Means of Ascent (22 page)

On February 17, 1943, moreover, Rayburn saved the FCC from more than an investigation. The amendment effectively “abolishing” the Commission was about to be overwhelmingly approved when the Speaker again stepped into the well for one of his rare speeches. His force seemed to fill the House Chamber. He had been the author of “the bill to set up the Communications Commission,” he said. “Before that time there was chaos
in communications.… I do not appeal to your prejudices or to your passions, but I do want to counsel with your reason.… There is only one agency in the United States of America, let me say to you, that has any control whatsoever over the air of the United States. Do you want by your vote to strike down that only agency?” The amendment was defeated; although the FCC’s budget was slashed by twenty-five percent as a punitive measure, the Commission remained
in existence.

Johnson was championing the FCC’s cause not only in the Capitol but in the White House. When the Administration persisted in paying more attention to the war, he attempted to make it understand that, as presidential assistant
Jonathan Daniels was to put it, “the Cox Committee investigation is a big job which is being ignored as a little thing,” when, in fact, it was actually an anti-Roosevelt plot; “as I got it from
Johnson,” Daniels wrote in his diary, “anti-New Deal lawyers … hope to use this investigation of the FCC as a take-off for smearing the whole Administration or the important people in it.”

A
LL DURING THIS PERIOD
, of course, Lyndon Johnson was seeing
Clifford Durr socially in the evenings and on Sundays, sometimes at Durr’s home, sometimes at his own. As was the case with the Cox investigation, he may have “kept away” from Durr so far as furnishing him with details of the KTBC application was concerned. Durr, a courageous Southern liberal (returning to Montgomery after his term on the
FCC ended, in 1948, he and his wife would spend their lives fighting for civil rights there, often representing clients too impoverished to pay a legal fee), was the champion on the FCC of higher standards of programming—increased public service, for example, and fewer commercials. In the handling of more mundane matters, he often relied on Red James, a strikingly more pragmatic lawyer, whose later career would be intermittently intertwined with Johnson’s, and Durr
appears to have been unaware of many of the circumstances surrounding the KTBC application. And Johnson was, of course, seeing Red James, too—indeed, throughout this period, he was quite frequently bringing to see James the attorney who was handling the KTBC application: “During all this period of time, Alvin Wirtz used to come to Washington. I regarded Alvin Wirtz very highly, and he and Lyndon Johnson and I would get together and have a highball and go out
to dinner, just shoot the bull about things, occasionally go over to Lyndon’s house.… I would be working maybe at the FCC. Along about 4:30 in the afternoon I’d get a call from LBJ, and he’d say, ‘Alvin has come to town. He wants to see you and wants you to come on over and we’ll have a couple of drinks.’ ” (Did Wirtz represent them in the FCC matter? James was asked. “Yes. I’m sure he
did.”) And of course this was the period during which Johnson was making his late-night telephone calls to James. Whatever the reason, when Durr and James are discussing KTBC, even while Durr is saying, “I never got any pressures at all from [Johnson],” there emerges, not only in James’ own words but in Durr’s as well, an attitude that a disapproving observer was to describe as “
government between friends.”

Whenever, in later years, Durr was asked about the KTBC application, he was quick to point out that it was in Lady Bird’s name, and to say that “
Lyndon never had a thing to do with it.”

There was nothing wrong with Bird’s visit, Durr says.

There was nothing wrong with that, Durr says. And, James, whom Bird also used to visit, makes the same point: “She used to come down and see me quite often and discuss matters, as she had
a perfect right to do, unless they were adversary matters.…”

It is possible, of course, that during all their dinners and telephone conversations with Durr and James, Wirtz or Johnson did not mention
the radio station to the two FCC officials. But Mrs. Johnson did, and after her visits Durr and James spoke to lower-level FCC staffers about KTBC—which, whether Durr and James intended this or not, would have signaled these staffers that their superiors were personally interested in the matter.

