Washington, it became the focus of attention. The Cox Committee similarly concentrated on the FCC, but instead declared that the agency was corrupt. By November 1944, even Larry Fly couldn’t fight anymore; he resigned from his position as the chair of the FCC. On that early spring morning in 1943 as Goodwin Watson concluded his exhausting day of testimony before the House Un-American Activities Committee, he told his interrogators that “I have a feeling that a very deep injustice has been done. I hope that if it is in your power in any way to rectify it that you will take whatever steps may be taken in that direction.”110 Watson waited his entire life and never received the redress he deserved. Indeed, histories have all but forgotten the experiences of Goodwin Watson and William E. Dodd, Jr., at the hands of the Dies Committee. Yet the Watson–Dodd controversy was a landmark event in the developing political crisis known as the Red Scare, a microcosm of the major issues at work in conservative legislators’ attacks on American citizens and organizations. As such, the FCC played a pivotal role in the political and social crisis that enveloped the United States regarding the Red Scare. Throughout the period 1940–1944 as the agency simultaneously enacted New Deal reforms and fought back conservative challenges, it underwent fundamental changes that were anathema to the liberal politics that guided the agency’s policy making. Publicly recognized as one of the few New Deal agencies left in Washington, privately it began to respond to the attacks against its New Deal-inspired approaches to regulation. Repeated disparagements against politically liberal policies left the agency

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shell shocked, and as early as 1945 it began the slow transformation toward more conservative, pro-business regulations. The remainder of the 1940s and the 1950s witnessed an agency that increasingly acquiesced to industry wishes in its decisions and policy making. More importantly, however, the agency was forced to respond to the accusations of Communist influences at the FCC. As early as 1942, the search was on for subversives, both internal and external. NO TES 1. U.S. Congress, House, Special Committee on Un-American Activities, Investigation of Un-American Propaganda Activities in the United States: Hearings Before a Special Committee on Un-American Activities, 78th Cong., 1st Sess., 1 April 1943, 3237 (hereafter Un-American). 2. Ibid., pp. 3237–3238. 3. “FCC Inquiry Voted as Cox Assails Fly,” New York Times, 20 January 1943, p. 33; “FCC Fireworks,” Business Week, 22 May 1943, p. 34; Robert D. Leigh, “Politicians vs. Bureaucrats: The Case of FCC Chairman Fly and Congressman Cox,” Harper’s Magazine, January 1945, p. 99. 4. A large number of histories explain the Red Scare as a political backlash against liberals, most notably Richard Fried, Nightmare in Red: The McCarthy Era in Perspective (New York: Oxford University Press, 1990); Ellen Schrecker, Many Are the Crimes: McCarthyism in America (Boston: Little Brown Publishers, 1998). 5. David Caute, The Great Fear: The Anti-Communist Purge Under Truman and Eisenhower (New York: Simon and Schuster, 1978). 6. Caute, The Great Fear, p. 21. 7. U.S. Congress, House, Subcommittee of Appropriations, Independent Offices Appropriation Bill for 1941, 76th Cong., 3rd Sess., December 1939. 8. U.S. Congress, House, Subcommittee of Appropriations, First Supplemental Civil Functions Appropriations Bill for 1941, 76th Cong., 3rd Sess., August 1940. 9. U.S. Congress, House, Subcommittee of Appropriations, Second Deficiency Appropriations Bill for 1941, 77th Cong., 1st Sess., June 1941. 10. U.S. Congress, Senate, Subcommittee of Appropriations, Independent Offices Appropriations Bill, 76th Cong., 3rd Sess., January 1940. 11. U.S. Congress, Senate, Committee on Interstate Commerce, Development of Television, 76th Cong., 3rd Sess., April 1940. 12. Ibid., p. 45. 13. U.S. Congress, Senate, Committee on Interstate Commerce, Nomination of Thad H. Brown, 76th Cong., 3rd Sess., June–July, 1940. 14. U.S. Congress, House, Subcommittee on Appropriations, Independent Offices Appropriations Bill for 1942, 77th Cong., 1st Sess., January 1941. 15. U.S. Congress, House, Subcommittee on Appropriations, Independent Offices Appropriations Bill for 1943, 77th Cong., 2nd Sess., December 1941. 16. Independent Offices Appropriations Bill for 1942, January 1941. 17. U.S. Congress, Senate, Committee on Interstate Commerce, To Authorize a Study of the Radio Rules and Regulations of Federal Communications Commission, 77th Cong., 1st Sess., June 1941.

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18. “First Paralyzing Blow at Freedom of the Air in the United States,” published by CBS in May 1941. Several copies of the publication may be found in Box 164, Office of Executive Director, General Correspondence 1927–1946, FCC Archives, NARA, College Park, MD. 19. To Authorize a Study of the Radio Rules and Regulations of Federal Communications Commission, p. 460. 20. Ibid., p. 350. 21. As Clifford Durr later explained, the FCC monitored broadcasts throughout the world. Clifford J. Durr: Social Activism and Civil Rights, 1970, on pp. 110–111 of the Columbia University Oral History Research Office Collection, New York (hereafter cited as Durr interview). 22. Ellen Schrecker, No Ivory Tower: McCarthyism and the Universities (New York: Oxford University Press, 1986), p. 61. 23. Reminiscences of Goodwin Watson, 1970, on p. 49 of the Columbia University Oral History Research Office Collection, New York (hereafter Watson interview). 24. Watson interview, pp. 74–76. 25. Ibid. 26. Un-American, p. 3369. 27. U.S. Congress, House, Special Subcommittee on Appropriations, Hearings for Fitness for Continuance in Federal Employment of Goodwin B. Watson and William E. Dodd, Jr., employees of the Federal Communications Commission, and Robert Morss Lovett, an employee of the Department of the Interior, 78th Cong., 1st Sess., 9 & 12 April 1943, 120 (hereafter Hearings for Fitness). 28. Durr interview, p. 120. 29. Durr interview, pp. 115–116. 30. Durr interview, pp. 116–117. 31. Dies to Fly, 18 November 1941, Box 35, Folder 7, Clifford J. Durr Collection, Alabama State Archives (hereafter CJD). 32. Durr interview, p. 121. 33. U.S. Congress, House, Subcommittee on Appropriations, First Deficiency Appropriation Bill for 1942, 77th Cong., 2nd Sess., January 1942. 34. “Trivia,” Newsweek, 5 January 1942, p. 7. 35. Dies Challenges FCC as Aiding Foes, New York Times, 11 February 1942, p. 7; Fly to Dies, 11 February 1942, B38/F9, CJD. 36. Fly to Glass, 26 January 1942, B35/F7, CJD. 37. U.S. Congress, Senate, Subcommittee on Appropriations, Independent Offices Appropriation Bill for 1943, 77th Cong., 2nd Sess. 38. Ibid., pp. 61–62. 39. Ibid., p. 66. 40. U.S. Congress, House, Congressional Record (6 February 1942), pp. 1100–1102. 41. U.S. Congress, House, Committee on Interstate and Foreign Commerce, Proposed Changes in the Communications Act of 1934, 77th Cong., 2nd Sess., April/ June 1942. 42. Ibid., p. 5. 43. Ibid., p. 229. 44. Ibid., p. 753.

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45. Ibid., p. 754. 46. U.S. Congress, Senate, Congressional Record (6 May 1942), p. 3997. 47. Ibid. 48. Watson to Hendricks (Case and Woodrum), 11 June 1942, B35/F7, CJD; Watson to Green (Nye, Russell, Truman and White), 11 June 1942, B35/F7, CJD; Durr to Hendricks, 15 June 1942, B35/F7, CJD. 49. Watson to Durr, 14 May 1942, B38/F9, CJD. 50. U.S. Congress, House, Subcommittee of Appropriations, Independent Offices Appropriations Bill for 1944, 78th Cong., 1st Sess., January 1943. 51. U.S. Congress, House, Select Committee to Investigate the Federal Communications Commission, Final Report of the Investigation of the Federal Communications Commission, 78th Cong., 2nd Sess., January 1945. 52. U.S. Congress, House, Comments of Martin Dies, 77th Cong., 1st Sess., Congressional Record (1 February 1943), p. 474–486. 53. Ibid., p. 475. 54. Ibid. 55. Ibid., p. 480; quote regarding Schuman on p. 479. Of the three FCC employees (Watson, Dodd, Schuman) accused of subversion and called before the Un-American Activities Committee, Schuman received comparatively little attention and was quickly “released” from attention. The charges against Schuman are discussed in chapter 3. 56. Dies’ diatribe had a broader goal, in fact. During his speech he named 39 federal government employees, all of whom were alleged Communists and should, according to Dies, be stricken from the federal payroll. For the purposes of this essay, I concentrated solely on the named FCC employees. 57. U.S. Congress, House, Comments of Martin Dies, 77th Cong., 1st Sess., Congressional Record (1 February 1943), p. 486. 58. Ibid., p. 653. 59. Ibid., p. 655. 60. U.S. Congress, House, Comments of Martin Dies, 77th Cong., 1st Sess., Congressional Record (9 February 1943), p. 734. 61. Un-American, p. 3238. 62. Ibid., p. 3237. 63. Watson interview, pp. 88–89. 64. Hearing for Fitness. 65. Ibid., pp. 143–145. 66. Ibid., p. 127. 67. The Kerr Committee similarly found Robert Morss Lovett unfit for federal employment. Lovett was serving as a Government Secretary for the Virgin Islands. 68. “Two Agencies Cut in Deficiency Bill,” New York Times, 19 May 1943, p. 13. 69. John H. Crider, “Roosevelt Calls Lovett Job Rider an ‘Attainder’ Step,” New York Times, 14 July 1943, p. 1. 70. Samuel I. Rosenman, ed., “Statement of the President Condemning Rider Prohibiting Federal Employment of Three Named Individuals, 14 September 1943,” in The Public Papers and Addresses of Franklin D. Roosevelt (New York: Harper and Brothers Publishers, 1950). 71. Walter Goodman, The Committee: The Extraordinary Career of the House Com-

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mittee on Un-American Activities (New York: Farrar, Straus and Giroux, 1968), p. 148. 72. Fly to Roosevelt, 28 October 1943, Box 4, Reading File 7/1/43–10/31/43, Office of Executive Director/Chair Correspondence, FCC Public Records, Record Group 173, National Archives, College Park, MD. 73. Lovett Sues to Test Congress on Ban of Pay, New York Times, 4 December 1943, p. 11. 74. Congressional Record (18 February 1943), p. 10882. 75. U.S. Congress, Senate, Committee on Interstate Commerce, To Amend the Communications Act of 1934, 78th Cong., 1st Sess., November/December 1943. 76. U.S. Congress, Senate, Committee on Interstate Commerce, To Amend the Communications Act of 1934, 78th Cong., 1st Sess., November/December 1943, p. 13. 77. NBC v. U.S., 319 U.S. 190 (1943). 78. “Media Money Wage or Salary Income of Primary Families and Unrelated Individuals with Wage or Salary Income,” Historical Statistics of the United States, Colonial Times to 1970, Part One, U.S. Department of Commerce, Bureau of the Census (Washington, D.C.: Government Printing Office, 1975), p. 303. 79. U.S. Congress, House, Representative Eugene E. Cox speaking against the FCC, 77th Cong., 2nd Sess., Congressional Record, Vol. 88, Part 1, (28 January 1942), p. 794; “Cox Urges Inquiry on Fly and the FCC,” New York Times, 29 January 1942, p. 7; see also Robert D. Leigh, “Politicians vs. Bureaucrats: The Case of FCC Chairman Fly and Congressman Cox,” Harper’s Magazine, January 1945, pp. 97–105. 80. U.S. Congress, House, Representative Eugene E. Cox speaking against the FCC, 77th Cong., 2nd Sess., Congressional Record, Vol. 88, Part 1 (2 February 1942), p. 912. 81. “$2,500 Worth of Slander,” The New Republic, 12 July 1943, p. 37. 82. “Asks Inquiry Into FCC,” New York Times, 7 January 1943, p. 13; see also Congress, House, Representative Eugene E. Cox speaking against the FCC, 78th Cong., 1st Sess., Congressional Record, Vol. 89, Part 1 (19 January 1943), p. 235; “Cox Calls for Investigation of Fly,” Broadcasting, 11 January 1943, p. 11; “Finish Fight Looms in Cox-Fly Row,” Broadcasting, 18 January 1943, p. 12. 83. “FCC Inquiry Voted as Cox Assails Fly,” New York Times, 20 January 1943, p. 33; “FCC Fireworks,” Business Week, 22 May 1943, p. 34; Robert D. Leigh, “Politicians vs. Bureaucrats: The Case of FCC Chairman Fly and Congressman Cox,” Harper’s Magazine, January 1945, p. 99. 84. U.S. Congress, House, Providing for Expenses of the Select Committee Investigating the FCC, 78th Cong., 1st Sess., H. Res. 122, Congressional Record, Vol. 89, Part 1 (18 February 1943), p. 1109; “House Allots Dies $75,000 for Inquiry,” New York Times, 19 February 1943, p. 38. 85. “$2,500 Worth of Slander,” The New Republic, 12 July 1943, p. 38. 86. “Mr. Biddle is Afraid,” Nation, 22 May 1943, p. 735. 87. Reminiscences of Charles Denny, 1970, on pp. 21–22 of the James Lawrence Fly Project, Columbia University Oral History Research Office Collection, Columbia University, New York (hereafter cited as Denny oral interview). 88. U.S. Congress, House, Select Committee to Investigate the Federal Communications Commission, Study and Investigation of the Federal Communications Commission, 78th Cong., 1st Sess., July1943. See also U.S. Congress, House, Select

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Committee to Investigate the Federal Communications Commission, Final Report, 78th Cong., 1st Sess., January 1945. 89. U.S. Congress, House, Select Committee to Investigate the Federal Communications Commission, Study and Investigation of the Federal Communications Commission, 78th Cong., 1st Sess., July 1943, p. 61. 90. Denny oral interview, p. 16. 91. See several folders within Box 141: Exhibits, Evidence, Etc. Re: Committee Investigations/James L. Fly, FCC Chair, Special Committee on Un-American Activities (Dies), NARA, Washington, D.C. 92. James Dunne report, 30 April 1943, Personal Folder, Box 141: Exhibits, Evidence, Etc. Re: Committee Investigations/James L. Fly, FCC Chair, Special Committee on Un-American Activities (Dies), NARA, Washington, D.C. 93. “Bugeye,” undated, Unnamed/Blank Folder, Box 141: Exhibits, Evidence, Etc. Re: Committee Investigations/James L. Fly, FCC Chair, Special Committee on Un-American Activities (Dies), NARA, Washington, D.C. 94. James Dunne report, undated, Personal Folder, Box 141: Exhibits, Evidence, Etc. Re: Committee Investigations/James L. Fly, FCC Chair, Special Committee on Un-American Activities (Dies), NARA, Washington, D.C. 95. Durr oral interview. 96. Durr oral interview. 97. For example, see “FCC Man Defies Inquiry,” New York Times, 24 April 1943, p. 11; “Too Much for Mr. Durr,” The New Republic, 3 May 1943, p. 581; “Mr. Biddle is Afraid,” Nation, 22 May 1943, p. 735; “Durr Spurns Garey on Finance Quiz,” Broadcasting, 26 April 1943, p. 36. 98. Durr oral interview, p. 11. 99. “Text of Durr Petition,” Broadcasting, 17 May 1943, p. 12. 100. Durr oral interview; Robert De Vore, “Durr Asks House to Disqualify Rep. Cox in FCC Investigation,” Washington Post, 14 May 1943, p. 1; “Durr Demands Cox Dismissal,” Broadcasting, 17 May 1943, p. 12. 101. “Biased Investigation,” Washington Post, 14 May 1943, p. 10. 102. “Mr. Biddle is Afraid,” Nation, 22 May 1943, p. 736; “FCC Fireworks,” Business Week, 22 May 1943, p. 34; “Scandal in the House,” The New Republic, 24 May 1943, p. 700. See also Durr oral interview. 103. See Winifred Mallon, “Abuse of Powers is Charged to FCC,” New York Times, 3 July 1943, p. 1; “Fly Charges Plot to Wreck FCC,” New York Times, 5 July 1943, p. 1; “Fly Turns Queries on Investigators,” New York Times, 7 July 1943, p. 15; “$2,500 Worth of Slander,” The New Republic, 12 July 1943, p. 37; “Accuses the FCC of Misusing Funds,” New York Times, 20 July 1943, p. 17; “Smearing the FCC,” The New Republic, 23 August 1943, p. 237; “How to Hold a Hearing,” Time, 30 August 1943, p. 75; “Cox’s Show,” Newsweek, 30 August 1943, p. 44; Willson Whitman, “Georgia Justice and the FCC,” The New Republic, 6 September 1943, p. 333. 104. U.S. Congress, House, Statement of Eugene E. Cox resigning from leadership, 78th Cong., 1st Sess., Congressional Record, Vol. 89, Part 6 (30 September 1943), p. 7936. See also Nancy MacLennan, “Cox Quits Investigation of FCC to Clear Group of Attacks on Him,” New York Times, 1 October 1943, p. 1; “The Case Against Cox,” Nation, 9 October 1943, p. 397. 105. U.S. Congress, House, Select Committee to Investigate the Federal Communications Commission, Final Report, 78th Cong., 1st Sess., January 1945, p. 51.

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106. Lovett v. United States, Watson v. United States, Dodd v. United States, 66 F. Supp. 142 (1945). 107. United States v. Lovett, United States v. Watson, United States v. Dodd, 328 U.S. Reports 303, 316. (1946). 108. Ibid., pp. 315–316. 109. “Scandal in the House,” The New Republic, 24 May 1943, p. 700. 110. Un-American, p. 3294.

CHAPTER 3

The Menace Within?

Attacking the FCC was something akin to sport for conservative legislators such as Martin Dies, Richard Wigglesworth, Joe Starnes, John Kerr, and Eugene “Goober” Cox, who derived satisfaction from collecting “evidence” against members of the Commission and publicly goading and denigrating its employees. Their attacks were provoked by their hatred for the New Deal and its liberal politics and particularly their disapproval of the federal agency most closely associated with the New Deal in the early 1940s, the FCC. The agency and its strongest adherents, Larry Fly and Clifford Durr, developed policies to regulate content, license stations, and control business practices, all with the liberal intent of serving the public’s interest and promoting economic competition. Fly, Durr, and other like-minded commissioners and lawyers set the FCC toward a liberal regulatory mission through policies such as the Mayflower Doctrine and the Chain Broadcasting Rule and by making technical decisions regarding frequency allocations that promoted industry underdogs. Although applauded by many, the New Deal direction of the Commission triggered a political backlash from key congressional leaders. Motivated by their own political conservatism as well as by powerful industry leaders, influential conservative legislators condemned the Commission for its liberal policy making through unrelenting hearings. Of the many inquiries, the most damaging to the Commission, both publicly and internally, involved the Watson–Dodd controversy and the Cox Committee investigation of the FCC. The Red Scare at the FCC started as a conservative political backlash against New Deal policies. During the course of the 1940s the fear of

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Communists slowly gained credibility, starting quietly in 1942 and escalating for a decade until by 1953 the fear of subversives was a dominating factor in FCC decision making. The agency was forced to respond to the growing fear and perceived threat of Communism in the 10 years between the Watson–Dodd hearings in 1943 and the FCC fully embracing the Red Scare in 1953. Programming and licensing decisions increasingly revolved around Communism (and will be the subject of chapters 4 to 7), but the earliest indications of the Red Scare at the FCC were loyalty investigations of Commission employees. This chapter reveals the early years of the impact of the Red Scare on the FCC, paying particular attention to internal security issues between 1942 and 1948. Although conservative legislators publicly denigrated the FCC, they privately prodded the Department of Justice and the FBI to investigate employees. The public political attacks against the agency were matched by more insidious assaults hidden from public view that allowed the Red Scare to establish a firm grip on the FCC that steadily strengthened over the years. Between 1942 and 1948 at least six Commission employees were investigated by the FBI for alleged subversive activities. Internal investigations from the early period, 1942–1943, were connected to the conservative political backlash against the New Deal agency. Inquiries during this period were motivated by connections to Goodwin Watson who, himself, was originally targeted as the result of efforts to discredit the FCC. The loyalty of anyone who worked with Watson in the Foreign Broadcast Monitoring Service (FBMS) or the Foreign Broadcast Intelligence Service (FBIS) was suspect. By late 1948, however, the political temperament of the country and the Commission had changed, and alleged subversives were treated differently. Back in 1941, however, having launched a campaign against Goodwin Watson, the cadre of conservative legislators turned their attention to a bigger target: Commissioner Clifford Durr. PO LITICAL R E T A L I AT I ON T HR O U G H DISLOYALT Y A C C U S AT I O NS The most prominent Commission employee subjected to a loyalty review was Commissioner Clifford Durr, which was the direct result of his defense of Goodwin Watson. Durr was on the Commission for barely two months when he was handed the responsibility of investigating, then defending, Watson against accusations of Communist, subversive beliefs. Durr was a southern lawyer, born in Montgomery, Alabama, and educated in law at the University of Alabama. Upon graduation he received a Rhodes scholarship to continue his legal education at Oxford University in England. Durr strongly believed in both the philosophy and the letter of the constitutional guarantees of civil liberties for all American citizens;

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it was the cornerstone of his post-FCC legal career defending citizens whose loyalty was questioned and eventually promoting the Civil Rights movement in his native Alabama. A “gentle but combative latter-day Jeffersonian,”1 Durr was the best choice among the commissioners to lead the investigation of Goodwin Watson and, ultimately, William Dodd, Jr. Durr quickly became Watson’s champion. He investigated Martin Dies’ accusation that Goodwin Watson was a Communist less than a month after the legislator made the charge in November 1941. In a series of personal memos, the newest commissioner systematically analyzed Watson’s organizational memberships and writings and concluded that nothing in Watson’s background justified the accusation of being a Communist or “fellow traveler.”2 Having satisfied himself that Watson was not subversive, Durr followed his deeply held beliefs in civil liberties and launched a tenacious defense for Watson, initiating a letter-writing campaign to representatives and senators, walking the halls of Congress to discuss the case with leading legislators, and directing judicial arguments (the same strategy he used a year later in his successful efforts to discredit “Goober” Cox). In early February 1942, Durr joined Fly in an appearance before the Senate subcommittee on appropriations to defend Watson and especially to protest the proviso in the 1943 Independent Offices Appropriations Bill that specifically stated “that no part of any appropriation contained in this act shall be used to pay the compensation of Goodwin Watson.”3 Durr took a quiet but forceful stand in the hearing; when confronted with a legislator’s interpretation of minor passages of Watson’s writings as subversive, Durr responded, “I think a complete reading of the articles would show a different impression.”4 Watson himself believed that Durr was the commissioner “who did the most” for him,5 and as Durr later wrote to a friend, “I am not the ‘happy warrior’ type, but every now and then the time comes when there is nothing to do but fight, whatever the consequences may be.”6 It was a personal philosophy that bolstered both Durr’s defense of Watson and its repercussions. The immediate consequences were very nearly inevitable: an FBI investigation of alleged subversive activities by Clifford Durr. Relatively unknown to legislators until he championed Watson, Durr caught the attention of conservatives who were familiar with the outspoken and combative Larry Fly, but now found themselves confronted by a soft-spoken, articulate, obstinate, intellectual, liberal attorney defending a man who, in their eyes, was obviously a Communist. As was becoming their modus operandi, the staunch conservatives persuaded the FBI to launch an investigation of Durr. According to the FBI report, the investigation of Durr was “predicated upon the receipt of information from a confidential source hereinafter designated as T-1.”7 Durr was convinced that “T-1” was a member or employee of the Dies Committee who coaxed the FBI to investigate Durr. Indeed, the FBI investigation of Durr was launched in

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January 1942,8 soon after the Newsweek article reported that Martin Dies’ and his anti-Communist statements were the “most frequently quoted by the Axis radio in programs.”9 In a letter to Joe Starnes, a leading member of the Dies Committee and a fellow Alabamian, Durr angrily asserted that, “although the FBI is very careful to protect its informants under the cloak of anonymity, I have little doubt that the investigation was initiated on the basis of charges made by some member or employee of the Dies Committee.”10 A brisk exchange of letters followed between Starnes, who claimed innocence on the part of the committee, and Durr, who used his considerable analytical skills to discredit Starnes’ objections. The FBI report revealed that the investigation was further motivated as a result of “the names of Mr. and Mrs. Clifford J. Durr . . . appear[ing] on the active indices of the American Peace Mobilization.”11 It was Durr’s first taste of the sort of personal invasion with which Goodwin Watson and William E. Dodd were already coping. Moreover, the government’s investigation into his personal political activities infuriated Durr because they so thoroughly violated his beliefs in the sacredness of civil liberties in a democracy.12 He was further enraged in mid-March 1942 when he was asked to submit to an interview by the FBI, during which he was repeatedly asked, “Are you a member, or have you ever been a member of” organizations such as American Peace Mobilization, the National Federation for Constitutional Liberties, or “any organization which you have reason to believe is dominated by the Communist Party of the United States of America or may be controlled or its policies dictated by a foreign government?”13 The interview concluded with the FBI special agent refusing to reveal the identity of Durr’s accuser, “T-1.” Durr was outraged. The civil libertarian directed his anger in a letter to the Attorney General of the United States, Francis Biddle. Six days after the interview took place, Durr castigated the interrogation and investigation as “irrelevant and grossly unfair,” and further proclaimed that “one of the fundamental guarantees of our Constitution is the right of an accused to be informed of the nature and cause of the accusation and to be confronted with the witnesses against him.”14 Biddle asked J. Edgar Hoover for an explanation of the Durr investigation, and Hoover explained that Durr “was not advised as to the source of the original information [because], as you know, all material in the possession of the FBI is confidential.”15 Hoover continued that “these interviews . . . are not deemed hearings along legal lines, but are solely opportunities given persons under inquiry to make statements they deem of interest to fully explain their position. The presence of witnesses or legal counsel is not allowed under the policies promulgated by the Department [of Justice] at the inception of this investigative project.”16 Provided with a copy of Hoover’s response and bringing his considerable legal talents to bear, Durr swiftly con-

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structed a detailed five-page analysis of the FBI director’s defense of his agency’s investigation,17 repeatedly asserting that the investigation against him violated both constitutional guarantees as well as Department of Justice policy regarding inquiries into suspected subversive activities of federal employees. “It is shocking to me,“ Durr declared, “that a high official of the Department of Justice, . . . charged with the preservation and enforcement of the principles of our basic legal precepts, should show himself ready to disregard such principles, except only where the victim raises his voice in protest.”18 The squabble between Durr and Hoover received no press attention, nor, indeed, is there evidence that the Commission itself took the loyalty investigation of Durr seriously or as anything other than a political contest between conservatives and New Dealers. But it was not the last time that Durr and Hoover would lock horns. Unlike the investigations of Watson and Dodd, which were the subjects of intense congressional hearings and back-room politicking, the FBI investigation of Clifford Durr ended abruptly. In late July 1942, Durr received a letter from Edwin Dickinson, the executive secretary of the Interdepartmental Committee on Investigations (of federal employees), a division of the Department of Justice. The letter was accompanied by a copy of a letter sent to President Roosevelt, which stated that the Committee “reviewed the [FBI] report and [found] no evidence of subversive affiliation or unlawful advocacy. The report indicates clearly that the charges [were] not substantiated. The Committee therefore recommends that no further action be taken.”19 True to character, Durr responded to Dickinson that he was pleased “to be restored to Society [sic] as a respectable member,” but was also “impressed by the simplicity of the procedure under which a smear of suspicion may be applied and the length of time and expenditure of skilled man hours required for its removal.”20 With that the second major investigation of “subversive” influences at the FCC came to an end. For the second time in only a few months, conservative accusations against the loyalty of FCC employees failed, as Watson, Dodd, and Durr appeared victorious in their battles against public condemnations as subversives. Commissioner Clifford Durr played a pivotal role in both Watson’s defense and his own, but accusations against other FCC employees continued. Indeed, as detailed in the previous chapter, the charges against Watson and Dodd reappeared in early 1943 and continued unabated throughout the year. And although the allegations against Durr disappeared in July 1942, complaints against other employees quickly surfaced. Continuing in 1942 and throughout 1943, charges of disloyalty against FCC employees repeatedly materialized, invariably against individuals affiliated with either the FBMS or the FBIS.

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Audrey Menafee Soon after Martin Dies’ accusations against Goodwin Watson became public in January 1942, Watson’s employees in the FBMS sent a memo to Larry Fly asserting their “complete confidence in the patriotism, distinguished ability, and admirable personal leadership that Dr. Watson has shown during his tenure.”21 Among the 14 employees who signed the memo was Audrey Menafee. Very little is known about Audrey Selden Menafee, other than the fact that she was a member of the FCC’s FBMS. In early December 1942 an “unnamed person” reported her to the FBI as a subversive federal employee.22 The director of the FBIS, Robert D. Leigh, investigated the accusation and submitted his report to the federal Interdepartment Committee on Investigations. As the internal investigation of Audrey Menafee progressed, the Justice Department’s Interdepartment Committee on Investigations underwent significant changes. In early February 1943 President Roosevelt signed Executive Order 9300 establishing the Interdepartmental Committee to Consider Cases of Subversive Activity on the Part of Federal Employees.23 The committee was recreated “as an advisory and coordinating agency in all matters pertaining to the investigation and disposition of complaints of subversive activity on the part of employees of the executive branch of the Federal Government.”24 The executive order required executive agencies to direct all complaints of subversive activity to the FBI and Department of Justice for investigation, the results of which would be submitted to the Interdepartmental Committee.25 The order further specified that “whenever the requirements of internal security appear to the Committee to have been insufficiently considered in connection with the disposition of an investigative report, the Committee may review the case upon its own motion and transmit its recommendation to the employing . . . agency.”26 Consistent with its administrative authority, the Interdepartmental Committee returned the FCC’s report on Audrey Menafee in late April 1943 as a result of “insufficient [information] to permit an advisory opinion on the merits” of the case.27 Leigh urged the Commission to conduct a more formal hearing into the accusations against Menafee and to keep a detailed record of the hearing.28 Hence, April 1943 was a difficult month for the Commission. Three of its employees (Goodwin Watson, William Dodd, Jr., and Frederick Schuman) were subjected to particularly harsh questioning before the Dies and Kerr committees, and Audrey Menafee’s internal investigation was rejected by the Interdepartmental Committee. Having been subjected to formal investigations of five of its employees (including the previous year’s investigation of Durr), and with the recent passage of Executive Order 9300, the FCC responded to growing government fears of subversive fed-

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eral employees and created an internal Committee on Loyalty Investigations for the Commission on June 8, 1943, composed of commissioners Payne, Wakefield, and Durr. The committee’s mission was “to deal with the questions . . . [of] . . . the loyalty of the employees of the Federal Communications Commission.”29 In late June the FCC Loyalty Committee sent a memo to all department heads informing them of the committee’s creation and requesting the names of employees about whom loyalty questions were raised. Robert Leigh immediately responded that “the most immediate of these in [FBIS] is Mrs. Menafee.”30 There is no documentation that reveals whether Audrey Menafee was afforded a hearing before the Commission’s Loyalty Board or, indeed, how her case progressed. But in late November 1943 the commissioners met in an executive session and decided that there was no evidence to warrant further action against Menafee,31 and the FBI was notified of the Commission’s decision.32 The timing of the Commission’s decision regarding Audrey Menafee is significant, however. Less than two months earlier the Cox Committee investigation reached its denouement when its fiery chair, “Goober” Cox, was forced to resign, thus relieving the Commission from the pressures of defending itself against an attack campaign motivated by personal politics (the investigation continued, but without a personal vendetta as its foundation). Further, the Watson–Dodd controversy reached a temporary resolution two days before the decision regarding Audrey Menafee. Fly and Durr orchestrated the grounds on which Watson and Dodd could pursue their case against the House of Representatives by employing the two men for nearly a week beyond the November 15, 1943 deadline imposed by the Appropriations Bill. Their last day of work was November 21, 1943, and two days later the Commission decided to drop its internal investigation of Audrey Menafee. Hence, although the agency formed its internal loyalty board and went through the motions of investigations, it did not seriously consider its employees to be threats to the United States. In all cases the Commission hierarchy supported and defended its employees whose loyalty was questioned, a course that was further clarified through the case of another employee investigated during 1943, Dr. Frederick Schuman. Frederick Schuman In their dogged search for “subversive elements” within the FCC, conservative legislators eventually discovered Dr. Frederick Schuman, a political scientist educated at the University of Chicago, who served as the principal political analyst for the FBIS. Schuman was first named publicly during a House Appropriations subcommittee hearing in January 1943 when committee members Richard Wigglesworth and Joe Starnes interrogated Larry Fly about Schuman’s loyalty.33 Soon thereafter Martin Dies,

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who nurtured his belief that the FCC was infiltrated by Communists and fellow travelers, renewed his attack against the agency from the floor of the House of Representatives on February 1, 1943 and provided additional “evidence” of subversive activity at the FCC by naming Dr. Frederick Schuman as “a man of violent political views” whose “Communist affiliations are a matter of public record.”34 With this bold statement, Frederick Schuman was drawn into the Red Scare at the FCC in early 1943. The Dies Committee was interested in Schuman for at least five reasons. Schuman was immediately suspect because he was employed by the FCC, which many conservative legislators considered to be a bastion of subversive New Dealers. A second significant cause for conservative alarm was the fact that Schuman was personally invited by Goodwin Watson to join the Foreign Intelligence Service in 1942. Indeed, Schuman’s affiliation with the FBIS was yet a third cause for suspicion. He was initially employed by the Commission in October 1942 as an analyst of German radio propaganda for the FBIS, but soon after Dies’ public attack against him in February 1943, he was promoted to principal political analyst for the FBIS35 (an action that might be interpreted as a snub of conservative attitudes). Fourth, knowledge of his connection to Watson and the FBIS served as a catalyst for further investigation into Schuman’s background, which revealed extra cause for conservative consternation. Like Watson, Schuman was an academic with a sizable body of scholarly publications that several Committee members and investigator J. B. Matthews believed communicated subversive political philosophies. As a political scientist, Schuman wrote many articles and some books about the U.S. government over the course of his academic career. Indeed, Schuman’s profession as a college professor or, among some circles, a “reducator,”36 made him (and Goodwin Watson) one of the early academic targets of the Red Scare. During his appearance before the Dies Committee in early 1943, considerable attention was paid to Schuman’s writings and the allegedly subversive messages contained therein. A book published in 1922 was interpreted by the Committee to be clear evidence of Schuman’s Communist sympathies because it was published by International Publishers, which, although not considered to be so in 1922, by 1943 was “the leading publishing house of the Communist Party in the United States,” as Matthews asserted.37 Further, although he declared that he was not a Communist nor did he sympathize with Communist beliefs, Schuman acknowledged that he had “a consistent public record of anti-Fascism, anti-Nazi-ism [sic], . . . advocacy of close collaboration with the Soviet Union against Fascist aggression” and, further, was “opposed to the continuation of the Dies committee.”38 Given his opposition to the Dies Committee, it wasn’t surprising that Schuman’s appearance before that body was contentious. Although questions from committee members were usually direct, questions from com-

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mittee investigator J. B. Matthews often resulted in an intellectual and semantic sparring match between Matthews and Schuman that tested the patience of the more provincial legislators, particularly Joe Starnes. A day’s worth of testimony proved fruitless from the Committee’s perspective, and at the same time they deemed Watson and Dodd unfit for government employment, the Dies Committee decided there “was not sufficient evidence concerning Schuman ‘to support a recommendation of unfitness to service in the employment of the Government.’”39 Unlike Watson and Dodd, whose cases became the epicenter of a political power struggle, the accusations against Schuman were dropped. Soon after his encounter with the Dies Committee, Schuman published an article in The American Political Science Review in which he examined the actions of the Dies and Kerr committees and concluded that “Congress has here violated basic principles of the Constitution and the Bill of Rights.”40 But conservatives continued unabated. It was as though the Dies Committee had a roster of FBMS/FBIS employees—anyone associated with Watson and Dodd—and they simply investigated each employee in turn. Occasionally they found what they believed to be “questionable” activities, which became the catalysts for FBI investigations. Having disposed of Schuman, the Committee turned their attention to Robert D. Leigh, the director of the FCC’s FBIS. Robert Leigh The wave of congressional inquiries into the alleged subversive activities of FCC employees eventually overtook the director of the FBIS, Robert D. Leigh. Soon after Leigh wrote to the Commission’s Loyalty Committee reminding them of the pending case regarding Audrey Menafee, he learned that he was the subject of an FBI investigation. Late July 1943 found yet another letter sent from the Interdepartmental Committee on Employee Investigations to the FCC, this one accompanied by three FBI reports on Robert Leigh.41 In a memo to the Commission’s Loyalty Committee, Leigh responded to the accusations leveled against him in the FBI report (which Fly showed to Leigh).42 Leigh explained his membership, or lack of membership, in each of the suspect organizations that were used as evidence of “subversive” activity, including the National Federation for Constitutional Liberties, Films for Democracy, and a committee “to work against Japanese aggression by means of a non-governmental boycott.”43 Leigh further asserted that his former presidency of Bennington College and the open seminars he promoted were not evidence of his “radical” philosophies but rather of his commitment to the democratic ideal of open expression of ideas. Leigh concluded his memo by asserting that the investigation of his background “brought up very little material for the use of such agencies of our government as wish to eliminate people with

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dangerous thoughts. Mine seems to have been a rather innocuous career from this point of view.”44 Interestingly, Leigh’s memo to the Commission’s Loyalty Committee was written a full week after Larry Fly responded to the Interdepartmental Committee on Employee Investigations that the FBI reports on Leigh “contain absolutely no evidence of subversive or disloyal conduct. In fact, the reports affirmatively show Dr. Leigh to be a loyal citizen of the United States. Accordingly, the Commission has concluded that there is no basis for any action on its part.”45 Hence, the Commission did not take the charges against Leigh seriously, as Fly responded to the Interdepartmental Committee within two weeks of receiving the letter and prior to receiving a written explanation from Leigh. Indeed, by August 1943 it must have been apparent to nearly everyone at the Commission that the loyalty investigations were politically motivated; the only individuals who were investigated were those affiliated with both Goodwin Watson and the FBMS or the FBIS. By November of 1943, the investigations of FCC employees came to an end. It is no coincidence that the vindictive nature of the congressional inquiries into the Commission similarly subsided. Indeed, the only remnants of the 1942–1943 congressional investigations of FCC employees existed in Watson’s and Dodd’s judicial appeal of the House of Representatives actions against them. In November 1943 the two men filed a lawsuit against the House of Representatives, thus moving the controversy out of the hands of the FCC and into the judicial system. When the U.S. Supreme Court found in favor of Watson and Dodd in 1946,46 it vindicated the men and the FCC’s tenacious defense of them and, by extension, all its employees accused of disloyalty. Publicly, however, the Watson–Dodd controversy likely figured prominently in the belief communicated by 69 percent of Gallup Poll respondents who said that Communist Party members should not be allowed to hold government jobs.47 Nevertheless, employee loyalty was not an issue to which the FCC devoted attention for almost exactly five years between November 1943 and November 1948. A PO LITICA L T R A N S F O R M AT I ON In the interim, however, both internal and external influences on FCC activities changed. In 1942–1943, employees whose loyalty was questioned could count on unconditional support from FCC leadership, particularly Durr and Fly. Between 1943 and 1948, however, the political environment of the federal government changed considerably. World War II ended with allied victories in the European and Pacific theaters, allowing the United States to refocus more of its attention on domestic issues. In April 1945, President Franklin D. Roosevelt died. Although the New Deal underwent considerable revision during his presidency as a result

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of economic, political, and wartime realities, its basic philosophies remained a fundamental tenet of Roosevelt’s leadership. His death was the loss of the New Deal’s mentor in the nation’s most powerful political position, and his successor, Harry Truman, was a New Dealer who lacked both the personal charisma and congressional support enjoyed by Roosevelt. Indeed, for the first time in many years, Republicans held the majority in both the House and the Senate from 1947–1948 and firmly believed they would win the presidency back in the 1948 election. The political atmosphere within the Commission similarly shifted. Larry Fly, the strong-willed but perpetually embattled chair of the FCC, resigned his position in November 1944 and opened a law office in Washington, D.C. With his departure, the robust New Deal leadership that guided the FCC since 1939 also left. Between 1944–1947 the leadership of the FCC constantly fluctuated, leaving the Commission without the vigorous and unifying voice it enjoyed for the five years of Fly’s tenure. Commissioner E. K. Jett served as the interim chair for one month. Jett was the Chief Engineer at the FCC for 14 years prior to his appointment as a commissioner, which occurred only a few months before he became the temporary chair. Jett’s provisional appointment ended in late 1944 when President Roosevelt appointed Paul Porter to the position. Porter was a New Dealer but one who did not share Larry Fly’s fervor and who had close ties to the broadcasting industry from having worked at CBS in the 1930s. Porter left the FCC in 1946 and was replaced by former General Counsel and then Commissioner Charles Denny, who left a year later in a highly controversial move to NBC. Denny was succeeded by Wayne Coy in 1947, a moderate who earlier managed CBS affiliate stations in Washington, D.C., that were owned by Washington Post publisher and staunch Republican Eugene Meyer. Although each of these men were Democrats, each successive appointment represented a step away from Fly’s earlier New Deal commitment to minimizing corporate influence on regulatory decisions, whereas their connections to the broadcasting industry grew closer as the years passed. It was during those same years that the fear of Communists and the resulting Red Scare escalated. The Dies Committee, which was actually a special subcommittee of the House of Representatives, ended in 1944, but was replaced with a permanent House Committee on Un-American Activities in January 1945, chaired by John E. Rankin (D-Mississippi), who “despised Negroes, Jews, aliens, and liberals.”48 In October 1947 the newly invigorated Un-American Activities Committee opened its hearings into purported subversive influences in the motion picture industry.49 President Truman exacerbated fears of Communist infiltration when he signed Executive Order 9835 in March 1947, which prescribed “procedures for the administration of an employees loyalty program in the executive brand of the government.”50 Motivated by a combination of growing ten-

