Fall 2004, Vol. 36, No. 3
The Civil Rights Case That Transformed Television, Part 2
By Kay Mills
© 2004 by Kay Mills
The FCC Rules Again—and is Reversed Again
In October 1967, the FCC hearing examiner ruled that the challengers had not proved their case and the commission should renew the license, which it did once again in 1968 on a 5-2 vote. In a strong dissent, FCC members Kenneth Cox and Nicholas Johnson said, "it is unlikely that a more flagrant deliberate and serious offender against the fairness doctrine [than WLBT] will ever appear before us." The fact that the station now showed contrition should not be allowed to counter its prior "open and unmitigated scorn and indifference to the half of its viewers who happen to be black."
Their summary of the elements of the case in their dissent tells why this license challenge is still worth studying today: "This case has everything. A racist television station in Mississippi. An offended citizenry that actually takes the expensive and frustrating course of involving itself in the license renewal process. A church as a party. Negroes protesting the programming abuse received by that nearly 50 per cent of the people in the station's viewing area who are black. A landmark, first-impression decision by the U.S. court of appeals awarding 'standing' to such parties. The station's misrepresentation to the Commission over the years. The Commission's contortions to keep the public out entirely, then to place upon them an impossible burden of proof, then to reverse long-held precedents and ignore the clear suggestions of the court as to the standards to be applied."
Once again the case went to the appeals court, and once again the challengers won there. The June 1969 opinion was Burger's last on the appeals court before he moved up to the Supreme Court. Brimming with indignation, he wrote that the court had not intended that the members of the public be treated as interlopers. He found the record beyond repair and ordered the FCC to open proceedings for a new licensee. Lamar Broadcasting could participate, but it seemed clear to everyone that it would not retain the license.
The two WLBT decisions stunned the industry. In effect, they told stations around the country that if they discriminated against their black audiences and had few black employees, they, too, could be in trouble. At the same time, the UCC Office of Communication asked the FCC to issue rules requiring equal employment opportunity in broadcasting. The tide was turning in that direction anyway in the late 1960s, but the WLBT case made it virtually impossible for the commission to turn its back on this request.
WLBT's attorneys and staff members believed that the decisions were unfair. These attorneys, such as Harry Huge, then with Arnold & Porter, felt that the station had reformed and its efforts should not go unheeded.
Former station manager Fred Beard described the loss more viscerally in an interview: "I gave birth to a television station," he reflected years later. "I got the channel assigned to Mississippi. I trained all the people that I was capable of training. I hired engineers that were trained in radio and had background in engineering. We learned how to do it by going to the other stations. There were very few stations on the air anywhere. We were one of the first. And I gave birth to it. And then I had somebody kill it right in front of me—not because I was guilty of anything but being there. I was guilty of political activity that took the station away from us. We were tried, found innocent and lost the station. Just like finding somebody not guilty and executing them."
An Interim Owner Begins to Change Station Operations
While the FCC was considering who should run the station permanently, it had an interim organization operate the station—and that's when change really started to occur. Communications Improvement, Inc., had an integrated board and wanted four things from the station's management: that it hire more blacks, that it create an integrated children's program, that it provide more balanced news coverage, and that it continue to make a profit.
After a few months, the board fired the holdover station manager from Lamar ownership's day, Robert McRaney, Jr., and hired the first black station manager in the country, William Dilday. He sent reporters on stories that they had never covered before, and ultimately the station won a prestigious Peabody award for exposing the conflicts of interest of a leading state legislator.
"Our job was to question, question, question, and to push and probe and not accept political answers," said Walter Saddler, a reporter at WLBT in those days. Saddler, who is African American, added: "If they weren't going to give us answers, then we'd put that on the air. We got reaction from both the white and black communities. There were a lot of people in town who knew things were wrong and wanted to see them corrected."
Meantime, five groups vied for the permanent license. Washington Post reporter William Greider described their battle in a 1973 article as "a mudball fight in a small room." All the groups had some black participants, but in several cases that was only token. Prominent Mississippians figured in all groups, including a former Republican candidate for governor and Aaron Henry, one of the original challengers. Henry belonged to a group called Civic Communications, Inc., that also included state Democratic Party leaders Hodding Carter III, Patricia Derian, and Charles Evers.
During the course of the lengthy hearings in Washington to determine the permanent licensee, Evers published a controversial autobiography. He drew the fire of Civic's opponents because in that book he acknowledged that he had been involved in gambling and providing prostitutes to soldiers during World War II. Evers's group was disqualified, and administrative law judge Lenore Ehrig awarded the license to Dixie National, the heavily Republican group.
