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Broadcasting and the Administrative Process in Japan and the United States Jonathan Weinberg Wayne State University, [email protected]

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Broadcasting and the Administrative Process in Japan and the United States Jonathan Weinberg Wayne State University, Weinberg@Wayne.Edu Wayne State University Law Faculty Research Publications Law School 10-1-1991 Broadcasting and the Administrative Process in Japan and the United States Jonathan Weinberg Wayne State University, [email protected] Recommended Citation Jonathan Weinberg, Broadcasting and the Administrative Process in Japan and the United States, 39 Buff. L. Rev. 615 (1991). Available at: http://digitalcommons.wayne.edu/lawfrp/115 This Article is brought to you for free and open access by the Law School at DigitalCommons@WayneState. It has been accepted for inclusion in Law Faculty Research Publications by an authorized administrator of DigitalCommons@WayneState. BUFFALO LAW REVIEW Volume 39 Fall 1991 Number 3 Broadcasting and the Administrative Process in Japan and the United States JONATHAN WEINBERG* Introduction ................................................... 616 I. Regulatory Models and Legal Ideology .................... 623 A. Two Approaches to Regulation ....................... 623 B. Regulation in the United States ....................... 625 C. Regulation in Japan .................................. 633 II. Studying Broadcast Regulation ............................ 640 III. Broadcast Licensing ....................................... 647 * Assistant Professor, Wayne State University Law School. I conducted part of the research that went into this Article pursuant to a GARIOA/Fulbright grant from the Japan-United States Educational Exchange Program (Fulbright) Foundation, funded by a generous contribution from the Takahashi Foundation. In the United States, I owe thanks above all to Jessica Litman for innumerable rereadings and invaluable advice. I owe thanks as well to Frank Upham, John Dolan, Avery Katz, Steve Calkins, Maurice Kelman, and Joshua Dressler for their valuable suggestions and support. In Japan, I owe thanks to Professor Junichi Hamada of the University of Tokyo Institute of Journalism and Commu- nications Studies, who went far beyond the call of duty in helping me, adopting my research pro- gram as if it were his own. Without Professor Hamada, who frequently accompanied me on field interviews and translated questions and answers, I could not have written this Article. I owe thanks as well to Professors Yoshimi Uchikawa and Noritsune Takagi. None of the persons I have named, of course, bear any responsibility for the views I have expressed or for the mistakes I have made. Much of the material in this Article is drawn from interviews with Japanese government offi- cials and industry members. I have listed those persons in the Appendix; all of them sacrificed unusually long periods of time answering questions I put to them, and I want to extend to them my special thanks. I want to thank, in addition, a number of persons to whom I spoke more briefly and whom I have not identified. Because a number of field interviews were entered into under an assur- ance of confidentiality, and because of the Japanese practice that journalistic and scholarly inter- views are presumptively conducted on a non-attribution basis, I will as a general matter in this Article not make specific citation to interviews. In this footnote, as elsewhere in this Article, I have written English transliterations of Japanese names in the modern style, with the familyname appear- ing last. 616 BUFFALO LAW REVIEW [Vol. 39 A. Broadcast Licensing in the United States .............. 647 1. Allocation Policy ................................. 647 2. Dealing With Competing Applications ............. 655 3. Conclusions ...................................... 660 B. Broadcast Licensing in Japan ......................... 661 1. Initial Choices .................................... 662 2. Ipponka Chosei ................................... 664 3. Allocation Policy ................................. 668 4. Ipponka Explained ................................ 674 5. Allocation Policy Explained ....................... 678 6. Some Consequences of the Japanese Approach ..... 684 7. Conclusions ...................................... 692 IV. New Technologies ........................................ 692 A. Cable Television in the United States ................. 693 1. History of FCC Cable Regulation ................. 693 2. Conclusions ...................................... 700 B. Cable Television in Japan ............................. 702 1. The Old Regime .................................. 702 2. The Revolution ................................... 710 3. Cable Revisited ................................... 719 4. Conclusions ...................................... 728 V. Regulatory Models Revisited .............................. 