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sions between the United States and the Soviet Union and the political necessity of maintaining authority in a Republican-controlled Congress, Truman’s establishment of the Federal Employee Loyalty Program failed to diminish the efforts of conservatives in their quests for Communists. The executive order became a catalyst for expanded investigations of suspected Communists by the FBI, well funded by a Republican-controlled Congress.51 The degree to which the federal employee loyalty program violated civil liberties hit Clifford Durr particularly hard, and “he shared the sense of many liberal New Dealers that the promise of the Roosevelt era was being submerged . . . in anti-Communist hysteria.”52 Durr’s second confrontation with Hoover in December 1947 over the FBI’s increasingly invasive role in FCC licensing was a final straw for Durr who, despite repeated requests from President Truman to remain on the Commission, refused to accept reappointment when his tenure ended in June 1948. As Durr explained to historian Erik Barnouw, “[I]f [I] stayed, [I] would share responsibility for the inquisition.”53 Durr’s replacement on the Commission, Frieda B. Hennock (the first woman appointed to serve as a commissioner), promoted regulations that were consistent with the New Deal, but never took a public stand regarding the loyalty program or the search for Communists.54 In a short five years the political climate both within the FCC and the larger national context changed considerably. By late 1947 a more concerted hunt for Communists was under way in the United States, unlike anything previously undertaken by the Dies Committee, the Kerr Committee, the FBI, or any other government body. It was in this context that questions regarding the loyalty of FCC employees Walter Gee and Charles Clift arose in November 1948. Charles Clift Charles Clift was Clifford Durr’s confidential assistant at the Commission and participated in the investigation and production of “The Blue Book” in 1946. There is virtually no documentation regarding the loyalty case of FCC employee Charles Clift, with the exception of a memo outlining seven charges against him.55 Five stemmed from associations or activities in which Clift engaged 12 years earlier in 1936, including “close” associations with “known” Communist Party members, “close” affiliations with members of the American League for Peace and Democracy, American Peace Mobilization, and the Washington Committee for Democratic Action, and speaking on behalf of a Communist Party member who was threatened with deportation. Two of the accusations cited Clift for maintaining a relationship with his wife, Kathleen Clift, who was a “close associate of six members of the Communist Party” and who was a

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member of the Washington Bookshop Association.56 Unfortunately there is no documentation that reveals how Clift responded to the charges, whether there was a hearing, or what action (if any) the FCC took. However, this case and that of Walter Gee indicate that employee loyalty reemerged as a source of concern for the FCC in 1948. Walter Gee At virtually the same time that Charles Clift was notified that he was under investigation, Walter Gee, employed as a Radio License Clerk at the FCC field office in Los Angeles, received a similar “Notice of Charges and Proposed Removal Action” from the Commission’s Loyalty Board. The charges against Gee were much more specific and serious, alleging that he not only held membership in the Communist Party between 1936 and 1938, but was an active member attending several meetings throughout the Los Angeles area during the same years at which he often projected movies.57 The charges against Gee were the result of an FBI investigation of him and shared with FCC chair Wayne Coy by Attorney General Tom Clark.58 Unlike previous employee loyalty investigations under the New Deal agency, the 1948 Commission took the allegations more seriously and gave Gee one month to respond to the charges. Gee answered the charges within the given month by explaining that he joined a group of people who shared his interest in making “serious” movies.59 Their so-called New Film Group met numerous times over the course of several weeks in 1936, in a variety of locations around the Los Angeles area, always to develop their film ideas. Gee admitted that films of labor strikes were often shown at these meetings, but he did not operate the projector and was merely a spectator. Gee claimed that by 1937 he “became very discouraged about The New Film Group since they seemed to do nothing but talk and no active program was outlined for making movies,”60 so he stopped attending their meetings. He further asserted that he “heard no communistic [sic] talk at any of the Film Group meetings,” nor did he belong to or sympathize with the Communist Party. The FCC Loyalty Board, headed by Chief Accountant William Norfleet, was satisfied with Gee’s explanation and cleared him of the charges.61 The Commission reinvestigated the Walter Gee case in 1953 under political conditions that were far more anti-Communist and, based on virtually unchanged information, fired Gee from his FCC position. CO NCLUSION The period of employee loyalty investigations ended at the FCC with the apparent resolution of the Gee case, but the Commission’s handling of the investigation was a clear indication that the political realities of the

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Commission were considerably altered from the 1942–1943 period. The Clift and Gee cases are significantly different from the earlier period of employee loyalty investigations because the accusations and threats of dismissal were internal, coming from the FCC’s loyalty board. In the earlier period, FBI reports on employees prompted subdued internal investigations in which the Commission functioned essentially as a defense attorney for the accused. By 1948, FBI reports were received much differently, and the FCC hierarchy functioned more like an investigator working on behalf of the FBI. In time the Commission’s attitude changed to that of a prosecutor. Clearly time and politics had changed. The legislative branch was no longer composed of a few powerful conservative legislators in the House whose influence was minimized by other legislators, senators, and the president, as had been the case in 1942–1943. Now it was a few powerful conservatives backed by a conservative House and Senate and a weaker New Deal president forced to make executive decisions to appease and/or contain conservatives. Investigations of employee loyalty were handled quietly within FCC, congressional, and FBI walls (with the obvious exceptions of Watson and Dodd). The growing concern with Communist influence also found expression in concerns about subversives using the airwaves to mass communicate their disloyal messages. Just as Americans worried about covert messages in films, so they fretted about Communists’ ability to use radio, too. Increasingly during the 1940s, citizens turned to the FCC to complain about, and demand removal of, Communist broadcasters and programs. As with its employees, the Red Scare also found expression in issues of broadcast programming at the FCC. NO TES 1. Clement Imhoff, “Clifford J. Durr and the Loyalty Question, 1942–1950,” Journal of American Culture 12, no. 3 (fall 1989): p. 47. 2. “Memorandum,” 17 December 1941, Folder 7, Box 35, Clifford J. Durr collection, Alabama Department of Archives and History (hereafter CJD). 3. U.S. Congress, Senate, Subcommittee of Appropriations, Independent Offices Appropriation Bill for 1943, 77th Cong., 2nd Sess., p. 61. 4. Ibid., pp. 65–66. 5. “The Reminiscences of Goodwin Watson,” Oral Interview, Oral History Research Office, Columbia University, 1963, p. 79. 6. Clifford Durr to Lucien Hilmer, 28 April 1943, Folder 9, Box 29, CJD. 7. J. E. Hoover to J. L. Fly, 28 March 1942, Folder 9, Box 34, CJD. 8. Clifford Durr to Francis Biddle, 18 March 1942, Folder 9, Box 34, CJD. 9. “Trivia,” Newsweek, 5 January 1942, p. 7. 10. Clifford Durr to Joe Starnes, 2 April 1942, Folder 9, Box 34, CJD. 11. FBI Report on Clifford J. Durr, 28 March 1942, Folder 9, Box 34, CJD. 12. Imhoff, “Clifford J. Durr and the Loyalty Question, 1942–1950;” John Sal-

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mond, The Conscience of a Lawyer: Clifford J. Durr and American Civil Liberties, 1899–1975 (Tuscaloosa: University of Alabama Press, 1990); Erik Barnouw, “Blacklisted: How FCC Commissioner Clifford Durr Earned His Place on the Cold War’s Roll of Honor,” Television Quarterly 28, no. 2 (spring 1996): pp. 60–66. 13. FBI Report on Clifford J. Durr, 28 March 1942, Folder 9, Box 34, CJD. 14. Clifford Durr to Francis Biddle, 18 March 1942, Folder 9, Box 34, CJD. 15. “Memorandum for Mr. Ugo Carusi,” 28 March 1942, Folder 9, Box 34, CJD. 16. Ibid. 17. Clifford Durr to Ugo Carusi, 6 April 1942, Folder 9, Box 34, CJD. 18. Ibid. 19. Edwin Dickinson to Clifford Durr, 27 July 1942, Folder 9, Box 34, CJD. 20. Clifford Durr to Edwin Dickinson, 28 July 1942, Folder 9, Box 38, CJD. 21. “Memorandum to Chairman Fly,” 23 January 1942, Folder 8, Box 35, CJD. 22. Undated memo from Robert Leigh to FCC Loyalty Committee, Folder 2, Box 35, CJD. 23. Executive Order 9300, Establishing the Interdepartmental Committee to Consider the Cases of Subversive Activity on the Part of Federal Employees, Title 3, Chapter II, Executive Orders, February 5, 1943. 24. Ibid., Section 3. 25. Ibid., Section 4. 26. Ibid., Section 9. 27. Robert Leigh to Commission, 23 April 1943, Folder 2, Box 35, CJD. 28. Ibid. 29. Commissioners Payne, Wakefield and Durr to Department Heads, 25 June 1943, Folder 2, Box 35, CJD. 30. Robert Leigh to Commissioners Payne, Wakefield, and Durr, 1 July 1943, Folder 2, Box 35, CJD. 31. James L. Fly to The Secretary, 23 November 1943, Folder 2, Box 35, CJD. 32. Confidential Memo from James L. Fly to The Secretary, 24 November 1943, Folder 2, Box 35, Clifford Durr collection, ADAH; James L. Fly to J. Edgar Hoover, 24 November 1943, Folder 2, Box 35, CJD. 33. U.S. Congress, House, Subcommittee of Appropriations, Independent Offices Appropriations Bill for 1944, 78th Cong., 1st Sess., January 1943. 34. U.S. Congress, House, Comments of Martin Dies, 78th Cong., 1st Sess., Congressional Record, 78th Cong., 1st Sess., 1 February 1943, Vol. 89, p. 479. 35. “Report of the Federal Communications Commission (Commissioners Case, Craven, and Payne, Dissenting) in the Matter of Goodwin Watson, Frederick D. Schuman, and William E. Dodd, Jr.,” 26 April 1943, Box 16, Office of Executive Director/General Correspondence 1927–1946, FCC Archives, NARA, College Park, MD. 36. See David Caute, The Great Fear: The Anti-Communist Purge Under Truman and Eisenhower (New York: Simon and Schuster, 1978), p. 403; Ellen Schrecker, No Ivory Tower: McCarthyism and the Universities (New York: Oxford University Press, 1986). 37. U.S. Congress, House, Special Committee on Un-American Activities, Investigation of Un-American Propaganda Activities in the United States, 78th Cong., 1st Sess., 1 April 1943, p. 3095. 38. Frederick Schuman to Goodwin Watson, 6 May 1942, letter contained in U.S.

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Congress, House, Special Committee on Un-American Activities, Investigation of Un-American Propaganda Activities in the United States, 78th Cong., 1st Sess., 1 April 1943, p. 3092. 39. “Report of the Federal Communications Commission (Commissioners Case, Craven, and Payne, Dissenting) in the Matter of Goodwin Watson, Frederick D. Schuman, and William E. Dodd, Jr.,” 26 April 1943, Box 16, Office of Executive Director/General Correspondence 1927–1946, FCC Archives, NARA, College Park, MD. See also I. F. Stone, “The FCC Holds Fast,” Nation, 8 May 1943, pp. 662–663. 40. Frederick L. Schuman, “American Government and Politics: “Bill of Attainder” in the Seventy-eighth Congress,” The American Political Science Review 37, no. 5 (1943): p. 829. See also Robert E. Cushman, “The Purge of Federal Employees Accused of Disloyalty,” Public Administration Review 3, no. 4 (autumn 1943): pp. 297–316. 41. James L. Fly to Herbert Gaston, 5 August 1943, Folder: Reading File 7/1/ 43–10/31/43, Box 4, Office of Executive Director/Chair Correspondence, FCC Archives, NARA, College Park, MD. 42. Memorandum from Robert Leigh to Commissioners Wakefield and Durr, 12 August 1943, Folder 2, Box 35, CJD. 43. Ibid. 44. Ibid. 45. James L. Fly to Herbert Gaston, 5 August 1943, Folder: Reading File 7/1/ 43–10/31/43, Box 4, Office of Executive Director/Chair Correspondence, FCC Archives, NARA, College Park, MD. 46. United States v. Lovett, United States v. Watson, United States v. Dodd, 328 U.S. Reports 303, 316 (1946). 47. George H. Gallup, The Gallup Poll: Public Opinion 1935–1971: Volume One (New York: Random House, 1972), p. 494. 48. Walter Goodman, The Committee: The Extraordinary Career of the House Committee on Un-American Activities (New York: Farrar, Straus and Giroux, 1968), p. 167. 49. U.S. Congress, House, Committee on Un-American Activities, Communist Infiltration of the Motion Picture Industry, 80th Cong., 1st Sess., October 1947. See also Goodman, The Committee; Kenneth L. Billingsley, Hollywood Party: How Communism Seduced the American Film Industry in the 1930s and 1940s (Rocklin, CA: Forum Press, 1998); Larry Ceplair and Steven Englund, Inquisition in Hollywood: Politics in the Film Community, 1930–1960 (Garden City, NY: Anchor Press/Doubleday, 1980). 50. Executive Order 9835, Prescribing Procedures for the Administration of an Employees Loyalty Program in the Executive Branch of the Government, Title 3, Chapter II, Executive Orders, March 21, 1947. 51. Richard M. Fried, Nightmare in Red: The McCarthy Era in Perspective (New York: Oxford University Press, 1990). 52. Imhoff, “Clifford J. Durr and the Loyalty Question,” p. 50. See also Salmond, The Conscience of a Lawyer; and Sarah Brown Hart, Standing Against Dragons: Three Southern Lawyers in an Era of Fear (Baton Rouge: Louisiana State University Press, 1998). 53. Barnouw, “Blacklisted,” p. 65.

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54. Susan L. Brinson, Personal and Public Interests: Frieda B. Hennock and the Federal Communications Commission (Westport, CT: Praeger Publishers, 2002). 55. “Notice of Charges and Proposed Removal Action,” FCC Loyalty Board to Charles Clift, 1 November 1948, Folder 5, Box 35, CJD. 56. Ibid. 57. “Notice of Charges and Proposed Removal Action,” FCC Loyalty Board to Walter Gee, 10 November 1948, Case #146–200–25, Department of Justice Case Files, Department of Justice Archives, NARA, College Park, MD. 58. Tom Clark to Wayne Coy, 21 August 1948, Case #146–200–25, Department of Justice Case Files, Department of Justice Archives, NARA, College Park, MD. 59. Walter Gee to William Norfleet, 23 November 1948, Case #146–200–25, Department of Justice Case Files, Department of Justice Archives, NARA, College Park, MD. 60. Ibid. 61. Rosel Hyde to Attorney General, 29 May 1953, Case #146–200–25, Department of Justice Case Files, Department of Justice Archives, NARA, College Park, MD.

CHAPTER 4

“Pink-Nosed Gremlins” to Reluctant Regulators

FCC commissioner Clifford Durr was disheartened beyond measure by the spring of 1948. The Democratic Party, and more specifically the New Deal in which he believed so passionately, was changing. A year earlier President Harry Truman signed Executive Order 9835 creating the federal loyalty program, a move that pushed Durr beyond his limits for tolerance. Durr’s conscience would not allow him to remain a public servant for an administration that, in his eyes, violated American citizens’ civil rights. Federal law required that his vacant position be filled by another Democrat. Given the past eight tumultuous years at the FCC, however, the Republican-controlled Congress found itself with the opportunity to carefully select Durr’s replacement. “Mr. Republican” himself, Senator Robert A. Taft, personally interviewed the leading candidate for the position who, like Durr, was a committed New Dealer. Taft cautioned Frieda Hennock that the problems faced by the broadcasting industry ought to be administered by the FCC rather than its lawyers in the Legal Division,1 and he pledged to support Hennock’s nomination only if she agreed to remain independent, to avoid coming “under the sway of the people . . . at the Commission.”2 Taft certainly was referring to the years during which New Deal philosophies guided FCC regulatory decisions and the central role played by the agency’s Legal Division in crafting policies that greatly expanded the Commission’s regulatory authority. Hennock agreed to maintain independence and her appointment was confirmed.3 In hindsight, it is clear that Taft need not have been so concerned. The Red Scare at the Commission essentially was over by the time Frieda Hennock began her tenure as a commissioner in July 1948, at least from

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the perspective of “Communist” influences over FCC policy making. In the two years previous to Hennock’s appointment, the agency moved from a strong New Deal-inspired regulatory attitude to a more moderate position, sometimes making decisions that were reminiscent of its former liberal foundation and other times clearly moving away from it. During the late 1940s and early 1950s the agency grew considerably more conservative until it eventually became as fundamentally conservative in the mid-1950s as it had been fundamentally liberal in the early-mid 1940s. During the period between 1946 and 1953, the Red Scare at the FCC shifted from an internal issue, in which the agency was targeted as a hotbed of “pink-nosed gremlins,”4 to an external issue, in which the FCC joined the hunt for subversives in the United States. Two basic issues that arrested the agency’s attention from 1946 to 1953 clearly communicated the agency’s transformation from a New Deal body to a conservative organization. One was radio and television station licensing (the subject of chapters 5, 6, and 7). The other was broadcast programming. Programming was an issue with which the FCC struggled repeatedly, and one through which the Red Scare manifested itself in the 1940s and early 1950s. In the early to mid-1940s, the New Dealers in charge of the Commission envisioned the airwaves as the technology through which the democratic ideal could be attained, open for the expression of all ideas and free of censorship of any kind. But conservatives did not want Communists to have access to the most powerful media for mass communication. Having survived congressional and industry challenges to its New Deal policies in the form of Communist accusations, the agency returned to its New Deal agenda in 1946 by attempting to regulate programming. A funny thing happened on the way to regulating programming, however, that fundamentally shifted the agency away from its New Deal attitude. The Commission underwent a political transition between 1946 and 1953 during which it moved away from its New Deal base. By the mid-1950s, the FCC was as strongly conservative as it had been liberal in the mid-1940s. This first became apparent in its programming decisions. INTERESTE D PA RT I E S I N B R OA DC A S T PRO GRAMM I N G Broadcast programming was serious business in the United States. In an era of economic and political anxiety, American audiences continued to use the best media tonic they ever found for escaping their troubles. Twenty-nine million households had at least one radio set in 1941,5 an audience that jumped to 34 million by 1946, despite the fact that wartime production controls prevented the manufacture of new radio sets between 1942 and 1945.6 By 1949 there were 39.3 million American households fashionably equipped with a radio.7 As J. Fred MacDonald explained, ra-

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dio programming in the immediate postwar years was largely escapist as situation comedies, soap operas, dramas, quiz shows, and musical programs all provided diversions from the realities of postwar life.8 Only news programs, documentaries, and commentators broached socially relevant topics such as juvenile delinquency, alcoholism, the Cold War, the impact of the atomic bomb, and the apparent spread of Communism.9 Programming was a source of considerable economic and political power as well. Advertising agencies spent $125 million in 1941 buying network airtime in which to place programs and advertisements, a figure that ballooned to $198 million in 1945 and peaked at $211 million in 1948.10 During those same years network revenues increased from $62 million in 1941, to $101 million in 1945, to $109 million in 1948.11 This abundant expense was directed toward courting radio listeners, all of whom were potential consumers. Audiences enjoyed the programs, but from the advertising– network perspective, shows were the bait with which to lure the listener to the commercials. Thus, programming was a central aspect of radio not simply because it entertained millions of people, but more importantly, it drew audiences to advertisements. The networks jealously guarded their audience gold mine. Although radio content was central to the industry and the American public, the FCC’s role in programming was muddled. The Communications Act of 1934 seemed to prohibit governmental attendance to radio programming in Section 326 by clearly stating “nothing in this Act shall be understood or construed to give the Commission the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech by means of radio communication.”12 Thus Congress disallowed the FCC from exercising any authority over the content of radio stations. It was a message that the FCC repeatedly communicated to citizens who wrote to the agency complaining about something offensive they heard on the radio; the FCC archive is filled with letters from irate citizens demanding that the Commission do something about all manner of distasteful individuals and/or programs. In nearly every instance the Commission responded to the citizen’s grievance by quoting Section 326 and asserting its powerlessness to do anything about programming concerns. It was certainly a position the industry supported; the broadcasting networks and most stations did not want government interference in their programming decisions or, by extension, their profitability. Yet the FCC wasn’t entirely neutralized when it came to monitoring programming. There were both direct and indirect avenues through which the agency could influence content. The Communications Act of 1934 provided two direct methods. First, although Section 326 specifically forbad censorship, it concluded by asserting that obscenity and indecency content

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were prohibited, thus giving the FCC the power to monitor that content. Further, Section 315 specifically required all radio stations to provide equal time for political advertising. If a legally qualified candidate was allowed to advertise on a radio station, that station was required by federal law to provide equal access to all other legally qualified candidates for the same office, a requirement that later became problematic with regard to Communists running for public office. The Commission asserted broader indirect oversight authority through the “public interest” standard by which radio broadcasters were required to operate. A radio station’s programming that failed to serve the public interest jeopardized the station’s license, as was clearly established in Trinity Methodist, South v. FRC (1932), in which station KGEF lost its license as the result of “Fighting Bob” Shuler’s highly questionable and probably illegal broadcasts.13 Nine years after the KGEF case, the FCC pushed the boundaries of program regulation with the Mayflower Doctrine, asserting that broadcast editorializing did not serve the public interest, hence it was forbidden. As explained in chapter 1, many in the broadcasting industry howled at the government’s incursion into their territory; programming was their business, not the government’s. Nonetheless, editorializing was a form of content over which the FCC established regulatory authority in 1941 and thereby advanced its ability to oversee all aspects of the broadcasting industry. In sum, the FCC’s ability to regulate content was disputable. Strictly speaking, the Communications Act of 1934 gave the agency authority to directly regulate some forms of content, but the agency asserted further authority through the indirect means of regulating in the “public interest.” In the New Deal era of an expanding federal government with a desire to protect citizens from corporate abuses, the American public frequently turned to the FCC to correct programming excesses. Alternately, the broadcasting industry just as frequently decried the Commission’s attempts at censorship. This was the atmosphere in which the agency increasingly faced issues relating to programming and Communist influences. The problem of Communist Party access to the airwaves was particularly troublesome, especially in a period during which American hostility toward Communists grew. In 1941, 71 percent of Gallup Poll respondents believed that Communist Party membership should be forbidden by law.14 Sixty-one percent continued to believe so in 1946,15 the same year that 36 percent confidently asserted that Communists should be killed or imprisoned, followed by another 23 percent who believed Communists should be “curbed, made inactive, or watched carefully.”16 By 1948, 77 percent of respondents believed Communist Party members should be required to register with the Justice Department,17 and by 1949, 68 percent were back to believing that Communist Party membership should be forbidden by

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law.18 Thus the FCC frequently found itself facing the challenging issue of regulating programming content. In the early 1940s with the New Dealers at the helm, the FCC was committed to creating an open broadcasting system in which all ideas, including those of Communists, had access to the airwaves. ON E LAST N E W DE A L H U R R A H Radio content was an issue the FCC took as seriously as American audiences. From their New Deal perspective radio programming did not meet the liberal ideal of providing an open marketplace of ideas that was critical to their vision of democracy. Unable to guarantee open expression for all perspectives, New Dealers at the FCC attempted to subdue the use of radio for partisan political purposes by creating the Mayflower Doctrine, which prohibited broadcasters from editorializing on the air. Effectiveness of the Mayflower Rule was limited, however, because it only directly affected individual radio stations—not the networks. Moreover, Mayflower was restricted in its regulatory breadth because it only prevented one specific programming practice, that of editorializing on controversial subjects. As the FCC network monopoly investigation continued through 1938 and 1939, the Commission increasingly became concerned about additional network programming practices that restricted the free and open exchange of ideas on radio. The FCC’s investigations revealed that the networks strongly controlled content in two ways. First, the nature of the affiliation contract meant that stations essentially were required to carry all the network’s programs. Theoretically a station could preempt network programming as long as it notified the network months in advance. In practice, however, stations rarely chose this option, thus granting networks virtually unchecked authority over station airtime. The networks further censored content through advertising practices. Network programming contained excessive amounts of advertising. Although nobody ever provided a clear-cut definition of “excessive,” listeners routinely complained to the FCC about the annoying number of advertisements, and the agency agreed that broadcasting was overcommercialized. The networks dismissed such complaints, however, because the practice had two beneficial effects. First, the more airtime the networks sold for advertising, the more profit the station garnered. Second, more airtime filled by profitable commercials effectively reduced the amount of available airtime for unprofitable sustaining programs that discussed public issues. Thus through economic censorship the networks and their sponsors supported the articulation of some ideas but restricted others either through outright prevention or excessive amounts of advertising. According to Horwitz, “purely commercial considerations had the effect of limiting

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program choice.”19 Network and advertiser hegemony over airtime was threatened by promulgation of the Chain Broadcasting Rule, which significantly broadened the FCC’s authority over the network–affiliate relationship through protection of “public interest.” Despite industry protests about the Commission’s invasion of business and cries about the FCC’s attempts to restrict freedom of speech, the U.S. Supreme Court in 1943 affirmed implementation of the public interest standard and recognized the agency’s authority to regulate beyond technical issues. It was a tremendous victory for the agency, validation of its New Deal aspirations to both limit corporate monopoly and promote economic competition, but it had little effect on programming practices. Emboldened by Supreme Court approval of its authority to protect “public interest,” the FCC turned its attention to combating the economic censorship that precluded an open marketplace of broadcast ideas. A New Deal Review of Radio Programming The germ of the programming initiative was in place in the fall of 1942 when the Commission received letters from members of the Cooperative League of the USA complaining about NBC’s and CBS’s refusal to sell them airtime.20 Congressional leaders received similar complaints that the networks refused to allow the Cooperative League on the air to promote its organization and economic philosophy, first because the concept of “cooperation” was too “controversial” and then because “other advertisers using their facilities might object.”21 Senator Burton K. Wheeler responded by submitting Senate Resolution 305 in October 1942, asking the Senate Interstate Commerce Committee to investigate the networks’ actions. Neither the FCC nor the congressional call for an investigation resulted in much action, but Clifford Durr was particularly sensitive to the growing threats to the open expression of ideas. Like Watson and Dodd, Durr felt the wrath of conservative legislators who attempted to punish him for openly expressing his “subversive” ideas (see chapter 3). NBC’s and CBS’s refusal to sell airtime to the Cooperative League was no less punitive; it simply used more subtle economic means to prevent the expression of an economic idea that seemed subversive because conservatives believed cooperatives “may interfere with their profits, or their dividends, [or] that their operation may tend to bring down the cost of living to the average man.”22 Thus, with the results of the network monopoly investigation, the current Cooperative League debacle before it, and the commitment of several of its employees, the agency started moving toward addressing the issue of radio programming content. It was a logical next step for the same group of New Deal regulators who produced the Mayflower Doctrine and the 1941 Chain Broadcasting Rule and attempted to prevent newspaper interests from gaining too much access to

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radio, thus opening the airwaves to other voices. The Commission was diverted from its programming initiative in 1943 and forced to direct its energies to fighting the Watson–Dodd conflict, the continuing network monopoly case, and the Cox Committee (see chapter 2). But 1944 was spent regrouping for the next major New Deal goal: regulating programming. Having reached the conclusion that the networks exercised economic censorship, the FCC started its programming drive under the direction of Larry Fly. Historian James Baughman asserts that Paul Porter was more interested than Fly in regulating programming,23 but the issue of radio programming was before the Commission in a variety of ways before Porter took over as chair in 1944. The conflict between programming “promise versus performance” was a growing concern for Commissioner Durr, who was troubled by a licensee’s failure to provide the public service programming promised in the original licensing application and hearings. Whenever such a station came before the agency for relicensing, Durr insisted that it be temporarily relicensed until a hearing could be held, thus resulting in “half of the industry [being] on temporary licenses.”24 Larry Fly responded by directing FCC analysts to review the degree to which radio stations performed as they had promised in their license applications. When Fly left the FCC in November 1944, leadership of the programming inquiry turned to Paul Porter, who ordered a more formal study of programming practices. Programming initiatives expanded in 1944 as Clifford Durr began publicly criticizing the networks and advertisers for their censorship activities. In his usual clear and direct manner, Durr explained the basics of the broadcasting industry in his messages. Sponsors were the financial foundation on which the networks rested. The more airtime the sponsors bought, the more profitable were the networks. As a result, radio airtime was often filled with excessive advertising. Additionally, the networks were far more likely to broadcast sponsored programs, which were usually entertainment oriented, rather than the so-called sustaining shows that were usually public affairs-oriented that did not have sponsorship. According to the New Dealers at the FCC, radio programming was done in the business interests of sponsors, rather than the public interest of listeners. Durr expressed these ideas in an essay published in the National Education Association Journal and asserted that radio broadcasting was “rapidly becoming less free, as it demonstrates its value as an effective and extremely profitable advertising medium.”25 In a lengthier analysis of the same subject, Durr asked “Freedom of Speech for Whom?” in Public Opinion Quarterly in the fall of 1944, concluding again that the economics of national sponsorship and network affiliation agreements prevented the free expression of all ideas on radio. “In thinking of radio,” Durr asserted, “we are too much inclined to think in terms of what radio can bring to

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the people—a one-way pipeline of news, ideas, and entertainment—and too little in terms of its value as an outlet through which the people may express themselves.”26 Finally, Durr asserted that “radio can play its part for good or evil, depending upon whether it is the voice of the few or an outlet for full information and free expression, as uncurbed by commercial as by political restraints.”27 As John Salmond explained, Durr “had decided to warn Americans whenever he could against the dangers of allowing advertisers too much power.”28 Durr’s public pronouncements were part of the Commission’s growing commitment to regulating broadcast programming. In March 1945 Paul Porter informed the broadcasting industry of the agency’s programming review in his first speech to the National Association of Broadcasters as the newly appointed chair: “we have under consideration at the present time . . . a procedure whereby promises will be compared with performance. I think the industry is entitled to know of our concern in this matter and should be informed that there is pending before the Commission staff proposals which are designed to strengthen renewal procedures and give the Commission a more definite picture of the station’s overall operation when licenses come up for renewal.”29 As Business Week reported, Porter’s speech to the NAB represented the Commission “tightening up” on broadcasters and attributed the FCC’s attention to programming to Clifford Durr (whom they misnamed Burr), who “is behind the current campaign.”30 Throughout 1945 the agency continued its investigation into radio stations and their “promise versus performance.” That summer the FCC hired former British Broadcasting Corporation (BBC) employee Charles Siepmann to conduct a systematic investigation of network programming. Durr continued to speak out against the influence of advertisers and economics to control the flow of ideas. In December 1945 he was a guest on the Mutual Broadcasting System’s The American Forum of the Air, the discussion topic of which was “How Can We Keep Radio Free?” The commissioner spoke directly that “danger of a free radio today lies not in Government [as the NAB argued] but in the economic controls of large advertisers, and in advertising excesses which leave inadequate time for free discussion and inadequate time for opportunity.”31 Durr responded to industry criticisms that the FCC was a government agency run amok trying to wrest control of broadcasting away from the networks and thus interfere with both free enterprise and free speech. It was the same argument the industry leaders had made since establishment of the Chain Broadcasting Rule, particularly the networks and the NAB. Unlike the previous wartime context, however, this argument was growing particularly salient to an American public that broadly understood a Communist government to be one that enforced the power of a totalitarian regime on a powerless population. Throughout 1945 five FCC employees concentrated their attention on

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radio programming: Clifford Durr, Charles Siepmann, Dallas Smythe, Elinor Bontecue, and Charles Clift.32 The commissioner most directly involved in the investigation was Clifford Durr, who led the investigation and edited the final report. The bulk of the investigative and written work was done by the other four, however. Charles Siepmann conducted the investigation and preparation of the Commission’s analysis of radio programming. Siepmann was a British citizen by birth and a former employee of the BBC. He immigrated to the United States, became an American citizen, then served in the Office of War Information during World War II. Coincidentally, he was also Clifford Durr’s neighbor in the Washington, D.C., area, someone with whom Durr corresponded in the early 1940s regarding the Watson–Dodd and Cox imbroglios.33 When Durr launched his inquiry into the state of radio broadcasting in 1945, he turned to Siepmann to act as a “special consultant” regarding “the public service aspects of radio programming.”34 Dallas Smythe was employed in the Accounting Department of the FCC and brought considerable knowledge and information regarding corporate sponsorship practices and network finances to the investigation. Elinor Bontecue was an attorney in the FCC Legal Division and a former employee of Supreme Court Justice Hugo Black (Clifford Durr’s brother-in-law).35 Charles Clift was Durr’s confidential assistant. During 1945 and early 1946 this committee combed through a vast collection of data taken from licensing files and the network monopoly investigation and compiled a report that stunned, frightened, and deeply angered the broadcasting industry. “The Blue Book” The results of the FCC’s latest New Deal-inspired regulatory plan was issued on March 7, 1946, in a report entitled Public Service Responsibilities of Broadcast Licensees, but the color of its cover resulted in it becoming immediately known as “The Blue Book.” The report consisted of five sections that first outlined the Commission’s concerns regarding the failure of some radio stations to perform as promised in their licensing applications, illustrating the point by focusing on five radio stations, notably WBAL in Baltimore, which was owned by the Hearst Corporation and whose license renewal was already scheduled for hearing. The second section of the report demonstrated the commission’s responsibility for regulating in the public interest, which, they asserted, included jurisdiction over programming. The agency defended its claim by citing statutory authority, NAB recognition of FCC authority over some programming, judicial affirmations of FRC programming authority (notably the Trinity Methodist decision), and most recently, the Supreme Court’s 1943 decision regarding the Chain Broadcasting Rule.36 With its authority over programming established, the third and largest

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section of “The Blue Book” described the types of programming the Commission believed best demonstrated a station’s commitment to serving the public interest: sustaining programs, local live programs, discussions of public issues, and the elimination of advertising excesses. The FCC defined sustaining programs as those that had no sponsorship and were not interrupted by advertisements, examples of which included programs that provided a balance for sponsored shows, programs that were inappropriate for sponsorship (such as religious, government, informative, and controversial subjects), programs enjoyed by “minority tastes,” programs that were a service to nonprofit organizations, and experimental shows. In its detailed analysis the FCC found a “paucity” of sustaining programs in network broadcast schedules.37 The Commission further asserted that the public interest would be served by providing other types of programming, such as local live shows and discussions of public issues. Noting the increased amount of public affairs programming during World War II, “The Blue Book” paid particular attention to the need for programs on which public issues were discussed and asserted that “there is no reason why broadcasting cannot play as important a role in our democracy hereafter as it has achieved during the war years.”38 Finally, the agency completed its analysis of radio programming with seven pages of examples of excessive advertising that led it to conclude that broadcasting should not “be run solely in the interest of the advertisers rather than that of the listeners.”39 The fourth section of the report blamed the broadcast networks and advertisers for the lack of sustaining, local live, and discussion-oriented shows. Sixteen tables and several pages of detailed analyses revealed the healthy and quite profitable financial state of the broadcasting industry, including the networks, stations, and advertisers. Thus, the Commission resolved that “there are no economic considerations to prevent the rendering of a considerably broader program service than the public is currently afforded.”40 The Commission concluded in the fifth section that programming responsibility lay with two groups, licensees and networks who carried the “primary responsibility” to serve the needs of the public through radio programming. If these two groups failed in their obligations, the agency asserted, then the Commission carried the statutory burden of protecting the public interest. The agency declared that future licensing decisions would take into consideration the degree to which licensees performed as promised and, more specifically, the amount of sustaining, local live, and public issue-oriented programs that were broadcast by the station. Moreover, the Commission warned, “advertising excesses are . . . incompatible with [a licensee’s] public responsibilities.”41 The philosophy underlying “The Blue Book” was fundamentally consistent with the New Deal. The Commission was less interested in the

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business aspects of the broadcasting industry than it was in the belief that broadcasters were required to operate in the public interest. The FCC well understood the economic foundation of the broadcasting industry: licensees and networks made programming decisions with an eye on the bottom line, selling airtime to sponsors whose programs reached the widest audiences possible and, thus, generated more advertising revenue. Sustaining programs generally were not sponsored and appealed to small audiences, hence they were not placed in valuable airtime (particularly prime time, by definition the time periods that generate the largest audiences) because that time could be sold to an advertiser for profit. As far as licensees and the networks were concerned, it was business. But the FCC saw it differently and repeatedly asserted that licensees and, by extension, the networks were responsible for carrying a wide variety of programs that served all public interests, not just those of advertisers. It was a classic New Deal argument that rekindled industry ire over the FCC’s interference in their business decisions. It is yet another example of the contradictory definitions of public interest, in which conservatives placed business interests ahead of audience interests and liberals sought to protect listeners first and limit big business. The FCC was proud of its report. The Commission unanimously approved “The Blue Book,” and the newest chair, Charles Denny (appointed in 1946), sent copies to everyone on the House and Senate Commerce Committees. Clifford Durr reiterated the concerns expressed in the report during a mid-December 1946 guest appearance on ABC’s America’s Town Meeting of the Air, on which speakers addressed the question, “Is radio operating in the public interest?” Durr again hammered away at advertiser influence over programming, arguing that “instead of being an instrument of public service, supported by advertising, [radio] has become predominantly an advertising medium, dominated by advertisers. The program, instead of being an end in itself, has become a mere by-product of the advertising business.”42 Industry reaction to “The Blue Book” was immediate, loud, and rancorous.43 Broadcasting responded predictably only four days after release of the report: “The Federal [sic] government is going into the radio program business.”44 National Association of Broadcasters’ President Justin Miller called it an “unconstitutional” report that “overlooks completely freedom of speech in radio broadcasting which was a primary consideration in the mind of Congress when it passed the Communications Act.”45 Miller hastily organized a meeting of prominent members of the industry during which they discussed “the industry’s next move”; Broadcasting reported the consensus among the leaders was to fight.46 As time passed and the industry was able to digest “The Blue Book,” Broadcasting became increasingly caustic and antagonistic. Editor Sol Taishoff launched the first of several highly critical editorials in an essay entitled “F(ederal) C(en-

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sorship) C(ommission),” in which he painted the report “as masterfully evasive as it is vicious.”47 Broadcasting maintained its critical reporting and editorializing for weeks, repeatedly defining “The Blue Book” as FCC censorship of radio programming.48 The industry was incensed by the FCC’s temerity to first judge its product then mandate a change in radio programming, especially because the required alterations would likely result in smaller audiences and reduced profits. Prominent industry attorney Louis Caldwell called the report a “legal fiction,” and Taishoff opined that it “has tended to unify broadcasters in the quest for a showdown” with the FCC.49 As the relationship between the industry and the FCC became increasingly antagonistic, Columbia University professor Paul Lazarsfeld held a two-day conference of industry leaders, FCC officials, and scholars to discuss “The Blue Book.”50 The conference had little impact, and indeed, the industry’s anger was reinvigorated when Charles Siepmann published Radio’s Second Chance less than a month after “The Blue Book” was issued. Radio’s Second Chance communicated the same underlying philosophy as the FCC report but in considerably more detail. As Broadcasting reported, “there is enough in Second Chance to identify it as having come from the same mold as the FCC Report [sic], although it may shine more brightly for having been burnished in Mr. Siepmann’s Ivory Tower [sic].”51 Predictably, politicians started getting involved in the fray, but to a notably lesser degree than that generated by earlier New Deal policies. Soon after his appointment as the new chair of the Republican National Committee, B. Carroll Reece (R-Tennessee) promised that “freedom from program control by the FCC will be a major issue in the forthcoming November campaign.”52 Senator Styles Bridges (R-New Hampshire) asked the FCC to explain why a foreigner (referring to Siepmann) had access to Commission documents and played a significant role in policy making.53 Having received a copy of “The Blue Book,” legislator Harris Ellsworth (R-Oregon) asked NAB President Justin Miller for a “summary of NAB opinion [and] your own observations regarding” the FCC document. Miller happily complied with Ellsworth’s request and produced a 22-page response that was later published by the NAB.54 Repeating arguments frequently reported in Broadcasting, Miller condemned the FCC for its dual attempts at controlling radio programming and government censorship. The Commission’s claims to protect public interest were “dishonestly made” claimed Miller, “The Blue Book” was not intended “to support the rights of the people—but to break down the guarantee of the First Amendment by re-establishing government censorship over free speech.”55 Further, Miller reiterated a failed argument made regarding the Chain Broadcasting Rule when he asserted “that the Commission’s proper duties could be better performed . . . if it were relieved of responsibility for performance of duties improperly assumed.”56

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Acrimonious debate over “The Blue Book” continued throughout 1946. Many in the industry questioned its status. It was presented as a “report,” but one that was not requested by any congressional or industry group. Further, it was never defined or promulgated as policy or regulation. Nonetheless, the FCC began taking actions that reinforced its commitment to the philosophy underlying the report. The Robert Scott decision in July 1946 was clear evidence to broadcasters that the FCC intended to follow through on its promise to use programming as a criterion for station licensing.57 Scott petitioned the FCC to revoke the licenses of three radio stations in San Francisco and San Jose for their repeated broadcasts of religious programming and their refusal to sell airtime to him for the discussion of atheism. The stations asserted that Scott’s atheism was a minority view of religion and “distasteful or objectionable to a large majority of the listening audience.” Although the agency denied Scott’s petition as insufficient for calling a hearing regarding station licensing, it used the case to make a clear statement about the programming responsibilities of licensees: “If freedom of speech is to have meaning, it cannot be predicated on the mere popularity or public acceptance of the ideas sought to be advanced. It must be extended as readily to ideas which we disapprove or abhor as to ideas which we approve.”58 Although this statement in the Scott decision revolved around religion, it could easily be interpreted as relevant to Communism. In another indication of its commitment to the philosophy underlying “The Blue Book,” the Commission scheduled for hearing the licenses of three radio stations with the intent of investigating the stations’ “promise versus performance” and their ratio of sustaining to sponsored programming.59 A previously scheduled hearing to consider WBAL’s license (the programming of which received considerable attention in “The Blue Book”) was rescheduled for January 1947 following a petition by Drew Pearson and Robert Allen to revoke WBAL’s license and assign the frequency to a station they wanted to start.60 Their principle argument was WBAL’s failure to serve the public interest through its programming, as the Commission clearly outlined in “The Blue Book.” WBAL responded by petitioning the Commission to retract the statements it made about the station.61 When the agency refused to do so, the Hearst Corporation filed a lawsuit in federal district court. The FCC actions regarding the three stations and WBAL exacerbated the industry’s resentment and frustration. It was only a matter of time before the Commission’s New Deal-inspired efforts to improve radio broadcasting provoked conservatives and “business-first” industry members to once again accuse the agency of acting under Communist influences. Many in the industry referred to “The Blue Book” as “The Pink Book,” a heavy-handed insinuation that it was Communist inspired.62 Following a new round of articles from winter 1946 through spring 1947 that were heavily critical of the agency, Broadcasting reached its boiling point