But Evers's group could remain involved in the case because everyone knew it could appeal the law judge's decision and because a politically liberal Texas banker, Walter Hall, was willing to spend the money to stay in the fight. Hall had been a civic leader in his small town between Houston and Galveston and long active in Democratic politics. He had heard from one of Civic Communications' organizers that WLBT's black audience had not been fairly treated and felt that something should be done about that.
Hall always made sure he knew whatever he could about his opponents. So he asked a Jackson attorney, Tom Royals, who was working with Civic's lawyer Martin Firestone on local aspects of the case, to tell him about his adversaries. "'Oh, Mr. Hall, they're very rich people,'" Royals said. "He said, 'Tell me about that. How rich are they?' And I got to telling him about these people and I said, well, this one's worth five or six million dollars. This one's worth fifteen million dollars. This one's worth twenty million dollars and so forth and I finished and he said, 'Tom, that ain't rich.' I said, 'Well, Mr. Hall, I thought that was rich.' And he said, 'No sir, Tom, that's not rich. I don't want you to be intimidated by that.'"
Throughout this part of the case, each group tried to turn up whatever harmful information it could find about the others. Investigations by both the UCC Office of Communication and Civic's Firestone yielded evidence that one of the Dixie National board members might not have told the truth about his ties to a company involved in providing modular housing. It is all very complex, but the FCC ordered the case reopened because it was at least a stickler for truth in testimony. Months turned to years, and the groups realized that they were all paying lawyers and getting nowhere.
The case had to be settled, Royals said. "There were going to be so many casualties nobody would be left." But several attempts to negotiate a settlement failed, in part because some of the participants were not willing to commit to majority black ownership. Hall stood firm on that point—he even visited Senator James O. Eastland at one point, presumably letting him know that he had deep pockets and intended to stay the course. Finally, the principal players reached an agreement, and a merged group received the license in 1979 and took over the station in 1980. Aaron Henry, once denied air time himself because of his race, became chairman of the board.
The Memorandum and Opinion of December 3, 1979, settled the long ownership battle with a victory for merged group with majority black ownership. (Records of the Federal Communications Commission, RG 173) [full image]
WLBT remained majority black owned until 2000, when it merged with Cosmos Broadcasting, a chain of stations now known as Liberty Corp. The chief executive officer at the time, Frank Melton, an African American, said that consolidation in the industry had led to the deal because he could no longer compete with larger groups in terms of buying programs or selling advertisements.
The Legacy of the Case: Listening to Consumers
The case is history. The FCC has deregulated much of broadcasting and has put the Fairness Doctrine on the shelf. The courts have made it impossible for the commission to have any equal employment rules with teeth. The public interest movement has waned—although there remain dedicated groups seeking to combat consolidation of media ownership and reviving the Fairness Doctrine and affirmative action rules.
So what difference did this case make?
In Jackson itself, a television station with one of the potentially largest black audiences for local news intensified its coverage of that community at a time of immense political and social turmoil in Mississippi. That had, after all, been the original aim of the challenge.
For a time, at least, the case buttressed the Fairness Doctrine. Using that doctrine, John Banzhaf won decisions from the FCC and the U.S. Court of Appeals in 1968 requiring that television stations running cigarette commercials tell their audiences of the public health issues. These decisions and public health findings put the skids under cigarette advertising on television, which Congress banned in 1969.
Although the Supreme Court upheld the Fairness Doctrine in 1969, the climate for curtailing government regulation grew in the 1970s and escalated when Ronald Reagan was elected President. In 1985 the FCC, headed by a Reagan appointee, said it believed the doctrine was unconstitutional and asked Congress to repeal it. Congress was not inclined to do so, not wanting to be seen as attacking fairness. In 1987 the FCC simply voted that the doctrine was no longer needed and therefore no longer in effect. Two years later, the federal appeals court let the FCC decision stand.
The case and the companion move for equal employment rules opened broadcasting's doors to more minority reporters, camera operators, producers, and other personnel. By the summer of 2004, if you turned on the television in Jackson, you would have seen an integrated anchor team on the morning news and two African Americans delivering the evening news. It's par for the course today.
Perhaps most important, at a critical time in U.S. history during which great social change was occurring, federal regulators had to listen to citizens, not just to broadcasters. First and foremost, the initial WLBT appeals court decision gave the public a venue for taking action against broadcasters that were ignoring them and their issues.