729 A ppendix ...................................................... 734 N every nation that allows private exploitation of broadcasting and other electronic mass media,I some government agency is assigned the job of regulating those media. That agency's job is to determine who is to be allowed to speak over the airwaves, who is to be forbidden, and what those who are allowed to speak may say. In the United States, that role is played by the Federal Communications Commission (FCC). In Japan, it is played by the Ministry of Posts and Telecommunications (MPT). In other countries, the gatekeepers have other names. Governments justify their control over who may broadcast in a vari- ety of ways. Many justifications are based on the idea that the ability to speak over the electronic mass media is not merely a source of profit or of 1. I will use the terms "broadcast," "broadcasting," and speech "over the airwaves" in this Article to reler to the electronic mass media generally, including media such as cable television that reach the ultimate consumer through wires rather than spectrum. This usage, while lacking in preci- sion, avoids the mind-numbing effects of repeating the phrase "electronic mass media" every sen- tence or so. 1991] BROADCASTING IN JAPAN AND THE US. gratification; it is a source of power.2 Leaving that right to the market is seen as allocating that power to those who are already economically fa- vored, and allowing them to use it to shape public views and desires.' I do not propose to discuss in this Article the justifications for broadcast regulation, however, or the important constitutional law questions raised by a government agency parceling out the right to speak over the air- waves to some individuals and not to others.' Nor do I propose to dis- cuss more than fleetingly questions of comparative constitutional law raised by different countries' reactions to those issues.' My focus in this Article, rather, is on how contrasting regulatory approaches and philosophies in two countries - the United States and Japan - have shaped the doctrines and practices those countries' broad- cast regulators have selected.' The basic documents for the governance 2. See, e.g., Johnson & Westen, A Twentieth Century Soapbox: The Right to PurchaseRadio and Television Time, 57 VA. L. Rnv. 574, 604-06 (1971). 3. Some politicians fear that a "tiny, unelected and elitist" group of broadcasters can set the agenda of social debate and usurp political authority. R. HOMET, POLIICS, CULTURES AND COM- MUNICATION: EUROPEAN VS. AMERICAN APPROACHES TO COMMUNICATIONS POLICYMAKING 54 (1979). To the extent that broadcast speech is a vehicle of social and political power, it is debatable whether the ability to engage in it should be distributed according to the prevailing distribution of wealth. See Weinberg, Questioning BroadcastRegulation, 86 MICH. L. REv. 1269, 1272-73 (1988). The United States system of broadcast regulation, however, is only superficially responsive to that concern. Under the American approach, in contrast to that of the Japanese, broadcast licenses once awarded are freely transferable. In fact, Congress acted in 1952 explicitly to disapprove an FCC policy limiting license transferability. See 47 U.S.C. § 310(d), added by Act of July 16, 1952, ch. 879, § 8, 66 Stat. 716; MG-TV Broadcasting Co. v. FCC, 408 F.2d 1257, 1263-64 (D.C. Cir. 1968); see also 47 C.F.R. § 73.3597 (1987). As Professor Tobin has pointed out, distributing the right to a commodity on an egalitarian basis but allowing that right to be freely transferred in the market is unlikely to produce an ultimate distribution much different from that which the market would have produced in the first instance. See Tobin, On Limiting the Domain of Inequality, 13 J.L. & ECON. 263 (1970); see also Policy Statement on Comparative Broadcast Hearings, 1 F.C.C.2d 393, 406 (1965) (Lee, Comm'r, concurring). 4. Compare Trinity Methodist Church, South v. Federal Radio Commission, 62 F.2d 850 (D.C. Cir. 1933) (regulator may withdraw license of broadcaster because its words "offend ... religious sensibilities. , inspire political distrust .... or offend youth and innocence"), cert. denied, 288 U.S. 599 (1933), with Near v. Minnesota, 283 U.S. 697 (1931) (regulator may not forbid publication of newspaper notwithstanding that its words are "malicious, scandalous, and defamatory"). See generally L. PowE, AMERICAN BROADCASTING AND THE FIRST AMENDMENT (1987); I. POOL, TECHNOLOGIES OF FREEDOM (1983); Spitzer, The Constitutionalityof Licensing Broadcasters, 64 N.Y.U. L. REV. 990 (1989). 5. But see infra notes 120-30 and accompanying text. 6. I shall not discuss one of the most important elements of Japan's broadcasting system: Nip- pon Hoso Kyokai (NHK or Japan Broadcasting Corporation), Japan's quasi-govermnental public broadcaster. The relationships of MPT and other regulators with NHK are very different from
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