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and exceeded both its tolerance level and journalistic ethics. “The year 1946, with its Blue Book and its economic inquisitions, marked an all-time high in the effrontery of the Commission to legislate beyond the limitations of the law under which it operates,” proclaimed the trade magazine.63 It further encouraged the House Subcommittee on Appropriations to investigate the Commission and, in a reference to the previous Watson– Dodd affair, hoped that it would “not undertake a witch-hunt. We can assure the sub-committee there are no witches at the FCC. There are, we believe, a few pink-nosed gremlins, but in no sufficient number to destroy the aspirations of those at the Commission who profess to view radio as a free medium.”64 Repeating accusations once leveled against the New Deal FCC during the Dies, Kerr, and Cox committee hearings, the industry associated the agency and its regulatory efforts with Communism. Following a strategy previously used to great effect by both congressional leaders and industry bosses, and playing on the growing fears of Communist infiltration in the United States, Broadcasting magazine and other members of the industry used “subversive influences” as a weapon intended to limit the effectiveness of an FCC policy. Given the tenor of the times, and the continuing fear of subversive influences in the federal government, it was a powerful, if unsubstantiated and recklessly made, assertion. In previous years such a New Deal-inspired regulation would have resulted in both industry tirades and congressional investigations, but would ultimately have received both legislative and judicial acceptance. Unlike those previous policies, “The Blue Book” quickly failed. Its demise was attributable to a variety of influences, only one of which may have been the accusation that it was Communistic. In truth, this was the least likely cause. Problems inherent to the report, the industry’s final response it, and broader political changes were more significant causes of the failure of “The Blue Book.” Enforcing “The Blue Book” was problematic virtually from its beginning. The fact that it was never promulgated as a policy or regulation made it difficult for broadcasters to know if they had to abide by it. Many believed they did not.65 As early as November 1946, only eight months after its release and after specifically targeting WBAL as the most egregious example of poor programming, the FCC did not cite programming violations as a basis for reviewing WBAL’s licensing, as Broadcasting noted when it reported that “Blue Book implications are conspicuous by absence.”66 Drew Pearson and Robert Allen pressured the Commission to make programming an issue in the upcoming WBAL hearing, but to no avail.67 The agency continued to communicate contradictory messages about its willingness to officially enforce “The Blue Book.” Clifford Durr publicly revealed that “The Blue Book” did not “have the force of Commission regulations but [was] merely a codification of the manner in which the FCC [had] handled program matters in the past [and was] com-

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piled for the guidance of broadcasters,”68 while Commission Chair Charles Denny asserted that the “blue” report had “not been bleached. The Blue Book stands as fundamental FCC policy.”69 The status of “The Blue Book” was essentially determined in 1948 when the Washington, D.C., Court of Appeals decided that it did not constitute “an agency action,” thus it was not an official regulation the FCC could enforce.70 The Commission’s final licensing decision, made in 1951, rested on the issue of financial stability rather than on WBAL’s programming and its failure to perform as promised. The FCC did not believe that Pearson and Allen had sufficient financial funds with which to operate a radio station.71 Moreover, soon after the Appeals Court issued its ruling and after two years of blustering, the NAB changed its codes of conduct to slightly limit the quantity of advertisements on radio.72 Thus, the need to enforce “The Blue Book” was negated partly by taking the sting out of accusations of excessive advertising. More importantly, broad political changes were underway in the immediate postwar years. New Dealers fundamentally reformulated their political ideals away from their strident antimonopoly positions.73 The 1946 midterm elections put Republicans back in control of both the House and the Senate for the first time in decades. Unlike the 1940–1944 period during which the FCC’s New Deal regulations generated a tremendous amount of congressional attention, “The Blue Book” engendered almost none. The newly powerful conservatives broached the subject of the FCC’s programming regulations only within the contexts of other congressional hearings on subjects that were nearer to their business and political interests, notably the FM and political advertising investigations.74 Legislators believed greater political hay could be made from holding hearings on the lack of FM development or the FCC’s attempts to restrict political advertising, rather than from the generally agreed-upon public perception that there was too much advertising on radio. Moreover, there was no need for congressional retaliation against the New Deal-inspired “Blue Book” because the Commission was already transforming itself into a more conservative agency. The single most significant reason explaining the failure of “The Blue Book” was the changing political tenor of the Commission itself, and here is where “The Blue Book” reaches beyond its role as attempted FCC policy and becomes the representation of a transition period between the New Deal FCC and an increasingly more conservative government agency. By late 1948 Paul Walker was the lone remaining commissioner from the group who unanimously approved the report in 1946. FCC Chair Charles Denny left the agency in 1947 in a highly controversial move to the position of General Counsel for NBC. Denny was replaced by Wayne Coy, who was a Democrat but one with deep ties to the broadcasting industry, hence the Commission came under the leadership of a man who was less

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likely to challenge industry expectations as had Fly and, to a lesser extent, Porter and Denny. Clifford Durr grew increasingly disenchanted with the changing nature of the FCC and, after President Truman announced his federal employee loyalty program, decided to leave public service and refused reappointment in June 1948. Not surprisingly, Broadcasting lauded Durr’s departure, claiming that “many of the FCC troubles . . . will evaporate with the departure of . . . Durr. For then the long-haired boys in the back room won’t have their Charlie McCarthy on the Commission talking out of the left side of his mouth.”75 The trade magazine was correct in its prediction, for as commissioners who were loyal to the New Deal left, they were usually replaced with people who were Democrats, but not as ardently supportive of the New Deal, with the exception of Frieda Hennock. The Commission of the late 1940s was a less reform-minded group that had clearly moved away from a New Deal approach to regulation as, indeed, had liberals themselves. The immediate postwar 1940s found former New Dealers quietly reformulating their political ideals, “abandon[ing] or greatly de-emphasiz[ing] the . . . vigorous if short-lived antimonopoly crusades, . . . and the open skepticism toward capitalism and its captains.”76 The former New Dealers instead turned their economic ideals toward a consumer-oriented liberalism in which “protecting consumers and encouraging mass consumption . . . were the principal responsibilities of the liberal state.”77 This new focus was clearly evidenced by the FCC in 1948 when it became consumed with the growing problems of television and its implementation. After freezing licensing to halt the opening of new television stations, the Commission held dozens of hearings between 1949 and 1951 in an effort to both promote the effective development of television and protect consumers. The same year the agency froze licensing it opened hearings regarding the Mayflower Doctrine, which was created in 1940 (and was the subject of a previous chapter). The agency’s decision to revise the Mayflower Doctrine in 1949 crystallized the changing political nature of the Commission, as it fundamentally reversed one of its earliest New Deal regulations and created the Fairness Doctrine, which allowed broadcasters to editorialize as long as they provided broadcast opportunity for the opposing point of view.78 The only dissenting voice opposing the Fairness Doctrine was the only New Dealer, Frieda Hennock. A NEW ATT I T U D E : U N W I L L I NG P R O G R A M MO NITO RS The FCC was in transition. With a new Republican-dominated Congress looking over its shoulder and a moderate Democratic president appointing moderate commissioners, the FCC turned away from its revisionist

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agenda. After “The Blue Book” fiasco, the Commission communicated its political adjustment by generally refusing to become involved with programming issues. The FCC neither promoted radio and television as a technological ideal for open discussion nor censored programming. The growing fear that Communists were using the airwaves to communicate their subversive messages was generally ignored by the agency, and it became involved only when forced to do so. Reversing a New Deal Policy The FCC attempted to prevent one-sided discussions of controversial issues with its Mayflower Doctrine in 1941, but soon thereafter it was clear that the policy was problematic. There were two fundamental problems with the Mayflower Doctrine. First, it was quite likely that a judicial challenge to the doctrine might result in finding it unconstitutional because it appeared to prevent the expression of any controversial ideas on radio (outside of the boundaries of election campaigns). Given the strained relationship between the FCC and the industry throughout the 1940s, as well as the industry’s frequent argument that the agency engaged in government censorship of radio programming, it was a case the industry seemed likely to win. The second significant problem was that the Mayflower Doctrine was a New Deal policy that was strongly supported by the agency at the time of its promulgation but, by the end of the 1940s, found few supporters. Only 18 months after releasing “The Blue Book,” the FCC announced that it would hold hearings to review the Mayflower Doctrine in March 1948.79 A large number of influential witnesses appeared before the Commission over a period of eight hearing days, most of whom took predictable positions. Network executives, the NAB, and most station owners argued against the Mayflower Doctrine. Frank Stanton (CBS), Niles Trammel (NBC), and representatives of the advertisers and broadcasters agreed with Mark Woods’ (ABC) assertion that the policy should be rescinded and broadcasters should be allowed to editorialize freely.80 In all, 18 witnesses urged the FCC to rescind the Mayflower Doctrine, a minority figure considering that at least 28 witnesses advised the agency to maintain the policy. Leading figures such as Larry Fly (representing the ACLU), Saul Carson (columnist for the New Republic), Charles Siepmann, Erik Barnouw (representing the Radio Writers Guild), and I. Keith Tyler (representing the Institute for Education by Radio) all supported Fly’s testimony that “the point to be avoided is the force of the organization, the force of the licensee haranguing the public on his [sic] single selfish point of view.”81 Only four witnesses suggested that the Commission allow editorializing but require broadcasters to provide both sides of a controversial topic, including former commissioner T. A. M. Craven.82

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The general public registered its opinion of the Mayflower Doctrine with the Commission, too. At least 1,752 citizens wrote to the FCC, 73 percent of whom wanted the policy to remain in place. Some citizens spoke eloquently that “this issue is one of freedom, but we wish to point out that the freedom involved is that of one hundred and forty million Americans, not the freedom of expression of the political, social and economic bias of a handful of broadcasters.”83 Others decried opposition to the Mayflower Doctrine as “un-American,” including one writer who wanted to maintain the ban on editorializing because reversing Mayflower could result in someone “with a good left philosophy using the small stations and the networks [to] do terrible things . . . by stirring up trouble.”84 Relatively few letter-writers asserted that “We are Americans and believe in fair play—If one side is presented, give the opposition a chance on the same station to answer. If they cannot do this, then truly the airwaves are ‘gagged’ and that is un-American.”85 It was an idea that received similar minority expression during the hearings. The FCC released its decision regarding editorializing in June 1949 and established a new policy that ultimately became known as the Fairness Doctrine.86 Unlike “The Blue Book,” in which the FCC unequivocally stated that it had the statutory burden of protecting the public interest with regard to radio programming, the new policy revealed a fundamental shift regarding the Commission’s perception of its role in programming. Now the agency asserted that broadcasters had full responsibility for content decisions. Broadcasters were cautioned that programming “must be exercised in a manner consistent with the basic policy of the Congress that radio be maintained as a medium of free speech for the general public as a whole rather than as an outlet for the purely personal or private interests of the licensee,” but followed this pronouncement with the statement that the licensee was wholly responsible for programming.87 The newly formed Fairness Doctrine developed into one of the most despised policies ever created by the FCC, but at the time of its declaration it was a conservative step away from a more liberal policy. The new policy was a clear representation of the FCC’s profoundly different attitude toward programming, a “hands-off” approach that figured importantly in several issues relating to Communism in the years between 1949 and 1954. .

Communism on Radio and TV Throughout the 1940s the FCC often received letters from listeners complaining about broadcasts from a variety of news commentators such as Fulton Lewis, Jr., Walter Winchell, William Shirer, and Drew Pearson. Fulton Lewis, Jr., was disparaged for his conservative comments, particularly in early March 1947 when he attacked farmers’ cooperatives.88 Shirer and Pearson were often criticized for the “pro-Russian views [they expressed]

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over the radio.”89 Few complaints reached the levels of letters written to the FCC regarding the Drew Pearson–Joseph McCarthy fight that played out over the airwaves in late 1950 and early 1951. Pearson and McCarthy were already bitter enemies when they exchanged blows at a dinner club in Washington, D.C., on December 13, 1950.90 Two days later McCarthy lashed out at Pearson and accused him of working on behalf of the Communist Party. According to the senator, Pearson was an “unprincipled liar and fake” with “a twisted, perverted mentality” who was a “Moscowdirected character assassin” serving as “the voice of international communism.”91 Over the next several weeks Pearson and McCarthy attacked and counterattacked, with Pearson often using his radio program to denounce McCarthy. The continuing row resulted in many letters of complaint to the FCC. Some followed the same attitude as that expressed by one writer who demanded that “Drew Pearson should not be allowed to broadcast his pro-Communist lies any longer. . . . The charges . . . about Communists in radio should be completely investigated in this time of great emergency, and Mr. Pearson might well be the first to go.”92 Others complained that “the innuendoes of Senator McCarthy have caused the withdrawal of commercial sponsorship from the unique and invaluable news commentary of Drew Pearson. This constitutes an attack on the fundamental right of freedom of speech guaranteed by the Constitution, which it is the duty of the FCC to safeguard.”93 Throughout the very public squabble between Pearson and McCarthy, and appeals from the general public, the FCC refused to get entangled, despite the fact that part of the controversy played out on the national airwaves. True to its newly confirmed position, the FCC wanted nothing to do with monitoring radio programming. In letter after letter the agency informed citizens that Section 326 prohibited it from getting involved in the controversy. It was a very effective way for the agency to avoid responsibility, despite the fact that American citizens often expected and wanted the FCC to do so. Unlike their New Deal predecessors, this Commission wanted nothing to do with reviewing or regulating content. The Red Scare hit the broadcasting industry in other ways, and the FCC maintained its refusal to get involved. During the 1950s Communists (or those perceived to be Communists) were increasingly censored by broadcasters. Vito Marcantonio, the only Communist Party representative in Congress in 1950, wanted to develop a weekly schedule of 15-minute broadcasts through which he would communicate to his constituents in New York City, which he planned to launch in December 1950. In midApril 1950 Marcantonio requested airtime from ABC, CBS, NBC, and station WMGM-New York City. All four outlets refused Marcantonio’s request, each citing different reasons for the decision.94 ABC refused to provide time unless it was for the purposes of reelection (it was not). CBS

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argued the same point and added that it was “contrary to this station’s policy . . . to hold time any longer than sixty days prior to a firm starting date.” The legislator contacted the FCC, who responded by simply asking each of the four why they would not sell time to Marcantonio. But the investigation stopped there and, despite the fact that several of Marcantonio’s constituents complained to the FCC about his inability to secure airtime, no further action was taken by the Commission.95 Similarly, a year later the People’s Progressive Party protested its treatment by three radio stations in Minnesota, Wisconsin, and Michigan. The three stations accepted payment from the Party to broadcast a tape-recorded speech by a member who attended the Second World Peace Congress in Warsaw in late 1950. But when the tape was delivered to the stations, each refused to broadcast the speech because it “was so obviously Communist propaganda” according to one station manager,96 and because the broadcast was “contrary to the policy of our government, [and] it followed the Communist line.”97 Again, the FCC refused to get involved. Even the publication of Red Channels, which listed the names of 151 alleged Communists who created radio and television programming, failed to elicit FCC attention. The issue of Communist influences in radio and television escalated. The Senate Judiciary Committee opened hearings into the “Subversive Infiltration of Radio, Television and the Entertainment Industry” in April 1951 and continued calling witnesses until April 1952.98 A panic-inducing article entitled “Reds in Your Living Room,” published by American Mercury in August 1953, informed readers that “the Reds are fighting back” from their loss of the motion picture industry to communicate propaganda and had “set up a potent weapon to assail you—right in your own living room!”99 The author detailed the Communist infiltration of both the Radio Writers’ Guild and the Television Writers of America, the latter of which was particularly disturbing because writers of some of the most popular TV shows at the time, including I Love Lucy, belonged to the TWA. By the time Americans were warned about Reds in their living room, however, two significant events occurred that completed the FCC’s transition from a moderate to a conservative agency. Dwight Eisenhower was elected President in 1952, the first Republican to hold that office since Herbert Hoover was elected in 1928. Eisenhower’s election meant that conservatives would gain the upper hand at the FCC, and in 1953 two outgoing commissioners were replaced by John Doerfer and Robert E. Lee, both of whom were ardent conservatives with strong ties to Senator Joseph McCarthy (see chapters 6 and 8). The strong conservative foundation of the FCC played no apparent role in changing its attitude toward programming, despite the fact that others were increasingly concerned about Communism in the broadcasting in-

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dustry. In early January 1954 the House Committee on Un-American Activities investigated “Communist Methods of Infiltration” of the entertainment industries.100 Even the explosion of Communist-related programming issues between March and June 1954 could not persuade the Commission to get involved. In early March 1954, CBS reporter Edward R. Murrow produced an episode of See It Now in which he criticized McCarthy’s use of lies, innuendoes, and half-truths in his efforts to reveal Communists. Although CBS received many congratulatory messages regarding the broadcast,101 the FCC was inundated with many letters complaining about it. As one letter-writer exclaimed, “The use of a TV channel should be operated in the public interest and not to aid the communistic [sic] cause.”102 Just one month later the explosive Army–McCarthy hearings started, and again the FCC received many letters from citizens complaining both about lack of television coverage of the hearings and about too much coverage. As usual, the FCC responded with Section 326. Although the increasingly conservative Commission of the early 1950s could effectively shun involvement in most programming complaints, it could not avoid its responsibilities with regard to Section 315. During the presidential campaign in 1952, the Commission received numerous inquiries and complaints regarding the legal status of the Communist Party. The issue arose after the People’s Progressive Party contacted the Commission complaining that the networks refused to provide both advertising time to their legally qualified candidates and equal coverage of the People’s Progressive Party’s convention.103 The Commission responded to the complaint in July by reminding the networks of their obligations under Section 315 to provide equal treatment to all political parties and candidates. Nonetheless, the networks covered the Democratic and Republican conventions gavel-to-gavel in July 1952 but refused to carry any of the People’s Progressive Party’s convention that same month. Soon thereafter the FCC found itself in the politically awkward position of having to remind broadcasters that the Communist Party was a legally recognized political party in most states, hence broadcasters were required to provide equal opportunity to Communist Party candidates. The Commission predictably received many letters criticizing its requirement. “How stupid can we be?” asked one citizen. “We may be dumb, but surely not so blind as to let the communists [sic] pull the wool over our eyes like this. Hasn’t someone the intestinal fortitude to stop this communist propaganda machine right in your own agency? We wish to protest this action and see that the Communist Party is given no radio or television time.”104 Despite the FCC’s statement, however, complaints about censorship of Communist Party candidates continued to arrive throughout the 1952 election season.

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CO NCLUSION Why did the FCC refuse altogether to get involved in broadcast programming issues in the 1950s, when it labored from 1940–1946 to establish its legal authority to do so? The broad answer lies in the strange mixture of politics and definitions of “public interest.” Prior to 1946 the New Deal FCC was very interested in regulating radio content, arguing that protecting the “public interest” meant protecting the public from economic censorship. Judicial approval of the Chain Broadcasting Rule gave the Commission permission to exercise authority over programming, but by the time “The Blue Book” was promulgated, a political shift from the left was already underway both nationally and at the FCC. New Deal policies once labeled Communistic fell into disfavor, and the gradual shift to a business-first interpretation of the public interest began. One of the clearest indications of this transition was its refusal to regulate programming. The agency quickly abandoned “The Blue Book” soon after its creation, then replaced the New Deal-inspired Mayflower Doctrine with the Fairness Doctrine. During the early 1950s, as the fear of Communist messages on the airwaves escalated, the FCC maintained its refusal to regulate programming, despite the fact that new conservative commissioners may have been interested in censoring subversive messages. In effect, the FCC adopted the conservative business-first definition of public interest and completely turned content decisions over to the industry. It was a complete about-face. New Dealers struggled for legislative and judicial approval of expanding FCC authority over all phases of the industry and succeeded in doing so, despite constant and stinging attacks from conservatives such as Dies, Kerr, Cox, Trammel, Sarnoff, Taishoff, and Miller. Soon after the Commission’s additional authority was affirmed, however, political transformations led the agency away from its hard-won authority. From a purely practical, bureaucratic perspective, the FCC refused to get involved in programming because it was expedient to do so. The agency was far more interested in exercising its noncontroversial authority over licensing, and in the mid-1940s it started paying much closer attention to Communists and licensing. Conservative commissioners such as Doerfer and Lee weren’t interested in monitoring programming. The increasingly conservative Commission wasn’t interested in subverting traditional definitions of business; it wanted to protect the broadcasting industry by both leaving programming decisions up to the networks, broadcasters, and advertisers and by protecting radio stations from Communist influences. The conservative Commission wanted to protect the business of broadcasting in the best way they knew how, and that was through licensing. Thus, the FCC essentially ignored programming issues (except when forced to enforce Section 315) and directed all its energy and

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resources to licensing. Growing piles of evidence indicated that the “real” subversive threat was not within the FCC, as long suspected by conservative politicians, but without. NO TES 1. Robert A. Taft to Frieda B. Hennock, 9 July 1948, Folder Appointments, Executive 1948, Box 893, Robert A. Taft papers, Library of Congress, Washington, D.C. 2. Stanley Neustadt to Jim Robertson, Series 1/Box 2/Folder 20, Jim Robertson collection, Public Broadcasting Oral History Project, National Public Broadcasting archives, University of Maryland, College Park, MD. Also, Mr. Neustadt repeated this information to the author during a personal interview conducted May 16, 1996. 3. Susan L. Brinson, Personal and Public Interests: Frieda Hennock and the Federal Communications Commission (Westport, CT: Praeger Publishers, 2002). 4. Sol Taishoff, “Blue Book, Red Ink, Budget and You,” Broadcasting, 3 March 1947, p. 14. 5. Bureau of the Census, U.S. Department of Commerce, “Radio and Television Stations, Sets Produced, and Households with Sets,” Historical Statistics of the United States, Colonial Times to 1970, Part 2 (Washington, D.C.: Government Printing Office, 1975), p. 796. 6. Ibid. 7. Ibid. 8. J. Fred MacDonald, Don’t Touch That Dial!: Radio Programming in American Life from 1920 to 1950 (Chicago: Nelson-Hall Publishing, 1979). 9. MacDonald, Don’t Touch That Dial!, p. 79. 10. Bureau of the Census, U.S. Department of Commerce, “Radio Advertising Expenditures, Finances, and Employment,” Historical Statistics of the United States, Colonial Times to 1970, Part 2 (Washington, D.C.: Government Printing Office, 1975), p. 797. 11. Ibid. 12. Communications Act of 1934, 47 USCS §326. 13. Trinity Methodist, South v. FRC, 62 F.2nd 850 (1932). 14. George H. Gallup, The Gallup Poll: Public Opinion 1935–1971: Volume One (New York: Random House, 1972), p. 285. 15. Ibid., p. 640. 16. Ibid., p. 587. 17. Ibid., p. 736. 18. Ibid., p. 873. 19. Robert B. Horwitz, The Irony of Regulatory Reform: The Deregulation of American Telecommunications (New York: Oxford University Press, 1989), p. 161. 20. James L. Fly to Burton K. Wheeler, 17 November 1942, Folder: 16 February 1939–31 December 1946/U.S. Senate Interstate Commerce Committee, Box 121, Office of Executive Director General Correspondence 1927–1946, FCC Archives, NARA, College Park, MD. 21. U.S. Congress, Senate, Comments of Burton K. Wheeler, 77th Cong., 2nd Sess., Congressional Record, Vol. 88, Part 6 (15 October 1942), p. 8201.

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22. Ibid. 23. James L. Baughman, Television’s Guardians: The FCC and the Politics of Programming 1958–1967 (Knoxville: University of Tennessee Press, 1985). 24. Paul Porter oral interview, James Lawrence Fly Project, Oral History Research Project, Columbia University, New York (1970), p. 24. 25. Clifford J. Durr, “How Free Is Radio?” National Education Association Journal 33 (October 1944): p. 167. 26. Clifford J. Durr, “Freedom of Speech for Whom?” Public Opinion Quarterly 8 (Fall 1944): p. 406. 27. Ibid. 28. John Salmond, The Conscience of a Lawyer: Clifford J. Durr and American Civil Liberties, 1899–1975 (Tuscaloosa: University of Alabama Press), p. 84. 29. Public Service Responsibility of Broadcast Licensees, 7 March 1946, Federal Communications Commission. 30. “FCC Tightens Up,” Business Week, 21 April 1945, p. 90. 31. “How Can We Keep Radio Free?” The American Forum of the Air, broadcast 4 December 1945 on MBS, transcript in Durr Collection, folder 4, box 16. 32. R. M. Thompson to Frank T. Bow, 29 September 1948, Box 1, Administrative Records, 1948 Select Committee to Investigate the FCC, Records of the House of Representatives, NARA, Washington, D.C. Elinor Bontecue is not listed in this congressional document among the employees who participated in the creation of “The Blue Book.” Charles Siepmann revealed her participation in an oral interview with Richard Meyer, as cited in Richard J. Meyer, “‘The Blue Book,’” Journal of Broadcasting 6 (summer 1962): pp. 197–207. 33. Clifford Durr to Charles Siepmann, 14 May 1943, Folder 9, Box 38, Clifford Durr collection, ADAH. 34. Charles A. Siepmann, Radio’s Second Chance (Boston: Little, Brown and Company, 1946), pp. vi–vii. 35. Meyer, “‘The Blue Book,’” pp. 197–207. 36. Public Service Responsibility of Broadcast Licensees, 7 March 1946, Federal Communications Commission, pp. 9–12; Trinity Methodist, South v. FRC, 62 F.2nd 850 (1930); NBC v. U.S., 319 U.S. 190 (1943). 37. Public Service Responsibility of Broadcast Licensees, p. 33. 38. Ibid., p. 39. 39. Ibid., p. 41. 40. Ibid., p. 47. 41. Ibid., p. 56. 42. “Is Radio Operating in the Public Interest?” ABC broadcast of America’s Town Meeting of the Air, 12 December 1946, transcript in Folder 4, Box 16, Durr collection, ADAH, p. 10. 43. For overviews see Richard J. Meyer, “Reaction to the ‘Blue Book,’” Journal of Broadcasting 6 (Fall 1962): pp. 295–312; Herbert H. Rosenberg, “Program Content—A Criterion of Public Interest in FCC Licensing,” The Western Political Quarterly 2 (September 1949): pp. 373–401. 44. Robert K. Richards, “FCC Hits Programs; NAB Strikes Back,” Broadcasting, 11 March 1946, p. 15. 45. Ibid. 46. Ibid.

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47. Sol Taishoff, “F(ederal) C(ensorship) C(ommission),” Broadcasting, 18 March 1946, p. 58. 48. Robert K. Richards, “Radio Fixes Wary Eye on FCC Report,” Broadcasting, 25 March 1946, p. 17; Sol Taishoff, “Program Report: II,” Broadcasting, 25 March 1946, p. 58; Robert K. Richards, “Stations Asked to Face Duty in Crisis,” Broadcasting, 1 April 1946, p. 18; Fred Sample, “Chicago Meeting Adopts Strong Resolution,” Broadcasting, 1 April 1946, p. 18; Louis Caldwell, “Censorship Is Censorship,” Broadcasting, 1 April 1946, p. 25; Sol Taishoff, “Program Report: III,” Broadcasting, 1 April 1946, p. 50; Jean Eldridge, “Chicago Ad Men Decry FCC Report,” Broadcasting, 1 April 1946, p. 77; Sol Taishoff, “Program Report: IV,” Broadcasting, 8 April 1946, p. 46; “Miller Calls for United Radio Front,” Broadcasting, 15 April 1946, p. 18; Sol Taishoff, “Program Report: V,” Broadcasting, 15 April 1946, p. 58; “Miller vs. Siepmann,” Broadcasting, 29 April 1946, p. 106; “Blue Book Controversy is IER Theme,” Broadcasting, 13 May 1946, p. 34; “Durr Would Welcome Court Text of FCC Program Control,” Broadcasting, 13 May 1946, p. 34; “Blue Book Hit Again at ACLU Forum,” Broadcasting, 3 June 1946, p. 66; “Miller Calls FCC Advertising Threat,” Broadcasting, 1 July 1946. 49. Caldwell, “Censorship Is Censorship,” p. 25; Taishoff, “Program Report: III,” p. 50. 50. “Columbia U. Social Research Bureau Calls Meeting to Discuss ‘Blue Book,’” Broadcasting, 8 April 1946, p. 20; Paul Lazarsfeld, “An Episode in the History of Social Research: A Memoir,” in Perspectives in American History, Volume II, ed. Donald Fleming and Bernard Bailyn (Boston: Charles Warren Center for Studies in American History at Harvard University), p. 316. 51. Robert K. Richards, “Free to Broadcasters, $2.50 to Listeners,” Broadcasting, 8 April 1946, p. 20. 52. “Republican Chief Urges Free Radio,” Broadcasting, 8 April 1946, p. 15. 53. “Bridges Says Siepmann was Paid $839,” Broadcasting, 20 May 1946, p. 20. See also Richard J. Meyer, “Reaction to the ‘Blue Book,’” Journal of Broadcasting 6 (fall 1962): pp. 295–312. 54. Justin Miller, The Blue Book: An Analysis by Justin Miller, President, National Association of Broadcasters (Washington, D.C.: National Association of Broadcasters, 1947). A copy of this publication may be found in Folder 1, Box 34, Clifford Durr collection, ADAH. See also “Blue Book Blasted by NAB President,” Broadcasting, 26 May 1947, p. 15. 55. Miller, The Blue Book, p. 17. 56. Miller, The Blue Book, p. 3. 57. “Memorandum Opinion and Order,” In re: Petition of Robert Harold Scott for Revocation of Licenses of Radio Stations KQW, KPO, and KFRC, 11 FCC 372, 1946. 58. Ibid. 59. Rufus Carter, “Blue Book Issues Revealed by FCC,” Broadcasting, 11 November 1946, p. 13. 60. In re: Application of Hearst Radio, Inc. (WBAL), 15 FCC 1149 (1951). See also Rufus Carter, “WBAL Hearing Issues Announced,” Broadcasting, 23 November 1946, p. 15; “Pearson-Allen Ask ‘Blue Book’ Issues,” Broadcasting, 9 December 1946, p. 80.

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61. Rufus Crater, “Did FCC Staff Distort Blue Book Facts?” Broadcasting, 16 December 1946, p. 15. 62. Porter oral interview, p. 24. 63. Sol Taishoff, “Blue Book, Red Ink, Budget and You,” Broadcasting, 3 March 1947, p. 14. 64. Ibid. 65. “Blue Book Not Compulsory, Managers Say,” Broadcasting, 16 December 1946, p. 18. 66. Rufus Crater, “WBAL Hearing Issues Announced,” p. 15. 67. “Pearson-Allen Ask ‘Blue Book’ Issues,” p. 80. 68. “Blue Book is Code, Not Regulation,” Broadcasting, 13 January 1947, p. 20. 69. J. Frank Beatty, “Code Adopted,” Broadcasting, 24 May 1948, pp. 86–87. See also Richard J. Meyer, “Reaction to the ‘Blue Book,’” Journal of Broadcasting 6 (fall 1962): pp. 295–312; Herbert H. Rosenberg, “Program Content—A Criterion of Public Interest in FCC Licensing,” The Western Political Quarterly 2 (September 1949): pp. 373–401. 70. Hearst v. FCC, 167 F.2nd 225 (1948). See also “Blue Book Not Order, FCC Tells Court,” Broadcasting, 7 April 1947, p. 4; “WBAL-Blue Book Legal Battle Is Returned to District Court,” Broadcasting, 28 April 1947, p. 16; “Court Rejects WBAL Blue Book Plea,” Broadcasting, 7 July 1947, p. 4. 71. In re: Application of Hearst Radio, Inc. (WBAL), 15 FCC 1149 (1951). 72. J. Frank Beatty, “Code Adopted,” Broadcasting, 24 May 1948, p. 21. 73. Alan Brinkley, The End of Reform: New Deal Liberalism in Recession and War (New York: Alfred A. Knopf, 1995). 74. U.S. Congress, House, Select Committee to Investigate the FCC, Investigation of the FCC, 80th Cong., 2nd Sess., February 1948; U.S. Congress, House, Committee on Interstate and Foreign Commerce, Radio Frequency Modulation, 80th Cong., 2nd Sess., 1948. 75. “FCC’s Little Lamb,” Broadcasting, 17 May 1948, p. 136. 76. Brinkley, The End of Reform, p. 265. 77. Ibid., p. 268. 78. In the Matter of Editorializing by Broadcast Licensees, 13 FCC 1246 (1949). 79. Ibid. 80. See the testimony of Mark Woods, Frank Stanton, and Niles Trammell in “Hearings Concerning Broadcast Editorializing,” Before the Federal Communications Commission, Vol. 1 (1 March 1948), Box 3385, Docket 8516, FCC Docket Section, FCC Archives, NARA, College Park, MD. For advertisers and broadcasters, see the testimony of John D. Sullivan in Vol. 2 of the hearings (2 March 1948) and W. Theodore Pierson in Vol. 3 of the hearings (3 March 1948). 81. “Hearings Concerning Broadcast Editorializing,” Before the Federal Communications Commission, Vol. 2, p. 323 (2 March 1948), Box 3385, Docket 8516, FCC Docket Section, FCC Archives, NARA, College Park, MD. 82. See the testimony of Nathan Strauss and Robert Cushman, Vol. 2 (2 March 1948); Morris Novik, Vol. 4 (4 March 1948); and T. A. M. Craven, Vol. 7 (20 April 1948). 83. Patricia Heller to Wayne Coy, 4 March 1947, Box 3381, Docket 8516, FCC Docket Section, FCC Archives, NARA, College Park, MD.

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84. O. J. Hockley to FCC, 19 February 1948, Box 3382, Docket 8516, FCC Docket Section, FCC Archives, NARA, College Park, MD. 85. V. J. Erickson to FCC, 27 February 1948, Box 3382, Docket 8516, FCC Docket Section, FCC Archives, NARA, College Park, MD. 86. In the Matter of Editorializing by Broadcast Licensees, 13 FCC 1246 (1949). 87. Ibid., pp. 1257–1258. 88. See several letters in the Fulton Lewis folder, Box 57, General Correspondence 1947–1956, Office of Executive Director, FCC Archives, NARA, College Park, MD. 89. See, for example, T. J. Slowie to Julian Polaski, 23 July 1946, Box 55, Program Complaints/Communist Party October 1936–December 1956, General Correspondence 1947–1956, Office of the Executive Director, FCC Archives, NARA, College Park, MD. 90. “Pearson Helps Reds, McCarthy Declares,” New York Times, 16 December 1950, p. 6. See also Oliver Pilat, Drew Pearson: An Unauthorized Biography (New York: Harper & Row, 1973). 91. U.S. Congress, Senate, Comments of Joseph McCarthy regarding Drew Pearson, 81st Cong., 2nd Sess. Congressional Record, Vol. 96, Part 12 (15 December 1950), p. 16640. See also “Pearson Helps Reds, McCarthy Declares,” p. 6. 92. Mrs. J. Shell to Chairman, FCC, 16 December 1950, Drew Pearson Folder, Box 62, General Correspondence 1947–1956, Office of Executive Director, FCC Archives, NARA, College Park, MD. 93. Bennet Finler to Wayne Coy, 26 December 1950, Drew Pearson Folder, Box 62, General Correspondence 1947–1956, Office of Executive Director, FCC Archives, NARA, College Park, MD. 94. See the exchange of letters in Box 67, Folder Broadcasting January 1947–June 1950, General Correspondence 1947–1956, Office of Executive Director, FCC Archives, NARA, College Park, MD. 95. See several letters in Box 67, Folder Broadcasting/Political SpeechesControversial Issues January 1947–June 1950, General Correspondence 1947–1956, Office of Executive Director, FCC Archives, NARA, College Park, MD. 96. Thomas McCabe to FCC, 27 February 1951, Box 67, Folder Broadcasting July 1950–June 1952, General Correspondence 1947–1956, Office of Executive Director, FCC Archives, NARA, College Park, MD. 97. D. F. Prince to T. J. Slowie, 1 March 1951, Box 67, Folder Broadcasting July 1950–June 1952, General Correspondence 1947–1956, Office of Executive Director, FCC Archives, NARA, College Park, MD. 98. U.S. Congress, Senate, Subcommittee to Investigate the Administration of the Internal Security Act and Other Internal Security Laws, Committee on the Judiciary, Subversive Infiltration of Radio, Television and the Entertainment Industry, 82nd Cong., 1st and 2nd Sess., April 1951 to April 1952. 99. Martin Berkeley, “Reds in Your Living Room,” American Mercury, August 1953, p. 55. 100. U.S. Congress, House, Committee on Un-American Activities, Communist Methods of Infiltration (Entertainment), 83rd Cong., 2nd Sess., January 1954. 101. Fred Friendly, Due to Circumstances Beyond Our Control (New York: Vintage Books, 1967). 102. William Perrella to FCC, 13 April 1954, Joseph McCarthy File, Box 69,

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General Correspondence 1947–1956, Office of Executive Director, FCC Archives, NARA, College Park, MD. 103. C. B. Baldwin to FCC, 18 August 1952, Box 68, Folder Broadcasting July 1950–June 1952, General Correspondence 1947–1956, Office of Executive Director, FCC Archives, NARA, College Park, MD. 104. C. I. Gibbon to Paul Walker, 12 September 1952, Box 68, Folder Broadcasting July 1952–October 1952, General Correspondence 1947–1956, Office of Executive Director, FCC Archives, NARA, College Park, MD.