Not that all staffers needed to read such indirect signals. Lyndon Johnson may not, as Durr and James maintain, have been talking to them directly about KTBC, but his contention that he never intervened with the FCC would have fallen strangely on the ears of James Barr, who, as an official of the FCC’s Standard Broadcast Division all during the 1940s, had to pass on some of Mrs. Johnson’s applications. One day, while he was considering one of these
applications, his telephone rang; when he picked it up, he found Mrs. Johnson’s husband, Congressman Johnson, on the line. “
He wanted to get a radio station, and what I remember is, he wouldn’t take no for an answer,” Barr recalls. “I can still hear him when I tried to explain: ‘Now, Mr. Barr … Now, Mr. Barr …’ The thing that impressed me was that he was on a first-name basis with Red
James.” And although Johnson, Durr and James were reticent about telephone calls they may or may not have made, or influence they may or may not have used, Tommy Corcoran, never reticent about anything, was not. “
I helped him out with that [the KTBC application]—all up and down the line,” he said. With Fly? “
I told you—all up and down the line,” he said. And when he was asked whether the fact that Lyndon Johnson was
a Congressman, a Congressman important to the FCC, had helped his wife obtain a radio license, Corcoran reacted at first only with silence, and a look of contempt that someone should have to ask so obvious a question. Finally he growled: “How do you think these things work? These guys [FCC staffers] have been around. You don’t have to spell things out for them.”

Moreover, about one significant point, Durr is incorrect. If “nobody else was in the picture,” that wasn’t because nobody else wanted to be.

While J. M. West had been anxious to enter the radio business, his sons and Kingsbery had not seemed to care one way or the other. Apparently feeling that Wirtz’s silence was a signal that the sale to the Wests was never going to receive FCC approval, and fearing that behind-the-scenes maneuvering might be taking place in Washington, Ulmer, representing the station’s owners, had, in 1942, let it be known in the Austin business community that if a new, firm
offer for KTBC was received, the West option might be circumvented, surrendered or sold for a token amount. Several Austin businessmen thereupon expressed interest in KTBC at the same time that Mrs. Johnson was doing so. One prospective purchaser was
William Drake, a lumber-company president who would later become Mayor of the city. Other businessmen recall that Drake was
quite determined to acquire the station.
Edward
Joseph, one of the city’s leading realtors and owner of a clothing store, says, “
Bill Drake … made an offer on the station.… He made an offer on it, but Lyndon just reached out and got it from under him.” (Joseph adds that “because of that … they sort of fell out and for a long time they were on the outs because of that.”) Another businessman, more sophisticated in the ways of
politics than Drake, took his experience with the FCC and Johnson more philosophically. He was
William J. Lawson, a former Texas Secretary of State, who by 1942 had become a successful businessman in Austin. In partnership with two other businessmen, Lawson had recently acquired an FCC construction permit, the first step toward obtaining a license, for KBWD, a five-hundred-watt station in Brownwood, Texas, and it had proved to be a lucrative business deal.
Obtaining a permit for a station in Brownwood, Lawson had found, was simple. He had simply sent in the application, and back—very quickly, as he recalls—had come FCC approval. The two businessmen (impressed by the financial possibilities of small radio stations—“This thing’s a gold mine!” one said) bought out his share even before the license for KBWD was granted—for what Lawson considered a handsome profit. In 1942, Lawson recalls,
“I wanted to do the same thing in Austin, with KTBC.” But, he found, becoming the owner of a station in Austin was not as simple as becoming the owner of a station in Brownwood. After making a tentative agreement with Ulmer, Lawson sent the FCC a preliminary inquiry (“not even an application—it never got to the application stage”) as to how to proceed, but, he says, “before I could get anything done, I got this odd letter—a form letter
[not] even a dictated letter” that had the effect of discouraging him from proceeding further. Telephoning a veteran Capitol Hill staff member,
D. Roland Potter, Lawson asked him to find out from his contacts at the FCC what had happened. Potter called back, telling Lawson that his contacts said that “ ‘Congressman Johnson was in to see us.’ … They said that Congressman Johnson had indicated an interest in
the license, and based on the information he had given them, I [Lawson] was financially unstable.”