The spirit of protest was well under way through the civil rights, antiwar, and women's movements, and the legal precedent this case established allowed activists to train their sights on broadcasters as well as other institutions they considered unresponsive.
People learned how to "talk back to their television sets," to use former FCC commissioner Nicholas Johnson's phrase, a result of starting to think in new ways about how television affected their own lives.
Kay Mills, a former editorial writer for the Los Angeles Times, has written four books in addition to the current Changing Channels: The Civil Rights Case That Transformed Television, published by the University Press of Mississippi. Her subjects have included the history and influence of women in the newspaper business, women's history in the United States, Mississippi civil rights leader Fannie Lou Hamer, and the Head Start preschool program for low-income children. She has twice been a juror for the Pulitzer Prize for biography, once as chair of the jury. More information about her books can be found at her web site, www.kaymills.com.
Note on Sources
The files involving the challenge of WLBT's license are found in Docket 16663, Records of the Federal Communications Commission, Record Group (RG) 173, at the National Archives at College Park, MD. Information on the fight for the permanent license may be found in Docket 18845 of the FCC files. Archivist David Pfeiffer was helpful in searching these files for records on WLBT. The records at NARA proved quite useful in providing detailed background on the case. One such document was a legal summary of the FCC's 1962 investigation of Mississippi stations. It was helpful in jogging the memory of officials about events that had occurred thirty-five years before, including John O'Malley, an FCC investigator, whose memory, it turns out, proved to be excellent.
Using FCC files, mostly legal documents and transcripts, from the National Archives also helped in forming more precise questions for my interviews with other participants. These files enabled me to identify more members of the cast of characters than I had originally known, so I could interview many of those still living; to develop a complete chronology of the case; and to start unraveling some of its complexities.
Some of Medgar Evers's reports are also found in the NAACP files in the Manuscript Division of the Library of Congress. Information about the Rev. R.L.T. Smith's attempts to buy air time at WLBT is contained in his papers at Tougaloo College in Tougaloo, Mississippi. Some of the documents from the case before the U.S. Court of Appeals, District of Columbia Circuit, may be found in Docket 19409 in the court files at both the Library of Congress in Washington, D.C., and the Washington National Records Center in Suitland, Maryland (Records of District Courts of the United States, RG 21). The archives for Communications Improvement, Inc., WLBT's interim operator, are housed at the Mitchell Memorial Library at Mississippi State University in Starkville, Mississippi. Correspondence and other files involving the Office of Communication of the United Church of Christ's attorney, Earle K. Moore, were found at the New York Law School.
Other files used in researching this book are located at the Mississippi Department of Archives and History, the Lyndon Baines Johnson Library, and the Woodson Research Center of Fondren Library at Rice University. The author also conducted dozens of interviews with people involved in the case.
Useful secondary sources included contemporary news accounts, especially in Broadcasting Magazine, the Jackson Clarion-Ledger, the New York Times and the Washington Post. Books that were helpful for background included John Dittmer, Local People: The Struggle for Civil Rights in Mississippi (University of Illinois Press, 1994); Taylor Branch, Parting the Waters: America in the King Years, 1954–63 (Simon and Schuster, 1989), and Pillar of Fire: America in the King Years, 1963–65 (Simon and Schuster, 1998); Aaron Henry with Constance Curry, Aaron Henry: The Fire Ever Burning (University of Mississippi Press, 2000); Charles Evers and Andrew Szanton, Have No Fear: The Charles Evers Story (J. Wiley and Sons, 1997); Myrlie B. Evers and William Peters, For Us, the Living (Doubleday, 1967); Adam Nossiter, Of Long Memory: Mississippi and the Murder of Medgar Evers (Addison-Wesley, 1994); Andrew Young, An Easy Burden: The Civil Rights Movement and the Transformation of America (HarperCollins, 1996); Kay Mills, This Little Light of Mine: The Life of Fannie Lou Hamer (Plume, 1993); A. Pat Daniels, Citizen First, Banker Second: History of a Texas Community Bank and Stories About Its Politically Liberal Leader, Walter G. Hall (Peninsula Press of Texas, 1995); Fred W. Friendly, The Good Guys, the Bad Guys and the First Amendment: Free Speech vs. Fairness in Broadcasting (Random House, 1976); Les Brown, The New York Times Encyclopedia of Television (Times Books, 1997); and Erwin G. Krasnow, Lawrence D. Longley and Herbert A. Terry, The Politics of Broadcast Regulation (St. Martin's Press, 3rd ed., 1982).