CHAPTER 5

A License to Subvert

“I Posed as a Communist for the FBI,” claimed FBI undercover agent Matt Cvetic in a three-part expose´ published in the July 1950 Saturday Evening Post.1 “The communists never suspected that one of their hardest workers was a pipeline to the FBI,” the Post triumphantly claimed. “They gave Matt Cvetic important jobs, and he gathered damning evidence for the day when he could at last put the finger on them all.” In page after page Cvetic detailed inside information on types of Communist “fronts,” how and where Communists conducted meetings, and the espionage work he did for the Communist Party. He revealed how radio station WLOA in Pittsburgh was used to communicate Communist messages, material that later caught the FCC’s attention. It was exactly the kind of activity the increasingly conservative FCC feared might occur, the use of the broadcast airwaves to spread subversive messages, and it prompted the agency to launch an investigation into the station and its licensee. The Commission decided it would not grant a license to subvert the “American way of life” with Communist messages. It was 1950, and much had changed at the FCC and, indeed, throughout the United States in the preceding 10 years. The exciting but traumatic years of New Deal regulation took their toll on the agency just as the war years took their toll on the nation. The country as a whole moved toward political moderation and, for the first time in decades, elected a Republicandominated House and Senate in 1946 to counter a Democratic President. The FCC entered a similar period during which New Deal–inspired regulations were attempted but failed when they met both industry opposition and politically moderate commissioners who were unwilling to

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advance their own regulatory initiatives. Between 1946 and 1953 the agency underwent a political transition. In 1946 Democrats dominated the Commission, a political reality with Harry Truman in the White House. Over the next seven years FCC appointments reflected the changing political atmosphere of national politics as President Truman appointed moderate Democrats and Republicans to fill vacancies. The blend of moderate commissioners resulted in a period of decision making that alternated between satisfying liberal and conservative agendas. The year 1946 marked a turning point for the FCC as the Red Scare began to make its way back into agency decisions. Release of “The Blue Book” prompted some industry members to question whether “pinknosed gremlins” participated in FCC decision making. But the question of Communist infiltration through programming decisions took a back seat to a more fundamental fear: subversive licensees. When the second wave of the Red Scare at the FCC began in 1946, it manifested itself principally via conservative attacks on licensees and license applicants. The fear of Communist influences shifted from the FCC regulators to the regulated, the people who actually controlled content, and the result was a political conflict that temporarily paralyzed the postwar FCC. Liberals questioned whether the political affiliation of a licensee was an appropriate or legal criterion on which to make a licensing decision, whereas FCC conservatives feared Communist use of the powerful broadcast media to communicate subversive messages. Thus, the Red Scare grew at the FCC. The FCC’s conservatism increased during these years as the Red Scare escalated in the United States. The agency’s shifting politics paralleled national statecraft as the House Committee on Un-American Activities (HCUA) expanded its investigations, and Senator Joseph McCarthy led a caustic and public anti-Communist attack. Indeed, the growing conservatism in U.S. politics found expression at the FCC as it actively initiated and pursued investigations of suspected Communist licensees, such as those at station WLOA in Pittsburgh. Their responses to accusations that some licensees were Communists revealed an increasingly conservative group of regulators. This stance is exhibited by the cases of Metropolitan Broadcasting, the Hollywood Community Radio Group, and station WLOA. LICENSIN G S U S P E C T E D C O M M U N I S T S : 1 9 4 6 – 1 9 5 1 The second phase of the Red Scare at the FCC began in 1946. Whereas the first phase (1940–1946) manifested itself in the form of accusations against the regulators themselves (Watson–Dodd, employee loyalty reviews, “The Blue Book,” etc.), the second phase focused on the alleged Communist sympathies of licensees. Between 1946 and 1948 two licensing cases ran concurrently, and at the heart of each was the accusation that

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the licensees were Communist or sympathetic to politically subversive causes. Both cases took two years to resolve, but came to very different ends. Considered together, the two cases communicate insights on the changing political culture at the Commission and the degree to which that shift affected regulatory decisions. Metropolitan Broadcasting Corporation The first case in which a licensee was accused of Communist sympathies came before the FCC in early 1946. Metropolitan Broadcasting Corporation (MBC) was formed in 1945 and immediately applied for two construction permits, the first in 1945 to build and operate WQQW-FM and the second in 1946 for WQQW-AM, both in Washington, D.C.2 During a hearing for WQQW-FM in mid-March 1946, the president of MBC testified that the company “had been conceived of more as a public service than a profit making venture.”3 Liberals and moderate Democrats who dominated the Commission appreciated MBC’s emphasis on public service, especially because just a week prior to the hearing the FCC released “The Blue Book” in which it stipulated the public-service responsibilities of licensees. WQQW’s promises admirably satisfied the liberal definition of public service, and the construction permit and license for WQQW-FM were approved soon after the hearing. Conservatives outside the agency, however, viewed WQQW’s publicservice mission with suspicion. In their view, a station more interested in serving the public than making money was evidence of subversive activity, and they acted quickly on their unease. The MBC license was swiftly attacked by Representative Lyle H. Boren (R-Oklahoma), a leading conservative legislator who protested the license in a letter to the House Committee on Un-American Activities and urged the Committee to review the Commission’s licensing decision.4 A day later in a letter to the FCC, Boren contended that “several of the stockholders of this station . . . have been subjects of investigation by the Committee on Un-American Activities, and that leads me to inquire whether the Commission is granting a license that will be used for the dissemination of propaganda.”5 The agency politely but firmly responded that Metropolitan’s application was the subject of a weeklong hearing during which “any member of the public was privileged to testify on behalf of or in opposition to the qualifications of the applicants.”6 Because no protests were raised during the open hearings, and MBC appeared to be financially stable and promised to program in the public’s interest, the Commission believed licensing the station was appropriate. The FCC closed its letter by inviting Boren to provide evidence that would substantiate his claims, especially anything that would demonstrate that MBC misrepresented itself during the hearings. The correspondence between the Commission and Boren ended, and for a short

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time it appeared as if the matter was concluded and the MBC license would not generate further conservative notice. However, attention increased when the House Committee on UnAmerican Activities showed a greater willingness to investigate Boren’s denouncements. Soon after Boren drew attention to MBC, the Committee requested the FCC’s file on the corporation. The file was a potential gold mine of information because it included a complete list of the board of directors, stockholders, employees, financial records, proposed programming, and transcripts of the FCC hearings held earlier that year. The Commission was required by law to comply with the request, after which it received no further communication from the House Committee, no summons for additional information, no requests for explanations. Given recent experiences with the Dies, Kerr, and Cox committees in which a constant flow of correspondence was maintained, the FCC might have reasonably assumed that lack of communication from the HCUA might mean a similar lack of interest. The political calm was suddenly and unexpectedly shattered four months later, in December 1946, when the Chief Counsel for the House Committee on Un-American Activities, Ernie Adamson, released a report that included 22 pages “of allegations of subversive connections or activities against the Metropolitan Broadcasting Corporation.”7 The FCC was caught completely unaware. It had not heard from the HCUA since delivering the files in August, thus the Commission did not know how the HCUA was using the MBC case files, whether the Committee was conducting an investigation, or even that information about MBC would be publicly communicated. As it turned out, the HCUA was nearly as uninformed as the FCC. Committee members didn’t know a public statement would be released either, and Adamson was fired for distributing the material without authorization.8 The information on and accusations against MBC were not included in official reports later produced by the Committee. Nonetheless, it was clear that the suspected Communist sympathies of Metropolitan Broadcasting and the Commission’s approval of its license were generating considerable attention from conservatives. As the Adamson wrinkle was smoothed over and no further requests to the FCC emanated from HCUA, it appeared again as if the Metropolitan Broadcasting case was closed. But conservative tenaciously continued to pursue the case, and it was reopened again when the Federal Bureau of Investigation (FBI) began investigating MBC in mid-1947. In a “personal and confidential” letter to Commission Chair Charles Denny, the FBI informed the agency of information it received from an employee of WQQW-FM that alleged considerable “suspicious” activity. Among a list of nine accusations, the anonymous employee asserted that 125 stockholders were concealed in the license application, one of whom was the owner of the Washington Cooperative Bookshop (cooperatives of all sorts

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were considered socialistic and, thus, suspicious). As further evidence of subversive activities, the correspondent revealed that the station refused to play the National Anthem, that several employees were involved in activities “of a leftist nature,” and the station had “a policy of turning down certain programs, although they could be assured of making money on them.”9 The latter was an especially damning accusation. Given the conservative perspective that an unwillingness to take full advantage of potential profit must be antibusiness, MBC’s refusal to carry some programs was tantamount to subversion. Denny immediately shared the letter with fellow commissioners during an executive session. After careful deliberation, they agreed that the only accusation they had the authority to investigate was whether Metropolitan fully disclosed all its financial information, including its stockholders. Upon reinvestigation the FCC found minor financial discrepancies with the original application but concluded that the corporation was not deceptive.10 Once again the Commission responded to outside complaints against MBC and reaffirmed its licensing decision. Regardless, in less than 18 months the MBC license provoked a complaint from a leading member of Congress, an investigation by the House Committee on Un-American Activities, and an FBI inquiry, all of which focused on the suspected subversive activities of Metropolitan. All this outside interest forced a hesitant FCC to launch its own new investigation of MBC. It was not an exercise the agency undertook eagerly; the Commission preferred to rely on information provided by correspondence and during public hearings to make decisions, rather than conducting inquiries. Moreover, given congressional tightening of the FCC operating budget in the postwar period, the agency could ill afford an investigation. On the other hand, failure to scrutinize MBC in the face of complaints emanating from powerful conservative offices would potentially place the FCC in a difficult political position, and the Commission’s trying experiences with Congress between 1940 and 1944 were still fresh in the minds of many who walked FCC halls. The agency nevertheless embarked on its own investigation. In midSeptember 1948, FCC Chair Wayne Coy asked FBI Director J. Edgar Hoover to share information he had about the possible subversive activities of anyone associated with Metropolitan Broadcasting Corporation. Coy provided a list of over 300 people in whom the FCC was interested.11 Hoover demurred and asserted that an investigation of all of the people on the FCC list would require considerable time and effort; a specific list of individuals was deemed necessary. Hoover further informed Coy that “the present Attorney General has not designated any presently existing organization as one which advocates the overthrow of the U.S. Government by unconstitutional means.”12 Unable to get detailed information about the hundreds of people involved in Metropolitan Broadcasting, but

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essentially informed that the corporation was not considered a threat to the United States, the FCC again went into Executive Session to consider the Metropolitan Broadcasting license. With FBI “approval” in hand, the agency closed its investigation in mid-November 1948, satisfied that it had not licensed a Communist-controlled radio station.13 The MBC case was closed, and the first manifestation of a renewed and reinvigorated Red Scare at the FCC came to an end. Two and a half years elapsed from Boren’s initial denouncement to the executive session that closed the case. During the intervening months the FCC responded cautiously to continual accusations against MBC, first ignoring the complaints then ultimately investigating them. It was only when the agency felt it was on firm political ground, after Hoover informed the Commission that MBC was not listed by the Attorney General as a subversive group, that it settled on its licensing decision. Conservatives continued to monitor the threat of Communist infiltration of the broadcast airwaves, and there was ample evidence to convince them that they were justified in their fears. In just the 10 years between 1938 and 1948 both anecdotal and scholarly evidence indicated that radio probably had more power than any other mass medium to influence individual and societal attitudes and behaviors. The resulting “panic” caused by the “War of the Worlds” broadcast in October 1938 revealed that listeners could be motivated to take drastic actions by even the absurd suggestion that Martians were invading the country. A few years later political scientist Paul Lazarsfeld provided more sobering indications of radio’s power to indirectly influence voting decisions among people who didn’t even listen to the medium, and thereby established the two-step flow theory of media effects.14 Throughout World War II it was increasingly clear that radio could be used as a very powerful propaganda tool, as both the Allied and Axis powers demonstrated. Thus, conservatives felt fully justified in campaigns to prevent organizations such as Metropolitan Broadcasting from getting licenses and broadcasting subversive messages. There were plentiful signs that radio broadcasts were a powerful method by which to communicate Communist ideology to an unsuspecting and easily manipulated mass audience, which is exactly what anti-Communists feared of the Hollywood Community Radio Group. Hollywood Community Radio Group Concurrent with the MBC licensing decision, a second license application made by the Hollywood Community Radio Group (HCRG) marked the growing willingness of the FCC to measure its license applicants with a political yardstick. Unlike MBC, however, the case of the HCRG resulted in a political firestorm at the Commission that temporarily paralyzed the agency.

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The case started in July 1946 when HCRG applied for a license to operate a radio station in Los Angeles. The frequency allocation HCRG sought was desired by several broadcasting companies, thus the FCC scheduled a public hearing for the following December to be held in Los Angeles. At this point HCRG’s application was unremarkable, but that changed in November 1946 when FBI Director J. Edgar Hoover sent an unsolicited memo to FCC Chair Charles Denny in which Hoover declared that “a majority of the officers and directors of the Hollywood Community Radio Group are members of the Communist Party or have affiliated themselves with the activities of the Communist movement.”15 The Bureau’s action itself was insignificant; an active correspondence between the FCC and the FBI had been going on for years, each requesting information from the other regarding individuals and/or organizations. Denny asked Hoover to provide details about HCRG that could be used in the upcoming hearing and assured the Director that “the interest of the Bureau in this matter would of course not need to be mentioned at that proceeding.”16 Information from the Bureau did not arrive at the Commission before the hearings commenced in Los Angeles two weeks later. HCRG presented a compelling case by promising that its program policy would “measure and evaluate [commercial and sustaining programs] on the basis of broad public interest” and further vowing to create a broadcast schedule composed of 40 percent sustaining and 60 percent commercial programs.17 Like the MBC application, this was an affirmative argument to make before an agency that a few months previously issued a strong preference statement regarding programming through its “Blue Book.” The HCRG application was further bolstered by a healthy financial showing and the pledge of programming support from a wide variety of local governments, civic organizations, universities, and individuals in the Los Angeles metropolitan area. Yet HCRG’s strong appeal was challenged by formidable foes. The most powerful was Senator Jack B. Tenney, the chair of the California Legislature’s Committee on Un-American Activities (otherwise known as the Tenney Committee). Tenney testified that several members of the HCRG board of directors were investigated by his committee and revealed to be members of a variety of subversive organizations.18 As he later wrote, “[T]he Hollywood Community Radio Group, Inc. is Communist inspired and directed.”19 Tenney’s opposition was bolstered by public complaints against the HCRG application. Individuals and organizations wrote to their senators protesting the HCRG license.20 The Beverly Hills Republican Club strongly protested against the HCRG, arguing that “a radio broadcasting station would permit these Communist-minded individuals to impregnate the minds of the unknowing and unwary and the facile minds of the young with dangerous and vicious propaganda.”21 The California

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Department of the American Legion passed a resolution against the HCRG application, asserting its belief that “a considerable number of the individuals who are prominent in the [HCRG] are Communists or follow faithfully the Communist party line and . . . it is reasonably certain that the station would be used to spread the philosophy of Communism and the interests of Soviet Russia to the detriment of the United States of America and its form of government and would do incalculable harm to our government and our American institutions.”22 The American Legion sent copies of the resolution to FCC Chair Charles Denny and to various representatives of California in the U.S. House and Senate, all of whom wrote to Denny asking for information about the FCC’s position on the HCRG application.23 Government organizations protested against HCRG as well. Unlike MBC, in which conservatives protested the license after it was granted, the anti-Communists vigorously protested HCRG during the application process. With a deadline of May 1947 to file opinions on the licensing decision, letters and legal briefs flowed into the Commission. The FBI renewed its interest in HCRG when it received information that traveled a circuitous route from “A Patriotic American” to radio personality Walter Winchell, who forwarded it to Hoover, who furnished it to the Commission.24 The anonymous letter supplied detailed information about the specific activities of individual officers of the HCRG. “I think you will agree with me,” A Patriotic American wrote to Winchell, “when I state that one of the greatest tragedies that could befall the state of California would be for an organization such as [HCRG] to obtain the means of mass communication afforded through radio facilities.”25 Ultimately the House Committee on Un-American Activities joined the growing interest in HCRG and requested the applicant’s file, which, like the MBC file, contained complete documentation regarding everyone involved in HCRG. Although the HCRG and MBC cases ran concurrently and both involved accusations of Communist sympathies against their organizational members, the HCRG case was different in significant ways. Unlike MBC, testimony was given publicly during HCRG’s licensing hearing in which its members were accused of Communist affiliations. Moreover, a growing number of prominent politicians and individuals were willing to openly declare their belief that an HCRG license would do “incalculable harm” to listeners. Unfortunately, HCRG did not enjoy similar public pronouncements supporting its application. In its own defense HCRG argued that Tenney’s accusations were illegal and, even if they were true, irrelevant because membership in the Communist Party was legal. Further, HCRG argued, the Communications Act of 1934 did not grant the FCC authority to make licensing decisions based on political affiliations.26 Yet this fact, as argued in HCRG’s “Proposed Findings of Fact and Proposed Conclu-

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sions of Law,” was virtually buried in the FCC docket file among the accusations of Communist affiliation. The FCC was uncertain about how to react to the politically precarious situation. Initially it attempted impartiality, acknowledging complaints with assurances that letters would be included in the official file or, in the case of more accusatory letters, with the directive that “under the law, the Commission’s decisions must be based upon the evidence in the record and, therefore, if you have any evidence that bears upon the qualifications of the application, you may desire to appeal and testify at the hearing.”27 But with the public phase of the application process concluded and the competing applicants awaiting a decision, the FCC found itself at an impasse. The HCRG lawyers were on solid legal ground in arguing that the Communications Act of 1934 did not give the Commission the specific statutory authority to use political affiliation as a yardstick by which to measure the character qualifications of license applicants. Thus, conservative demands that the HCRG’s alleged political affiliation should be used as the reason to reject its license application was not a legal basis for a Commission decision. Conversely, granting a license to a radio station that many believed would be operated by Communists was politically untenable for the agency. The licensing decision was a political powder keg waiting to explode, with conservatives growing increasingly fearful about Communist infiltration, liberals fretting about threats to constitutional guarantees of civil liberties, and moderates who didn’t fancy character attacks but who dreaded opposing conservatives in powerful governmental positions. The Commission was paralyzed; it simply refused to make a judgment on the license, leaving the HCRG and its four coapplicants waiting for an answer. The explosion occurred in early December 1947, and not surprisingly, it was Clifford Durr who lit the fuse. Nearing the end of his seven-year tenure as a commissioner, Durr was deeply disturbed by the growing conservatism of American politics and especially his own Democratic party. President Truman’s Executive Order 9835, which created a loyalty program for federal employees, offended Durr’s liberal sensibilities, but he found signs of the maturing conservatism even closer at the FCC. Durr distrusted the Bureau’s investigative techniques and its use of the information it collected, especially since the Watson–Dodd debacle and his own experiences with the FBI. He was therefore incensed that the FBI compiled information about HCRG and MBC and sent the unsolicited documentation to the FCC. Moreover, Durr believed the FBI clearly exceeded the authority granted in Executive Order 9835, which gave the federal government authority to investigate the possible subversive activities of federal employees. He asserted that the executive order did not grant investigative authority over private citizens such as those involved with HCRG and MBC and publicly expressed his ire in an October 1947 speech

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before the National Association of Educational Broadcasters in Chicago.28 Durr later explained that he “expressed the fear that the present concern with men’s opinions would not stop with the movies [referring to the Hollywood Ten], but would spread to radio and even to our schools and universities. I said . . . that the FBI had sent to the FCC unsolicited reports upon people connected with radio who were not government employees, and that many of these reports contained little more than gossip.”29 Durr’s comments were publicized a month later when Hoover defended the FBI’s investigations and asserted that the Bureau “‘would be subject to criticism if it placed the information in its files without calling it to the attention of interested Federal agencies.’”30 Hoover exacerbated the volatile situation when he notified the Commission that “since the other commissioners had not repudiated Durr, [Hoover] assumed that the FCC did not want this data and no more would be sent.”31 Durr’s criticism put the FCC in yet another political crucible. The commissioners met in executive session in early December 1947 to determine whether they would support Durr and take a stand against the FBI’s unsolicited information or appease Hoover by telling him they wanted it. The FCC’s official response to the controversy clearly communicated the shifting ideological perspective within the Commission. Durr contended that the FBI material was a serious threat to individual liberties because the accusations contained therein “were never brought out into the light for public inspection and the accused had no way of knowing what they were accused of.”32 He further insisted that “it would be wholly improper for [the Commission] to base its decisions on ‘information’ not contained in the [public] record, and it is wholly improper for anyone to attempt to influence [the Commission] to make its decisions other than on the basis of the record.”33 Commissioner Robert Jones took an equally strong stand supporting Hoover and the FBI. Jones was a recent FCC appointee who assumed his position only four months earlier, before which he was a Republican member of the Ohio delegation to the U.S. House of Representatives. “I firmly believe,” Jones asserted, “that the [FBI] has not only the right but the duty and responsibility of furnishing to the [FCC] such information . . . which appears to be pertinent or material to some matter being handled by the [FCC]. . . . [and] . . . that the Commission should not only accept material from all Government departments which may pertain to its official activities, but that it should welcome and even solicit such material.”34 Discussion of the broad political implications of whether to accept the FBI information soon gave way to the practical ramifications. Fearful of political retaliation from both conservative legislators and Hoover himself, the majority of Durr’s colleagues took the politically expedient course and distanced themselves from Durr’s accusations. The Commission’s letter to Hoover did not specifically denounce Durr, but stipulated that his

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comments were his own and did not represent the sentiment of the entire Commission. Acting Chair Paul Walker further expressed the Commission’s “confidence in the Federal Bureau of Investigation and [advised Hoover] that it is desirous of receiving from your Department information concerning matters within the jurisdiction of the Commission.”35 This decision was an early example of the shifting political climate at the Commission. If there was one incident that most clearly communicated the political shifts underway at the FCC in the late 1940s, it was the agency’s response to the Durr–Hoover conflict. The Commission’s choice to appease Hoover was a turning point. Asking Hoover to continue sending information about the alleged subversive activities of licensees and applicants meant the FCC turned the political corner and agreed that such information was relevant and useful to its own investigations. The agency validated the information by accepting it and requesting more. Although the commissioners may well have worried about Hoover’s retaliatory power, the letter also indicated their growing political interest in receiving information about suspected Communists. Had the FCC publicly supported Durr’s position and refused to accept Hoover’s unsolicited information, it would have confirmed what many already believed, that the FCC itself was controlled by subversives and “pink-nosed gremlins.” In the political context of late 1947, it was an accusation that carried considerably more weight than just five years earlier when Watson and Dodd were accused of Communist sympathies. The HCRG application languished for a year following the Durr– Hoover fiasco as the Commission refused to make a final determination regarding the license. Ultimately HCRG withdrew its license application, citing the financial difficulties caused by the FCC’s failure to make a timely decision.36 The HCRG withdrawal relieved the Commission of having to make a difficult decision. In effect, however, the Commission already made a more fundamental determination regarding its future handling of anti-Communist accusations against licensees and applicants. In its original responses to the MBC and HCRG accusations, the FCC accepted information but made little or no effort to actively investigate it. The agency attempted impartiality, or at the very least extreme caution in its handling of the MBC and HCRG cases. After the Durr–Hoover debacle, the Commission’s attitude changed. In future cases, the Commission became more aggressive in its investigations of suspected Communist licensees and applicants. In the future, the FCC took the attacks on Communist licensees seriously. THE FCC TUR NS R I GHT The Red Scare at the FCC subsided for a short period between late 1948 and 1951 as the Commission was preoccupied with other issues. The

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growing conservatism of the agency resulted in a different interpretation of public interest than that evidenced in the previous decade, a political reality manifested in the FCC’s decisions regarding the television and radio industries. Television was in turmoil. Although the postwar economy encouraged manufacturers to produce thousands of television sets that consumers eagerly purchased, and the broadcast networks developed programming, technical difficulties resulted in a vastly insufficient number of local television stations to deliver television signals to American homes. In 1948 the Commission stopped licensing new stations until the technical difficulties surrounding channel allocations for television transmissions could be resolved. Recently appointed Chair Wayne Coy assured the industry and consumers that the licensing Freeze would last only a few months, a pledge that later proved to be grossly underestimated. During the four years between issuing the Freeze in 1948 and delivering the final decisions in 1952, the agency struggled with a variety of judgments that forever influenced the development and growth of television in the United States. Chief among these decisions were selecting the color television technology that would become the standard for the entire industry to use, determining how to increase the amount of spectrum space reserved for television transmissions, and deciding whether to reserve television channels for educational, noncommercial programming. Hearings surrounding these issues consumed the FCC for many months as corporate titans (particularly RCA and CBS) competed against each other for FCC favor. Throughout the various hearings, the Commission increasingly followed a business-first definition of public interest, satisfying itself with choosing which of the major corporations would best serve the public and, thus, communicating a more politically conservative regulatory philosophy. Only Commissioner Frieda Hennock challenged this business-first policy. She was the lone New Dealer who promoted reservation of noncommercial channels for educational purposes, despite the outcries of profit-oriented broadcasters who hated to see potentially profitable TV channels “wasted.” As was clear during the many months of the Freeze and the ensuing decisions, the FCC was swayed in its decision making by corporate interests that greatly favored the commercial development of television along the same lines as radio.37 Indeed, the FCC made other decisions in the 1948–1951 time period that further communicated its acceptance of the industry’s position that the business of television was paramount. In April 1949, the agency issued its final ruling regarding spectrum allocations for FM radio. Television and FM interests fought for 10 years over limited spectrum space. The New Dealers of the Fly administration promoted FM over television in their May 1940 decision, granting FM radio the coveted 42–50 Mc,38 a bandwidth decision television interests believed was a considerable blow to

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the development of the visual medium. During the ensuing nine years the struggle for frequency allocations continued between FM and television, and following a series of hearings in 1944, 1945, and 1947, the Commission gradually reversed its earlier finding.39 By April 1949, the Commission revoked its earlier promotion of FM radio. FM was assigned entirely different frequencies, thus rendering obsolete every FM radio in the country because they could not receive the new bandwidths. Thus, between 1948 and 1951 the FCC made key decisions that heavily favored the interests of the corporate titans by promoting the development of television and simultaneously hindering FM, the only real competition to both standard radio broadcasting (in terms of sound quality) and television (in terms of spectrum allocation). By late 1951 the FCC communicated its growing conservatism by defining public interest according to business needs, not the needs of the American public. FCC attentions were diverted temporarily from the Red Scare, but overall fears of Communist influences in the United States escalated. The House Committee on Un-American Activities reached its zenith of power between 1948 and 1951,40 investigating all manner of alleged Communist influences in the United States. Communists allegedly had invaded labor unions, cooperatives, schools and universities, and the entertainment media, and the Red Scare increasingly assumed religious (Christian versus Jewish) and racial (White versus Black) undertones. The degree to which the federal government was supposedly infiltrated was made apparent in the highly publicized and sensational Whittaker Chambers–Alger Hiss case in 1949–1950. So complete was the fear of Communists in 1950 that Congress passed the Internal Security Act.41 Having found that the Communist movement was “a world-wide revolutionary movement whose purpose [was] . . . to establish a Communist totalitarian dictatorship . . . through . . . a world-wide Communist organization,”42 Congress essentially outlawed Communism in the United States. The Internal Security Act was wide ranging. It prohibited conspiracies to establish a totalitarian dictatorship in the United States, federal government employees from communicating with known Communists and vice versa, and employment of Communists in the federal government or defense facilities. The Act further required Communist and Communistfront organizations and all their members to register with the Attorney General and stipulated that such organizations were prohibited from using the postal service or broadcast facilities to communicate their subversive messages unless they clearly identified themselves as the creators of the message.43 In sum, the Internal Security Act of 1950 clearly revealed two fundamental facts about the United States: it was extremely afraid of Communists and would go to considerable lengths to control their influence. This was the sociocultural and political atmosphere in the United States

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as the FCC found itself faced with another accusation that a licensee was a suspected Communist, Pittsburgh’s WLOA. The 1950 Internal Security Act stipulated that Communists were not allowed to broadcast unless their subversive messages were preceded by the statement, “The following program is sponsored by , a Communist organization.”44 Thus, when the FCC learned that station WLOA in Pittsburgh was accused of broadcasting Communist-inspired material, it was forced to investigate. WLOA The WLOA case came to the FCC’s attention in May 1951, but actually started with the publication of “I Posed as a Communist for the FBI” in the July 1950 issue of Saturday Evening Post. In that article, Matt Cvetic dramatically outlined his years as an FBI spy inside a variety of Communist organizations. Cvetic explained his activities in the Communist party in Pittsburgh, which created a radio program entitled Keep America Free that was broadcast once a week on station WLOA:45 “We had convinced the station that we would restrict ourselves to cultural matters, . . . but that kind of presentation last only the first five minutes of our first broadcast. After that we switched to communist [sic] political preaching and pounced away on that theme for weeks. The manager of the station was engaged in constant warfare with the party member who was the program’s master of ceremonies.”46 This was the sum total of the information Cvetic provided about station WLOA, and it generated little attention from the FCC when it was published in July 1950. In the 10 months between its publication and the FCC’s first notice of it, however, the Internal Security Act was passed, and the broadcast of such material was deemed illegal. The newly passed legislation virtually required the FCC to investigate WLOA, despite the fact that the alleged broadcasts occurred prior to passage of the Act. The WLOA case is interesting on two counts. First, it revealed the FCC’s heightened interest in investigating allegations of Communist-influenced licensees. Unlike the earlier MBC and HCRG cases in which the FCC moved cautiously, the Commission was much more aggressive in its search for information about WLOA. The FCC learned about the accusation after WLOA applied for license renewal in early 1950. The agency immediately sent a letter to the Department of Justice requesting “any information you have in your files that may relate to the qualifications of WLOA to operate in the public interest”47 and thereby demonstrated its willingness to actively seek information about alleged subversion, rather than passively receive it. The case is of further interest because the Attorney General refused to share its intelligence on WLOA with the Commission. Nearly a year later the Commission again attempted to acquire

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information from the Justice Department, and again it refused to produce it. “My views on the matter remain unchanged,” the Attorney General wrote. “Since the Commission could not utilize any confidential information in possession of the Bureau at an open hearing, and the Commission cannot deny renewal of WLOA license without an open hearing, Department [sic] cannot comply with your request.”48 It was an obstacle the FCC repeatedly faced in its future attempts to investigate suspected Communist licensees. Thus, although the Commission was interested in preventing suspected Communists from receiving licenses, it was sometimes difficult to accumulate the evidence to achieve that end. In fact, the ability to do so effectively was dependent on the Department of Justice providing the information. Ultimately the Commission was unable to acquire evidence to substantiate Cvetic’s claims about WLOA, and the station’s license was renewed. The year 1952 closed with the FCC more willing to investigate Communist infiltration of broadcasting, with the first Republican elected to the Presidency since 1928, and with two vacancies coming up on the Commission. The appointments to those two open seats escalated the Red Scare at the FCC. CO NCLUSION The transformation of the FCC from a New Deal liberal agency to a conservative one was complete. For seven years the Commission metamorphosed from an executive agency still essentially tied to New Deal philosophies to an agency that actively sought out Communists. In the early years of this transitional period, the politically moderate FCC responded cautiously when faced with the accusations against Metropolitan Broadcasting, a prudence that turned to paralysis when faced with the loud and insistent cries that the HCRG was a Communist-front organization. The Commission became more conservative following the Durr– Hoover conflict and began to embrace accusations of Communism against licensees, as was clearly demonstrated in the WLOA case. The MBC, HCRG, Durr–Hoover, and WLOA cases were the necessary transitional events leading into a conservatism unlike anything experienced by the FCC since its inception. The second wave of the Red Scare reached full maturity between 1953 and 1960. Unlike the first wave, in which the Commission was the subject of attack, the FCC became the agent of attack. The initial skirmishes were over. In 1953 the FCC embarked on an antiCommunist crusade that rivaled Joseph McCarthy’s and Roy Cohn’s. NO TES 1. Matt Cvetic and Pete Martin, “I Posed as a Communist for the FBI!” Saturday Evening Post, 22 July 1950, p. 34.

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2. Report on the Metropolitan Broadcasting Corporation, 14 October 1948; Folder: Minute 10-C-48 (12 November 1948) Executive Session, Box 3 Confidential FCC Minutes, FCC Archives, NARA (hereafter Report on Metropolitan Broadcasting). 3. Ibid., p. 2. 4. U.S. Congress, House, Extension of Remarks by Lyle H. Boren regarding Application for Radio Station License by Metropolitan Broadcasting Corp., 79th Cong., 2nd Sess., Congressional Record, Vol. 92, Part 10, (25 March 1946), p. A1744. 5. Boren to Federal Communications Commission, 26 March 1946, Box 3 Confidential Minutes, FCC Archives, NARA. A copy of the letter is also included in U.S. Congress, House, Extension of Remarks by Lyle H. Boren regarding Application for Radio Station License by Metropolitan Broadcasting Corp., 79th Cong., 2nd Sess., Congressional Record, Vol. 92, Part 10 (25 March 1946), p. A1744. 6. Slowie to Boren, 2 April 1946, Box 3 Confidential Minutes, FCC Archives, NARA. 7. Report on the Metropolitan Broadcasting Corporation, p. 4; See also “Communist ‘Plot’ Charged in Inquiry,” New York Times, 26 December 1946, p. 13. 8. “‘Red’ Plot Report Annoys Committee,” New York Times, 28 December 1946, p. 53. 9. Report on the Metropolitan Broadcasting Corporation, p. 3. 10. Ibid. 11. Coy to Hoover, 17 September 1948, Folder: Minute 10-C-48 (12 November 1948) Executive Session, Box 3 Confidential FCC Minutes, FCC Archives, NARA. 12. Hoover to Coy, 23 September 1948, Folder: Minute 10-C-48 (12 November 1948) Executive Session, Box 3 Confidential FCC Minutes, FCC Archives, NARA. 13. Executive Session, Folder: Minute 10-C-48 (12 November 1948) Executive Session, Box 3 Confidential FCC Minutes, FCC Archives, NARA. 14. Paul F. Lazarsfeld, Bernard Berelson, and Hazel Gaudet, The People’s Choice (New York: Columbia University Press, 1948). 15. Denny to Hoover, 27 November 1946, Box 109 (Justice), General Correspondence 1927–1946, Office of Executive Director, FCC Archives, NARA. 16. Ibid. There is nothing in the FCC records that indicates whether the FBI supplied the information the FCC requested. 17. HCRG application, Exhibit 16, Docket 7695, Box 2940, FCC Docket Section, FCC Archives, NARA. 18. “8 Listed as Hollywood Radio Aides Called Red,” Los Angeles Examiner, 20 December 1946, p. 3; Jack B. Tenney, Red Fascism (Los Angeles, CA: Federal Printing Co., 1947); Edward L. Barrett, Jr. The Tenney Committee: Legislative Investigation of Subversive Activities in California (Ithaca, NY: Cornell University Press, 1951); “Proposed Findings of Fact and Proposed Conclusions of Law,” Submitted by the HCRG to FCC, 14 May 1947, Docket 7695, Box 2940, FCC Docket Section, FCC Archives, NARA. 19. Tenney, Red Fascism, p. 642. 20. Yarbrough to Knowland, 27 December 1946, Docket 7695, Box 2940, FCC Docket Section, FCC Archives, NARA. 21. Burnaby to Wakefield, 2 January 1947, Docket 7695, Box 2940, FCC Docket Section, FCC Archives, NARA. A prominent member of the Beverly Hills Repub-

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lican Club, Adolph Menjou, also wrote to the FCC expressing his concerns about the Hollywood Community Radio Group. 22. Clarke to Denny, 21 May 1947, Docket 7695, Box 2940, FCC Docket Section, FCC Archives, NARA. 23. For example, see Sheppard to Slowie, 19 May 1947; Gearhart to Denny, 20 May 1947; Wilson to Denny, 21 May 1947; all of which are in Docket 7695, Box 2940, FCC Docket Section, FCC Archives, NARA. 24. Wakefield to Hoover, 30 May 1947, Justice/Box 26, Office of Executive Director/General Correspondence 1947–1956, FCC Archives, NARA. 25. Hoover to Denny, 20 May 1947, Docket 7695, Box 2940, FCC Docket Section, FCC Archives, NARA. 26. “Proposed Findings of Fact and Proposed Conclusions of Law,” In re: Application of Huntington Broadcasting Co. et al., Docket 7695, Box 2940, FCC Docket Section, FCC Archives, NARA. 27. Wakefield to Burnaby, 16 January 1947, Docket 7695, Box 2940/FCC Docket Section, FCC Archives, NARA. 28. “FBI Defends Reports on U.S. Personnel,” New York Times, 22 November 1947, p. 2; Jan Housbrouck, “J. Edgar Hoover’s Gossip Mill,” New Republic, 15 December 1947, pp. 20–21. 29. Durr to Heselton, 24 November 1947, Box 35/Folder 4, Clifford J. Durr collection, Alabama Department of Archives and History, Montgomery, AL (hereafter CJD). 30. “FBI Defends Reports on U.S. Personnel,” New York Times, 22 November 1947, p. 2. 31. Housbrouck, “J. Edgar Hoover’s Gossip Mill,” p. 20. 32. Durr to John Heselton, 24 November 1947, Durr collection, Box 35/Folder 4, CJD. 33. “Position of Clifford Durr,” Durr collection, Box 35/Folder 5, CJD. The same document may also be found with Minute #1-C-47 (1 December 1947), Executive Session (General), Box 3, FCC Archives, NARA. 34. “Position of Commissioner Jones,” Minute #1-C-47 (1 December 1947), Executive Session (General), Box 3, FCC Archives, NARA. 35. Walker to Hoover, 1 December 1947, Minute 1-C-47, Executive Session General Files, National Archives and Records Administration (NARA). See also “Hits FBI-FCC Dispute,” New York Times, 6 December 1947, p. 10. 36. “Petition to Dismiss Applications Without Prejudice,” Docket 7695, Box 2940/FCC Docket Section, FCC Archives, NARA. 37. Susan L. Brinson, Personal and Public Interests: Frieda Hennock and the Federal Communications Commission (Westport, CT: Praeger Publishers, 2002). 38. “Report on Frequency Modulation,” 39 FCC 29 (20 May 1940), Docket 5805. 39. See “In the Matter of Frequencies to the Various Classes of Non-Governmental Services in the Radio Spectrum from 10 Kc to 30,000,000 Kc,” 39 FCC 68 (25 May 1945), Docket 6651; “In the Matter of Allocation of Frequencies,” 39 FCC 222 (27 June 1945), Docket 6651; “In the Matter of Allocation of Frequencies,” 39 FCC 230 (5 March 1946), Docket 6651; “In the Matter of Amendments to the Commission’s Rules and Regulations Governing Sharing of Television Channels and Assignment of Frequencies to Television and Non-Governmental Fixed and Mobile Services,” 39 FCC 336 (5 May 1948), Docket 8487.

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40. Walter Goodman, The Committee: The Extraordinary Career of the House Committee on Un-American Activities (New York: Farrar, Straus and Giroux, 1968). 41. Internal Security Act of 1950, 64 Stat. 987. 42. Ibid. 43. Ibid., p. 996. 44. Ibid. 45. Cvetic and Martin, “I Posed as a Communist for the FBI!” p. 53. 46. Ibid. 47. FCC to Department of Justice, 10 May 1951, Miscellaneous Bureau Files, Box 780, Department of Justice Record Slips 1910–1967, NARA, College Park, MD. 48. See the exchange of these letters from FCC to Justice, 30 January 1952, and Attorney General to FCC, 20 February 1952, in Miscellaneous Bureau Files, Box 930, Department of Justice Record Slips 1910–1967, NARA, College Park, MD.

CHAPTER 6

The FCC versus Edward Lamb

The three FCC employees were on a mission. They traveled to Toledo, Ohio, in early April 1954, and checked into downtown’s Park Lane Hotel. Attorneys Walter Powell and Thomas Fitzpatrick and accountant Robert Leahy journeyed to northwest Ohio with one purpose: to investigate the background of a locally prominent lawyer and broadcaster, Edward Lamb. They believed they had evidence that Lamb was a Communist, and for several days that April they searched for corroboration among known Communists in Toledo.1 Edward Lamb interpreted their activities differently, though, and asserted that they were in Toledo to bribe locals to perjure themselves by falsely accusing him of Communist activities, and he offered a $10,000 reward to anyone who could prove that he was a Communist.2 Political intrigue, bribery, and perjury. The strange case of the FCC and Edward Lamb would be absurd, if it wasn’t true. The Edward Lamb case propelled the FCC to the forefront of national politics and cast the agency as a leading player in the anti-Communist pursuit of subversives. An alchemy of events led the agency to its conservative position. Since 1946 the FCC had grown more politically conservative in its approach to regulating the broadcasting industry and, simultaneously, established Communist affiliation as a character issue in licensing decisions. The election of Republican President Eisenhower in 1952 resulted in the appointment of two men who brought a profoundly conservative, anti-Communist agenda to the FCC, John C. Doerfer and Robert E. Lee. The political shift to the right that was initiated by the Durr– Hoover debacle and completed by the WLOA investigation was firmly entrenched when Doerfer and Lee joined the Commission. More than any-

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one or anything else, both were responsible for the FCC’s full-scale entrance into the hunt for subversives between 1953 and 1960 and, thus, the Red Scare arrived at the FCC in all of its full-blown zeal. One result of the Red Scare at the FCC was the battle between the agency and Edward Lamb, a four-year struggle marked by a constant and contentious series of attacks and counterattacks that ultimately left both sides battered. Edward Lamb was a prominent and wealthy lawyer whose license renewal became the center of a political firestorm at the FCC. His political leanings were familiar to the Commission since 1948, when he was first publicly accused of being a Communist. Despite being cleared of the charge, in 1953 the FCC continued to believe that he was a Communist and tenaciously argued that he did not have the necessary character qualifications to be a licensee. Lamb was equally indefatigable, ultimately spending nearly $1 million to defend himself against the agency,3 including hiring a former U.S. Attorney General as his defense counsel, making two trips to federal court to challenge the FCC actions, and enduring 61 hearing days.4 The Edward Lamb case consumed four years, commanding the attention of the agency, Congress, and the general public, ultimately becoming “a spy melodrama, soap opera, and detective story all wrapped up in one package.”5 AN TECEDE N T S T O F C C V. L A M B The Lamb case was markedly different than the Communist-related cases that preceded it. Unlike the Metropolitan Broadcasting, Hollywood Community Radio Group, and WLOA cases, the FCC had a long history with Edward Lamb and his suspected Communist sympathies. Further, the arrival of commissioners Doerfer and Lee signaled a significant shift to the political right that motivated the agency to take a harder stance against alleged Communists. Once these elements combined in 1953, a test of wills ensued that pitted an anti-Communist federal agency against a stubborn, wealthy, liberal broadcaster. Doerfer and Lee The inauguration of President Dwight Eisenhower and Vice-President Richard Nixon in January 1953 fundamentally shifted the balance of power at the FCC as Republicans were appointed to fill vacancies created by departing Democrats. Presidents make executive agency appointments in highly charged atmospheres in which nominations are often repayment for political favor. Thus, politicians other than the president play a significant role in selecting individuals for executive appointment, as was the case in 1953 when Vice-President Nixon and Senator Joseph McCarthy (R-Wisconsin) were pivotal in placing two ardent anti-Communists on the

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FCC. Doerfer’s and Lee’s confirmations were the culmination of this type of back-room politicking.6 Senator McCarthy and Vice-President Nixon were central to the Doerfer and Lee appointments. As the 1952 presidential campaigns got under way, Republican candidate Eisenhower and McCarthy traded political favors. McCarthy agreed to throw his considerable influence behind the General’s candidacy, and in return, Eisenhower agreed to favor McCarthy men for executive appointments. As it turned out, McCarthy figured importantly in the resulting landslide election of Dwight Eisenhower to the presidency.7 True to his promise, Eisenhower endorsed two men whom McCarthy supported for appointment to the FCC. McCarthy’s interest in broadcasting issues began in the spring of 1952 when he launched a public campaign against the “vast number of Communists” in the industry.8 A few months later, during the fall 1952 campaigns, Ohio broadcaster Edward Lamb preempted a McCarthy speech on two of his television stations and instead broadcast the address at midnight,9 a slight that likely increased the senator’s interest in broadcast regulation and provoked the investigation of Edward Lamb. The political motivations of McCarthy’s interest in broadcast regulation were clearly evident when McCarthy strongly protested a construction permit the FCC granted to an applicant whose newspaper opposed the senator’s reelection.10 Thus, soon after inauguration when it came time to fill an FCC vacancy, McCarthy was already interested in broadcasting issues and called in a political favor. He pushed for the appointment of John C. Doerfer, who also was a fervent anti-Communist from Wisconsin. McCarthy’s choice received strong support from Vice-President Richard Nixon, whose anti-Communist credentials were as impressive as McCarthy’s. Elected to the House of Representatives in 1946, Nixon immediately joined the House Committee on Un-American Activities (HCUA), where he became one of the most prominent members during the committee’s peak period of power and influence. During his tenure, Nixon proved himself to be one of the most competent committee members, and by the time he left the Committee in 1952, he was lauded for his central role in the Whittaker Chambers–Alger Hiss hearing and for pushing through the Internal Security Act of 1950.11 Indeed, after his appointment Doerfer appeared to function at Nixon’s behest, to the extent that fellow conservative Commissioner Robert Lee observed, “White House officials acted as if Doerfer was the real head of the Commission.”12 Thus, Eisenhower paid political debts when he nominated Doerfer (and soon thereafter Lee) to the FCC. The Senate hearing to confirm Doerfer’s appointment merely gave the illusion that the candidate would be seriously examined.13 Twelve days after Eisenhower nominated him, the Senate Interstate and Foreign Commerce Committee held a 30-minute hearing to assess Doerfer’s qualifica-

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tions.14 Eight attending committee members (out of 15) learned that Doerfer was an attorney from Madison, Wisconsin, who served as the City Attorney for West Allis, Wisconsin, from 1940–1949, then was appointed as a commissioner on Wisconsin’s Public Service Commission. When Committee Chair Charles Tobey (R-New Hampshire) asked Doerfer if he knew much about the FCC, the nominee replied that he was “not too familiar” with the agency, to which Tobey responded that “It is just as well, because I think it is the weakest Commission in Washington, and hope you will strengthen it. I believe you will.”15 After a brief discussion with Doerfer and Governor Walter Kohler of Wisconsin, who championed Doerfer’s nomination, the hearing ended. “Don’t be too apprehensive [about your confirmation],” Tobey comforted Doerfer.16 The next day the Senate approved the nomination, and Doerfer began his tenure on April 15, 1953. He had been quietly nominated and swiftly appointed to the FCC. Unlike Doerfer, Robert E. Lee’s recess nomination and appointment were highly controversial. Lee’s carefully scrutinized background revealed that he was employed by the FBI for eight years between 1938 and 1946, during which he served as a Special Agent from 1938–1941. He enjoyed two promotions between 1941 and 1946, first to administrative assistant to Director J. Edgar Hoover and finally to Chief Clerk of the FBI.17 In 1946 Lee moved to Congress, where he became the chief investigator for the House Appropriations Committee. Lee’s behavior as the chief investigator became highly controversial in 1950 when his close friend, Senator Joseph McCarthy, announced that he had a list of suspected Communists in government employment. Many who questioned the origins of the list learned that it was created by the House Appropriations Committee, and it was strongly suspected that the committee’s chief investigator, Robert E. Lee, provided it to McCarthy.18 Lee was involved in another partisan controversy that same year. The senate race between incumbent Democrat Millard Tydings and Republican John Butler was noteworthy for the dirty politics involved. McCarthy loudly supported Butler while Lee stayed behind the scenes and arranged the financing for the dirty politics.19 By the time Lee was nominated to fill the FCC vacancy, he was well known among conservative and liberal politicians alike. The Senate confirmed Lee’s appointment in January 1954, and conservatives were pleased to see another like-minded person placed on the Commission they believed was unruly. Liberals, however, were suspicious that Lee would use his position “to case the industry as a forerunner to action by the House Un-American Activities Committee.”20 Upon confirmation, Lee joined Doerfer in pursuing Communists through the FCC, especially Edward Lamb, who was already in Doerfer’s sights.