“Their excuse didn’t make any sense,” Lawson says. “They had already issued me one [permit], you know.” Why would they find him suitable for one station and unsuitable for another? His financial situation, he says, had only improved since the Brownwood application. Lawson was very far from a political neophyte. He had been, in fact, a key strategist in Governor O’Daniel’s victory over Johnson the previous year. And, being
no neophyte, Lawson knew that this time Johnson had beaten
him
. He dropped any further effort to obtain KTBC. “I never made an issue out of it because I would have been fighting with the Congressman,
and he had already made his point with the Commission,” he explains.

Despite Durr’s assertion, therefore, other prospective purchasers
were
in the picture—or, rather, might have been, if not for Lyndon Johnson’s entrée, his access to the Commission’s ear. Johnson, Lawson believed, had told the Commission that Lawson was “financially unstable.” Untrue though this statement was, the Commission may have accepted it—because there was no one to refute it.

In courts of law, to the extent that only one side in a case has access to a judge, to that extent justice is diminished, since in such an
ex parte
proceeding the other side cannot be heard. The power of regulatory agencies such as the Federal Communications Commission is, in not a few respects, the power of a judge. But before the Commission, in the case of KTBC, the other side was not heard. The Johnson side—Lyndon Johnson, Lady Bird Johnson, Alvin
Wirtz—could get appointments with an FCC commissioner and a top FCC staffer to discuss the Johnson application in person; the opposing applicant could get only “a form letter [not] even a dictated letter.”

W
HATEVER THE EXPLANATION
, the shift in the FCC’s attitude toward KTBC was dramatic after Lady Bird Johnson submitted her application to purchase the station. The five years during which the original owners had been dealing with the FCC had been five years of delays and red tape, or delays and unfavorable rulings—of slowness in every aspect of the bureaucratic process. From the moment the owners agreed to sell to Mrs. Johnson,
red tape vanished, all rulings were favorable—and slowness was replaced by speed.

The speed was evident not only in the fact that her application to purchase KTBC, submitted to the FCC on January 23, 1943, was approved on February 16, 1943—in just over three weeks. It was evident also when, later that year, she applied to change the conditions under which the station operated. For the previous owners, changing the restrictions had seemed an insuperable obstacle. For Mrs. Johnson, changing the restrictions was no obstacle at all. In June, 1943,
she applied to the FCC for permission to operate twenty-four hours a day—at a new frequency, 590 on the dial, a frequency so much more desirable than the old that the move alone would transform KTBC into a much more viable, and valuable, property. Not only would it make KTBC the first station that Austin listeners could get on their dials but 590 was at the opposite, uncluttered, end of the dial from 1150, an end so uncluttered in the Austin area, in fact, that KTBC would now
be heard not only in Austin but in no fewer than thirty-eight surrounding counties throughout central Texas. Her application,
abetted by a Wirtz-engineered application for daytime hours submitted by WTAW earlier that same month, was filed with the FCC on June 25. It was approved on July 20.

Was Lyndon Johnson’s influence responsible for the change? Mrs. Johnson, Red James emphasizes, “had a perfect right” to “discuss matters” with him, “unless they were adversary matters.” There was an adversary in this matter, because, as James was (perhaps inadvertently) to recall, the frequency “he [Johnson] wanted to change over to” was a frequency “where the dominant station was WOW in Omaha,
Nebraska,” and KWOW’s broadcasts had previously reached south into Texas, a fact which KWOW used in selling advertisers airtime. “I think,” James was to recall, “his lawyer talked to the lawyers for WOW and asked them if they would oppose it if he applied to go on that frequency.… They were a little upset about this.…” But, as James’ own statement thus confirms, the fact that there was an adversary did not deter him from
discussing the matter with Lyndon Johnson. And it didn’t deter James from discussing the matter with other FCC officials.