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“A Person to be Destroyed”: Edward Lamb Within three months of Doerfer’s appointment as an FCC commissioner in early 1953, the agency began an investigation of Edward Lamb’s suspected Communist activities.21 Lamb was well known among businesspeople, politicians, and broadcasters as a politically progressive man who acted on his ideals in both his legal and business enterprises. He was educated at Dartmouth, Harvard, and Yale before he received his law degree from Western Reserve in Cleveland, Ohio, in 1927.22 Although he was raised in a conservative home and became politically active, Lamb’s politics were profoundly altered by the Depression. After a lengthy trip throughout Europe, the Soviet Union, and Asia in the early 1930s, Lamb published a book entitled The Planned Economy of the Soviet Union in which he lauded the U.S.S.R. for effectively caring for its citizens. He similarly castigated U.S. business and government for their ineffectiveness at accomplishing the same goal, especially during a time of economic crisis. Lamb settled in Toledo, Ohio, where he started a law practice and turned his political attentions and legal talents to promoting labor laws. He successfully defended workers involved in strikes against major corporations such as Bethlehem Steel and Republic Steel and traveled extensively throughout the upper Midwest to help organize and unionize workers. In short, Lamb became a strong and effective advocate of the union movement throughout the 1930s and 1940s.23 As his stature as a leading labor lawyer grew, so too did his national reputation as a leading progressive. His memberships in liberal organizations grew, such as the American Committee for Protection of the Foreign Born (for which he served as president in 1941), International Labor Defense (ILD), American Peace Mobilization, and National Federation for Constitutional Liberties. He helped form the National Lawyers Guild, an organization specifically created to counter the conservatism of the American Bar Association. His reputation as an effective champion of workers’ rights was crowned in 1946 when he argued and won a landmark case before the U.S. Supreme Court. The Mt. Clemens “portal-to-portal” case fundamentally shifted traditional pay practices by requiring employers to pay employees from the moment they clocked in to the moment they clocked out, rather than when they actually started working.24 Both the immediate and long-term consequences of the Mt. Clemens case were uncertain, but conservative politicians and businesspeople believed it would have disastrous consequences for the American economy. Early indicators suggested the decision would profoundly alter the balance of power between employers and employees, to the workers’ benefit. Moreover, the ruling was expected to drastically affect the financial state of industrial and corporate America, particularly after labor unions began filing lawsuits demanding back pay

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for workers. Steel companies alone appeared to owe nearly $800 million in back pay, whereas some predicted that the estimated liability for all portal-pay cases might be as high as $5 billion, a virtually incomprehensible amount in 1947.25 Thus, for an economy in the process of rebounding from depression, conservatives believed the portal-pay decision was calamitous. As conservative legislator J. Parnell Thomas warned, “Industry is threatened by this far-reaching decision.”26 Given the far-reaching implications of the Mt. Clemens decision, it is understandable why Lamb ardently believed that attacks on his loyalty were rooted in the fact that he argued and won this case. The Mt. Clemens case and many others resulted in Lamb’s acquisition of considerable wealth, much of which he invested in a variety of businesses. He was particularly interested in the mass media. During his legal battles defending workers, Lamb learned that “the media were owned by very large and very conservative elements,” and the union movement was “really chastised and punished by lack of access to the media.”27 The realization prompted Lamb to purchase newspapers, radio, and television stations throughout Ohio and Pennsylvania to mass communicate progressive messages. He proved equally as adept at publishing and broadcasting as he was at practicing law, and all his ventures flourished. By the late 1940s Edward Lamb was a man of considerable means and power. Lamb’s legal and business acumen, coupled with his liberal politics, virtually assured that he would developed equally powerful enemies. He was reviled by prosperous conservatives who saw him as a traitor to their class and capitalism. As the Red Scare matured, conservatives increasingly interpreted Lamb’s pro-worker activities as antibusiness and, thus, Communistic. The Mt. Clemens decision in June 1946 was the ignition point for conservative action. Soon thereafter questions about Lamb’s Communistic attitudes began surfacing. In January 1947 his association with a known Communist, Ben Riskin, was charged by no less an authority on the subject than J. Parnell Thomas (R-New Jersey), the influential chair of the HCUA. Thomas argued that Riskin developed the foundation of the portal-to-portal case, shared it with fellow-Communist Edward Lamb, who then carried the case through the judicial system. Thus, Thomas asserted, the Supreme Court decision that “threatened” American industry was Communist inspired and carried out. Lamb angrily denied both knowing Riskin and being a Communist,28 but the early stages of the assault against him were under way. Nearly a year after Thomas castigated Lamb, the attorney’s political sympathies became central to a licensing decision at the FCC.29 Several broadcasters competed for an FM frequency in Mansfield, Ohio, including Edward Lamb and Samuel Horowitz. The two men were bitter enemies who published competing newspapers, Lamb’s liberal Erie Dispatch-Herald and Horowitz’s conservative Mansfield Journal. During the licensing hear-

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ing, Horowitz argued that Lamb’s Communist background made him unfit for licensing, relying for evidence on J. Parnell Thomas’ earlier attack on Lamb. Because character qualifications had already been established as relevant information, Lamb was questioned by the FCC about his political philosophies. Throughout the hearing he repeatedly asserted that he was not a Communist, nor did he sympathize with Communism. The FCC and the FBI both conducted an investigation into Lamb’s background, particularly looking for indications of subversive activities that would preclude licensing him. The FCC wrote in its decision that it had “full and complete information regarding” all the applicants and was satisfied that Lamb was not a Communist.30 In mid-March 1948 the FCC granted the Mansfield license (and four others) to Edward Lamb. Lamb’s statements in the 1948 Mansfield case later became central to the FCC’s highly controversial 1953 investigation. As for now, however, the FCC decision provoked Representative F. Edward He´bert (D-Louisiana) into a series of vitriolic assaults on Lamb in May and June 1948. He´bert, a newly appointed member of the HCUA, questioned how “a man saturated and drenched in Communist writings, associations, and affiliations” could easily acquire licenses for five radio stations within two weeks.31 The legislator produced evidence collected for the HCUA that revealed Lamb’s connections to organizations such as International Labor Defense, National Lawyers Guild, American Peace Mobilization, and American Committee for Protection of Foreign Born, all of which were organizations listed as “Communist fronts.” Under what circumstances, He´bert questioned, could someone like Edward Lamb get five licenses in two weeks while “untainted, red-blooded Americans” could not?32 He´bert continued his assault by alerting two House committees (Un-American Activities and Interstate and Foreign Commerce) to the FCC–Lamb connection.33 Two weeks later the legislator charged that Lamb’s “association and connection with Communists and Communistfront organizations was the real open sesame to favor by the Federal Communications Commission. . . . Just what is the weird and unusual connection between Mr. Lamb and the Federal Communications Commission?”34 The attack on Lamb reached its denouement 11 days later when the House debated Resolution 691 to conduct an investigation of the FCC, particularly regarding its licensing of Communists. Legislators were treated to Eugene “Goober” Cox’s recollections of his own treatment at the hands of the FCC in 1944 when the agency conducted an “outrageous campaign . . . to prevent the exposure of a record that would be shocking” even to the current anti-Communists.35 Cox threw his full support to the creation of another committee to investigate the FCC. Conservative legislators joined in the condemnations of the FCC and its “preferential” treatment of Lamb. Only one advocate for Lamb appeared during this debate. Representative Adolph Sabath (D-Illinois)

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questioned the validity of He´bert’s earlier attacks and clarified the facts surrounding the five licenses, explaining that one of the license applications was filed five years before it was approved, there were no complaints filed against any of Lamb’s stations, and the licenses were approved after a “thorough investigation” of Lamb by both the FCC and the FBI. Moreover, Sabath further stated that Lamb was “the same gentleman who filed the first portal-to-portal suit against a certain corporation. I wonder if that fact is not the underlying reason for the attack being made against him.”36 He´bert and Cox simply ignored Sabath’s suspicion and continued using Lamb’s licenses as evidence of FCC corruption. House Resolution 691 passed, and six months later the investigating committee produced a 27page report, 5 pages of which concentrated on Edward Lamb and his subversive activities. “The reading of the charges and record in [FCC] proceedings,” the committee stated, “would lead rational men to doubt the wisdom of granting radio licenses to Edward Lamb.”37 Lamb’s colleagues in the broadcasting industry were well informed about his politics. Broadcasting covered the 1948 congressional assaults and, although the trade magazine’s feature articles were confined to strict reporting,38 editor Sol Taishoff’s conservative comments were characteristically scathing: “It was inevitable that Congress would some day would catch up with the rather bizarre dealings at the FCC in favor of leftwingers. . . . The FCC legal staff has been uncommonly persuasive in getting the Commission to smile benignly on the radical elements.”39 Thus insinuated to be a “radical” by the industry trade magazine, many broadcasters must have been further disturbed to learn Lamb’s attitudes toward commercial broadcast programming, which he explained in an article published in the New York Times.40 The timing of the article was significant, as the FCC was in the midst of hearings regarding the future of television and was considering reserving television channels for educational, noncommercial programming.41 Most commercial broadcasters agreed that television frequencies were a scarce and valuable resource; reserving some for noncommercial programming was an unnecessary “waste” because, they argued, most educational institutions would never have adequate funding to use the frequencies as well as commercial broadcasters. They must have read with chagrin Lamb’s castigation of commercial broadcasters for their programming decisions and his contention that “TV broadcasters have practically no accountability to anyone.”42 Lamb’s progressive solution to the programming problem likely sent a shudder down the spine of many commercial broadcasters: he advocated more direct government control over the industry and contended that broadcasters should have “to make their facilities available without charge to non-profit organizations for an hour or two each day for the telecasting of educational, cultural and informative programs.”43 If broadcasters needed more evidence of Lamb’s “antibusiness” attitudes, then he

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provided it in this New York Times article. The mere suggestion that a broadcaster should give away extremely profitable airtime was antibusiness, anticapitalist, and indicative of Communist sympathies. Conservatives were now convinced that Edward Lamb was a Communist and should be destroyed. DO CKET #110 4 8 : T HE F C C V. E D WA R D L A M B Today our popular memory of the Red Scare is represented by iconic images of Joe McCarthy leaning in conference with Roy Cohn or blackand-white newsreel footage of witnesses in crowded hearing rooms. These events received considerable contemporary press attention and are embedded in our political memory as representations of the Red Scare as a conservative witch-hunt of American citizens. Edward Lamb is not among these iconic images, however, despite the fact that his “trial” before the FCC was one of the most widely publicized anti-Communist cases of 1954 and 1955. Indeed, the FCC case against Edward Lamb represented the agency’s full-fledged admission into the government ranks of Redhunting anti-Communists. The FCC case against Edward Lamb began routinely when his company, Dispatch, Inc. (the legal owners of WICU-TV in Erie, Pennsylvania), filed for license renewal in the spring of 1953.44 Under ordinary circumstances the license would have been renewed within 60 to 90 days of reapplication, but Edward Lamb was not an ordinary licensee, nor was the FCC operating under normal conditions. In late July, Lamb learned that “Senator McCarthy has some of his boys combing through the FCC” and that material about Lamb “just turned up” in the files of McCarthy’s Subcommittee on Investigations.45 Lamb initially dismissed the information,46 believing that the 1948 Mansfield investigation and decision cleared him of any Communist affiliations. But he soon learned that the FCC deferred the renewal “pending a study of [his] qualifications to be a licensee.”47 The deferral was the result of John Doerfer’s interest in the case. Doerfer had been a member of the Commission for only six weeks when Lamb completed the WICU-TV renewal application, but his personal politics and close ties to Joseph McCarthy motivated him to take a strong interest in the Lamb application. Doerfer later explained that he first encountered Lamb when he reviewed the WICU-TV renewal application,48 which contained two letters from American Legionnaires who called Lamb a Communist and demanded that he should not be relicensed. His curiosity piqued, Doerfer pulled all Lamb’s FCC files, including those from the controversial 1948 Mansfield hearings. After a careful review of those cases, Doerfer believed that “material that apparently was available was not introduced in evidence” against Lamb in 1948, hence there was “new” evidence of Lamb’s Communist activities. He shared the infor-

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mation with his fellow commissioners, who agreed to defer relicensing WICU-TV until both the FCC and the FBI could reinvestigate, a decision they took on exactly the same day that Lamb was warned about McCarthy’s “boys” searching his FCC files. Unlike other license applicants suspected of Communism, Lamb aggressively pursued the rumors against him. He spent several days in early September 1953 visiting FCC offices and investigating the deferral. He started with Commissioner George Sterling, who informed Lamb that the “key to the problem” was Doerfer.49 Lamb’s attorney, former FCC Chair James Lawrence Fly, confirmed this when he learned that “every proceeding involving Edward Lamb had been flagged to go to the desk of Commissioner Doerfer for ‘personal processing.’”50 So Lamb called on Doerfer, a meeting the two men subsequently recollected differently. Doerfer later admitted to being “persistent” about investigating Lamb, but claimed to be no more resolute than all of the other commissioners.51 His interest in investigating Lamb was motivated strictly by the solemnity of the oath he took as a Commissioner, he asserted, and by his review of the evidence that was not introduced in the 1948 hearings. Lamb recalled that Doerfer was inordinately interested in his political beliefs, and after Lamb revealed that he was once a Republican, the commissioner opined, “It would be better if you were still a Republican.”52 Finally, as Lamb later testified before the Senate Committee on Interstate and Foreign Commerce, Doerfer told Lamb that he “might have occasion to regret” his legal work for labor unions and workers.53 The encounter between Lamb and Doerfer foreshadowed the test of wills to come. Doerfer believed that Lamb lied about his Communist background in the 1948 Mansfield hearings, but the deception could only be proven by investigating Lamb. Once his Communist activities were confirmed, his unsuitability as a licensee would be clear—not because he was a Communist, but because he misrepresented his character to the Commission in earlier licensing applications. Thus, the FCC, and specifically the Broadcast Bureau (which was responsible for investigating license applications and renewals), aggressively and single-mindedly focused on proving Lamb was a Communist. Lamb was equally adamant that he was not a Communist, nor would he allow a government agency to ruin his name and businesses as part of a conservative political agenda. He fervently believed that the FCC anti-Communist case against him was the result of businesspeople and politicians who feared his power and influence in defending workers. Unlike earlier licensees and license applicants whom the FCC suspected of Communist sympathies (Metropolitan Broadcasting, Hollywood Community Radio Group, WLOA), Edward Lamb was a tenacious attorney with virtually unlimited personal wealth who would not back down in the face of government accusations. Over the

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next three years, the contest between the FCC and Edward Lamb evolved into a pitched battle during which each attacked and counterattacked. Parry and Thrust, Parry and Thrust The two sides squared off. Lamb was a seasoned combatant who took the initial offensive by employing three influential proxies to aggressively pursue his case. James Lawrence Fly, the first defense attorney of record in the case, visited the agency several times during the fall of 1953 to petition the FCC to make an immediate licensing decision54 and to encourage friends who still remained in the Legal Division to support a conditional grant of the WICU-TV license.55 Fly’s efforts seemed successful, as Commissioner George Sterling assured him that Lamb’s case would receive “a sympathetic open mind” on the conditional grant.56 But Lamb pushed his case through other avenues and, unbeknownst to Fly, took the additional step of hiring former U.S. Attorney General J. Howard McGrath as the General Counsel for Edward Lamb Enterprises. McGrath immediately notified the FCC of his new position, clearly communicating between the lines that he was interested in the pending licensing case.57 Lamb took further action by calling on his friend Senator Estes Kefauver (D-Tennessee), who in turn made daily phone calls to FCC Chair Rosel Hyde. Pressed on the issue by a ranking Senator, Hyde finally agreed to share information from the July 29 Commission meeting during which the WICU-TV license reapplication was deferred. Kefauver promptly divulged the information to Lamb.58 Ultimately the volume of contact on Lamb’s behalf exasperated both Larry Fly, who knew nothing about the other efforts until commissioners complained to him about it, and the commissioners. “Word from multiple sources is that too much representation is resented as pressure, and impairs our chances,”59 Fly warned Lamb. “Another clearly expressed point of resentment . . . is in the communication from Senator Estes Kefauver. . . . This whole thing has built up an attitude that bodes no good for your case.”60 Lamb digested Fly’s legal advice and determined that he had “no guts!”61 Lamb fired Fly in early April 1954, and J. Howard McGrath became the defense attorney of record. Selecting a former U.S. Attorney General as the lead counsel sent a clear message to the FCC that the Lamb case would be unlike any other Communist-related case they’d heard. The FCC parried and thrust. The Commission virtually ignored Lamb’s petition for an immediate decision, and the Broadcast Bureau continued its background checks. Robert Lee joined Doerfer as the extreme antiCommunists on the Commission, and soon thereafter the FCC launched its attack on Edward Lamb. The agency notified Lamb of the “charges” against him by reminding him of statements he made during hearings for the 1948 Mansfield licensing cases,62 in which he swore that “he never had

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been, and is not now, directly or indirectly, tied up with any organization advocating un-American principles, [or ] Communism.”63 The FCC then informed Lamb that it was “now in possession of information . . . that for a number of years, particularly the period 1944–1948, you were a member of the Communist Party,”64 thus a hearing was necessary to determine whether Lamb was qualified to hold a broadcasting license for WICU-TV. Perhaps aggravated by the onslaught of advocates pressuring the agency or perhaps following the lead of other anti-Communists using the media to publicize their campaigns, the FCC took the additional step of publicly striking back at Lamb by notifying the news media about the scheduled hearing before telling him. Broadcasting reported that the case was headed for hearings three days before the letter was sent to Lamb, and the New York Times reported the story two days after the letter was sent.65 Lamb was infuriated by “this latest attack by John Doerfer and his cohorts on the Commission.”66 McGrath petitioned the FCC to reveal the evidence that allegedly confirmed Lamb’s Communistic background, but the Commission refused to do so.67 McGrath filed a response that charged the FCC with an “unwarrantable lack of decision and expeditious action” and insisted that the agency “refrain from unnecessarily and unjustifiably damaging [Lamb’s] personal reputation and impugning [his] private character.”68 Twenty exhibits accompanied the response that attested to Lamb’s loyalty to the United States. And again Lamb demanded to receive a “bill of particulars” that outlined the nature of the evidence against him. The FCC refused to inform Lamb about the specific evidence against him because investigators were still collecting it. In December 1953 Broadcast Bureau attorneys contacted Mr. William Cummings, an unemployed autoworker who lived in Toledo and who claimed that he knew Lamb to be a Communist. Cummings joined the Ohio Communist Party in 1949 at the request of the FBI and became a paid informant, much like Matt Cvetic. In early April 1954, the three FCC investigators, Walter Powell (Chief of the Renewal and Transfer division of the Broadcast Bureau), Thomas Fitzpatrick, and accountant Robert Leahy interviewed several Communists in Toledo and collected facts about Lamb’s alleged Communist activities. They were particularly interested in Lamb’s appearance at the “Lincoln House Dedication” in 1944, in which the new headquarters for the Toledo Communist Party (CP) was opened.69 The investigators believed that Lamb attended the dedication, made a speech, and publicly made a donation to the CP. William Cummings corroborated this information and led the investigators to other Communists who knew Lamb to be supportive of Communist causes, including Lowell Watson, Ernest Courey, and Mace Russell. The FCC agreed to pay the witnesses in return for testifying.70 Soon after the investigators arrived in Toledo, Lamb learned about their presence from a man named Emmett Wheaton, who told Lamb and

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McGrath “a weird story.”71 Wheaton revealed that William Cummings offered him a $1,000 bribe to tell FCC investigators that he, Wheaton, knew Lamb was a Communist. Cummings took Wheaton to meet the FCC lawyers, to whom Wheaton explained that he, in fact, did not know Lamb. Nonetheless, after the meeting Cummings again encouraged Wheaton to accept the $1,000 bribe to lie about his knowledge of Lamb. Wheaton’s story remained unchanged after considerable questioning from the two seasoned attorneys. As the FCC men traveled around Toledo interviewing potential witnesses, Lamb soon learned from one of his secretaries that the FCC was “out to get” him because his stations were worth millions of dollars and the agency couldn’t let a Communist own such valuable property.72 The FCC may have said it was investigating the broadcaster, but as far as Lamb and McGrath were concerned, the FCC was orchestrating a setup. This interpretation of the investigators’ activities provoked Lamb to escalate his counterattack. Lamb responded to the setup by coordinating a media response to the FCC’s campaign. He informed political columnist Doris Fleeson that “the advent of the McCarthy group on the FCC made itself felt quickly . . . [and] . . . I suppose we should realize that the attack on me can be the forerunner of attacks on other liberals.”73 He further instructed a reporter for his Erie Dispatch-Herald (the same person who earlier alerted Lamb to the McCarthy “boys” searching through FCC files) to funnel information to liberal reporters about the FCC’s activities. “Drew Pearson and the others will need most of all to keep the chronology of events in order to see what is happening in this set-up,” Lamb warned the reporter. “[But] I want to caution you against mentioning anything about . . . the attempt to establish ‘guilt by association’ in this case.”74 Lamb also corresponded with the editor of The Nation, Carey McWilliams, who served as the gobetween for Lamb and Edgar Kemler, who authored an essay in The Nation that castigated the FCC for its treatment of Lamb.75 Finally, in an especially dramatic move, Lamb published a full-page advertisement in several national newspapers with a headline that made “An Offer to Pay $10,000.” The ad explained to readers that “after certain personnel changes on the Federal Communications Commission,” the FCC claimed to have information that indicated Lamb lied about his alleged Communist background in previous testimony before the agency. Thus, Lamb offered $10,000 “to be paid to any person or persons who can disprove the truth of my non-communist affidavits before a court and jury of competent jurisdiction.”76 The reward was Lamb’s calculated response to his belief that the FCC was paying informants and bribing witnesses. The parries and thrusts between the FCC and Lamb intensified during the late spring and summer of 1954. McGrath filed a complaint against the FCC with the U.S. District Court for Washington, D.C., petitioning the court to stop the FCC from holding hearings.77 In the intervening period

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before the District Court appearance, the FCC scheduled the hearing to determine whether Lamb misrepresented or concealed evidence. A week later, Lamb testified before the District Court that the FCC’s case against him was a politically motivated smear campaign led by Commissioner Doerfer. Then he dropped his bombshell, revealing that three investigators both offered “at least one bribe for . . . false testimony” against him, and assured locals that the FCC was “going to get Lamb and take WICU away from him.”78 Rosel Hyde promised an investigation into the accusation, and John Doerfer asserted that he knew nothing about it. The District Court ruled against Lamb and refused to stop the FCC hearing, but agreed to postpone it until Lamb exhausted his appeals.79 In the meantime, John Doerfer assumed center stage again. His interim appointment expired in June 1954, and having been nominated for a full term by President Eisenhower, Doerfer found himself at the center of a highly contentious hearing before the Senate Committee on Interstate and Foreign Commerce.80 Unlike the short and sparsely attended hearing a year earlier, 12 of the 14 committee members attended this two-day meeting (including Senator John Butler of Maryland, who previously enjoyed Joe McCarthy’s and Robert E. Lee’s assistance during his 1952 senatorial campaign). Edward Lamb, J. Howard McGrath, and Estes Kefauver hotly contested Doerfer’s confirmation. Lamb excoriated the nominee. “I have been the undeserving victim of a wanton, malicious, and depraved attack . . . by Commissioner John C. Doerfer,”81 Lamb charged, and for nearly two hours explained his background, his meeting with Doerfer in September 1953, the FCC’s refusal to provide a bill of particulars outlining the evidence against him, and the FCC’s attack on his reputation and business. The following day Doerfer denied all Lamb’s allegations and assured the Senate committee that while he was “rather persistent about the situation, . . . the members of the Commission, each and every one, was just as much concerned about it, . . . , and I would say the Commission absolutely acted as a body” in its decision to defer Lamb’s license renewal.82 Doerfer’s nomination was confirmed and he started a seven-year appointment as an FCC commissioner. The battle continued throughout the summer. Lamb presented his case to the U.S. Court of Appeals in mid-July, which decided in favor of the FCC’s request to go ahead with the hearing.83 The Senate Committee on Interstate and Foreign Commerce responded to Lamb’s complaints and pressed the FCC to provide a bill of particulars.84 The Commission finally responded with a “Resume of Basic Allegations,” in which it reiterated the same basic claims it had already made.85 McGrath retorted that the “Resume” was not a bill of particulars because it did not satisfy the constitutional requirement to inform an accused of the evidence against her or him. McGrath demanded that the FCC provide more specific information, and the Commission refused.86 Throughout the summer the two

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sides bombarded each other with motions, but finally the time arrived for the hearing to start. Broadcasting declared that “to say that Edward Lamb . . . is in the switches with the FCC is the understatement of the year. But it should be clear too that the FCC is in just as serious trouble if it can’t prove its charges.”87 On September 14, 1954, the two sides met. The Broadcast Bureau’s case against Edward Lamb, Docket 11048, finally got under way. The Broadcast Bureau’s Case (September–November 1954) Almost exactly six months after the FCC notified Edward Lamb of their intent, the agency opened its hearing into whether Edward Lamb misrepresented his Communist activities and associations. From September 14, 1954, until May 20, 1955, 31 witnesses testified during more than 60 hearing days, more than 7,000 transcript pages were produced, and the intellectual, physical and emotional fortitude of everyone involved was sorely tested (and some failed). The hearing was conducted in a quasi-judicial fashion, meaning that it resembled courtroom proceedings. A hearing examiner (in this case, Herbert Sharfman) was appointed to function as the judge. The case against Lamb was presented by attorneys for the Broadcast Bureau, which was meant to shield the commissioners from accusations of improper and unethical influence on future decisions. The Broadcast Bureau (BB) lawyers, Walter Powell (the first lead attorney), Thomas Fitzpatrick, Arthur Schissel, and later Joseph Kittner (the second lead attorney), prosecuted the case against Edward Lamb. Lamb’s defense attorneys were Russell Brown (the lead attorney) and J. Howard McGrath. The BB presented its case to the hearing examiner first, with the intent of demonstrating the extent to which Lamb associated with Communists and, thus, lied in the 1948 Mansfield licensing hearing. Then the defense team presented its case, equally intent on proving that Lamb was not a Communist and did not misrepresent himself in 1948. Because the proceedings were quasijudicial, they did not follow rules of judicial conduct strictly; Sharfman often allowed attorneys for both sides to conduct witness questioning in ways that probably would not have been allowed in a typical courtroom, and the codes of legal etiquette were frequently violated. Indeed, one of the hallmarks of the entire proceeding was the bitter remarks the opposing attorneys frequently hurled at each other. The contest of wills that characterized the prehearing phase was magnified once all the participants were confined in a single hearing room. The very first day of the hearing witnessed the dramatic strikes and counterstrikes that became a common feature of the remaining eight months. A pattern quickly emerged in which Powell presented a witness, who testified that she or he knew Edward Lamb was a Communist, thereby

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supporting the agency’s claim that Lamb lied about his associations in the earlier 1948 Mansfield case. Russell Brown then took his turn and mercilessly shredded both the witness’s credibility and the FCC’s argument. By the time Brown finished with a witness, she or he was usually emotionally shaken and rendered unbelievable. Indeed, the hearing examiner later wrote that only two of the FCC’s 21 witnesses retained their credibility as “thoroughly honest.”88 The adversarial nature of prosecution and defense was carried into the contests between the opposing attorneys, who frequently made long-winded legal harangues accompanied by nasty and sarcastic remarks thinly veiled by judicial decorum. As Broadcasting noted, the hearing was “ensnarled in legalistic bickering,”89 and throughout the long eight months the tension in the hearing room was visible and very nearly tangible. Thirty-one witnesses were called during the Lamb hearing, five of whom figured most prominently and well represent the tenor of the entire proceeding.90 Although 26 others testified, they revealed information similar to that provided by these five, but were not as centrally important to the case and its outcome as were William Cummings, Lowell Watson, Ernest Courey, Marie Natvig, and Edward Lamb. William Cummings The BB opened its case against Edward Lamb by calling one of its star witnesses to the stand: William Cummings.91 Cummings was an unemployed autoworker from Toledo, Ohio, and an informant for the FBI. For two days Cummings testified that he was very active in the Lucas County, Ohio CP, serving as its Press Director and Vice-President, attending CP schools and national conferences, and later becoming an FBI witness in trials against Party members. Through his CP participation, Cummings learned about a “must list” inventory of individuals who were reliable sources of financial support for the Party. Lamb was on the “must list.” Cummings further testified that he first met Lamb at a reception when he was introduced as “Comrade Lamb.” Thus, according to Cummings, Lamb was both associated with the CP and an especially important source of financial support. Russell Brown undermined Cummings’ credibility even before he started the cross-examination. As Powell questioned his witness early on the second day of the hearing, Brown openly remarked that Cummings’ testimony followed a carefully prepared script. “We could put this show on Broadway,” Brown declared. “These witnesses know their lines just like an actor in a play.”92 The point, of course, was to both disparage the FCC’s presentation and to rattle the witness, and Brown succeeded on both counts. Brown cross-examined Cummings for two days, questioning him about his two marriages and eventually producing evidence that

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Cummings never legally divorced the first wife before marrying the second. More importantly, Brown produced the state certificate for the second nuptials, on which the witness swore that he was not married. (Two days later an arrest warrant was issued for Cummings for lying on an official document).93 Having established Cummings as a liar, Brown then revealed that Cummings was on the Commission payroll for his testimony; he had already been paid $186 the previous April and was assured of receiving $25 per day for his current testimony. Brown made a special point of establishing that BB attorney Walter Powell promised Cummings he would be paid. Thus, Brown insinuated, Cummings’ testimony was motivated by the promise of remuneration rather than a desire to tell the truth. Finally, on his fourth day of testimony, Brown interrogated Cummings about his $1,000 bribery offer to Emmett Wheaton. Before long, Cummings was so bewildered that Powell asked to have the FCC witness temporarily excused, then explained that Cummings was lying in his efforts to help the government’s case.94 Cummings’ credibility was so thoroughly destroyed that Hearing Examiner Sharfman later expressed his belief that Cummings’ “testimony does not carry a badge of reliability to the extent that it can be depended upon without question.”95 At the conclusion of his fourth day of testimony, Cummings stepped out of the witness chair for the last time. Unlike other BB witnesses, he never returned. Lowell Watson’s First Appearance The Broadcast Bureau followed Cummings with its second star witness, Lowell Watson.96 Watson was a member of the CP in Toledo from 1929– 1941, a period during which he became very familiar with the Party and its activities. The FCC used Watson to establish Lamb’s participation in and importance to the International Labor Defense (ILD) organization, which Watson described as the legal arm of the national CP. The witness testified that Lamb was first introduced to him as the ILD attorney, thus connecting Lamb to a Communist organization. The FCC concluded its two days of direct examination of Watson by establishing that the witness had extensive knowledge of the CP and, thus, was in a position to know that Lamb knowingly associated with a Communist organization. That evening, after Lowell Watson’s two days as an FCC witness, the Lamb case took one of its strange twists. Watson contacted Russell Brown and asked for a meeting. Late that night in a coffee shop, Watson explained to Brown that his testimony was a lie that Powell coerced him into providing.97 Like a seasoned poker player, Brown held this card close for later use, but the next day he began official cross-examination of Lowell Watson. Brown steered Watson to the revelation that William Cummings urged him to contact the FCC about his knowledge of Edward Lamb, despite the fact that Watson believed his information was too vague to be

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useful. Walter Powell contacted Watson soon after and asked him to testify during the Lamb hearing. When he arrived in Washington, D.C., three days prior to his scheduled testimony, the BB lawyers carefully scripted his statement. “Did you ever take exception to the answers that were proposed to you?” Brown asked. “Yes, sir, I did,” Watson answered.98 The next day, before testimony of the third FCC witness began, Brown and Powell fought each other over the legal and ethical implications of preparing witnesses and the FCC’s coaching techniques.99 The two lead lawyers were openly contemptuous to each other only eight days into the hearing, very early for there to be such high levels of tension and animosity. Ernest Courey After a brief respite during which the comparatively uncontroversial testimony of two witnesses was presented,100 the FCC introduced its fifth witness, Ernest Courey, who proved to be more dubious than William Cummings.101 Courey testified that he lived in Toledo from 1934–1942 and knew Edward Lamb during that time. Courey was active in the CP as both a dues collector and a bodyguard for prominent Communists who visited Toledo. Courey attested that he was present on two occasions when Lamb made donations to the CP, including a $5 contribution in 1938 to help rent a meeting hall in which a nationally prominent CP member planned to speak. He remembered the meeting 15 years earlier because he was arrested the night of the address for disturbing the peace, and Lamb served as his defense counsel. When Courey asked Lamb how much he owed for legal services, Lamb allegedly responded that he was “glad to do it for you or any other comrade.”102 In another unusual twist, the BB attorneys revealed through questioning that Courey was convicted in 1925 of second-degree murder and sentenced to life in prison (which was later commuted to five years). His criminal background notwithstanding, Courey reinforced the BB’s contention that Lamb actively associated with Communists and the CP prior to 1948. Russell Brown attacked Courey’s credibility during cross-examination. As with previous witnesses, Brown grilled Courey on the amount and degree of testimony preparation he received from BB attorneys. Courey revealed that BB accountant Robert Leahy first contacted him in April 1954, then visited him to conduct an interview. Soon thereafter, Powell, Fitzpatrick, and Leahy all interviewed Courey a second time and gathered information crucial to their case. The BB brought Courey to Washington D.C., nine days before he was expected to testify and devoted seven of those days to coaching him prior to taking the stand. Brown then verified whether it was true that Courey came to Washington D.C., carrying a gun. After considerable discussion between the BB and Lamb camps, Courey

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admitted that he brought a gun to town because he “didn’t trust the Communists.”103 Nonetheless, Brown successfully diminished Courey’s testimony by painting him as a carefully coached, gun-toting man. Thus, by the end of the 12th day of witness testimony, the BB produced five witnesses who averred that they knew Edward Lamb in the 1930s and 1940s and, more significantly, they knew him to both associate with Communists and support Communism. Watson’s testimony was particularly important to the BB’s case because he established Lamb’s significant connections to a “known” Communist front organization, International Labor Defense. Indeed, The Daily Worker editor Louis Budenz, who immediately followed Ernest Courey as the BB’s sixth witness,104 reinforced the Commission’s contention that Lamb was an important member of the ILD. The BB’s case was repeatedly bruised by Lamb’s defense counsel, however, who successfully handicapped the credibility of Commission witnesses by focusing on their questionable characters (Cummings was a bigamist and blackmailer, Courey was a dangerous convicted murderer), their payment for testimony, and the carefully scripted statements each provided to help the BB accomplish its goal of “getting” Edward Lamb. The FCC hearing regarding Edward Lamb’s television license renewal was already unlike anything ever experienced in the agency’s history, but it paled in comparison to the next witness who took the stand. Marie Natvig’s First Appearance Marie Natvig was, by far, the most controversial witness in the entire Lamb proceeding. She spent more time on the witness stand than anyone else in the entire hearing, including Edward Lamb. Natvig started her testimony for the FCC on October 6, 1954, and continued to answer questions for seven days thereafter.105 The information she provided was as detailed as it was lurid and sensational, and her controversial testimony generated turbulence that reverberated throughout the remaining seven months of the proceedings. In only one day of direct examination by BB attorneys, Natvig testified that she was a member of the CP in the mid1930s. She met Edward Lamb in 1936 at an Ohio meeting of the CP at which he presented a paper about the formation of the National Lawyers Guild, and he was later introduced to her as “Comrade Lamb.” The second time they met, Natvig testified, Lamb asserted his belief that the only way the worker’s revolution would finally occur was if the mass media were used to incite insurrection. According to Natvig, this second meeting was followed by liaisons over the next several weeks during which she and Lamb met in a Columbus, Ohio, bar called “The Purple Cow” or at the Chittenden Hotel at which the two conducted a sexual affair. Natvig was later expelled from the CP in 1937 and subsequently lost contact with Edward Lamb. She learned about the FCC’s case against Lamb from Drew

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Pearson’s newspaper column and contacted the FBI to share her knowledge of him. She agreed to travel to Washington D.C., to discuss the case with BB attorneys, after which she agreed to testify. Given her detailed memories of conversations and events that occurred 15 years earlier, it is understandable why the BB considered her to be a critical witness. Russell Brown attacked Natvig on her first day of testimony, not waiting until the defense was given the opportunity to cross-examine her testimony. His strategy was to undermine Natvig’s credibility by provoking emotional outbursts, and he succeeded. On her first day on the stand, Brown questioned whether the witness had ever been hospitalized for a mental illness or needed psychiatric treatment, to which Natvig hotly replied, “No,” and offered to take a psychiatric examination to prove she had control of her faculties. Cross-examination by Lamb attorneys began in earnest on Natvig’s second day of testimony, and Brown bombarded her with detailed questions about the alleged extramarital affair with Lamb, then insinuated that the alleged relationship was one of several Natvig conducted with many men. Natvig was incensed and accused Brown of being “impertinent,” and then told him to get his sexual pleasures (“raise his blood pressure”) from other sources such as “Dr. Kinsey or ‘True Stories.’”106 Tensions escalated on Natvig’s fourth day of testimony when Brown questioned her allegation that a man named Millings Underwood offered her a bribe to refuse to testify against Lamb. Brown temporarily excused Natvig from the witness stand and introduced Underwood has a witness. Underwood revealed that he took Natvig, whom he did not know, to dinner the day she arrived in Washington D.C., and in the course of playful conversation speculated that she was in town to “get a large sum of money in a lawyer’s office.” In reality, because he did not know her, he had no idea she was a government witness in a case.107 Already rattled by Underwood’s repudiation, Natvig completely lost her composure when Brown asked her for the names and addresses of her adult children so he could interview them. “Mr. Brown, if you contact my children, I will kill you,” Natvig shouted. As she picked up a nearby water pitcher and prepared to throw it at Brown, she yelled, “I will kill you if you bring my children into this.”108 Hearing Examiner Sharfman called a recess in the hopes of calming the atmosphere, and Natvig did not return for testimony that day or the next. Clearly, however, Brown achieved his goal of upsetting Natvig emotionally and invalidating her credibility as a BB witness. Natvig was frankly antagonistic toward Brown when she finally returned to the witness chair. The two repeatedly exchanged sarcastic remarks, with Brown asking questions that enraged Natvig, who responded with bitter and belligerent answers. Over the course of her remaining four days on the stand, Brown destroyed her credibility with surgical precision, asking Natvig deeply personal questions about her frequent moves, va-

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riety of jobs, multiple marriages, and personal finances. She was unable to provide detailed information about the various universities she attended without graduating, or much about the CP in Ohio during the time of her alleged membership. Natvig finally stepped down from the witness chair on October 25, having battled it out with Brown for six of her seven days as a BB witness. She later wrote to Walter Powell that she was “sick at the idea that I may have to go back on the stand and if I do something drastic to avoid it, don’t be too surprised. I know I will never voluntarily go back to Washington. I get hysterical just thinking about it.”109 The Commission continued prosecuting Edward Lamb for 13 additional hearing days, eventually concluding its presentation in mid-November, 1954. In the days following Marie Natvig, the BB attorneys introduced 12 more witnesses.110 Each explained her or his personal activities as members of the CP, prior acquaintances with Edward Lamb, and knowledge of his Communist writings, activities, and support. Two witnesses in particular, Eugene Stoll and Edward Cheyfitz, provided considerable detail regarding Lamb’s support for the ILD. Consistent with the established pattern, Brown successfully disparaged the credibility of some of the Broadcast Bureau’s witnesses. One witness, for example, revealed that Ernest Courey was not a member of the CP, that there was no such thing as the “must list” about which Williams Cummings testified, and further, Cummings had a bad reputation for lying.111 Brown eventually elicited from another BB witness (Mace Russell) that he had been arrested seven times on a variety of charges, including gambling, assault and battery, carrying a concealed weapon, and rape.112 Several of the witnesses admitted to being coached by Powell on statements and to receiving payment for their testimonies. At the conclusion of Edward Cheyfitz’s testimony on November 19, the hearing was adjourned until mid-January. The Broadcast Bureau attorneys knew their case was unraveling. Many of the “star” witnesses on whom much of the case against Edward Lamb rested were thoroughly discredited, particularly Cummings, Watson, Courey, and Natvig. In late December, Walter Powell learned that Lowell Watson planned to recant his entire testimony. Soon thereafter Powell himself succumbed to the pressures when he suffered a heart attack and not only withdrew from the case but resigned from the FCC altogether.113 In early January 1955, Lamb petitioned the FCC for an immediate decision, arguing that the Broadcast Bureau had utterly failed to prove that Lamb lied in earlier applications and, further, that the record compiled thus far was “utterly devoid of any credible evidence.”114 Hearing Examiner Sharfman denied Lamb’s motion and on January 17 gave the Broadcast Bureau an additional postponement to allow the Assistant Chief of the Broadcast Bureau, Joseph Kittner, to assume the lead attorney role and to fully acquaint himself with the case. By this date the Lamb

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team had changed its position and was more than happy to continue the hearing. Marie Natvig had contacted Howard McGrath on January 15 and recanted her entire testimony and, what’s more, was willing to return to Washington D.C., to detail the manner in which Walter Powell coerced her testimony. Edward Lamb’s Response (February–June 1955) After a nearly two-month postponement, the hearing regarding Edward Lamb resumed on February 9, 1955. The defense team called only four witnesses over the next 17 hearing days, 3 of whom decimated the BB’s case against Lamb. Marie Natvig’s Second Appearance Although she earlier claimed to “get hysterical” at the thought, Marie Natvig returned to the witness stand and calmly recanted her earlier testimony against Lamb.115 She was truthful, she said, about contacting the FBI about meeting Lamb several years earlier, but after the FCC brought her to Washington D.C., she told Walter Powell that she didn’t have other information and did not want to testify in the case. According to Natvig, Powell told her that he had evidence she was a member of the CP and, further, threatened to prosecute her for perjury if she claimed otherwise. Powell cajoled her by telling her that Edward Lamb was “a greater menace to [the] country than Alger Hiss” and that this was the “most important case the Broadcast Bureau had ever handled,”116 thus it was her responsibility as a U.S. citizen to provide her information during testimony. Ultimately, Natvig claimed, the BB “entrapped” her by serving her with a subpoena. Thus coerced to testify, Natvig claimed that Powell devoted a considerable amount of time to coaching her statements and providing the details she would need to make them credible. Natvig claimed she repeatedly told Powell and other attorneys that she didn’t want to provide false testimony, that she didn’t know if Lamb was a Communist, and she never had conversations with him about “the revolution,” but Powell repeatedly threatened her with perjury charges. When Natvig continued to balk, the FCC threatened to question her adult children (and eventually did). After her seven days of testimony in October, Natvig returned home to Miami. A month later she realized she “had done Mr. Lamb a grievous wrong” by her testimony.117 She informed Powell that she wanted to retract her statement, and he again threatened her with perjury. In midJanuary 1955, Natvig contacted Howard McGrath and told him she wanted to repudiate her testimony and, at that point, she became a witness for Edward Lamb. By the time Natvig stepped off the witness stand for the last time, she made two things quite clear: she renounced all her

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earlier testimony, all of which had been carefully prepared by Walter Powell. Moreover, by the time Natvig concluded her testimony, the BB knew that another star witness, Lowell Watson, planned to recant his as well. Lowell Watson’s Second Appearance The Broadcast Bureau’s case continued to disintegrate when Watson returned to the witness stand on February 18.118 Watson, who earlier disclaimed his testimony to Russell Brown in a late-night coffee shop meeting, now officially repudiated his statements. His story was similar to Natvig’s. He was coerced by William Cummings to write and sign a statement asserting he knew Edward Lamb as a Communist. When he arrived in Washington in mid-September to prepare for his testimony, he told the FCC that the information contained in the written statement was largely inaccurate, but Powell reassured the witness that his testimony was not very important because the agency had “big guns” who would provide the truly damaging information. Watson explained that Powell carefully coached his testimony, often recording the statements himself then telling Watson to listen to the recordings and learn what to say. The point of the meticulous coaching was to create a tighter fit between Watson’s general knowledge of Lamb and the Broadcast Bureau’s allegations. After Watson was excused, it was clear the BB case was in shambles. Two of its star witnesses were publicly branded as liars and criminals, and the other two officially retracted their testimony and became witnesses for Edward Lamb. Edward Lamb The defense team called its star witness on April 1, 1955, and as would be expected, Edward Lamb’s 10 days on the witness stand were dramatic.119 Both BB and defense attorneys methodically focused on several aspects of Lamb’s background, particularly the organizations with which he affiliated, his published writings, the legal services he provided, and speeches he made. The BB attempted to use this material to prove that Lamb fully supported Communist causes and associated with subversives, thus he misrepresented himself to the Commission in the 1948 Mansfield hearing. For his part, Lamb simply denied nearly everything. Joseph Kittner, now the lead BB attorney, questioned Lamb at length about organizational memberships with the goal of demonstrating that Lamb was, in fact, fully involved in 11 organizations that were Communist fronts.120 Indeed, the Broadcast Bureau submitted compelling evidence of Lamb’s association with specific organizations, particularly the ILD, including letterhead stationery on which Lamb was listed as a member or officer. Lamb repeatedly testified that he did not remember being a member of an organization, particularly the ILD, was unaware that an

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organization was Communist affiliated, or that the it did not have his permission to use his name in its promotional activities. The only organization with which Lamb clearly remembered an association was the National Lawyers Guild, which he helped form. Thus, Lamb’s defense strategy was not to deny involvement (there was credible evidence that he was involved with Communists and Communist fronts), but to deny knowledge of involvement. Hence, if he didn’t know he was involved, he couldn’t have lied in 1948 when he said he wasn’t involved. The BB then questioned Lamb about his writings. Lamb responded at length to questions about his book The Planned Economy of Soviet Russia, in which he reviewed the devastation wrought by the 1930s Depression and his subsequent belief that an economy ought to be carefully planned, as was done in the Soviet Union. Lamb’s popular press publications (including letters to newspaper editors) also received BB scrutiny, particularly articles published in The Daily Worker, Soviet Russia Today, and China Today. Lamb testified that he had published thousands of articles and either couldn’t remember the specifics of the publications or the specific political and economic contexts in which a book or essay was conceived. He flatly denied that he promoted the violent overthrow of the United States and further insisted that he never sought economic planning in any way “except by constitutional, legal, orderly processes.”121 In its efforts to prove that Lamb lied about his association with Communists, the Broadcast Bureau further questioned Lamb about specific individuals to whom he provided legal services in the 1930s and 1940s. The BB contended that some of these clients, particularly Ernest Courey, Edward Cheyfitz, and Max Wall, were known Communists. Because he must have associated with his clients, he lied to the Commission in 1948 when he said he did not associate with Communists. Lamb responded that he did not remember Courey and Wall and remembered Cheyfitz as a striking worker, not a Communist. Finally, the Broadcast Bureau asserted that Lamb gave speeches supporting Communism, most notably the address at the Lincoln House dedication in 1944. Kittner questioned Lamb at length about the Lincoln House dedication and the speech he gave. The BB attorney argued that this, too, was evidence of Lamb’s misrepresentations to the Commission in 1948. Lamb simply continued in the same vein, asserting that he did not remember making the speech. He allowed that it was possible, however, because he was quite active in both politics and the union movement and gave many speeches during that time period. Lamb’s testimony during those 10 days consistently refuted the Broadcast Bureau’s attempts to reveal willful misrepresentation, but it was additionally notable for the caustic interactions between Lamb and Kittner. The contest of wills that characterized the prehearing phase and escalated between Brown and Powell during the Broadcast Bureau’s presentation

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crested with barely masked contempt between Lamb and Kittner. Throughout the 10 days the two attorneys exchanged barbs and matched wits, often resulting in dramatic exchanges in which Kittner doggedly pursued a line of questioning to which Lamb responded with evasive, legalistic word games. Lamb provided very few direct answers and instead often resorted to carefully constructed responses. For instance, when asked whether he knew he was a member of the Advisory Committee of the ILD, he responded that “it would be inaccurate to say that I knew I was a member of the committee,” rather than simply saying, “no.”122 Lamb refused to be a passive witness, frequently attacked Kittner for the Broadcast Bureau’s use of “professional witnesses,” and used every opportunity to denigrate the FCC’s attempt to frame him. The defense closed its case after calling seven additional witnesses to testify on behalf of Edward Lamb, including Senator Estes Kefauver,123 all of whom testified that Edward Lamb was not a Communist and did not support Communist causes. The hearing into Lamb’s fitness as a licensee finally ended in May 1955, eight months after it started. Shifting Contexts Even before Hearing Examiner Sharfman began deliberating the case, the contexts of the Lamb hearing were changing in fundamental ways. The broader anti-Communist movement was weakening. Joseph McCarthy’s colleagues in the Senate censured him in early December 1954, and the once-powerful political force found himself “avoided and pitied but no longer dreaded.”124 Soon thereafter, McCarthy allegedly dissolved his connection to Doerfer and Lee, asserting that he wouldn’t “have anything more to do with investigating [Edward] Lamb. Let those bastards in FCC wash their own linen!”125 As McCarthy absolved himself of participation, other senators decided to get involved. Senator Warren Magnuson (D-Washington), the chair of the Senate Interstate and Foreign Commerce Committee, revealed that the committee would probably investigate the FCC and its handling of the Lamb case. “In view of all the abuse he [Lamb] has been subjected to, we’ll probably want to take a look at what happened in his case,” Magnuson asserted.126 Thus, as happened many times previously, FCC actions generated negative attention from political leaders. Hearings into the confirmation of a new FCC chair, George McConnaughey, became embroiled in the Lamb debacle. McConnaughey’s nomination was reviewed by the Senate IFC in a short meeting (reminiscent of the first Doerfer hearing) that was sparsely attended. When the confirmation languished, a second hearing was held in late February 1955, just a week after Natvig’s retractions and during Watson’s third day of testimony. This hearing was much longer, and Senator Estes Kefauver was

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allowed to question the nominee despite the fact that he was not a committee member. Kefauver hammered away at McConnaughey about the Lamb hearing.127 Additionally, the case of Marie Natvig continued to reverberate. The Justice Department ordered a grand jury investigation into whether Natvig committed perjury and subsequently indicted her.128 Thus, one of the witnesses on whose testimony the Broadcast Bureau relied was thoroughly disqualified. Finally, conservative and liberal media turned against the FCC. The New Republic asserted that “the forgotten man in the Lamb case . . . was Edward Lamb” because FCC lawyers were more concerned with “defending the FCC against charges of coercion of witnesses, the manufacture of testimony, and, . . . subornation of perjury.”129 Broadcasting was dismayed by the FCC’s handling of the Lamb hearing, which it described as a “backalley brawl.” The agency’s extremely poor handling of the case meant that “the FCC itself [was] on trial, in Congress, in the eyes of the public and before [Natvig’s] grand jury.”130 Not surprisingly, The Nation was particularly blunt in its July 1955 analysis of the case, labeling Walter Powell as a “bungling Svengali” who brainwashed Marie Natvig and again laying responsibility for the entire ordeal at John Doerfer’s feet. The Lamb case, according to The Nation, gave the public “a brief, unforgettable glimpse of how Republican partisanship bars truth and justice from the FCC.”131 Thus, external events to the hearing cast doubt on the FCC and its official conduct in the Edward Lamb case. Initial and Final Decisions Hearing Examiner Sharfman released his “Initial Decision” in early December 1955 in a 140-page report that carefully reviewed all of the testimony and evidence in the case. Following the pattern of evidence, Sharfman reviewed Lamb’s organizational affiliations, legal services, writings, and speeches. After a lengthy analysis of the 11 organizations with which Lamb was allegedly affiliated, Sharfman concluded that the Broadcast Bureau did not prove that Lamb knew the organizations were Communist fronts. Sharfman further rejected the BB contention that Lamb associated with Communists through legal services he provided to them. Sharfman cautiously weighed the Broadcast Bureau’s argument that Lamb’s writings were evidence of Communist sympathies, particularly The Planned Economy of Soviet Russia. Sharfman read the book, declaring that it was “exasperatingly diffuse, pedestrian, in parts carelessly written, and . . . [disingenuously and deliberately] ambiguous.”132 Poor writing aside, however, the examiner found that Lamb’s book “does not advocate the destruction of democratic institutions; . . . nowhere evinces a disbelief in the virtues of democracy . . . ; and hopes for a solution of the problems . . . by peaceful, orderly, democratic methods.”133 In combination with the

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other “questionable” writings, the BB did not prove that Lamb’s writings were proof that lied about Communist associations in the 1948 hearing. Similarly, Sharfman found that the volume of speeches given by Lamb during this period indicated that he was very active politically, and that even if it was true that Lamb gave an address at the Lincoln House dedication, it did not prove an association with Communists and, hence, misrepresentation in the 1948 hearing. Sharfman concluded his analysis by pointedly observing that “perhaps the picture of Lamb which emerges is one of uncertain authenticity—that of a shrewd, successful and aggressive lawyer who was connected in some way with several Communistdominated matters which, despite his demonstrated acumen, he failed to recognize. . . . [Nonetheless], there is no proof that Lamb personally engaged in any subversive activity. Lamb’s possible naivete´ in allying himself with these groups, . . . cannot, on this record, be transformed into something sinister.”134 Finally, Sharfman ordered that Lamb’s license for WICU-TV be granted, unless otherwise appealed by the Broadcast Bureau.135 The BB appealed the decision to the Commission en banc in midJanuary 1956, after which the case stalled. The Lamb case languished for 18 months until the final disposition was released on June 13, 1957. The anticlimactic decision largely reiterated Sharfman’s initial decision, and the Commission granted Lamb’s license renewal for WICU-TV.136 Commissioner Lee dissented, and Commissioner Doerfer did not participate in the vote. The case was over. CON CLUSIO N The FCC’s case against Edward Lamb was a milestone in the history of the Red Scare at the agency and in the influence of politics on Commission decision making. The appointment of John Doerfer and Robert E. Lee as commissioners in 1953 marked the beginning of a Commission sharply influenced by ardent anti-Communists. In a politically motivated attack against a successful labor lawyer and liberal broadcaster, the conservative FCC focused its zeal on Edward Lamb. The resulting eight-month hearing was a disgrace to the Commission and ultimately did far greater damage to the agency than it did to Edward Lamb. Prodded from behind by Doerfer and Lee, the viciousness with which the BB attacked Lamb proved fruitless. Although the accusations of bribery were never proven, the Broadcast Bureau’s apparently unethical handling of the Lamb case proved damaging to the agency. In its zeal to “get” someone they suspected of Communism, the FCC made charges that evidence did not support and coached and threatened witnesses. Doerfer himself remained a controversial commissioner. Although he became the chair of the FCC in 1958, he was roundly disparaged for his mishandling of both the payola/ plugola and TV quiz show scandals and was finally asked to resign in

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1960 after admitting to ethically questionable conduct (he took vacations that were paid for by prominent broadcasters). Robert E. Lee remained on the FCC for many more years. The FCC came late to the Red Scare hunt for subversives; more prominent anti-Communists were already in decline by the time the hearing into Lamb’s case started. The authority of the Senate’s investigative arm, led by Joseph McCarthy, was deteriorating rapidly and turned into a free fall during the summer of 1954, when McCarthy challenged the loyalty of the Army. Soon thereafter, the Wisconsin senator was censured by his fellow senators and frozen out by his colleagues. The HCUA remained active throughout this period, but eventually moderated its investigations and attacks after it came under Democratic control after the 1954 midterm elections. Thus, the FCC’s entrance as a Communist-hunting agency was late. But what it lacked in political timeliness, it more than compensated for in ardor. Indeed, the agency’s enthusiasm for seeking out Communists found expression in other endeavors. The Lamb case was the agency’s most conspicuous attempt to root out subversives, but it was not the only path the agency followed. Ridding the industry of a prominent Communist like Edward Lamb would certainly have had publicity value, but he was only one man, and the agency licensed thousands of commercial and amateur operators. Thus, in the summer of 1954, the FCC began investigating another way to protect the American public from Communists. At about the same time that Edward Lamb appeared before the U.S. District Court to accuse the Commission of bribery, a two-sentence article buried on page 60 of the New York Times reported that: “The Federal Communications Commission said it planned to require the equivalent of a non-Communist affidavit from every applicant for either commercial or amateur radio operators’ license. The same would apply to members of front organizations required to register under the Subversive Activities Control act.”137 The Anti-Red Rule was born. NO TES 1. U.S. Congress, House, Extension of Remarks of F. Edward He´bert regarding Edward Lamb and the FCC, 80th Cong., 2nd Sess., Congressional Record, Vol. 94, Part 11 (8 June 1948), p. A3653. 2. “An Offer to Pay $10,000,” New York Times, 6 May 1954, p. 40. 3. Edward Lamb, “Trial by Battle”: The Case History of a Washington Witch-Hunt (New York: The Fund for the Republic, Inc., 1964), p. 1. 4. In comparison, the hearings for the Chain Broadcasting rule consumed only 11 more days than the Lamb hearings. 5. Edward Lamb, “Trial by Battle,” p. 1. 6. Edgar Kemler, “The Lamb Case: Who Rules the Air?” The Nation, 12 June

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1954, pp. 503–505; Edward Lamb, “Trial by Battle,” p. 1; “The New Commissioner of Communication,” The New Republic, 1 February 1954, p. 6. 7. Richard Fried, Nightmare in Red: The McCarthy Era in Perspective (New York: Oxford University Press, 1990). 8. “McCarthy Claims,” Broadcasting, 26 May 1952, p. 29. 9. “Probe of FCC,” Broadcasting, 8 December 1952, p. 24. 10. “McCarthy Hits Madison TV CP,” Broadcasting, 19 January 1953, p. 53; “McCarthy Data Sought in Madison Complaint,” Broadcasting, 26 January 1953, p. 54. 11. Walter Goodman, The Committee: The Extraordinary Career of the House Committee on Un-American Activities (New York: Farrar, Straus and Giroux, 1968). 12. Interview with Edward Lamb, 6 November 1980, Folder: FCC Hearings/ Interview with Edward Lamb, Box C, Edward Lamb collection, Bowling Green State University, Bowling Green, OH, p. 4 (hereafter EL); Robert E. Lee and John Shosky, In the Public Interest: The Life of Robert Emmet Lee From the FBI to the FCC (Lanham, MD: University Press of America, 1996), p. 153. 13. Commissioner Robert Jones resigned from the FCC in September 1952, thus leaving a vacancy in a position that expired in June 1954. President Truman replaced Jones with Eugene Merrill, whose interim appointment was never approved by the Senate. Eisenhower replaced Merrill with Doerfer in April 1953, thus Doerfer filled the remainder of the Jones/Merrill tenure to June 1954. Federal Communications Commission Nineteenth Annual Report (Washington, D.C.: Government Printing Office, 1954), p. 13. See also U.S. Congress, Senate, Committee of Interstate and Foreign Commerce, Nomination of John C. Doerfer to be a Member of the FCC, 83rd Cong., 1st Sess. (1 April 1953) (hereafter Nomination of John C. Doerfer—1953). 14. Nomination of John C. Doerfer—1953. 15. Ibid., p. 5. 16. Ibid., p. 13. 17. U.S. Congress, Senate, Committee on Interstate and Foreign Commerce, Nomination of Robert E. Lee to be a Member of the FCC, 83rd Cong., 2nd Sess. (18 January 1954). 18. “McCarthy Friend on FCC Queried,” New York Times, 19 January 1954, p. 12; “‘Look’ Story Names Lee as McCarthy ‘Helper,’” Broadcasting, 23 November 1953, p. 57; Arthur R. Main, “McCarthy’s Windfall: Robert E. Lee and the FCC,” The Nation, 19 December 1953, pp. 546–548. Lee maintained that he did not give the list to McCarthy: Robert E. Lee and John Shosky, In the Public Interest: The Life of Robert Emmet Lee From the FBI to the FCC (Lanham, MD: University Press of America, 1996), p. 121. 19. “President Offers List of Nominees,” New York Times, 12 January 1954, p. 10; Main, “McCarthy’s Windfall,” p. 546. 20. Main, “McCarthy’s Windfall,” p. 546. 21. Interview with Edward Lamb, 6 November 1980, Folder: FCC Hearings/ Interview with Edward Lamb, Box C, EL, p. 5. 22. Edward Lamb, No Lamb for the Slaughter (New York: Harcourt, Brace and World, Inc., 1963). 23. Interview with Edward Lamb, 6 November 1980, Folder: FCC Hearings/ Interview with Edward Lamb, Box C, EL, p. 1. 24. Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946). See also “Portal-to-

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Portal for All,” Time, 16 December 1948, p. 90; “Portal-Pay Bills,” New Republic, 27 January 1947, p. 10; “ABOR: Portal Reprieve,” Newsweek, 12 February 1947, p. 31. 25. “Portal-to-Portal for All,” p. 90; “ABOR: Portal Reprieve,” p. 31. 26. U.S. Congress, House, Comments by J. Parnell Thomas regarding Origin of Portal-to-Portal Pay Suits, 80th Cong., 1st Sess., Congressional Record, Vol. 93, Part 1 (23 January 1947), p. 538. 27. Interview with Edward Lamb, 6 November 1980, Folder: FCC Hearings/ Interview with Edward Lamb, Box C, EL, p. 1. 28. U.S. Congress, House, Comments by J. Parnell Thomas regarding Origin of Portal-to-Portal Pay Suits, 80th Cong., 1st Sess., Congressional Record, Vol. 93, Part 1 (23 January 1947), pp. 538–539; “Lamb Denies Knowing Riskin,” New York Times, 24 June 1947, p. 1. 29. In re: appeal of Unity Corporation et al., 12 FCC 711 (1948). See also Unity Corporation, Inc. Springfield, Ohio (Docket 7589), application for Class B FM station conditionally granted, March 12, 1948, 12 FCC 1090 (1948). 30. In re: appeal of Unity Corporation et al., 12 FCC 714 (1948). 31. U.S. Congress, House, Comments of F. Edward He´bert regarding The Federal Communications Commission and the Communists, 80th Cong., 2nd Sess., Congressional Record, Vol. 94, Part 4 (5 May 1948), p. 5326. See also “‘Red Network’ Laid to FCC,” New York Times, 8 May 1948, p. 15. Representative Charles W. Vursell (R-Illinois) later repeated He´bert’s comments verbatim on the floor of the House: U.S. Congress, House, Comments of Charles Vursell regarding Edward Lamb, 80th Cong., 2nd Sess., Congressional Record, Vol. 94, Part 5 (1 June 1948), pp. 6816–6817; Unity Corporation, Inc., Springfield, OH (Docket 7589), 12 FCC 1090; In re: Approval of Unity Corporation et al., 12 FCC 711 (1948). 32. U.S. Congress, House, Comments of F. Edward He´bert regarding The Federal Communications Commission and the Communists, 80th Cong., 2nd Sess., Congressional Record, Vol. 94, Part 4 (5 May 1948), p. 5328. 33. U.S. Congress, House, Extension of Remarks of F. Edward He´bert regarding The Federal Communications Commission and the Communists, 80th Cong., 2nd Sess., Congressional Record, Vol. 94, Part 11 (11 May 1948), p. A2926. 34. U.S. Congress, House, Extension of Remarks of F. Edward He´bert regarding Edward Lamb and the FCC, 80th Cong., 2nd Sess., Congressional Record, Vol. 94, Part 11 (8 June 1948), p. A3653. 35. U.S. Congress, House, Comments of Eugene Cox regarding the Select Committee to Investigate Federal Communications Commission, 80th Cong., 2nd Sess., Congressional Record, Vol. 94, Part 7 (19 June 1948), p. 9228. 36. U.S. Congress, House, Comments of Adolph Sabath regarding the Select Committee to Investigate Federal Communications Commission, 80th Cong., 2nd Sess., Congressional Record, Vol. 94, Part 7 (19 June 1948), p. 9229. 37. U.S. Congress, House, Select Committee to Investigate the Federal Communications Commission, Final Report of the Select Committee to Investigate the Federal Communications Commission, 80th Cong., 2nd Sess. (3 January 1949), p. 24. 38. Joe Sitrick, “FCC ‘Expose,’” Broadcasting, 10 May 1948, p. 28; “Lamb Files $500,000 Suit Against Rival Newspaper,” Broadcasting, 17 May 1948, p. 42; “House Rushes Action on Probe of FCC,” Broadcasting, 21 June 1948, p. 4. 39. “FCC’s Little Lamb,” Broadcasting, 17 May 1948, p. 136. 40. Edward Lamb, “Anarchy in TV?” New York Times, 2 April 1950, p. 9.

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41. Susan L. Brinson, Personal and Public Interests: Frieda Hennock and the Federal Communications Commission (Westport, CT: Praeger Publishers, 2002). 42. Lamb, “Anarchy in TV?” p. 9. 43. Ibid. 44. In re: Application of Dispatch, Inc., Erie, Pennsylvania, Docket 11048, Box 5454, FCC Docket Section, FCC Archives, NARA. 45. Reynolds to Lamb, 29 July 1953, Folder 27, Box 41, EL. 46. Lamb to Reynolds, 5 August 1953, Folder 27, Box 41, EL. 47. U.S. Congress, Senate, Committee of Interstate and Foreign Commerce, Nomination of John C. Doerfer to be a Member of the FCC, 83rd Cong., 2nd Sess. (23 June 1954), p. 7 (hereafter Nomination of John C. Doerfer—1954). 48. Ibid. 49. Ibid. 50. Lamb, “Trial by Battle,” p. 5. 51. Nomination of John C. Doerfer—1954, p. 69. 52. Ibid., p. 8; Lamb, “Trial by Battle,” p. 5; Lamb, No Lamb for Slaughter, p. 128. 53. Nomination of John C. Doerfer—1954, p. 7. 54. Petition for Immediate Grants and Other Relief, 28 October 1953, In re: Application of Dispatch, Inc., Erie, Pennsylvania, Docket 11048, Box 5454, FCC Docket Section, FCC Archives, NARA. 55. Fly to Lamb, 23 September 1953, Folder: FCC Correspondence 1953, Box B, EL. 56. Ibid. 57. McGrath to FCC, 29 October 1953, Folder: FCC Correspondence 1953, Box C, EL. 58. Hyde to Kefauver, 9 February 1954, Folder: FCC Correspondence 1954, Box C, EL. 59. Fly to Lamb, 5 February 1954, Hyde to Kefauver, 9 February 1954, Folder: FCC Correspondence 1954, Box B, EL. 60. Ibid. 61. Lamb to Reynolds, 8 April 1954, Folder: FCC Correspondence 1954, Box B, EL. 62. Unity Corporation, Inc., Springfield, OH (Docket 7589), 12 FCC 1090; In re: Approval of Unity Corporation et al., 12 FCC 711 (1948). 63. Morris to Lamb, 11 March 1954, In re: Application of Dispatch, Inc., Erie, Pennsylvania, Docket 11048, Box 5454, FCC Docket Section, FCC Archives, NARA. 64. Morris to Lamb, 11 March 1954, In re: Application of Dispatch, Inc., Erie, Pennsylvania, Docket 11048, Box 5454, FCC Docket Section, FCC Archives, NARA. 65. “To Settle Finally [sic] Issue,” Broadcasting, 8 March 1954, p. 4; “TV License Held Up on New Red Charge,” New York Times, 13 March 1954, p. 21. 66. Lamb to Kefauver, 14 April 1954, Folder: FCC Correspondence 1954, Box B, EL. 67. Petition for Supplemental Information, 12 March 1954, In re: Application of Dispatch, Inc., Erie, Pennsylvania, Docket 11048, Box 5454, FCC Docket Section, FCC Archives, NARA; Memorandum Opinion and Order, 26 March 1954, In re: Application of Dispatch, Inc., Erie, Pennsylvania, Docket 11048, Box 5454, FCC Docket Section, FCC Archives, NARA. 68. Answer of Dispatch, Inc. and Edward Lamb, 9 April 1954, In re: Application

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of Dispatch, Inc., Erie, Pennsylvania, Docket 11048, Box 5454, FCC Docket Section, FCC Archives, NARA, p. 6. 69. In re: Application of Dispatch, Inc., Erie, Pennsylvania, 22 FCC 1369. 70. Testimony of William Cummings, 14 September 1954, Official Report of Proceedings Before the FCC, In re: Application of Dispatch, Inc., Erie, Pennsylvania, Docket 11048, Box 5454, FCC Docket Section, FCC Archives, NARA, p. 56. Also see the testimony of Lowell Watson, Ernest Courey, and Mace Russell. 71. Initial Decision of Hearing Examiner Herbert Sharfman, 7 December 1955, In re: Application of Dispatch, Inc., Erie, Pennsylvania, Docket 11048, Box 5454, FCC Docket Section, FCC Archives, NARA, p. 133. See also In re: Application of Dispatch, Inc., Erie, Pennsylvania, 22 FCC 1369. 72. Initial Decision of Hearing Examiner Herbert Sharfman, 7 December 1955, In re: Application of Dispatch, Inc., Erie, Pennsylvania, Docket 11048, Box 5454, FCC Docket Section, FCC Archives, NARA, p. 135. See also In re: Application of Dispatch, Inc., Erie, Pennsylvania, 22 FCC 1369. 73. Lamb to Fleeson, 24 March 1954, Folder: FCC Correspondence 1954, Box B, EL. 74. Lamb to Reynolds, 8 April 1954, Folder: FCC Correspondence 1954, Box B, EL. 75. Edgar Kemler, “Who Rules the Air?” The Nation, 12 June 1954, pp. 503–505. Kemler published a follow-up essay a year later, “Politics in the FCC: The Lamb Case, Act II,” The Nation, 2 July 1955, pp. 12–13. 76. “An Offer to Pay $10,000,” New York Times, 6 May 1954, p. 40. See also “Lamb Offers $10,000 for ‘Red’ Proof,” Broadcasting, 10 May 1954, p. 68. 77. Lamb et al. v. Hyde, 223 F.2nd 646 (1954). See also “Lamb Asks Court to Spur FCC Hearing,” Broadcasting, 17 May 1954, p. 64. 78. In re: Application of Dispatch, Inc., Erie, Pennsylvania, 22 FCC 1369, at 1372, (1954). See also “Lamb Asks Court to Spur FCC Hearing,” Broadcasting, 17 May 1954, p. 64. 79. Lamb et al. v. Hyde et al., 223 F.2nd 646. See also “Lamb Wins Temporary Stay of Hearing,” Broadcasting, 21 June 1954, pp. 84–85. 80. Nomination of John C. Doerfer—1954. 81. Nomination of John C. Doerfer—1954, p. 27. See also “FCC Official Accused,” New York Times, 24 June 1954, p. 39. 82. Nomination of John C. Doerfer—1954, p. 69. See also “Doerfer Hearing,” Broadcasting, 28 June 1954, p. 46. 83. See also “FCC’s Probe of Lamb Argued Before Court,” Broadcasting, 19 July 1954, p. 83. 84. “Closed Circuit,” Broadcasting, 5 July 1954, p. 5; “Lamb Hearing Postponed by FCC Examiner,” Broadcasting, 26 July 1954, p. 52. 85. Resume of Basic Allegations, 5 August 1954, In re: Application of Dispatch, Inc., Erie, Pennsylvania, Docket 11048, Box 5454, FCC Docket Section, FCC Archives, NARA. See also “FCC to Give Lamb List of Charges,” Broadcasting, 2 August 1954, p. 58; “Publisher Tied to Reds,” New York Times, 8 August 1954, p. 5. 86. Motion for a Further and Particular Statement of Facts, 23 August 1954, In re: Application of Dispatch, Inc., Erie, Pennsylvania, Docket 11048, Box 5454, FCC Docket Section, FCC Archives, NARA; Memorandum Opinion and Order, 9 Sep-

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tember 1954, In re: Application of Dispatch, Inc., Erie, Pennsylvania, Docket 11048, Box 5454, FCC Docket Section, FCC Archives, NARA. 87. “The Lamb Case,” Broadcasting, 16 August 1954, p. 126. 88. Referring to Eugene Stoll and Mabel Flicker, Initial Decision of Hearing Examiner Herbert Sharfman, 7 December 1955, In re: Application of Dispatch, Inc., Erie, Pennsylvania, Docket 11048, Box 5454, FCC Docket Section, FCC Archives, NARA, p. 112. 89. “Lamb Hearing Ensnarled in Legalistic Bickering,” Broadcasting, 20 September 1954, p. 27. 90. All the FCC’s 21 witnesses testified that they knew Edward Lamb as someone who supported Communism and Communist organizations. Nearly all of them knew Lamb during the 1940s and 1950s, knew him to be a prominent lawyer who defended Communists, and/or had conversations with him in which they discussed Communism. The most prominent witness was Louis F. Budenz, the managing editor of The Daily Worker and an admitted Communist. 91. Testimony of William Cummings, Official Report of Proceedings Before the FCC, In re: Application of Dispatch, Inc., Erie, Pennsylvania, Docket 11048, Volumes 1–4, Boxes 5454–5455, FCC Docket Section, FCC Archives, NARA. See also “Witness is Termed Character Assassin,” New York Times, 15 September 1954, p. 43; “Station Owner Accused,” New York Times, 17 September 1954, p. 24; “Opposing Counsel Class in Lamb Renewal Hearing,” Broadcasting, 20 September 1954, p. 9; “Red Roll Padding Cited,” New York Times, 21 September 1954, p. 14. 92. Statement of Russell Brown, Official Report of Proceedings Before the FCC, In re: Application of Dispatch, Inc., Erie, Pennsylvania, Docket 11048, Volume 3, Box 5455, FCC Docket Section, FCC Archives, NARA, p. 366. 93. “Warrant for Witness,” Broadcasting, 27 September 1954, p. 56. 94. Official Report of Proceedings Before the FCC, In re: Application of Dispatch, Inc., Erie, Pennsylvania, Docket 11048, Volume 4, Boxes 5455, FCC Docket Section, FCC Archives, NARA, p. 568. 95. Initial Decision of Hearing Examiner Herbert Sharfman, 7 December 1955, In re: Application of Dispatch, Inc., Erie, Pennsylvania, Docket 11048, Box 5454, FCC Docket Section, FCC Archives, NARA, p. 114. 96. Statement of Lowell Watson, Official Report of Proceedings Before the FCC, In re: Application of Dispatch, Inc., Erie, Pennsylvania, Docket 11048, Volumes 5–7, Boxes 5455 and 5458, FCC Docket Section, FCC Archives, NARA. See also “Red Aid Laid to Lamb,” New York Times, 22 September 1954, p. 40; “Ex-Red Changes Story,” New York Times, 24 September 1954, p. 12; “Reds Solicited Lamb in 1931–33, Ex-Commie Testifies at Hearing,” Broadcasting, 27 September 1954, pp. 54–56. 97. Statement of Lowell Watson, Official Report of Proceedings Before the FCC, In re: Application of Dispatch, Inc., Erie, Pennsylvania, Docket 11048, Volume 41, Box 5465, FCC Docket Section, FCC Archives, NARA, pp. 4889Ⳮ. 98. Statement of Lowell Watson, Official Report of Proceedings Before the FCC, In re: Application of Dispatch, Inc., Erie, Pennsylvania, Docket 11048, Volume 7, Box 5458, FCC Docket Section, FCC Archives, NARA, p.1066. See also “Ex-Red Changes Story,” New York Times, 24 September 1954, p. 12. 99. Official Report of Proceedings Before the FCC, In re: Application of Dispatch,

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Inc., Erie, Pennsylvania, Docket 11048, Volume 8, Box 5458, FCC Docket Section, FCC Archives, NARA. 100. Mark Warren and Clark Wideman both testified on 24 September 1954, and asserted they had conversations with Lamb about Communism. 101. Statement of Ernest Courey, Official Report of Proceedings Before the FCC, In re: Application of Dispatch, Inc., Erie, Pennsylvania, Docket 11048, Volumes 9–12, Boxes 5457 and 5458, FCC Docket Section, FCC Archives, NARA. See also “Witness Accuses Lamb,” New York Times, 28 September 1954, p. 39; “Radio Witness Assailed,” New York Times, 29 September 1954, p. 39; “Lamb Accuser Queried,” New York Times, 2 October 1954, p. 14; “FCC Witness Testifies on Lamb $7 Donation,” Broadcasting, 4 October 1954, p. 54. 102. Statement of Ernest Courey, Official Report of Proceedings Before the FCC, In re: Application of Dispatch, Inc., Erie, Pennsylvania, Docket 11048, Folder: FCC Hearings: Testimony, Ernest Courey, 9/27/54, Box B, Edward Lamb collection, Bowling Green State University, Bowling Green, OH. 103. “FCC Witness Testifies on Lamb $7 Donation,” Broadcasting, 4 October 1954, p. 54. 104. Statement of Louis Budenz, Official Report of Proceedings Before the FCC, In re: Application of Dispatch, Inc., Erie, Pennsylvania, Docket 11048, Volumes 12–13, Box 5457, FCC Docket Section, FCC Archives, NARA. See also “Article by Lamb Cited,” New York Times, 5 October 1954, p. 21; “Lamb Accused of Red Aid,” New York Times, 6 October 1954, p. 13; “Witness Says Lamb Favored Red Communications Grab,” Broadcasting, 11 October 1954, p. 46. 105. Statement of Marie Natvig, Official Report of Proceedings Before the FCC, In re: Application of Dispatch, Inc., Erie, Pennsylvania, Docket 11048, Volumes 14–21, Boxes 5456 & 5457, FCC Docket Section, FCC Archives, NARA. See also “Witness Says Lamb Favored Red Communications Grab,” Broadcasting, 11 October 1954, pp. 46–48; “Testimony of Mrs. Natvig Under Fire by Lamb Counsel,” Broadcasting, 18 October 1954, p. 56; “More Natvig Questioning Today in Lamb Renewal Case,” Broadcasting, 25 October 1954, p. 68. 106. “Witness Says Lamb Favored Red Communications Grab,” Broadcasting, 11 October 1954, p. 48. 107. “Testimony of Mrs. Natvig Under Fire by Lamb Counsel,” Broadcasting, p. 56. 108. Ibid. 109. Natvig to Powell, 4 December 1954, Docket 11048, Box 5463, FCC Docket Section, FCC Archives, NARA. 110. Eugene Stoll, Mabel Flicker, Max Wall, Joseph Friedman, Paul Prosser, Lourine King, Mace Russell, Loris Russell, Evelyn Runge, Irvin Bruhl, Nelson Meagley, and Edward Cheyfitz, Official Report of Proceedings Before the FCC, In re: Application of Dispatch, Inc., Erie, Pennsylvania, Docket 11048, Volumes 22–34, Boxes 5459–5461, FCC Docket Section, FCC Archives, NARA. See also “Witness Refuses to Testify,” Broadcasting, 1 November 1954, p. 9; “Witness Denies Knowledge of Any Lamb Contributions,” Broadcasting, 8 November 1954, p. 9; “Lamb Testimony ‘Checked,’” Broadcasting, 15 November 1954, p. 9; “Witnesses Say Lamb Gave to Red Cause,” Broadcasting, 15 November 1954, p. 94. 111. Statement of Eugene Stoll, Official Report of Proceedings Before the FCC,

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In re: Application of Dispatch, Inc., Erie, Pennsylvania, Docket 11048, Volumes 22–23, Box 5459, FCC Docket Section, FCC Archives, NARA. 112. Statement of Claudius Mace Russell, Official Report of Proceedings Before the FCC, In re: Application of Dispatch, Inc., Erie, Pennsylvania, Docket 11048, Volumes 28, 30–31, Box 5461, FCC Docket Section, FCC Archives, NARA. 113. Powell was immediately hired as counsel for the National Association of Radio and Television Broadcasters. Although he was able to work for NARTB, his doctors assured the FCC that he was too ill to testify in the final stages of the Lamb hearing when Brown wanted to question Powell about coaching and bribing witnesses. 114. “Motion for Severance of Issues, Immediate Decision, and Other Relief,” 7 January 1955, Official Report of Proceedings Before the FCC, In re: Application of Dispatch, Inc., Erie, Pennsylvania, Docket 11048, Volumes 35, Box 5460, FCC Docket Section, FCC Archives, NARA, p. 5. 115. Statement of Marie Natvig, Official Report of Proceedings Before the FCC, In re: Application of Dispatch, Inc., Erie, Pennsylvania, Docket 11048, Volumes 36–39, Box 5460, FCC Docket Section, FCC Archives, NARA. See also “Witness Says She Lied,” New York Times, 11 February 1955, p. 24; “FCC to Explore Shift in Lamb Witness Testimony,” Broadcasting, 14 February 1955, p. 9; “Key FCC Witness Recants Red Charges Against Lamb,” Broadcasting, 14 February 1955, p. 62; Russell Baker, “Witness Widens Attack on FCC,” New York Times, 17 February 1955, p. 12. 116. Statement of Marie Natvig, Official Report of Proceedings Before the FCC, In re: Application of Dispatch, Inc., Erie, Pennsylvania, Docket 11048, Volume 36, Box 5460, FCC Docket Section, FCC Archives, NARA, pp. 4482–4483. 117. Statement of Marie Natvig, Official Report of Proceedings Before the FCC, In re: Application of Dispatch, Inc., Erie, Pennsylvania, Docket 11048, Volume 36, Box 5460, FCC Docket Section, FCC Archives, NARA, pp. 4431. 118. Statement of Lowell Watson, Official Report of Proceedings Before the FCC, In re: Application of Dispatch, Inc., Erie, Pennsylvania, Docket 11048, Volumes 41–44, Box 5465, FCC Docket Section, FCC Archives, NARA. See also Russell Baker, “Second Witness Admits FCC Lies,” New York Times, 29 February 1955, p. 12; “Second Witness Reverses Earlier Lamb Testimony,” Broadcasting, 21 February 1955, p. 9; “U.S. Jury to Get ‘Turnabout’ Case,” New York Times, 22 February 1955, p. 8. 119. Statement of Edward Lamb, Official Report of Proceedings Before the FCC, In re: Application of Dispatch, Inc., Erie, Pennsylvania, Docket 11048, Volumes 47–55, and 59, Boxes 5462, 5466–5467, FCC Docket Section, FCC Archives, NARA. See also “Lamb Heard in TV Case,” New York Times, 2 April 1955, p. 8; “Lamb Tells FCC He Was ‘Framed,’” New York Times, 3 April 1955, p. 78; “Edward Lamb Denies Red Affiliations, Says Never Wrote ‘Worker’ Story,” Broadcasting, 4 April 1955, p. 7; “Lamb Bid to Drop Bribe Issue Denied,” Broadcasting, 11 April 1955, p. 92; “Lamb Makes Denial,” New York Times, 19 April 1955, p. 13; “Lamb Repeats Denials,” New York Times, 20 April 1955, p. 46; “Lamb Denies Red Gift,” New York Times, 21 April 1955, p. 11; “Lamb Denies Red Link,” New York Times, 22 April 1955, p. 8; “Lamb Defends Book on Russia, Repeats Denials of Red Ties,” Broadcasting, 2 May, 1955, p. 80. 120. The 11 organizations were International Labor Defense, American Committee for Protection of Foreign Born, American League Against War and Fascism,

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National Federation for Constitutional Liberties, Civil Rights Congress, International Juridical Association, American League for Peace and Democracy, American Peace Mobilization, American Friends of the Soviet Union, American Council on Soviet Relations, and American Soviet Friendship Council. Initial Decision of Hearing Examiner Herbert Sharfman, 7 December 1955, In re: Application of Dispatch, Inc., Erie, Pennsylvania, Docket 11048, Box 5454, FCC Docket Section, FCC Archives, NARA, p. 16. 121. Statement of Edward Lamb, Official Report of Proceedings Before the FCC, In re: Application of Dispatch, Inc., Erie, Pennsylvania, Docket 11048, Volume 54, Box 5467, FCC Docket Section, FCC Archives, NARA, p. 6576. 122. Statement of Edward Lamb, Official Report of Proceedings Before the FCC, In re: Application of Dispatch, Inc., Erie, Pennsylvania, Docket 11048, Volume 48, Box 5466, FCC Docket Section, FCC Archives, NARA, p. 5801. 123. See the testimony of Clark Wideman, William Patterson, Belle Sundeen, Abner Green, Kenneth Tooil, Lowell Baldwin, Estes Kefauver, Sam Sponseller, August Scholle, David Lawrence, J. Howard McGrath, and Sunne Miller. Official Report of Proceedings Before the FCC, In re: Application of Dispatch, Inc., Erie, Pennsylvania, Docket 11048, Volume 37, 49, 52–53, 56–58, Boxes 5460, 5462, 5466–5467, FCC Docket Section, FCC Archives, NARA. 124. Richard Fried, Nightmare in Red: The McCarthy Era in Perspective (New York: Oxford University Press, 1990), p. 141. 125. Lamb, “Trial by Battle,” p. 11. 126. “Lamb FCC Case Is Eyed,” New York Times, 14 February 1955, p. 21. 127. U.S. Congress, Senate, Committee on Interstate and Foreign Commerce, Nomination of George C. McConnaughey to Federal Communications Commission, 83rd Cong., 2nd Sess. (9 November 1954); U.S. Congress, Senate, Committee on Interstate and Foreign Commerce, Nomination of George C. McConnaughey to Federal Communications Commission, 84th Cong., 1st Sess. (23 February 1955). See also “McConnaughey Bid Passes Committee,” Broadcasting, 14 March 1955, p. 78. 128. “U.S. Jury to Get ‘Turnabout’ Case,” New York Times, 22 February 1955, p. 8; Russell Baker, “U.S. Jury Indicts a False Witness,” New York Times, 8 March 1955, p. 13. 129. Charles Allredge, “Who Is Being Led to the Slaughter Now?” New Republic, 28 February 1955, p. 8. 130. “Lies & Consequences,” Broadcasting, 7 March 1955, p. 118. 131. Edgar Kemler, “Politics in the FCC: The Lamb Case: Act II,” The Nation, 2 July 1955, pp. 12–13. 132. Initial Decision of Hearing Examiner Herbert Sharfman, 7 December 1955, In re: Application of Dispatch, Inc., Erie, Pennsylvania, Docket 11048, Box 5454, FCC Docket Section, FCC Archives, NARA, pp. 84–85. 133. Ibid., p. 94. 134. Ibid., p. 138. 135. “TV Official Wins License Renewal,” New York Times, 8 December 1955, p. 24; “Lamb Exonerated by FCC Examiner,” Editor & Publisher, 10 December 1955, p. 16; “The Lamb Case,” The Nation, 24 December 1955, pp. 546–547. 136. In re: Application of Dispatch, Inc., Erie, Pennsylvania, for Renewal of License of Television Station WICU, 22 FCC 1369, (1957). See also “Three-Year Fight Gains TV License,” New York Times, 14 June 1957, p. 51. 137. “FCC Sets Non-Red Oath,” New York Times, 12 June 1954, p. 60.

CHAPTER 7

Reds Need Not Apply

In February 1955, soon after Marie Natvig retracted her testimony against Edward Lamb, the New Republic pondered “what would have happened in many of the other loyalty cases in which there is no confrontation by witnesses, no clarifying light of publicity, frequently no lawyers, and rarely the financial resources to make a fight possible.”1 The magazine could not have known that exactly this kind of activity was already underway at the FCC, for although the Lamb case ultimately proved disastrous for the agency, it did not hinder the ultimate goal of eliminating Communists from access to the airwaves. By the mid-1950s, the conservative Commission was doggedly committed to removing even the possibility that Reds might use the airwaves to transmit subversive messages, and the most effective way of accomplishing that goal was through the licensing process. After all, Edward Lamb was only one broadcaster among thousands who held commercial and amateur licenses, and the Commission was equally determined to seek out and eliminate the subversives among them. The seeds of the policy to eliminate Communists from the ranks of licensees were sown with the arrival of John Doerfer and Robert Lee to the Commission. Soon after the Commission notified Edward Lamb in March 1954 that a hearing would be held to investigate him, the Commission also sent a letter to Nicholas Garland informing him that it had information regarding his alleged subversive background. Garland had reapplied for his first-class radiotelephone license, and although the FCC didn’t inform him of this fact, his name appeared on the FBI’s list of suspected Communists. The Garland letter was the FCC’s first step down

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a path that led it to investigate several individuals with suspected Communist backgrounds. Over the course of the next eight years, the FCC experimented with ways to accomplish its goal of eliminating Communists and, between 1954 and 1960, used suspected or admitted membership in the Communist Party as a criterion for denying amateur and commercial licenses. TH E “ANTI- R E D R U L E ” Determining whether someone was a Communist was a difficult task for the FCC, so the agency relied heavily on the now welcomed lists of suspected subversives supplied by the FBI. Both the Bureau and the Commission believed that licensees were uniquely capable of transmitting covert messages and finding alternative means to transmit espionage information if “diplomatic, commercial and other channels cease[d] to be available.”2 In an attempt to subvert the subversives, the FBI maintained a list of individuals whom it suspected of Communist sympathies and routinely shared that list with the FCC with the expectation that the agency would use it to eliminate Reds from the airwaves. The list had been circulating for years, but with the appearance of Doerfer and Lee (the latter of whom had particularly close ties to the FBI), the Bureau lists became a commonly used resource when reviewing reapplications for licenses. Indeed, the relationship between the Commission and the FBI was cozy. The days when Clifford Durr questioned the legality and ethics of FBI reports on licensees were long gone, and the Commission not only readily accepted FBI accounts on suspicious licensees, but also willingly utilized the information in internal investigations and then relayed newly collected data back to the Bureau. The FCC kept the FBI, the Department of Justice, and the Attorney General’s office fully informed on the progress of investigations, the data it collected, and its licensing decisions. It was a virtually one-sided relationship, however, in which the Bureau repeatedly asserted that its responsibilities to the Commission ended by providing the original information about a possible subversive. When the Commission requested additional information, as it often did, or requested permission to cite the FBI as the source of information without actually detailing facts it provided, the FBI adamantly and consistently refused. “I am sure you will appreciate the considerations of national security which must dictate this decision,” the Attorney General wrote to FCC chair George McConnaughey.3 Despite prohibitions against using the information publicly, the Commission was nonetheless reliant on the FBI’s information and used it to both identify and investigate licensees. One of the first licensees so earmarked was Nicholas Garland, who was listed in a report of “persons whom the F.B.I. has reason to believe [is] ‘in varying

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degrees capable of clandestine radio communications’”4 and who was “reliably reported to have been a [Communist Party] member in 1949.”5 Armed with this information on Garland, the FCC embarked on a newly devised investigative strategy intended to collect evidence of Communist activity. The FCC informed Garland in April 1954 that he needed to provide additional information to the basic background and training qualifications he submitted on the reapplication form. He was instructed to complete and notarize the following questionnaire and return it to the Commission within 30 days. Garland was asked to respond to four questions: 1. Are you now a member of the Communist Party or Communist Organization? 2. Have you ever been a member of the Communist Party or Communist Organization? If the answer is yes, give dates of membership; 3. Are you now a member of any organization or group which advocates or teaches the overthrow of the Government of the United States, or any political subdivision thereof, by force or violence? If the answer is yes, list the organization or group; 4. Have you ever been a member of any organization or group which advocated or taught the overthrow of the Government of the United States or of any political subdivision thereof, by force or violence? If the answer is yes, list the organization or group and give the dates of membership.6

The first two of these questions are embedded in our national consciousness as representative of the Red Scare witch-hunts, and in the late 1940s and 1950s they became a familiar refrain during hearings conducted by the House Committee on Un-American Activities and the Senate Subcommittee on Investigations. The FCC asked these questions of Edward Lamb in the 1948 Mansfield hearing, and his responses became the center of the agency’s case against the broadcaster. The questionable constitutionality of the questions was not a hindrance to the anti-Communists at the FCC, who believed national security was threatened; consequently Nicholas Garland found himself among the many individuals whose political affiliations were interrogated. The questionnaire was intended to accomplish two related goals for the FCC. The first was identification of Communists for evidentiary purposes. The FCC was required to hold public hearings regarding licensing cases. If the agency wanted to refuse a license to someone it suspected of being a Communist, it would have to present evidence of subversion in an open hearing. The Commission was heavily reliant on the FBI for evidence of Communist sympathies, but the Bureau consistently refused to allow the Commission to use its investigative data publicly as evidence against subversives, just as it did three years earlier when it refused to allow the FCC to use the Bureau’s data regarding WLOA. As a result, the FCC attempted

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to collect its own proof through the questionnaire, which could be presented in public hearings. The questionnaire was not sent to everyone who requested a license, but only to those whose names were listed by the FBI as subversives. The FCC was also motivated to develop the questionnaire as a response to the problems it faced with the developing Edward Lamb case. Because the FCC had neither specific evidence of Communist Party membership or sympathies, such as a questionnaire might have revealed, the best it could do was assert that Lamb misrepresented himself in the 1948 Mansfield hearing. The new questionnaire would eliminate that problem from future cases and appeared to be an excellent solution to an evidentiary problem. The FCC waited for Garland’s response. The questionnaire raised as many questions as it attempted to answer, and a sense of unease grew as the Commission awaited Garland’s response. Although it was intended to ameliorate some legal problems, it created other difficulties that placed the Commission in a precarious position. If Garland failed to respond to the questions, his renewal application could be denied under §1.381 of the 1934 Communications Act, which gave the Commission authority to request specific information with regard to licensing. But what if Garland affirmed his affiliations with the Communist Party? FCC lawyers reasoned that there was nothing in the Communications Act that gave the Commission the specific authority to refuse Garland his license.7 It became clear that the questionnaire was only one step toward reaching the ultimate goal of eliminating Communists as licensees; it was simply the evidence that was needed to prosecute a licensee. Yet, in the absence of a clear policy that gave the FCC the authority to undertake the prosecution, the Commission could not refuse a license to an admitted Communist unless it did so using the vaguely broad character qualification that was about to be tested in the Edward Lamb case. A sigh of relief must have emanated from some FCC offices when Garland failed to respond to the questionnaire, thereby giving the agency the legal authority to dismiss his application.8 But the Garland questionnaire revealed a serious flaw in the agency’s anti-Communist strategy, so it turned its attention to developing a policy that would specifically prohibit Communists from licensing eligibility. The assignment for developing the new policy fell to four bureau chiefs (General Counsel, Field Engineering and Monitoring Bureau, Safety and Special Radio Services, and Personnel Security). Between April and June 1954 the chiefs considered their options, significant deliberations that ran concurrently with Edward Lamb’s counterattack against the agency in which he loudly proclaimed that the FCC was engaged in character assassination. Lamb’s proclamations reinforced the chiefs’ beliefs that a policy that prevented Communists from getting licenses was necessary, rather than using a vague definition of character qualifications, as was currently

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underway in the Lamb case. Section 303(L) of the 1934 Communications Act gave the FCC the broad authority to “prescribe the qualifications of station operators.”9 The bureau chiefs later argued that §303(L) gave the Commission the authority to “properly take into consideration such factors as . . . membership in certain organization in determining whether public interest should be served in granting a license,”10 but were unconvinced that the scope of this authority would include membership in Communist organizations. They warned that “there is no basis for suspending the license of a person who may be a member of the Communist Party or some other subversive organization unless the Commission’s rules provide that such a person is ineligible to hold a license.”11 Hence, the vague character requirement and the specific problems it faced in the Lamb case led the bureau chiefs to create a policy that would specifically exclude Communists from receiving amateur or commercial radiotelephone licenses. A New Rule Satisfied that character qualification was insufficient grounds for prohibiting Communists, the bureau chiefs turned to another authority granted to the Commission by the Communications Act of 1934. The FCC had the broad authority to suspend the license of anyone who violated Commission rules. The chiefs theorized that in “order for the Commission to have a basis for suspending the licenses or permits of operators who may be security risks it is believed that the rules must be amended so that people in certain categories will be ineligible for operator licenses or permits.”12 Thirteen years earlier when Larry Fly attempted to prevent newspaper publishers from receiving broadcasting licenses, conservative publishers responded that the FCC could not refuse a license to “any persons belonging to a particular class because of their belonging to that class.”13 The political times were different now, and accordingly, if the FCC established that Communists could not be licensed, then anyone whom the Commission later learned was a subversive could lose her/his license because s/he broke FCC rules. Specifically, the new policy would amend §12.21 by preventing Communists from acquiring amateur licenses and amend §13.5 by making Communists ineligible for commercial licenses. The bureau chiefs argued that authority for creating such a specific policy was rooted in the results of a recent investigation of the FCC by the federal Interdepartment Committee on Internal Security (ICIS), which suggested that “the Commission should require applicants for licenses to execute appropriate security questionnaires.”14 Support for the proposed policy rested on a deeper anti-Communist philosophy firmly rooted in national politics. Although frantic antiCommunist fears seemed to subside with the death of Joseph Stalin and

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the end of the Korean conflict in 1953,15 Congress maintained its fundamental belief that Communists represented a significant threat to national security. Throughout the summer of 1954, liberals and conservatives in both the House and the Senate wrangled over a proposed law that would close loopholes discovered in the Internal Security Act of 1950, specifically listing 14 activities that, if undertaken, would result in the declaration of an organization as Communistic by the Subversive Activities Control Board. Once publicly identified, the organization was required to register with the same Control Board, thereby limiting its ability to act covertly. Both the House and the Senate vigorously and overwhelmingly approved the Communist Control Act of 1954.16 Indeed, the lone senator voting against the bill that summer was Estes Kefauver, Edward Lamb’s staunch advocate. Thus, as the FCC deliberated the usefulness of a rule that would specifically outlaw Communists as licensees, it did so within a larger political context that supported its necessity. In an early June 1954 executive session, a majority of the commissioners took decisive anti-Communist action. They enthusiastically endorsed the bureau chiefs’ suggested policy and released a Notice of Proposed Rulemaking, a requirement of the policy-making process whereby the FCC had to inform the industry and the public of a proposed policy and seek responses from interested parties, all of which had to occur prior to scheduling a hearing (if it was deemed necessary) and implementing the policy. The Notice was the first public indication of the Commission’s intent to create a rule specifically prohibiting Communists from licensing eligibility, which Broadcasting dubbed the “Anti-Red Rule.”17 The Commission was satisfied with its philosophical approval of the Anti-Red Rule and untroubled by the fact that it was not yet official policy, and it continued to send letters and questionnaires identical to that sent to Nicholas Garland; Travis Lafferty and Alfred Johnson received theirs in late June 1954. The proposed rule generated little attention. Over the next few months, the Commission received letters and/or legal opinions from only 16 organizations and 28 individuals, some who supported and others who opposed the proposed rule. Upon reviewing the responses, the bureau chiefs found that “strong opposition” to the proposed rule was adequately countered by a “considerable number [who] approved the proposal.”18 In the absence of a clear mandate, with anti-Communist conviction guiding them and with the recently concluded Garland case and the current Lamb case as reminders of the ever-present subversive “threat,” the bureau chiefs formulated the new policy, which was released to the public as a Proposed Report and Order in January 1955. A hearing for public discussion of the Anti-Red Rule was scheduled for early March 1955. The Commission’s message was clear: it was moving forward with development of a policy to prevent Communists from being licensed. When the Anti-Red Rule hearing commenced, only four witnesses rep-

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resenting four organizations presented themselves: the American Communications Association (ACA), the Americal Civil Liberties Union (ACLU), AWARE, Inc. (a private organization comprised of people working in the entertainment industry), and the Conference of American Maritime Unions (CAMU). The witness for AWARE urged the FCC to adopt the rule, but the remaining witnesses made compelling arguments about the injustice of the proposal. The ACA asserted that the Commission did not have the legal authority to change the requirements for a license and further maintained that §303(L) of the 1934 Communications Act did not stipulate activity in “subversive organizations” as grounds for licensing decisions. Both the ACA and the ACLU witnesses asserted that the 1950 Internal Security Act specifically listed three punishments that could be meted out against convicted Communists. If the Commission established license revocation as a punishment for Communist activity, it essentially amended the Security Act by creating a fourth punishment, an authority the Commission did not constitutionally enjoy. Both organizations’ witnesses vociferously argued that the proposed rule was an unconstitutional political test for licensing as it violated the First Amendment guarantee of freedom of assembly. The witness for the CAMU pointed out that there were no clear appeals procedures for individuals declared ineligible for a license as a result of Communist membership; consequently, the rule violated constitutional guarantees of due process. Finally, in addition to the legal arguments, both the ACLU and the CAMU noted that the prohibitive financial costs the Commission would incur as a result of having to investigate each individual accused of being a Communist. After less than three hours, the public hearings regarding the Anti-Red Rule adjourned. The commissioners were now left to decide whether to implement the proposal and make it official FCC policy. As the Commission deliberated the Anti-Red Rule, it continued to act on its fundamental belief that Communists should not be licensed, despite the problems the agency faced in implementing its philosophy. Many within the agency believed it did not have a legal basis for prosecuting its anti-Communist ideals. As FCC Chair George McConnaughey explained to the Attorney General, the Anti-Red Rule was not in place and could not be used as the legal foundation to support the questionnaires the FCC already sent to Travis Lafferty and Alfred Johnson in June 1954. Despite this, the FCC continued to send the questionnaires to suspected Communists such as Charles Syers, Harry Hosack, and Ronald Berkovitz. Soon after these three received their questionnaires, the Lamb case degenerated into an FCC nightmare, with witnesses retracting testimony, senators threatening investigations, and Edward Lamb accusing the FCC of framing him as a Communist, and the only characters being questioned successfully were those of the FCC commissioners. Even the solution that the agency believed would be the tonic to cure the country of subversive

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licensees now seemed problematic, as it appeared as if the Anti-Red Rule might result in protracted legal challenges. The FCC was at an impasse. It was committed to its anti-Communist philosophy, but was unclear how it should be implemented. The answer to the FCC’s dilemma was actually proposed in early January 1955 before the Anti-Red Rule hearing and was reinforced by the first of the hearings involving a questionnaire recipient. The agency soon realized that it did not need a new policy and could accomplish its goal of eliminating Communists through the application of well-established policies. The FCC found a quietly effective means to achieve the philosophy of the Anti-Red Rule without actually implementing it as official policy. A SUCCESS F U L S T R AT E G Y Although the Anti-Red Rule was conceived as the policy through which the FCC could eliminate Communists as licensees, it was never officially implemented as an amendment to the Communications Act of 1934. Despite this, between 1954 and 1960 the Commission was successful in its goal of eliminating licensees it suspected of being Communists. At least 12 individuals whose names appeared on FBI lists of suspected Communists requested license renewals from the FCC,19 all twelve of whom were notified after the Commission’s June 1954 meeting in which it resolved to continue sending the questionnaire. All these cases were resolved in one of three ways: approval of reapplication due to lack of evidence of being a Communist, dismissal of application due to nonresponse of applicant, or dismissal of application due to applicant’s refusal to answer questions. As the cases unfolded, it became clear that the FCC could successfully eliminate suspected Communists without having to institute a new policy. Moreover, the combination of using existing authority and the defense strategy of the accused made it possible for the Commission to essentially activate its anti-Communist philosophy without actually accusing anyone of subversion. Five of the 12 licenses were renewed. Letters and questionnaires sent to Charles Syers, Richard Eaton, Ronald Berkovitz, Robert Mattson, and Stanley Rothrock were based on information supplied by both the FBI and the Department of Justice in which the applicants were listed as suspected Communists. In each case, the individuals responded negatively to all four questions,20 leaving the Commission in the unenviable position of having to weigh the veracity of the official reports against the individuals’ assertions to the contrary. Because neither the FBI nor the Justice Department would allow themselves to be publicly revealed as the sources of information regarding suspected Communist affiliations, the FCC did not

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have sufficient evidence on which to make a licensing decision. More to the point, the Commission could not deny their licenses. The Commission pursued the cases. An internal investigation satisfied the Commission that Eaton was not a Communist. The FBI failed to respond to the FCC’s request for information about Syers and Rothrock that could be used in a public hearing. In the case of Ronald Berkovitz, the FBI revealed that their suspicions were based on the “fact” that Beverly Berkovitz, Ronald’s wife, was a Communist, which the Commission believed was weak evidence of Berkovitz’s subversion. Robert Mattson’s name was listed when he reapplied in early 1955, which prompted the FCC to send him a letter and questionnaire. After Mattson responded “no” to the four questions and the Commission asked for more information from the FBI, the FCC received a new list of suspected Communists that no longer contained Mattson’s name. In all five cases, the Commission renewed the licenses because of their inability to definitely label these men Communists. Although the remaining six applicants did not know it, answering “no” to the questions was the most effective way to keep their licenses. If “no” was a lie, it left the applicants subject to perjury charges, but only if the FCC could prove that they lied, which the Commission could not do because the FBI and Justice would not allow their information to be used publicly. Three of the 12 had their license reapplications dismissed because they did not respond to the questionnaire. This was an effortless way in which the FCC disposed of suspected Communists among their licensees. Two of the applicants applied for license renewals and were subsequently sent the questionnaire to complete, but failed to return it to the FCC.21 As the Commission noted in every letter it sent to suspicious individuals, failure to complete the questionnaire gave the agency the right to dismiss the application under Section 1.381. As a result, Dudley Dixon’s and Harry Hosack’s licenses were dismissed. A third applicant, Charles Colcord, responded to the questionnaire by twice refusing to answer it, and then failing to appear for the hearing to review his application.22 Four of the 12 cases are the most important because the FCC was able to successfully avoid relicensing suspected Communists. In all four cases, despite the fact that the FCC had not approved the Anti-Red Rule as official policy, its philosophical intent nonetheless served as the basis for denying or dismissing the renewal applications. The FCC was committed to anti-Communism, but it would have had a much more difficult time prosecuting these four if the accused’s defense strategies hadn’t helped the FCC cause. As it turned out, the Anti-Red Rule was unnecessary, and the FCC realized that it could use policies already in place to refuse licenses to Communists. After reviewing Alfred Johnson’s and Travis Lafferty’s refusals to answer the questionnaire and their petitions for hearings, three bureau chiefs argued that

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it is not believed that the hearings on their licenses need consider or go into the question as to whether either of the applicants is or was in fact a member of the Communist Party. . . . For if the questions propounded were lawful ones under the circumstances, and it is believed that they were, . . . the Commission could properly reach a determination that the applicants were not qualified to be radio operators because of their failure to respond to such lawful inquiry. In such a hearing the actual activities or affiliations of the applicants not only would not be put in issue by the Commission, but any effort to elicit information . . . would be vigorously opposed by Commission counsel.23

In this regard, the Commission’s goal was significantly advanced by the licensees themselves, for in refusing to answer the Commission’s questions and asserting it didn’t have the right to ask them, the licensees established the basis for the Commission’s right to refuse to relicense Travis Lafferty, Alfred Johnson, William Cronan, and Morton Borrow.24 As the FCC pursued its case against Edward Lamb in the summer of 1954, it simultaneously launched investigations of Travis Lafferty and Alfred Johnson. Lafferty lived in Oakland, California, where he worked installing two-way radio equipment in taxicabs and tugboats. Following a routine check of their FBI lists after his license reapplication, the FCC requested that Lafferty complete the four-item questionnaire and return it to the Commission. Alfred Johnson, who worked at the Chromatic Television Laboratory in Oakland, California, received a similar letter and questionnaire from the FCC. Both Lafferty and Johnson responded by asserting that the agency did not have the legal authority to request such information, and both requested a hearing. Johnson’s hearing was indefinitely postponed, but Lafferty’s hearing took place before Hearing Examiner J. O. Bond in May 1955, at which Lafferty and his attorney continued to argue that the FCC did not have the legal authority to ask the four questions. Lafferty refused to answer the four questions and, in his defense, argued four points: first, that the Communications Act of 1934 did not give the Commission the specific authority to ask questions about Communist membership. It was an argument the FCC heard several years earlier when lawyers for the Hollywood Community Radio Group similarly asserted that the Commission did not have the statutory right to make licensing decisions based on political affiliation. Second, Lafferty argued that the Commission was strictly limited to determining the technical qualifications of applicants. He thirdly argued that the Commission could not evaluate licensing qualifications on a case-by-case basis but, rather, had to require the qualifications for all applicants. Hence, because the four questions were not asked of all applicants, they could not be asked of Lafferty. Finally, Lafferty argued that the Commission had to produce the evidence that motivated them to ask the questions; in other words, the Commission had the burden of proving that Lafferty was un-

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qualified.25 Nine months later, Bond dismissed Lafferty’s application for failure to answer the questions put to him. Lafferty challenged the decision and requested a hearing before the Commission en banc, which was granted and took place in December 1956. Two days after the second hearing the Commission released its 14-page final decision regarding the Lafferty case. The Commission defended itself against Lafferty by asserting that it did, in fact, have the statutory authority to ask the four questions. Repeatedly citing §303(L), as well as a variety of Supreme Court cases in which the Commission’s authority was delineated, the FCC argued that it had broad authority to inquire about licensing qualifications. Indeed, the Commission contended, §303(L) specifically authorized them to prescribe qualifications for licensing that were not strictly limited to technical issues. The Commission also maintained that §303(L) gave them the authority to make determinations on a case-by-case basis. Further, the Commission declared that it was administratively responsible for contributing to the protection of national security, as outlined in the Communications Act of 1934. Citing the recently passed Communist Control Act of 1954, which specifically defined Communists as a threat to national security, the FCC asserted that it was legally obligated to prevent Communists from being licensed. Finally, as the commissioners made clear in their decision, “If an applicant refuses to disclose pertinent information required to establish his qualifications for the license requested, there is no burden upon the Commission to prove that he does nor does not possess the requisite qualifications. This burden rests with the party requesting the license.”26 The commissioners then turned to what they believed were the fundamental issues at hand, whether Lafferty failed to answer legally advanced questions, and based on the answer to that question, whether his license should be renewed. The commissioners asserted that “Lafferty’s failure to answer lawful questions propounded to him which are critical to a determination of whether a grant of his renewal application would serve the public interest, convenience and necessity deprives him of those qualifications necessary to the holding of a radio operator license.”27 Finally, the Commission arrived at a conclusion that proved crucial for future cases. It made clear that Lafferty’s license was not denied because he was a Communist (since they were unable to make that determination), but because he refused to answer the questions. So while Lafferty argued that the FCC could not use Communist membership as means of denying a license because it was not a legal question to ask, the Commission responded that it was a legal question and because Lafferty refused to answer it, his license could legally be denied. In using this argument, the Commission found an effective way to prevent Communists from getting licenses, which was their intent all along. As long as suspected Communists continued to argue that the FCC could not ask the four questions

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and therefore they would not answer them (which Borrow, Cronan, and Johnson did), the agency could persuasively argue that nonresponse constituted a legitimate reason for denial. Thus, although the accused attempted a defense based on legal and constitutional theory, in reality their defense strategy simply allowed the Commission to achieve its antiCommunist goals. It was a brick wall that William Cronan, Alfred Johnson (whose case was reopened by the Commission), and Morton Borrow quickly ran into when they tried to make arguments similar to Travis Lafferty’s. These antiCommunist licensing cases were launched at widely distanced times (Cronan was notified in March 1956, Johnson in June 1957, and Borrow in April 1958), yet hearings for all three were held in October 1958. Borrow’s case became particularly important to strengthening the FCC’s case against licensing Communists. Morton Borrow was employed as a radio technician by the William Penn Broadcasting Company in Philadelphia, a position that required a first-class radiotelephone license. In March 1958 Borrow reapplied for the first-class radiotelephone operator’s license that had been repeatedly granted to him by the FCC since 1936. However, because his name now appeared on the FBI list, he received a letter requesting completion of the four-item questionnaire from the FCC. Borrow refused to answer the questions because he believed they were “an infringement of [his] constitutional rights,”28 and Cronan and Johnson advanced similar arguments. Hearings regarding the licenses were held in October 1958, Borrow’s in Washington, D.C., and Cronan’s and Lafferty’s simultaneously in San Francisco. All three argued similar points made earlier by Travis Lafferty, specifically that the Commission did not have the legal authority to ask the four questions. Over a year after hearing the cases, the Commission decided the Borrow case and, in combination with its previous Lafferty judgment, established the basis for its authority to ask the four questions. The Lafferty and Borrow cases became the basis for the later decisions regarding Cronan and Johnson. The FCC used the Borrow ruling to both reaffirm its Lafferty decision and elaborate on the argument that §303(L) gave the agency the statutory right to ask questions of licensees that it deemed necessary. The commissioners argued that if the Commission has any reason to believe or suspect that the grant of a particular application would not be, or might not be, in the public interest, it has a duty to conduct an appropriate investigation to ascertain sufficient facts to form the basis for a lawful and equitable conclusion. . . . Accordingly, if an applicant fails to furnish the information required by the Commission, it is impossible for the Commission to affirmatively find that a grant of such application is in the public interest.29

The commissioners strengthened its public interest argument by invoking the national defense justification, asserting that one of the most important

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aspects of serving public interest was protecting national defense. Again citing the Communist Control Act of 1954 and its definition of Communists as a threat to national security, the Commission asserted that if a Communist “is the holder of an operator’s license, . . . the opportunities for untoward activity peculiarly available to a licensee are potentially so cataclysmic as to cause the Commission to exercise the greatest caution in considering such application. That is to say membership in the Communist Party might reasonably rouse in the Commission suspicion that an applicant is not wholly in sympathy with the national interest.”30 Thus, the Borrow decision further bolstered the agency’s ability to use Communist sympathy as a basis for licensing decisions by arguing that it was a matter of protecting the public’s right to national security, hence the Commission had the right to ask the four questions. Borrow’s license, like Lafferty’s before him, was revoked because he refused to answer the questions, not because he was a Communist. The future of the Cronan and Johnson cases seemed clear, despite the fact that Morton Borrow appealed his decision to the U.S. Circuit Court of Appeals. True to form, the FCC refused to relicense William Cronan in April 1960 and reached a similar decision regarding Alfred Johnson in May 1960. In both decisions the agency reaffirmed the positions argued extensively in the Lafferty and Borrow cases and simply asserted that Cronan’s and Johnson’s refusals to answer legally advanced questions resulted in its refusal to relicense them. Like Borrow, Cronan challenged the decision to the Court of Appeals. Borrow and Cronan advanced similar arguments before the federal court. They both contended that the FCC did not have the legal right to use Communist Party membership as a basis for a licensing decision, thus the agency could not legally ask the four questions. The Appeals Court sided with the FCC, however, and determined that the only issues at hand were whether the agency could query licensees about Communist Party membership and whether refusal to answer then constituted grounds for refusing a license. The Court of Appeals affirmed the FCC’s authority to ask the questions based on both the public interest and national defense arguments and asserted that “membership in the [Communist] Party . . . is a proper introductory query,” given that adherence to the Communist cause “is not merely a political opinion.”31 The Appeals Court finally decided that “the conclusions of the Commission in this matter were exhaustive, careful, and well-reasoned” in the Borrow case and reached a similar conclusion six months later in the Cronan case. CO NCLUSION In early August 1962, the FCC decided that “in view of the passage of time, and considering all of the facts and circumstances herein, it does not

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appear that the public interest would be served by adopting” the AntiRed Rule.32 The decision was misleading, however, as it created the illusion that the Commission was no longer interested in preventing Communists from getting licenses. Yet the opposite was true, because in the seven years since the Anti-Red Rule hearing was held, the Commission utilized already existing statutory authority to enforce their licensing qualification, as the Lafferty, Borrow, Cronan, and Johnson cases clearly demonstrated. Hence, although the Anti-Red Rule itself was abandoned, its philosophy was enforced from 1954–1960. As the New Republic unwittingly predicted in February 1955, the consequences were severe for individuals whose loyalty was questioned but, unlike Edward Lamb, did not enjoy the “clarifying light of publicity” or “the financial resources to make a fight possible.” Travis Lafferty, Morton Borrow, William Cronan, Alfred Johnson, Dudley Dixon, Harry Hosack, and Charles Colcord all lost their licenses, and probably their livelihoods, because of the FCC’s determined effort to remove suspected Communists from its roster of licensees. Yet in all seven cases, the FCC never had to provide proof of subversion. By the time the Commission issued the Order that scrapped the AntiRed Rule, much had changed at the agency. Although John Doerfer eventually assumed leadership of the FCC in 1958, his tenure was fraught with controversy. In the brief two years of his administration, the Commission was severely criticized for its poor handling of both the payola/ plugola scandal in the radio industry and the quiz show scandal in television. Doerfer himself was eventually asked to resign from the Commission by President Eisenhower in 1960 after the FCC chair admitted accepting vacations from broadcasting industry leaders, a clear conflict of interest. With John Kennedy’s ascendancy to the Presidency in 1960, the FCC again assumed a Democratic majority under the authority of Newton Minow, and although the fear and pursuit of Communists continued under the Kennedy administration, the FCC turned its attention toward serving the public’s interest by reminding broadcasters of their duties to serve the public. As Minow reminded broadcasters in the famous “vast wasteland” speech before the National Association of Broadcasters, “I understand that many people feel that in the past licenses were often renewed pro forma. I say to you now: renewal will not be pro forma in the future. There is nothing permanent or sacred about a broadcast license.”33 Under Democratic leadership, the FCC turned its attention to promoting educational television and attempting to limit corporate hegemony over the television industry. Although politics continued as a central guiding force over the development and implementation of broadcast regulatory policy, the fear of Communist influences in broadcasting subsided to extinction. For all intents and purposes, the Red Scare at the FCC was over.

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NO TES 1. Charles Alldredge, “Who is Being Led to the Slaughter Now?” New Republic, 25 February 1955, p. 8. 2. Attorney General to FCC, 29 September 1954, “Clandestine Radio Communications, Potential Operators,” FCC Classified Agenda for 19 January 1955, Box 8, FCC Confidential Minutes, FCC Archives, NARA. 3. Brownell to McConnaughey, 8 December 1954, Classified Agenda for 19 January 1954, Box 8, FCC Confidential Minutes, FCC Archives, NARA. 4. Hyde to Attorney General, 22 April 1954, Box 7/Confidential FCC Minutes, FCC Archives, NARA. 5. Inter-office Memorandum, 15 April 1954, for Classified Agenda for 21 April 1954, Minutes 9-C-54 (21 April 1954), Executive Session, Box 7/Confidential FCC Minutes, FCC Archives, NARA. 6. Minutes 9-C-54 (21 April 1954), Executive Session, Box 7/Confidential FCC Minutes, FCC Archives, NARA. 7. Inter-office Memorandum for Classified Agenda for 19 January 1955, Box 8/ FCC Confidential Minutes, FCC Archives, NARA, p. 10. 8. Morris to Garland, 30 June 1954, Folder 9-C-54/Executive Session-Classified, Box 7, FCC Confidential Minutes, FCC Archives, NARA. 9. Communications Act of 1934, 47 USCS §303(L). 10. Inter-office Memorandum for Classified Agenda for 19 January 1955, Box 8/ FCC Confidential Minutes, FCC Archives, NARA, p. 7. 11. Ibid., p. 10. 12. Inter-office Memorandum for Classified Agenda for 9 June 1954, Minutes 16-C-54 (10 July 1954), Executive Session, Box 8/Confidential FCC Minutes, FCC Archives, NARA. 13. “Motion to Vacate Order No. 79 and Order No. 79-A and Terminate Proceeding,” p. 2 (15 July 1941), Box 1932, Docket 6051, FCC Docket Section, NARA, College Park, MD. 14. Inter-office Memorandum for Classified Agenda for 9 June 1954, Minutes 16-C-54 (10 July 1954), Executive Session, Box 8/Confidential FCC Minutes, FCC Archives, NARA. 15. See John E. Haynes, Red Scare or Red Menace? (Chicago: Ivan R. Dee, Inc., 1996), pp. 190–191. 16. Communist Control Act of 1954, Public Law 637, 68 Stat. 775. 17. “FCC Anti-Red Rule Draws Mixed Comment,” Broadcasting, 26 July 1954, p. 54. See also “FCC Sets Non-Red Oath,” New York Times, 13 June 1954, p. 60. 18. Inter-office Memorandum for Classified Agenda for 19 January 1955, Box 8/ FCC Confidential Minutes, FCC Archives, NARA, p. 1. 19. There may, in fact, be more. Locating these in the bowels of the FCC and Department of Justice archives proved to be quite difficult. 20. Inter-Office Memorandum re: Richard Eaton, 11 November 1954, for Classified Agenda 17 November 1954, Box 8/FCC Confidential Minutes, FCC Archives, NARA; Inter-Office Memorandum re: Charles S. Syers, 11 January 1955, for Classified Agenda 19 January 1955, Box 8/FCC Confidential Minutes, FCC Archives, NARA; Inter-Office Memorandum re: Ronald Berkovitz, 23 March 1955, for Classified Agenda 30 March 1955, Box 9/FCC Confidential Minutes, FCC Ar-

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chives, NARA; Inter-Office Memorandum re: Robert Mattson, 20 July 1955, for Classified Agenda 27 July 1955, Box 9/FCC Confidential Minutes, FCC Archives, NARA; Inter-Office Memorandum re: Stanley Rothrock, 26 March 1956, for Classified Agenda 4 April 1956, Box 10/FCC Confidential Minutes, FCC Archives, NARA. 21. Dudley Dixon, Case #146–1-11–520, Department of Justice Case Files, Department of Justice Archives, NARA; FCC to Department of Justice re: Harry G. Hosack, 14 January 1955, Box 1495, Miscellaneous Bureau file, Department of Justice Record Slips 1910–1967, Department of Justice Archives, NARA. 22. In the matter of Charles Everett Colcord, Docket 11260, Box 5593, FCC Docket Section, FCC Archives, NARA. 23. Inter-office Memorandum 6 January 1955, for Classified Agenda 19 January 1955, Box 8, FCC Confidential Minutes, FCC Archives, NARA. 24. In the Matter of Travis Lafferty, Docket 11259, Box 5592, FCC Docket Section, FCC Archives, NARA; In the Matter of Morton Borrow, Docket 12553, Box 6538, FCC Docket Section, FCC Archives, NARA; In the Matter of William Cronan, Docket 12554, Box 6538, FCC Docket Section, FCC Archives, NARA; In the Matter of Alfred Johnson, Docket 11258, Box 5592, FCC Docket Section, FCC Archives, NARA. 25. In the Matter of Travis Lafferty, Docket 11259, Box 5592, FCC Docket Section, FCC Archives, NARA. 26. In the Matter of Travis Lafferty, Docket 11259, Box 5592, FCC Docket Section, FCC Archives, NARA, p. 10. 27. In the Matter of Travis Lafferty, Docket 11259, Box 5592, FCC Docket Section, FCC Archives, NARA, p. 13. 28. Borrow to Morris, 12 April 1958, Docket 11259, Box 5592, FCC Docket Section, FCC Archives, NARA. 29. In the Matter of Morton Borrow, Docket 12553, Box 6538, FCC Docket Section, FCC Archives, NARA, pp. 6–7. 30. Ibid., p. 8. 31. Borrow v. FCC, 285 F.2d 670 (1960). 32. Order, In the Matter of Amendment of Part 12 of the Commission’s Rules Concerning Eligibility to Hold Amateur Operator Licenses and Part 13 of the Commission’s Rules Concerning Eligibility to Hold Commercial Operators Licenses or Permits, 3 August 1962. 33. Newton Minow, “Program Control,” Vital Speeches of the Day, 15 June 1961, p. 535.

Conclusion: The Legacy of the Red Scare at the FCC

Lillian Hellman, one of the leading playwrights of the twentieth century, was an ardent and outspoken liberal who had a long-term relationship with an equally passionate liberal, author Dashiell Hammett. These details of Hellman’s life cultivated a perception among conservatives that she was a subversive; she was blacklisted in the late 1940s and called before the House Committee on Un-American Activities in 1952 to account for her personal philosophies. Many years later Hellman wrote that the Red Scare “was not the first time in history that the confusions of honest people were picked up in space by cheap baddies who, hearing a few bars of popular notes, made them into an opera of public disorder, staged and sung, as much of the congressional testimony shows, in the wards of an insane asylum.”1 The Red Scare is a dark period in the political history of the United States, a time during which the civil liberties of many citizens were violated in the name of national security or, more darkly, in the pursuit of a political chess game. The roots of the “confusions of honest people,” the explanations for the extreme fears of Communists, are tangled. The work of recent historians clearly indicates that the Soviet Union was engaged in an effort to undermine and overthrow the United States through the auspices of Communist organizations within the country.2 But as many other historians have noted, the Red Scare was more than just the fear of Communists; it was “an opera of public disorder” that conservatives orchestrated to diminish the power of liberals (particularly New Dealers) and to discredit the liberal agenda. Such was the case of the Red Scare at the FCC. The Red Scare at the FCC ended in the early 1960s when the

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agency abandoned pursuit of the “Anti-Red Rule,” but in the 20 years between 1940 and 1960, it had a profound impact on the Commission, its employees, its decisions, and its policy making. Throughout these two decades, the fear of Communism openly manifested itself at the FCC. TH E RED SC A R E AT T HE F C C The Red Scare at the FCC began in 1939 when the Commission became one of the most visible and fully committed members of the New Deal executive agencies. Larry Fly assumed leadership that year and guided the development of regulatory policy from a politically liberal perspective, promoting the philosophy that the most powerful mass communication medium of the time ought to be administered and used in the public’s interest, rather than in business interests. The agency launched a series of initiatives intended to foster competition among broadcasters and manufacturers, limit corporate monopolies, and cultivate the marketplace of ideas. Political conservatives responded to the FCC’s regulatory initiatives with equal parts fear and anger, anger over the executive branch’s willingness to challenge the economic sovereignty of corporate America and fear that they might succeed. The conservatives lashed out against the Commission, subjecting it to one hearing after another, each more contentious than the previous. One of the most serious accusations they made against the FCC, clearly intending to discredit the agency, was that it was Communist influenced; the hearings regarding Goodwin Watson and William E. Dodd, Jr., as well as the internal investigations of FCC employees, were manifestations of the conservative attacks on the agency. It was an accusation the broadcasting industry and its mouthpiece, Broadcasting magazine, embraced. Thus, in the years between 1940 and 1946, the Red Scare at the FCC principally manifested itself as accusations against the agency and its employees and was a direct response to the New Deal– inspired regulatory initiatives. Political winds calmed in the immediate postwar period. Franklin Roosevelt died, and with him passed the personification of the New Deal. Harry Truman assumed the presidency, but he did not have the political power needed to continue New Deal initiatives, particularly after Republicans temporarily won control of the House and Senate between 1946 and 1948. In those immediate postwar years the citizens of the United States created a moderate national government in which the executive and legislative branches balanced one another, a circumspection that found expression at the FCC as well. During this brief period of transition, the agency swung like a pendulum between developing policies that promoted liberal interests, particularly “The Blue Book” and the reservation of television channels for educational purposes, and making decisions that more closely aligned with conservative interests, notably the pro-business

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attitude the agency adopted in its decisions regarding the 1948 television Freeze and its increasingly conservative concerns about subversive influences in broadcasting, as revealed in the Metropolitan Broadcasting and Hollywood Community Radio Group cases. The pendulum swing to the right was completed when John Doerfer and Robert Lee joined the Commission in 1953. These two commissioners steered the FCC down a staunchly conservative path, and under their guidance the agency became as ardently anti-Communist in the 1950s as it had been pro–New Deal in the early 1940s. As a result, the agency shifted from being the suspected locus of subversion to being strongly identified with the anti-Communist movement, clearly communicating that it feared Reds as much as Joe McCarthy, Roy Cohn, and Richard Nixon. Although the Edward Lamb case proved deeply embarrassing to the FCC, the agency continued to carry out an anti-Communist agenda, albeit less publicly, in both its hunt for subversive licensees, such as Travis Lafferty and Morton Borrow, and its willingness to create the Anti-Red Rule. Thus, the pursued FCC became the pursuers until 1962, when the hunt was no longer politically compelling. NEW DEAL FA I L U R E S The 20-year political assault on liberal agendas was effective in two ways. First, the constant barrage of accusations that the FCC was “pink” effectively prevented any meaningful New Deal changes in the regulation of the broadcasting industry. Most of the significant attempts to orient the industry from a public interest perspective eventually failed, evidence of which is clearly revealed in two examples. The most notable breakdown in liberal policy making was the Chain Broadcasting Rule. Intended to vastly limit the power of the networks to control the industry and simultaneously increase local stations’ ability to operate in the interests of their local markets, the rule failed on both counts. Although it is true that radio and television stations still have the right to make their own programming decisions, the omnipotence of the broadcast networks over their affiliates was never seriously challenged. When television was reintroduced to the American public in 1946, the broadcast networks gradually abandoned their radio affiliations in favor of developing television networks. The networks were in a stronger position to survive this fundamental shift than were the affiliates, for the nets relied on the many years of healthy profits generated by radio to sustain them through the development period (particularly NBC and CBS). The hundreds of local radio stations that once affiliated with the networks found themselves without programming and, more importantly, without the financial support they’d enjoyed for decades. In short, the radio industry was forced to reinvent itself without a broadcast network

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framework, something radio stations would not have done if not forced. Ultimately the failure of the Chain Broadcasting Rule was revealed in the ability of the networks to establish hegemony over the television industry and the FCC’s attempt, once again, to limit that power through the 1970 Prime Time Access Rule, which attempted both to break the network stranglehold on the prime-time programming hours and simultaneously increase local stations’ access to prime time.3 In addition to attempts to limit corporate monopoly in the broadcasting industry, the New Deal FCC also attempted to curb a monopoly on the expression of ideas. This initiative failed as well. The Mayflower Doctrine was intended to protect the marketplace of ideas by prohibiting editorializing by licensees. Only nine years after its establishment the Mayflower Doctrine was replaced by the Fairness Doctrine, an appeasement to conservative complaints that Mayflower was unwarranted government interference into programming decisions. Even the conciliation proved to be a failure, as the Fairness Doctrine became one of the most reviled and controversial FCC policies during its 40-year existence. Furthermore, the Commission had a very difficult time administering the policy. During the 1960s, for example, the FCC found itself square in the middle of a contest between business activities (advertising cigarettes and automobiles) and public interest issues (the health risks of cigarette smoking and air pollution). After it determined that cigarette smoking was a controversial issue of public importance, the Commission ordered that every three cigarette ads should be countered by one antismoking public service announcement.4 Thus, the FCC found itself in the precarious position of making decisions that were perceived as being antibusiness. It quickly resolved that the Fairness Doctrine did not apply to purely commercial speech. Decades of continual complaints by the broadcasting industry and political conservatives finally resulted in its demise at the hands of the federal judiciary in 1989.5 As of 2004, editorializing on radio and television almost exclusively communicates politically conservative agendas, thus fulfilling Larry Fly’s and Clifford Durr’s fears that radio and television programming would not provide an open marketplace of ideas if left unprotected from political and corporate interests. CO NSERVAT I V E S U C C E S S E S Equally as important, the conservative attacks against liberal policies were effective in their ability to prevent a public-interest agenda from ever seriously threatening the business of broadcasting again, and this is the lasting legacy of the Red Scare at the FCC. In the years since New Deal efforts to force a public-interest mind-set on the broadcasting industry, other similar though weak-willed attempts have failed. A laundry list of FCC decisions to promote business interests over public interests docu-

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ments the effectiveness of the conservative assaults between 1940 and 1960. Programming Decisions Liberal attempts to produce public-oriented programming, as opposed to that which is intended strictly to produce a profit, have received minimal support from the FCC since the New Deal–inspired “Blue Book” and educational television. “The Blue Book” was loudly criticized by the broadcasting industry as influenced by “pink gremlins,” resulting in an agency at once both unwilling to criticize network programming and reticent to promote its own commitment to noncommercial educational television. Newton Minow’s attempts to replace the violence-ridden television programs of the early 1960s with educational television were met with The Beverly Hillbillies and Gilligan’s Island, a network response to Minow’s liberal designs that left the FCC chief politically impotent. The FCC’s complete inability to promote educational television literally was resolved by an act of Congress, the Public Broadcasting Act of 1967, which created the public broadcasting system and its financial support, the Corporation for Public Broadcasting.6 Only then did the long-promised development of educational broadcasting begin serious development in the United States, after many years of industry opposition and FCC unwillingness to challenge corporate hegemony over programming issues. Conversely, conservative success at crushing “pink” approaches to government regulation of programming have been much more visible and were clearly evident soon after “The Blue Book’s” failure, as the FCC relinquished the authority it gained over programming through the Mayflower decision. The most dramatic cases were the television quiz show and radio payola/plugola scandals, both of which resulted from the Commission’s “hands-off” approach to regulating content. Soon thereafter, when Newton Minow demanded a change in programming, the television industry simply responded with a steady diet of mindless but profitable situation comedies, knowing that the FCC chair had little recourse to seriously challenge their programming decisions. By the early 1960s the business of broadcasting was business. The only two programming issues that the FCC has consistently taken seriously since 1960 are political advertising and indecency, both of which have been used to limit the marketplace of ideas rather than expand it. Although the Equal Opportunities rule requires broadcasters to make equal time available to all legally qualified candidates for a political office,7 the FCC took the unusual step in 1960 of temporarily setting aside the rule so that only Richard Nixon and John Kennedy could be presented in the first television presidential debates without requiring local stations to provide equal time to all of the other legally qualified presidential can-

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didates. The decision established a precedent that continues to this day, and despite the fact that each presidential campaign witnesses dozens of candidates for the position, only the two (and occasionally three) “legitimate” candidates participate in the debates. Thus, in the one arena in which the full and open expression of a wide variety of political perspectives ought to be communicated, public interests are secondary to maintaining the conservative political status quo of a two-party system and the business interests of networks trying to draw audiences to “publicservice” programming. The Commission has consistently demonstrated its willingness to restrict the marketplace of ideas by vociferously censoring indecent content. Defining indecent content is as difficult as defining obscene material but, like Supreme Court Justice Potter Stewart, many know it when they see it.8 Since the early 1970s the FCC has devoted considerable time and effort to defining indecent material and punishing those found guilty of broadcasting it. The sheer attention the FCC devotes in attempting to regulate indecent content, most notably enhanced by the Telecommunications Act of 1996, which increased fines for broadcasting indecency to $100,000 per incident, is an ironic example of the use of government regulation to accomplish conservative agendas. Because indecent content often offends conservative sensibilities, the FCC prohibition against that form of content is acceptable; thus, some forms of government interference are acceptable if they accomplish conservative goals. Otherwise, conservatives argue, the government should not interfere with the business decisions of broadcasting programmers. Ownership and Technological Decisions Since 1960s the FCC’s approach to regulating ownership and technology has been a hodgepodge of mostly business-first decisions occasionally mixed with liberal-inspired but failed attempts to limit corporate power. Taken together, they reveal an agency that routinely follows the desires of business interests, yet another legacy of the conservative attacks on the FCC during the 1940s and its resulting conservatism in the 1950s. Ownership issues have plagued the Commission since Larry Fly attempted to prevent newspaper publishers from owning radio stations in the early 1940s, and ever since the FCC has been unwilling to develop policies that seriously promote diversity in ownership. Regulations such as the Rule of Seven and the Duopoly Rule theoretically were intended to prevent monopoly control of broadcasting facilities and promote an open marketplace of ideas. In practice, however, the fact that the ownership limits were continually expanded over the years reveals a resistance on the part of the FCC to seriously limit the business interests of broadcasters and control the concentration of communication and corporate power

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among the elite few. Passage of the 1996 Telecommunications Act essentially eliminated all ownership caps, and now we find ourselves in the position of having corporate owners (particularly Fox and CBS) reaching 34 percent of the national audience through their owned-and-operated stations and corporate conglomeration controlling the television industry. Moreover, FCC attempts to increase the number of radio and television stations owned by women and racial minorities have also failed and, under the current leadership of conservative Michael Powell, are being dismantled entirely. Thus, the occasional liberal, public-interest policies that attempted to ensure that broadcast facilities would be owned by a broad spectrum of U.S. citizens have been weakly administered and/or eventually overturned. The Commission’s inability or refusal to challenge corporate hegemony is communicated through its technological decisions as well. Throughout the 1960s the Commission consistently protected the business interests of the established broadcasting industry. It had no response to the industry’s refusal to introduce color television on a mass scale, despite the fact that the RCA color technology was approved in 1953 and was well in place. The FCC did nothing when the industry chose not to produce television sets that would receive UHF transmissions, a decision that prevented the growth of UHF television stations throughout the country, which, in turn, confined development to the relatively few VHF channels that were available. The comparatively low number of new television stations going on the air confined growth to three broadcast networks, in order of dominance, NBC, CBS, and ABC (the DuMont network quickly folded in 1955 because of its inability to secure enough affiliates).9 Not surprisingly, by the late 1960s the networks had achieved complete dominance of the television industry, largely as the result of the Commission’s resistance to regulate industry’s business practices. The FCC attempted to lessen network dominance of television by passing a variety of policies, notably the Prime Time Access Rule (PTAR), which required local stations to program the first hour of prime time and prevented stations in the top 50 markets from scheduling off-network shows, and the Financial Syndication (Fin/ Syn) rules, which restricted the networks from syndicating the programs they produced. The networks howled, just as they did 30 years earlier with the Chain Broadcasting Rule, but in fact, the PTAR and Fin/Syn rules ultimately had as little impact as did the Chain Broadcasting Rule. In an attempt to protect local stations from cable competition in the 1970s, the FCC further protected the broadcast networks by limiting the growth of cable in the top 100 markets in the country.10 Thus, the FCC both protected the nets from a viable form of competition while simultaneously attempting to limit their influence through the PTAR. This is the kind of directionless regulatory position the Commission has held since the 1950s, in which weak attempts to regulate in the public’s interest

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(PTAR) are diluted by decisions that protect the corporate status quo (cable regulation that benefits network broadcasters). Yet another example of FCC protection of broadcasters’ business interests is communicated through its FM radio decisions. The agency effectively prevented the growth of FM radio throughout the 1950s and 1960s, first by changing the frequencies assigned to it, then by allowing AM broadcasters to duplicate programming on FM stations. Allowing duplication essentially reduced FM to a sophisticated relay station that simply expanded the reach of AM transmissions, while simultaneously eliminating incentives for FM to develop as a broadcast medium in its own right. It wasn’t until 1964, when the Commission finally passed the NonDuplication Rule, that FM was finally able to begin operating independently of AM,11 30 years after Edwin Armstrong invented the technology. In sum, the FCC has consistently focused on protecting the business interests of communications industries rather than promoting the public interests of consumers. If these rules had not been implemented, and if the Commission had promoted FM rather than hindered it, a third viable medium might have developed through which the marketplace of ideas might have been expanded, thus fulfilling the directive that broadcasting should serve the public interest. Since the 1980s and the extended period of government deregulation ushered in by the Reagan administration and maintained by presidents George H. W. Bush, Bill Clinton, and George W. Bush, the FCC has been in a continual process of absolving itself of administrative authority over all but the most mundane bureaucratic issues. In an era that is commonly called “the information age,” the federal agency continues to abdicate its responsibility to regulate in the public’s interest, preferring to leave technical, programming, and ownership decisions to corporate interests; perhaps a better term would be “the corporate age.” Virtually every aspect of the radio and television industries currently operates in a nearly pristine business-first atmosphere, guided strictly by the philosophy that the marketplace will govern programming and technical decisions, not the FCC. The appetite of people in the United States for television and radio programming is insatiable, and given the choice between inane programming or none at all, we’ll watch endless hours of Joe Millionaire, The Bachelorette, and ideologically slanted coverage of the 2003 Iraqi War, rather than stop watching television. We are a public with a 40-year-plus history of dependence on television for news and entertainment. TV brought us the sociopolitical chaos of the 1960s soothed by the antics of The Beverly Hillbillies and the homespun philosophies of Andy Griffith, political and economic turmoil in the 1970s cushioned by the nostalgic sweetness of Happy Days and The Waltons, and the growth of international terrorism and a global economy since the 1980s countered by the protection of The

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Cosby Show and Who Wants to Marry a Millionaire? The reality is that the conservative business-first approach to broadcast regulation leaves consumers no choice at all; television viewing is too deeply ingrained in our national consciousness to be relinquished simply because “there’s nothing good on TV.” Thus, we are a captive audience, and the FCC has left us to the whims of industry. The philosophical foundation of the public interest demanded that the federal government hold industries accountable to the public for their decisions and activities.12 The government assumed responsibility for overseeing industry on behalf of the public, a goal that was accomplished through the establishment of regulatory agencies. In essence, the regulatory agencies mediated between two concepts fundamental to our national identity: free enterprise and individualism. These two values sharply conflicted in the context of 1930s Depression-era United States, and Franklin Roosevelt’s New Deal response was to promote individual and public interests. It was a conflict that was dramatically illustrated at the FCC as the agency attempted to promote a public-interest regulatory atmosphere in broadcasting. Conservative assaults against the liberal agenda, largely in the form of anti-Communist attacks, so effectively badgered liberals and connected their public-service goals with Communism, that they forever eliminated serious regulation that served the U.S. public first and corporate interests second. Thus, the long-term impact of the Red Scare at the FCC was the effective prevention of sincere regulation to promote public interests through broadcasting. The FCC has essentially become what conservatives and industry fought to produce during the 1940s and 1950s, a traffic cop rather than a steward of the airwaves. NO TES 1. Lillian Hellman, Scoundrel Time (New York: Bantam Books, 1976), p. 36. 2. Harvey Klehr, John E. Haynes, and Fridrikh I. Firsov, The Secret World of American Communism (New Haven, CT: Yale University Press, 1995). 3. Competition and Responsibility in Network Television Broadcasting, 23 FCC2nd 1825 (1970). 4. Banzhaf v. FCC, 405 F.2nd 1082 (1968). 5. Syracuse Peace Council v. FCC, 276 U.S. App. D.C. 38 (1989); Memorandum and Order, In re: Syracuse Peace Council, 2 FCC 5042 (1987). 6. Public Broadcasting Act of 1967, 47 USCS §396. 7. Equal Opportunities Rule, 47 USCS §315. 8. Jacobellis v. Ohio, 378 U.S. 184 (1964). 9. See Christopher Sterling and John Kittross, Stay Tuned: A Concise History of American Broadcasting (Belmont, CA: Wadsworth Publishing Co., 1990). 10. U.S. v. Southwestern Cable Co., 392 U.S. 157 (1968). 11. Non-Duplication Rule, 47 CFR § 73.3556

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12. Robert B. Horwitz, The Irony of Regulatory Reform: The Deregulation of American Telecommunications (New York: Oxford University Press, 1989); Willard D. Rowland, Jr., “The Meaning of ‘The Public Interest’ in Communications Policy, Part I: Its Origins in State and Federal Regulation,” Communication Law & Policy 2 (1997): pp. 309–328.

Works Cited

ARCH IVES Center for Legislative Studies, National Archives and Records Administration, Washington, D.C. Clifford J. Durr Collection, Alabama Department of History and Archives, Montgomery, AL. Clifford J. Durr: Social Activism and Civil Rights, Oral History Research Project, Columbia University, New York (1974). Department of Justice Archives, National Archives and Records Administration, College Park, MD. Edward Lamb Collection, Bowling Green State University, Bowling Green, OH. Federal Communications Commission Archives, National Archives and Records Administration, College Park, MD. James Lawrence Fly Project, Oral History Research Project, Columbia University, New York (1970). Jim Robertson Collection, Public Broadcasting Oral History Project, National Public Broadcasting Archives, University of Maryland, College Park, MD. Reminiscences of Goodwin Watson, Columbia University Oral History Project, New York (1963, 1974). Robert A. Taft Collection, Library of Congress, Washington, D.C.

GO VERN MENT D OC U M E NT S Court Cases Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946). Banzhaf v. FCC, 405 F.2nd 1082 (1968). Borrow v. FCC, 285 F.2nd 670 (1960).

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Works Cited

CBS v. U.S., 316 U.S. 407 (1942). Federal Communications Commission v. Sanders Brothers Radio Station, 309 U.S. 470 (1940). Hearst v. FCC, 167 F.2nd 225 (1948). Jacobellis v. Ohio, 378 U.S. 184 (1964). Lamb et al. v. Hyde, 223 F.2nd 646 (1954). Lovett v. United States, Watson v. United States, Dodd v. United States, 66 F. Supp. 142 (1945). NBC v. U.S., 319 U.S. 190 (1943). Sanders Brothers Radio Station v. Federal Communications Commission, 106 F.2nd 321 (1939). Stahlman v. Federal Communications Commission, 126 F.2nd 124 (1942). Syracuse Peace Council v. FCC, 276 U.S. App. D.C. 38 (1989). Trinity Methodist, South v. FRC, 62 F.2nd 850 (1930). United States v. Lovett, United States v. Watson, United States v. Dodd, 328 U.S. Reports 303 (1946). U.S. v. Southwestern Cable Co., 392 U.S. 157 (1968).

FCC Sources Competition and Responsibility in Network Television Broadcasting, 23 FCC2nd 1825 (1970). Equal Opportunities Rule, 47 USCS §315. In re: Appeal of Unity Corporation et al., 12 FCC 711 (1948). In re: Application of Dispatch, Inc., Erie, Pennsylvania, Docket 11048, Boxes 5454– 5469, FCC Docket Section, FCC Archives, NARA. In re: Application of Hearst Radio, Inc. (WBAL), 15 FCC 1149 (1951). In re: Application of Huntington Broadcasting Co. et al., Docket 7695, Box 2940, FCC Docket Section, FCC Archives, NARA. In re: Petition of Robert Harold Scott for Revocation of Licenses of Radio Stations KQW, KPO, and KFRC, 11 FCC 372, 1946. In re: Syracuse Peace Council, 2 FCC 5042 (1987). In the Matter of Allocation of Frequencies, 39 FCC 230 (5 March 1946). In the Matter of Amendments to the Commission’s Rules and Regulations Governing Sharing of Television Channels and Assignment of Frequencies to Television and Non-Governmental Fixed and Mobile Services, 39 FCC 336 (5 May 1948). In the Matter of Amendments to the Commission’s Rules and Regulations Governing Sharing of Television Channels and Assignment of Frequencies to Television and Non-Governmental Fixed and Mobile Services, Docket 8487, Box 3359, FCC Docket Section, FCC Archives, NARA, College Park, MD. In the Matter of Aural Broadcasting on Frequencies Above 25, 000 kc, Docket 5805, Boxes 1757–1761, FCC Docket Section, MARA, College Park, MD. In the Matter of Editorializing by Broadcast Licensees, 13 FCC 1246 (1949). In the Matter of Editorializing by Broadcast Licensees, Docket 8516, Boxes 3381– 3387, FCC Docket Section, FCC Archives, NARA, College Park, MD. In the Matter of Frequencies to Various Classes of Non-Governmental Services in the Radio Spectrum from 10 Kc to 30,000,000 Kc, 39 FCC 68 (25 May 1945).

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In the Matter of Frequencies to Various Classes of Non-Governmental Services in the Radio Spectrum from 10 Kc to 30,000,000 Kc, Docket 6651, Boxes 31– 59, FCC Docket Section, FCC Archives, NARA, College Park, MD. In the Matter of Mayflower Broadcasting and the Yankee Network, 8 FCC 333 (1940). In the Matter of Mayflower Broadcasting and the Yankee Network, Docket 5618, Boxes 1688–1696, FCC Docket Section, NARA, College Park, MD. In the Matter of Telegraph-Herald and Sanders Brothers Radio Station, 4 FCC 392 (1937). In the Matter of Telegraph-Herald and Sanders Brothers Radio Station, Docket 3967, Boxes 957–958, FCC Docket Section, NARA, College Park, MD. In the Matter of Television Standards, Docket 5806, Boxes 1762–1772, FCC Docket Section, NARA, College Park, MD. Investigation of Chain (Network Monopoly) Broadcasting, Docket 5060, Boxes 1400–1426, FCC Docket Section, NARA, College Park, MD. Investigation of Newspaper Ownership of Radio Stations, Docket 6051, Boxes 1932–1939, FCC Docket Section, NARA, College Park, MD. Non-Duplication Rule, 47 CFR § 73.3556 Public Service Responsibility of Broadcast Licensees. 7 March 1946, Federal Communications Commission. Report on Chain Broadcasting. Washington, D.C.: Government Printing Office, 1941. Report on Frequency Modulation, 39 FCC 29 (20 May 1940). Unity Corporation, Inc. Springfield, Ohio, application for Class B FM station conditionally granted, 12 FCC 1090 (1948). U.S. Federal Communications Commission. First Annual Report of the Federal Communications Commission for the Fiscal Year. Washington, D.C.: GPO, 1935. U.S. Federal Communications Commission. Second Annual Report of the Federal Communications Commission for the Fiscal Year. Washington, D.C.: GPO, 1936. U.S. Federal Communications Commission. Fifth Annual Report of the Federal Communications Commission for the Fiscal Year. Washington, D.C.: GPO, 1939. U.S. Federal Communications Commission. Nineteenth Annual Report of the Federal Communications Commission for the Fiscal Year. Washington, DC: GPO, 1954. U.S. Federal Communications Commission. Seventh Annual Report of the Federal Communications Commission for the Fiscal Year. Washington, D.C.: GPO, 1941. U.S. Federal Communications Commission. Sixth Annual Report of the Federal Communications Commission for the Fiscal Year. Washington, D.C.: GPO, 1940.

Legislative Sources U.S. Congress. House. Comments of Adolph Sabath regarding the Select Committee to Investigate Federal Communications Commissions. 80th Cong., 2nd Sess., Congressional Record, Vol. 94, Part 7, 19 June 1948, p. 9229. U.S. Congress. House. Comments of Charles Vursell regarding Edward Lamb. 80th Cong., 2nd Sess. Congressional Record, Vol 94, Part 5, 1 June 1948, pp. 6816– 6817. U.S. Congress. House. Comments of Eugene Cox regarding the Select Committee to Investigate Federal Communications Commission. 80th Cong., 2nd Sess. Congressional Record, Vol. 94, Part 7, 19 June 1948, p. 9228.

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Index

ABC (American Broadcasting Company), 53, 131 Adorno, Theodor, 17–18 Allen, Robert, 125, 126, 127 Allport, Gordon, 17 AM radio, 35, 40, 44 American League for Peace and Democracy, 71, 73, 78, 106 American Newspaper Publishers Association (ANPA), 45–46 American Peace Mobilization, 98, 106, 163, 165 Anti-Communism, 3–5, 20, 63, 96, 105–6, 113–14, 126, 142, 148, 153, 159, 195–208 Anti-Red Rule, 186, 196–202, 213 Armstrong, Edwin H., 40, 41, 42 AT&T, 7, 13 Barkley, Alben, 75 Berkovitz, Ronald, 201, 202, 203 Bickford, Leland, 32, 33 Biddle, Francis, 73, 78, 98 Blue Book. See Public Service Responsibilities of Broadcast Licensees Bontecue, Elinor, 121 Boren, Lyle, 143

Borrow, Morton, 204, 206–7, 208, 213 Bridges, Styles, 124 Broadcasting, 50, 52, 123, 124, 125–26, 128 Brown, Russell, 173, 174, 175–76, 178 Brown, Thad, 36, 66–67 Budenz, Louis, 177 Cantril, Hadley, 17 Case, Norman, 28, 36, 62, 72 CBS (Columbia Broadcasting System), 9, 35, 37, 41, 43, 47, 48–49, 52, 68, 81, 118, 131, 133 Chain broadcasting, 44, 47–53 Chain Broadcasting Rule, 4, 20, 25, 29, 44, 47, 51–52, 62, 68, 74, 75, 81, 84, 87, 95, 118, 120, 121, 213–14 Clift, Charles, 106–7, 121 Communications Act of 1934, 5, 8, 9, 10, 11, 50, 69, 86, 115–16, 149, 199, 202 Communism, 63–64, 68, 69–81, 89, 104, 116–17, 120, 130–33, 153 Communist Party (CP), 98, 133, 170, 175, 176 Consumers Union, 70, 71, 78 Coolidge, Calvin, 8

238 Corcoran, Tom, 26, 28 Cottone, Benedict, 28 Courey, Ernest, 170, 176–77, 179, 182 Cox, Eugene “Goober,” 68, 76, 82–87, 95, 165 Cox Committee. See House Special Committee to Investigate the FCC Coy, Wayne, 105, 107, 127, 145, 152 Craven, T. A. M., 28, 36, 62, 69, 72, 75, 81, 129 Cronan, William, 204, 206–7, 208 Cummings, William, 170, 171, 174–75, 176, 179, 181 Denny, Charles, 28, 83, 84, 105, 123, 126, 127, 144–45, 147, 148 Dies, Martin, 1, 20, 53, 68, 71, 72–74, 76–77, 95, 101–2 Dies Committee. See House Committee to Investigate UnAmerican Activities Dill, Clarence, 69 Dirksen, Everett, 65, 68 Dodd, William E., 61, 71, 73, 74, 76–80, 87, 88, 103, 118, 212 Doerfer, John C., 132, 134, 159, 161–62, 169–70, 172, 184, 185–86, 195, 208 Don Lee Broadcasting, 9, 43 Durr, Clifford J., 4, 28, 62, 71, 72, 75, 76, 85–86, 95, 96–99, 101, 106, 113, 118–21, 123, 126, 128, 149–51, 214 Economic censorship, 117–19 Editorializing, 32, 34, 117 Eisenhower, Dwight D., 159, 160–61, 172 Etheridge, Mark, 45, 52, 68 Fairness Doctrine, 128, 129–30, 134, 214 Farnsworth Television Company, 13, 41 Federal Communications Commission (FCC), 5–14; and broadcasting industry, 6–8, 12–14, 36–43, 47–53, 69, 74–75, 81, 116, 123–26, 128, 134, 152; and

Index employee loyalty, 95–108; and the FBI, 99, 108, 144–46, 149–51, 196–97, 202, 203; and the House of Representatives, 64–65, 67–68, 69–81, 82–88, 143–45; and Lamb, 159–86; the Legal Division of, 62, 68, 113; and the Senate, 64, 65–67, 68–69, 72, 73, 74, 81, 87–89 Federal Radio Communication (FRC), 5, 8–9, 11, 12, 27 Fitzpatrick, James, 67 Fitzpatrick, Thomas, 159, 170, 173, 176 Fly, James Lawrence (Larry), 61, 129, 214; as chair of the FCC, 4, 104, 119, 128, 199; and Dies, 1, 20, 71–72, 73; and FCC decisions, 33–35, 40–41, 48–49, 51, 53; and the House of Representatives, 64–65, 67, 72, 75, 76, 82–87; and Edward Lamb, 169; and the New Deal, 5, 15, 19, 20, 25–29, 30, 40, 48–49, 54, 62, 63, 67, 68, 82–83, 87, 95, 105, 212; and the Senate, 65–66, 68–69, 73, 81; and Watson, 71, 80; resignation of, 105, 119 FM Broadcasters, Inc., 41, 42 FM radio, 20, 25, 29, 35, 40–43, 44, 50, 54, 62, 127, 152–53, 218 Foreign Broadcast Intelligence Service (FBIS), 61, 71, 96, 99, 102 Foreign Broadcast Monitoring Service (FBMS), 61, 70–71, 72, 73, 83, 96, 99 Frankfurter, Felix, 26 Free enterprise, 10, 26, 63 Freeze (licensing), 128, 152 Frequency interference, 6–8 Garey, Eugene, 83, 84, 85 Garland, Nicholas, 195, 196–98, 200 Gee, Walter, 107 General Electric, 13 Great Depression, 3, 63, 70 Hebert, F. Edward, 165 Hennock, Frieda, 106, 113, 114, 128, 152

Index Hollywood Community Radio Group (HCRG), 146–51, 168, 204 Hoover, Herbert, 7, 8 Hoover, J. Edgar, 3, 98–99, 106, 145, 147, 149–51, 162 Horkheimer, Max, 17–19 Hosack, Harry, 201, 203 House Appropriations Committee, 1, 62, 65, 67–68, 70, 72, 73, 76–77 House Committee to Investigate UnAmerican Activities (HCUA), 1, 53, 61, 62, 70, 71, 72–74, 76–78, 88, 101–2, 105, 133, 142, 143–45, 153, 165 House Interstate Commerce Committee, 5, 9, 74, 165 House Special Committee to Investigate the FCC, 62, 76, 82–87, 95, 118 House Special Subcommittee on Appropriations, 77, 79–80, 85 Hyde, Rosel, 169, 172 International Labor Defense (ILD), 175, 177 Jackson, Robert, 26, 30 Jett, E. K., 68, 105 Johnson, Alfred, 200, 201, 203, 204–7, 208 Jones, Robert, 150 KDKA, 7, 14 KDTH, 29–31 Kefauver, Estes, 169, 172, 183–84 Kerr, John, 77, 83, 95 Kerr Committee. See House Special Subcommittee on Appropriations KGEF, 116 Kittner, Joseph, 173, 179, 181, 183 Lafferty, Travis, 200, 201, 203, 204–7, 208, 213 Lamb, Edward, 159–86, 197, 198–99, 201, 213; and Doerfer, 167–69; and FCC decision, 184–85; and Fly, 169; labor activities of, 163–64; media

239 ownership of, 164–65; testimony of, 181–83 Lazarsfeld, Paul, 17, 124, 146 Lea, Clarence, 86–87 Leahy, Robert, 159, 170, 176 Lee, Robert E., 132, 134, 159, 162, 169, 172, 185, 195 Leigh, Robert, 100, 101, 103–4 Licensing, 6, 8, 46, 68, 141–55, 159–86, 195–208 Lundeen, Ernest, 65, 66 Magnuson, Warren, 183 Marcantonio, Vito, 131–32 Margolin, Bessie, 84–85 Mass culture and mass society theories, 17–19 Matthews, J. B., 71, 74, 78, 102, 103 Mattson, Robert, 203 Mayflower Broadcasting Corporation, 31 Mayflower decision, 31–35, 44, 54, 63 Mayflower Doctrine, 4, 20, 25, 34–35, 95, 116, 117, 128, 129–30, 134, 214 McCarthy, Joseph, 3, 131, 132, 133, 142, 160–61, 162, 167, 172, 183, 186, 213 McConnaughey, George, 183–84, 201 McGrath, J. Howard, 169, 170, 171, 172, 173, 180 McNinch, Frank, 27, 48, 54 Menafee, Audrey S., 100–101, 103 Metropolitan Broadcasting Corp., 143–46, 168 Meyer, Eugene, 85–86, 105 Miller, Justin, 123–24 Miller, Neville, 50, 69, 74, 81 Mills, C. Wright, 18 Minor, Newton, 208, 215 Monopoly, 26, 34, 50 Murrow, Edward R., 133 Mutual Broadcasting System (MBS), 35, 47, 48, 52, 69, 75, 120 The Nation, 52, 83, 171 National Association of Broadcasters (NAB), 41, 50, 52, 65, 74, 75, 81, 120, 123, 127, 208

240 National Association of Educational Broadcasters (NAEB), 41 National Television System Committee (NTSC), 40 Natvig, Marie, 174, 177–79, 180–81, 184, 195 NBC (National Broadcasting Company), 9, 12, 35, 43, 47, 48–49, 50, 52, 68, 81, 118, 131; Blue network, 8, 48, 49, 53; Red network, 8, 48, 49 Network investigation, 29, 44, 47–53, 65, 68–69, 117 New Deal, 105, 10, 15, 19, 20, 25–54, 63, 72, 80, 88, 95–96, 102, 104–5, 106, 113, 114, 117–28, 131, 134, 141–42, 211 Newspaper ownership, 35, 44–47 Nixon, Richard, 3, 160 Noble, Edward, 53 Norfleet, William, 107 Ownership, of media, 4, 25, 29, 35, 43–47, 216–17 Paley, William, 13, 47, 51–52, 69, 74, 81 Payne, George, 28, 62, 72, 101 Payne Fund Studies, 16 Pearl Harbor, 1, 84 Pearson, Drew, 125, 126, 127, 130–31, 171, 178 Philco, 36–37, 39 Plotkin, Harry, 28, 38 Politics, 14–15, 19, 20, 105, 141–42, 199–200 Porter, Paul, 27, 28, 45, 105, 119, 120 Powell, Walter, 159, 170, 173–74, 176, 179 Prall, Anning S., 27 Prime Time Access Rule, 217–18 Programming, 114–35, 215–16 Public Interest, 5, 8, 10–12, 25, 31, 32, 34, 43, 116, 125, 217–18 Public Service Responsibilities of Broadcast Licensees, 121–28, 134, 142, 215

Index Radio, 6, 15–19 Radio Act of 1912, 5–6, 7, 8 Radio Act of 1927, 8–9, 11, 69 Radio Conferences, 7 Radio Intelligence Division (FCC), 83 Radio Manufacturer’s Association (RMA), 36–37, 39 Rankin, John, 105 Rayburn, Sam, 83, 85 RCA (Radio Corporation of America), 8, 11, 12, 13, 35, 37–40, 41, 42, 43, 47, 50, 53, 65–66 Red Channels, 132 Red Scare, 2–5, 63–64, 95, 102, 105–6, 108, 113, 141–42, 164, 186, 211–13 Roosevelt, Franklin D., 1, 4, 9, 14, 19, 26, 30, 45, 63, 80, 100 Rosenberg, Bernard, 18 Russell, Mace, 170, 179 Russia. See Soviet Union Sabath, Adolph, 165–66 Sanders Brothers, 4, 20, 25, 29–31, 35, 54 Sarnoff, David, 13, 38, 39–40, 47, 51 Schuman, Frederick, 76, 77, 101–3 Scott, Robert, 125 Seldes, Gilbert, 18–19 Senate Appropriations Committee, 62, 64, 65, 73 Senate Interstate Commerce Committee, 5, 9, 62, 64, 68–69, 72, 74, 81, 118, 172, 183 Sharfman, Herbert, 173, 175, 178, 179, 183, 184–85 Shepard, John, 33, 34 Siepmann, Charles, 18, 120, 121, 124, 129 Smythe, Dallas, 121 Soviet Union, 3, 70 Stahlman, James, 46–47 Stanton, Frank, 47, 74, 129 Starnes, Joe, 61, 76, 77–78, 83, 95, 98, 101 Supreme Court, 11–12, 26, 30, 31, 53, 81, 87, 118 Syers, Charles, 201, 202, 203 Sykes, Eugene O., 27, 75

Index Taber, John, 65 Taft, Robert, 113 Taishoff, Sol, 50, 123–24, 166 Taylor, Telford, 28 Telecommunications Act of 1996, 217 Telegraph-Herald, 29 Television, 15–19, 35 Television frequency allocations, 25, 29, 36–40, 42, 50, 54, 62, 65–66 Tennessee Valley Authority (TVA), 1, 27, 84 Tenney, Jack, 147 Thomas, J. Parnell, 3, 164 Thompson, Frederick, 28, 33, 62 Tobey, Charles, 49, 66–67 “Traffic cop” of the airwaves, 27, 35, 48, 62 Trammel, Niles, 51, 52, 67, 69, 81, 129 Trinity Methodist, South v. FRC, 116 Truman, Harry S., 105, 113, 128, 142 Tyler, I. Keith, 129 WAAB, 32–34 Wakefield, Ray, 62, 72, 101 WALB, 82, 85 Walker, Paul, 28, 62, 65, 72, 127, 151

241 “War of the Worlds” broadcast, 16 Watson, Goodwin, 4, 61–62, 70–81, 87, 88, 95, 96, 97, 103, 118, 212 Watson, Lowell, 170, 175–76, 179, 181 WBAL, 121, 125, 126, 127 WEAF, 7, 41 Welles, Orson, 16 Westinghouse, 7, 13, 41 WGN, 8 Wheaton, Emmett, 170–71, 175 Wheeler, Burton K., 66, 68, 81, 118 White, Wallace, 68, 69, 81 Wigglesworth, Richard, 67–68, 76, 83, 87, 95, 101 Winchell, Walter, 130, 148 Wireless radio, 5–6 WKBB, 29–31 WLOA, 141, 154–55, 168 Woods, Mark, 129 World Series (1939), 48 WQQW, 143 Yankee Broadcasting, 9, 31–35, 43, 44 Zenith, 36, 41

About the Author SUSAN L. BRINSON received her Ph.D. in 1990 from the University of Missouri, Columbia. Her research interests include broadcasting history and regulation and media critism. She is particularly interested in the various ways in which the media is used to maintain the hegemonic power of the elite.